ABSTRACT:
India’s personal laws encompass varied elements for different religious communities where Muslims embrace the Mohammedan law founded on their prophet Muhammad’s teachings, Quran and other Islamic sources. Despite amendments, these laws still continue to reflect patriarchalism hence leading to curtailment of women rights. The All India Muslim Personal Law Board advocates for the protection and promotion of these laws but faces criticism for its conservative stance. This paper examines how uncodified and conflicting interpretations of Islamic law affect women’s rights with a focus on marriage, divorce and inheritance laws in India as compared to Pakistan.
INTRODUCTION:
Personal law in India applies differently to the people of different religions they follow. Muslims follow Mohammedan law which mainly consists of teachings of Propt. Mohamed, Qurna, and Fatwa. However, there are so many changes in Muslim personal law that are according to modern-day needs. There is also an organization called “All India Muslim Board” Their main purpose is to make sure personal Muslim laws are protected and promoted in India. But this board has faced too many criticisms for being too patriarchic of nature.
There isn’t a proper codified law for Muslims In India and no proper interpretation of the Fatwas and Quran due to which Women usually suffer from unequal treatment about their rights.
Marriage
In pre-Islamic Arabian society, there was no concept of Nikha or Marriage. The men in the society were mostly traders and would wander from place to place. They would just use women as sex slaves and leave them once the work was completed in a particular place. There was a need to stop this exploitation of women, so there emerged the concept of Marriage called “Nikah”. “Nikah” is an Arabic word which means “union of sexs” and in law means ‘Marriage’.
Marriage under Muslim law is a contract between two people and the main purpose of marriage is to procreate. As defined by Mahmood J. in the case ofAbdul Kadir V. Salima (1886) ‘Marriage according to the mohamdeen is not a sacrament but purely a civil contract’.
MARRIAGE REQUIREMENTS
There are basic requirements for marriage in Islam. First, there should be mutual consent to the marriage. There must be a clear proposal and acceptance of that proposal. Muslim women should also have a legal guardian, it’s usually her father or paternal grandfather present during the process but if there is no legal guardian then she should have attained puberty before getting married. It is not mentioned anywhere that only the groom should send the proposal of the marriage.
One such incident is from the life of Prophet Muhammad’s life reflecting the proposal of marriage. Khadija Bint Khuwaylid, who was a rich widow, 25 years older than Prophet Muhammad, and his employer sent a proposal to Prophet Muhammad. He accepted the proposal and got married to her out of love and compassion. She became the first wife of Prophet Muhammad. This proposal illustrates that Muslim men and women can choose their own partners for marriage.[1]
INDIA
Laws Governing Muslim Marriages
Four main laws govern Muslim marriages in India:
1. 1937 – Muslim Personal Law (Shariat) Application Act
2. 1939- Dissolution of Muslim Marriages Act
3.1986- The Muslim Women (Protection of Rights on Divorce) Act
4. 2019 – The Muslim Women (Protection of Rights on Marriage) Act
Muslims also have the option to register their marriage under the Special Marriage Act, 1954. Additionally, general family laws such as the Dowry Prohibition Act and the Domestic Violence Act apply to the Muslim community as well.
Uncodified Shariah law, which varies based on the individual’s sect, sub-sect, or jamaat, is also followed.
The Supreme Court has made marriage registration mandatory. Muslim marriages can be registered under the Muslim Marriage Act, which is guided by the Muslim Personal Law (Shariat) Application Act of 1937. Marriages can also be registered with a qazi, who solemnizes the marriage and issues a nikaahnama as a marriage certificate. Muslim Women get Mehr as a token of respect during the marriage or after the marriage whatever is decided.[2]
DIVORCE
Divorce is breaking the contract of marriage and getting separated from their spouse. In Muslim personal Law Men have more ways to give divorce. But this doesn’t mean women can’t get a divorce. In India, Muslim women have two ways through which they can get a divorce: 1st by mutual consent I.,e Khula and Mubarat, and the second way is through court. By the virtue of Dissolution of Muslim Marriage Act, 1939 a Muslim woman can go to court and file for divorce. Until 2019, Muslim Men in India had right of triple talaq which was extremely unfair for Muslim women. So, in the Shao Bano case Supreme Court made it illegal for a Mulsim Man to divorce his wife just by uttering talaq thrice.
PAKISTAN
Islam is the state religion of Pakistan, and about 95-98% of Pakistanis are Muslim. The majority are Sunni (estimated at 85-90%)[1], with an estimated 10-15% Shia[2]. Because Pakistan was made on the premise of being an Islamic country, all laws within Pakistan have to comply with Islamic Injunctions, thus Muslims in Pakistan are mandated to follow regulations set out by Islam with respect to their personal laws
In Pakistan, Muslim women have several rights regarding marriage and divorce, guided by both religious and civil laws. Even here the consent of women is necessary for a marriage to be valid. It is very well mentioned in the Muslim Family Laws Ordinance, 1961[3], and the Muslim woman is also entitled to receive a mahr as a compulsory gift from the husband to which she has the whole right. During Nikahnama, the Muslim Bride if she wants can include specific conditions for marriage and the groom cannot deny those conditions. As Islam allows polygamy to man, he can only marry the other wife if the first wife gives consent to it. Although this is law in Pakistan no one really follows it.
