Field Notes – Sample n. 2 by Tommaso Sbriccoli

I arrived in India on the 17th of May 2012 and reached Madhya Pradesh on the 22nd of the same month. Initially, I took a room in a hotel in the city of Dewas, where I spent the first 15 days of my staying. I had in fact to access a fieldwork which was new to me, and so to proceed with caution in order to establish reliable contacts and find a place to stay in the village of Jamgod, selected for my research. I rent a house in the centre of the village, and had to clean it and fix it since it had been empty for years. I finally move to live in the village on the 12th of June 2012. The first period of fieldwork has been intensive, but as it always happens, more productive on the side of establishing relationships and coming to know the overall context of the research, rather than in finding and collecting massive amounts of data.

However, I have already carried out a preliminary survey on the Muslim community focus of my research, the Pinjaras, and on the wider context of the village they are inserted in.

The first general data on the village can be summed up as follows:

 

  1. The village, Jamgod, is 12 kilometres far from Dewas, in the Malwa region of Madhya Pradesh, and on the highway to Bhopal. Thus, many of its inhabitants have got jobs in the city to where they daily commute.
  2. The village of Jamgod has a multicaste population (about 26 different castes) of about 4000 people, with 1780 voters. It has an autonomous Panchayat.
  3. In the village two Muslim communities are present, the Faqirs (only two-three houses) and the Pinjaras, object of my research.
  4. Even though the village has a Hindu majority and Muslims are seen as a community marginal to (if not completely excluded from) village ritual life, they are though inserted in its political life and in good relationships with most of other castes[1]
  5. The village has still got an economy which is mainly agricultural, even if many of its inhabitants also either work in the many factories surrounding Dewas or have got government jobs in school and offices. A sort of entrepreneurship has been developing in the last years (mainly companies of truck transport services and hotels and restaurants on the Bhopal Highway) and interestingly a particular section of Jamgod Pinjaras has been leading in such businesses.

 

In relation to the specific focus of my research I have been working until now at three different levels. The first is the compiling of a census of Pinjaras in Jamgod. Data related to 2012 are being collected by me through a census conducted house by house, but no definitive data can yet be provided (till now I have collected genealogies and census data on 12 families). Only with regard to number of families, information gathered from Jamgod Panchayat can allow to draw a provisional estimate, that is, at the moment in Jamgod should be present between 100 and 120 families (houses)[2].

This set of data can prove useful in order to draw the general context within which to place more qualitative information, as demographic factors are often good indicators of socio-economic trends. Furthermore, knowing the exact genealogic history of families allows for better understanding possible disputes on property.

The second level of research concerns therefore the economy of Pinjara families. Data are being collected on amount of land owned, mobile property, shares in companies and other businesses. Furthermore, information are being gathered on amount of dahej (dowry), mahr (dower), and other gifts given to women at time of marriage, so to be able to compare them with the share on property male members of the family get. By now, this is what I have found:

 

  1. Dahej(dowry) is given at time of marriage by the bride’s parents to the groom’s parents. It usually consists of:
    1. Kitchen stuff (bartan)
    2. A bed (palang)
    3. A cupboard
    4. Clothes
    5. Golden rings, necklace and other jewellery items.
    6. Between 10000 and 25000 rupies (the last amount being at the moment the most frequently given one).
    7. Mahr should be given by the husband to the wife at the moment of marriage. Though, its handover is often delayed, and given only in case of divorce. It can amount to 11000, 21000, 31000, 41000 or 51000 rupies (the last amount being the one now considered as appropriate). It can also be given in the form of immovable property (land). In some cases, some husbands provide their wives with mehr independently from a divorce happening. This is the case of M., who owns 21 bigas of land and gave to his wife 10 bigas as mehr[3].
      In case of the death of a husband without mehr having been paid, his wife should “forgive it” to save her husband’s soul[4].
    8. Mamera is a practice typical of central India,[5] and consists of gifts (mainly clothes and some money, but some time the amount of money donated can even reach the 5000 rupies) made to the bride by her mother relatives and her father’s real and classificatory patrilateral aunts. The fact that this kind of gift is typical of Hindu communities points to an important aspect of Pinjara practises which I will deal with soon.

