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ISLAM AND WOMEN : INDIAN PERSPECTIVE
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ISLAM AND WOMEN : INDIAN
PERSPECTIVE
AUTHORED BY - PRASHANT
DALAKOTI & PIYUSH DWIVEDI
Introduction
Religion has a purpose to regulate
individuals' conduct on moral lines. Religion gives meaning and purpose to
people’s lives. Likewise, the purpose of the practice of religion is to achieve
the goals of the salvation of oneself and others and to render due worship and
obedience to Allah. Religion becomes an ancient source for humans to fall back
to and regard its rule as life governing. From the point of view of a source of
law, religion is surely archaic. Surely, this cannot lead us to a presumption
that because religion precedes the legislative and other sources of law, it is
irrelevant. As civilizations have come a long way, there often arises a prima
facie conflict with respect to orthodox practices and notions of equality and
most often women are at the centre of things. Islam and the Muhammadan legal
system have found itself in the forums of discussion revolving around gender
equality. With 24.9% of the world population following the religion[1] the
proposition seems genuine. The question of gender equality with respect to women’s
rights constitutes one of the most important and topical issues in the human
rights and Islamic law discourse, particularly in relation to the human rights
practices of modern muslim states. A lack of clarity appears on the issue of
women freedom and independence vis-à-vis Islam. Much to the credit of
distortions and misunderstandings of the sayings of the religion. We seek to
look into women and its ever evolving relation with Islam
Status of Women in Pre Islamic Era
Under the customary tribal law existing
in Arabia at the advent of Islam, as a general rule women had virtually no
legal status. The Constitution or of Arab society when the laws of Islam came
into force was that of a people which had not yet completely lost its nomadic
habits and characteristics.[2] The tribe
acted as the main functional unit of Arabian society and was composed of people
with connections to a common relative. These tribes were patriarchal and
inheritance was passed through the male lines. The tribal leader enforced the
tribe’s spoken rules, which generally limited the rights of the women. Women
were often considered property to be inherited or seized in a tribal conflict.[3] In the
nomadic Bedouin tribes, tribal law determined women’s rights. The polytheistic
Bedouin clans placed heavy emphasis on kin-related groups, with each clan
clustered under tribes. In
Ancient Arab women had no legal rights, instead they were treated as an object
of sale and exploited by their father as their father used to sell them in
marriage to the highest bidder and marriage was not treated as sacrament in
Ancient Arab. They had no legal rights; in youth they were the goods and
chattels of the father; after marriage the husband became their lord and
master. Polygamy was universal, divorce was easy and female infanticide was
common.[4]
It is seen that there were patterns of violence against girls and women ,
including killing female infants who were deemed to be a liability. The Arabs
in Jahiliyyah (the time of ignorance or pre-Islamic period), according to the
Quran, used to bury their daughters alive.
It is mentioned in the Quran as follows :
“When news is brought to
one of them, of (the birth of) a female (child), his face darkens, and he is
filled with inward grief! With shame does he hide himself from his people,
because of the bad news he has received! Shall he keep this (child) despite the
contempt (which he feels for it) or shall he bury it in the dust? Oh, evil is
indeed whatever they decide!”[5]
Arabs regarded the birth of a daughter as a calamity. The
reasons could be the concern of an economic burden brought on by an increase in
female offspring, and secondly, the fear of the humiliation often experienced
when females were kidnapped by a hostile tribe and afterwards preferred their
captors to their parents and brothers.
As regards marriages, a woman was not a free agent in
contracting marriage. There is some evidence that parents were open and
unwilling to give their daughters to be possible mothers of enemies of their
tribe. This reluctance however would not greatly diminish the frequency of marriages with aliens, since women were
continually captured in war and marriages with captives were of constant
occurrences.[6]
There was even a practice of marrying a woman by force.
