Open Access Research Article
EVOLUTION OF WOMEN RIGHT REGARDING FAMILY MATTER UNDER ISLAMIC LAW
Published Paper
Article Details
AUTHORED BY - SIFAT AASIYA AJMERI
ABSTRACT
The
application of a certain body of law to individuals determines whether the laws
in question are territorial or personal. To those who identify with a certain
religious group, the body of civil law known as "personal law"
applies. Therefore, Muslims in India are subject to Mohammedan law. The law of
Mohammed is a personal law. An individual's "personal matters" are
governed under the subset of civil law known as Muslim personal law.
Muslims
in India are subject to what is known as "Muslim personal law," which
is a branch of Islamic civil law. Injunctions from the Quran, Sunnah, and
Ahadis, as well as the consensus view of jurists (Ijma), and the logical
inferences from these three sources (Qiyas2) make up Muslim personal law.[1]
In
India, people of different faiths coexist. The country's strict enforcement of
personal laws is a result. Christians, Hindus, and Muslims all have a say in
India's legal system. Personal laws differ from other types of laws in that
they are based on religious principles, which are inherently subjective.
A
subset of Muslim theology, Islamic law establishes the rules for how Muslims
should behave towards God and one another in conformity with Islamic teachings.
It is the obligation of every Muslim, according to PBUH, to adhere strictly to
Muslim law as it is a mandate from God and the rulers of Muslim nations.
Muslims are those who have embraced the notion of peace through submission to
God, as outlined in Islam, which signifies peace through submission and
obedience to God's will and commands.
HISTORICAL BACKGROUND OF ISLAM
One
must be well-versed on the Pre-Islamic Era's history, origins, and development
of Islam in order to comprehend the actual character and extent of Muslim law.
It was no easy work to piece together the history of pre-Islamic Arabia in the
630s, before Islam came into the picture. Few archaeological sites were
investigated, and there is a dearth of indigenous written records. Importantly,
the research takes into account both written materials from other faiths and
oral traditions that were subsequently documented by Islamic academics. In
order to comprehend how Islam spread to India, one must examine the history of
pre-Islamic Arabian society.
Ancient
Arabian Civilization:
The
birthplace of Islam is Arabia, however pre-Islamic Arabian society is often
believed to have been just as morally and culturally desolate as the region
itself. Daytime temperatures reached dangerously high levels, but evenings were
chilly. In the distance, all that could be made out were palm and date trees,
along with a few desert plants. The unkind character of the land made life very
difficult for the inhabitants. With the exception of a few of cities like Mecca
and Medina, there was no permanent social structure. The Arabian people relied
heavily on commerce and livestock rearing for their livelihood. The Arab people
did not adhere to a single faith. Some of them revered supernatural beings,
while others held nature in high esteem. Because there was no established
religion, prophet, or sacred text at this time, it was called
"Jahiliyah" (the Days of Ignorance). The people of the desert
obviously didn't know anything about religion or God since they were too busy
focusing on making a living to devote any mental energy to contemplating these
abstract concepts. There was no permanent community since the people who lived
there were always on the move. Government and administrative authority over the
people were therefore nonexistent. Elected chiefs oversaw the several subtribes
that made up the larger tribes. Head leaders were known as caliphs or khalifas.[2]
The
practices and habits that were common in the pre-Islamic era were quite
strange, and many of them were downright cruel and illogical. They practiced
burying undesired female children alive, which seemed unbelievable. The norms
of the society were skewed towards the masculine gender. Women were in a
terrible position. They treated women like property and did not treat them with
any respect whatsoever. They were so despised by society that they were
effectively enslaved. He is free to marry as many women as he desires since
there is no legal limit on the number of spouses he may have. The freedom to
divorce a woman at any time was unfettered even for Arab husbands.
Besides,
women in the pre-Islamic era had it so bad that not even their modesty and
virginity were protected; they were bought and sold. Women were mortgaged to
men in the Age of Ignorance.
The
harsh penalty for crimes was another key element of the pre-Islamic era. Both
deterrence and retaliatory purposes were served by punishment. As punishment
for stealing, the criminal had his right hand severed. Also, the crime of
adultery carried the death penalty of being stoned.
We
may therefore get a clear picture of pre-Islamic Arabian society from the
preceding topics. To sum up, pre-Islamic Arabian society was savage and morally
rotten.
The Advent of Islam and the Reforms
under Prophet Mohammad:
In
a world when injustice, cruelty, and oppression are on the increase, religion
must emerge as a means for society to govern the conduct of its members. Some
believe that religious institutions do a better job of inculcating moral fibre,
respect for authority, and honesty in a community than secular ones. A common
bond that many individuals have is their religious beliefs. Through the
establishment and maintenance of moral principles and values, religion aids in
the improvement of society and brings about peace, justice, quality of life,
and prosperity.
Society
in pre-Islamic Arabia also struggled with injustice and violence. As a saviour,
the PBUH presented a new faith to the Arab world; he dubbed it Islam. PBUH was
born at Mecca in the year 571 AD. Amina and Abdullah were his parents. In
Mohammad's childhood, both his uncle Abu Talib and grandfather Abdul Muttalib
played important roles (PBUH). At the tender age of thirteen, Mohammad joined
his uncle in business, displaying a serious demeanour that had been with him
from childhood. During a trading mission to Syria, Khadija, an affluent widow,
met Mohammad (PBUH) when she hired him to oversee her land. She was deeply
affected by Mohammad's (PBUH) virtue and offered him her hand in marriage. In
contrast to Mohammad's twenty-five years of age, she was forty. Prophet lived
with her till the day she passed away. Prophet married various widows after
Ayesha Begum's death, with the exception of the fourth. As a result of their
marriage, Muhammad and Khadija produced six children: two sons and four
daughters. His sole surviving daughter was Fatima, the fourth in the family.[3]
The
PBUH spent a great deal of time alone himself. He was a thoughtful guy and a
devoted Christian. A cave on Mount Hira was his frequent retreat for
contemplation and prayer. Official recognition of Mohammad as a prophet came
when he received his first Wahi, or message from God, in his forty-first year
of life. A voice was heard by him. Gabriel, the archangel, was speaking. There
was a great deal of fear, doubt, and anxiety for Mohammad (PBUH) when the angel
departed. Therefore, Mohammad memorised this as the first revelation. The Holy
Quran, on the other hand, is a compilation of revelations that were later
documented by the companions of Mohammad (PBUH). Thus, the Quran is more
accurately described as a divine revelation than a work of fiction. This was
the original method of creating Islam in 610 AD.
