PROTECTIVE UMBRELLA OF LAW vis-à-vis MUSLIM WOMEN
Family law or personal law is that branch of civil law that deals with or governs relations of among the members of the family or we can say that it deals with personal family matters of an individual like marriage, dowry, and dissolution of marriage, guardianship, adoption, maintenance, inheritance, and succession. These laws not help in defining a relationship between a man and women but also helps in determining the relationship between women and the State. The Quran, which is considered as the primary source of Muslim law, have already discussed transformation in the conditions of women fourteen hundred years ago that would improve the situation, however these transformations have not been practiced by the Muslim society in the current times. In spite of the fact that the Islam as appeared to Prophet Mohammad isn’t oppressive to women its rendition enacted in the family law, and day to day activities is controlled by males. Unfortunately, women for the sake of religion and socio-cultural practices, many a times have been prevented for claiming opportunities of development and uniformity of genders (Shima Azizi, 2017). This prevention at times points towards a question, whether the Muslim women have the same status as the Muslim men in regard to family or personal matters? The answer to this question is that women are yet treated according the older beliefs and are considered secondary to men.
A women is guaranteed with equal rights in regard to family matters under various provisions laid down by international organizations in respect to human rights. According to the Article 23 of the International Covenant on Civil and political Rights, “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and no marriage shall be entered into unless full consent of the intending spouses. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage during marriage and at its dissolution.” (CCPR General comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses, 2020)Article 16 of Universal Declaration of human Rights expressly states that men and women have the right to marry and can own a family without any kind of restrictions thus prohibiting forced marriages of girls. Article 16 of CEDAW states that “the States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women, the same right to enter into marriage, to choose a spouse and to enter into marriage only with their free and full consent, The same rights and responsibilities during marriage and at its dissolution, the same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation, the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.” (Shima Azizi, 2017)
In India various laws have been established so as to give protection to women, however the heterogeneity in the religious and social practices does not permit for a homogenous civil law. The Constitution of India, provides knowledge regarding the provisions laid down for women which is intricate structure to guarantee equality amongst its citizens. The constitution not only guarantees equality to the citizens, Under Article 14, “The State shall not deny to any person Equality before the law or the equal protection of the laws within the territory of India”, but also “Article 15(1): Prohibits the discrimination on the grounds of religion, race, caste, sex, place of birth or any of them” moreover, there are other articles under the constitution that guarantee fundamental rights of women such as article 15(3)(1), article 16(2), article 39(a). These articles provide equality to women in all fields. However, nothing in these Articles shall prevent the state from making any other special provisions for women and children. Thus, criminal and civil law are secular, while the personal laws are administered by respective religious beliefs. Hence we can say that religion and personal laws go hand in hand, and each religion and tribal community have their own laws that are formulated in accordance to their customs and practices. Although Article 44 of the constitution provides for the aspiration of having a uniform civil code in family and personal matters and therefore is not enforceable by a court of law. Both Hindu and Muslim laws have laws formulated in accordance to their religion specifications, and the local customs and practices. Both the laws do not differentiate much with each other in moral, custom and law.
Islamic law originates from the moral and religious law basically grounded on the provisions laid down in the Islamic religious text, the Quran and the models or examples set by Islamic Prophet Muhammad in the Sunnah. Due to these provisions laid down in the Quran and Sunnah, child marriages are supported, however there is a prohibition that is being laid under the Child Marriage Act which states that a girl in India can’t get married before she attains the age of 18 and for a boy it is 21 years, apart from this there are practices like one sided divorce and polygamy in Muslim community. Islamic beliefs states that marriage is an initial phase in making a family, and referred to it as an agreement which might be permanent or temporary and it also allows a Muslim male to have four wives if he treats all of them equally. There ought to a proposition or offer, made by or either by the parties or on behalf of them, this is the condition required for a valid marriage under Muslim law. On account of polygamy, personal laws for Hindus and Christians forbid polygamy and it is condemned by the Penal Code for non- Muslims, it is reasonable for the individuals who are secured by the Muslim Personal Law and the dissolution of marriage can occur either by the procedure of divorce or death of the spouse.
