Muslim Women's Views on Muslim Personal Law
Zakia Soman and Dr.Noorjehan Safia Niaz
A survey of Muslim women and their
views on Muslim personal law reveals that the women feel the rights enshrined
in the Quran have not reached them; an overwhelming number of the women want
personal law to be reformed. As it exists today, Muslim family law is piecemeal
and disjointed and neither the community nor the government has tried to make
it comprehensive.
The Sachar Committee1 was
established in 2005 to study the socio-economic condition of Indian Muslims.
The findings of this committee showed how India’s largest minority lagged
behind educationally, economically and socially. The committee carried out
extensive research, studying the conditions of the community in the run-up to
its final report. However, the terms of reference of the Sachar Committee did
not include a look at the socio-economic condition of Muslim women and their
status vis-à-vis Muslim personal law. There has not been any data collection or
evidence gathering by any government agency or social organisation that could
be found in the public domain. The situation of Muslim women inmatters of
family and marriage remains anuncharted area that requires empirical probing in
order to understand it and also to move towardsgender-just solutions to the
problems they face.
In 2013, the Bharatiya Muslim Mahila
Andolan2 conducted a national study on the Muslim women’s condition
as well as views on reforms in Muslim personal law. This article is based upon
the key findings of this study.3
The objectives of the study were to
study the conditions of Muslim women pertaining to issues of family law; toascertain
their views on Muslim family law and to develop evidence in support of
codification of Muslim family law.
For the study, 4,710 Muslim women
from the 10 states of Bihar, Gujarat, Jharkhand, Karnataka, Maharashtra, Madhya
Pradesh, Odisha, Rajasthan,Tamil Nadu and West Bengal were contacted. A
detailed interview schedule was prepared and community-based women activists
trained to collect data did the data collection. This was done from July to
December 2013 with anaverage of 470 women per state.
A number of questions pertaining to
age of marriage, divorce, maintenance, custody of children, polygamy, property
ownership, etc, were posed to the women who gave very interesting answers. A
couple of critical conclusions can be drawn from the answers given by the
overwhelming majority of women: that the rights of women enshrined in the Quran
have not reached women in reality, and that an overwhelming number of Muslim
women demand reform inMuslim personal law as it obtains inIndia today.
Socio-economic Status
The socio-economic status of Muslim
women that came up in the researchestablished that Muslim women have a
negligible share in formal employment. Out of the 4,710 respondents in this
study, it was observed that an overwhelming 78.7% of the women were homemakers
whereas only 7.9% worked in the organised sector and the remaining 13.4% worked
in the unorganised sector. This emphasises the need forspecial measures,
including budget allocations, towards inclusion of Muslim women in the
workforce of the country. Governments and policy bodies must study this
dimension and devise policies towards inclusion.
Low Income: The annual income of 73.1% of the families was below Rs
50,000, out of which 39.1% families earned less than Rs 35,000. Only 18.3% of
thefamilies had an annual income between Rs 50,000 and Rs 1 lakh and 8.6%, that
is, 407 families had an annual income of over Rs 1 lakh indicating their
overall poor economic condition. The Sachar Committee had established the
highincidence of poverty amongst Muslims. Yet, nearly eight years since the
Sachar Committee report, there is no sign of improvement.
Age: Of the 4,710 women surveyed, 15.5% were married below the
age of 15 years, and 39.8% were married between the ages of 15–18 years. If
these figures are combined, a good 55.3% were married before the age of 18
years. Only 10.6% got married over the age of 21 years which when combined with
the above figures show that a large number of women are getting married and
perhaps starting a family at a time when women from other communities are busy
preparing for their graduation. One of the encouraging trends is that despite
early marriage, 46.5% of the women surveyed had one or two children. Only 4.9%
of the women had more than six children, 20.7%of the women had three children
closely followed by 20.8% having four–six children while 7.1% women did not
have children.