Not
only was Mohammad (PBUH) a great preacher of Islam, but he was also an
outstanding social reformer. By establishing new standards of living for the
benefit of society, Mohammad (PBUH) hoped to eliminate the social problems that
afflicted it. Khadija, the prophet's (PBUH) wife, was commanded to believe and
accept the divinely-manumitted directives. Nonetheless, these lectures were
opposed by the majority of Meccans. There were several confrontations between
those who followed the religion and those who did not. Nonetheless, due to the
prophet's (PBUH) magnetic personality, most Arabs converted to Islam very
rapidly.
The
development of Muslim law may be divided into five periods.
The First Period (622-632 AD): The
legislative term begins in 622 and ends in 632. The foundation of Muslim law
may be traced back to 622 A.D. (Hejarat) and concludes in 632 A.D. At Mecca in
609 A.D., Allah spoke to the Prophet (PBUH) for the first time. Afterwards, the
people of Mecca were apprised of the divine revelation that was sent to the
Prophet (PBUH) on a periodic basis. The revelations in Mecca, however, were
mostly spiritual rather than religious and did not contain any positive
legislation (Fiqh) as the majority of people did not accept Mohammad (PBUH).[4]
When
PBUH travelled to Medina in 622 A.D., the people there readily accepted the
revelation he had brought. The disclosures were sufficient and significant to
resolve all societal issues. Revelations of any significance occurred between
the years 622 and 632 A.D. Teaching people the right and wrong ways to live was
the Prophet's (PBUH) primary mission.
The
final decade of the life of the Prophet (PBUH) is the basis for the first two
canonical sources of Muslim law: the Quran and the Hadith. It was at this time that the majority of the
Quran's legal passages, as well as many of his most important judicial rulings
and traditions, were revealed. The Quran's verses are considered to be
revelations from on high, while the traditions are considered to be revelations
from below. Thus, Islam's first historical era is appropriately referred to be
the "Legislative Period".
The Second Period (632-661 AD):
The Caliphate Period is another name for this time frame. This time frame
consists of thirty years. The first four Islamic caliphs are known to have
lived during this time. No one is selected to succeed the Prophet (PBUH) after
his death.
The result was an election where Abu Bakr became victorious. This officially recognised Abu Bakr as the first caliph of Islam. Notably, the youngest bride of the Prophet (peace be upon him) was the daughter of Abu Bakr. Caliph Abu Bakr enjoyed widespread acclaim. Omar succeeded him as Second Caliph upon his death in 634 A.D. The third caliph was Osman, and the fourth was Ali, chosen immediately after. Because of their strong relationship with the Prophet (peace be upon him), these four caliphs were referred to as the correctly guided caliphs.
Following Mohammad's passing, the holy messages were dispersed. The second period saw the gathering and writing together of the dispersed revelation to provide its ultimate form. Zaid, a companion of the Prophet (PBUH), compiled the original Quran, but the third caliph requested that he edit and modify it because of certain passages that contradicted each other. So, Osman's Compilation is the only genuine Quran version that we have today.
The result was an election where Abu Bakr became victorious. This officially recognised Abu Bakr as the first caliph of Islam. Notably, the youngest bride of the Prophet (peace be upon him) was the daughter of Abu Bakr. Caliph Abu Bakr enjoyed widespread acclaim. Omar succeeded him as Second Caliph upon his death in 634 A.D. The third caliph was Osman, and the fourth was Ali, chosen immediately after. Because of their strong relationship with the Prophet (peace be upon him), these four caliphs were referred to as the correctly guided caliphs.
Following Mohammad's passing, the holy messages were dispersed. The second period saw the gathering and writing together of the dispersed revelation to provide its ultimate form. Zaid, a companion of the Prophet (PBUH), compiled the original Quran, but the third caliph requested that he edit and modify it because of certain passages that contradicted each other. So, Osman's Compilation is the only genuine Quran version that we have today.
The Third Period (661-900 AD):
Following Ali's murder, the third caliph of Islam entered a new era in Islamic
legal thought: the Third Phase. The sons of Ali were Hussain and Hasan. Hasan
was appointed Caliph upon Ali's demise. Caliphate was the standard for regular
kinship. By the year 750 A.D., Islamic law had already expanded far and wide,
particularly inside the Sunni Caliphate.
During this time, Muslim law evolved in many ways, which is a major
accomplishment. The first step was to gather and analyse the dispersed Sunnat
and Ahadis of Muhammad (PBUH). During this time, Bukhari, Muslim, and Malik
Ibn-Anas were among the most influential scholars. An further innovation that
was considered the most scientific approach to lawmaking was analogous
reasoning, also known as Qiyas.[5]
The Fourth Period (900-1924): When
it comes to Islamic legal history, the Fourth Period is up there with the best
of them. During this time, the traditions and precepts were compiled. When it
comes to collections, Bukhari is considered the most authoritative.