 

The amount of mahr (being always n+1) and the practice of mamera bring us to the third level of analysis, more linked to qualitative research on the ritual and legal practices of Pinjaras and the way they are developed in complex discursive strategies.

After the first period of research, in fact, what clearly appears is that Pinjaras are placed in-between two different ritual and legal worlds. On one side, many of their ritual practices are linked to the ones of Hindu communities among which they live. The amount of mehr clearly points to Indian numerology, where auspicious amounts of money to be given (as offerings to god, gifts to relatives or donation to priests) are considered those ending with 1 (11, 21, 31, but also 21000, 51000, and so on). Similarly, mamera is clearly a practice linked to Hindu ritual system. Most of Pinjaras, knowing the way they act is not perfectly matching orthodox Islamic law, justify themselves by stating that they were Hindus at some point in the past, later converted to Islam. Some of them claim a Rajput origin (Rajputs being at the top of Hindu hierarchy ladder, just below Brahmans), partaking thus in the frequent attempts made by Hindu low and middle status castes to raise their status by claiming higher origins. Furthermore, Pinjaras are divided according to their gotra, which is in North India a patrilinear exogamous group whose members trace their origin to a, usually unknown, common ancestor. Even more interesting is the fact that some of the Pinjaras I interviewed stated that, as Hindus do, they do not marry with people of their own gotra and of their mother’s gotra. This makes thus impossible for a marriage between patrilateral parallel cousins to take place. Each gotra has got also a Kul Devi (a goddess protecting its members and to whom regular worshipping has to be made) and a Kul Bheru (the God of the clan, in favour of whom as well rituals have to be regularly performed). Interestingly, a maulana whom I interviewed and younger Pinjaras denied the existence of such Kul Devis and Kul Bherus for Pinjaras, who only pray Bhagwan (God), and told me as well that, being Muslim, Pinjaras can arrange marriages also within their gotra or their mother’s one. This shows how in the last few decades there has been an increasing commitment on the side of Pinjaras toward a more strict and orthodox practice of Islamic principles, detaching themselves from practices, which they shared with the Hindu communities among which they live. Less “pious” Pinjaras seem to be still practising devotion and worshipping of their clan gods and goddesses, and avoiding intra-gotra marriages.[6]

This trend of development in religious attitude (and so the shift of norms related to marriage and religious practices) seems to be confirmed by an analysis of the attendance to the local Mosque. This Mosque, recently expanded and renovated together with the Dargah of a local Pir sited in front of it, hosts weekly at least 150 men and children for the Friday prayers. Most of participants are young, and very few old men (age > 50) join with the others for the occasion (there were no more than 4 of them in the two Fridays I spent at the Mosque).

We can thus see emerging a first important fracture, whose analysis might prove really fruitful in understanding whether this change is being triggering differential ways of dealing with legal matters and the production of different discourses around them.

For the moment, a concept which, in the interviews carried out, is demonstrating itself central in discussions about inheritance and women shares in them, is that of iccha, which could be loosely translated as “desire”, “want”. Iccha can be considered as an ideological operator at the border between law and actual practice.

While it is openly recognised that norms do exist (both as provisions of Islamic law and of State one) which safeguard women rights in inheritance matters, whether, and the extent to which, these are observed is left principally to the iccha of husbands, fathers and brothers. For instance, the Maulana interviewed stated the following:

 

Maulana: We know that daughters have their rights in inheritance, Islamic law provides them with a share. But we believe that is good that sons inherit.

Tommaso: But do you give something to them when the shares are made?

M.: Yes, it depends on the desire (iccha), we can give something to them. So then they write a letter where they state that they renounce to family property. But not everybody does it, it depends on the iccha, if you have iccha you give something, otherwise you don’t.

 

In this case, iccha, personal desire and inclination, takes the place of the recognition of a right or, even worse, a right whose existence is formally recognised becomes a matter of personal male choice, and even when iccha is present, it becomes no more than a “sweetener” in order to make easier and smoother women’s renunciation to their shares in family property.

