South Asia

 

   

Links to legal datasheets for countries in this region.

Bangladesh I India I Maldives I Pakistan I SriLanka

 

 The Region and Its History

    Islam is the newest of South Asia's major religions and a highly visible presence in all the countries of the region.  It is the faith of nearly all the people of Pakistan and Bangladesh, as well as the national religion of the tiny island of Maldives. Muslims also make up important minorities in India, Nepal and Sri Lanka.

    South Asia has a complicated history of interaction between Hindus and Muslims, as well as a long history of British rule. When the Turkish ruler Ghazni defeated the Hindu Rajputs in 1192 CE, he inaugurated a 500 year period of Muslim power in Central Asia. Within only eight years, Muslim conquerors had founded the Delhi Sultanate, annexed Bihar in the east and captured Gwalior to the south.  Within thirty years, Bengal had been added to the Turkish empire.  When the Mongols crushed the Arab caliphate in the middle of the 13th century, the Delhi sultans were left on their own to exercise Islamic authority.  Muslim scholars, scribes, Sufis, and intellectuals flocked to India in search of patronage.  The Delhi sultanate developed a its own cultural and political identity, built upon Persian and Indic languages, literature and arts, brought together in a new Indian-Islamic civilization.  Babur, the founder of the Mughal empire, and Akbar, his grandson, continued and expanded the Delhi sultanate from 1556 to 1605.  Akbar added Kabul, Kashmir, Sind and Baluchistan to his dominions. At the end of the 17th century, the Mughals took possession of Bijapur, Golconda, and other formerly independent provinces in the south.   

     During the golden age of Muslim rule, the aristocracy or the ashraf was composed mainly of families who traced their descent from the migrants from Afghanistan, Persian and Inner Asia.  Meanwhile, the caste system, Brahamic Hinduism and Buddhism defined the Indian society over which they ruled; no more than a quarter of the populace of the subcontinent converted to Islam.  Most of the converts clustered in the Indus valley, Bengal and the northwest part of the subcontinent.  They usually were drawn from the lower castes, attracted to Islam's egalitarian message.  Still, these non-ashraf Muslim communities, or atrap, remained organized in caste-like social groups similar to those of their Hindu neighbors.  The Sufis played an important role in these conversions, and the Islam followed by the masses tended to be far more devotional and pietistic than the legalistic interpretation the ashraf followed.

   The largest Muslim conversions occurred in the area of Bengal, now divided between India, Pakistan and Bangladesh.  Bengal still contains the largest concentration of Muslims in South Asia (Ahmed 1988).  Sufi missionaries and saints brought Islam to Bengal in the 13th and 14th centuries.   In Bengal, Islam and Hinduism have often merged in practice (Prindle 1988).  Roy contributes this blending to a distinction between social and religious conversion; he claims that the experience of Muslims in Bengal “scarcely involved an immediate spiritual experience and transformation and meant more a change of fellowship” (Roy 1996:18).

    In the 18th century, the Mughal empire fell into a long period of decline.  India dissolved into many smaller states.  The British, who had been trading in India since the 1600 CE, took the opportunity to extend their influence.  In a long series of wars with their French rivals, the East India Company established themselves as the effective rulers of Bengal. The India Act of 1784 required that company officials be responsible to Parliament.  In Bengal, the British created a new system of taxation and judicial administration. British power was soon extended to other parts of India, and by 1818, most of the subcontinent's rulers acknowledged Britain as the paramount power.

Initially, some Muslims viewed the British as a potential ally against the Hindus.  However, this potential diminished as British colonialism expanded and Muslim separatism grew (Roy 1996).  Muslim scholars and clergy began to blame British colonialism for the perceived straying from sharia.  This perception lead to revivalist movements in the late 19th and 20th centuries in South Asia, particularly in Bengal (Ewing 1988).  This revivalist movement often equated ‘Bengali’ identity with ‘Hindu’; Muslim Bengalis were known simply as ‘Musalman’ (Roy 1996).    In Punjab, today part of Pakistan, this blending also involved patterns and traditions of tribalism (Gilmartin 1988). 

