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Muslim Women: Status and Divorce Rights Under Islamic Law
Shabdita Gupta - 5/3/2008
Muslim Law could be seen as an admirable system of jurisprudence providing, as it did, many rational and revolutionary concepts that could not be conceived by the other systems of law then in force at that distant date. It provided, for example, for the right of inheritance to the females even when there were male heirs and also the modern concept of divorce by mutual consent, while the other systems of law took so many centuries to do so. But as a result of deplorable distortions made by, and unfortunate metamorphosis undergone at the hands of Anglo-Indian courts, substantial portions of the Muslim law as administered by these courts have quite obviously failed to earn the appreciation which the Muslim law in its modified frame rightly deserved because of its rational, realistic and pragmatic approach in many respects. In very old times, amongst a plethora of existent religions , Islam emerged, consisting of a radically new concept of a religion, to fulfill the needs and aspirations of the tribes and communities of the Arabian states.
However, Islam claimed to be a universal religion, intended for all times. It emerged as a practical religion and continued to aid each of its followers, irrespective of race, nationality, language and gender, the last contention however being debatable.
However, to understand the nature and scope of the rules and procedures envisaged by Islam, it is imperative to understand the position of law prevailing in the pre-Islamic era. The position accorded to women was of extreme inequality and devoid of any claim over any asset or any other rights. Polygamy was widely practiced and divorce was almost given out of habit than necessity. Moreover, woman was never a free agent in marriage, as she was largely given in marriage by her guardians, her consent being immaterial. The practice of killing and burning alive of female infants was also not uncommon among Arabs.
In this context, the view expressed by an eminent authority on Islam law, Asghar Ali Engineer is worth noting;
“Although Mecca was an important commercial center of international dimensions, the tribal social structure had not been dissolved. It continued to be predominant although it was in the process of disintegration. Again the tribal pattern was patriarchal since the known history of the area. As the legend has it Abraham, the chief patriarch of the Jewish tribes had two sons Ishmael and Isaac. The Arabs are said to have descended from Ishmael whereas the Jews from Isaac. All of them were patriarchal and their value system was accordingly determined. ”
Thus, on the basic common platform for Judaism and Islam itself, one can see that there exists a patriarchal value system and therefore, denigrates women and greatly, affects their status in a deplorable manner.
All family laws- Hindu, Muslim, Parsee, Sikh, Jain and Christian personal laws-have certain common features. All of them recognize the man as the head of the household, they sanction patrilineage and patrilocality, they treat women as men’s property and consider the father to be the natural guardian and they perpetuate double standards in sexual morality and property rights.
It is common knowledge among those reasonably acquainted with law that women are greatly deprived of their rights within the laws that govern crucial aspects of the man woman relationship: marriage and divorce, custody of children and guardianship rights, alimony and maintenance for divorced women as well as property rights.
The question of women has acquired great importance throughout the world today among all communities. This is for obvious reasons. For centuries, women have been in total subjugation in male-dominated patriarchal societies. It has been a “natural law” to regard women as the inferior sex and for them to submit to male authority for the smooth functioning of society in its day to day progress.
However the status of women and their responses to the codification of personal laws was the most important feature that was not considered by the British, not by the legislators in the post independence era and even today in the 21st century. Muslim women somehow continue to be unrepresented, unheard of and carry no form of whatsoever in the formation of laws that have to be governing them. They are just represented by various interest groups that have vested interest and political leaders who merely treat communities like Muslims as their ‘vote banks’.
It is in the light of such an emerging context of Muslim women and their rights in today’s world, that the researcher hopes to provide an insight to the law governing Muslim women and their predicament as far as divorce is concerned which is by far one of the most important areas of personal laws.
EVOLUTION OF DIVORCE IN ISLAM
Pre- Islamic background
Among the pre Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason. They could also revoke their divorce and divorce again as many times as they preferred. They could, moreover if they were so inclined, swear that they would have no intercourse with their wives, though still living with them. They could arbitrarily accuse their wives of adultery, dismiss them, and leave them with such notoriety as would deter other suitors; while they themselves would go exempt from any formal responsibility of maintenance of legal punishment.
