Article / Law

Is Muslim Personal Laws a Violation of Women’s Right?

Keywords: Women’s rights, Shariat, Muslim personal law, marriage, divorce, Mahr, polygamy

Written By: Riya Garg

INTRODUCTION

Islam has emerged as one of the most rigid and conservative religions in the world and many of its practices are a direct attack on women’s rights. In many Muslim communities, women are considered as the inferior sex and are heavily discriminated against. In India, it forms the most prominent religious minority and perhaps the most controversial as well; especially when it comes to women’s rights under Muslim personal law. While the Constitution of India practices secularism and vouches for non-discrimination, equality rights to Muslim women under Muslim personal law have time and again been questioned.

This article aims to discuss the position of women’s rights with respect to various aspects of muslim personal laws including provisions relating to marriage, divorce and maintenance.

HISTORICAL BACKGROUND

Muslim personal law in India is largely uncodified and is based mainly on Shariat (Islamic law). The Shariat has four sources:

1. Quran (The Holy Book),
2. Hadith or Sunnah (tradition) of the Prophet Muhammad,
3. Ijma (Consensus of the opinion of the Jurists) and
4. Qiyas (analogical reasoning)[1].

Quran

The Quran, which is the supreme divine source of Muslim Law everywhere, has granted women almost equal rights with their male counterparts. They are also supported and supplemented by the authentic Hadith of Prophet Muhammad[2]. Infact, prior to Islam, women were largely objectified and were subjected to all sorts of oppression. Islam came as a source of protection to them and gave them rights they never had in the pre-Islamic society. The Quran recognised the position of women as equal to that of males. It provided them with various rights such as Mahr, pre-marriage agreement, limitation on polygamy, etc. 

Shariat

The Shariat was introduced for the first time in India by Muslim Sultanate of Afghan and Turkish rulers. They were Hanafi, based on the Ulemas as religious and legal arbitrators in the royal courts. The Mughal Emperors appointed the Qazi who administered the Hanafi law, the law of the land. This continued until British rule was established, during which, the influence of English common law and principles of equity became increasingly apparent[3]. The Muslim Personal Law (Shariat) Application Act, 1937 was enacted by the British government as a matter of policy. However, it essentially ignored the original draft of Shariat (Islamic law) based on the Quran. It also tried to translate various important religious texts into English and formulated the laws somewhat based on these holy texts[4]. 

However, The Dissolution of Muslim Marriage Act, 1939, was the first progressive law passed by the British government for the protection of women’s rights. The Act gives women the right to judicial divorce[5]. After the independence, most of the Muslim personal laws were retained without many changes. In 1954, the Government of India enacted the Special Marriage Act, 1954. The Act effectively provided people with a choice of coming out of their respective personal laws. After the Shah Bano case[6], Muslim Women (Protection of Rights on Divorce) Act, 1886 was passed by the Indian government. It was done to protect the maintenance rights of divorced Muslim women. Later, Muslim Women (Protection of Rights on Marriage) Act, 2019 was passed in the aftermath of the Shayara Bano case. The Act declares divorce through Triple Talaq as unconstitutional and makes it a criminal act[7].

Did these Laws benefit Women?

Despite the enactment of these laws for the protection of women’s rights, there is little consensus on whether these laws benefit women. This is mainly because these laws were not based on the original Quranic injunction and authentic Hadith of the Prophet Mohammad (which guaranteed equal rights to men and women). It was founded on Ijma (Consensus of Jurists) and Qiyas (analogical reasoning), developed later from varying interpretations of Quran by religious leaders. In the absence of a proper codified system of Muslim law, under the Muslim personal law, women’s rights are completely subject to how these religious leaders interpret the Quran and propound the law. These taken together with the male-dominated attitude of the society, mostly go against the rights of Muslim women.

Thus, the history of Muslim personal law in India is rooted in the colonial past of India. It is largely preserved by the Constitution of India after independence. Consequently, muslim personal law, as it exists today, is largely based on customs favouring the native patriarchy. The next section analyses different provisions under Muslim personal law through the lens of women’s rights.