  When India gained its independence in 1947, the Muslim minority demanded a state of its own.  The state of Pakistan came into being on August 14, one day before India became an independent state. Pakistan itself split into two after a civil war, with east Pakistan becoming the independent state of Bangladesh in 1971.  In the years since independence, Pakistan has struggled over the role of Islam in public life. Bangladesh, on the other hand, has sought to ground itself in a national rather than an Islamic identity. Meanwhile, the about 100 million Muslims who still live in India tend to see themselves as an embattled minority, fearing intercommunal violence and the interference of a non-Muslim state.

Legal Practices and Institutions

  The vast majority of Muslims in South Asia are Sunni, holding to the Hanafi school of law, although followers of the Shafei, Maliki, and Hanbali groups may also be found, as well as small pockets of Shi'a believers. Yet another small group of Muslims in the region are the Ismailis, who regard their leader, the Aga Khan, as their spiritual leader (Roy 1996).

   Prior to 1937, the enforcement of Islamic personal law in India varied by region and community.  Pressure from conservative Muslim groups led the British raj to implement a compulsory Islamic system with the 1937 passage of Muslim Personal Law Shariat Application Act.  Under this act, the state accepted Islamic law for Muslims in all personal and family matters (Hassan 1999). 

  In British-ruled Punjab, personal status laws had been linked to customary tribal law, often excluding and ignoring Islamic personal law.  The push to establish Islamic personal law helped foster both Islamic revivalism and Punjabi nationalism, which eventually lead to the creation of the Muslim state of Pakistan (Gilmartin 1988).  Muslim identity in the 20th century in Punjab was closely tied to anticolonial opposition and nationalism, as well as in opposition to Hindu identity.

    With the creation of an independent Pakistan in 1948, sharia was adopted as the official state legal system of personal and family law (Gilmartin 1988). In 1949, the first Prime Minister of Pakistan declared, “Pakistan was founded because the Muslims of the sub-continent wanted to build up their lives in accordance with the teachings and traditions of Islam” (Roy 1996:161).  However, in 1964, President ‘Ayub Khan banned the Islamist party Jama’at-i Islami and declared them a “danger to the public peace” (Roy 1996:151).  In 1961, Pakistan passed the Muslim Family Laws Ordinance, outlining codes for marriage, divorce and family law (Roy 1996).  The ordinance was based on the recommendation of a commission that polygamy be discouraged, divorce restrictions be tightened, and women’s right to divorce be acknowledged.  Further the ordinance stipulated that all marriages and divorces should be registered, adequate maintenance be enforced and the marriage age raised to 16 for girls (Roy 1996).  In 1963, the Fundamental Rights Bill, the first amendment to the constitution, specified that the Muslim Family Laws Ordinance was not open to judicial review (Roy 1996).

     Since the 1960s, Pakistanis have continued to wrangle over what sort of government and institutions will allow its people to cultivate a Muslim style of life.  The country has had several constitutions and a number of civilian and military regimes. Islamist groups such as the Jama'at-i-Islami have gained increasing influence. In 1979, President Zia ul-Haq passed the so-called "Hudood Ordinances" as part of a larger program to make Pakistan's legal code and system of government more Islamic.  The ordinances made zina, or sex outside of marriage, a crime. Under the ordinances, women who bring charges of rape often find themselves charged with adultery.  The ordinances also decreed that two women's testimony was equal to that of one man and that in compensation cases, the value of a woman's life was to be half that of a man's. In 1991, President Nawaz Sharif passed a law giving religious courts the right to overrule existing laws. 

   Although Bangladesh has the second largest Muslim population in the world, it has not seen as much public controversy as Pakistan over the role of Islam in public life.  Bangladesh's constitution is avowedly secular and its civil code is based on laws inherited from the British. The government of Bangladesh has implemented specific legal protections for women, including the 1980 Antidowry Prohibition Act and the 1983 Cruelty to Women Law (US Government 1996). Bangladesh has also passed laws protecting women from arbitrary divorce and from husbands taking additional wives without the consent of the first wife.  But these protections only apply to registered marriages and, in rural areas where most Bangladeshis live, few marriages are registered.

