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Rights of Muslim Women-An Analysis Under Personal Law

Today, the issues of women rights in Muslim personal Law is highly controversial. Specially, Muslim women rights relating to marriage, triple talaq divorce, inheritance, maintenance has got much consideration now days. The main row states that the central debate on interpretation of Muslim personal laws and Muslim women’s rights has both positive as well as negative aspects. Some authors has supported that, Muslim personal laws has given diverse rights to Muslim women such as preference in marriage, inheritance etc. The thought presented in this chapter are divided, starting with a complete summary of which pertain to marriage, right to property, inheritance, and divorce. However, Indian Constitution has assured equality and freedom from unfairness based on sex or religion, but still there are various practices which are based on pitiless conservative culture. As we know a huge part of Muslim Personal Law is still un-codified and most of the above-board decisions articulate by the courts based on the norms mentioned in Quran and hadith. In this line this research paper attempts to analyze the on-going dispute on the implications of Muslim Personal Law in India and suggests various solutions to empower Muslim women. Therefore, certain anomalies need to eliminate by giving a true essence of Holy Quran for the benefit of the Muslim women’s rights.

Introduction
The status of women in society is neither a new issue nor is it a fully settled one. Status of women in different human societies of the world is different. Whether, it is developed, developing or under developed societies, women inhabit an inimitable position. Nearly all human societies in diverse part of the world are male dominated. Male are active part and females are passive part in the society. For many decades Muslim women are struggling for gender equality in the Islamic law that oversee rights related to marriage, divorce, and property rights. This paper is intended to provide a brief and genuine exposition of Rights of Muslim women and a brief survey of the status of women.

It then focuses on these major research questions:
What is the place of Islam regarding the status of woman in society?
Whether Muslim women’s have rights relating to marriage, triple talaq divorce, inheritance, maintenance?

Rights Of Muslim Women - An Analysis Under Personal Law

Islam is the first religion in the world which recognizes women as legal entity and gave her all rights that man enjoyed. Islam brought about freeing of women from bondage and gave her identical rights and recognized her uniqueness as human being.Islam improved the status of women by instituting rights of possessions, ownership, inheritance, education, marriage and divorce. The Qur’an came out with a thorough declaration that men and women are equal and women’s rights are equal to their duties. Till today, because of conflict on the part of the ulama and jurist, this basic principle continues to be in midpoint.[1]The Quran injunctions in respect of women were not acceptable in a particular culture, given that the injunctions directly challenged the apparent authority of men and made women equal to men in every respect.In the absence of the proper codified law in Muslim personal law women are at much difficult position, because of the un-clarity in the various rights and various analysis of Quran. Moreover, many baseless ‘fatwa’s’ most of time go against the right of the Muslim women. Muslim women always remain the most economically and publicly depressed section in Muslim community itself.[2]

Marriage Under Personal Law

Marriage (Nikah) is defined to be a contract which has for its object the breeding and the legalizing of children. The foundation of marriage in Islam has three aspects: Legal, Social, and religious. Legally, it is a contract and not a forfeit. The social aspect of marriage has three important factors: Islamic law gives to the women an undoubtedly high social status after marriage; He confidently enjoined marriage to all those who could afford it. In fact marriage is an indication of gift of Allah.

In India, Marriage among all sets of Muslims is usually solemnized by persons familiar with the requirement of law and they are chosen as Kazis or Mullas. Two persons, formally allotted for the purpose, act on behalf of the contracting parties, with certain figure of witness. The Qur’an depiction of man and woman in marriage: "They are your apparels and you are their apparels", implies proximity support and equality. "And they (women) have rights alike to those against them in a just manner".

Women’s trouble in the perspective of marriage are rooted in the icon of her as a dependent passing from the charge of her father to that of her husband, but according to Islam women enjoy equal right of selection or choice. The Muslim woman has the liberty of marital choice, her assent is vital for the validity of the marriage contract. A grown up girl shall be asked consent about herself and her permission is her silence and if she declines, there shall be no obligation on her. The Islamic laws have accepted women as free and responsible member of society, and have assigned to them an expedient position. Muslim wife maintain her distinct individuality even after marriage and she never assumes her husband’s name. Islam has treated women with great sense of pride.