WOMEN AND MUSLIM PERSONAL LAWS- THE GROUND REALITY

1. MARRIAGE: 

According to Islamic law, Muslim marriage (called ‘Nikah’), is not a sacrament as in the case of Hindu marriage, but purely a civil contract. Thus, what follows from such contractual nature of Muslim marriage, is the freedom of choice of both parties to marriage. Free consent of the bride and the bridegroom is the basis of the contract of marriage and is vital to its validity[8]. 

However, in a male-dominated society like that of India, consent is hardly ‘free’. It is also often a result of familial coercion or pressure. Moreover, marriage contracts, where a woman can also state her terms and conditions alongside the groom, which are often reduced to writing in the form of kabinnama or nikahnama, are more often than not signed by a male member of the family (father, brother or uncle). Instead of herself and in so doing, deprive her of the opportunity and right to negotiate marriage and divorce terms[9]. Moreover, in most cases, such a written contractual agreement is not registered. A mere absence of a written kabinnama or want of its registration cannot render a marriage, which is otherwise valid[10].

Legal Age

Furthermore, there is no age limit for marriage and the age of puberty is regarded as the legal age. This means that the provision of the Child Marriage Act, 2006, which prohibits marriage of women below 18 years of age and males below 21 years of age, is diluted due to the continuance of Muslim Personal Laws. It also signifies that the requirement for consent is diluted to an extent where the bride does not even have to give her consent. Instead, her guardian’s consent is sufficient to give effect to marriage.

In addition, women have what is called an option of puberty on attaining majority. This means that a girl, who married when she was minor, on attaining majority, can either ratify the marriage or repudiate it. However, this option can only be exercised when she can support herself or when somebody else is there to support her. This is hardly the case, when such a woman is most likely uneducated and unable to sustain herself while her family is most likely not to support her. This is because they are the ones who married her in the first place, reducing the practical viability of such a provision to very limited cases.

2. MAHR (PROPERTY RIGHTS): 

Mahr is the gift, which becomes due from a Muslim husband to his wife on marriage as a token of respect symbolising his sincerity and love for her. It is the consideration in the contract of marriage. This has to be paid by the groom to the bride either at the time of the marriage (prompt) or at the time of divorce or upon the death of the husband (deferred). It is the exclusive right of every wife and can be demanded of her at any time during the marriage too[11]. However, in most cases, Muslim women are deprived of this right. 

The amount is usually decided by the parents or elders of either side based on the socio-economic background of the family. However, in most cases, the women are unaware of the amount decided in their own marriage. Since there is no minimum amount, sometimes, the amount decided upon is ridiculously low to even be of any practical use to the wife. This is also far from serving the actual deterrent effect on divorce that it is supposed to serve. Many times, the amount of Mahr is just announced in the marriage ceremony. However, no amount is later given, thereby depriving her of a right she has exclusive control over[12].

3. MARITAL RIGHTS

Muslim women have very limited marital rights as compared to that of their male counterparts. Muslim males have the right to marry non-Muslim women as well as women belonging to Ahl-al Kitab (people of the book i.e., the Jews and Christians). However, Muslim women are not allowed to marry non-Muslim men in any circumstances, including polytheists and men belonging to Ahl-al-kitab[13].

4. UNREGULATED POLYGAMY

A Muslim man can have upto four wives, with no legal protection to the women against the exercise of this privilege. However, the women do not have such privilege. If she contracts a second marriage during the subsistence of her first marriage, then the second marriage is void. Additionally, she can also be punished for bigamy under Sec. 494 of the Indian Penal Code, 1862. The section applies to all communities whether male or female but in case of Muslims, it applies only to females[14].

Further, Muslim law requires a man to pay his wife Mahr upon divorce[15]. “But as long as the right to have four wives continues to be enjoyed by a man, he need not divorce his wife if he does not wish to pay Mahr, he can simply discard her, or ill-treat her, while taking another wife”. Moreover, the law does not admit polygamy as a valid ground for seeking divorce by a Muslim woman. This leaves much room for women to be ill-treated by their husbands[16].

