Law Mantra: Islamic Law and Women: Indian Context-A Minority Within Minority
Law Mantra: Islamic Law and Women: Indian Context-A Minority Within Minority
Law Mantra: Islamic Law and Women: Indian Context-A Minority Within Minority
INTRODUCTION
Muslim women are triply disadvantaged: as members of a minority, as women, and most of all as
poor women. Muslim women continue to struggle articulately for their rights and are still subject
to an archaic family law codified nearly 70-years ago which has remained unreformed and
continues to disadvantage women legally. India being a land of diversity where people of all
religion thrive and constitutional rights are guaranteed to all the citizens irrespective of caste,
creed, religion and sex still while on the same land Muslim women is not only treated differently
from male counterparts but they also experience difference in enjoyment of rights as compared to
a Hindu or a Christian women due to the application of personal law which is presumed to
contain provisions which are in conflict with certain rights guaranteed under the constitution of
India, such as right to equality, against discrimination etc. Muslim women in India are often caught
between loyalties to their religious or ethnic communities and a desire for greater freedom and
equality as women within those communities. It becomes difficult for such women to reconcile
both these needs because of the pressure of the community to maintain the precepts of the
personal law wherein a woman is treated as a second class member.
Under the current law and custom, Muslim women are unable to divorce except for cause unlike
Muslim men who may divorce unilaterally and without cause. After divorce, Muslim women have
no legal right to maintenance except for a period of three months after the marriage. And finally,
Muslim men have a legal right to marry up to four wives without the consent of their wives while
Muslim women have no such right to polyandry, despite the fact that there are more males in
India than there are females. These laws indicate the subordinate position of Muslim women in
relation to Muslim men and also show the difference in rights enjoyed by a Muslim female and a
Hindu or Christian female who is being given right to divorce her husband on more grounds than
Ms. Ambrina Khan, LL.M (Human Rights) NLSIU, Bangalore, (UGC NET), (Assistant Professor, Law,
The Northcap University, Formerly ITM University, Gurgaon).
1 Archana Parashar, Women And Family Law Reform In India: Uniform Civil Code And Gender Equality, (1992
Sage Publications), p.60
2 Cyra Akila Choudhury, (Mis)Appropriated Liberty: Identity, Gender Justice, And Muslim Personal Law Reform In
India, 17 Columbia Journal of Gender and Law 46, pp.10-15 (2008), Sep.20, 2015
http://ssrn.com/abstract=969020
3 Ayesha Jalal, Exploding Communalism: The Politics of Muslim Identity in South Asia in Sugata Bose & Ayesha
Jalal (eds.), Nationalism, Democracy & Development: State And Politics In India, (1997) Oxford
University Press, Delhi, pp.90-95
The above process of codification clearly points out that there is a considerable gap between the
customary practices and the black letter of the law. In the next few paragraphs it is explained what
Mohammedan law talks about polygamy, divorce and maintenance unjustly towards woman.
I. POLYGAMY
Polygamy is held up as the ultimate evidence of Islamic law’s injustice towards women and as
such, it deserves consideration. While some Muslim countries have either regulated or banned
polygamy, India continues to allow plural marriages for Muslim men. A Muslim male husband can
take as many as four wives at a time to marriage. Now the question is that how far bigamy is
supported by the personal. Since polygamy up to 4 wives is allowed under the Mohammedan Law
as is evident from above statements, therefore no remedy is available to a Muslim women against
polygamy by her husband, however, a condition is imposed upon a Muslim male that he can marry
as many as four wives subject to the condition that all the wives be treated justly and equitably.
Quoting a text from the Holy Quran which seem to support polygamy is-
And if you fear that you will not be fair in dealing with the orphans, then marry as many of women as may
be agreeable to you, two or three, or four; and if you fear that you will not deal justly, then marry only one or
what your right hand possesses. That is the nearest way for you to avoid injustice.7
Thus from the above verse it is evident that there are few conditions8 imposed upon a Muslim