According to Abdur Rahim there were four kinds of dissolution of marriage were known in pre- Islamic Arabia. These were Talaq, Ila, Zihar and Khula. A woman if absolutely separated through any of these four modes was probably free to remarry, but he could not do so until some time, called the period of iddat, had passed. It was to ascertain the legitimacy of the child. But it was not a strict rule. Sometimes, pregnant wife was divorced and was married to other person under an agreement. It is interesting too note that the period of iddat in case of death of husband then was a year.
After the advent of Islam.
The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their practice as calculated to undermine the foundation of society. It was impossible however, under the existing conditions of the society to abolish the custom entirely. The prophet had to mould the mind of an uncultured and semi- barbarous community to a higher development. Accordingly, he allowed the exercise of the power of divorce to husbands under certain conditions. He permitted to divorce parties three distinct and separate periods within which they might endeavor to become reconciled; when all attempts at reconciliation prove unsuccessful, then in the third period the final separation became effective.
The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation. He restrained the unlimited power of divorce by the husband and gave to the woman the right of obtaining the separation on reasonable grounds. He pronounced; talak; to be the most detestable before God of all permitted things for it prevented conjugal happiness and interfered with proper bringing up of children.
Fyzee says that it sometimes is suggested that the greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power. But experience shows the greatest suffering is endangered by the husband’s withholding divorce than by his irresponsible exercise of the right.
METHODS OF DIVORCE :
Divorce is a vexed question in Islamic law as administered in India. The recognized forms of divorce being Talaq, Talaq by Tafweez; Kula and Mubaraat; Ilah, Zihar and Lian.
The word talaq which we hear everyday in so many different Hindi movies and propagated by the mass media, in technical terms amounts to repudiation. The very concept of divorce in Muslim law is grossly violative of the freedom of the woman as; the husband may pronounce divorce to the wife when he is of sound mind and moreover, the presence of the wife is not even necessary. This implies the clear simplicity of divorce for a husband even in the absence of the wife. Moreover, the reasons for divorce are unnecessary as also the intention as long as the statement in which the divorce is pronounced with or without the presence of the wife is unambiguous. This accounts for the hassle free attitude of Muslim men with regards to divorce as they are clearly accorded a dominant status.
The Holy Quran mentions divorce in the following manner:
‘If ye fear a breach between them twain, appoint two arbiters, one from his family and the other from hers. If they seek to set things aright, Allah will cause their reconciliation.”
Since marriage in Islam is a contract, it may be dissolved at any time. A Muslim husband of sound mind may divorce his wife whenever her so desires without assigning any reason. The presence of the wife is not even necessary for pronouncing a divorce or any notice need to be given for that purpose. The most popular form of Talaq is Talaq-al-Bid’ at which means ‘the divorce of wrong innovation’. It allows instantaneous Talaq, three pronouncements in a single sitting. This form of divorce is highly criticized as supposedly is opposed to the principles of the Qur’an.
It was always advocated by the Muslim Holy Texts and the preaching of the Prophet that a man must seek for marriage, a woman of equal social status. Though it can be said that Muslim law in all its egalitarian principles confers upon women equal status is also interpreted in various other ways. Though it was always felt that the man must marry himself to a woman of equal status, there was no such provision for the women that a woman must marry herself to a man of equal status. Rather it was always considered that a man, on marriage with a woman of lower status, would simply elevate her position to his own position. This concept of equality between the two parties to a Muslim marriage was traditionally known as kafa’a. The idea of faskh demonstrates the uncommon platform on which men and women stand in Muslim law. This concept was that a woman who contracts herself to marriage with a man of unequal status without the consent of any of her male relations would render such a marriage voidable and rescindable by the Court. There were divergent views as to whether the woman could obtain dissolution of marriage with different schools of Muslim law advocating different views. This system of divorce by judicial rescission now takes the form of the Dissolution of Muslim Marriages Act, 1939 and now sponsors the same law for all the various schools of Muslim law. The passing of this law benefited many women all over the country for it procured for women a right to divorce under the different schools of law and made no discrimination against them. Sec.3 of the Dissolution of Muslim Marriages Act speaks of the different grounds on which a woman may obtain a decree of divorce from her husband, thus, entitling her to divorce in the first instance.
