Divorce at the Woman’s Initiative in India, in Pakistan and in the Diasporas
Livia Holden (LUMS)
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
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 This was expanded later on to collect and analyse unpublished and published cases decided by state jurisdictions at the national and transnational level.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). 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.
 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.