During
this time, the fourth Sunni Schools are being established. His dynasty lasted
until 1517 AD, when Abdul Kasim Ahmed of the Sunnis Sect became caliph. The
growth of Muslim law came to a standstill at this time, which is an important
point to remember. That is, no one with the knowledge or scholarship to propose
new legal ideas arose after the death of the Profounder of the Fourth Sunni
Schools. Once the four jurists established their rules of law, society began to
obey them. Nonetheless, a number of other scholars began issuing their own
rulings, or Fatwas. The fatwas, or views, are not, however, canonical in Muslim
law. Fatwai Qadi Khan and Fatwai Ailamgiri were two of the most significant
fatwas.
The Fifth Period (1924 A.D. to Till
Date): After the Caliphate was abolished in 1924 A.D., the
contemporary Period of Islamic Law started. Traditional Islamic law was not
administered or enforced since there was no Caliph Head. Ijtihad, or
independent reasoning, was more useful in shaping Islamic law in this context.
Putting one's own judgement on a matter or the rule of law to the test is the
technical definition of these words. It is also believed that the ulema—a group
consisting of muftis, Maulvi or Moollah, Kazi, Mujtahid, and jurists—have
helped shape Islamic law. A new era of law emerged thereafter within Islamic
jurisprudence. A number of Acts passed by the British government altered the
system in India. Marriage, divorce, dower, gifts, wills, inheritance, and other
family-related matters were subject to Muslim personal law. In spite of this,
all Indian nationals were subject to the same laws and statutes, including the
Indian Penal Code, the Criminal Procedure Code, the Civil Procedure Code, the
Contract Act, etc. The Dissolution of Muslim Marriages Act was enacted in 1939,
after the Shariat Act of 1937. The Parliament has established many additional
statutes that govern Muslim personal law. Thus, the existing Muslim law of
India comprises both the canonical texts and the codifications of statute and
case law.[6]
Quran as the Foundation of Muslim
Law:
The
correct definition of the term "Quran" is "that which ought to
be read" or "The reading." As the primary text for Islamic law,
the Quran is a divine revelation to the Islamic prophet (peace be upon him). As
far as Muslim law is concerned, it is paramount and superior. The first
revelation, or Wahi, reached the Prophet (PBUH) in 609 A.D., as previously
stated. After then, it lasted for another 23 years, in bits and pieces, until
632 A.D. Therefore, it was the literal manifestation of God's words as they
were conveyed to the prophet (PBUH) by Angel Gibriel. There are over 66,66
verses in the current version of the Quran, which is organised into 114
chapters. Under the direct instruction of the Prophet, the chapters were
synced. Ayat are the individual verses in the Quran, while Sura are the
chapters that make up this sacred text. As a result, the Quran is the
cornerstone of Islamic law. Being the perfect law and a direct decree from
Allah, its importance is spiritual and holy.
Matters where Personal law is
applicable to Muslims:
The
first two groups are the only ones to whom Muslim law applies. Muslims do not
rely on their personal law when dealing with issues of criminal law and
evidentiary law.
LEGAL STATUS OF MUSLIM LAW IN INDIA
India
stands apart from other countries due to its religious pluralism. For as long
as anybody can remember, Islam has been a thriving religion in India. The
following two aspects of Muslim law must be understood in order to comprehend
its legal standing in India: Before the British Empire Those in charge of
Indian kingdoms were granted complete religious freedom. Thus, the Muslims were
subject to their own code of law and did not allow their rulers any meddling.
Similarly, Muslim rulers in India do not meddle in the religious affairs of the
country's many faiths and communities. During the British Period, there were
two categories: Dar-ul-Islam and Dar-ulHarb. When a Muslim takes power in
India, the country might be considered Dar-ul-Islam according to this
categorization. Furthermore, Dar-ul-amn refers to a nation in which Muslims and
non-Muslims peacefully coexisted under a joint government.[7]
Islamic Law under British Rules:
A
system of British law was introduced into India when the British colonisers
took control of the nation. The Indian system of Pluralism already has this
component. The English colonisers in India introduced their system of law known
as common law and the statutes they had passed. In time, they began enforcing
various forms of British law on India while claiming Lex Loci as their legal
cover. The British Parliament even acknowledged that India needed a system of
law immediately. As a result of the Law Commission's recommendations and the
charter Acts of 1833–1853, India adopted a large body of British codified law.
The Indian Penal Code of 1860, the Indian Succession Act of 1865, and the
Indian Evidence Act of 1872 are only a few examples of the laws enacted in the
aftermath of the 1857 uprising.
Outside
of these statutes, rules that were originally associated with religion remain
unaltered. Muslims in India came into being as a result of the Indian people's
autonomy and the fact that their religious traditions were permitted to rule
themselves. Assisting those with expertise in Muslim law, the Anglo-Indian
Courts primarily oversee matters pertaining to Muslim law. The Anglo-Indian
Courts transcribed the "Fatawa-e-Alamgiri" from the Ithna Ashari Shia
Law code so that it could run smoothly. Sharai-ul-Islam by Najmuddin al-Hilli,
a two-volume compilation of Muhammadan legal treatises. This meant that the
Anglo-Indian courts had access Islamic legal texts translated into English.[8]
Rapid
adoption of the English method of codifying legally enforceable decisions into
books and digests occurred in Islamic law. Principles and precedents of
Muhammadan law (Calcutta, 1825) by W.H. MacNaghten was the first outstanding
collection of Anglo-Muhammadan" judicial precedents. Dinshaw Farideenji,
another significant masterpiece, emerged a century later. Muhammadan Law as
Presented by the Mulla (Bombay 1906).[9]
The
employment of Mulla is commonplace in both the higher and inferior courts of
British India. Despite the presence of works by Abdur Rahim and Ameer Ali, they
were not widely used. The code that Mulla developed, organised by part, was
approved by the court.
