Shariat In Law And Spirit For Muslim Women
India is a multi-cultural, multi-lingual and multi-religious state. The principle of equality is enshrined in the Constitution of India—which also includes, gender equality. However, one of the main objectives mentioned in the website of the All India Muslim Personal Law Board is: “To adopt suitable strategies for protection and continued applicability of Muslim Personal Law, i.e., Shariat Application Act in India.” And, it has widely been observed that the rights of the women under the personal law are often usurped or tweaked, because AIMPL has not fully adopted the Shariat.
Nafisa Hussain, former member of the National Commission for Women, says that Islam has given enough rights to Muslim women. But since women are socially and economically unaware, they are unable to enforce these legal rights through courts. Nafisa laments: “The Muslim Personal Law has dual standards.” She says Shariat must be incorporated completely in the Muslim Personal Law, whereas it is being implemented as per the requirement of the Muslim men.
The Qur’an says: “And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquillity with them, and He has put love and mercy between your hearts. Undoubtedly in these are signs for those who reflect. (30:21)”
This verse clearly shows that Islam considers marriage the most virtuous and approved institutions. The importance of marriage receives its greatest emphasis from the following hadith (saying of Prophet Muhammad): “Marriage is my sunna. Whosoever keeps away from it is not from me.”
The Shariat prescribes rules to regulate the functioning of the family, so that both the spouses can live together in love, security, and tranquillity. Marriage in Islam has aspects of both ibadah (worship) of Allah and mu’amalah (transactions between human beings). The unique feature of Muslim Personal Law is that consent is a prerequisite for marriage. Courts in India have held that the marriage of a girl without her consent is invalid and is voidable at her instance.
“IT IS HIGH TIME THE SOCIETY EVOLVED”—Renuka Chowdhury
Renuka Chowdhury, former Minister of State for Ministry of Women and Child Development, spoke to Uday India correspondent Tulika Rattan about the plight of Muslim women. Excerpts:
Do you think the Muslim women face discrimination in the Muslim Personal Law?
There is a general prejudice in the Indian society against the development of women—even in the Parliament—and Muslim women, as such, are discriminated against in the Muslim Personal Law. It is high time the society evolved. Today, a lot more Muslim women have access to education, thanks to the various government initiatives. The right to education is going to have a huge impact in the future. But the general fear that once the women come out in the open, they will change, is wrong, because women don’t change or alter dramatically—the human behaviour is only moderated for them to co-exist in a society like ours. While Islam and Shariat are very tolerant and liberal towards women in certain aspects, in some aspects they have to change with time. And once they do that, Muslim women are going to be more independent and successful.
How actively is the National Commission for Women helping the Muslim women to get their basic rights?
The National Commission for Women is supposed to address all issues related to women, but what is disappointing is that the general perception is such that nothing is being done. The NCW needs to pull up its socks and ensure that a lot is to be delivered.
Do you think adding a different law in the Constitution is going to benefit the Muslim women?
We should ensure that the existing laws are being applied to the benefit of these women. There are so many laws—for Hindu women as well—supposedly, to protect us, but when it comes to the actual authority that implements it, there seems to be a huge gap. And that is what we need to look at—that the existing laws, in the first place, must work. We can bring in 40 other laws but what’s the point if these are not being used?
Unilateral right of divorce granted to a man under Muslim personal law is known as talaq (divorce). A detailed study of Islam which is unfortunately not adopted in social practice defines the conditions in which talaq ought to be pronounced. These are of dissuasive nature and men are discouraged from exercising this right.
As per the Qur’an, men pronouncing talaq may follow the model code of conduct by pronouncing talaq three times at a gap of three menstrual cycles—this is the preferable form of talaq and is known as talaq-e-sunnat. A man may also pronounce talaq three times in one sitting, however, this is denounced, and such conduct is known as improper talaq.
Simultaneously, a Muslim women has a parallel right of khula, in which she is entitled to dissolution of the marriage by khula without the consent of her husband. The only difference between khula and talaq is that a women seeking khula may—at the instance of her husband—forsake her right to mahr (dowry).