Muslim Marriage Act has a procedure laid down for separation under the Dissolution of Muslim Marriage Act 1939. Both men and women, parties to the marriage contract have an opinion for divorce, yet the rights of the wife in this is secondary as compared to the men. Under the Muslim law, a husband can get divorced from his wife without giving a valid reason of the divorce he just needs to pronounce “talaq” thrice and the marriage agreement comes to an end. Although a divorce can be taken by a mutual agreement but the consent of wife does not play a significant role as mere her consent cannot initiate the procedure of divorce under Islamic law. But she can buy her divorce from her husband and can get divorced from her husband through the process of delegation. But the matter of divorce by wife have various exceptions. These exceptions have evolved from various cases like in case of Noor Jahan Bibi V. Kajim Ali, wife of the defendant filed a suit against her husband Kajim Ali who accused that her behavior was not acceptable and even though she had a husband she was having a relationship with Ashgar Ali and has committed adultery with him. In this case it was held that the doctrine of lian is not absolute in the Muslim law and therefore a Muslim wife can bring a suit for divorce against her husband on the ground that the her husband has charged her with false adultery under section 2 (ix) of the Dissolution of Muslim Marriage Act,1939. Moreover, In the case of M.B. Raheem V. Shumsoonnissa Begum, the Privy Council saw that wherein the husband discarded the property of her wife, then limited her to a room as if she was kept in a prison and misbehaved with his wife. The plaintiff in the court argued that as far as the Muslim law is concerned a wife under no circumstances has a right to live separately from her husband. It was held that if under the Muslim law if a wife cannot separate herself from her husband then such law would be a clear violation of the principles of natural justice. Therefore, the Privy Council upheld the principles of natural justice and decided the case in the favor of the wife. Thus we can say that when a husband has a lot more rights than the wife, it is deemed as the natural justice violation.
The Muslim Women (Protection of Rights on Divorce) Act 1986, lays down provision for maintenance. According to section 3 of the act a divorced women has the right to get a reasonable and fair amount of maintenance from her husband after divorce. The amount should be equal to the sum of mahr or dower agreed to be paid to her at the time at the time of marriage or any time thereafter according to the Muslim law. This amount also includes the properties that she was given before the marriage or after the marriage by her relatives or friends or husband or any relatives of the husband and relatives. If the husband fails to provide her the above mentioned the magistrate can order the payment of the same. This payment needs to be given during the period iddat. Apart from this a divorced Muslim woman who is unable to maintain herself can directly claim maintenance from the State Wakf Board under section 4 of the act and under the same section she can plead inability of her relatives to maintain her. Relatives can be added to the process of the case if they have the capability to maintain the divorced women. This was held in T.N. Wakf Board V. Syed Fatima Nachi. A divorced women even has the right to claim maintenance under section 125 of the Cr.PC even beyond the period of iddat.
Many scholars belief that in 1973, the amendment that was being made with regard to the rights of the divorced women under section 125 of the Criminal Procedure Code. After the amendment the term wife under the section also included divorced wife. This led to protests by the Muslim League as they felt that the amendment was a violation of the Muslim Personal Law. The amendment further excluded Muslim women from the ambit of the section 125 if the wife has already received the maintenance due to them by their husbands.
In the light of this issue a famous case came into existence as the Shah Bano Case in 1986, the case opened gates for the legislative amendments in the Shariat Act which wasn’t amended since 1937. After this case the Dissolution of Muslim Marriage Act 1939 again came into existence.
