Although laws like the Muslim Personal Law (Shariat) Application Act, 1937 and other laws are supposed to grant Muslim women rights and protect them from discriminatory customary laws, the absence of codification of Muslim personal laws has resulted in many of the rights granted in religious texts getting negated or diluted. Against this reality, Muslim women's groups have been campaigning for codification of personal law.
Several laws have been enacted to address the concerns of Muslim women in India dealing primarily with issues like marriage, divorce, maintenance and inheritance. But at the community or societal level, these laws do not help them much in seeking justice. The laws that are framed exclusively for Muslim women fail to protect their rights and prove ineffective in helping them enjoy the status as guaranteed to them in the Quran. In the absence of a codified personal law, Muslim women in India are still subjected to gender injustice and inequalities.
The Shariat Application Act, 1937
In 1937, Muslim Personal Law (Shariat) Application Act was passed when India was still a British colony. Its main objective was to govern the Muslim community by a unified shariat law and not by the prevailing customary laws that have displaced the rules of the shariat law. The act states:
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubara’at, maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat) (Act No XXVI of 1937).
The application of the Shariat Act ensured the protection of Muslim women’s rights from discriminatory customary laws, which prevented them from claiming their share of inheritance or to initiate a divorce as prescribed under the Islamic law (Kazi 1999). M H M Abdullah, who introduced the bill in the central legislature, stated:
The bill aims at securing uniformity of law among Muslims throughout British India in all their social and personal relations. By doing so it also recognises and does justice to the claims of women for inheriting family property who, under customary law, are debarred from succeeding to the same. If Shariat law is applied they will automatically be entitled to inherit the same. (Lateef 1994: 43)
The Shariat Application Act is supposed to operate throughout India, but in practice it does not govern all Muslims in India, neither does it unify the heterogeneous Muslim community under one shariat or Islamic law. The Shariat Act only states that Muslims will be governed by their Muslim personal law but it does not specify the content of this law and is therefore open to varying interpretations. Muslims in India are divided into two main sects—Sunnis and Shias. The majority of Indian Muslims is Sunni. Sunnis are further divided on the basis of four schools of law: Hanafi, Shafi, Hanbali and Maliki. Shia Muslims are in a minority and comprise approximately 10%–15% of Indian Muslims. They too are divided into Ismailis, Bohras and Ithna-Ashari. The Shia and the Sunni apply their own understanding and interpretation of shariat and therefore have their own codified laws (Kazi 1999). Although the provisions of the Shariat Act attempted to further the interests of Muslim women, in the absence of a single law, Muslim women are dependent and are affected by the different interpretations of the shariat.
Moreover, the “cultural diversity among Muslims—including attitudes, habits, languages and traditions—and a non-uniform diffusion of Islam over the centuries has resulted in a variety of Muslim laws and customary practices within Muslim communities in India” (Kazi 1999: 4). Subcommunities like the Kutchi Memons, Khojas, Bohras and Molesalam Girasias have accepted Islam but continue to have their own separate sets of customary law because of their Hindu background (Ullah 1932). After conversion, these communities retained some portion of their personal laws as their long established custom, such as the Hindu law of inheritance and succession (Mulla 2013).
Muslims of union territories like Goa, Daman and Diu and Pondicherry are also not governed by this act. Moreover, the Shariat Act is not known to the state of Jammu & Kashmir (J&K) (Milli Gazette 2014). In all matters of family law and succession, Muslims in J&K are governed by the Sri Pratap Consolidation of Laws Act, 1920. According to Tahir Mahmood (1981: 3), in J&K, “the Muslims have had the customs of khanadamad, pisar-i parwarda, dukhtar-i khananashin, dukhtar berun-i khana, agnatic succession and exclusion of females from inheritance—each of which has no place in the traditional Islamic law and conflicts with its settled interpretations.” Therefore, the only Muslim majority state in India does not follow the same personal law as the rest of the country.
The Dissolution of Muslim Marriages Act, 1939
The Dissolution of Muslim Marriages Act was passed on 17 March 1939 by the central legislature. The primary objective of the act was:
to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie (Act No VIII of 1939).
