Divorce at the Woman’s Initiative in India, in Pakistan and in the Diasporas

Divorce at the Woman’s Initiative in India, in Pakistan and in the Diasporas

Livia Holden (LUMS)

 

Abstract

 

This paper explores and analyses Hindu and Muslim practices of divorce at the woman’s initiative at the level both of customary jurisdictions and of official law-courts in India, in Pakistan and in the South Asian diasporas. It explores the multiple interpretative frames of socio-legal narratives to throw light on their implications vis-à-vis legal outcomes. Through a multidisciplinary inquiry combining legal pluralism, feminist methods and collaborative approaches, this paper highlights the necessity of understanding in a concerted construction of knowledge with social actors, the instances contradicting, even if not in an open conflict, the mainstream discourses on the sacramental and indissoluble Hindu marriage as well as on the men’s exclusive initiative of Muslim divorce. The central question of this paper is how divorce at the woman’s initiative is dealt with and what are the successful arguments in law courts? This paper describes the interplay between custom and positive law as ways through which social actors make sense of power and governance very often creatively developing arguments following the different fora of litigation in South Asia and in the diasporas. In so doing it draws on the changes of the public discourse about divorce at the woman’s initiative over the last two decades to conclude with considerations about the increased role played by religion in the legal sphere as well as the unexpected outcomes of advocacy and human rights instances.

 

Keywords: Legal anthropology, South Asia, divorce, law and gender, personal laws, Muslim law, Hindu law

 

Introduction

 

This paper focuses on divorce at the woman’s initiative among Hindu and Muslim communities in South Asia and in the diasporas on the basis of seventeen years of observation of these practices in South Asia and more recently in the South Asian diasporas. Since Hindu practices of divorce at the woman’s initiative have been until now revolving around non-state jurisdiction mainly, my fieldwork in India, that I carried out intensively, even though intermittently, between 1995 and 2006, was concentrated in the Shivpuri district, a rural area of Madhya Pradesh in Central India. This was expanded later on to collect and analyse unpublished and published cases decided by state jurisdictions at the national and transnational level.

Since the end of 2009 I have also carried out fieldwork in Pakistan where I have moved for professional reasons. This move provided the unexpected opportunity to follow and also film proceedings in state courts in Punjab (Multan, Sheikhupura, Kasur, Gujranwala), in Khyberpanktunkhwa (Peshawar and Haripur), in Sindh (Hyderabad), and in Quetta (Balochistan).[1] Concomitantly I am also analysing published and unpublished case law on divorce at the woman’s initiative at the national level. Occasionally, I am furthermore offered insights into the treatment of the above practices both in the Hindu and the Muslim contexts at the transnational level in the UK, and also in the USA, through the practice of expert witnessing either as first-hand data or as experiences shared by colleagues acting as experts in court.

During these seventeen years of longitudinal fieldwork in South Asia my point of observation has changed from focusing almost exclusively on the Hindu communities in India to have a privileged access to family disputes and legal proceedings in Pakistan, including very detailed glimpses on how situations of matrimonial disputes among South Asians are dealt with in the transnational context. I have noticed the discourses about Hindu practices of divorce at the woman’ initiative changing over time – but less so at the grassroots’ level: the biggest changes occurred at the level of the middle and élites class and maybe, as a consequence, considerable changes occurred in the ways these practices were perceived by socio-legal scholarship and by state and non-state activism, which is increasingly embedding in academia.

This paper not only focuses on the recurrent arguments elaborated within the proceedings and the legal practices of divorce at the woman’s initiative among Hindu and Muslim communities in India and in Pakistan, and in the diasporas; it also highlights the decision-making process of the parties and the conditions of divorce at the woman’s initiative acceptance at the legal level – both by state- and non-state jurisdiction; and it will at the same time point out the changes and implications of the ways these practices have been seen, portrayed, and mobilised. Although this paper is not the place to elaborate much on the increasing blurring of boundaries between academic research, advocacy, and activism, comments will also be formulated on the risks of the current development approaches purportedly acting for the empowerment of women in South Asia.

FULL PAPER  in print in Jørgen Choler Nielsen, Werner Menski, and Rubya Mehdi, DJØF: Copenhagen; and in Bulfoni, C. (ed.), Tradizioni religiose e trasformazioni dell’Asia contemporanea, Milano-Roma, Veneranda Biblioteca Ambrosiana-Bulzoni, Asiatica Ambrosiana, 4.


[1] At the time of writing this paper this project is still in progress but one of its first outcomes will be Lady-Judges of Pakistan, an observational documentary-film showing legal proceedings in the Pakistani courts presided over by women judges. The author is also drafting a list of recommendations regarding gender and the legal profession compiled with the collaboration of women judges. Lady-Judges of Pakistan is realised thanks to the support by Agence Nationale de la Recherche, Centre National de la Recherche Scientifique, Centre d’Études Himalayennes, and Lahore University of Management Sciences. For encouragement and logistic support special thanks go to the Judicial Academy and the Supreme Court of Pakistan.

 

Property rights, gender, and human rights discourses in South Asia

by Livia Holden and Sylvia Vatuk

ABSTRACT

This paper explores and analyses the management of property rights by Muslim women at the level both of customary jurisdictions and of official law-courts in India and in Pakistan in the context of ongoing pressures for developing a global legal framework of human rights. Through a multidisciplinary inquiry combining legal pluralism, feminist methods and collaborative approaches, this paper will investigate the dynamics of the reception, adoption, and implementation of gender equality vis-à-vis property rights in a variety of contexts. This paper will first of all highlight the interplay between customs, personal law, and secular law as ways through which social actors make sense of power, class, gender, and governability. On the basis of published case law and qualitative case study of unreported litigation, when available, this paper will also focus on the multiple interpretative frames of socio-legal narratives to throw light on their implication vis-à-vis legal outcome. The central question of this paper is what are the legal arguments that women develop regarding property rights and what do their legal treatment tell about Muslim law and Muslim identities in South Asia? As such this paper links from a wider perspective to the global movements for human rights in order to see the role of these claims among Muslim communities in South Asia. As a conclusion it will include a scrutiny of the exclusive role of the state for the management of law and dispute resolution.