In this case it was held that even though the Muslim Law limits the liability of the husband to pay maintenance to his divorced wife till the period of iddat but if the wife is unable to maintain herself after the expiration of the iddat period, she has the right to claim maintenance under section 125 of the Cr.PC. However the ruling given by the court was opposed by prominent Muslim leaders, who claimed that the judiciary was trying to violate their personal laws and if such a decision from the court is passed it would ultimately lead suppressing the Muslim law and superseding the Hindu law. During such protests the government of India, at that time Congress party was under great pressure to pass a law for the Muslim society. In such circumstances the government came up with the Muslim Women’s (Protection of Rights upon Divorce) Act 1986. Thus the act provided protection to the divorced Muslim women. Instances can be made evident from the case of Daniel
Latifi V. Union of India it was held that section 3(1)(a) of the Muslim Women’s (Protection of Rights upon Divorce) Act 1986 makes a husband liable to provide for maintenance to his wife even after the expiration of the iddat period. This maintenance given by the husband shall be continued till the time she gets remarried. This was again upheld in the case of Sabra Shamin V. Maqsood Ansari.
In order to understand more about the concept of marriage under Muslim law we need to understand the relationship between polygamy and dissolution of marriage under the law, in the case of Abdul Azeem v. Fahimunnisa Begum, the wife filed a suit against her husband stating that their marriage has been dissolved and the husband has failed to pay her maintenance for two years. In this case the wife had been living with her parents and the husband got married again. The court held that under Muslim law polygamy is permitted and staying away from her husband cannot be the sole ground of dissolution of marriage under Muslim law. Maintenance shall be awarded only when other factors of dissolution are fulfilled. Therefore considering upon the case it can be concluded that polygamy cannot be the reason for Dissolution of marriage under Muslim Personal law. The same kind of judgment was given in the case of Munnawarbai v. Sabir Mohammad, under this case the wife left his husband’s house without any justifiable reason and then asked for maintenance of the dissolution of marriage. The court held that the wife is not entitled to maintenance under section 2 (ii) of the Dissolution of Muslim Marriage Act, 1939. In 2006, the rape case of a Muslim woman named Imrana came into picture. In this the woman was being raped by her father-in-law. Some of the Muslim activists were in favor of getting her married to her father-in-law this caused a widespread protests and finally the decree was given by the court, sentencing ten years of imprisonment to her father-in-law. The decision given by the judiciary was largely accepted by women groups and the All India Muslim Personal Law Board.
Under Muslim law, the women has the right to have the custody of the children and the right to have the custody of her children cannot be taken away from her until and unless her conduct inappropriate or is found guilty of misconduct and is being disqualified by law to have the custody rights of the children. Under Islamic rule, this right is known as hizanat and the same can be enforced against the father of the children or any other person who claims for the custody. Under the Hanafis, a Muslim mother can have her son’s custody until the age of 7 years and in case of daughters the custody is with the mother until the daughter attains the age of puberty. Under Shia law the mother has the custody right of her son until the son is weaned and for the cases under malikis, shafiis and hanabails the right of the mother to have custody of her son until he attains the age of puberty. Under Shia law the daughter’s custody rights are foregone by the mother once the daughter reaches the age of 7 years while in the case while in the case of malikis, Shafiis and hanabails the mother has the custody right of her daughter until she gets married. While determining the custody rights, the welfare of the child is kept in mind. Thus the right of hizannat is not an absolute right of the mother. In cases where the mother is being disqualified from her custody rights, the father of the child can be given the rights of hizanat. Therefore, on economic grounds or on the ground of having some kind of disability a Muslim women cannot be deprived of having the guardianship of her child because in all circumstances it is the responsibility of the father to provide maintenance for the child, whether legitimate or illegitimate and even irrespective of the fact who has the guardianship rights.
In regards to the rule of inheritance under Muslim Personal Law, a widow and the daughters of the family have a right to inherit the family lands, but in cases of death of a wife, the husband has the right to inherit to the property of the women not more than 1/4th of the total property of the women. Such a scenario occurs in cases where the son of the deceased is present or child of the son is present; but in cases like, where the son or such a son that is being mentioned above of the deceased wife is not present; then the husband in such a situation is entitled to have 1/2nd of the total property of the wife. In cases where the husband dies and there are children out of that marriage. In such cases the wife is entitled to have1/8th property of the husband and in cases where there are no children then the wife is entitled to have 1/4th of the property. Thus the share of the Muslim women over the property of the deceased husband increases. Therefore, the Muslim Law clearly states the amount of property a Muslim women is entitled to have but the law also puts restriction on the sale of the property. According to this, only 1/3rd property of the total property can be sold.