The husband may also delegate his right of divorce to his own wife an authorize her to pronounce talaq. According to Fyzee, this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly common in India. The authority is given to the wife under an agreement at the time of the marriage or at any time after it. The general practice is to delegate the power of divorce to the wife upon the husband’s failure to fulfill certain conditions or upon the happening of an event. But the conditions must be of reasonable nature and must not be against the principles of Islam.
The delegation of the right to talaq incase the husband fails to pay her maintenance may be delegated. In Hamidool v. Faizunnissa it was held that the power may be delegated at the time of nuptial agreement or during the married life. The power so delegated cannot be revoked by the husband. Further in the case of Saifuddin v. Latifunnissa, it said that the wife may exercise the power to counter a suit for restitution of conjugal rights instituted by the husband and such exercise will result in talaq.
After having delegated this right to his wife, the husband cannot revoke it because after delegation it is the wife who owns this right on his behalf. This right to delegate divorce can prove very useful to the wife if the man takes another wife without her consent or if he neglects her or deserts her or violates any other marriage condition or does anything which the wife disapproves. If it is, no doubt, a novel concept, which does not exist in any other legal system and it undoubtedly provides extra security to a married woman. She can stipulate it as one of the conditions of marriage. From this it can be seen that in addition to the holy Qur’an Muslim jurists have also taken care to protect women’s rights and interests.
Muslim women have the right to seek dissolution of marriage even under the system of Khula; under this form of divorce a husband is given compensation to release the woman from her marriage tie, this right is rarely invoked now though the Quran lays down this provision. This form of divorce by the initiation of the wife is seen by many to be discriminatory as it releases the wife from the bondages of marriage with conditions imposed by the husband generally regarding a certain sum of money/consideration which is usually a part or the whole of the Mehr.
In the leading case Munshee Buzlul Raheem v. Luteefutoon Nissa, the Privy Council described Khula form of divorce as under:
“A divorce by khula is a divorce with the consent and at the instance of the wife in which she gives or agrees to give a consideration to the husband for her release from the arriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife and the wife may as the consideration release her dynmahr and other rights or make any other agreement for the benefit of the husband.”
Another form of divorce is Mubara’at in which the proceedings might be initiated by either the husband or the wife, but once it is accepted the dissolution is complete. This is a form of divorce by common mutual consent wherein if the divorce is initiated by the husband, it is known as mubara’at.
Where the desire for separation is mutual, the law requires a woman to offer her husband compensation. Muslim law has conferred upon the wife’s stipulated right to dissolve her marriage on her husband from entering into a second marriage and taking a second wife, a force overriding the sanctity of the first marriage itself. There is also a provision for divorce when a woman has a right to pronounce Talaq if her husband has delegated that right to her in the Nikahnama where he has to state that if he commits polygamy or if his wife cannot get along with him, she has the right to Khula. . It has been held in a recent Pakistani case that such matters as “incompatibility of temperaments, aversion, or dislike cannot form a ground for wife to seek dissolution of her marriage, at the hands of a Quazii or a court, but they fall to be dealt with under the powers possessed by the husband as well as the wife under Muslim Law”, that is capacity of making a Khula or Mubarat at divorce.
The Special Marriage act 1954, which is a secular law of the land has curtailed the extra judicial and unilateral right to divorce of the Muslim husband, who has married under this act, with a result that Muslim women also get an equal right to divorce like her husband.
