Competing Model–Nikahnamas: Muslim Women’s Spaces within the Legal Landscape in Lucknow1

Abstract

This paper delineates the growing women’s spaces within the legally pluralistic landscape of postcolonial India. Based on empirical data gathered in the city of Lucknow, Northern India, it explores the ways in which (i) Muslim women’s activists seek to carve out space for the creation of gender-just laws within a religious framework, and (ii) how within these women’s legal spaces, orthodox demarcations between secular and religious practice and legal authority become blurred. At the centre of my analysis are two women-friendly versions of the nikahnama (marriage contract), which stipulate conjugal rights and duties as well as conditions of divorce and financial support. This paper will contextualise and analyse these counter-hegemonic voices that address matrimonial rights - brought forth by two ideologically different Muslim women’s organisations in Lucknow. In so doing, this paper challenges simplified modernist accounts that depict secular conceptions of state law as incompatible with non-state religious law and norms. Conversely, this paper will demonstrate that current attempts by Muslim women’s rights activists to formulate gender-justice within the domestic sphere in fact, contribute to an emerging legal landscape of interlegality (Santos 1987/2002) - a field characterised by legal entanglements rather than parallel systems of law and morals.

“Freedom is a treasure that only those who lose it can know”: a spatiotemporal exploration of 22 Iraqi women’s interlegalities

“…Even the smallest acts in any legal space are, to an extent, controlled, sometimes in an almost invisible way (Philippopoulos-Mihalopoulos 2015), by multiple, often contradicting legal-moralist orders learned over time. Legal spaces and normative orders form and transform interlegalities characterised by legal and social boundaries that are porous and in flux, where legal authorities are constantly contested (Tschalaer 2012). Interlegality defies legal centralistic approaches that assume the state's monopoly on the production of law (Hoekema 2004).…”

“…Interlegality speaks against classical legal pluralism by acknowledging that different legal and normative orders are co-constitutive rather than separate systems of ethics and morals (Van Ingen & Peeters 2014). Unlike these rather static approaches, interlegality stresses the porosity and fluidity of legal (and social) boundaries that result in the entanglement of legal codes and morals among different legal systems (Tschalaer 2012). The idea of interlegality promotes a view of laws as fragmented and of normative orders as overlapping and competing rather than distinct (Tonnessen 2011).…”

“…It is characteristic of Islam (and other monotheistic religions) to celebrate sexuality only within marriage while considering sexual relations outside marriage as unlawful and punishable (Husni & Newman 2007;Piela 2011). This underlines the importance of women's moral behaviour and sexual conduct (Tschalaer 2012) but also hardens the situation for those women who do not consider marriage suitable for them. Zahra (in her thirties) from Kirkuk in the Kurdistan region of Iraq told us, "I married against my will and had to choose between the wishes of my parents and the community or their anger and rejection of me".…”

“…Rather, the scales, from embodied to global, intertwine in different ways. The concept of interlegality, used by scholars such as Proux (2005), Tønnessen (2011), andVan Ingen andPeeters (2014) to refer to an emerging legal landscape -a field characterised by legal and normative entanglements rather than parallel systems of laws and morals (Tschalaer 2012) -provided a useful tool for illustrating the legal space(s) within which the women who participated in this research lived.…”

Transcending Binaries through Self-empowerment and Personal Development

“…For example, in 2008, it released a sharai-nikahnama (Islamic marriage contract), which entitles Muslim women to immediate payment of mahr (dower) after marriage, advises men against polygyny, stresses reconciliation, discourages arbitrary divorce, and stipulates the wife's right to initiate a divorce (khul). The purpose of sharai-nikahnama was not, however, to challenge the patriarchal construction of marriage or to refute the existing nikahnamas issued by men-dominated religious bodies; it was rather an attempt to gain acceptance within a socio-legal space reserved exclusively for men (Tschalaer 2012).…”