During marriage, a Muslim women is given a Mehr. This Meher is the amount given to women by her husband in consideration of the marriage. This amount can be used by the women without any interference or restriction. Thus we can say that the position of Muslim women showcase much more secure environment regarding the property rights but the amount of inheritance varies that from a men, thus inequality prevails in the community. But the fact cannot be neglected that the financial position of a Muslim women is much better than that of any other religious community as the Islamic law mentions provisions regarding the rights over the property and the same is being practiced in the community without any negligence.
With respect to global responsibility of India, India has endorsed Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which maintains the standard of balance among people in the family. India has additionally entered the accompanying reservations on Articles 5a11 and 1612 of same convention. With respect to these two, the Government of India announced that it will submit to and guarantee these provisions in similarity with its strategy of neutrality in the individual issues of any network without its drive and assent and as to Article 16(2), the Government of India proclaims that however on a basic level it completely supports the standard of mandatory registration of marriages, it isn't pragmatic in an immense nation like India with its large range of customs, religions and levels of literacy.
All in all, Islam has brought women status up in the general public by giving numerous laws to ensure her and give her a respectable and honorable life. Muslim personal laws has given differing rights to Muslim ladies, for example, inclination in marriage, inheritance etc. Islamic law provides for the women an unquestionably high societal position after marriage. The Muslim lady has the freedom of conjugal decision, her consent is imperative for the legitimacy of the marriage contract. The Islamic laws have acknowledged ladies as free and dependable citizen. The other significant difficulty is that of triple separation in one meeting. This type of separation has truly made a great deal of hopelessness in a large number of Muslim women in India. The Prophet saved the intensity of divorce by husband and provided for the women the privilege of getting separated from her husband on reasonable ground. The divorced wife has freedom to get support and settlement till her time of iddat lapses from her husband. Indian Muslim women constantly used to get less rights as far as right to property as opposed to male. As we are aware with the fact that Muslims personal law have not arranged their property privileges of Muslim women neither the Shias nor the Sunnis. However, Ma-hr is a key idea in Islamic law which is unswerving associated with the privilege to property of the Muslim women and strengthening them.
The introduction of the Act illuminates the targets of the go about as 'the assurance of the privilege of Muslim women who have been isolated by, or have gotten separated from, their husband 'Sec. 3 of the Act talks about 'provision and maintenance' while Sec. 4 talks just of maintenance. One of the most significant changes that Islam made on the general public is giving women the privilege of inheritance. A lot of inheritance may be progressively, less, or equivalent to a man's offer, contingent upon the case and the amount that the family members can endure and their connection to the decedent. Besides, Islam is the only religion that gives ladies reasonable privileges of legacy. The reaction of the legal executive on the status on ladies under the Muslim Personal law has been reluctant. A considerable lot of the cases give the instinct that the judiciary has been sound and has actively taken part in giving judgments in the Muslim Personal law. It is fascinating to take note of that, there have been significant decisions positive for Muslim women regardless of whether not in milestone classification, yet entirely impressive.
References
CCPR General comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses. (2020, may 5). Retrieved from https://www.refworld.org/: https://www.refworld.org/pdfid/45139bd74.pdf
Shima Azizi, S. B. (2017). EFFECTIVE PROTECTION OF MUSLIM WOMEN UNDER FAMILY LAW IN IRAN AND INDIA. EPRA International Journal of Economic and Business Review .
NAME OF THE AUTHOR – ANSHUL VERMA
NAME OF THE COLLEGE – AMITY UNIVERSITY , UTTAR PRADESH