Introduction (Background Of Study):
This research paper focuses on despite changes and evolution in laws as per
needs in society how some laws which were inherently considered as wrong by some
communities but a common practice by some community had remained stagnant,
subject to no change as per need in society.
This paper will essentially deal
with the consensual as well as non-consensual sexual intercourse in the marriage
which did or didn't lead to rape charges against the husband in the garb of
Muslim personal laws. It would further elaborate on whether Special acts would
surpass personal laws or not. Further, a conclusion following what could be the
recommendations suggested by jurists and personal opinion.
- Women in Muslim personal laws �chapter 2- written by Alka Singh published by Rawat Publications)
It had done a sociological as well as empirical survey in cities of Lucknow and Delhi on Muslim women and what rights they are entitled to and how Shah Bano case that led to question some male-dominated laws which had an adverse impact on moral turpitude and which requires re-examination.
- Impact of the Uniform Civil Code on marriage and divorce rights of Muslim women in India- written by N. Apoorva Rao, published at Blogipleaders
It mentions about how through special acts or advent of uniform civil code, some laws unfavorable to Muslim women and which deemed Muslim men more powers can be made more tolerable towards Muslim women. It also mentions how the uniform civil code can come in conflict with the fundamental rights and a conflict within fundamental rights � Article 25 which endows right to profess, practice, and propagate any religion whereas article 15 suggests there cannot be any discrimination on the basis of religion and gender.
- POCSO Act v. Personal laws- Application of POCSO Act over Muslim Personal Laws- written of Vansh Bhatnagar published by SCC online.
It had through elements of crime derived what could be considered as an offence and whether marriage age of Muslim women and sexual intercourse arising out of that would be considered as rape. It had taken the judicial research method to comment about that and concluded whether special laws should prevail over personal laws.
- Why Muslim women should welcome a Uniform Civil Code- written by Bushra Tariq published by The Wire
This book throws a light on Muslim laws related to divorce, maintenance, halala and polygamy and how it had remained unfavorable to Muslim women and how in certain cases judiciary through a long-led struggle had placed Muslim laws in ambit of fundamental rights and judged the prerogative. It sidelined with Uniform civil code in context of right for Muslim women.
- A modern Approach to Islam- written by Asaf A. A. Fyzee published by Oxford University Press
This book focuses on the need to rediscover original philosophy of Islam and go back to the spirit behind which law is created and reinterpreted law. It had critiqued based on surveys by India, Arabic and western thoughts on Islamic law and tried to give a different outlook on Islamic law.
- Rape in Islamic law: establishing the crime and upholding the rights of innocent- written by Ziya H Shah published at the Muslim times
The author had written about what is constituted as crime in Islam and what are its three forms of punishment. Out of which two punitive measures are generally talked about in relation to rape. It focuses on 2 ways to prove rape: first if victim can bring four witnesses to give testimony in her favour or if perpetrator himself accepts the commission of offence. Two ways courts can decide merits of case in matters of rape first basically on statutory provision as written in Quran and Sunnah and other through discretionary powers which needs to be proven sufficiently. It focuses also on filing of false cases.
- Women's right in Islamic law- written by Asma T. Uddin published by Jstor
It had questioned on how stereotypes and anti-Islamic elements have in the name of Islam propagated wrongful discriminatory practices against women which is in stark contrast in Islamic laws which actually treats man and female equal.
There is plethora of data related to Islamic text and what it says about treatment of women. Some has written text to defend some written practices and some has clearly stated their biases. It was difficult to get a clear understanding about whether the religious text itself discriminates or whether interpretators of text had corrupted the real essence behind the text by fulfilling their ulterior motives for one's own selfish gain.
Research Gap/ Policy Gap:
- This research lacks verifying statistical data across India to understand the problems faced by women at what extent.
- It also leads to question judgement of one High court of India over another.
- It had limited its scope majorly to Indian jurisdiction.
- Reading the original religious literature as reflecting through original sources without any change in text as when author or editor interpret it's real meaning often changes.
