Author: Anushka Dutt Singh, KIIT School of Law
ABSTRACT
Indian personal law is a law meant for people of different faiths and applied according to their religion. For decades, Muslim women have fought for gender equality in Islamic law governing marriage, divorce and property rights. However, the All India Muslim Personal Law Council is one of the most influential bodies of the Muslim community. Muslim women’s rights to marriage, divorce and inheritance have inspired many Muslim women activists to fight for their rights. Personal laws in India, and Islamic personal law in particular, have been an important political and controversial issue because the position of women in society is neither a new nor a fully resolved issue. The position of women in different human societies in the world is different. Whether developed, developing or underdeveloped societies, women live in an inimitable situation. Almost all human societies around the world are male-dominated. Men are active in society and women are passive. For decades, Muslim women have fought for gender equality in Islamic law, which governs marriage, divorce and property rights.
KEYWORDS: Personal Law, Gender Equality, Muslim Women’s Rights, Male-Dominated, Islamic Law.
INTRODUCTION
Indian society is a combination of several societies with different religions. This is why so many personal laws of different religions govern people. The Constitution of India guarantees equality and freedom from injustice based on sex and religion, but in the ruthless conservative culture, various practices are still based on it. As we know, the majority of Muslim personal laws have not yet been codified and most of the decisions made by the courts are based on the norms mentioned in the Qur’an and Hadith. With this in mind, this research paper analyzes the ongoing controversy over the impact of Muslim moral rights in India and seeks to propose various solutions for empowering Muslim women. Therefore, certain anomalies must be eliminated by preaching the Holy Quran’s quintessence for Muslim women’s rights. Human law is defined as the customs and practices of a religion followed by people of that religion and includes marriage and separation, the bonds and restrictions of marriage, parental and child relationships, marital rights and custody. Child. These laws tell sketches about the customs, customs and conventions of life. In India, each religion has its own laws, including Hinduism, Christianity, Jainism, Parsism, and Islam. So far, India does not have a uniform civil code. In religious personal law, women are in a weaker position because they have fewer rights than men. Religious personal law has promoted several taboos such as patriarchal society, child marriage, and so on. Basically, these decisions are applied to women by the general public. It is very worrying because it represents a lot of discrimination against women by these personal laws.
LEGAL JARGON
Personal law: A system of law that governs matters such as marriage, divorce, inheritance, and adoption for individuals belonging to a specific religion.
Uniform Civil Code: A common set of laws governing personal matters for all citizens, regardless of religion.
Triple Talaq: A form of Islamic divorce where a husband can divorce his wife by uttering ‘talaq’ three times.
Nikah Halala: A practice where a divorced woman must marry another man and consummate the marriage before remarrying her previous husband.
Polygamy: The practice of a man having multiple wives simultaneously.
Maintenance: Financial support provided to a divorced or separated spouse.
Iddat: A waiting period for a divorced Muslim woman before she can remarry.
DISCRIMINATION AGAINST WOMEN UNDER MUSLIM LAW
In Islamic law, Quran is considered as a primary source which according to Muslims are the words of God. Although there is nothing mentioned about the law in Quran it mainly includes ethical principles, guidelines and instructions which are needed to be strictly followed by Muslims. Due to this, there are other forms of sources to supplement the Quran to form the core of Shariah.
Age for Marriage- In Islam, there is no limit to marriage. It is up to puberty that is if a girl has attained puberty she is eligible for marriage. In the case of Yunusbhai Usmanbhai Shaikh v. the State of Gujrat, it was held that as per the Muslim personal law as soon as the girl has attained puberty or she has achieved the age of 15 years, she is eligible for marriage. So it is clear that for marriage consent and maturity of a girl are not a parameters to decide but biological characteristics are.
For marriage between the Sunnis, two male observers or one male and two female observers are needed for the proposition and acknowledgement. It indicates the unequal status of man and woman in Muslim personal because the status of one male is equal to two females which is very discriminative. In the case of Abdullah v. Beepathu, the court declared a marriage invalid because there were only two female witnesses present during the marriage.
Purpose of Marriage- After seeing the provisions of Muslim personal law, it can be said that they are very biased towards the woman. They are framed as if to intercept rapes and childbirths. Woman in Islam does not have a right to choose their husband.
Divorce- In Muslim law for the dissolution of marriage, a Muslim husband is given unrestricted powers as compared to the wife and a muslim woman can only ask for divorce through the provisions of the Dissolution of marriage act, 1939 in which incorporates exceptionally restricted and inaccessible justification for woman.
Maintenance- In Muslim law after the divorce, a husband is simply obligated to pay for the support of his significant other upto the period of iddat and after that the wife is liable for maintenance from those people who will get her property after her death. This shows that laws for maintenance in Muslim are not so much in favour of women. If a situation comes that no one will be able to pay for her maintenance then the responsibility falls on the Wakf Board.
Multiple marriages- In Muslim law, It is allowed for a husband to have 4 wives. In Quran it is said that, marry a woman who you think is good for you twice, thrice or four at a time but if you think you cannot treat them well then marry to only one woman. But in case of Muslim woman, it is not allowed to have more than one husband and if she does more than one marriage then her second marriage will be considered void and will be punished as per the provisions of the Indian penal code.
REFORMS PROPOSED BY THE LAW COMMISSION REGARDLESS OF RELIGION
The Law Commission has proposed several reforms to address the stereotypes and misconceptions surrounding marriage in India. These include making marriage registration mandatory, introducing an amendment to the registration of births and deaths act, and addressing false cases of gravity filed for divorce. The commission also recommends a uniform age of consent and marriages, with the legal age for men being 21 and women at 18 to reduce false cases of cruelty, the commission recommends a retrievable breakdown of the marriage for divorce when reconciliation is not possible. It also suggests equal distribution of property between the husband and wife post-divorce, but not equally in every case. The commission also calls for disabled-friendly legislation, stating that diseases that can be cured or controlled should not be grounds for divorce.