When asked about desirable age of
marriage for girls, 75% of the respondents wanted it to be above 18 years for
girls and 88% wanted boys to marry above the age of 21. It is important to note
here that age of marriage is a key factor in the life cycle of a woman and her
family.
Some conservative quarters insist on
puberty as the right age for marriage. The meaning of puberty needs to
bedefined not just in terms of physicalattributes but an overall mental and
emotional development and maturity. Marriage is an important social relation
that calls for mature handling of relatives andsocial responsibilities. Besides
the ill-effects of pregnancy on adolescent girls’ bodies, their ability to
raise children needs to be considered too. The Quran encourages comprehensive
and judicious understanding of various concepts, including puberty, and there
is no bar on delving deeper into this. Theclarity demonstrated about age of
marriage by such a large number of respondents should guide this debate and not
the rigid insistence on a narrow definition of the word puberty.
Sect: Only 4.1%, that is, 195 women surveyed belonged to the Shia
sect, while 87.6% or 4,126 women belonged to the Sunni sect. The remaining
8.3%, that is, 389 women were not aware of their sect.
Caste: Of the women surveyed, 45%, that is, 2,156 belonged to high
castefollowed by 26.2%, that is, 1,235 to the Other Backward Class (OBC) and
5.2%, that is, 245 women to the Dalit and backward castes. There were 22.8%
ofwomen who did not know which caste they belonged to.
Jurisprudence: Just over half, or55.5%, that is, 2,614 women interviewed
were under the Sunni Jamaat, followed by 10% or 473 women under the Barelvi.
Deobandi, Wahabi and Ahle-Hadees were at 5.4%, 4.1% and 4.4% respectively. Of
the total surveyed women, 20.5%, that is, 967 did not know which jurisprudence
they fell under. The data reinforces the fact that Muslims in India are not a
monolith and there is a clear diversity in terms of beliefs and practices. It
also brings out the existence of a caste system within Muslims.
Domestic Violence: This study brings out the fact that 53.2% of the surveyed
women have faced domestic violence. An overwhelming 82% women said they did not
have any property in their name and 83.9% women confirmed that their current
residence was not in their name. They did not own any property despite
ownership of property being a Quranic right.
Dispute Resolution Mechanism: Over half or53.2% women reported having faced domestic
violence at some point in their lives. Most women said they go to the family
followed by police and then to social organisations or non-governmental
organisations to complain about their domestic issues. Only 1.4% women reported
having gone to a qazi or Darul Qaza. An overwhelming 95.5%
women had not heard about the All India Muslim Personal Law Board (AIMPLB).
Mehr: Mehr is an
important Quranic right given to a Muslim woman that she can demand from her
groom. Itcan be in the form of cash or any other form such as gold, property,
etc, and it should be given to her at the time of marriage. Our findings
suggest that this important affirmative measure favouring women has been
diluted in practice. More than 40% women had received less than Rs 1,000 as
mehrwhile44% women did notreceived mehr at all. Most respondents were not aware
of the empowering provisions about mehrand that it is their right to decide the
amount. The majority or 85.7% women wanted mehr to be given at the time of
marriage while 83.9% of respondents wanted equivalent of the annual income of
the husband to be the minimum mehr amount.
Polygamy: An overwhelming majority of women surveyed, 91.7% or 4,320
women, spoke out against polygamy saying that a Muslim man should not be
allowed to have another wife during the subsistence of the first marriage. On
being probed further, 72.9%, thought that polygamy should not be allowed even
if the first wife consented. While 2,959 women said that polygamy should not be
allowed even if the first wife was ill, 2,983 women felt that polygamy should
not be allowed even if the first wife could not conceive. Husbands should not
be allowed to take widows as second wives was the view of 2,949 women. On being
asked if men should be allowed multiple marriages to balance out the sex ratio,
83.4%, that is, 3,929 women said that the husband should not be given the
permission for a second marriage irrespective of the ratio of women to men.
The views of ordinary Muslim women
on polygamy are very clear; they do not want it under any circumstances.