The traditional arbitration courts which are the main judicial bodies in Bangladeshi villages usually base their decisions on local custom rather than statutory law.  Women are almost always represented before such courts by their male kin.  (Chowdury  1993).  Some local communities have started turning to Islamist mullahs to rule on their disputes according to sharia.  In such areas, the populace has more respect for the mullahs than for the state police or judiciary ("Women Feel Sting of Sharia Bangladeshi 'Courts' Targeting Feminists  1995.)

 Indian law draws on a number of sources.   The new constitution of the independent India gave equal rights to women under Indian civic law.  At the same time, Muslims and Hindus were guaranteed the right to adhere to personal law in marriage, divorce and other family matters. Since independence, the Indian state has aimed at abolishing the various Hindu personal laws in favor of a uniform civil code.  For xample, the Special Marriage Act of 1954 provided the at any couple might marry, irrespective of community, in a civil ceremony and d a bill in Parliament to reverse the court's decision. Subsequent efforts to institute a uniform legal code have faltered.

   Muslim women in rural India seldom bring cases to court.  In Utter Pradesh, for instance, it would be perceived as a shame to the community if women were obliged to come and settle their disputes in a public space. If a woman has a complaint, the chief of the village or one of his colleagues on the village council will endeavor to persuade her to obtain some sort of settlement outside the village council (Bhatty 198; Sinha 1989).

    The kingdom of Nepal is an explicitly Hindu state, though about five percent of its citizens are Muslim.  Hinduism is the state religion, and all Nepalese are subject to Hindu law founded on dharma-shastra (Gaborieau 1995).  The Nepalese state does not restrict the practice of other religions, however, and Muslims are free to follow any religious practice that does not directly violate Hindu law, such as eating beef. Nepalese law does make some exceptions to Hindu law for Muslims, particularly in the area of marriage.  For example, Muslims are allowed to marry their cousins, although Hindus do not generally accept such marriages.

Seclusion of Women / Purdah

  In South Asia, the practice of secluding and veiling women is known as purdah.  Hindus as well as Muslims have traditions of purdah  Particularly in India, seclusion is intricately linked to the caste system,  and is routinely practiced regardless of religion (Papanek 1982).  For middle and upper class families, seclusion usually includes separate women’s quarters called the zenana, with separate entrances and extensive window coverings.

   But purdah is conceived and implemented to serve different purposes among Muslims and Hindus.  Muslim women are secluded from men whom they might potentially marry from the time of puberty, if not earlier.  In contrast, Hindu women are secluded from the senior male and female relatives of their husband’s family.  Hindu purdah is thus is only a post-marital practice (Sinha 1991). 

   Despite its prevalence, the practices of purdah differ widely among various classes, ethnic groups and historical periods.  For example, during the process of partition in 1947, many Muslim women stopped veiling so they could not be recognized as a Muslim, which was cause for harassment and violence in some areas (Papanek 1982).  The traditions of Muslims and Hindus with regard to veiling have also blurred.  In some Muslim communities, women have adopted the Hindu codes of veiling in front of in-laws, a practice not common among Muslims in other parts of the world (Vatuk 1982).

   Upper-class women participate in political life more vigorously in South Asia than in many other parts of the world.  In Sri Lanka, studies show women have voted in equal   proportion to men since gaining the vote in 1931.  Since Sri Lanka made history in 1960 by becoming the first state in the world to elect a female head of state, women also have been elected chief of state in India, Bangladesh, and Pakistan.  India has attempted to increase women’s participation in public politics.  The 1988 Draft National Perspective Plan for Women proposed reserving 30% of all seats in local government for women and temporary quotas at the state level (Bardhan 1991). In Bangladesh, the government instituted a policy in 1982 called the New Industrial Policy (NIP).  This policy established export enclaves, which greatly increased the participation of women in the public labor force, a policy that directly countered conservative Islamic seclusion codes (Feldman 1993).