- Although sexual intercourse below 18 is classified as rape and it is generally considered as a gruesome offence but Islamic law took an edge and religious text instead of evolving with the time had stick to its original text and laid the burden down on minor girls to enter into contractual marriage and bear offspring and be deprived of empowering themselves in field of education, health.
- To ascertain whether special laws prevail over personal laws.
- To analyze how different court had dealt with Muslim minor brides' rape or consummation of marriage.
- To analyze whether Muslim personal laws should prevail even if violates the basic human rights or fundamental rights.
- To understand how to deal with the problems in marital rape in different religion.
- How Uniform Civil Code will improve the condition of Muslim women in India?
- What are the Current rights entitled to Muslim women in Muslim personal laws related to marriage consummation?
- What is the judicial stance on the marriage age related to Muslim law and whether special law will prevail over Muslim personal laws?
Muslim women are the affected from such practices would vary from individual to
individual. But marriage at the young age when girl hits puberty will devoid her
of many rights if she is restricted to home-maker.
The other stakeholder are Muslim men who marries minor and are not punished for
forceful sexual inter-course.
This research method used is doctrinal in nature. Based on objectives of
research, it is descriptive in nature. It had taken judicial perception to
understand the illegal stance and also used diagnostic based research to finally
come to a conclusion. It had also used critical approach to judge the pros and
cons of the Muslim women minimum age of marriage as prescribed in their personal
laws. Based on source of data secondary data has been used. Secondary data
sources include includes research papers, books, databases like � jstor,
newspaper clippings, and blogs.
Age Of Marriage In Muslim Personal Law
Under the Mahammad law the age of marriage of women is when girl reaches puberty
and it is generally. it is considered to be 15 years of age. It is considered
when a person becomes mentally, physically, and financially capable then they
should marry as per Quran and Sunnah. They don't believe in celibacy. It is
believed to marry at young age to prevent from corruption of minds.
Significance Of Marriage
Marriage is contractual in nature unlike Hindu marriage where it is considered
as a sacrament. Marriage is a means to procreate, live in peace and tranquility
and it is a social need as families run the society so establishing of family
through set-up of marriage is considered a legitimize means to get into a sexual
Rape In Islamic Law Vs Pocso Act, 2012
According to Muslim law any forceful intercourse by a man with a woman who are
not in wedlock will constitute to rape. It means marital rape would not
constitute as rape it means rape with minor who is married will not constitute
Punishment for rape will result to stoning (throwing stones at perpetrator � a
form of capital punishment or 100 lashes upon perpetrator. Dowry(mahr) or
compensation can also be asked to pay.
Prevention of Children from sexual offences, 2012 states any girl child below 18
if forcefully involved in sexual activities or if even gave consent to engage in
sexual intercourse would constitute as rape.
Under IPC 375, sexual intercourse with minor (below 18) wife is rape. The court
in judgement of, Independent thought v. Union of India (2017) 10 SCC 800 struck
down exception 2 of sec 375 IPC which states � sexual intercourse or sexual acts
by a man with his own wife, the wife not being under 15 years of age, is not
rape as it was considered arbitrary, violative of article 14, 15 and 21 of
fundamental rights of India.
Prevalence Of Special Acts Over Muslim Personal Laws!
In Karnataka high court in Aleem Pasha v. State of Karnataka, 2012 observed that
POCSO is a special law as applicable to particular subject i.e., minor child to
protect them from the garb of sexual offences committed against them and
therefore it will supersede even the Muslim personal laws. The said court held
even if under Muslim personal laws penetrative sexual intercourse is valid with
or without wife's(minor) consent still under POCSO the husband will be subjected
The same thing was reiterated in Rahul v. State of Karnataka that POCSO Act will
override Muslim personal laws.
But recently the High court of Delhi upheld accusation of minor Muslim wife rape
charges on husband. The minor wife was raped in 2014 when she was 15 years of
age. The case was filed by wife's mother who alleged she had no knowledge of
marriage of her daughter unless she became pregnant. This suggested court had
sided with sexual intercourse with minor as valid in pretext of marriage and it
chose personal laws over special law. It had also accepted the fact that minors
can enter into marriage.
