By rahnuma ahmed
It was only Muslim communities in the urban centres of Punjab characterised by a market or money economy, who followed the Sharia precepts of property and inheritance. Since Muslims in India are overwhelmingly Sunnis, this meant adherence to the Hanafi school of Islamic law.
But the overwhelming majority of Punjabi Muslims (rural, peasants), prior to the British annexation of Punjab, led lives fundamentally similar to that led by non-Muslims, with the exception of rites performed at birth, marriage, and death: a call for azan whispered to a new-born Muslim child. Kolma instead of shaat-paak ghora signified Muslim marriages. Corpses were buried instead of being cremated.
Muslims and non-Muslims led similar lives, what does this mean? It meant that during Sikh rule in the Punjab, the members of the joint family were bound together by a common interest and a common right. They conducted their affairs within defined conditions, in accordance with certain rules. The individual, whether Muslim or non-Muslim, could not alienate land because it was not his alone to alienate. He could not enter into individual contractual relations with others because he had nothing of his own to pledge or offer, as Asad notes in his highly perceptive study of the changes wrought by British colonisation in the Punjabi Muslim family structure (1961). Individual obligations therefore did not arise. Daughters did not normally have a share in the inheritance because strictly speaking there was no inheritance which devolved, there were only statuses of closely-related adult men (based on blood ties, baap, chacha) to which adult males succeeded.
What was life like in the villages? How was social life organised? Rights to landed property, says Asad, were distributed in accordance with definite principles within a precise kin-group. It was, in a certain sense, “owned” by the lineage, but held and worked by the joint family (equivalent to Bengali notion of joutho poribar). It was the joint family, as a whole, that comprised the work and consumption unit. The head of the local descent group (goshti) was the undisputed controller : all members together formed a single economic and legal unit. The oldest male member was its head. If relations between sisters-in-law grew strained, a separate hearth might be set up, the wife would then prepare meals for her husband and children separately, but food rations would still be taken from the common stock (joutho bhandar). It did not change the manner in which farm work was organised as male members continued to till the land together. Marriage was an affair that involved the entire joint families of bride and groom. It did not mean the setting up of a separate hearth, on the contrary, the daughter-in-law was inducted into the joint household. Bride-price (the Bengali correlate is pon) was given by the groom’s family to the bride’s; with its transfer, the wife belonged to the husband’s joint family. A widow, whether chaste or co-habiting with her deceased husband’s brother (debor) or a patrilineal cousin was entitled to life-long maintenance, losing this right only if she were to re-marry outside the descent group (I have written about this in one of my earlier pieces albeit not in the context of property, see `The familial order, not easily undone,’ New Age, September 22, 2008).?
It was the arrival of the British which led to `profound changes’ in the Punjabi Muslim family structure. The principle of individual proprietary rights was firmly established. New sources of individual livelihood (salaried employment, business) gradually opened up. Individual contract was made possible; at times, it even became necessary because the courts enforced the fulfilment of personal duties. It gave daughters the right to a part of their father’s property. Asad cites an 1868 court case involving Muslim Rajputs of Jullundar district : an agriculturalist contested the validity of a gift of land to his sister by their father. In its ruling, the court admitted that `a strong feeling against succession to ancestral land in the female line’ existed but declared the gift to be valid as it was in accordance with the relevant principles of Muslim law.
The parallel expansion of Hindu law did not similarly unsettle the Hindu family structure as ancestral property is enshrined in Hindu law. Ancestral property refers to property inherited upto 4 generations of male lineage (son, grandson, great grandson etc.). The rights to a share in one’s ancestral property accrues by birth to this four-generational body of male descendants, it is unlike other concepts of inheritance where inheritance opens only on the death of the owner. This body, which acquires interest by birth, is known as co-parcenary, its essence is community of interest and unity of possession (these laws have been changed in post-independent India, resulting in women gaining rights to property). The notion of ancestral property, I reiterate, is unknown in the Islamic property framework which promotes individual ownership, albeit with a strong redistributive ethos.
But there is more to the story, to what I call the hole, the gap, in our knowledge of Bengali Muslim family life in pre-colonial Bengal, an area of research that needs to be urgently undertaken in my opinion. What I write now is tentative, pieced together from fragments of colonial and post(?)-colonial histories. It has to do with the notion of `custom,’ but before I turn to that, I’d like to briefly mention more recent scholarship as it helps us take critical cognisance of what occurred in the early stages of colonial rule. It is Michael Anderson’s work that I turn to.
British colonisers were perplexed at the multiplicity of local customs and practices, at the many forms of legal authority that existed in India. In their `quest to establish a definable and reliable relation between government and the governed,’ they found a solution in law, and in legal texts. Anglo-Muhammadan jurisprudence was born in the first century of colonial rule. Anderson writes, `The Hastings Plan of 1772 established a hierarchy of civil and criminal courts, which were charged with the task of applying indigenous legal norms `in all suits regarding inheritance, marriage, caste, and other religious usages or institutions’. Indigenous norms comprised ‘the laws of the Koran with respect to Muhammadans’, and the laws of the Brahminic ‘Shasters’ with respect to Hindus. Although the courts followed British models of procedure and adjudication, the plan provided for maulavis and pandits to advise the courts on matters of Islamic and Hindu law, respectively. By the early nineteenth century, the system of courts had been expanded, a new legal profession had been established, and a growing body of statute and court practice extended the influence of the colonial state’ (`Islamic Law and the Colonial Encounter in British India,’ 1990).?