Divorce: Of the 525 divorced women, 65.9% were divorced orally and
78% women were divorced unilaterally. The study indicates that an overwhelming
88.3%, or 4,159 women, want the legaldivorce method to be the talaq-e-ahsan
method spread over a period of 90 days and involving negotiation and
avoiding unilateralism on the side of the husband. An overwhelming 92.1% wanted
a total ban on oral/unilateral divorce, 93% women wanted arbitration process to
be mandatory before divorce and 72.3% wanted the arbitration process to last
between three to six months. Also, 88.5% women wanted the qazi who sends notice
of oral divorce to be punished by law. On custody of children, 88.9% of
respondents wanted the mother to retain the custody while 95.6% wanted
ex-husbands to pay for children’s maintenance even if they were in the wife’s
custody. The deciding factor for custody, in the view of 92.7% of the women,
was consent and the well-being of the child.
Oral and unilateral divorce is one
of the key issues being faced by Muslim women. We have come across a high
incidence of oral divorce through various means such as uttering the word
thrice, through a post card, notice from the qazi, over the phone,
communication through relatives, etc. In several instances, the oral divorce
takes place in the absence of the wife. This practice is in violation of the
Quranic tenets of justice and is utterly unfair. It happens without any
participation by the wife or without taking her views into consideration. Most
times it happens in herabsence and yet is passed off as a valid divorce by
different shariat courts which are male-dominated bodies. It is important to
recount that a large number of women respondents called for banning this
practice.
Maintenance: Half thewomen respondents received maintenance from the
husband during the marriage but 27% reported receiving none. Almost half of the
divorced women were either being supported by their own parents or were
supporting themselves by working as they did not receive maintenance from the
husband.
Codification of Family Law: An overwhelming 83.3% women felt that their family disputes
could be resolved if a law based on Quranic principles was codified and 89%
wanted the government to intervene in helping to codify Muslim personal law.
Over 86% women wanted religious leaders to take responsibility for enabling
Muslim women to get justice in the family and wanted these leaders to support
the bringing about of a gender-just law based on the Quranic tenets of justice
and fairness. An overwhelming 86% wanted the community-based legal dispute
resolution mechanism to continue but at the same time wanted the functionaries
to be madeaccountable to law and to principles of justice. They wanted the
government to help ensure this accountability through a legal mechanism. While
88.5% women wanted a partnership between the court and the qazi,90% women
wanted qazis to be brought under legal accountability mechanisms. On legal aid,
95.4% respondents wanted Muslim women to provide legal aid to other Muslim
women.
Existing Legal Framework
Let us briefly take a look at the
existing legal framework for personal laws concerning Muslims in India. The
Britishenacted the Shariat Application Act, 1937 which was an attempt at
applying Shariat law and not customary laws to the Muslim community. This act
states that the Muslim community will be governed by the Shariat and not
customary laws. Although it states that Muslims will be governed by Shariat, it
does not specify much on aspects such as the age of marriage, divorce,
maintenance, custody of children, polygamy, etc. This is of no help to women as
it does not list the various issues that they face. In practice, followers of
different schools of thought continue to apply their own varied understanding
and interpretation of the Shariat. There are, therefore, many conflicting views
on several significant issues, especially those concerning divorce. The irony
is that each view claims to be based on theirrespective interpretations of the
Shariat. And the practice of unilateral oraldivorce continues. Several Muslim
countries have codified their laws and tried to ensure justice to women.
Severalsocio-religious communities in India, including minorities, have
codified personal laws as per their religious texts. But such a move has not
been taken up for the Muslims owing to the politics over leadership.
