Secularism and Islamic Divorce in India

Divorcing Traditions: Islamic Marriage Law and the Making of Indian Secularism, by Katherine Lemons (Ithaca: Cornell University Press, 2019)

Reviewed by Suchandra Ghosh, Jhargram Raj College (Girls’ Wing), Vidyasagar University

In India today, Muslims constitute a minority group not merely in numerical terms, but also politically. The status of Muslims in India is entangled with the administration of Muslim personal law, particularly in debates around divorce, who can claim it, and who can grant it. Various scholars have criticized India’s personal law system (which recognizes distinct legal codes for the members of different communities) as gender unequal. Muslim personal law has also been a target of widespread political agitation. Katherine Lemons’ Divorcing Traditions: Islamic Marriage Law and the Making of Indian Secularism is a timely intervention in this context.

Lemons’ research draws on a dossier of thirty-three cases reported and resolved in the period between 2006 and 2013, in four different non-state adjudication forums used by Muslims for problems with marriage, divorce, and kinship. These are two Darul-Qazas, a Darul-Ifta (also an institution used for healing practices), and a mahila panchayat (women’s committee). None of these institutions is a part of the formal legal system nor are their judgments deemed binding on the parties by the state, but they may be thought to be binding in the eyes of God. Sharia, as Lemons points out, is best understood as a guide to how one ought to live as a Muslim, abiding by Islamic legal precepts. Nonetheless, a recent Supreme Court judgment recognized the Darul-Qaza as an alternative dispute resolution forum that helps relieve the burdens of the state judiciary.

Of the seven chapters in the book, the first two engage with theoretical debates on secularism in a post-colonial, multicultural nation-state. The following four chapters deal with the empirical cases, and how they move between the community-based adjudication forums and the state courts. The legal issues raised in these cases are imbricated with diverse Muslim kinship practices and moral responsibilities. The book concludes by suggesting new directions for the ongoing discourse on religion, law, and secularism in a multicultural nation-state. Lemons shows that in practice, all these forums are intertwined so that no one unit—least of all “the state”—exercises exclusive jurisdiction.

Indian secularism has a dual commitment: equal respect for all religions and disestablishment, with the state actively intervening in certain religious practices to “reform” them. As a “religious” body, Lemons argues, the Darul-Qaza participates in what she calls the “labours of secularism”: first, because it accepts the secular premise that only religious matters are subject to religious authority, and second, as it reinforces the distinctions which deem kinship relations “religious,” from the perspective of personal law. The multiple Islamic tribunals that Lemons studies uphold a particular form of family law that collocates family and religion in an ostensibly private sphere, and thus contribute to the making of Indian secularism. The experts practicing at the tribunals accept the secular division between religion and law as a basis for exercising their authority. Further, litigants using the services of the multiple fora uphold an extensive division of labour with their choice of venues of adjudication.

Lemons does not conceive of secularism as a form of separation that promotes religious freedom in private while curtailing religious practices in public. Secularism is rather understood as an ongoing project “that aims to establish and maintain an appropriate relationship between religion and politics” (p. 7). Lemons identifies the adjudication of Muslim divorce as one of the principal locations where the state and religion interact. Divorcing Traditions intervenes in the anthropology of secularism on a more general level, too. Reckoning irrelevant such questions as “Has secularism succeeded or failed?”, the book suggests that the practices of Indian secularism, like elsewhere, do effectively regulate religion and politics (though the line of separation often shifts).

There are several reasons for the pluralism of legal systems around divorce and kinship. Some people find a local religious expert more accessible than a state institution. The Islamic legal forums lack “both the chaos and the layers of intermediaries between disputants and judges, characteristic of district courts.” (p. 5). Yet complications emerge even there, due to the rigour of Islamic judicial procedures, making these forums almost synonymous with the state courts in terms of their strict legalism. Meanwhile, at the Darul-Ifta, the mufti uses spiritual healing to treat people suffering from marital and other domestic disputes. The mufti performs in the capacity of both a jurist and a healer. He heals by putting particular objects and words into circulation. Like court judgments or fatwas, spiritual healing offers directives whereby problems are reddressed, while also addressing the cosmological relationships afflicting clients. These practices, though they appear “religious,” perform the secular work of co-constituting religion and secularism.

Lemons notes that judicial forums that engage with family matters participate in the “Islamic discursive tradition,” as defined by Talal Asad, while also performing the labors of secularism. She contests, in this way, the state-centric thesis of secularism: that the state is the only site and motor of secularism. It is precisely in the spaces assumed to be private and religious, she argues, that the secular labours of separating public from private and law from religion, are carried out.

Divorcing Traditions makes a valuable contribution to understanding the relationships between religion, kinship, and personal law. Lemons’ case study brings to the fore the place of minority differences in the practices of secularism. The measures of Indian secularism—with their simultaneous engagement with and separation from religious law—have been the parameters of tolerance towards minorities and the tools of assessment of women’s status. This “tension between disciplining religion and leaving it alone has spurred some of the most heated debates in the postcolonial period” (p. 37). However, Lemons’ fine-grained analysis glosses over the contemporary political context in which the more recent reform of Muslim personal law has unfolded. A long-standing campaign by the Islamic feminist groups and secular women’s organizations culminated in the state imposing a legal ban on the form of Muslim divorce known as triple talaq. But Lemons did not foresee this development; rather, she points out that the state, by not imposing a ban on this form of Muslim divorce, upheld the fiction that the practice is undesirable (p. 155). Given that the state has now banned the practice, one wonders what she would say about its meaning for secularism.

Few issues are as highly loaded as the subject of Muslim personal law in India with particular reference to the practice of triple talaq. Still, by tracing both the theoretical debates on secularism, and the narratives of arbitrators and adjudicators and litigants, Lemons ultimately brings out a vivid account of personal law and its intricate relationship to the attributes of religion and kinship. The subject not only has sociological relevance and policy implications, but is informative for administrators as well.