The
Islamic Sharia plainly forbade that.
MUSLIM LAW UNDER THE PRESENT LEGAL
SYSTEM
The
Indian Constitution makes particular reference to "Personal Law" in
the seventh Schedule appended to Article 246. This schedule has three lists of
"Subject Matters of laws made by Parliament and by the State Legislatures
of States."
The
following matters were included in the list under entry 5: marriage and
divorce, adoption, minors and babies, intestacy and succession by will, joint
family and partition, and any other matters that the parties involved in the
legal processes had personal jurisdiction over prior to the start of this
condition.
Numerous
authors and researchers have examined the position of Muslim women in
pre-Islamic societies, and their findings are not novel. Traditional tribal law
did not recognise women as full members of society during the pre-Islamic era.
Muslim women before then had no legal protections and were instead bought and
sold for the benefit of their guardians. No rights of succession or property
were bestowed upon them. There was
unrestrained polygamy and female infanticide mentioned in various literary
sources. There were several forms of marriage common in the time before Islam,
including patrilineal marriage.
Before
Islam came to Arabia, women did not have the same rights or perform the same
roles as males because of the different social statuses of the two groups. Some
evidence suggests that women in Arabia (the Nabataea Kingdom) had separate
legal identities; for instance, in Makkah, a number of privileges were bestowed
to the female members of society. In addition to this, a few of them have been
in positions of significant authority.
Among
the most well-known practices in pre-Islamic Arabia was the practice of burying
live female newborns. There were primarily two reasons for this: first, the
financial burden of caring for a baby girl, and second, the fear of torture at
the hands of the hostile tribe.
According
to a Hadith in Bukhari, the second Caliph Umar remarked, "we never used to
give significance to ladies in the days of the Pre-Islamic period of ignorance,
but when Islam came and Allah mentioned their rights, we used to give them
their rights but did not allow them to interfere in our affairs." This
verse suggests that Islam elevated the status of Muslim women.
It
is not simple to comprehend the ideal family structure during this period as
research on the formation of families in pre-Islamic Arabia has not provided a
clear picture. From a macro perspective, it seems that the family structure is
mostly patriarchal. Because of the widespread belief in their inherent
superiority, families preferred to produce sons rather than daughters. Even
after the father's death, the woman would have no legal claim to the bequest as
her only rights were those inside the family. To be more specific, bearing male
progeny is the supposedly crucial function of women inside the family. Chores
around the home include cleaning, laundry, buttermaking, making clothing for
renters, and spinning wool. Women in the pre-Islamic era did not have many
rights, as a result. [10]
Position of Women in Islamic Society:
Muslims
of both sexes are expected to fulfil their religious duties, which include
worship, prayer, fasting, and pilgrimage to Mecca, as they are seen as equal in
God's view. "I will not allow the labour of any of you, male or
female," the Quran declares. Each of you comes before the others.
(Mohammed 3:195).
The
prophet Muhammad (peace be upon him) brought forth several commendable
advancements. It was at Mecca, in particular, that Muhammad sought to institute
a matrilineal system to supersede the patrilineal one. Fundamental protections
for women were bestowed upon them by Muhammad (PBUH), who instituted several
significant rights, including the right to inherit, the ability to own
property, and the freedom to divorce. The standing of women in society was
elevated in the 7th century by changes to three areas: marriage, divorce, and
inheritance rights. The oxford dictionary of Islam calls for women's
independence, which includes ending female infanticide and recognising women as
complete human beings. According to the
prophet, the bride price that was once given to the father is now considered a
marital gift that the woman keeps as her own property. It was previously not
considered necessary to get the bride's assent to the marriage in the
pre-Islamic era, but Muhammad's reforms made it absolutely necessary.
Patriarchal societies have also liberalised the ability to inherit, which was
historically reserved for males.[11]
The
Islamic era saw tremendous progress in women's standing compared to the
pre-Islamic era, mostly as a result of law. Muhammad further raises women's
standing by protecting their rights in the fields of education and economics.
Women were also active in the workforce, working in a variety of professions
and engaging in commercial activities. Research into Muhammad's life reveals
that he sought advice from women and gave their opinions great consideration.
When the Quran was canonised, women played a crucial role in the process.
Patriarchal cultural standards, rather than Quranic values, dictated how women
were to be treated in pre-modern Islam.
Therefore,
elevating women's position becomes an important concern in contemporary
reformist Islam.
Provision of Quran upon the Status of
Women:
Out
of all living things, Allah values females the most. "And we have surely
honoured the children of Adam and brought them on land and sea and provided for
them of the good things and preferred them over much of what we have created,
with [definite] preference," according to verse 17:70 of the Quran.
According
to the Holy Quran, men and women are treated equally in matters of punishment
and reward. There is no greater significance than doing Islamic duties and
taking part in religious ceremonies. O human race, without a doubt, the Quran
states it directly. We separated you into many groups based on gender so that
you could understand and respect each other's cultural backgrounds. Allah looks
at the most upright among you with the highest regard. According to al-Hujurat,
Allah is acquainted with one [49:13].
They
are also obligated to each other and have equal rights according to the Quran.
As for partners in a relationship, it is also permissible to urge them to
fulfil their responsibilities [AI - Baqarah, 2:228].
Holy
Quran criticises pre-Islamic era's abuse of women in [An Nah, 16'58-59].