Divorce (Talaq) Under Personal Law

Muslim intellectuals are to initiate measures for drafting a comprehensive law duly codified which will embody the Quran spirit. Triple Divorce and unregulated polygamy has often been the cause of attacks on otherwise quite progressive Islamic personal law. Polygamy may not be abolished completely but strictly regulated as directed by the Quran.[3]

The other major trouble is that of triple divorce in one session. This form of divorce has really caused a lot of misery to a huge number of Muslim women in India the Prophet reserved the power of divorce overcome by husband and gave to the women the right of obtaining partition on reasonable ground.

If the marriage was consummated, wife may marry a further person after the completion of iddat, if the marriage was not consummated; she is liberated to marry immediately. If the matrimony was consummated, the wife unrestricted to immediate payment of the whole of the unpaid dower, both on time and overdue. If the marriage was not consummated, and the sum of dower was precise in the contract, she is entitled to partly that amount.
The divorced wife is at liberty to maintenance and accommodation till her period of iddat expires. Khula and Mubarat are two forms of divorce by joint consent. Khula means release and Mubarat means mutual separation, are two forms of divorces by the wife with the assent of her husband.

The Muslim Personal Law (Shariat) Application Act 1937 also recognized the rights of the wife to acquire divorce on two further grounds, i.e. (I) Ila & (ii) Zihar. The divorced wife is entitled to get maintenance from her ex- husband till she observes iddat which varies to different period in different cases. It is clear that there are no terms for the maintenance of a divorced wife in Muslim law after the epoch of iddat or the period after delivery and suckling of the child.

Property Rights Of Muslim Women

Much similar to those of women of any further country, property rights of Indian Muslim women have evolved out of abiding struggle linking the grade quoits and the progressive forces. Indian Muslim women always used to get fewer rights in terms of right to property in contrast to male.

As we know Muslims personal law have not codified their property rights of Muslim women neither the Shias nor the Sunnis.[4]However, Ma-hr is a key concept in Islamic law which is unswerving connected with the right to property of the Muslim women and empowerment of the women. Ma-hr is basically is called as a present which becomes due from a Muslim husband to his wife on marriage as a token of admiration symbolizing his honesty and love for her.[5]

The subject affair of ma-hr can be wealth or any other thing having value, depending upon the acceptance of the wife. Upon the entity or property given as a ma-hr, the possession lies exclusively with the women. Further, the award of absolute ownership of the ma-hr property to the Muslim wife shows the activist measure adopted by Muslim personal law to vest women with the property rights to guarantee them an unbiased marital status. Hence, married Muslim women who had been ever destitute of status of marriage have such property rights which are entirely vested in her property rights.

Maintenance And Inheritance For Muslim Women Under Personal Law

The personal law statutes governing a Muslim woman’s right to maintenance are the Dissolution of Muslim Marriage act, 1939, and the Muslim women (protection of right on Divorce) Act, 1986. The Muslim law of Maintenance differs from the law of maintenance in most other systems of law, expect wife, in most of the cases the obligation of a Muslim to maintain another arise only if the claimant has no means or assets out of which he or she can maintain herself or himself. Under the Muslim law, this is the duty of the husband to maintain his wife, irrespective of her debt against the husband and has priority over the right of all other persons to receive maintenance. Maintenance is called Nafqah, it includes food, raiment, and lodging and other essential requirements for livelihood.[6]

Divorced wife right to maintenance:
Reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband

A Muslim has a personal obligation to maintain his children but it is not an absolute obligation.

A father is bound to maintain his female children until they are married.

A Muslim widow has no right to maintenance out of her husband’s estate in addition to what she got by inheritance as his wife.[7]

In 1986, The Muslim women (Protection of right on divorce) Act was passed. The Act has consolidated and coordinated the different schools of the Muslim law in the stuff of payment of maintenance to the wife on divorce. The preamble of the Act spells out the objectives of the act as the protection of the right of Muslim women who have been separated by, or have obtained divorce from, their husband Sec. 3 of the Act speaks of ‘provision and maintenance’ while Sec. 4 talks only of maintenance.

