(Mis)Appropriated Liberty: Identity, Gender Justice, and Muslim Personal Law Reform in India

"Muslims, particularly, are an undigested lump in the throat of Hindu professionals. They must be absorbed-that is Hinduized--or coughed up." (1) "The Religious Right is writing the obituary to imagination, imagination that is born of diversity, difference, dissent. And in India, it is doing it in and through the discourse of secularism." (2) Muslim women in India often find themselves caught between loyalties to their religious or ethnic communities and a desire for greater freedom and equality as women within those communities. (3) They face significant constraints in reconciling these conflicting influences, and a great many of them do it in the context of poverty. As Zoya Hasan notes, "Muslim women are triply disadvantaged--as members of a minority, as women, and most of all as poor women." (4) On one hand, traditionalists within Muslim communities in India seek to universalize and ossify interpretations and practices of Islam that maintain women's status as second-class members with far fewer rights than men. Resistance to conservative interpretations of Islam is cast as disloyalty and can call into question the very identity of a Muslim woman within her community. On the other hand, loyalty to religious interpretations and to principles that are clearly gender-biased calls into question Muslim women's commitment to emancipation and gender justice. (5) These experiences are exacerbated for women who are economically impoverished. (6) In spite of these opposing forces, Muslim women continue to struggle articulately for their rights at the crossroads and margins of Indian and Indian-Muslim society. Although they have made progress, Muslim women are still subject to a separate code of religious family law that, after being codified nearly seventy years ago, has never been reformed and is outdated. Under this code, Muslim women continue to be disadvantaged. (7) This Article argues that, in order for Muslim women to be fully emancipated from an unjust and discriminatory family law, their unique position and experience at the intersection of gender discrimination and religious discrimination must be taken into account. (8) Proposals for reform that fail to reconcile communitarian religious loyalty and the importance of Muslim-Indian identity with individual gender rights will hold little appeal for the majority of Muslims. (9) This Article argues that Muslim Personal Law has become so interwoven with significance for Muslim identity that dismantling the law or even reforming it constitutes a threat to this identity. This is true regardless of the fact that the actual impact of the formal law on the everyday lives of Muslims may be minor. Furthermore, the way in which Indian secularism operates reinforces religious identity and protects religion in the public sphere. Following the ancient maxim sarva dharma sambhava, or "all religions are valid," India's founding fathers wrote respect for all religions into the constitution. This allows each religious community to be governed by its particular set of family laws, while a universally applied secular law governs all other areas of the law. However, this respect for religious pluralism has come at the cost of many women's rights. (10) It has meant that Muslim Personal Law remains in the limbic state of being subject both to state intervention, through codification and enforcement, as well as nonintervention, as part of the private religious sphere of Muslims. This Article explores this impasse and its effects on formal gender injustice and inequality in the areas of dower, marriage, divorce, and maintenance under Muslim Personal Law. In order to eliminate these inequalities and injustices encoded in the law, a number of solutions have been advanced. This Article evaluates the two most enduring solutions. First, there has been a recurrent call for the passage of a uniform civil code (UCC) that would either supplant personal laws entirely, resulting in the abolishment of state recognition of religious law, or offer an "opt-in" alternative, under which each woman can choose (at the time of her marriage or in later litigation of family law issues) to have the union governed by either secular or religious law. …