In other words, enter the modern state, which, instead of being a dominant segment of society becomes `the dominant mode of organizing its life’ (Asad), very different to the Mughal state where Zamindars had a degree of political autonomy within the Empire, and were retained as long as they provided `troops’ and `tribute’ (Part IV, New Age, May 16, 2011). The modern state organises life through the momentous new categories of `public’ and `private’ (Asad), and here I would like to remind readers that in Bangladesh, as in the rest of South Asia and other ex-colonies, matters relating to marriage, divorce, inheritance?which Europeans call `family law’?were henceforth regarded as Personal Law, codified on the basis of religious texts. On the basis of ‘the laws of the Koran with respect to Muhammadans.’
It was through the legal techniques of colonial rule that the category of `Muslim’, often `Mohammedan’, acquired `a new fixity and certainty,’ in contrast to previous identities which had been `syncretic, ambiguous or localised,’ says Anderson. Each individual was now linked to `a state-enforced religious category‘ (my emphasis); litigants were now `forced to present themselves as ‘Muhammadan’ or ‘Hindu” as the courts struggled to accommodate diverse social groups within these two categories. The colonial mode of governance also transformed personal law into a ground for organised political struggle. It helped to mobilise a Muslim identity that was opposed to colonial rule.
I now turn to the issue of `customs and usages.’ The fact that actual social practices were different to that prescribed in `the laws of the Koran’ gradually dawned on colonial administrators as British rule expanded, but this was much later, and Bengal, as readers know, was the first territory where British rule was established. That customary usages which were contrary to Sharia might, and do, exist in Bengal had not occurred to the British, I think, because they were fixed on the idea of determining the `single set of legal rules [that] could apply to all persons professing adherence to Islam.’ This assumption, as Anderson notes, was ironical given that `what the Company courts applied as Islamic law was often more alien than familiar to putatively `Muslim’ groups.’
Customs and usages contrary to the Sharia were recognised in some areas, not in others, through the enactment of the The Muslim Personal Law (Shariat) Application Act 1937 in undivided India. In general terms, it enhanced most Muslim women’s rights to inheritance through superseding custom or usage to the contrary for all property (`except agricultural land,’ this I will come to later) as the `basis of personal law for Muslims in undivided India’ except Jammu & Kashmir. Since customary practices, writes Bina Agarwal, had been highly discriminatory towards women, excepting among the Muslims of Kerala who are matrilineal, the Act enabled daughters and widows to assert their Sharia rights to property. Post-independence, the Indian states of Tamil Nadu, Karnataka, Andhra Pradesh and Kerala deleted the clause, `except agricultural land’ but it still holds in many states, these include Delhi, Haryana, Himachal Pradesh, Punjab, Uttar Pradesh, Jammu & Kashmir. What happened in Pakistan? The West Pakistan Muslim Personal Law (Shariat) Application Act of 1962 extended the Shariat to all of West Pakistan except `Tribal Areas’ in the North West Frontier Province; it entitled Muslim women to inherit all property, including agricultural land, with shares as prescribed in the Sharia. What about Muslim women in East Pakistan (now Bangladesh)? Agarwal writes, and this indirectly supports my gap-in-knowledge contention, `here women were not disadvantaged since even before this Act customs contrary to Islamic law were not enforced in (undivided) Bengal: here the Shariat (by presumption) applies also to agricultural land’ (Bina Agarwal, `Women’s inheritance: next steps,’ 2005).
Customs contrary to Islamic law may well not have been legally enforced in eastern Bengal, but Bangladeshi Muslim women still complain, bhaiera to 2 ana-o dey na, for, social change, after all, does not occur in `wholes,’ or in a unilinear fashion. Women are often hesitant to seek inheritance shares, anxious that it will affect her customary rights to annual visits, naior, to her paternal home, now inherited by her brothers. That it will also imply revoking her claim to her brothers’ support if misfortune were to occur (marital breakdown, widowhood). A situation that reminds me of Rayna Rapp’s characterisation of housework in capitalist societies: since housework is wageless, it keeps the housewife dependent on her husband for access to commodities bought with wages. As such, it is a `coin of exchange’ between men and women (`Family and Class in Contemporary America,’ 1978).?Or, as Whitehead had put it, women’s capacity to act as fully acting subjects in relation to property is always `more circumscribed’ than that of men, that the family system generally serves to construct women as less able to act as subjects in comparison to male subjects (1984).
But even though the `laws of the Brahminic ‘Shasters’ with respect to the Hindus had codified ancestral property, individuation occurred in Hindu households too, through other means. In late 19th-early 20th century, as landed households in colonial Bengal were transformed into wage-dependent ones, ideological clashes occurred over access to resources. The ideology of personal appropriation associated with the wage, it belongs to the wage earner, to use it for himself and his dependent wife and children, and individuating mechanisms like banking, savings, insurance policies, clashed with redistributive ideologies of jointness, which despite structured inequalities, did not distinguish between `earners’ and `non-earners’ (amar shompotti amar, bhai ey khabe keno?) A widowed sister-in-law was now likely to be resented, as joint families fragmented both materially and ideologically into conjugally-based units around an individual male breadwinner (Hilary Standing, Dependence and Autonomy. Women’s Employment and the Family in Calcutta, 1991).?Similar trends have been integral to the growth and development of the Muslim middle class in Bangladesh, accompanied by the re-definition of marriage as being strictly monogamous, and imbued with new meanings, it is a civilising force in society.
Will a deeper understanding of the historical processes, accompanied by forces of coercion and compulsion, which, alongwith others, have instilled desires in us, making us what we are, and what we aspire to be, aid us in our search for gender equality and justice? In creatively contesting the highly emotive claims that `shomo-odhikar’ is against the Quran and Sunnah? The answer to this lies in social and political struggles. They await us.
Published in New Age, Tuesday May 17, 2011