Divorce Rights
According to the dissolution of the Muslim Marriages Act, 1939
A Muslim woman has the right to seek divorce if she feels she cannot leave with her husband. She has to give a proper reason for this and she can file for divorce or Khula through a family court.[4] According to the Dissolution of Marriage Act, 1939 A woman may file for a number of reasons, including cruelty, abandonment, or nonpayment of maintenance. During the waiting time following a divorce, a woman is entitled to maintenance (iddat). Generally speaking, a mother is entitled to child custody, but the court may decide otherwise if it is in the child’s best interests as per the Guardian and Wards Act,1890. These rights ensure that Muslim women in Pakistan have legal protections in matters of marriage and divorce.
INHERITANCE RIGHTS OF MUSLIM WOMEN
· In Muslim culture, the factor of inheritance emerges only after the death of a person. According to Muslim personal law, the property that belongs to any living person cannot be inherited as well as it does not acknowledge the ‘right to property by birth’ that exists in Hindu law. This means that any child born in a Muslim family does not have a right to property at the time of his birth.
· The volume of inheritance is determined only after the primary duties of the deceased are fulfilled including funeral expenses, debts, wages, and others. It can also be said that the actual distribution of the inheritance initiates after the completion of such duties of the deceased.
· The Muslim law does not distinguish between moveable and immovable assets; all the belongings of the deceased are meant for inheritance.
· There is no distinction between self-acquired and ancestral property, which means both properties are equally available for inheritance.
Property Rights of Muslim Women in India
In India, the Muslim Personal Law (Shariat) Application Act of 1937 takes care of property rights for Muslim women. In this law, there is clear information on the inheritance of muslim women. Daughters usually get half the share of sons. Example, if a man dies and he is surivived by son and daughter, the son receives two-third of his property while the daughter receives only one-third.[5]
Under the inheritance law there is a provision for Muslim widow also. If a widow has children, she gets one-eughth of her deceased husband’s property. But if she has no children, then her share increases to one-fourth of the property. Additionally, Muslim mothers will also get one-sixth of the deceased child’s property if the child has children of his own.
Muslim women have inheritance rights under the law but unfortunatally their shares are often smaller compared to the males. These rights aim to ensure that women get a portion of family property atleast.
Property Rights of Muslim Women in Pakistan
In Pakistan, property rights for Muslim women are governed by Islamic law, specifically under the Muslim Family Laws Ordinance, 1961[6], and the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. This law gives an idea of the inheritance share of Muslim women. Similar to India, daughters in Pakistan are entitled only half the share of son. Even here there is discrimination in distributing the property
These laws outline the inheritance shares for Muslim women. Similar to India, daughters in Pakistan are entitled to half the share of sons. For instance, if a father dies and leaves behind a son and a daughter, the son receives two-thirds of the property, while the daughter receives one-third.
Muslim widows in Pakistan also have specific inheritance rights. If a widow has children, she is entitled to one-eighth of her deceased husband’s property. If she has no children, her share increases to one-fourth of the property. Mothers are entitled to inherit one-sixth of their deceased child’s property if the child has children. If the child has no children, the mother’s share increases.
Overall, while Muslim women in Pakistan have defined inheritance rights under Islamic law, their shares are generally smaller compared to their male counterparts. These laws aim to ensure that women receive a portion of the family property, although the exact distribution may depend on the specific family dynamics and the presence of other heirs.
Conclusion
In India: The response of the judiciary on the status on women under Muslim personal law has been ambivalent. Many of the cases give the impression that the role of our judiciary has been healthy and satisfactory. In many cases Supreme Court has tested personal laws on the touchstone of fundamental rights and to make them consistent with fundamental rights.
Whereas in some of the case court held the validity of the personal laws cannot be challenged on the ground that they are in violation of fundamental rights because of the fact parties in personal law is not susceptible to fundamental rights. It is interesting to note that, there have been important judgments beneficial to Muslim women even though not in the landmark category, but very significant in this concern
In conclusion, it is evident that personal laws in India, especially Muslim law highlight a multitude of issues with regard to religious dogmas and contemporary legal structures. While the Muslim Personal Law (Shariat) Application Act, 1937 as well as other legislations have laid down the framework for marriage, divorce and inheritance; traditional interpretations continue to limit the rights of Muslim women regarding these issues. The board’s role in saving such laws is often in conflict with the principles of gender equality today causing ongoing controversies. This situation leads to discrepancy in treatment of women especially on matters related to inheritance and divorce since no codified laws or clear interpretations exist concerning Fatwas and Quran. However, Pakistan faces similar challenges but there are legal protections through legislations like the Muslim Family Laws Ordinance, 1961. Nonetheless, cultural practices and taken-for-granted patriarchal norms undermine women’s rights. It is imperative that equal treatment be given to Muslim women in both countries without infringing upon their religious beliefs but by promoting gender equity and fairness at all levels of society.
[1] Jaafar-Mohammad, I., & Lehmann, C. (2011). Women’s rights in Islam regarding marriage and divorce. Journal of Law and Practice, 4(3).
[2] Rao, N. C. (2012). Presumption of marriage under Muslim law. *Indian Bar Review, 39*(4), 133.
[3] Government of Pakistan. (1961). Muslim Family Laws Ordinance, 1961,
[4] Shaikh, A. (n.d.). Law of divorce & khula in Pakistan.
[5] Ali, A. (1996). *The right of women in Islam*. New Delhi.
[6] Muslim Family Laws Ordinance 1961
Author : Hamsa Wadigera