The commission also recommends making second marriages void, allowing children born from such marriages to be considered legitimate and enjoy the same privileges as their parents. They also suggest legislation to address the issue of alleged Bala Dafa level live-in relationships that did not result in marriages, enabling children to be liable for their parent’s property. Lastly, the commission recommends removing section-29(a) of the Guardian and Wards Act, which makes minor husbands guardians of their voices, and amending section 21 of this act. The commission also suggests amending adoption laws under the juvenile Justice Care and Protection of Children Act to allow adoption for all gender identities and children of intersex.
JUDICIARY INTERVENTION FOR SAFEGUARDING WOMENS STATE
India’s judiciary has been instrumental in interpreting and challenging personal laws to align with constitutional rights, particularly in women’s rights and gender equality. However, some courts have refrained from intervening due to their religious and cultural foundations. This ambivalence is attributed to the delicate balance between respecting religious freedom and ensuring gender justice. The courts have upheld and challenged the validity of Muslim personal laws concerning women’s rights, reflecting the ongoing debate about the role of the judiciary in reforming personal laws versus respecting religious autonomy.
THE PROOF : CASE LAWS
1. Mohd. Ahmad Khan v. Shah Bano Begum (AIR 1985 SC 945)
In this landmark case, the Supreme Court addressed the extent of a Muslim husband’s liability to maintain his divorced wife under Section 125 of the Criminal Procedure Code (CrPC), 1973. The Court interpreted Islamic texts to conclude that a Muslim woman has the right to maintenance even after the iddat period (a waiting period following divorce). It emphasized that Section 125 of the CrPC is a secular law applicable to all citizens, regardless of religion. This judgment stirred significant debate and led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, highlighting the tension between personal law and secular legal principles.
2. Danial Latif v. Union of India (2001)
This case challenged the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, arguing that it violated Articles 14 (equality before the law), 15 (prohibition of discrimination), and 21 (right to life and personal liberty) of the Indian Constitution. The Supreme Court upheld the Act, asserting that the legislature did not intend to enact unconstitutional laws. However, the judgment faced criticism for its interpretation, as the Court seemed to prioritize legislative intent over constitutional scrutiny.
3. Bai Tahira v. Ali Hussein (AIR 1979 SC 362)
The Supreme Court in this case declared that the payment of a nominal mehr (a mandatory payment or gift to the wife at the time of marriage, which often serves as a form of financial security) is insufficient as a substitute for maintenance to a divorced Muslim woman. This judgment reinforced the principle that divorced Muslim women are entitled to adequate maintenance, challenging the traditional interpretation of mehr as fulfilling the husband’s financial obligations post-divorce.
4. Madhu Kishwar v. State of Bihar
This case dealt with the validity of customs and traditions that explicitly discriminate against women, particularly in matters of inheritance and succession. The Supreme Court underscored the necessity for all national legislation to conform to constitutional guarantees of gender equality and international norms, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). By citing international law, the Court expanded its interpretation of constitutional rights to promote gender equality, marking a significant step in aligning domestic laws with global standards.
5. Valsamma Paul v. Cochin University
This case questioned the constitutional validity of affirmative action policies in government employment, arguing that they violated equality and anti-discrimination guarantees. The Supreme Court upheld the legitimacy of affirmative action as a necessary measure to address historical disadvantages faced by marginalized groups, including women. The Court referenced CEDAW to justify the state’s right to enact policies promoting women’s equality rights. It emphasized that all forms of gender-based discrimination violate fundamental freedoms and human rights, reinforcing the constitutional commitment to equality.
CONCLUSION
New legislation should be implemented to govern both Shias and Sunnis, amending the dissolution of the Muslim marriage act to allow adultery as a grounds for divorce. Women should be governed and not placed in a position to depend on men, promoting self-dependence through education and gender equality. Personal laws reflect patriarchal culture, rooted in women’s inability to depend on men. Religious personal laws encourage the dowry system, indicating discrimination towards women. This leads to social issues like domestic violence towards wives. Women of this century demand equal treatment as men. A uniform civil code can be formed, emphasizing gender equality and human rights. This common set of laws would promote national integration, secularism, gender equality, and social justice, eliminating disparities, ensuring equal rights and protection for all citizens, and contributing to the harmonious coexistence of different religious communities. Joint efforts and the formation of a uniform civil code can help achieve this goal.
FAQs
What is the difference between personal law and civil law?
Personal law governs matters related to marriage, divorce, inheritance, and adoption, based on religious affiliations. Civil law deals with general legal matters applicable to all citizens, regardless of religion.
Can Muslim women challenge personal law in India?
Yes, Muslim women can challenge discriminatory provisions of personal law through the judicial system by invoking fundamental rights guaranteed by the Indian Constitution.
What are the major challenges faced by Muslim women in India?
Some of the major challenges include issues related to marriage, divorce, maintenance, and property rights, often stemming from discriminatory provisions in personal law.
What is the role of the judiciary in addressing these issues?
The judiciary has played a crucial role in interpreting personal laws in light of constitutional principles. However, the effectiveness of judicial interventions has been limited due to various factors.
What are the potential solutions to the problems faced by Muslim women?
Potential solutions include reforming personal laws, implementing a uniform civil code, and strengthening enforcement mechanisms to ensure compliance with existing laws