Muslims are commanded to treat women with love and tenderness in An-Nisa 4.19
of the Holy Quran. "Load them of where you dwell out of your means and do
not harm them in order to oppress them" is another important provision
from the Quran, as mentioned in verse [Al-Talaq 36.5]. You should hasten the
birth if they are expecting a child. The Holy Quran also states, "Then,
either hold [her] in a respectable way or release [her] with decent care"
[Al-Baqarah, 2:229], thus it's important to pay them if they're nursing you and
have a mature conversation about it.[12]
The
passage from the Quran states that one's status in society, race, gender, or
ethnicity have no bearing on who has precedence or supremacy. Taqwa, also known
as God Consciousness, is the central focus of Islam, as taught by the Prophet
Muhammad (PBUH). Allah prioritises taqwa (respect) over gender. So, it's
crucial to acknowledge the position of women at that era as well, in line with
what the Quran says.
The
Holy Quran also taught us that men and women are not meant to compete with one
another but to be equal partners in life, supporting and uplifting one another.
In order for a community to stand, both of these duties are essential. This is
obvious even in paradise. Because of their inherent inseparability, Allah (SWT)
created Eve (Hawwa) specifically for Adam (Adam). Islam acknowledges that men
and women are equal, but that people's actions speak volumes about who they
are.
Pre-Islamic
societies often engaged in cruel and savage rituals. A female child that was
unwanted would be laid to rest by them. Women were seen as nothing more than
objects. One was not restricted in the number of wives they may have. Divorce
might be declared by anybody at any time. It was a discouraging life for the
ladies. Men mortgaged women in other instances as well.
With
the new religion of Islam, the Holy Prophet Muhammad (PBUH) arrived in Arabia
as a rescuer and liberator. He spent much of his time alone in the Mount Hira
cavern. The Quran and hadith were revealed to Muhammad by Angel Gabriel in 610
AD, when he was forty years old. Islam came to be. Muhammad (PBUH) was a great
social reformer who worked for the benefit of society. There were many
conflicts between Muslims and non-Muslims since the inhabitants of Mecca were
so resistant to the teachings of the Holy Prophet (PBUH). The prophet also
aspired to rid society of its pervasive social issues. Regardless, the most of
the Arabians converted to Islam during the lifetime of the Prophet (PBUH),
whose magnetic charisma inspired them to intellect. [13]
The
Holy Prophet (peace be upon him) instituted several reforms, including the
following: the unification of diverse tribes, the safeguarding of women and
society as a whole, the domination of Islam over pagan practices, the abolition
of infanticide, the prohibition of adultery and prostitution, and the
liberation of slaves. Divorce as an institution was changed. Women now have the
legal right to divorce their spouses, when formerly only a restricted number of
husbands could utilise talaq.
There
were changes in the educational system as well. Because of their paramount
significance, everyone felt driven to educate Muslim women. This chapter also
includes a chronology of Muslim law that divides its development into five
periods. In the first stage, which lasted from 622 to 632 AD, revelations were
sent to the Holy Prophet (PBUH). The inhabitants of Mecca flat-out rejected the
revelation that had come from Medina. In the last ten years of his life, the prophet
produced two canonical texts: the Quran and the Hadith.
The
years 632–661 were known as the Second Caliphate. After the death of the Holy
Prophet (PBUH), no one is selected to succeed him. Divine messages were sent in
different directions. Being a close colleague of the Prophet (PBUH), Zaid was
tasked with gathering the fractured revelation. If you are looking for an
authentic Quran, your only option is Osman's Compilation. During the Third
Period (661-900 AD), Muslim legal theory and practice were at their peak. The
scattered Sunnat and Ahadis were collected and examined by them. The scientific
method of lawmaking during this period was analytical deduction, often known as
Qiyas. The era known as the Golden Age of Islamic Law, which lasted from 900 to
1924, is the Fourth Period. Four Sunni schools came into existence during this
period.[14]
Starting
in 24 AD and continuing up to the current day, the fifth period is considered
the beginning of the modern age of Islamic law. Dissolution of the Caliphate (System)
The Ulema, which includes jurists, Muftis, and Moolah, made significant
contributions to the evolution of Islamic law.
After
then, the British government changed things with a slew of laws. In addition to
the Shariat Act of 1937 and the Dissolution of Muslim Marriages Act of 1939,
Parliament also passed legislation addressing Muslim governance in India.
In
the seventh schedule of Article 246 of the Indian Constitution, the term
"Personal Law" is used explicitly. Also covered in this chapter is a
history of Mohammedan law and how it came to be. There are two main places from
which Mohammedan law is drawn. Both primary and secondary sources may be used
in research. The primary sources are the Quran, Sunnat or Ahadis, Ijma, and
Qiyas; secondary sources include things like custom, judicial decisions,
legislation, justice, equality, and good conscience.
The
foundation of Mohammedan law is the All-Quran, which was revealed to the Holy
Prophet (peace be upon him) of Islam. Hadith and Sunnah are the words and
actions of the Holy Prophet (peace be upon him). All Mohammedan law, whether it
civil, criminal, or religious, is based on the Hadis, or laws of the Prophet
(peace be upon him). The first suggestion for organising the canonical
traditions came from Malik-Ibn-Anas.
The
ijma, or unanimous verdicts, of Muslim jurists are significant because they
have shaped the development of Muslim law. Jurists are expected to provide
their ijma, or opinions, on any matter that has not been specifically handled
in the Holy Quran, the Sunnah, or the Ahadis of the Prophet (peace be upon
him). It takes complete consensus among all jurists to establish an Ijma.
Finally,
the fundamental text for Muslim law is Qiyas. Qiyas, the Arabic term for
measurement, alludes to the reasoning based on analogy. Qiyas is the next line
of defence when the Quran, Ahadis, or Ijma do not provide an answer. However,
qiyas must conform to the teachings of the Quran.
On
rare cases, while examining the secondary sources of Mohammedan law, custom was
cited as a further source, even though it was not a major source in and of
itself. In addition to being ancient, universal, territorial, and timeless,
customs should not clash with state policy.