Inheritance
According to the Islamic law of inheritance, the person’s sex, age, or order of birth or marital position does not comprise an obstacle to inheritance. In this organization no division was made between father and mother, first-born child and last-born sons. Whatever disparity in share there was amid the hires, it was proposed to correspond with their particular responsibility and obligations, according to the lineal immediacy. The computation back of this was that if in his life span the deceased were in need, the nearby relatives children and parents- would be called upon former to hold up before those less closely related, such as grandchildren and grandparents.

"Rights of inheritance respite upon the two principal basis of marriage and blood relationship with the decedent". As an upshot, and because women are a major part of the Muslim family, women are integrated in the Islamic law of inheritance.

Allah ordains regarding your children that the male shall have allocated equal to that of two females.

·If the children are females numbering two or more, their segment is two-thirds of the inheritance.

·If there is an only female child her part is one-half. This means that if the decedent has only one daughter she inherits one-half of the estate.

·If the decedent is survived by the daughter and a son, the son gets two-thirds and the daughter gets one-third of the estate.

·If the decedent is survived by two or more daughters, they share two-thirds of the estate equally and the rest goes to other male relatives.

An example of- a case where a male inheritor gets more share than the female is the one mentioned above, that is when the decedent is survived by sons and daughters. In this case the son for eternity gets as much as the two daughters’ share of the estate.

The mother of the decedent is also one of the connections who are specific in the Quran. "If the decedent dies and is survived by only one sibling, if any, the decedent’s mother’s share is one-third of the estate. If the decedent in this case is survived by two or more siblings, the mother’s share is one-sixth". The Quran dispense of the decedent’s father is also one-sixth, but changes in some cases. Therefore, a mother’s share of the decedent’s estate can be equal to the father’s, this means that in this case a female family member gets equal share of a male relative’s share.

The female inheritors mentioned above are those who have an explicit share in the Quran. Woman’s right of inheritance varies depending on her relation to the decedent person. In some cases a female in the family inherits less than a male inherits. In other cases, a female might inherit as much as a male. And in other cases, she might inherit more than a male.

One case in which a female gets larger share of the decedent’s assets happens if the decedent had a daughter in adding up to his wife and his father were still alive. His wife gets one-eighth of the estate, the daughter gets one-half, and the father gets 9/24th of the decedent’s estate. Here, both the wife and the daughter got extra than the family.

The first female Quran hires is the wife. A wife inherits one-fourth of her husband’s chattels if they had no children and one-eight of her husband’s property if they had children or children’s son. "However, the wife’s part is a communal one. In the case of polygamous union, the wives share the one-eight or the one-fourth equally"

The reason which for men usually gets a better share of the decedent’s estate is because men are always obligated to provide women with their needs. Women, on the other hand don’t have to spend any amount of their money. For example, the brother is accountable for caring for his sisters’ wishes after their father dies and has to afford them with what they need, from their need for food and drink to their need for edification.
If the daughter is married, she doesn’t need to fritter any of her money either, for it is her husband’s accountability to cover her needs. In general, it is always men’s responsibility to look after women and supply their needs. In contrast with other religions, Islam was the only religion to include females of the family in isolating the decedent’s estate.

The Response Of The Judiciary
The response of the judiciary on the status on women under the Muslim personal law has been hesitant. Many of the cases give the intuition that the role of our judiciary has been healthy and satisfactory. In many cases Supreme Court has veteran personal laws on the criterion of fundamental rights and to make them reliable with fundamental rights. Whereas in some of the case court held the legitimacy of the personal laws cannot be challenged on the opinion that they are in breach of fundamental rights because of the reality parties in personal law is not prone to fundamental rights. It is interesting to note that, there have been important judgments favorable to Muslim women even if not in landmark category, but very considerable in this concern.