It must be noted that during the time of Prophet Mohammad, there were constant wars and consequently; the number of women were considerably higher than the number of men. Thus, polygamy was introduced to provide justice to widows and orphans. To see that women’s rights were not violated beyond a certain extent, the number of wives a Muslim man could take was limited to four. However, the object with which polygamy was introduced and allowed was completely different from modern society, if not exactly opposite. Moreover, verse 4:3 of Quran requires rigorous justice to all wives by warning that “if you cannot do equal justice then marry only one”. Verse 4:129 makes it clear that equal justice is humanly impossible. This provides the need for regulated polygamy. 

5. DIVORCE and MAINTENANCE

Under Muslim Personal laws, a man can divorce his wife at will, without citing any reason. A Muslim woman, on the other hand, can dissolve her marriage only on the basis of specific and limited grounds. Additionally, then according to the provisions of Dissolution of Muslim Marriage Act, 1939[17]. She has to return the Mahr she received at the time of the marriage. She can hardly exercise her right to ‘khula’. The Hanafi School, which is the predominant Muslim school in India, almost deprives her of this right. There is no question of ever stipulating the condition for ‘talaq-i-tafwid’ (delegated right to divorce).

Moreover, up until recently, a highly unjust method of divorce was practiced widely by Muslim men. Known as Triple Talaq or Talaq-ul-Biddat, it was an instantaneous method of divorcing one’s wife. This was done merely upon uttering the word “Talaq” three times consecutively. This system left the wife at the mercy of the husband in most cases. This kind of instantaneous Talaq is highly unjust; and was disapproved by the Prophet himself and finds no mention in Quran.

Shayara Bano Case

In 2017, the Supreme Court, in the landmark Shayara Bano case[18], declared Triple Talaq to be invalid and unconstitutional. This led to the enactment of Muslim Women (Protection of Rights on Marriage) Act, 2019. It is also popularly called as the ‘Triple Talaq Act’. The Act ensures only “subsistence allowance” and not “maintenance”[19]. Moreover, the Act criminalises Triple Talaq and pronounces a punishment of 3 years imprisonment[20]. This, however, again gives rise to two questions- how can divorce in any form, which is a civil matter, be criminalised (results in violation of fundamental rights to freedom of religion under Articles 25-28 of the Constitution of India). Secondly, if the husband is imprisoned, how can he pay the maintenance allowance to his wives and children[21]. Thus, the statute is only half a remedy. 

Before the passing of the Act, the maintenance of Muslim divorced women was governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act provides for the grant of maintenance only during the period of Iddat i.e. the period of three months and a few days after divorce or under Section 125 of the CrPC.  This empowers the Magistrate to order maintenance in favour of women. In case the husband neglects or refuses to maintain his wife without any lawful cause. However, this provision is applicable only when the divorced Muslim woman and her former husband should agree to be governed by Section 125-128 of the CrPC and not otherwise[22]. 

6. INHERITANCE:

Under Muslim Law, both men and women have the right to inheritance. However, a man’s share of the inheritance is double to that of a woman in the same degree of relationship to the deceased. Thus, the quantum of property inherited by a female heir is half of what is entitled to a male of equal status. This unequal distribution of shares in inheritance property is discriminatory and is in grave violation to women’s rights.

SUGGESTIONS

The above analysis of Muslim personal laws reveals that at every stage, Muslim law is fettered with inequalities. Here, women in every case are observed to be less equal and there is a serious need of reforms. While the Quran vests equal rights in men and women, the patriarchal system and socio-cultural bent towards male domination has led to these rights hardly ever being realised. Moreover, a large part of Muslim law still remains uncodified. It lays huge reliance on the judgement of religious offices like Moulvis and Kazis. These are subject to varying interpretations and can often create confusion and are misleading. Due to socio-cultural reasons and patriarchal system of personal law, which are discriminatory on the basis of religion and gender[23].

