Stating the obvious, the world has been swept over by a wave of polarization and tensions everywhere; and riding on these waves triumphantly are the people endorsing communal ideologies and divisive policies for their benefit. India is no exception. In the present context, one distinct category from our population that stands out, bearing the brunt of all that has ripped the social fabric asunder is the category of Muslim women.
Recent developments have reflected a disappointing scenario for Muslim women in India. With the rise of aggressive Hindu fundamentalism, Muslim women have become the ‘easy targets’. The current issue of hate apps being developed by young and educated persons spreading hate and tarnishing the image of Muslim women reveals the grim reality of their status in India. Adding to their misery is the Muslim religious orthodoxy that has stripped them of equal rights and freedoms. Being targeted because of multiple forces at play, i.e. being a Muslim and a woman at the same time makes them victims of what Kimberle Crenshaw called ‘intersectionality’.
Status has been defined as a measure of women’s access to (and control over) material capital (food, income, property, and other manifestations of wealth) and social resources (knowledge, influence, and prestige) within the family, in the public and the society at large. All of these components when judged from a Muslim woman’s lens seem to be hazy as there is a myriad of factors blocking the vision.
Status of Women under Muslim Personal law
Islamic law is primarily based on the teachings of the Quran and the traditions (Hadith) of Prophet Muhammad that lay down the blueprint for a Muslim’s conduct throughout his life. The interpretations of these teachings and traditions are varied and this variation has given rise to several schools and sub-schools. In India, one can find strings of diversity in the culture and traditions followed by Muslims including their languages, habits, customary rules, and attitudes. Despite some codification, most of the Muslim law is still uncodified and is followed in its crude form.
Muslim personal law prescribes different rules for men and women in different realms of social life. On the brighter side, Muslim law provides a certain degree of autonomy to women on matters of marriage. Marriage is considered a civil contract wherein the wife can stipulate her demands in the contract and her consent is also paramount. She has a right to dower or mahr. But the things that nullify all the rights given are polygamy and certain laws on divorce. A Muslim male is allowed to keep the utmost four wives. As per some of the schools, a fifth marriage if contracted by a male would not be invalid but merely irregular which can be regularized. In fact, a male can marry a non-muslim kitabiya (whose religion is based on a book) while a female cannot marry a non-muslim.
The majority of the powers regarding divorce lie in the hands of the husband. The husband can divorce his wife without any reasonable cause. On the other hand, a wife needs to give sufficient grounds for seeking a divorce. Additionally, a woman has to undergo a period of ‘iddah’ wherein she cannot remarry for a certain period after the divorce, while a man has no such obligation.
Among different forms of divorce followed by various schools, if a woman wants to remarry her divorced husband again, then she has to first marry someone else, consummate the marriage and then divorce him to get remarried. But there is no such stipulation for the man. In the case of inheritance, if a male and female acquire property together, the male would get double the portion that the female would get. Also, if the husband dies without children, then his wife would get one-fourth share in his property and if they have children the share gets further reduced to one-eighth of the total property.
Judging the status of women from the Muslim personal law perspective, we reach a bi-forked conclusion. On one hand, is the literal interpretation of Sharia law that considers women as a legal entity with equal rights as that men; and on the other is the orthodox and parochial interpretation, the one endorsed by the Taliban currently in Afghanistan which does not permit women to get education or work and wear burqa always when in public. In India, we can find a somewhat middle position that when complemented with legal protections guaranteed by Constitution and various statutes fairly work towards securing equal rights for Muslim women. But not every sphere of personal life can be regulated by law and in those spheres; Muslim women do continue to suffer.
Legal Safeguards for Muslim Women
Mohd. Ahmed Khan vs Shah Bano Begum, 1985 marks one of the first concrete incidents of legal intervention in Muslim personal law matters. The case was about whether dower/Mehr could be covered under an exception to maintenance as mentioned in Section 127(3) of CrPC. The honourable court went deeper into religious doctrines and the teachings of the Quran to conclude that a man’s responsibility to maintain his wife does not end with the period of iddah.
It was held that Section 125 of CrPC was a secular law and Muslim women have all the right to claim maintenance under this section. On the question of mehr, it was held that it is given to the wife as a mark of respect at the time of marriage or at a stipulated time and it could not supplant the husband’s responsibility of maintenance towards his wife. Hence, this case secured a Muslim woman’s right to maintenance after divorce from her husband.
The politicization of this issue post the judgment was inevitable considering the sensitive issue of meddling with personal laws is. The Muslim community felt breached and there were country-wide protests. As a result, to pacify the unrest, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted. The Act stipulated that the husband must provide “a sensible and reasonable maintenance and support” within the iddah period. If the wife was not able to maintain herself beyond the iddah period, the onus of maintaining her lies on her family or relatives. And if they were not in a position to maintain her, then the Waqf Board was required to maintain her.