As no high court judgement can supersede over another then to clarify this
controversy to understand which act will hold more power special act or Muslim
personal laws. National commission for Protection of Child Rights (NCPCR)
knocked the doors of Supreme Court which has upheld the Punjab and Haryana high
court judgement as it also upheld the 16-year-old Muslim marriage. This case is
pending before Supreme court.
Uniform Civil Code(Ucc) And Rights Guaranteed To Muslim Women:
If UCC will be passed in India it will be favorable to Muslim women by fixating
the minimum age of marriage to 18 or 21 for all girls. It will also ultimately
lead to rape against minor as an offence under Muslim law. The punishment will
also be prescribed as per IPC.
This would improve the conditions of Muslim women as early involvement into
marriage often leads them to sacrifice on their studies and it often leads them
to severe health conditions both mentally and physically when they became
The new law would be empowering for them but it had to even make sure that it
actually is implemented and enforced.
- The supreme court should use article 142 of the constitution and should provide complete justice in cases pending before them when the statute failed to provide any remedy.
- In questions related to article 25 of the constitution, which guarantees the right to freedom of religion to all citizens of India, should not be confused by the irrational and unethical practices, such as marrying a minor, as puberty doesn't reflect that one is mature enough to enter into marriage.
- Also, consent plays a pivotal role, whether one is married or not; consent for sexual intercourse cannot be compromised, which means marital rape should also not be allowed.
- Article 14, 15, and 21 can't be sacrificed and are fundamental rights that should be applicable to all citizens regardless of all genders and religion.
- Tungekar, B. (2021, July 18). Impact of the Uniform Civil Code on marriage and divorce rights of Muslim women in India - iPleaders. iPleaders. https://blog.ipleaders.in/impact-uniform-civil-code-marriage-divorce-rights-of-muslim-woman-india/
- Why Muslim women should welcome a uniform civil code. (n.d.). The Wire. https://thewire.in/gender/muslim-women-uniform-civil-code
- Editor_4. (2023, April 13). POCSO Act v. Personal Law � Application of POCSO Act over Muslim Personal Law | SCC Blog. SCC Blog. https://www.scconline.com/blog/post/2023/04/13/pocso-act-v-personal-law-application-of-pocso-act-over-muslim-personal-law/
- Rai, D. (2022, February 15). Marriage under Muslim Law : All you need to know. iPleaders. https://blog.ipleaders.in/marriage-under-muslim-law/
- Garg, R. (2021, March 27). Critically analysing the "age of marriage" under Muslim Law with special reference to Quran and Sunnah - iPleaders. iPleaders. https://blog.ipleaders.in/critically-analysing-age-marriage-muslim-law-special-reference-quran-sunnah/
- Legal Service India. (n.d.). Concept of marriage in Muslim law.
- Imrana: Rape, Islam, and Law in India on JSTOR. (n.d.). https://www.jstor.org/stable/pdf/20839027.pdf
- Shah, Z. H. (2022, February 26). Rape in Islamic law: Establishing the crime and upholding the rights of the innocent. The Muslim Times. https://themuslimtimes.info/2022/02/26/rape-in-islamic-law-establishing-the-crime-and-upholding-the-rights-of-the-innocent/#comments
- Pandey, A. (2017, July 19). Statutory Rape laws in India - iPleaders. iPleaders. https://blog.ipleaders.in/statutory-rape-laws-india/
- Jain, A. (2023, August 23). HC upholds acquittal of Muslim man accused of minor wife's rape � no intercourse 'before marriage' ThePrint. https://theprint.in/judiciary/hc-upholds-acquittal-of-muslim-man-accused-of-minor-wifes-rape-no-relations-before-marriage/1726267/
- Protection of Children from Sexual Offences Act, 2012. (2012, June 19). https://www.indiacode.nic.in/handle/123456789/2079?sam_handle=123456789/1362