Under the Hanafi code of Muslim law, the right to divorce was only given to men. Muslim women had no right to get a divorce in case the husband failed to maintain her, deserted her or ill-treated her. They lacked legal support if they needed to terminate their marriage that resulted in “unspeakable misery to innumerable Muslim women in British India” (Hussain 2015: 7). Therefore, in order to seek divorce, many Muslim women would convert to other religions as apostasy served a valid ground for the dissolution of marriage. A distinguished member of the Punjab Civil Service in the 1930s, Sheikh Abdul Haq states in his book, Apostasy and Muslim Marriage: “If a Muslim woman wants to get rid of her husband, she has just to go to a Christian missionary, take a certificate of baptism and ipso facto the marriage is dissolved” (Abdul Haq nd: iii). During the early decades of the 20th century, there were an increasing number of Muslim women who renounced Islam so as to come out of abusive marriages.
To curb the tendency of renunciation of Islam and to address the issue of Muslim women’s rights to seek divorce, Maulana Ashraf Ali Thanvi issued a treatise entitled Al-hilat un-Najiza li’l-Halitat al-‘Ajiza (The Successful Legal Stratagem for Helpless Wives) in 1933 so as to “provide a more direct route of salvation for women who become so desperate and distraught that they are forced to leave Islam in order to escape their marital situations” (Khan 2008: 5). In his fatwa, he stated that apostasy does not annul a Muslim marriage. However, a Muslim woman can seek a judicial divorce on various grounds as stated by the Maliki school of jurisprudence. In response to his opinion, a bill was introduced in the central legislative assembly in 1936, which was passed and enacted in 1939 (Hussain 2015).
This particular legislation has five sections. Section 2 of the act provides nine grounds under which a Muslim woman shall be entitled to obtain a decree for the dissolution of her marriage. The act lays down the following grounds:
(i) The whereabouts of the husband are not known for a period of four years.
(ii) Failure of the husband to provide for the maintenance of the wife for a period of two years.
(iii) Imprisonment of husband for a period of seven years or more.
(iv) Failure of the husband to perform marital obligations for a period of three years.
(v) Impotency of husband since the time of marriage.
(vi) Insanity of husband or is suffering from diseases like leprosy, venereal disease, etc.
(vii) Repudiation of marriage by wife before attaining the age of 18 years.
(viii) Cruelty of the husband.
(ix) Any other ground which is recognised as valid for the dissolution of marriages under Muslim law.
The Dissolution of Muslim Marriages Act was enacted for the welfare of Muslim women. But this particular act has its own shortcomings as it only deals with the divorce issue and lacks clarity on other matters like maintenance of the woman after divorce, custody of children, etc. For that a woman needs to file separate cases under different laws (Niaz and Apte 2012).
The Muslim Women (Protection of Rights on Divorce) Act, 1986
Women in India derive their rights to maintenance from two sources: first, the personal law applicable to the community of the person concerned and second, the Criminal Procedure Code (CrPC) of 1974 which is applicable to all Indians irrespective of their religion (Dube 2005).
Under Muslim personal law, a divorced Muslim woman is liable for the maintenance till the period of iddat, that is, for three months following the divorce. In addition, she also receives the amount of mehr (dower) fixed at the time of marriage. Other than this, the husband has no other financial obligations towards his wife. But under Section 125 of the CrPC, a woman is entitled to receive maintenance from her ex-husband until she gets remarried.
Shah Bano, a 60-year-old woman from Bhopal, went to court seeking maintenance from her husband who divorced her after 43 years of marriage. The Madhya Pradesh High Court ruled in her favour. Shah Bano’s former husband, Mohammad Khan, appealed to the Supreme Court of India and claimed that under Muslim personal law, an ex-husband is not required to provide lifetime maintenance for his former wives. The Supreme Court dismissed his appeal and upheld the maintenance order under Section 125 of the CrPC.
Muslim community members resented the Supreme Court’s judgment and under pressure from the Muslim orthodoxy, the Congress party, which was in power then, rushed to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986. The act aims to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto (Act No XXV of 1986).
