Legal Rights of Muslim Women
Author: Ms. Upasana Borah
The topic of Muslim’s women is vast. Today, the issues of women rights in Muslim personal law is highly controversial. Specially, Muslim women rights relating to Marriage, Triple Talaq, Inheritance, and Maintenance. However, women’s inequality is God’s commandment, in Islam enshrined in immutable law by Mohammad and eventually recorded in scripture. The status of women in different human societies of the world is different. Whether, it is developed, developing or underdeveloped societies, women inhabit an inimitable position. Nearly all human societies in diverse parts of the world are male-dominated. Male are active part and females are a passive part of the society. Islam is the first religion in the world that recognizes women as a legal entity and gave her all rights that men enjoyed. Islam brought about the freeing of women from bondage and gave her identical rights and recognized her uniqueness as a human being. Islam improved the status of women by instituting rights of possessions, ownership, inheritance, education, marriage, and divorce. The Qur’an came out with a thorough declaration that men and women are equal and women’s rights are equal to their duties. Till today, because of conflict on the part of the ulama and jurist, this basic principle continues to be in the midpoint.
Marriage Under Personal Law
Marriage (Nikah) is defined to be a contract which has for its object the breeding and the legalizing of children. The foundation of marriage in Islam has three aspects: Legal, Social, and religious. Legally, it is a contract and not a forfeit. The social aspect of marriage has three important factors: Islamic law gives to the women an undoubtedly high social status after marriage; He confidently enjoined marriage to all those who could afford it. In fact, marriage is an indication of a gift of Allah. In India, Marriage among all sets of Muslims is usually solemnized by persons familiar with the requirement of law and they are chosen as Kazis or Mullas. Two persons, formally allotted for the purpose, act on behalf of the contracting parties, with certain figures of witness. The Qur’an depiction of man and woman in marriage: “They are your apparels and you are their apparels”, implies proximity support and equality. “And they (women) have rights alike to those against them in a just manner”.
Divorce (Talaq) Under Personal Law
Muslim intellectuals are to initiate measures for drafting a comprehensive law duly codified which will embody the Quran spirit. Triple Divorce and unregulated polygamy have often been the cause of attacks on otherwise quite progressive Islamic personal law. Polygamy may not be abolished completely but strictly regulated as directed by the Quran. The other major trouble is that of triple divorce in one session. This form of divorce has really caused a lot of misery to a huge number of Muslim women in India the Prophet reserved the power of divorce overcome by husband and gave to the women the right to obtaining partition on reasonable ground.
Property Rights Of Muslim Women
Much similar to those of women of any further country, property rights of Indian Muslim women have evolved out of abiding struggle linking the grade quoits and the progressive forces. Indian Muslim women always used to get fewer rights in terms of the right to property in contrast to males. Muslim personal law had not codified their property rights of Muslim women neither the Shias nor the Sunnis. However, Ma-hr is a key concept in Islamic law which is unswervingly connected with the right to property of the Muslim women and the empowerment of the women. Mahr is basically is called as a present which becomes due to a Muslim husband to his wife on marriage as a token of admiration symbolizing his honesty and love for her.
Maintenance And Inheritance For Muslim Women Under Personal Law
The personal law statutes governing a Muslim woman’s right to maintenance are the Dissolution of Muslim Marriage act, 1939, and the Muslim women (protection of right on Divorce) Act, 1986. The Muslim law of Maintenance differs from the law of maintenance in most other systems of law, expect wife, in most of the cases the obligation of a Muslim to maintain another arise only if the claimant has no means or assets out of which he or she can maintain herself or himself. Under the Muslim law, this is the duty of the husband to maintain his wife, irrespective of her debt against the husband and has priority over the right of all other persons to receive maintenance. Maintenance is called Nafqah, it includes food, raiment, and lodging and other essential requirements for livelihood.
Divorced wife right to maintenance:
Reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband
1. A Muslim has a personal obligation to maintain his children but it is not an absolute obligation.
2. A father is bound to maintain his female children until they are married.
3. A Muslim widow has no right to maintenance out of her husband’s estate in addition to what she got by inheritance as his wife.
In 1986, The Muslim women (Protection of right on divorce) Act was passed. The Act has consolidated and coordinated the different schools of the Muslim law in the stuff of payment of maintenance to the wife on divorce. The preamble of the Act spells out the objectives of the act as the protection of the right of Muslim women who have been separated by, or have obtained a divorce from, their husband Sec. 3 of the Act speaks of ‘provision and maintenance’ while Sec. 4 talks only of maintenance.