male before he can take up 2nd 3rd or 4th wife which are as follows:-
1. There is no religious injunction directing muslim to marry more than one wife.
4 Id.
5 Supra n.2, p.16
6 Catherine A. MacKinnon, Sex Equality Under the Constitution of India: Problems, Prospects and Personal Laws,
It should be noted here that polygamy as a practice is not widespread among Muslim communities
in India. In fact, the incidence of polygamy among Muslims is approximately 6%. Even so, the
right to plural marriage is possibly the most objectionable of formal legal rights accorded to
Muslim men at the expense of Muslim women. Given that it has been restricted if not formally
abolished in other Muslim Countries, the time has come for such anachronistic rights to be
changed in India.9
Although according to Hadis, “with Allah, the most detestable of all things is divorce”
The tradition of arbitrary talaq at the sweet will of the husband was prevalent since the pre-
islamic days, although the power of divorce was recognized by Prophet to avoid a greater evil he
made various provisions for the protection of women against such arbitrary and capricious
practice of their husbands which are as follows:-
(a)- Fixing of dower
(b)- Revocable Talaq
(c)-Restraint on remarriage between the parties
Thus it ended the controversy that for effecting Talaq “whim of the husband is sufficient”.
The Privy Council in Rashid Ahmed v. Anisa Khatoon19 took the view that a muslim husband
can effect divorce whenever he desires.
III. MAINTENANCE
Muslim Women (Protection of Rights on Divorce) Act, 1986
Upon divorce, a Muslim woman has the right to maintenance for a period of three months that is
her iddat period and the time that elapsed from the end of the iddat until she received notice of
divorce, if any. After that time, the responsibility to maintain her devolves back to her family. As
such, the objective of maintenance is not to compel the ex-husband to provide for the divorced
wife as in the case of alimony. Rather, because Islam considers marriage a union that can be
dissolved rather than an eternal bond, a woman is never considered a part of her husband’s family
to the exclusion of her own paternal family. Neither is she a better half but a fully cognizable legal
personality with independent rights who is capable of remarriage. In fact, remarriage is encouraged
in Islam, which is the underlying rationale behind the short period of alimony provided after
divorce. The passing of three months ensures that the wife is not pregnant. If she is, the husband
15 Furgan Ahmad, Triple Talaq: an Analytical Study with Emphasis on Socio-legal Aspects, (1994 Regency
Publication, New Delhi)
16 McNaughten declared, “there is no excuse or any particular cause for divorce, mere whim is sufficient.” And Mulla
announces, “any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he so desires
without assigning any cause.”
17 (1932) ILR 59 Cal 833
18 (1906) 8 BOMLR 35
19 AIR 1932 PC 25.
I. POSITION IN INDIA
However in India where the State has enacted law, it is has been in response to conservative
Muslim pressure and at the expense of women, Armed with verses from the Qur’an and sayings of
the Prophet, they seek to challenge the allegations made by progressive Muslims and Hindu
nationalists alike. The first argument from conservatives is that the law is immutable.24 The
argument that law is immutable can be dismissed for the reason that the British codification does
not reflect all the law or even the most important parts of the law. In May 1993, a fatwa was issued
Thus looking at the position in various countries all over the world it may be stated that the Sharia
Law is amenable to change and can be modified to suit the needs of the society but is not accepted
in the Indian society due to various reasons one being such interference by courts, as was
mistakenly done in Shah Bano case where court tried to interpret the Quaranic text26, may be
against the constitutional rights of religion guaranteed under it to profess, propagate and practice
their own religion and therefore, it cannot bring reform through legislation in India as against
other Muslim countries.
However it may also be pertinent to mention here that the reform of personal law is said to violate
constitutional provisions when the cultural identities of muslims depends solely or partly on their
religious law, and neither polygamy nor unilateral right to divorce can be identified with muslim
culture and thus reform of Islamic law in India will not be unconstitutional.27
SUGGESSTIONS28-
Muslim women’s formal rights in the area of family law clearly have not kept pace with women
from other Indian communities or other nations because the area of the family law in question has
not been revised by the State since its enactment more than 70 years ago. For several years, the call
for reform has been growing. The following three suggestions may be of certain help-
I. AN OPT-IN UNIFORM CIVIL CODE-
Article 44 of the Indian Constitution directs the State to endeavor to secure for the citizens a uniform civil
code throughout the territory of India. Over the years, the Uniform Civil Code has met sustained
resistance from conservative Muslims. The opt-in solution has called for the promulgation of a
UCC that women can then choose as the law governing their marriage. This solution allows
women choice while not threatening the traditional religious personal law regime. Women are
given the choice of the secular and more favorable law in the event that they are faced with
inequitable personal law remedies without any threat of invalidation of personal law as a whole.