The Dissolution of Muslim Marriages
Act 1939gave a Muslim woman the right to seek dissolution of her marriage on
nine specified grounds. This is the only legislation enacted by the British,
which introduced a substantive codification of the divorce law. However, although
the act benefits women, it is rather piecemeal. It only lays down the grounds
on which women can seekdivorce. It does not lay down any procedure or a time
frame within which she can get a divorce. The man can divorce his wife without
assigning any reason and even in her absence. He may or may not approach the
court or any authority to seek divorce. This act does not question or restrict
the man’s unbridled right to oral triple divorce. The act deals only with
divorce and not with related matters such as maintenance, custody of children,
payment of mehr, etc. For these matters, the woman has to file separate
cases under other laws, sometimes in other courts. This law is a welcome
measure but it needs more elaboration and matters under its purview. Our findings
clearly indicate that it has not stopped Muslim women from beingdivorced
unilaterally and instantly.
The latest development in recent
times has been the Shah Bano controversy and the Muslim Women (Protection of
Rights on Divorce) Act 1986. The Shah Bano case is one of the most
significant lawsuits in the history of the Indian judicial system. The case
pioneered the Muslim women’s fight for justice on the right to claim alimony.
There was a huge uproar at the time over the right to maintenance granted by the
courts to Shah Bano. It was dubbed “interference in religious matters” by some
conservative male sections. In the aftermath, the Muslim Women (Protection of
Rights on Divorce) Act 1986 was passed byParliament.
According to this act, the husband
is liable to pay alimony during the time of iddat or for the span of
three monthsafter the divorce. In case the divorced woman has no close
relatives to lookafter her or she is incapable of providing her own
maintenance, the magistrate has the right to order the Waqf Board to take up
the responsibility of providing support to the woman and her children. The act
shifts the responsibility of maintenance from the husband to the relatives and
the Waqf Board. The husband knows that if he does not provide maintenance, he
could still control and harass his divorced wife to beg at different places for
maintenance. The husband takes responsibility for the children till they are
two years old. After that the responsibility falls on the wife to claim
maintenance for them. Theefforts by a lone woman to rightfully claim
maintenance after divorce got converted into a huge political storm and the
concerns of the woman were relegated to the background, the Quranic injunctions
on gender justice notwithstanding. Since then there has been no effort either
by the various governments or by the community to revive the process of
gender-just reforms in Muslim personal law.
These three laws exist in India in
the name of Shariat or Muslim personal law. But as is evident from our survey,
these are highly inadequate in enabling justice for women in the matters of
marriage and family. There is no codified law that covers all aspects of family
and marriage matters. In Muslim society there are multiple implementing
agencies that dispense justice in family matters. There exist Shariat courts,
qazis, muftis (religious clerics), jamaats (sect arbitration councils)
that also take in cases of family dispute. These bodies are readily accessible
and have closer contacts with the community unlike the secular court
structures. Poor people find going to a court expensive, cumbersome and time-
consuming. The community mechanisms are accessible but aredominated by men who
arbitrate and settle disputes, which more often than not go against the
interest of the women. These individuals and institutions have adopted
patriarchal, conservative and anti-women interpretations of the religious
texts. In some cases there islittlerecognition of the Constitution and the
values of justice and equality.Besides, the Muslim law being followed by these
bodies is not homogeneous and its provisions vary according to thedifferent
sects and subsects.
Furthermore, it is an amalgamation
of customary law and practices, statutory law and interpretations of the verses
of the Quran. So while a Muslim woman is required to go to the court to
seekdivorce, a Muslim man is not required to do so. He can pronounce divorce
thrice and terminate the marriage contractinstantly and unilaterally. The
presence of wife or witnesses is not required. These courts are mostly
approached by men as most of these places may not be women-friendly. However,
Muslim women do approach Shariat courts regularly with the help of male
relatives or directly. Our findings suggest that women also approach family
courts and other localised government-run legal structures but the time and
money required to pursue a legal case is beyond the reach of most women. Poor
economic conditions and lack of sustained resources necessary to approach legal
mechanism prevents them from going to court. While gender-just reforms within
the Parsi and Christian matrimonial laws have been enacted through the
initiative and support of the government, there is nopolitical will to bring
about reforms in Muslim personal law that would benefit Muslim women.