According to the Islamic law of inheritance, the person’s sex, age, or order of birth or marital position does not comprise an obstacle to inheritance. In this organization, no division was made between father and mother, first-born child and last-born sons. Whatever disparity in share there was amid the hires, it was proposed to correspond with their particular responsibility and obligations, according to the lineal immediacy. The computation back of this was that if in his life span the deceased were in need, the nearby relative’s children and parents- would be called upon former to hold up before those less closely related, such as grandchildren and grandparents.
“Rights of inheritance respite upon the two principal bases of marriage and blood relationship with the decedent”. As an upshot, and because women are a major part of the Muslim family, women are integrated into the Islamic law of inheritance.
Status of Women in Indian Society
The worth of a civilization can be judged by the place given to women in society. One of several factors that justify the greatness of India’s ancient culture is the honorable place granted to women. The Muslim influence on India caused considerable deterioration in the status of women. They were deprived of their rights to equality with men. There is no denying the fact that women in India have made considerable progress in the last fifty years but yet they have to struggle against many handicaps and social evils in the male-dominated society.
Features of Muslim Women (Protection of Rights on marriage) ordinance 2018:-
The bill makes instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS, and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK, and IUML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in the Lok Sabha by law minister Ravi Shankar Prasad.. The bill faced stiff resistance in the Rajya Sabha. Several Opposition lawmakers called for it to be sent to a select committee for close scrutiny. The bill was finally passed by Lok Sabha on 27th December 2018 with strong support.
- The president of India has recently on September 19, 2018, in the exercise of the power conferred on him under Article 123(1) of the Constitution of India promulgated an ordinance named Muslim Women (Protection of Rights on marriage) ordinance 2018 for protecting the rights of Married Muslim women in India.
- The president has used this power because the Muslim Women (protection of rights on marriage) bill 2017 has been passed in Lok Sabha but it has not yet been passed by the Rajya Sabha.
The main objective of this ordinance is to declare the practice of Triple Talaq or the instant Talaq void. The practice of Triple Talaq was continuing even after the verdict given by the supreme court in Shayara Bano vs Union of India which rendered the act of giving instantaneous Talaq unconstitutional and invalid.
Triple Talaq, also known as talaq-e-biddat, instant divorce and talaq-e-mughallazah (irrevocable divorce), is a form of Islamic divorce which has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. It allows any Muslim man to legally divorce his wife by stating the word talaq (the Arabic word for “divorce”) three times in oral, written, or more recently, electronic form.
Salient Features of The Ordinance:-
1. Section 3 of the ordinance says that Triple Talaq or Talaq-ul-Biddat in any of its forms shall be void and illegal.
2. Section 4 of the said ordinance provides that any Muslim husband who pronounces Triple Talaq shall be punished with imprisonment which may extend to 3 years.
3. Section 5 of the ordinance makes provision for maintenance to the wife upon whom such Talaq has been pronounced as decided by judicial magistrate first class.
4. Section 7 declares the offence to be cognizable and non-bailable. The complaint may be made to the police officer by such women upon whom such Talaq has been pronounced or by any person related to her by blood.
5. The offence under this ordinance has been made compoundable on the insistence of wife and the accused can be given bail only after hearing such a wife.
The said ordinance could be misused by Muslim women and they can use it as a tool against the husband even when the husband has not done anything. This ordinance does not provide for an investigation into the facts whether Triple Talaq has really been pronounced.
When Triple Talaq was valid in India, before the judgment of the supreme court in the case of Shayara Bano v/s Union of India there was no requirement of any witnesses at the time of the pronouncement of Triple Talaqs by Sunni.
Rights and Legal Rights
The rights available to the woman in India can be classified into two categories.
- The Constitutional rights – The constitutional rights are those which are provided in the various provisions of the constitution.
- The legal rights- On the other hand, The Legal Rights are those which are provided in the various laws (acts) of the Parliament and the State Legislatures.
The rights and safeguards enshrined in the Constitution for women in India are listed below:
- The state shall not discriminate against any citizen of India on the ground of sex [Article 15(1)].
- The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favour of women [Article 15(3)].
- No citizen shall be discriminated against or be ineligible for any employment or office under the state on the ground of sex [Article 16(2)].
- Traffic in human beings and forced labour are prohibited [Article 23(1)].
- The state to secure for men and women equally the right to an adequate means of livelihood [Article 39(a)].
- The state to secure equal pay for equal work for both Indian men and women [Article 39(d)].
- The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength [Article 39(e)].
- The state shall make provision for securing just and humane conditions of work and maternity relief [Article 42].