The Indian Constitution provides the right to equality before law (Article 14). It also prohibits any kind of discrimination on the basis of religion, race, place of birth, caste or sex. Muslim Personal law is violative of both these provisions. This is because, it distinguishes Muslim women and Muslim men by gender and between Muslim women and other Indian women on the basis of religion. Laws are applicable differently to men and women. Thus, it violated the principles of equality before law and equal protection of laws under Article 14 of the Constitution. However, certain provisions and practices under Muslim personal law discriminate women on ground of gender and religion and are therefore, unconstitutional. It cannot be allowed to continue merely because they are sanctioned by the religion (that too, erroneously).

CONCLUSION

As Ansari observes, “Muslim women in India are a heterogeneous group having their own vertical and horizontal divisions by virtue of the economic and socio-cultural class, region and sect that they belong to, and traditional school of Islamic jurisprudence and customary laws that they are governed by”. In a male-dominated society, women in India are mostly uneducated and unaware about their rights granted by the Shariat. They live with fear and threat to their male counterparts and follow traditional customary laws.

Thus, it is the need of the hour that Muslim law that remains uncodified is codified and women’s concerns are accounted for adequately. 

REFERENCES

• [1] Patel, R. (2009). “Indian Muslim Women, Politics of Muslim Personal Law and Struggle for Life with Dignity and Justice.” Economic and Political Weekly, 44(44), pp.44-45.
• [2] Jawad, H.A. (1998).The Rights of Women in Islam: An Authentic Approach. Great Britain: Macmillan Press Ltd.pp.5-11.
• [3] Agnes, Flavia.(1999). Law and Gender Inequality: The Politics of Women’s Rights in India. New Delhi: oxford University Press. p.31
• [4] See Patel, R. (2009).op.cit.pp.,45-46
• [5] Fyzee, A.A. (2008). Outlines of Muhammadan Law (Fifth edition).New Delhi: Oxford University Press.pp.,131-137
• [6] See Patel, R. ibid.,P.46
• [7] Shayara Bano v. Union of India, 2017 (9) SCC 1
• [8] Amina v. Hassan Koya, (2003) 6 SCC 93.
• [9] Ahmad, Naseem. (2001). Liberation of Muslim Women. Delhi: Kalpaz Publications.p.188. [10] Md. Chan Mia v. Rupnahar, 18 BLD (HCD) 31.
• [11] Devi, Rajni (2015). “Marriage Patterns of Muslim’s with Special reference to Mehr as Women’s property.” International Journal of Humanities and Social Science Invention, 4(2),62-71.
• [12] Azim, Saukath. (1997). “Muslim Women: Emerging Identity.” Jaipur and New Delhi. Rawat Publications., p.,170.
• [13] Orakzai B.Saira. (2014). “The rights of women in Islam: The question of ‘public’ and ‘private’ spheres for women’s rights and empowerment in Muslim societies.” Journal of Human Rights in the Commonwealth, 2(1), p.,47.
• [14] Misra,N.S.(2010).The Indian Penal Code(Seventh edition). Allahabad: Central Law Publications, p.740.
• [15] The Dissolution of Muslim Marriages Act, 1939, Sec. 5.
• [16] See Moinuddin, H.A.S.(2000). Divorce and Muslim women. Jaipur and New Delhi: Rawat Publications., p.86.
• [17] Sec. 2, The Dissolution of Muslim Marriages Act, 1939.
• [18] Shayara Bano v. Union of India, 2017 (9) SCC 1.
• [19] Section 5, Muslim Women (Protection of Rights on Marriage) Act, 2019.
• [20] Sec. 4, Muslim Women (Protection of Rights on Marriage) Act, 2019.
• [21] Shrotriya, Eesha and Chauhan, Shivani.(2019).op.cit.pp.167-168
• [22] Paranjape, V.N. (2009).The Code of Criminal Procedure along with Juvenile Justice (Care and Protection of Children) Act and Probation of Offenders Act. Allahabad: Central Law Agency.,pp.118-125.
• [23] Engineer, A.A. (1994). “Status of Muslim Women.” Economic and Political Weekly, 29(6), 297-300.

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