Decisions
made by the highest courts as well as those of subordinate courts are
collectively known as judicial judgements. These may be used as models in
India. Beganu v. Abdul Gafoor[15] and
Shah Bano Begum v. Mohd. Ahmed Khan[16]
are two notable instances.
The
majority of Mohammedan law is based on statutes. Justice, equality, and good
conscience are cornerstones of Muslim law. • The laws enacted by India's
parliament apply to all people, including Muslims. This chapter has also
discussed the numerous Muslim legal schools and sects. According to Mohammedan
law, there is a Juristic Preference that may be used to fill special
requirements. Sunni, Shia, and other schools make up Motazilla's religious
landscape. Those who adhere to Sunni law will be classified as Hanbalis,
Malikis, Shafis, and Hanafis. The three main schools of Shia thought are the
Ithna Asharia, Ismailya, and Zaidya schools.
The
founder of the Hanafi School was Abu Hanifa. He became famous for his advocacy
of juristic opinion, or Istihsan, which contributed to the codification of
laws. The legal ideas put out by Imam Abu Hanifa were grounded on the teachings
of the Quran and the Hadith. The Maliki School of thought emerged in Madina,
where Imam Malik was a major figure. Most of his time was spent studying
Islamic law and Hadith. More weight is given to Medina's traditions and
practices by him. A significant addition to the field was Malik's book,
Muwatta. Prophet Muhammad (peace be upon him) founded the Shafi School. He is
the one who created Islamic law, which is based on the Holy Quran. Based mostly
on Hadith, he was a devout follower of the Ijma School of thinking.[17]
Those
who supported the Hanabali School were Imam Hanbal. The Hadith, he said, also
had a major role. He thought that Qiyas was a necessity and that Ijma may be
employed in dire situations. The majority of Shia belong to the Ithna Asharia
School. Iraq, Pakistan, India, and Lebanon are the four nations represented
among the followers of this school.[18]
The
Ismailyas originally settled in what is now India, Pakistan, Central Asia, and
Syria.
The
line of Zaidya ancestors is the line of the Zaidya School. The Motazila, the
third school of Muslim jurisprudence, had its strongest adherents in southern
Arabia. In Motazilas, there are no subschools. This school of thinking is held
by a small minority.
Notably,
the chapter delves into the role of Muslim women throughout the pre- and
post-Islamic periods. There were no laws protecting women in the pre-Islamic
period, and practices such as female infanticide, limitless polygamy, and
patrilineal marriage were widespread.
Patriarchy
reigned supreme, men had infinite power, and women endured horrific conditions
throughout the pre-Islamic era.
A
lot of patriarchal traditions died away as Islam spread. There was also a
degree of power given to the women of the community. Women had the Holy
Prophet's (PBUH) undivided attention and tolerance. The formerly restricted
power to inherit was also changed. The right to divorce was extended to women
by Khula. With Mahr, she becomes the only owner. The consent of both men and
women is necessary for a marriage to be valid.Numerous verses in the Quran
affirm the value of women. According to the Holy Quran, men and women should be
treated with equal respect. (Surah Nisha 4:19 and Al-Baqarah 2:229). Men and
women are on equal ground in Allah's eyes.
The
status of Muslim women, both socially and legally, has undergone substantial
transformation from the pre-Islamic era to the post-Islamic period, greatly
influenced by the teachings of Prophet Muhammad (PBUH). Understanding these
changes is crucial for comprehending the advancement of women's marital rights
under Islamic law.[19]
The
Pre-Islamic Context
In
pre-Islamic Arabia, the rights of women were severely restricted under the
prevailing customary laws, which were overwhelmingly patriarchal. The primary
roles of women were limited to sexual fulfillment and childbearing within
marriages that lacked uniformity and recognition of the woman's rights.
Essentially, women had no established marital rights, rendering their status
within society extremely precarious.
Transformation
Post-Islam
The
advent of Islam marked a revolutionary shift in the status of women. Prophet
Muhammad (PBUH) championed significant reforms that acknowledged women's
individuality and human dignity. These reforms provided women with rights
concerning property, inheritance, education, marriage, and divorce, thus
elevating their position in society.
Islamic
Perspective on Marital Rights
- Mahr
(Dower): Islamic law ensures that a wife receives
her dower, a form of financial security, as stipulated by legal
requirements.
- Maintenance: A wife is entitled to financial support from her husband, covering
her living expenses and wellbeing.
- Residential
Rights: She has the right to a living space that is
dedicated to her and her husband’s joint use without external
interference.
- Equitable
Treatment: A wife is guaranteed equal treatment and
fair division of attention and resources from her husband.
- Marital
Dissolution Rights: She possesses the right to seek
a divorce under lawful circumstances or specific pre-agreed conditions in
the marriage contract.
Independent
Legal Status and Conjugal Rights
A
legally married Muslim woman retains her independent legal identity. She can
initiate legal proceedings in her name and does not have to take her husband’s
surname, maintaining her affiliation with her father’s family and her rights
therein. The husband has no claim over his wife’s property, and similarly, she
does not automatically acquire rights over his property during his lifetime.
Employment
and Property Rights
The
Quran explicitly supports the notion that what a woman earns is her own.
Historical precedents, such as the business acumen of the Prophet’s wife,
Khadija, underline the Islamic validation of women’s right to work and earn
independently. Any domestic arrangements do not undermine her ability to seek
employment, unless voluntarily agreed otherwise.
Maintenance
and Conjugal Rights
Islamic
law imposes a clear obligation on the husband to provide for his wife, which
includes necessities like food, clothing, suitable accommodation, and
healthcare. A wife’s right to maintenance is contingent upon her fulfilment of
marital obligations unless exempted under specific legal conditions.
