COMMENTARY
rights from discriminatory customary
Muslim Womens Rights in India
Codified Personal Laws Needed
Qazi Sarah Rasheed, A K Sharma
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
womens groups have been
campaigning for codification of
personal law.
Qazi Sarah Rasheed (sarah@iitk.ac.in) is a
doctoral scholar at the Humanities and Social
Sciences Department, Indian Institute of
Technology, Kanpur. A K Sharma (arunk@iitk.
ac.in) teaches at IIT, Kanpur.
22
S
everal laws have been enacted to
address the concerns of Muslim
women in India dealing primarily
with issues like marriage, divorce, main-
tenance and inheritance. But at the com-
munity or societal level, these laws do not
help them much in seeking justice. The
laws that are framed exclusively for Mus-
lim 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 objec-
tive was to govern the Muslim commu-
nity 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 re-
lating to agricultural land) regarding intes-
tate succession, special property of females,
including personal property inherited or ob-
tained under contract or gift or any other pro-
vision of Personal Law, marriage, dissolution
of marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower,
guardianship, gifts, trust and trust properties,
and wakfs (other than charities and charitable
institutions and charitable and religious en-
dowments) 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 womens
SEPTEMBER 10, 2016
laws, which prevented them from claim-
ing their share of inheritance or to initi-
ate 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 de-
barred from succeeding to the same. If Shariat
law is applied they will automatically be enti-
tled 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 hetero-
geneous Muslim community under one
shariat or Islamic law. The Shariat Act
only states that Muslims will be gov-
erned by their Muslim personal law but
it does not specify the content of this law
and is therefore open to varying inter-
pretations. Muslims in India are divided
into two main sectsSunnis 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
Muslimsincluding attitudes, habits, lan-
guages and traditionsand a non-uniform
diffusion of Islam over the centuries has
vol lI no 37 EPW Economic & Political Weekly

resulted in a variety of Muslim laws and
customary practices within Muslim com-
munities in India (Kazi 1999: 4). Subcom-
munities like the Kutchi Memons, Khojas,
Bohras and Molesalam Girasias have ac-
cepted Islam but continue to have their
own separate sets of customary law be-
cause 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 par-
warda, dukhtar-i khananashin, dukhtar
berun-i khana, agnatic succession and
exclusion of females from inheritance
each of which has no place in the tradi-
tional 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 objec-
tive of the act was:
to consolidate and clarify the provisions of Mus-
lim law relating to suits for dissolution of mar-
riage by women married under Muslim law and
to remove doubts as to the effect of the renun-
ciation 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 main-
tain 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
Economic & Political Weekly EPW SEPTEMBER 10, 2016
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 certifi-
cate of baptism and ipso facto the mar-
riage 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
womens rights to seek divorce, Maulana
Ashraf Ali Thanvi issued a treatise enti-
tled Al-hilat un-Najiza lil-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 juris-
prudence. In response to his opinion, a
bill was introduced in the central legisla-
tive assembly in 1936, which was passed
and enacted in 1939 (Hussain 2015).
This particular legislation has five sec-
tions. 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 mar-
ital 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 dis-
ease, etc.
(vii) Repudiation of marriage by wife
before attaining the age of 18 years.
vol lI no 37
COMMENTARY
(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 di-
vorce issue and lacks clarity on other mat-
ters 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 mainte-
nance 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 mainte-
nance from her husband who divorced her
after 43 years of marriage. The Madhya
Pradesh High Court ruled in her favour.
Shah Banos 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 dis-
missed his appeal and upheld the mainte-
nance order under Section 125 of the CrPC.
Muslim community members resented
the Supreme Courts 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
23
COMMENTARY
husbands and to provide for matters
connected therewith or incidental there-
to (Act No XXV of 1986).
However, the enactment of the Muslim
Womens Act made the condition of
Muslim women more miserable and pro-
vided 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 main-
tenance 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 rel-
atives. According to Section 4(2) of the
act, if the divorced woman has no rela-
tives 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 di-
vorcees, 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
womens groups at the local and national
level. Many Muslim organisations came
to the forefront to address the issues of
Muslim womens entitlements within
marriage in order to promote and safe-
guard their interest.
Codification of Personal Law
Muslim personal law has not been sub-
jected 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,
24
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 think-
ing 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
Womens 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 re-
leased 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 Com-
mission 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 patri-
archal males have dominated the debate
on rights of Muslim women and have
stonewalled any attempt towards reform
SEPTEMBER 10, 2016
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 Appli-
cation 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 sig-
nificant changes in the lives of Muslim
women, the codification of the Muslim
Personal Law based on the Islamic frame-
work would give women more rights as
guaranteed by the Quran and hadiths.
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