There was no restriction as to the number of wives and Arab could take the only limit imposed by his means, opportunity and inclination. Unrestricted polygamy which was sanctioned by usage, was universally prevalent.[7]
Advent
of Islam
Muslims regard the Quran as the most important miracle of
Muhammad, the proof of his prophethood, and the culmination of a series of
divine messages revealed by the angel Gabriel. As discussed earlier the ancient
Arabs were primarily living in tribes. The mission of Prophet Muhammad was to purify their souls and to lift up the human beings fr1om
the debts of moral and spiritual degradation to a conception of purity and
justice. The key themes of the early Quranic verses included the responsibility
of man towards his creator; the resurrection of the dead, God’s final judgment
followed by vivid descriptions of the tortures in Hell and pleasures in
Paradise; and the signs of God in all aspects of life. Religious duties
included belief in God, asking for forgiveness of sins, offering frequent
prayers, assisting others particularly those in need, rejecting cheating and
the love of wealth, being chaste, and not killing newborn girls.[8]
Prophet Mohammed (PBUH) emphasized upon the importance of
women as mother, wife, daughter and sister by stating the
number of verses revealed upon him. Considering the
fact that before the advent of Islam, the pagan Arabs used to bury their female
children alive, and treat women as mere chattels and objects of sexual pleasure
possessing no rights or position whatsoever, these teachings of the Quran were
revolutionary.[9]
Contrary to the older belief, Islam
regards men and women as being of the same essence created from a single soul.
On Equality of Women : In
Islam there is absolutely no difference between men and women as far as their
relationship to Allah is concerned, as
both are promised the same reward for good conduct and the same punishment for
evil conduct. The Quran says:
And for women are rights
over men similar to those of men over women.[10]
On Relationships and Marriage : The Prophet of Islam
(peace be upon him) said, "Women are the twin halves of
men." The Qur'an emphasizes the essential unity of men and women in a
most beautiful simile.
They (your wives) are
your garment and you are a garment for them.[11]
Islam respects women. The Quran calls her muhsana - a fortress against Satan because a
good woman, by marrying a man, helps him keep to the path of rectitude in his
life. It is for this reason that marriage was considered by the Prophet
Muhammad (peace be upon him) as a most virtuous act. He said: "When a
man marries, he has completed one half of his religion." He enjoined
matrimony on Muslims by saying: "Marriage is part of my way and
whoever keeps away from my way is not from me (i.e. is not my
follower)."
And among His signs is
this, that He has created for you mates from among yourselves, that you may
dwell in tranquility with them; and He has put love and mercy between you.
Verily in that are signs for those who reflect.[12]
In an era filled with wars, widowhood was common and a
great concern of The Prophet. The
Prophet Muhammad (peace be upon him) upheld the cause of widows. Most of his
wives were widows. In an age when widows were rarely permitted to remarry, the
Prophet encouraged his followers to marry them. He was always ready to help
widows and exhorted his followers to do the same. Abu Hurairah reported that
the Prophet said: "One who
makes efforts (to help) the widow or a poor person is like a mujahid (warrior)
in the path of Allah, or like one who stands up for prayers in the night and
fasts in the day."[13]
On Divorce : Whenever it becomes impossible for
both the parties to Marriage to live together peacefully they can have a
recourse to Divorce. Though, The Prophet (PBUH) said that among the things
permitted in Islam, divorce is the worst one and it must be avoided as far as
possible[14].
The Quran says, if a woman senses
oppression or desertion from her husband, the couple shall try to reconcile
their differences, for conciliation is best for them. Selfishness is a human
trait, and if you do good and lead a righteous life, God is fully Cognizant of
everything you do.[15]
Apart from these, Islam aimed to
establish a cooperative and strong society. Some other structural changes for
women included mehr and restricted polygamy. The Prophet Mohammed (PBUH) converted the
custom of bride price of tribal Arabia to mehr which would be a future security
to a married woman.[16]
In an era of unlimited polygamy, the Prophet (PBUH)
restricted the number of wives to four with an injunction that each wife be
treated with equal dignity and affection.[17]
The verses of the Quran for having four wives are as follows:
“If you fear that
you shall not be able to deal justly with the orphans, marry a woman of
your choice, two or three, or Four, but if you fear that you shall not be able
to deal justly (with them) then only one.” [18]
On Inheritance : Following the
introduction of Islam, it was decreed that no one, whether male or female,
feeble or powerful, ill or well, abandoned or legally adopted, should be denied
inheritance after their parents passed away.