Rights
to Sexual Relations and Use of Contraceptives
A
Muslim wife may rightfully refuse conjugal relations under certain conditions,
such as the non-payment of dower, lack of maintenance, or instances of cruelty.
Forced sexual relations, even within marriage, are prohibited under modern
legal frameworks, including the Indian legal system where such acts are
criminalized.
Restitution
of Conjugal Rights
The
doctrine of restitution of conjugal rights is a fundamental aspect of Islamic
marriage, entitling the wife to live with her husband unless legally separated.
This right ensures that a wife can demand the fulfillment of marital
engagements, and it is enforceable through judicial decree.
Constitutional
and Universal Rights
Under
the Indian Constitution, Article 21 assures every individual the right to life
and personal liberty, which extends to the right to marry. This is supported by
international declarations such as the Universal Declaration of Human Rights.
The
Debate on Polygamy
While
historical Islamic texts permit polygamy, it is regulated strictly under the
Quran, which advises monogamy unless justice among multiple wives can be
assured. The practice was initially a solution to social issues of the time and
is not encouraged without just cause in contemporary settings.
A
provision in the Quran states: "give women their dowries freely; and if
they are good enough to remit any of it themselves, then devour it with good
digestion and appetite." This provision lays the groundwork for the Mahr
legislation.
Undoubtedly,
Mahr or Dower is one of the major topics of the Islamic Society. In exchange
for their marriage, the husband owes his wife a certain amount of money or a
certain quantity of property. In an effort to promote gender parity in society,
Islam has traditionally endorsed a clear division of labour within the home,
with women handling domestic administration and men tending to the financial
needs of the married couple.
There
is widespread agreement among Muslims that a Muslim woman has a monetary right
to receive Mahr, also known as Dower, as stated in the Holy Quran and the
Sunnat of the Prophet (PBUH). Dower or Mahr may take several forms, including
money, jewels, land, animals, profit, trade goods, and profit itself. Knowing
the precise or approximate value of the Mahr or Dower is the only prerequisite.
All the schools of thought hold that, with the exception of the Maliki School,
value has no bearing if it cannot be determined. Marriage contracts are
considered null and void by the law before to consummation, but they are
considered lawful after consummation has taken place, according to the Maliki
School.[20]
At
the moment of marriage, a Muslim woman has the right to the Mahr in Islam
according to the Shafi, Hanafi, and Hanabali Schools of Islam. The groom or his
father is legally obligated to provide a sum of money or possessions to the
bride as a mahr, which is then legally considered her property, when they are
married. Although money is the most common Mahr, the bride and groom may agree
on anything, including jewels, handmade items, or anything else.
Words
like "Mohar" in Hebrew and "Mahra" in Syrian, both of which
mean "Bridal Gift" but originally meant "purchase money,"
are linked to mahr. The term suggests a present that is given willingly rather
than as a consequence of a contract, but according to Muslim religious law, it
is a gift that the groom is required to give to the bride when they enter into
a marriage contract and which thereafter belongs to the wife.
Although
dower is a necessary condition for a marriage to be legally binding, the
validity of the marriage is not contingent on its explicit mention. Therefore,
even if no dower is settled at the time of the contact, the fact that it is not
settled does not impact the validity of the marriage. In such a case, the wife
becomes entitled to the dower customary in her family. However, the law holds
the husband legally liable by giving the lady the usual dower in cases when it
is stipulated that there would be no dower.
The
marriage contract stipulates that the husband must pay his wife dowry as a
token of his appreciation and remuneration for his sexual relations with her.
Mahr in Pre-Islamic Society:
Before
Islam came to Arabia, there was a great deal of social, economic, and political
inequality in the region. Patriarchy and male dominance were evident in every
aspect of society. In those days, it was common practice for a man to have
complete authority over a woman. If one were to turn back the pages of history
and wipe the dust off a lady's portrait, they would see a teary-eyed woman.
She, too, endured terrible treatment, and her role in the home is that of an
object.
When
entering into a marriage, a woman was never given the freedom to choose. Her
male relatives, such as her father, brother, cousin, or guardian, would often
be granted this privilege upon her marriage. Her marriage is legally binding
regardless of the women's permission. The bride's family, including her father,
brother, or cousin, would traditionally receive the amount of Mahr.
Many
other types of sexual interactions between men and women were common in ancient
pre-Islamic Arabia, before the institution of marriage as we know it now
emerged. A few were short-lived and not much better than prostitution. It was
common practice for men to abandon their spouses after they had robbed them.
There was no structured system of law, therefore the old practice of settling
specific amounts for the wife's maintenance in the event that she was cast out
was commonly ignored. Someone called SHIGHAR had a gadget that was all the
rage. This kind of marriage occurs when one man marries off his daughters or
sisters to another, and the other guy does the same with his own daughters or
sisters. That meant there would be no dower for either of the spouses. A common
method of denying a woman her dower was to falsely accuse her of being
unchaste. [21]
The
bride was referred to as Sadiqa, meaning female acquaintance, and the wedding
present was called Sadaq in a so-called Beena marriage, in which the husband
paid her visits but did not bring her home. Sadaq and Mahr are interchangeable
terms in Islam; both refer to dowries. The two terms have different meanings
from the start. A sadaq is a present for the woman, whereas a mahr goes to the
wife's parents; the latter is a matter of dominion in a baal marriage, in which
the wife receives compensation. In these types of marriages, the woman would
own any gifts that were presented to her. Ascertaining dower, which becomes her
sole property, was a necessary prerequisite for a marriage to be recognised in
traditional marriage ceremonies.
