Towards Gender Equality and Women Rights –Recent Developments In Muslim Personal Law

AUTHOR PROFILE: The author Ria Menon is a second-year B.A. LL.B. student from the Shri Navalmal Firodia Law College, Pune

INTRODUCTION

Gender equality, although not very visible in its truest sense, is not a new concept to us. Interestingly, “Musawah” is an Arabic equivalent of the word ‘equality’ and has been mentioned in the Quran and was implemented by Prophet Muhammad; which means that Islam has advocated gender equality, referencing both men and women in an equitable light. However, despite the explicit verses which detail on equality of genders, we cannot help but be appalled by the treatment of Muslim Women today, placing them even below second class citizens of India.

‘Personal law’ means scriptural commands and standard practices of a particular religion. The primary source of Muslim Personal Laws is the Holy Quran, which the Muslims believe to be God’s words. The Quran is mainly concerned with general ethical principles and guidelines but not strict instructions, hence the governing laws today highly depend on Shariah (laws based on people’s interpretation of the pronouncements of the Quran). The problem with any personal law is that it naturally considers what is widely prevalent, sometimes over what is not consciously right; until one day someone finally challenges the law. And as a result of that, the status of women is not as it should be, yet.

The Muslim Personal Laws[1] toxically support a male-dominant, patriarchal setup of the society; which renders women devoid of individuality and hence establishes their high dependence on men. These laws are so strictly abided by that there was a time when women started to think that they were inferior to men and were destined to rely on them for the fulfilment of all their needs.

GENDER INCONSISTENCIES

• There is no set age for marriage in Islam. The marriage depends on the puberty of the girl, which implies that even a 15-year-old Muslim girl can be married off, based on her biological characteristics.[2] By the virtue of early marriage, it is less likely that she continues with proper education.
• Among Sunnis, marriage should be solemnized only in the presence of two men or one man and two women, as witnesses. This means that a marriage will be held invalid if there are two females only, present during the marriage ceremony.[3]
• A woman has no right to consent for marriage, not even in the selection of a husband. Her guardians/ parents take the decision of her marriage for her.
• The Indian law allows a Muslim man to marry more than once, not exceeding 4 marriages. Polygamy is favoured among Muslim men; however, polyandry is not only a punishable offence but also void and illegal and children born out of it are illegitimate.
• After a divorce, a Muslim woman has the right to be maintained only up to the “Iddat” period. She is also legally entitled only to the “Mahr” if it already has not been granted to her.
• A Muslim woman will also not be able to re-marry unless she marries another man, has sexual intercourse with him and is divorced by him.
• The Muslim Personal Laws have not codified the property rights of Muslim women. Under both the schools of Islam: Sunni and Shia, the son generally get twice as much share in the property as much as the daughter gets. The wife gets 1/8th share if she has children and 1/4th if she does not. And if case the husband has more than one wife, the 1/8th share is divided amongst all the wives. Whereas the husband gets half of his late wife’s property if they did not have children, and 1/4th if they have children.
• A Muslim man can divorce his wife without entering into any legal process whereas the wife has to seek a divorce in a court of law.

LANDMARK S TOWARDS GENDER EQUALITY AND MUSLIM WOMEN’S RIGHTS

1. Mohammed Ahmed Khan v. Shah Bano Begum Ahmed and Others[4]: The Supreme Court had held that a Muslim woman is entitled to maintenance even after the “Iddat” period expires, and has a right to claim maintenance under Section 125 of the Code of Criminal Procedure (CR.P.C.). This case caused the then Congress government to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986, with an absolute majority. This Act diluted the abovementioned judgement of the Supreme Court and restricted the right of alimony of Muslim divorcees to the “Iddat” period. However, in the Danial Latifi case[5] and Shamima Farooqui v. Shahid Khan, the Supreme Court upheld the Shah Bano judgement. All India Shia Personal Law Board supported the order to make maintenance of a divorced Muslim wife, absolute.
2. Shayara Bano v. Union of India and others[6]: In this landmark judgement, the Supreme Court held that the practice of Muslim men seeking divorce by the way of “Talaq-ul-biddat” or by uttering the word “talaq” thrice, was violative of the rights under Articles 14, 19 and 21 of the Indian Constitution and hence, unconstitutional.
3. Chand Patel v. Bismillah Begum[7]: The Supreme Court, in this case, pronounced that the marriage of a man with two sisters shall not be void, but merely irregular in nature. It was further discussed that the child out of such a marriage shall be entitled to the inheritance of the father’s property. It was stated that marriages that have taken place without any witness or during the “iddat” period of the former wife will be held invalid.
4. Noor Sabha Khatoon v. Md. Qusaim[8]: The Court’s verdict said that a child shall be entitled to demand maintenance under section 125 of the Cr.P.C. and Muslim Women (Protection of Rights on Divorce) Act, 1986. The father shall provide maintenance to his son until he attains the age of majority and stabilizes himself; and maintain his daughter until the time she is married.

The Muslim Women (Protection of Rights on Marriage) Act, 2019

This Act criminalizes “triple-talaq.” The statutory provisions of the act are:

• Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
• Any Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
• A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
• A married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
• An offence punishable under this Act shall be cognizable if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
• An offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
• No person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married a Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.

CONCLUSION

Many countries with Muslim populations have adapted to modern times and evolved their laws according to contemporary needs. This is an area where India is slightly on the back seat and is struggling to move towards, but is moving gradually forwards nonetheless.

Justice K. Rama Swamy once said, “Almost half of the Indian population is a woman. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all equities indignities, inequality and discrimination.” The women need to be made aware of their rights so that they know that they can stand up for themselves when they think that their rights are being meddled with. They need to be awakened to the fact that in modern society, all genders are on an equal footing and that they no longer have to be dependent on anyone else for their well-being. And once we appropriately empower the women of this nation, our development as a country will just be a matter of days.

To quote former Justice of the Supreme Court of India, Ms Sujata Manohar, "It is not easy to eradicate deep-seated cultural values or to alter traditions that perpetuate discrimination. It is fashionable to denigrate the role of law reform in bringing about social change. Obviously law, by itself, may not be enough. Law is only an instrument. It must be effectively used. And this effective use depends as much on a supportive judiciary as on the social will to change. An active social reform movement, if accompanied by legal reform, properly enforced, can transform society."

[1] The Muslim Personal Law (Shariat) Application Act, 1937

[2] 2015 (3) G.L.R 2512

[3] I.L.R. (1921) 1 Ker. 361

[4] 1985 SCR (3) 844

[5] Danial Latifi & Anr. V. Union of India ( (2001) 7 SCC 740)

[6] (2017) 9 SCC 1

[7] (2008) 4 SCC 774

[8] AIR 1997 SC 3280

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