- It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women [Article 51-A(e)].
- One-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women [Article 243-D(3)].
- One-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women [Article 243-D(4)].
- One-third of the total number of seats to be filled by direct election in every Municipality shall be reserved for women [Article 243-T(3)].
- The offices of Chairpersons in the Municipalities shall be reserved for women in such manner as the State Legislature may provide [Article 243-T(4)].
Legal Rights to Women:
The following various legislation contains several rights and safeguards for women:
- Protection of Women from Domestic Violence Act 2005 legislation to protect women in India from all forms of domestic violence. It also covers women who have been/are in a relationship with the abuser and are subjected to violence of any kind—physical, sexual, mental, verbal or emotional.
- Immoral Traffic (Prevention) Act (1956) is the premier legislation for the prevention of trafficking for commercial sexual exploitation. In other words, it prevents trafficking in women and girls for the purpose of prostitution as an organized means of living.
- Indecent Representation of Women (Prohibition) Act (1986) prohibits indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.
- Commission of Sati (Prevention) Act (1987) provides for the more effective prevention of the commission of sati and its glorification on women.
- Dowry Prohibition Act (1961) prohibits the giving or taking of dowry at or before or any time after the marriage from women.
- Maternity Benefit Act (1961) regulates the employment of women in certain establishments for certain periods before and after childbirth and provides for maternity benefit and certain other benefits.
- Medical Termination of Pregnancy Act (1971) provides for the termination of certain pregnancies by registered medical practitioners on humanitarian and medical grounds.
- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994)prohibits sex selection before or after conception and prevents the misuse of pre-natal diagnostic techniques for sex determination leading to female foeticide.
- Equal Remuneration Act (1976) provides for payment of equal remuneration to both men and women workers for the same work or work of a similar nature. It also prevents discrimination on the ground of sex, against women in recruitment and service conditions.
- Dissolution of Muslim Marriages Act (1939) grants a Muslim wife the right to seek the dissolution of her marriage.
- Muslim Women (Protection of Rights on Divorce) Act (1986)protects the rights of Muslim women who have been divorced by or have obtained a divorce from their husbands.
- Family Courts Act (1984) provides for the establishment of Family Courts for speedy settlement of family disputes.
- Indian Penal Code (1860) contains provisions to protect Indian women from dowry death, rape, kidnapping, cruelty and other offences.
- Code of Criminal Procedure (1973) has certain safeguards for women like the obligation of a person to maintain his wife, arrest of a woman by female police and so on.
- Indian Christian Marriage Act (1872) contains provisions relating to marriage and divorce among the Christian community.
- Legal Services Authorities Act (1987) provides for free legal services to Indian women.
- Hindu Marriage Act (1955) introduced monogamy and allowed divorce on certain specified grounds. It provided equal rights to Indian men and women in respect of marriage and divorce.
- Hindu Succession Act (1956) recognizes the right of women to inherit parental property equally with men.
- Minimum Wages Act (1948) does not allow discrimination between male and female workers or different minimum wages for them.
- Mines Act (1952) and Factories Act (1948) prohibits the employment of women between 7 P.M. to 6 A.M. in mines and factories and provides for their safety and welfare.
- The following other legislation also contains certain rights and safeguards for women:
- Employees’ State Insurance Act (1948)
- Plantation Labour Act (1951)
- Bonded Labour System (Abolition) Act (1976)
- Legal Practitioners (Women) Act (1923)
- Indian Succession Act (1925)
- Indian Divorce Act (1869)
- Parsi Marriage and Divorce Act (1936)
- Special Marriage Act (1954)
- Foreign Marriage Act (1969)
- Indian Evidence Act (1872)
- Hindu Adoptions and Maintenance Act (1956).
- National Commission for Women Act (1990) provided for the establishment of a National Commission for Women to study and monitor all matters relating to the constitutional and legal rights and safeguards of women.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal). Act (2013)provides protection to women from sexual harassment at all workplaces both in public and private sectors, whether organized or unorganized.
Islam has raised women’s status in society by issuing many laws but apart from that still a woman suffers. Family is most important for Muslim women like any other woman. While our constitution had granted Equality before Law and Equal protection of Law than why Muslim women become an issue. They should be treated equally. No person is above the law and nor is it below it. Every person is subject to the law. However Muslim Personal Law is not modified to the extent of Hindu Law and the State of J&K. Many of the cases given in the higher judiciary are been much healthier and satisfactory. The parliament should enact laws regarding the protection of women of each religion. They should be given much focus in developing the growth of women promoting their education and making them to the pride and honour.