Why Repealing Assam Muslim Marriage Act May Do Little To Empower Women

It will not curb child marriage but may complicate registrations, say experts

Last Friday, the Assam cabinet approved the repealing of the Assam Muslim Marriage and Divorce Registration Act of 1935, which outlined the procedure for the registration of marriage and divorce by qazis. The move is primarily aimed at prohibiting child marriage in Assam, said the state Chief Minister Hemanta Biswa Sarma. 

Muslims will now have to get married using the Special Marriages Act (SMA) and this is supposed to ensure greater state scrutiny of the age of the couple. However, there already is a law, the Prohibition of Child Marriage Act 2006, to cover such offences.

The move will do little to deter child marriage in the state, lawyers and activists told BehanBox. It will only make it more complicated for Muslims to get their marriages registered and lead to a rise in cases of unregistered marriage, said Zakia Soman, founder of Bharatiya Muslim Mahila Andolan (BMMA). 

The Assam government’s crackdown on child marriages has been ongoing since last year when it arrested more than 2000 people, including, grooms, their family members and religious leaders allegedly involved in underage marriage of girls and imprisoned them in makeshift jails within 24 hours. Not only did this move tear several families apart, it also pushed many family members to die by suicide.

Legal experts speaking to Aljazeera pointed out that a lot of the police action in Assam was not in keeping with the Section 468 of the Criminal Procedure Code. The code, which sets the limitation period for criminal offences, requires that a case cannot be more than three years old if the punishment awarded is for under three years. But most of those had arrested had allegedly participated in child marriage over the last seven years.

In the now repealed Muslim Marriage Act, minors who wish to get married need their legal guardian’s permission to do so. Guwahati-based lawyer Aman Wadud, in an interview with BehanBox, has pointed out that if the government’s intention is to stop child marriages then it could have simply amended the Act.

“What was the government doing all this while to address the age-old problem? I believe the government has miserably failed to implement the Prohibition of the Child Marriage Act 2006. Since the government has woken up now, however, are (mass arrests) the way to go forward? They should follow due process,” Wadud said in an interview to Aljazeera.

Assam MLA Jayanta Malla Baruah hailed the move as the end of a ‘colonial act’, and an important step towards a Uniform Civil Code (UCC). Two weeks ago, the Uttarakhand assembly became the first in the country to bring in the UCC, a set of personal laws common for all Indian citizens regardless of religion, gender or sexual orientation. These laws govern matters such as marriage, divorce, succession, and inheritance.

The BJP government has been pushing for a nation-wide UCC since 2014. But the big push came last year, right after the 22nd Law Commission issued a notification seeking views from religious and other organisations on the UCC and just before five state assembly elections. With the 2024 general elections impending, BJP ruled states such as Uttarakhand and Assam are stepping up the rhetoric on UCC.

The UCC, which is being positioned as a tool to “save” women, especially Muslim women, from discrimination has been rejected by Uttarakhand’s women’s groups who call the code discriminatory and a tool to moral police women’s autonomy. In the past too, feminist groups and activists have opposed the UCC and have said the best route to ensure gender-justice is to instead amend personal laws

Feminist lawyer and researcher, Surbhi Karwa, in an interview recently with BehanBox, argued against the UCC as envisaged by Uttarakhand. In an earlier essay for us, she pointed to the perils of equating uniformity with equality.

The state has the highest percentage of Muslims (34%) after Kashmir. The recent decision by the Assam government comes in the wake of other moves that will disproportionately affect the Muslim community. Its decision to tie welfare measures for women with population control schemes is a case in point, as we reported. The BJP government also plans to initiate a ban on polygamy in the state, in order to stop Muslim men from having ‘multiple wives’. However, data show that the difference in the rate of polygynous marriages within Muslim and Hindu communities is not that much different, at 1.9% and 1.3% respectively. 

High Rate Of Child Marriage

About 32% of women in Assam marry before they attain adulthood, according to the 2019-20 National Family Health Survey (NFHS). Education and health facilities are mostly inaccessible to women and girls of Assam, said the survey. According to the latest NFHS, only 29.6% of women in the state aged 15-49 years have 10 or more years of schooling. Since women do not have access to higher education, their participation in the job market is also low.

Assam’s maternal mortality ratio is also the highest in the country. According to the Registrar General of India’s latest report on maternal mortality for 2018-2020, the state recorded 195 deaths per 100,000 live births.

“Assam has a child marriage problem, but the solution is not to repeal the Muslim Marriage Law but to build more educational opportunities for girls from marginalised communities,” Wadud wrote in Aljazeera.

Soman said there needs to be a comprehensive action plan to fight child marriage in the state. “Because Muslim personal laws are not codified [since their interpretation is left to the qazi], things are based on social understanding such as what the legal age for marriage will be. Which is why such laws become dangerous. We need to eradicate social evils in society, but this is not the way to do it. Social investment in women’s welfare, education is the way ahead,” said Soman.

Unauthorised Marriage and UCC

Before the Assam Muslim Marriage and Divorce Registration Act of 1935 was repealed, Muslims could get married in the presence of a qazi, Islamic legal scholars or jurists. There are a total 94 qazis in the state, whose job has now become obsolete and will be paid a one time compensation of Rs 2 lakh by the Assam government.

Now, Muslims will have to register their marriages with officers appointed under the Special Marriage Act, 1954. But experts argue that this process will be inaccessible to those accustomed to qazis. To get your marriage registered within SMA, both the bride and the groom have to furnish details like proof of age, residence, birth certificate, passbook or a voter ID. “What happens when people from very low-income families don’t have either of these?” said Wadud in an interview with Behanbox.

The state also plans to bring the UCC into action. Will not the SMA and UCC be in conflict, asked Soman. “It appears that it’s just testing the waters now. First, remove the Muslim Marriage Law, demonise Muslims and set the record straight on your position on Muslims,” said Soman.

However, the repeal of the Assam law does not affect the Muslim Personal Law (Shariat Application) Act, 1937, a central law that governs the rest of the country when it comes to registering Muslim marriages and divorces.

Worse, many Muslim women will opt for unregistered marriage, said Soman. “In fact, Muslim women anyway don’t have their marriage certificates with them. In our work, we have found that 80% of Muslim women don’t have a copy of their nikahnama, or marriage certificate countrywide. Either because they don’t know they have a right to it, or their husbands see the request as an affront to him,” added Soman. 

  • Ankita Dhar is a reporter with Behanbox. She is also a digital artist whose artwork has documented political prisoners in India.

Malini Nair (Editor)

Malini Nair is a consulting editor with Behanbox. She is a culture writer with a keen interest in gender.

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