There is a widespread perception that Muslim women are among the most backward, illiterate and oppressed in the world. They are also depicted as being confined to the four walls of their homes totally cut off from outside world. The patriarchal Arab culture had its own set understanding of women’s position. Thus the Koranic pronouncements of sexual equality was understood and implemented through mediation of Arab culture. However, one strongly feels that this is not the position today. But what is still most upsetting is that the Koranic verses and Prophet’s teachings are selectively quoted by those who commanding enough respect to initiate any form of change thereby defeating any chances of that happening.
However, this doesn’t mean that efforts are not being made towards the emancipation of Muslim women. There are Muslim theologians like Fatima Mirsani from Morocco and Amina Wadood and Riffat Hassan from US and other women’s originations like ‘Sisters of Islam’ from Malaysia who are working towards the cause for women’s rights in the Islamic world.
The many infirmities and misleading principles that are at total variance with the true spirit of Islamic law, as contained in the Quran are mainly due to the lack of access by courts to the primary sources of Islamic law . The fear in the minds of the legislators concerning agitations and reprisals by the conservative and orthodox Muslims has contributed in retarding the pace at which the legislators reacted to the explicitly faulty situation.
Equality has always been guaranteed to Muslims by their laws and the law of Islam, as rather contradictory from general perception is very equitable and hardly provides any scope for discrimination against women
The equality in treatment of both the sexes, as envisaged by Islam, can be ascertained from the following extract from Qur’an:
“For Muslim men and women, For believing men and women, For devout men and women, For true men and women, For men and women who are patient and constant, For men and women who humble themselves, For men and women who give in charity, For men and women who fast, guard their chastity, and For men and women who engage much in Allah’s remembrance for them has Allah prepared forgiveness and great reward.”
More troubling still is that though these conditions can increase a woman’s access to divorce, they do not restrict in any way the husband’s right to repudiate her unilaterally at will.
Attempts to reform divorce laws in the contemporary Muslim world have been plentiful. Most of these have attempted to either restrict men’s unfettered exercise of their rights to repudiation or to increase women’s access to divorce. In the first case, some nations have accomplished this by requiring some type of intervention or registration from a judge, or by declaring that three repudiations pronounced at once will count as only one divorce. (This has always been the predominant Shia view, but only a few individual Sunni jurists have held it.) Some nations have imposed financial penalties on a husband who divorces his wife without cause. However, despite these attempts to curb men’s impulsive and extra-judicial use of talaq, the courts still consider men’s unilateral repudiations legally effective since they are recognized by traditional jurisprudence.
When it comes to increasing women’s access to divorce, the adoption by Hanafi jurisdictions of the relatively more liberal Maliki grounds for divorce represents a significant improvement. However, the interpretation of these provisions varies significantly, and judges wield quite a bit of discretion in their application. In Egypt and elsewhere, for example, courts have ruled that while physical abuse may constitute “harm” for upper-class women, women from lower social strata can expect some violence from their husbands, and thus it does not meet the criteria for them to seek divorce. In these cases, though reforms have altered some of the specifics of divorce laws, they have not challenged the basic idea that divorce is a man’s prerogative, while women may only obtain divorce for cause.
1. These lines have been taken from the text of the Convention on the Elimination of all forms of Discrimination Against Women (C.E.D.A.W) available online at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm last visited on 11 Dec, 2006.
2. Mulla, Mulla on Mohammedan law, Dwivedi Agency, 2006, Delhi, p.17
3. Other religions and doctrines like Zoroastrianism, Buddhism, Taoism and Shintoism had emerged in different parts of Asia, Polytheistic religions flourished in India, Indonesia, Sri Lanka and Egypt.