Women
and children in the Arabian Peninsula were not permitted to retrieve any
inheritance bestowed by their parents before the arrival of Islam, as per
Qatadah (companion of Prophet Muhammad). In Surah al-Nisa verses 7 and 33 of the
Qur’an, the means of distributing inherited money is mentioned. According to
Imam al-Tabari’s work Tafsir, during the Jahiliyyah era, women and children
were not allowed to inherit anything. To overcome this oppression, the Qur’an
states that as a daughter, wife, and mother, women are entitled to a share of
the inheritance, as stipulated in Surah al-Nisa, verses 11-12.[19]
Rights of Women and Developments in India
We have now seen the shift in the
situation of women after the advent of Islam. What the religion changed. The
Quran is the direct revelations of the words of God. The Prophet (SAW) with his
preachings gave a message of equality and compassion towards women. We now seek
to analyze the rights of muslim women in contemporary times and how the law has
developed around them to treat women with dignity in India.
Property Rights
In India,
Muslim do not have classified rights over property. They are governed by Shia
and Hanafi School of law. They are governed by Muslim Shariyat act law, 1937.
Women had always full and absolute control over the property which she acquired
by any way. There are some classification of property which may acquire by
Muslim woman as follows: -
a.
Property rights of Muslim Daughter
In
inheritance, the daughter’s share is equal to one half 1/2 of the son’s in
keeping with the concept that a woman is worth half a man. Daughters have
rights of residence in parent’s houses, as well as the right to maintenance
until they are married. They may acquire property by the wills but it must not
exceed 1/3rd of the total property of the person who made the will.
b.
Property rights of Muslim Wife
Islamic law
provides financial security to a Muslim woman, by virtue of marriage. At the
time of marriage, a Muslim wife is entitled to receive total money or property
from her husband which is also known as Dower (Mahr). A Muslim cannot give more
than 1/3rd of his property by will, through this the wife may inherit a higher
amount of will when there are no heirs for the estate as prescribed by the law.
c.
Property rights of Muslim Widow
In Islamic law, a widow
gets 1/8th share in case there are kids and 1/4th share when there are no
children. If more than one wife, the property share may come down to 1/16th.
d.
Property rights of Divorced Woman
A divorced
woman, after talaq, is eligible for
maintenance up to 3 months by her husband till the iddat period is over. Post which, the responsibility for
maintenance reverts to the women’s parental family. If the divorced woman has
financially independent children, who are in a position to support the mother,
the responsibility is again on them. Section 125 of Criminal Procedure Code,
1973 states that every woman can claim
maintenance from her husband. Husband who has sufficient means and who refuses
to take care of his wife or maintain her whoever needs it the courts makes it
mandatory for such husbands to maintain their wives with monthly payments.
e.
Property of Muslim Mother
A Muslim
mother qualifies to receive and inherit from her children, provided they are
independent and capable to earn for themselves. If her dead son had children,
she is eligible to get 1/6th of his property. If the dead son has no
children, she is eligible for 1/3rd share of the property.
Marriage
and Divorce Rights
In Islam
Marriage is recognized as
the base of the society and considered as a contractual union of
two parties where consent is the most
important ingredient of valid marriage. The term
‘Nikah’ is used to describe marriage which means “the Union of Sexes” which
became a civil contract in Muslim Law, as intended by the Prophet Mohammed.
a.
Age of Puberty
In case the girl marries a minor, she is entitled to
a dissolution of her marriage before attaining the age of 18 years. Even the
consummation of marriage before the age of puberty does not deprive the wife of
her right to repudiate the marriage. The age
for marriage for a boy is also at par with the age of a girl. He is also eligible for marriage on attaining puberty
which in the present time is generally
considered 15 years.
b.
Right to get Mahr
One of the important rights of women who are getting married
is entitlement of Dower (Maher). Maher is the necessary condition to the
marriage. If it is not specified then it is
void. Where the marriage is consummated, the wife is entitled to the whole
amount; if not, to the half dower.[20]
c.
Divorce Rights
Divorce is another
important feature of marital rights. Where there is a valid wedlock, the right
of divorce parallel exists. A wife cannot divorce her husband of her own accord. She
can divorce the husband only when the husband has delegated such a right to her
or under an agreement either by Khula or Mubarat.