A. SEVERAL PROBLEMS-
i. The Assumption of a Robust Secularism- Secularism is an essential prerequisite in
establishing the trust of minority communities in the State. Without such a trust in the neutrality
25Sanober Keshwaar, The Triple Talaq-Unjust, Untenable, Un-Islamic in Indira Jaising(ed.), Justice for
Women, (1996 The Other India Press), pp.82-85
26 Ijtehad- The act of interpreting the Quran to determine the law. The power of ijtehad is not given to the
courts and only to eminent scholars and maulvies can interpret the Holy Quran
27 Supra n.13
28Supra n.2
Relying on two cases, Sastri Yagnapurushadji and Others v. Muldas Bhudardas Vaishya and Another and
Comm’r of Wealth Tax, Madras and Others v. Late R. Sridharan by L.R.s the Court concluded that it
could give no definition to Hinduism, Hindu or Hindutva. It concluded that the Hindutva is a
synonym for Indianisation and “the development of a uniform culture by obliterating differences
between all the cultures co-existing in the country”, by equating Indian culture and Indian identity
with Hinduism. The Court went on to state that speech promoting Hindutva was acceptable in the
promotion of secularism and that it was a matter of fact whether or not there was a violation of the
RPA 1951. Under these circumstances, liberal calls for uniformity and secularism take on a sinister
tone. It strains reason to assume that a political system in which such ideologies have substantial
purchase, in which parties espousing these ideologies are elected to state and central government,
could pass a secular code that acts neutrally.
ii. The Assumption of Political Will to Better Women’s Status- The enactment of the
Muslim Women (Protection of Rights on Divorce) Act, 1986 shows the extent to which women’s
rights are susceptible to political pressure and manipulation. The Act overturning the Shah Bano
judgment was passed by a political fearful Congress government under pressure from Muslim
conservatives is an example of how communal politics can serve up gender justice on a platter if
it suits. The Supreme Court of India ruled in her favor granting her continued maintenance. In
reaction, fundamentalists, both Hindu and Muslim, mobilized a discourse of identity that
threatened to unseat Congress (I), the leading party and to tear Indian society apart along
communal lines. Muslims, the Congress-led Indian Parliament passed the MWA 1986 that
reversed the Court’s decision and foreclosed the right of Muslim women to sue for continued
maintenance beyond the iddat period.
iii. The maintenance of a private sphere in which unjust religious laws can operate, and the
other has to do with the possibility of “free choice”. An optional code, particularly one that
requires Muslim women to opt-in by entirely abandoning Muslim laws preserves a public/private
dichotomy.
Therefore, formal rights enacted by a State without political will to challenge gender inequality may
not amount to real gains for women.
1. If the giving of Mahr is practiced according to Muslim law, it is a security for women in a
society that provides no social safety net.
2. A bride’s family can stipulate a high Mahr to deter unilateral divorce and abandonment. If
the law were enforced, therefore, Muslim women would be financially more secure and less
likely to be divorced without their consent.
3. The triple Talak, which is the most unfavorable form recognized in Islam, is incorrectly
practiced by Muslim men. The way in which men have used it—in one sitting—is disapproved
of because it contravenes the rules set out in the Qur’an.
4. Maintenance for three months may be adequate if a divorced wife has contracted for an
adequate Mahr that she may leave with or has prospects of remarriage or self-support.
A. PROBLEMS-
The way in which such laws are interpreted create an environment of unjustness for women such
as in the case of Shah Bano who, at an age of 73, did not have many prospects of remarriage nor is
it likely that there was much of her paternal family left to support her.
The State cannot continue to uphold religious laws that conflict with the fundamental rights and
justify the subordination of women on this basis. Further, male leaders of the religious community
also cannot continue to use and control women as a symbol of identity by politicizing their rights.
For these reason, an effort needs to be made to move towards a system that can afford women
CONCLUSION
It is clear from the above discussion that a Muslim woman is doubly disadvantaged in India. Such
position of Muslim women is only due to the misinterpretation of the Sharia law and not because
the personal law is unjust in its entirety and the provisions of the law are amenable to reform
suiting the needs of the changing society and has been incorporated by a number of Muslim
countries. According to the study and my personal opinion among the suggestions given the last
one which is the combination of the two is the best solution to bring reforms as either UCC alone
or strict application of personal law have their own shortcoming and are not feasible in the present
scenario. The best approach in the interim is for radical reform of Muslim Personal Law coupled
with the drafting of an aspirational code that is then advocated vigorously. However, all these
reforms will be of no use unless the perception of the society is changed towards a woman. An
effort needs to be made to move towards a system that can afford women their rights while
respecting their religious communities. Whatever be the means it may be concluded that Muslim
Personal Law reform is long overdue and presently Muslim women is a minority within minority
in India.