The Act lays down that a Muslim wife’s case of maintenance would be covered by this Act unless a joint or separate application is moved by both husband and wife asking to be governed under Section 125 of CrPC. Though it was perceived that the Act limits the husband’s responsibility to maintain his wife until the iddah period only, the courts have later specified that it is not so and the husband is required to make provision, during the iddah period, for the wife’s maintenance until she remarries.
Triple Talaq was another feature of Muslim personal law that stripped women of their dignity, wherein a husband could divorce his wife by merely pronouncing ‘talaq’ three times in one sitting without the wife’s consent, in any form (oral, written, or electronic). This was a barbaric practice as it left women at the mercy of the whims of their husbands who could divorce them at any time without any reasonable cause. It further exacerbated their vulnerability and served to degrade their socio-economic conditions.
In the case of Shayara Bano v. Union of India, the honourable court coming to their rescue held this practice unconstitutional. It was observed that triple talaq or talaq-e-biddat was not recognized as a valid form by many schools of Muslim law and many Muslim countries did not follow this practice. Observing that triple talaq was not an essential practice under Muslim law and was inconsistent with fundamental rights protected by the Constitution of India, it was held unconstitutional. Hence, currently, no Muslim husband can pronounce talaq-e-biddat on his wife. In fact, The Muslim Women (Protection of Right on Marriage) 2019 made it a cognizable offence to pronounce triple talaq. This case marks another victory for Muslim women to safeguard their rights.
Besides these, all other fundamental rights enshrined in Part III of the Constitution of India like the right to equality, freedoms, prohibition of discrimination, right to life and personal liberty, etc. are also available to Muslim women by the virtue of them being citizens of India. There has been a debate going on, on the implementation of the Uniform Civil Code to erase the distinctions of personal laws to bring uniformity in the laws of the country and also end years-long discrimination against women, as most of the personal laws are biased towards men.
The coming of the Uniform Civil Code would end these differences and guarantee equal rights. But religion is a sensitive issue in India where there is a multitude of faiths practiced by people. This justifies the hesitation in implementing UCC. Nevertheless, our judiciary has been proactive in securing equal rights for women wherever they have been deprived of them and has given some very progressive judgments. Our lawmakers have also played their part in furthering this agenda.
Socio-economic conditions
Despite the legal safeguards provided, the status of Muslim women remains disappointing. The roots of this problem can be traced back to the Colonial era. While the Hindus took full advantage of British education and other elements of modernization to adapt themselves to the changing times, the Muslims did not. They remained tradition-bound and any change was perceived as an attack on their identity and culture. Thus, they retained their traditional beliefs which landed them in a situation of educational and economic backwardness.
The Sachar Committee Report (2005) noted that the main cause behind the degraded status of Muslim women is the backwardness of Muslims in the socio-economic sphere. They have lagged behind the other religions due to social factors like poverty, low earnings, low rate of literacy, and inadequate avenues of employment. In a study called The changing half: A study of Indian Muslim, it was noticed that rather than the religious factors alone, other structural and institutional paradigms like customs, traditions, moral systems, patriarchy, the misconception of Islamic principles, lack of self-initiative or inspiration, and lack of support from male members jointly hamper the prospects of women to adopt new values and conform to the changing milieu.
Despite universal education is the aim of India, not many Muslim girls can continue with their schooling. While the difference between Muslim girls and ones belonging to other religions was minimal at the primary level of education, this gap widens as we go up to higher levels. As per a report by Minority Rights Group International titled Muslim Women in India (1999), 59.5 percent of Muslim women are illiterate in urban India, as compared to 42.2 percent of Hindu women and 22.7 percent of Christian women who come under this category. Without proper education, their share in the employment sectors also remains low. Most Muslim women are employed in the informal sector. With no economic power in their hands, the women are forced to be dependent on their male counterparts. Thus, the decision-making power is automatically taken away from them. This results in a downgraded social status.
Conclusion
To conclude, Muslim women are in a worrisome position. They are still locked in the cages of religious orthodoxy that takes away from them their education, employment, and all other sources of liberation and seeking autonomy. Besides this, the polarized environment of our country where extremist groups have threatened the secular nature of our nation has made Muslim women the “easy targets”. Thus, they not only have to suffer because of belonging to a particular religion but also because of their sex.
On the brighter side, our judiciary has been toiling hard to uphold constitutional values. Never have these values been threatened on such a scale and it ought to be a wake-up call to our younger and educated generation to protect Indian society from being torn asunder. Many Muslim women are shattering age-old perceptions binding them into subservience to reclaim their dignity, freedom, and integrity. But the sad part is that most of these women belong to the higher echelons of society. More and more women should come forward and spread awareness among their fellow women who have been suffering in silence giving in to their fate. Feminist circles should assimilate the issue of Muslim women and work for their upliftment. Diffusion of education and knowledge seems to be a silver bullet for Muslim women.
Disclaimer – The views expressed in the articles, reviews, comments, and all other such contributions are solely of the author(s) and not of the Publisher or the Editorial Board of KnowLaw.