Apart from these two
kinds of divorce there are three other categories which are as follows:
i)
Talaq-i-tafweez : An
agreement made between the parties to marriage whereby it is provided that the
wife should at liberty to divorce her in specified contingencies is valid. Such
an agreement can be entered before or after marriage. Such delegation of power
of divorce to the wife may be permanent or temporary, that is for a specified
duration. But the condition should not be opposed to public policy and should
be a reasonable condition. [21]
ii)
By Dissolution of Muslim Marriage Act, 1939 : As
per the rules, here are the ways in which a Muslim woman in India can divorce
under Dissolution of Muslim Marriage Act, 1939. It states the ground which
a muslim
married woman can prove in the court of law to get divorce.
While
the process for a woman to seek divorce
remains a judicial remedy, her male counterpart
holds the right to pronounce divorce to move out of the matrimonial
relationship. The power to divorce to a muslim man creates inequality. The
Supreme Court through its decision and subsequent legislations have weighed in
favour of women , curtailing the unfettered power of men in granting divorce
and providing social and financial security to divorced women.
The
Supreme Court delivered a judgment favoring maintenance given to an aggrieved
divorced Muslim woman even under secular legislations holding that a woman has
a right to claim maintenance under Section 125 of Cr.PC as the Code is a
criminal law and not a civil law.[22] The case led to the passing of The Muslim Women
(Protection of Rights on Divorce), 1986. According to this Act, Muslim
women were entitled to a ‘fair and just’ amount of money within the ‘iddat’
period. In
later judgments, the Supreme Court of India interpreted the act in a manner
reassuring the validity of the case and consequently upheld the Shah Bano
judgment.[23]
On the issue of triple talaq and the power and correctness of
the irrevocable form of talaq, in the hands of muslim man, the Supreme Court held the practice of Triple Talaq unconstitutional. The
majority upon lengthy discussion came to the conclusion that Triple Talaq is not an essential
religious practice.[24]
The Muslim
Women (Protection of Rights on Marriage) Act, 2019, which had been approved by
the President of India, went into effect retroactively on September 19, 2018,
maintaining the initial ordinance that had been issued. The Act reaffirms the
unconstitutionality of the practice of triple talaq and also makes provision for imprisonment for
the crime of pronouncing triple talaq.
Liberty and
Freedom of Choice
In
contemporary times, we see a lot of examples of alleged clash of individual
liberty and freedom with religious beliefs. Especially women's liberty and
freedom of choice and its correlation with Islam is at the epicenter of legal,
social and political discussions not just in India but around the globe.
Incidents across the world have attracted attention of not just jurists but
also the general public. Whether it is the freedom of practices like wearing
Hijab in India as well as in Iran or the University ban for girls in Taliban
led Afghanistan, last year itself, has been occupied with examples to further
the debate. The common thread in all such examples is the use of the religion
of Islam to dictate terms to women. From an academic point of view, it gives
the opportunity to know and trace the evolution of practices and their inherent
patriarchal flaws.
Islam does not allow the
domination of men over women rather it upholds the rights, dignity, honour and
status of women by ensuring gender equality and also equality of rights for
both male and female in every area of human life.
In Islam like men, women
have various responsibilities towards the family and society as she is
considered one of the two important pillars of the society. The teachings of
the religion are clear on women choosing their choice of profession. In Islam
there is no difference between men and women in regard to work and working is a
duty for both. Islam does not like laziness and workless people In Islam women
have freedom to choose their occupation but in choosing their profession they
must keep in mind that they have some limitations due to their physical
structure.[25]
While the self-proclaimed
protectors of religion governing some states uses religion as a tool for
oppression. The ill motivated practices like depriving education to girls, are
not sanctioned in any religion. In Islam acquiring knowledge is obligatory for
both men and women. In this regard an unmarried woman has full freedom to
acquire knowledge and nobody can obstruct her from acquiring knowledge.[26]
Islam ensured political
independence of men and women. There is an opportunity for a woman to be
involved in politics. She can participate in political conventions, street
demonstrations and congregations.[27]
Concluding
Remark
With
all the goodness and reasonableness, one would wonder, why often there seems to
be a divide between religion and freedom, between practices and independence.
The phenomena is true not just for Islam but every other religion like Hinduism
and Christianity as well. Among the sources, religion remains the oldest, most
ancient sources from which people derive morality and practices. In this sense,
certain aspects of religion would inevitably cease to be reasonable and
relevant in present times.
In the
context of Islam, on one hand there exists ample proof of equality guaranteed
by not only Quran but also evolutionary practices. On the other hand there
erupts time and again, the struggle of women with religious orthodoxy in
achieving equality. How did there emerge a difference, for a religion which is
followed with such passion among the believers. To answer the question we must
first differentiate between religion and culture.
