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EQUALITY IN THE MUSLIM LAW OF MARRIAGE

INTRODUCTION

In India, there exist a variety of religion personal laws. However, the status of women is a major source of worry, as religion personal rules portray women as second-class citizens to men. Women are confronted with a plethora of inequalities, which result in a slew of roadblocks along the way. The current study focuses on the inequalities that a Muslim woman confronts as a result of religion personal regulations. Due to these differences, it is impossible for a Muslim woman to live a life of self-respect and dignity. These discrepancies and inequalities obstruct community’s progress in the reverse direction. To achieve something, Muslim women must fight against these inequalities. Things change over time, but people’s attitudes against Muslim women is hard to change. Despite the fact that significant progress has been made in civil laws, the existence of personal laws prevents Muslim women from living a life on their own terms and conditions.

The “Muslim Personal Law (Shariat) Application Act, 1937”[1], and “the Dissolution of Muslim Marriage Act, 1939”[2], are two key pre-independence pieces of legislation affecting Muslims. The Shariat Act serves as a source of confirmation for the application of Shariat law to Muslims in matters such as marriage, divorce, child support, adoption, and succession. “Given the ongoing debate in India regarding the enactment of a common civil code for all communities under the guise of claimed oppression of Muslim women by the application of Shariat to them, it is critical that we grasp what applying Shariat to Indian women entails.”[3]

WOMEN IN MUSLIM LAW AND THE BIASNESS

Islam connotes tranquillity and submission. Agnes (2004) defines Islam as a “religion of peace and obedience. Shari’ah is an Arabic word that meaning the Path to Be Followed, referring to a number of legal injunctions known as Islamic law. The Quran, which Muslims consider to be God’s teachings, is the basic source of Islamic law. Despite the fact that the Quran contains legal prescriptions, it is more concerned with basic ethical concepts and guidelines than with specific directions”[4]. As a result, various texts are used to augment the Quran and “form the basis of Sharia . Islam established a system in which there would be no discrimination between men and women and that they would have equal rights, but the fact is that this is only revered. The scriptural, i.e. Quranic proclamations, and Sharia’h formulation are vastly different. The Quranic pronouncements are wholly supernatural”[5], whereas the development of Shariah has been impacted by human reasoning on connected life situations. The Shariah is the product of people’s interpretations of those divine instructions. The cardinal concept is distinct from Shariah, which we introduced. In this patriarchal society, women are myrmidons to men. The transcendental divine spirit was conveniently overlooked, and the current condition was excused using Quranic statements in context.

(i). Marriage age: “There is no age limit for marriage in Islam. Marriage age is determined by puberty, which can vary. As a result, girls who develop early may marry young. So, rather than age, marriage is based on the biological qualities of the females, which is unjustified. In Yunusbhai Usmanbhai Shaikh v. State of Gujara”[6] , Justice J.B. Padriwala said,

 “According to the personal law of Muslims, the girl, no sooner she attains puberty or completes 15 years of age, whichever is earlier, is competent to get married.”[7]

(ii). Marriage witnesses: “A proposal and acceptance should be made in the presence and hearing of two adult male witnesses or one male and two female witnesses among Sunnis. That is, under the law, a single guy has the same status as two women”[8]. Discrimination like this is really obnoxious to a woman. In Abdullah v. Beepathu[9], the Court held

“…the marriage invalid as there were two female witnesses only. That means as per the above law a single man has an equal status to two women. A woman is half to a man which is nothing but sheer discrimination.”[10]

(iii). “The purpose of marriage: In Islam, marital preference is given to men. Marriages exist to provide man with comfort and pleasure, to prevent debauchery and rapes, and to produce children”[11]. Women appear to be treated in the same way as men treat objects. After marriage, women are not treated with the respect they deserve.

(iv). Freedom of “consent to marriage: She has no rights, including the right to choose her husband and control her own fate. She is unable to express her wish to marry a specific individual.”[12]

(v.) Mahr: “In Muslim personal law, marriage is similar to a contract. There is no such rule for the boy’s side when mahr is offered from the girl’s side at the time of marriage. There is a gender divide”.[13]

(vi) Polygamy: Polygamy is a difficult issue in Islam. It’s an example of how patriarchal interpretation can win out and take control. “You marry two, three, or four wives, but not more: yet if you cannot act fairly and justly with all, you shall marry just one” sanctioned polygamy among Muslims. “A Muslim man may marry up to four wives, but a Muslim woman may only marry one husband; if she marries another husband, she is guilty of bigamy under section 494 of the Indian Penal Code, and the children born of such a marriage are illegitimate. The argument behind polygamy is that it is preferable for a man to have another lawfully wedded wife during pregnancy or menstruation than to resort to other women. Monogamy encourages the establishment of prostitution.”[14] For a woman, these humbugs are truly humiliating and demeaning. In “State of Bombay v. Narasu Appa Mali[15] , Chagla, C.J. observed

 “There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even section 494, Penal Code, which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslim men because polygamy is recognized as a valid institution when a Muslim male marries more than one wife[16]

vii. Divorce: “The power of the husband to divorce his wife was unrestricted. If it was enough to draught a bill of divorcement and discharge the wife for no reason, the wife would have no ability to divorce her husband, petition to the judge, or be released from an enslaving bondage. The process of divorcing the wife by pronouncing triple “Talaq” by the husband is very discriminatory. The Allahabad High Court recently ruled that the triple Talaq’s practises are illegal and void”[17]. According to Muslim Law, any husband who is of sound mind and has reached puberty has the right to divorce his wife at any time, for any cause, at his whim or caprice. In Muslim law, a woman does not have an absolute right to divorce. Only in limited circumstances does she have that right.

viii. Maintenance: The divorced – “Muslim wife is not expected to be maintained beyond the ‘Iddat’ period in terms of maintenance”[18].