In another case, a mahr (and a quite generous one) had been completely paid by the husband before his death and with no divorce case pending. But even in this occasion, iccha was a central category the husband recurred to in order to explain his choice.

 

Tommaso: Did you pay the mahr to your wife?

Majit: Yes, I did! I put 10 bigas of land in her name. So I paid my mahr, and a good one.

T.: so is it normal to pay the mahr?

M.: Everybody pays the mahr, at the moment of marriage.

 

T.: really? So for Pinjaras it is normal to pay the mahr at the very moment of marriage?

M.: it depends. If one desire to do it (“agar iccha he”) he can do it, otherwise you pay it when a divorce occurs. But I wanted (“mereko iccha tha”) to pay it, and I did it. Now I am ok.

T.: and when your wife will die, what will she do with her land?

M.: she will divide it into two parts and give them to our two sons.

T.: and your daughter, will she get something?

M.: no, we will divide everything into two parts. I already gave a lot to my daughter. I paid her dahej (dowry) with two cows, one buffalo, jewellery and clothes, and when my nata [his daughter’s son] got married I gave to him a truck as a gift!

T: so for what remains you will do two parts and exclude your daughter?

M: No, we will do three parts, one also for her. But since she has already received a lot she will probably renounce to her part.

 

This excerpt of one of the interviews is highly interesting for many reasons. First, it illustrates once more the importance of the idea of iccha in order to bridge the gap between knowledge of the norms and actual practices on the side of people. This gap is made evident also in the way norms are put into discourse. Both for mahr and for inheritance shares, two discordant versions are given. For mahr, at the beginning the rule is stated, and presented as something respected by all. In a second moment, the concept of iccha enters as the operator of differentiation between the rule and what actually happens. So you give mahr to your wife at the moment of marriage if you desire to do that, otherwise you pay it at the moment of divorce (if you do, because this is another issue to address later). For inheritance it happens the opposite. At the beginning what actually happens is stated: property is divided in shares according to the number of sons. The usual justification that daughters got dowry and other gifts is put forward. After further inquiry, the process through which this is made possible becomes clear: three parts are made and daughter is made to renounce to hers (maybe receiving by her brothers some money for that, if there is iccha on their side).

Another important issue raised is that of the actual economic import of dowry and other gifts in relation to family property. Two cows, one buffalo, jewellery and some clothes are but a small part of the overall property of this family, which owns 21 bigas of land with three wells for irrigation, an orchand, and fifteen trucks with which they transport goods to Mumbay, Poona and Bangalore. If seen under this light the gift by M. of a truck to his daughter’s son seems but a small part of the overall family asset. A point to be stressed here is that the gift of the truck is a mamera, that is, a gift made to a daughter’s son or daughter at the moment of his/her marriage. I doubt M. would have gifted a truck to his daughter’s daughter for her marriage. In this case, a present to the agnatic group within which the woman has been married is presented as a gift to her: the woman becomes thus only the intermediary of a passage of property between two different agnatic groups.

 

Mahr, though, is sometimes not even paid after divorce, and this is the reason for disputes between husband and wife and/or between their families. According to what some informants have told me, usually these disputes are first addressed by informal meetings, involving the two conflicting parties and some old and wise men of the community. We could call this forums “jati panchayat” (and informants seem to adhere to such definition). At the moment it does not seem that this panchayat is formally structured in relation to its composition and geographical jurisdiction, as it happens elsewhere. Though, this is a point about which too few information have been collected until now, and no instance of such meetings has yet been recorded by me. This forum is also activated in cases of disputes over inheritance. I have been told that it is only after this kind of forum has failed in reaching a solution that people recur to State Courts. At the moment, one of such cases is going on at Dewas Court in relation to an inheritance case. A woman from Jamgod (but married and living in another village) has filed a case against her family in order to get her share of family property. I have not yet been able to collect more precise information about this case.

 

In the end, I would like to list three other facts I deem important for the research.