4. Malik Sherebanu, “Divorce in Indian Islam” in “ Problems of Muslim Women in India”(Asghar Ali Engineer Ed.), 1995, Orient Longman Limited, Hyderabad, pp-30
5. Asaf A.A. Fayzee, Outlines of Mohammadan Law 6,Oxford University Press,4th Ed., 1999, p.9
6. Engineer Asghar Ali (Ed.), 1987, Status of Women in Islam, Ajanta Publications, Delhi at pp-80
7. Chacchi, Amrita, The State, Religious Fundamentalism and Women - Trends in South Asia available online at http://www.wluml.org/english/pubs/pdf/dossier4/D4-SouthAsia.pdf last visited on 11th Dec, 2006.
8. The status of a Muslim woman in today’s world is undeniably harsh and to a certain extent comparable with that of animal treatment. Such a situation was last explicitly demonstrated in the Shah Bano case. The Shah Bano case of 1986 poignantly portrays the plight of individual struggling women in the wake of the law and further, emphasizes on the challenges faced by Muslim women in India.
9. Rashid Khalid Syed, Muslim Law, 3rd Ed., Eastern Book Company, New Delhi.
10. Rashid Khalid Syed, Muslim Law, 3rd Ed., Eastern Book Company, New Delhi.
11. Rashid Khalid Syed, Muslim Law, 3rd Ed., 1996, ISBN 81 7012 562 6, Eastern Book Company, New Delhi.
12. Fayzee, Asaf A.A. ,Outlines of Mohammadan Law 6, Oxford University Press,4th Ed., 1999.
13. As illustrated by Encyclopaedia of Islam, III, p.636-640 by J.Schacht.
14. Supra note 5 at p.150. This was further emphasized upon in the case of Mohd. Shamsshuddin v. Noor Jahan A.I.R. (1955) Hyd. 144.
15. As illustrated in Rashid Ahmed v. Anisa Khatun (1931) 59 I.A. 21,26. Supra note 5 at p.158.
16. The Quran, Surah 4:35
17. Extract from report on “Status of Muslim Women in India” by Dr. Syeda Hamid
18. Faskh literally means an annulment which implies the rescind or revocate a contract. In case of Faskh, a Qazi can annul a marriage on the option of the wife.
19. This outlines the fact that an independent decision of the woman to marry is just left ajar and hardly considered for such a marriage is always voidable and therefore, we can notice the unjust treatment meted out to women in this context. Supra note 5 at p.110
20. Reddy, G.B; Women an The Law; 4th Ed. 2001, Gogia Law Agency, Hyderabad.
21. Hamidool v Faizunnissa, (1812)8 Cal 327
22. Saifuddin v Latifunnissa , (1919) 46 Cal 141.
23. Fatwa ‘Alamgiri, op cit., vol II. P 67
24. Engineer Asghar Ali (Ed.) ,Status of Women in Islam, Ajanta Publications, Delhi, 1987.
25. Supra note 5 at p.162
26. Moinuddin, S.A.H, Divorce and Muslim Women, Rawat Publications, 2000.
27. This was quite clear in the case of Ayatunneesa Beebee v. Karam Ali ILR 36 Cal 23 where it was held that a Muslim wife, who has the power given to her by the marriage contract to divorce herself in the event of the husband taking a second wife does not lose the option by failing to exercise it the very moment she knows that he has done so for “ a second marriage is not a single but a continuing wrong to the first wife.”
28. Sayeeda Khanum v Muhammad Sami, PLD 1952 (WP) Lah 113(FB)
29. Ephroz, Khan Noor ;Women and law; Muslim Personal Law Perspective, Rawat Publications, 2003.
30. This lack of access to the origin and primary sources of Islamic law might have resulted in the autonomous decisions and hazy understanding of the law by courts which might not be in agreement to the Qur’an.
31. Chaturvedi, Archna, Muslim Women and Law, Commonwealth Publishers, 2004, p.5
32. Qur'an (33:35), Jamal Badawi,, Gender Equity in Islam, quoted on
http://www.islam101.com/women/equity.html last visited on 11th Dec, 2007.
33. Kecia Ali, “The Feminist Sexual Ethics Project”, available online at http://www.brandeis.edu/projects/fse/Pages/divorce.html, visited on 2nd jan,2008.