   Nevertheless, purdah is strictly enforced in the rural areas where the overwhelming majority of South Asian women live.  In India, Pakistan and Bangladesh, purdah makes it difficult for rural women to engage in public, political or economic processes which involve unrelated men. The public nature of institutions such as courts mean few women may take advantage of them.

Family in the Region

   Most South Asian families are patrilineal.  (Several groups from the Maldives are an exception.  They trace their descent through the mother and divide property among the mother's children. (Dube 1997).)  Women leave their parental homes when they marry to take up residence in the joint or extended family of their husband's kin.  Typically younger people are expected to defer to their older relatives. Young brides, in particular, come under the authority of their husband's mother.

   The division in South Asian Muslim society between the ashraf who claim Arab and Persian origins, and the atrap, who descend from Indian converts, is accentuated by the differing roles women play in their families.  The ashraf ideal is for women to confine themselves exclusively to the work of being a wife and mother.   As Joseph Minattur argues, “A girl, right from birth, is molded for marriage and motherhood” (Minattur 1980:201).  Atrap women, on the other, are expected to contribute to the income of the family and therefore cannot conform to the strict purdah of ashraf women.  Further, although atrap women are expected to be virtuous, the requirements are not as strict as those for ashraf women, not are infractions punished as severely (Minattur 1980).

    South Asians often discriminate between sons and daughters at feeding time, with  male children receiving more food than females.  Female infanticide is common, even among Muslims, despite the explicit Quranic injunction against it.

Marriage

   Muslim, Hindu or Buddhist, most South Asian marriages are arranged. South Asian Muslims prefer cross-cousin marriage, producing two very different in the region.  Among Hindus, cross-cousin marriage is prohibited; instead Hindus prefer exogamous marriages (Papanek 1982).  Muslim and Hindu marriage patterns also differ in with regards to rules regarding proximity of marriage partners.  Generally speaking, Muslims marry someone within their own village, while Hindus marry outside their natal villages. In Pakistan, one study found that nine out of ten marriages are arranged and six out of ten are arranged with close relatives, especially cousins ("Arranged Marriages in Pakistan" 1995:66). But this pattern is not consistent along religious lines. For example, Indian Muslims in Bijnor oppose within-village marriages just as Hindus do (Jeffery and Jeffery 1993).  

   In urban areas, a woman’s employment status and potential income has become a negotiating factor in marriage contracts with the increased participation of women in the labor force.  Women’s incomes are considered when arranging marriage partners and dowries.  Further, women’s increased presence in public employment has led to a decrease in arranged marriages and an accompanying increase in marriages where spouses are self-selected (Feldman 1993). 

   Hindus and Muslims alike prize virginity at the time of a girl's first marriage. Historically South Asian girls were married as early as possible. India, Pakistan and Bangladesh all have laws specifying the age at which girls may be married, but families often ignore the laws. In 1929, the Child Marriage Restraint Act was passed in India, making it a criminal offense to marry a girl under age 15.  This law was modified in 1978, and raised the marriage age to 18 years for girls and 21 years for boys.  Under this act, parents of the underage spouses and the marriage officials performing the ceremonies are also subject to criminal prosecution (Minattur 1980).  In Pakistan and Bangladesh, families sometimes kills girls who violate the purdah code or try to escape arranged marriages.  Such honor killings are seldom prosecuted (Cohn 1999).  

   The subcontinental custom of the bride's family paying dowry to the groom's family cuts across religious lines, despite sharia's stipulation that it is the groom who should pay mahr to the bride. A Dowry Prohibition Act was passed in India in 1961, declaring both the giving and receiving of dowry a prohibition.  However, this code is rarely followed, and infractions against it are almost never prosecuted (Minattur 1980).   Women in India, Pakistan and Bangladesh often face violence and torture in the event of a disagreement of dowry payments.  Florence McCarthy argues that the economic difficulties in Bangladesh have affected dowry patterns.  Families of prospective grooms have started asking for exorbitant dowries and young wives are being killed more frequent in dowry disputes (McCarthy 1993).