Mahr in Islamic Society:
In
the seventh century AD, when PBUH was at the height of his power, the position
of women was greatly elevated, and he outlawed the heinous practice of female
infanticide, which was practiced by some. A new Nikah was instituted with the
proclamation of Islam, which did away with the old practice and outlawed unfair
treatment of women and girls, as well as philanthropy: "it is not
permitted to you to appropriate the goods you have once given to them.” This
practice has its roots in ancient times, when husbands would provide financial
assistance to their wives when they were elderly or cared for by someone else.
In order to elevate the status of the woman in Islam, the Prophet also
acknowledged Mahr in the baal marriage form; when coupled with Sadaq, it becomes
a settlement or provision for the wife. Mahr is considered a gift or bride's
price in Islamic law, although traditionally it has belonged to the wife.[22]
The
fact that Mahr is obligatory in all circumstances, regardless of its amount or
value, is clarified in the Hadith. Who knows? It may be an iron ring. Offering
it with an open heart is the primary goal. If this is so, then the standing of
the persons involved must be considered while deciding Mahr.
The
Mahr is a fully acknowledged component of Muslim personal law in India. Because
of anti-dowry laws, it will not be enforced. The dissolution of Muslim
marriages Act, 193960 states that a ruling of divorce cannot impact a wife's
claim to Mahr.
Nevertheless,
when it comes to the functioning of the Mahr institution in India, there is a
lack of consistency in documenting the real behaviours that are common in
various regions or among families. Even within a single region, the Mahr rate
varies. While it's greater than ideal in certain circumstances, it's lower than
tolerable in others. From fifty rupees to many crores, it begins at the bottom.
Where no sum is indicated in the Nikahnama, the courts settle the cases
according to the traditions common in various areas. In most circumstances, the
Mahr is fixed at the marriage, known as prompt, while in others, it is given
after some time, known as postponed dower.
[1] Carroll, Lucy. "The Muslim family in India: Law, custom,
and empirical research." Contributions to Indian sociology 17,
no. 2 (1983): 205-222.
[2] Basu, Srimati. "Separate and Unequal: Muslim women and
un-uniform family law in India." International Feminist Journal of
Politics 10, no. 4 (2008): 495-517.
[3] Rahman, Fazlur. "A survey of modernization of Muslim
family law." International Journal of Middle East Studies 11,
no. 4 (1980): 451-465.
[4] Sezgin, Yüksel. "The Promise and Pitfalls of Women
Challenging Muslim Family Laws in India and Israel." Sexuality in
Muslim Contexts: Restrictions and Resistance (2012): 98-123.
[5] Narain, Vrinda. "Muslim women, family law and equal
citizenship in India." Journal for Semitics 16, no. 2
(2007): 498-517.
[6] Larouche, Catherine, and Katherine Lemons. "The
narrowness of Muslim personal law: Practices of legal harmonization in a Delhi
family court." The Journal of Legal Pluralism and Unofficial Law 52,
no. 3 (2020): 308-329.
[7] Giunchi, Elisa, ed. Muslim Family Law in Western
Courts. London: Routledge, 2014.
[8] Niaz, Noorjehan Safia, and Zakia Soman. Seeking
justice within family: A national study on Muslim women’s views on reforms in
Muslim personal law. Notion Press, 2023.
[9] Bilimoria, Purushottam, and Renuka Sharma. "Muslim
personal law in India: colonial legacy and current debates." The
Case of India (2014).
[10] Sezgin, Yuksel. "Do Not Betray God or Your People:
Negotiating Women's Rights Under Muslim Family Laws in Israel and
India." J. Int'l & Comp. L. 4 (2017): 81.
[11] Subramanian, Narendra. "Making family and nation: Hindu
marriage law in early postcolonial India." The Journal of Asian
Studies 69, no. 3 (2010): 771-798.
[12] Menski, Werner F. "South Asian Muslim law today: an
overview." Sharqi?ya?t: journal of the Dutch Association for
Middle Eastern and Islamic Studies 9, no. 1 (1997): 16-36.
[13] Abdullah, Raihanah. "Maintenance Rights for Muslim Wives
in India: Legal Response." Jurnal Syariah 15, no. 1
(2007): 43-54.
[14] Fournier, Pascale. "The reception of Muslim family law
in Western liberal states." DOSSIER 27 A Collection of Articles (2005):
65.
[15] AIR (1987) SC 1103.
[16] 1985 (1) SCALE 767; 1985 (3) SCR
844; 1985 (2) SCC 556; AIR 1985 SC 945
[17] Welchman, Lynn. Women and Muslim family laws in Arab
states: A comparative overview of textual development and advocacy.
Amsterdam University Press, 2007.
[18] Rahman, Fazlur. "A survey of modernization of Muslim
family law." International Journal of Middle East Studies 11,
no. 4 (1980): 451-465.
[19] Jones, Justin. "Towards a Muslim Family Law Act?
Debating Muslim women's rights and the codification of personal laws in
India." Contemporary South Asia 28, no. 1 (2020): 1-14.
[20] Mir-Hosseini, Ziba. "Moral contestations and patriarchal
ethics: Women challenging the justice of Muslim family laws." Shari’a
law and modern Muslim ethics (2016): 65-83.
[21] Balchin, Cassandra. "Family law in contemporary muslim
contexts: triggers and strategies for change." Wanted: Equality
and Justice in the Muslim Family (2009): 209-36.
[22] Mir-Hosseini, Ziba. "Justice, equality and Muslim family
laws: New ideas, new prospects." Gender and Equality in Muslim
Family Law: Justice and Ethics in the Islamic Legal Tradition (2013):
7-34.
Article Information
EVOLUTION OF WOMEN RIGHT REGARDING FAMILY MATTER UNDER ISLAMIC LAW
Authors: SIFAT AASIYA AJMERI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/03
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.