In 2004, the Gudiya case became a matter of huge debate in the country. Married at the age of 14 to soldier Mohammed Arif, Gudiya had hardly spent a week with her husband when he was sent for the Kargil War. Declared dead by the army, after his disappearance, Gudiya was remarried to her cousin Taufiq. And five years after her second marriage, Arif returned. The panchayat took over the matter, declaring her second marriage invalid, restoring her to her “rightful” spouse Arif, and announcing that the yet-unborn-child (with Taufiq) was to be with its mother “till it grew up to a reasonable age”.
However, Muslim women in India are entitled to seek divorce under the Muslim Personal Law (Shariat) Application Act 1937 and Dissolution of Muslim Marriage Act 1939, on the ground of the husband’s disappearance for a period of four years or more, if the husband fails to provide his wife maintenance, impotency of husband, if the husband is suffering from insanity, cruelty, etc.
HERE ARE SOME RULES FOR WOMEN IN THE MUSLIM SOCIETY:
■ If a Muslim woman is murdered, her beneficiary is entitled to one-half dyyeh—blood money, or compensation—as that of a murdered Muslim male.
■ A woman’s testimony in the court of law is worth one-half that of a man.
■ A woman must provide four witnesses to substantiate her claim of being raped.
■ A man can divorce his wife by simply saying to her, “I divorce you,” three times.
■ A divorced woman is entitled to a miserly compensation and automatically forfeits her rights to her children.
■ Women are barred from the lucrative and powerful cast of clergy.
■ Husbands are entitled to punish their wives corporally.
■ Men are allowed to have four wives at any one time and as many concubines as they desire and can afford.
A Muslim woman seeking maintenance (after Divorce) can file a case within the jurisdiction of the court where she resides. Under section 3(1) a and b of the Muslim Women’s (Protection of Rights on Divorce) Act, 1986, the husband is obliged to provide a reasonable and fair maintenance to be made and paid to the woman within the iddat period. (In Islam, iddat is the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man.) The amount of maintenance the woman gets is in addition to the mehr amount. (Mehr is a predetermined lumpsum amount payable to a woman by her husband, during the course of the marriage or at the time of divorce, before the completion of the iddat period.)
Even after 63 years of Independence, issues fundamental to all women such as, maintenance, custody, physical and mental security in marriage, fair and equal divorce entitlements, continue to elude them. Despite facing common problems the legal rights of women are different, depending on the entitlements under the personal law. Women in India face multiple hurdles in getting legal redress of their problems. These problems arise not only as a result of different laws governing women but also from the fact that there is no common court having jurisdiction over women’s issues.
President of All India Muslim Women Personal Law Board, Shaista Ambar said that the root cause of the poor condition of Muslim women is illiteracy. “The Islamic law has given enough liberty to the Muslim women—to study and even to work—but men are not in the favour of providing education to the women. Men feel that if they let their women study, they will become more independent and go against the wishes of their families. However, I think if we educate our women, we can guarantee them a safe future—where they don’t have to be dependent on men for their basic rights or needs. People from other religion have understood the importance of education, but Muslim society still needs to understand its relevance.”
Quite unhappy with the dormant way of working of the National Commission for Women, Shaista went on to say: “Their work is hardly effective and since they would not want to get on to the wrong side of AIMPLB, they are willing to sacrifice the rights of Muslim women.” She also said: “Had AIMPLB been sufficient, there would have been no need for us to come up with All India Muslim Women Personal Law Board.”
Pointing out the infamous Imrana rape case—wherein a 28-year-old Imrana was raped by her father-in-law, 69-year-old Ali Mohammad—Shaista said that while a fatwa was issued saying that Imrana’s marriage with her husband was void and that her father-in-law will now be her husband (as the Shariat regards sexual relations with both the father and son as incestuous). “Why was this case treated as adultery and not rape?”
In a recent letter to the President of India, Shaista Ambar, wrote: “The condition of the Indian Muslim women is being worsened by the so-called, ‘caretakers of the religion’ and its high time we tried to strengthen their position, status in the society by lending them what they truly deserved and had been deprived of enjoying their own rights—mentioned clearly in their religious book The Qur’an.”
Nearly 80 per cent of Indian Muslim women are illiterate, unaware of their rights in the Qur’an, are being ill-treated by their husbands and are forcefully given talaq. Lack of awareness and unwillingness to fight have been the major causes for the condition in which the Muslim women are living in.
By Tulika Rattan