Are the
imposed rules really religious or simply cultural ? Being a muslim and
being an independent woman can co-exist and they do co-exist. For most, Islam,
like any other religion, gives strength and is a source of empowerment.
Imposition of misinterpreted religious doctrines and controlling is a culturally
pervasive phenomena and is deeply rooted in patriarchal psychology of societies
around the world. While many have evolved to the realization of equality and
independence, some still remain gripped in the shackles of archaic attitudes.
This is evident from the disparity among muslim nations itself. It is no less
than a sheer misuse of power In Islam, and can be observed in other religions and
societies, usually men have been the torchbearer of religious preachings. Thus,
a patriarchal understanding of state of affairs has eventually developed. Even
if we refrain from doubting the fairness and just outlook of the holy men that
have guarded religion, the point remains of negligible or no account of a
female input or contribution in shaping the religion and its understanding.
True understanding of religion does not bind. It is rather liberating. Thus, any resistance to imposition of inequality in the garb of religion must be looked upon with great hope and not as un islamic and a challenge to religious teaching.
True understanding of religion does not bind. It is rather liberating. Thus, any resistance to imposition of inequality in the garb of religion must be looked upon with great hope and not as un islamic and a challenge to religious teaching.
[1] Wikipedia, the free encyclopedia, available at : https://en.wikipedia.org/wiki/List_of_religious_populations (last visited on December 19. 2022)
[3] Early
World Civilizations (Lumen), available at : https://human.libretexts.org/Courses/Lumen_Learning/Book%3A_Early_World_Civilizations_(Lumen)/Ch._07_The_Rise_and_Spread_of_Islam/08.4%3A_Women_in_Pre-Islamic_Arabia (last visited on December.20,2022).
[4] Niaz A.
Shah, “The
Position of Women in Pre- and Post- Islamic Arabia, in Women, the Koran and
International Human Rights Law” 25-44 (Brill, vol. 4, 2006)
[5] The Quran 16:58-59.
[6] W. Roberston Smith, Kinship and Marriage in Early Arabia 74 ( Adam and Charles Black,
London 1903)
[7] Supra
note 2 at 35
[8] Early
World Civilizations (Lumen), available at :
https://human.libretexts.org/Courses/Lumen_Learning/Book%3A_Early_World_Civilizations_(Lumen)/Ch._07_The_Rise_and_Spread_of_Islam/08.6%3A_The_Quran
(last visited on December.20,2022)
[9] Prof. Abdur Rahman, “Women in the Quran and the Sunnah”, available at : https://www.iium.edu.my/deed/articles/woman_quran.html (last visited on December 20,2022)
[10] The Quran 2:226
[11] The Quran 2:187
[12] The Quran 30:21
[13] Supra
note 9
[14] Aqil Ahmad, Mohammedan Law, (Central Law Agency, Allahabad, 27th
edn., 2021)
[15] The Quran 4:128.
[17] Ibid.
[18] The Quran: Al-Nisa 4:3
[19] Abur Rahim, The Principles of Muhammadan Jurisprudence, (Allahabad Law Agency,
Allahabad, 8th edn., 2017).
[21] Swetha Ravidas, “ Divorce under Muslim
Personal law talaq and talaq-e-tafweez” April
25, 2020, available at : https://legalsarcasm.com/legal-notes/divorce-under-muslim-personal-law-talaq-and-talaq-e-tafweez/. (Last visited on December 24,2022)
[22] Mohd. Ahmad Khan v. Shah Bano Begum And Ors AIR 1985 SC 945.
[23] Danial
Latifi v. Union of India (2001) 7
SCC 740
[25] Manjur Hossain Patoari, ”The Rights of Women in
Islam and Some Misconceptions: An Analysis from Bangladesh Perspective” (Beijing Law Review, Vol.10 No.5, 2019)
[26] Ibid.
[27] A. Rezvani, “Review of the
Economic and Political Rights of Women Based on Islam’s View” 187-190
(International Research Journal of Applied and Basic Sciences, 2013)
Article Information
ISLAM AND WOMEN : INDIAN PERSPECTIVE
Authors: PRASHANT DALAKOTI, PIYUSH DWIVEDI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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