However, the enactment of the Muslim Women’s Act made the condition of Muslim women more miserable and provided no relief to them. It exempted Muslim men from the purview of Section 125 CrPC. It stated that a husband is entitled to pay maintenance to his wife during the time period of her iddat. After that the responsibility of her maintenance shifts to relatives and the state waqf board. Section 4(1) of the act lays down that a magistrate may direct those relatives of a divorced woman who has not remarried and is unable to maintain herself after the iddat period, who would be entitled to inherit her property on her death, to pay a reasonable and fair maintenance to her, keeping in mind the standard of life enjoyed by her during her marriage and the means of those relatives. According to Section 4(2) of the act, if the divorced woman has no relatives or if they do not have enough means to pay the maintenance, the magistrate may direct the state waqf board to pay maintenance to the divorced woman.
The bill was criticised by those who saw it as a setback for Muslim women. First, it made women vulnerable and dependent on relatives and second, the corruption, bankruptcy and mismanagement of the waqf boards made it “difficult to ascertain whether or not the Wakf Boards will be able to take on the responsibility of giving adequate maintenance to destitute divorcees, for functioning of Wakf Boards is shrouded in mystery” (Ghosh 1987: 152).
The act stirred a nationwide debate on Muslim personal law and resulted in the mobilisation of various Muslim women’s groups at the local and national level. Many Muslim organisations came to the forefront to address the issues of Muslim women’s entitlements within marriage in order to promote and safeguard their interest.
Codification of Personal Law
Muslim personal law has not been subjected to any legislative changes since independence. There are hardly any efforts made to codify personal laws as has been done in other Muslim countries. In India, the move has always been resisted on three grounds: that personal laws are based on shariat which is divine and therefore unalterable; it is impossible to assimilate the four schools of Islamic jurisprudence in codification and, Muslims take the codification as the first step towards enacting a Uniform Civil Code (UCC).
Asghar Ali Engineer (2009) argues that Muslims defend and resist any kind of reform in Muslim personal law thinking that it is divine. But the personal law as practised today is actually the Anglo-Muhammadan law which was practised before independence. It was renamed as Muslim personal law after independence. Solanki (2011: 268) argues that “Muslim Personal Law in postcolonial India is based on local custom, Islamic laws and precepts, customary laws made by sect-based organisations, state-law enactments, and judicial precedent.” Therefore, Muslim personal law as practised today is not completely in compliance with the shariat as a result of which certain aspects of it are unjust to Muslim women.
Against this background, in 2011 Shaista Amber, President of the All India Muslim Women’s Personal Law Board (AIMWPLB), asked for codification of Muslim personal law. She addressed a letter to the then President of India, Pratibha Patil, asking for a law for the shariat rights for Muslim women. A similar initiative was taken by the Bharatiya Muslim Mahila Andolan (BMMA) asking for the codification of Muslim family law. The organisation released a draft titled “The Muslim Marriage and Divorce Act” in 2014 that addressed issues concerning the age of marriage, mehr, maintenance, custody of children and sought a total ban on polygamy, oral, unilateral and triple divorce. The draft was circulated to the National Commission for Women, the National Human Rights Commission, the National Minorities Commission and other stakeholders. In 2015, the co-founders of BMMA, Noorjehan Safia Niaz and Zakia Soman wrote a letter to Prime Minister Narendra Modi asking for codification of the personal law as per the draft prepared by them. In the letter they stated, “Certain orthodox and patriarchal males have dominated the debate on rights of Muslim women and have stonewalled any attempt towards reform in Muslim personal law. In the process the Muslim women have been denied their Quranic rights as well as their rights as equal Indian citizens.” Based on their research conducted with a primary sample of 4,710 Muslim women across 10 states, the letter added, “Justice of Indian Muslim women can be enabled either through amendments to the Shariat Application Act, 1937 as well as the Dissolution of Muslim Marriages Act, 1939 or a completely new enactment of Muslim personal law” (BMMA 2015).
The demand for a codified personal law is seen as the first step towards achieving gender justice and equality for all Muslim women in India. There are several interpretations of Muslim personal laws and unless these are codified and passed by Parliament, Muslim women will continue to be denied equal rights in family matters. Where the previously enacted laws failed to bring about significant changes in the lives of Muslim women, the codification of the Muslim Personal Law based on the Islamic framework would give women more rights as guaranteed by the Quran and hadiths.
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