Divorce

.     Divorced women are stigmatized and face a difficult time socially and economically in Pakistan.  In India, Muslim women have the right to seek divorce under certain circumstances. If  girls is married before the age of 15, she had the right to repudiate her marriage before she turns 18, even if the marriage has been consummated . The Dissolution of Muslim Marriages Act of 1939 also gives Muslim women the right of divorce if a husband fails to provide maintenance for two years.  Women can also petition the court for divorce in cases of desertion, insanity of the husband, leprosy and cruelty (Shankarjha and Pujari 1996)

  In Bangladesh, women are able to seek divorce only when a husband marries for a second time without the permission of the first wife and the local Union council (Islam 2000).

Polygyny

   Polygyny is illegal for all Indians who are not Muslim and fieldwork conducted from the 1970s to the present shows that it is rare even among Muslims.  According to official census reports, only five to seven percent of Indian Muslims are engaged in polygynous marriages. In the province of Kerala, less than 1 percent are engaged in such unions. Surveys show that Muslim women generally are opposed to polygyny (Shankarijha and Pujari 1996).  Among non-Muslims, polygyny is a criminal offense subject to fines and imprisonment.

  Bangladesh's Muslim Family Law Ordinance, passed in 1962, requires a husband to consult his wife before taking another wife. However, husbands sometimes force wives to accept a second wife by threatening them with divorce.  The country's 1991 census recorded 1.4 million polygynous marriages, but demographers believe there are probably many more such marriages than that (Islam 2000).

Custody of Children

    In India, Muslim women are less likely than Hindu women to retain custody of their children. the 1956 Hindu Minority and Guardianship Act gives custody rights to mothers in the event of divorce or death of a spouse.  This Act provides that mothers are the natural guardians of their children, even if the father announces a different guardian (Minattur 1980).  In the same year, the Hindu Adoption and Maintenance Act also gave women the right to adopt a child, a right not previously allowed to women (Minattur 1980).  However, Muslim women are not covered by these acts, but fall under the terms of Muslim personal status law. 

In Bangladesh, a widow or divorcee who remarries must give custody of her children to her previous husband's family. (Dube 1997).

Inheritance/Land Rights

Several scholars have recorded instances of women renouncing their inheritance as prescribed by the Koran.  This practice is particularly common among the middle and upper classes.  Women renounce their shares as a way to maintain strong relationships with their brothers, and secure their brothers’ protection and support if they should be divorced or widowed (Papanek 1982).

Customary tribal inheritance patterns in Punjab excluded women from inheritance.  As women traditionally married exogamously, they were universally denied inheritance rights to land and property.  Although Islamic law among Punjabi Muslims would dictate otherwise, the customary inheritance patterns were codified under British rule (Gilmartin 1988).  Under colonial rule, male heirs, no matter how distance the relation, were always assumed rightful heirs ahead of women, unless positive proof could be provided otherwise.  The 1956 Hindu Succession Act, which applies to Hindus, Buddhists and Sikhs, stipulates that heirs be decided without regard to or discrimination based on sex.  The Act also provides that women retain full ownership of inherited property, regardless of later marital status (Minattur 1980).  Muslim women’s inheritance rights are not subject to this Act. 

  In Bangladesh, a woman's right to inherit half a brother's share of patrimonial property is more formal than real.  In practice, Bengali Muslim inheritance patterns seem to resemble Hindu ones. Seclusion and a widespread preference for village exogamy do not allow women to retain control over their shares of the family land.  Many women waive their right to ancestral property in favor of their brothers, in a kind of bargain in which they retain the right to visit the natal home, where they can relax, and from which they seek support and protection in times of crisis (Dube 1997).

 

References

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