PERSONAL LAW

Abdul Waheed on Divorce among Muslim Indians

Much has been written on divorce among Indian Muslims (Divorce) has become a stereotype of Muslim identity and the basis of prejudice against the community. Indeed, it has become an emotional and political topic on which, unfortunately, serious academic discussion has been neglected.This paper is an attempt to understand divorce in a sociological perspective. The principal assumption is that being a social phenomenon, the causes of divorce should be sought in social reality. The explanation of divorce absolutely in terms of law, though a significant element of social life, would be reductionism.

Divorce in Indian Society

India is a segmented as well as a stratified society. Each social group within the social settings of a particular cultural zone follows different customs and traditions... There are differences in the nature of marriage and practice of divorce among various social groups. In traditional Indian society, Hindus of higher castes did not allow divorce as it was inadmissible in the great Hindu traditions. Marriage was sacred and indissoluble for them. Unlike the higher castes a large section of Hindus among lower casts have traditionally practised divorce. These customary forms of divorce were recognized both socially and judicially. The usual customary forms are: (a) by mutual consent, (b) unilaterally at the pleasure of the husband or by the abandonment of the wife; and (c) by deed of divorce.

Divorce is not only an urban phenomenon. It existed, even more frequently, in rural India as well. According to the census of 1971, the total number of divorced or separated women in the country was estimated to be 8,70,700 of which 7,45,200 are in the rural areas and 1,27,500 in urban areas. Taking the country as a whole, the divorce rate can be placed at one percent.

 Divorce among Indian Muslims

Muslims are a heterogeneous and stratified community. In the city of Kanpur, M.E. Khan finds only three cases of divorce out of 330 respondent couples. The data were collected from dominant Muslim wards and included all classes and sections of Muslims.

Similar findings are reported by Shibaniy Roy in her study in Lucknow and Delhi's Ashraf middle-class families. The investigation was conducted in the most populous Muslim areas of Delhi and Lucknow, and was based on a sample of 300 families, 150 each from Delhi and Lucknow. The respondents were from white-collar occupations with income from Rs. 400 to Rs. 1000 per month. She finds in the entire sample only three cases of divorce.

Moving from Delhi to Rajasthan, in the city of Jaipur, surprisingly, Sushila Jain also finds only three cases of divorce in her sample of 375 respondents. In the sample, 86.7 per cent of the respondents were married, 10.7 per cent were unmarried and 2.6 per cent were widowers. If we calculate the divorce rate among married respondents, it would come to around one per cent. It is not only the rate of divorce which is similar to the other two finds, more interestingly and surprisingly, the cause are also of a similar nature. The close similarly in the above data, though small, is sufficient to predict the trend of divorce, and suggests that divorce is not as frequent among urban Muslims as it is generally presumed. In fact, one per cent divorce rate is not more than the all- India average rate of divorce.

Secondly, contrary to popular assumption that the Muslim husband divorces his wife whenever it suits him most, the causes of divorce indicate that the wife also initiates divorce. And in both cases, the action is taken on well-defined grounds, like infidelity of man or woman, incapability of husband to support his family or physical deformity of wife, etc.

Finally, the case of the graduate woman who fought for her mehr suggests that education has enabled women to face the situation boldly and fight for their rights.

Divorce among Rural Muslims

More than 70% Muslims live in rural India. Most of them are poor and illiterate. They follow old customs and traditions. Sociologically, they are an unexplored community. And no empirical study, except one survey, is available which supplies data on divorce among them.

A survey, undertaken by the Census in 1961 in 587. selected villages with a sample of 133,775 marriages covering a period of 50 years, had indicated wide acceptance of divorce by the village community with some variations of incidence among different religious communities. Incidence of divorce was highest among Muslims (6.06%) followed by Hindus (3.21%). Buddhists (3.07%), Jains (1.68%), Sikhs (0.91%) and Christians (0.47%). The causes for divorce show that adultery barrenness and extreme poverty are the commonest grounds for divorce in most of the villages."

More often than not, the data is used to popularize the notion that divorce is very easy and frequent among Indian Muslims. And the reason is generally attributed to unilateral power of divorce enjoyed by the Muslim husband. In fact, if one were to see the data in its social context, the explanation would be different. The data was collected about three-and-half decades back and from rural areas where Muslims occupied the lowest position on the socio-economic scale. Marital ties easily break down in adverse socio-economic conditions. The easiest way for a poor Muslim is to say "I divorce thee" three times in order to avoid marital obligations. While the simplest way for men of other communities, where the law does not allow divorce easily, is to desert their wives and go away. (Desertion and Divorce are clubbed together by the census of India. And the phenomenon of desertion is widely practiced and rapidly increasing among lower class people). In both cases, the consequences would be the same for women.

Finally, the rate of divorce could not remain static. It has varied over a period of time. It is explained in the survey that there has not been a persistent trend in the incidence of divorce in all religions during more than fifty years. There has been, however, a persistent rise in divorce upto 11 to 20 years before the survey. After this there has been a marked decline in the incidence of divorce. The sharp rise in the incidence of divorce during 21- 30 years and 11-20 years prior to the survey is particularly noticeable. These were the period of war, partition and other conditions of instability in the country. These events had an impact on the marriage institution as well.

In fact, these events, especially partition, had a more devastating impact on Muslims which tore their established social fabric. The above discussion leads one to conclude that divorce is a social fact which is caused by various inter-related socio-economic factors. Normally, it has existed everywhere. But no society (can) tolerate the abnormal rate of divorce which emerged during the period of rapid social changes. No law, howsoever stringent, can control proneness to divorce in adverse social circumstances. Only the cohesiveness of the structure of the family and society restrain peoples from breaking off marital ties.

(Source: The Mainstream, 16 September, 1995)