Munira Merchant, 1993, “Divorce Among Indian Muslims. Survey Report from Bombay and Pune”, Manushi, 77 (July-August): 9-12.
This really short paper is interesting because it is based on a survey on a wide sample (100 couples) of Muslim divorced women and highlights important aspects of disputes over property and maintenance both within community forums (kazi, marriage councils) and at the state judicial level. The aim of the survey was to study the impact of the provisions in the law (Muslim Personal Law, Sharia Act of 1937, Dissolution of the Muslim Marriage Act of 1939, Muslim Women’s [Protection of Rights on Divorce] Act of 1986) in matters such as amount of mehr settled, the actual payment of mehr or reasons for non payment, return of dowry, divorce procedures and issues of maintenance.
Vast majority of women who initiated the divorce applied to a kazi or a marriage council, while only three sought divorce through the Dissolution of Marriage Act, as their husbands were missing for more than four years (this is one of the provisions for which women can be granted divorce under the Act).
Among women who received back their dowries after divorce, a significant number belonged to the Shia sect, so that the marriage councils regulated the divorce, thus ensuring that the women took back what belonged to them.
Sixty women did not received mehr (which ranged from as little as Rd 100 to as much as Rs 35.000). It is interesting to report here two cases, where the mehr amount was fairly large. “The husband would not divorce the wife because he would have to pay the mehr. After a long sepration, the wives initiated the divorce proceedings, thus losing their right to the mehr. Thus, mehr, especially a large sum, which is supposed to be a protection for the wife and a deterrent to a hasty divorce, does not always work in favour of the wife” (p. 10).
Seventy-seven percent of the women did not receive any maintenance after divorce.
Author conclusions on survey data is that “it is quite evident from the findings of this study that a husband has greater choice and control in the divorce strategy and its outcome. The results indicate that the women are not getting their rightful dues in matters of maintenance, dowry, mehr and child support even within the tenets of the existing personal law” (p. 11).
In the final section, where author provides some possible ways to change situation, it is interesting to note that as in Banu paper (reviewed at page 15), the point is made that both Muslim men and women are quite ignorant about legal provisions and Koranic injunctions. In author’s opinion, an improvement in that direction could make men more aware of women’s right and their own obligations. Finally, in relation to Muslim Women’s [Protection of Rights on Divorce] Act, it is pointed out that even if it has made possible for the wife to be paid her mehr, dowry, maintenance for the iddat period and child support, it does not specify what constitute “reasonable and fair provision2. Thus, in author’s words, “there is scope for justice within the constraints of law. With the help of forward thinking lawyers and judges, women could get a fair share as demonstrated by two decisions of Justice Rekha Dixit”. This point is important because, as signalled also by Basu in her book (see review page 8-9), judges have the opportunity to interpret laws in such a ways to even modify legislator’s purposes. Attention should thus be given not just to norms as closed objects, but to discursive practises, ideological frameworks and institutional contexts within which they become salient in building legal, social and political outcomes.