Muslim family law as it obtains
today is piecemeal and disjointed with noeffort from the community or the
government to make it comprehensive. There is no monitoring or review of
male-dominated community-based bodies for dispensing justice. As a result
Muslim women are left with no choice but to suffer the injustices done to them.
It is hoped that with increasing awareness and mobilisation of Muslim women,
their voices will be heard.
Conclusions
This study establishes that Muslim
women have been denied justice and fair treatment in matters of family and
marriage. The ground reality for an ordinary Muslim woman is quite grim despite
the Quranic tenets of justice and fairness. She suffers from practices such as
under-age marriage, oral divorce and polygamy in the absence of a codified law
and knowledge of Quranic principles. She suffers injustice in family matters
owing to misinterpretations emanating from patriarchal mindsets and interests.
The community justice mechanisms may or may not be friendly places for a woman
and she is left with very littlelegal recourse.
The ordinary Muslim woman has faith
that the Quran is just and fair to all. Her clear thinking on what should be
her legal rights is heartening. Her desire to have a clearly laid down legal mechanism
needs to be taken up at all levels within the community and by the government.
She wants a codified law based on the Quranic tenets to resolve herissues such
as age of marriage, divorce, maintenance, polygamy, custody of children,
property, etc.
Clearly, the existing male-oriented
community justice framework has not helped Muslim women to get justice in
matters of marriage and family. It isimportant to understand the meaning of the
popularly held perception aboutIndian Muslims being governed by Shariat in
matters of personal laws. Do we have codified Shariat laws in India that
adequately address all aspects concerning marriage and family matters? The
study establishes that the existing legal framework is far from adequate when
it comes to upholding rights of women granted by the Quran. This is true in the
Indian context where the Muslim women’s quest for justice is viewed with
scepticism or even hostility. The secular democratic state has failed to enable
fair representation for all sections of the population,including women, by only
recognising the conservative religious voice as the voice of the whole
community. The conservative sections are unaware and unconcerned about the
issues of Muslim women and therefore they cannot continue speaking for them.
Furthermore, Muslim women and girls
face several challenges of safety,security, survival and dignity in modern
times like women and girls from allother communities. They are gradually
learning to cope with these challenges. The solution cannot be that of confining
them to homes for their own safety and well-being. They have aspirations like
other citizens and it is binding on both the government and the community to
recognise and support their concerns. Muslim women cannot forever live with the
threat of instant oral unilateraldivorce or polygamy or post-divorceeconomic
uncertainty. These must be resolved by evolving a just and fair legal framework
based on the principles of the Quran.
Notes
1 The Rajinder Sachar Committee was
constituted in 2005 by the Prime Minister of India. It was tasked with
collecting information on the socio-economic status of India’s Muslim
population and identifying areas ofintervention by the government. It collated
data from the census and National Council of Applied Economic Research studies,
and conducted its own surveys to highlight that Muslims in India fared worse
than other socio-religious communities on issues of access to health,
education, credit, general infrastructure and employment
2 The Bharatiya Muslim Mahila
Andolan was formed in January 2007 in Delhi. It is a democratic organisation of
Muslim women, led by Muslim women, which works for citizenship rights of all
and particularly Muslim women in India. In 2015, its membership crossed 60,000
women and men across 15 states. BMMA shares the values of justice, democracy
and secularism enshrined in the Constitution as well as the values of justice
and peace enshrined in the Quran. It believes in women’s position as equal
citizens in society and strives to build Muslim womens’ leadership. In
different states—Gujarat, Maharashtra, Rajasthan, Madhya Pradesh, Karnataka,
Tamil Nadu, Odisha, West Bengal, Bihar, Jharkhand—it works on the issues of
education, jobs, security, law and health. BMMA is opposed to communalism and
believes in communal harmony, mutual religious respect and coexistence. It
stands in solidarity with all who believe insocial justice and equality.
3 The full study Seeking Justice
within Family: A National Study on Muslim Women’s Views on Reforms in Muslim
Personal Law can be found at bmmaindia.blogspot.in.
First published in EPW