 

  1. Pinjaras are Sunni Muslims, but for the moment I could not understand which School of Law they refer to (if any specific).
  2. There is a Maulana in Jamgod who is the one who registers nikahs taking place in the village. He has got the forms for registration as a Kaji from Dewas has provided him with them. After filling in the forms he brings them to Dewas, where they are registered in the Waqf Office. Sometime the Kaji from Dewas comes personally to Jamgod to register some marriages (maybe those of the people more important or close to him). In Dewas there are two Kajis and two Waqf, linked to the division of Dewas in two different reigns, one ruled by a Maharaja Senior, the other one by a Maharaja Junior. It could be interesting to see whether these two Waqf differ in their way of dealing with marriages and divorce or not.
  3. Until now I have been able to talk only with elder women and mostly in the presence of their husbands or other male relatives. It seems that old women are quite ready to support male’s view on such issues as mahr and inheritance. The access to younger women’s perspectives, often the ones who more harshly face problems related to divorce and lack of recognition of their rights, is at the moment difficult to obtain. I hope I will manage in the future to have interviews with some of them, as it would be really important to get their ideas over such matters.

 


[1] This is an important aspect to take into account, as in the last years Madhya Pradesh, and in particular Malwa region, have witnessed a sort of silent (and silenced) campaign against Muslims carried on by state police and intelligence. The overall attitude toward Muslims is thus rapidly worsening, even at the local level. A presentation of some of these cases can be found here:  http://twocircles.net/Special%20Reports/mp_terror_stories.html

[2] “Houses” should indeed not been confused with “families”, as local terms of reference clearly indicate. “Ghar” (house) refers in fact to people living in the same building and managing autonomously economic income. “Parivaar” or “Kutumb” refers instead to all those kin tracing relations through males of two or more generation (what could be define an “agnatic group”). The family share thus common responsibilities and liability in ritual (i.e. marriage) and legal matters.

[3] Personal interview with M. Pinjara, 19/06/2012. A biga is about the forth part of an hectare in M.P.

[4] Personal interview with H. Pinjara, 27/06/2012. For similar statement see also Basu Srimati, 1995, She Comes to Take her Rights. Indian Women, Property, and Propriety, State University of New York Press.

[5] I found mamera in my previous research in Rajasthan, performed by many Hindu communities.

[6] The further collection of data and genealogies will show whether, notwithstanding what they say, more pious and younger Pinjaras try to avoid intra-gotra marriages or do marry within their, or their mother’s, gotra.

Mahr

Mahr (dower) is the amount (sometimes also property rights) that the husband own to the wife. Mahr can be prompt or deferred if it is deferred without any specification of time it is assumed to be at the time of death or divorce.

 

Amina Bibi vs Mohamed Ibrahim AIR 1929 Oudh 579

Haliman vs Mohamed Manir AIR 1971 Pat. 385

Mohamed Shahabuddin vs Ummatur Rasul AIR 1960 Pat 511

 

The mahr can be increased during the marriage at the husband’s initiative and its amount does not depend on the financial capabilities of the husband

 

Hamira Bibi vs Zubaida (1961) IA 249

Essential to Muslim law

Kapore Chand vs Kidar Nissa Begum and others AIR 1953 SC 413

Unpaid mahr is a debt payment equivalent to the claims of other creditors but has priority over the co-heirs’ claims to have the property distributed among themselves.

Sabir Hussain vs Farsand AIR 1938 PC 80

Among Shias, the father in-law is liable to pay the mahr in the case of failure of payment by the husband

Maina Bibi vs Vakil Ahmed (1924) 52 IA 145

Possession of the husband’s property can continue after husband’s death or divorce until the mahr is recovered.

Jurisdiction of property disputes

According to K. A. Abdul Jaleel v T. A. Shahida AIR 2003 SC 2525, property related disputes between divorcing spouses can be decided by Family Courts.

 

Related Statutes:

Muslim Personal Law (Shariat) Application Act, 1937

DISSOLUTION OF THE MUSLIM MARRIAGE ACT, 1939

Muslim Women (Protection of Rights on Divorce) Act, 1986

Maintenance for nursing/taking care of the child

According to Noor Saba Khatoon vs Mohammed Qasim AIR 1997 SC 3280 and on the basis of section 125 of Criminal Procedure Code, 1974 and section 3(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986 the divorced Muslim mother is entitled to receive maintenance for nursing or taking care of the infant/s up to a period of 2 years. This right is independent from the rights of the children to receive maintenance until they are majors.