Case- Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945
In instant case issue was that, up to what extent of Muslim husband’s liability to maintain his divorced wife under Section 125 of the Cr.P.C 1973? In instant case court went into the details of various authorities and translation of the verses of the holy Quran in support of the view that a Muslim Woman who has been divorced by her husband has all right to be maintained even after the period of Iddat. Further court upheld that provision of the maintenance under section 125 of the Cr.P.C is not dependent on the religion of the spouses. It is a secular law applicable to all irrespective of the religion. Therefore, the judgment evoked unprecedented debate and controversy on the Muslim woman’s rights to claim maintenance from the husband after divorce. It ultimately led to the enactment of the Muslim women (Protection of rights on Divorce) Act 1986.[8]

Case- Shamimara v. State of Uttar Pradesh (2002) 7 SCALE 183.
In instant case Court held that, Talaq to be effective, has to be explicitly pronounced. Further court held that, a mere plea taken in the written statement of a divorce having been pronounced sometimes in the past cannot by itself be treated as effectuating talaq on the date of the delivery. Hence, judgment seeks to provide some norms and parameters within which the husband can pronounce a talaq. The very concept and right of unilateral triple talaq has however being assailed. Hence, from the above cases it becomes abundantly clear that court had played a very vital role for the protection of the women’s rights under Muslim personal law.[9]

Conclusion
In conclusion, Islam has raised women’s status in the society by issuing many laws to protect her and give her an honorable and dignified life.Muslim personal laws has given diverse rights to Muslim women such as preference in marriage, inheritance etc.Islamic law gives to the women a certainly high social status after marriage. The Muslim woman has the liberty of marital choice, her assent is vital for the validity of the marriage contract. The Islamic laws have accepted women as free and responsible member of society. The other major trouble is that of triple divorce in one session. This form of divorce has really caused a lot of misery to a huge number of Muslim women in India the Prophet reserved the power of divorce overcome by husband and gave to the women the right of obtaining partition on reasonable ground. The divorced wife is at liberty to maintenance and accommodation till her period of iddat expires. Indian Muslim women always used to get fewer rights in terms of right to property in contrast to male. As we know Muslims personal law have not codified their property rights of Muslim women neither the Shias nor the Sunnis.[10]However, Ma-hr is a key concept in Islamic law which is unswerving connected with the right to property of the Muslim women and empowerment of the women. The preamble of the Act spells out the objectives of the act as ‘the protection of the right of Muslim women who have been separated by, or have obtained divorce from, their husband’Sec. 3 of the Act speaks of ‘provision and maintenance’ while Sec. 4 talks only of maintenance. One of the most important changes that Islam made on the society is giving women the right of inheritance. A woman’s share of inheritance might be more, less, or equal to a man’s share, depending on the case and the number of the survived relatives and their relation to the decedent. Furthermore, Islam is the only religion that gives women fair rights of inheritance. The response of the judiciary on the status on women under the Muslim personal law has been hesitant. Many of the cases give the intuition that the role of our judiciary has been healthy and satisfactory. It is interesting to note that, there have been importantjudgmentsfavorable to Muslim women even if not in landmark category, but very considerable.

Bibliography
Primary Sources-

·Kusum, Cases and Material on Family law, page 413 & 414. Universal Law publishing co. 3rd ed. 2013
·Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law.
·Inheritance Property Rights of India.

[1] http://shodhganga.inflibnet.ac.in
[2](PDF) Rights of Muslim women: An Analysis of.... Available from: https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law [accessed Jul 19 2018].
[3](PDF)Rights of Muslim women: An Analysis of.... Available from: https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law [accessed Jul 19 2018].
[4]Available at http://www.muslimpersonallaw.co.za/inheritancedocs/Property Rights of India.
[5](PDF) Rights of Muslim women: An Analysis of.... Available from: https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law [accessed Jul 19 2018].
[6]http://shodhganga.inflibnet.ac.in
[7]http://shodhganga.inflibnet.ac.in
[8](PDF) Rights of Muslim women: An Analysis of.... Available from: https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law#pf6 [accessed Jul 20 2018].
[9](PDF) Rights of Muslim women: An Analysis of.... Available from: https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law#pf7 [accessed Jul 20 2018].
[10]Available at http://www.muslimpersonallaw.co.za/inheritance.docs/Property Rights of India.

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