CONCLUSION AND SUGGESTION

Gender disparity in India derives from a deep-seated cultural patriarchy that manifests itself in the framework of property rights, with no religious underpinning. Discriminatory legislation reinforces this imbalance. Gender inequality are mostly caused by a deeply established patriarchal attitude that pervades Indian society and cuts across religious lines. In the given current socio-political landscape in the country, the legislation of “dissolution of a Muslim marriage at the request of the wife has some characteristics, which contributes to the perceptible conceptions of gender inequality in Islam. Even though the Shayra Bano decision has provided a ray of hope that as misconceptions”[19] regarding talaq fade away, , it remains to be seen how the community reacts to the decision.

The primary reason for Muslim women’s deplorable conditions in India remains their failure to assert rights that Shariat already grants them. This lack of assertion of rights is due to Muslims’ utter ignorance particularly among women. Popular beliefs in the media portraying  harsh condition to women do not aid women at all; rather, they perpetuate the patriarchy already present in society. The situation is exacerbated by the lack of codification of Muslim personal law. In the absence of codification, a discussion is nearly impossible. It is critical that Muslims in India, including men and women, are educated in order to reduce the gender disparities that present in society.

“Women are effectively oppressed by religious personal laws. Males have the upper hand over females. As a result, universal uniform legislation for all religions should be established in order to better the status of women. Education is a path that can lead to women’s equality, because whenever a taboo takes hold of society, education plays a critical part[20] in bringing it back to its feet. As a result, being an educated woman can boost one’s standing, and an educated society will consider everyone’s rights. The elimination of taboos and societal issues can be accomplished by raising public knowledge of men and women’s equal standing. Allow women to fly in the sky by removing the oppression they face and instilling fresh hopes, goals, and aspirations in their lives.

Author(s) Name: Pratik Maitra (Symbiosis Law School, Hyderabad)

References:

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

[2] the Dissolution of Muslim Marriage Act, 1939

[3] Subramanian, N. (2008). Legal Change and Gender Inequality: Changes in Muslim Family Law in India. Law & Social Inquiry33(3), 631–672. http://www.jstor.org/stable/20108777

[4] Ahmad, F. (2015). UNDERSTANDING ISLAMIC LAW IN INDIA: AN ASSESSMENT OF THE CONTRIBUTION OF JUSTICE V.R. KRISHNA IYER: A TRIBUTE. Journal of the Indian Law Institute57(3), 307–332. http://www.jstor.org/stable/44782785

[5] Carroll, L. (1981). MUSLIM FAMILY LAW IN SOUTH ASIA: THE RIGHT TO AVOID AN ARRANGED MARRIAGE CONTRACTED DURING MINORITY. Journal of the Indian Law Institute23(2), 149–180. http://www.jstor.org/stable/43952187

[6] 2015 S.C.C. Guj. 6211

[7] 2015 S.C.C. Guj. 6211

[8] Subramanyam, V. (1999). The Practice of Consanguineous Marriages among Rural Muslims: A Study in Islampet Village of Visakhapatnam District Andhra Pradesh. Indian Anthropologist29(1), 53–63. http://www.jstor.org/stable/41919852

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

[10] Ibid

[11] Rizzo, H., Abdel-Latif, A.-H., & Meyer, K. (2007). The Relationship Between Gender Equality and Democracy: A Comparison of Arab Versus Non-Arab Muslim Societies. Sociology41(6), 1151–1170. http://www.jstor.org/stable/4285829

[12] AGNES, F. (2009). Conjugality, Property, Morality and Maintenance. Economic and Political Weekly44(44), 58–64. http://www.jstor.org/stable/25663734

[13] Rizzo, H., Abdel-Latif, A.-H., & Meyer, K. (2007). The Relationship Between Gender Equality and Democracy: A Comparison of Arab Versus Non-Arab Muslim Societies. Sociology41(6), 1151–1170. http://www.jstor.org/stable/4285829

[14] Ahmad, S. E. U. (2017). CUSTOMARY PRACTICES AND MUSLIM PERSONAL LAW IN COLONIAL INDIA. Proceedings of the Indian History Congress78, 643–651. https://www.jstor.org/stable/26906136

[15] A.I.R. 1952 Bom. 84

[16] ibid

[17] Narain, V. (2013). Muslim Women’s Equality in India: Applying a Human Rights Framework. Human Rights Quarterly35(1), 91–115. http://www.jstor.org/stable/2335225

[18] Ahmad, S. E. U. (2017). CUSTOMARY PRACTICES AND MUSLIM PERSONAL LAW IN COLONIAL INDIA. Proceedings of the Indian History Congress78, 643–651. https://www.jstor.org/stable/26906136

[19] STUERS, C. V.-D. (1992). CHURI; THE FRAGILE POSITION OF WOMEN IN MUSLIM MARRIAGE IN NORTH INDIA. Bijdragen Tot de Taal-, Land- En Volkenkunde148(2), 270–286. http://www.jstor.org/stable/27864354

[20] HASAN, Z. (2010). Gender, Religion and Democratic Politics in India. Third World Quarterly31(6), 939–954. http://www.jstor.org/stable/27896590