See also:

Smt. Sushila Bai vs Bisauharam on 1 September, 2009

Lubna Mehraj And Ors. vs Mehraj-Ud-Din Kanth on 8 October, 2003

Maintenance to the wife during the iddat

According to section 3 (1) Muslim Women (Protection of Rights on Divorce) Act 1986 and uncodified Muslim Personal Law the divorced wife is entitled to life-long maintenance to be paid by the husband during the iddat period.

 

Shabana Bano v. Imran Khan, AIR 2010 SC 305

Danial Latifi v Union of India, 2001 (7) SCC 740

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945

Maintenance by the Wakf Board after the Iddat period

According to sec. 4 Muslim (Protection of Rights on Divorce) Act, 1986 the magistrate can order any heir of the woman to maintain her after the iddat period. In absence of relatives the Wakf Board may be ordered to pay her maintenance.

 

Tamil Nadu Wakf Board and another vs Syed Fatima Nachi, AIR 1996 SC 2423

Related Statutes:

Mussalman Wakf Validating Act, 1913

Mussalman Wakf Validating Act, 1930

Central Waqf Act, 1954

U.P Wakf Act, 1960

Waqf Amendment Act 1984

Waqf Act, 1985

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.

 

Registration of Muslim Marriages – India

The general principle adopted by the Indian courts so far is the direct and indirect evidence for the presumption of marriage on the basis of section 114 Indian Evidence Act, 1872.

Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh have provided for compulsory registration of Muslim marriages. Assam, Bihar, West Bengal, Orissa and Meghalaya have provided for voluntary registration of Muslim marriages. In Uttar Pradesh there is a policy providing for compulsory registration of marriages by the Panchayats.

Jammu and Kashmir has adopted a law that provides for registration within 30 days from the nikahnama signature. This law does not seem to be enforced though.

Under the Special Marriage Act, 1954, which applies to Indian citizens irrespective of religion, marriages can be registered by the Marriage Officer but registration is not compulsory.

Precedents:

Mohammed Amin vs Vakil Ahmed AIR 1952 SC 358, Abdul Rasak vs Aga Mahomed Jaffer 31 Ind App. 56 (P.C.), Ghasanfar Ali Khan vs Kaniz Fatima 87 Ind. App. 105 (P.C.), Gokal Chand vs Parveen Kumari AIR 1952 SC 231, Badri Prasad vs Deputy Director of Consolidation AIR 1978 SC 1557).

But Smt. Seema vs Ashwani Kumar, (2006) 2 SCC 578 directed for compulsory marriage registration.

See also Smt. Seema vs Ashwani Kumaron 25 October, 2007

Related Statutes:

Assam Moslem Marriages and Divorce Registration Act, 1935

Orissa Muhammadan Marriages and Divorce Registration Act, 1949

Bengal Muhammadan Marriages and Divorce Registration Act, 1876

Oral Gifts – India

Oral gifts among Muslims are valid if there is a declaration by the donor, acceptance by the donee and possession of the gift. Even though the immovable property right is not registered it is valid according to uncodified Muslim law.

 

Rahia and  Rahia Bibi vs Nasar Ahmad on 23 April, 2010

Shaik Khadaru Masthan vs Smt.Sayyed Fathimun Bee, 13 September, 2007

Gulam Hussain Kutubuddin Maner vs Abdulrashid Abdulrajak Maner J.T. 2000 (10) SC 425: 2000 (8) SCC 587

Sri Ran Niwas Todi & Another vs Bibi Jabrunnissa And Others 6 August 1996 (1996) 6 SCC 444

llah Shamsuddin Naday vs Jaitunbi Makbul Naday (1994) 5 SCC 476

Valie Peedikkandi Katheessa Umma vs Pathakkalan Narayanath Kumhamu, AIR 1964 SC 275