Abstract
Marriage and its Discontents is a sociological study of Muslim women and marital disputation in India that is impressive in its detail and range. The book offers a necessary corrective to popular opinion that oversimplifies Islamic legal adjudication and Muslim Personal Law (MPL), especially after the Indian Supreme Court’s 2017 ruling, which voids instantaneous divorce pronounced by men (triple talaq). The ‘trademarks’ of Islamic law or sharia—triple talaq, polygamy, and the ‘easy’ dissolvability of contractual marriage—are canards, argues Vatuk, that prevent us from seeing how women actually draw upon the law. Muslim women in India largely avail the legal architecture of extra-judicial institutions including dar-ul-qazas (‘sharia courts’) and masjid (mosque) committees, over state-led adjudication. In the state’s courts, sharia— which became re-codified as MPL—remains marginalised, underused, and poorly understood by judges and advocates. Nevertheless, a segment of women continues to seek recourse under its civil provisions including Section 125 of the Criminal Procedure Code (CrPC) for maintenance, the Dissolution of Muslim Marriages Act (DMMA), and less frequently, the Muslim Women’s (Protection of Rights on Divorce) Act (MWA). Vatuk’s rigorous study reveals key distinctions between non-state Islamic adjudication and secular religious law (both of which she variously categorises as ‘MPL’, illuminating not only their differences but also the constitutive relationships between the regimes). Another strand in the book deals with changing norms of marriage as reflected in the Muslim public sphere, in Muslim/Islamic political debates, and in married people’s intimate claims as filtered through law.
In terms of method, Vatuk productively directs our attention away from religious texts and apex decisions, typically used by legal critics to address MPL. She moves instead into the plural zones of religious law, drawing from fieldwork conducted between the 1980s and 2015 in Hyderabad and Chennai (with select findings from Delhi and other cities). As ethnographers of South Asian bureaucracy know well, it is difficult to conduct ‘systematic’ analyses of files in partially-regulated regimes. In Islamic law, especially, divorce may be contracted privately between parties and without the participation of a religious functionary. Records maintained by non-state religious bodies are therefore non-standard, non-imperative (i.e. not required by the state, though this is changing), and often incomplete. Despite this constraint, Vatuk mobilises an impressive arsenal of data ranging from interviews and family histories to newspaper articles, as well as files from dar-ul-qazas, jamaat or congregational committees, lower courts, legal aid offices and police stations—to illustrate a broad socio-legal landscape.
Contrary to popular opinion, Vatuk shows that Muslim women regularly initiate a form of Islamic divorce called khul. Unlike husband-initiated divorce or talaq, the terms of khul must be agreed upon by both husband and wife, with a religious functionary often facilitating negotiation. Vatuk’s analysis of case registers maintained by qazis (Muslim judges trained in Islamic legal sources, interpretation, and jurisprudence) reveals that khuls initiated by women exceed both talaqs as well as judicial divorces sought by women under the DMMA. In effect, Vatuk inverts the fixation on unilateral male divorce (including triple talaq) with its extra-judicial, woman-initiated counterpart. However, this raises another set of issues—those concerning mehr, or the amount of money owed to a woman as dower which, if unpaid, becomes due upon divorce. To secure khul, many women relinquish any claim to mehr. Khul furthermore raises the problem of consent: some women in Vatuk’s study report husbands who forced them to sign the khul agreement. In this way, husbands can avoid paying mehr and iddat—the latter being the three months’ maintenance due to a wife upon talaq. For the reader, this leads to the question of whether signatures made under duress, and their attached divorces, remain in some ways incomplete, containing the potential of re-evaluation on the part of the couple, their families, or qazis. Vatuk’s findings thoughtfully shift attention away from men’s pronunciations and onto the fraught negotiations that accompany woman-initiated divorce.
Second, Vatuk notes the reluctance of many men to pronounce talaq. Similar to patterns of conflict in Hindu marriage, Muslim men informally separate from wives, carry on affairs, and temporarily suspend relations. Only a small number finalise divorce on paper (through the divorce contract or talaqnama), and often much later after separation—for instance if they require official documentation for travel, a court case, or another purpose. Civil suits for maintenance filed by women under 125 CrPC also reveal vague situations where talaq was never officially pronounced or recorded: the couple is thus considered married by the court and the wife eligible to apply for maintenance (though Vatuk shows that the civil suit itself can trigger a talaq). Talaq, then, is not a transparent legal category. Vatuk makes the passing observation that while Muslim marriages can be found in the archives dating back hundreds of years, divorce records appear in the last four decades or, in other words, during the establishment of secular religious law, post-Independence. This leads one to ask how spoken talaq maintains its power. Instead of speculating on its prevalence (for instance, in relation to khul), we might explore how marriage and divorce exist on a spectrum enabled by secular law and its imperfect technologies of recordkeeping.
Finally, Vatuk addresses the misconception that Muslim marriage is contractual and thus readily dissolved. On the contrary, it is not the contractual but the moral aspects of marriage that are a constant preoccupation of Muslim ethico-religious debates, if a stark divide can be made between the two categories at all. Vatuk devotes a chapter to opinion pieces carried in Muslim dailies on dowry and its connection to Hindu and Indian identity. In another chapter, she outlines political contests between Muslim feminist groups and the ulama, or religious establishment, over the model nikahnama (marriage contract) and what terms of marriage should or should not be made explicit in writing. Similar detail would be welcome on how religious intermediaries deliberate cases. In Islamic law, no explanation is required from either party to contract a divorce. Nevertheless, it would be illustrative to see how qazis go about their daily business of encouraging or discouraging reconciliation between couples, or deciding on the terms of separation. Do they ever consult fatwas (authoritative legal advice issued by Islamic jurists, muftis) in response to particular questions of secular legislation, case law, or landmark decisions?
Marriage and its Discontents brings into one volume decades of work by a seasoned scholar. As a whole, it exceeds the humble claims with which Vatuk prefaces the material. Her claims are, first, that debates in the Indian legal and political sphere concerning Muslim law miss its empirical complexity. Secondly, ‘paternalist attitudes’ pervading non-state and state legal regimes limit women’s success in using the law as resource (p. 3). I would add that the mutual unintelligibility, and imbrication, of customary and secular forms of law open women to unexpected pathways of recourse. In its political timeliness and empirical rigour, Vatuk’s book is a remarkable contribution to the study of religion, gender, and law in India.