INTRODUCTION

Muslim personal law in India is not a divine book. It is rather a man-made law. The Muslim
Personal Law (Shariat) Application Act or Act xxvi of 1937 was enacted by the British
government in India, as a part of the Government of India Act, 1935. After independence, the
Constitution of India has maintained the law as it existed at the time of its introduction.
Under the Constitution, Muslim law has been recognised only in respect of marriage and
divorce, infants and adoption of minors, intestacy of wills, successions, joint family and
partitions. Shariat or Muslim law in India does not apply to crimes. 1 The point to be noted
here is that the Muslim Personal Law around which post independence Muslim identity
politics is centred, is actually a creation of colonial British rule, Muslim Personal Law was
applied to Muslims in British India as a matter of policy, and not as a matter of religion.

Indian Constitution has ensured balance and opportunity from separation in view of sexual
orientation or religion, yet at the same time there are different practices which depend on
cold-hearted preservationist culture. As we probably are aware an extensive piece of Muslim
Personal Law is still uncodified and a large portion of the legitimate choice articulates by the
courts in view of the standards said in Quran and hadith.

Of the families surveyed in 2005, 7% had polygamy in practice; 30% families had one or
more divorced women showing a clear evidence of oral talaq; the period of marriage after
which talaq was pronounced ranged from less than one year to four-five years; and the
reasons mentioned by these women were dowry (44%), anger (32%), second wife (16%), no
son/daughter (4%). Divorced women who had to leave home immediately was 92% of the
respondents. All of them said they need proper maintenance. The mehr which is an amount
the husband is supposed to return after talaq was less than Rs 500 in 76% of the cases (Patel
1994). Similar surveys have been done by other researchers and organisations and the
outcome confirms the plight of women under the present form of Muslim Personal Law.2

Giving communities cultural rights brings an alternate arrangement of issues and tensions.
The most critical of this identify with the treatment of women. All societies, the world over
place women in a subordinate position. Granting rights to minority may not only run the risk
of leading to minority nationalism which may turn exclusivist and chauvinist, but it also runs
the risk of being a source of unfair treatment to women and other vulnerable groups within

1 B. R. VERMA, COMMENTARIES ON MOHAMMADEN LAW, (Twelfth Edn. 2011)

2 Patel, Razia (2005): "Ya Nikahnamyachya Nimittane" (Regarding this Nikahnaama), Milun Saryajani, July.

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the community. In case of Muslim Personal Law, there are certain provisions which are not in
accordance with the values of gender equality. Provisions like oral divorce, polygamy, and
maintenance after divorce seems to be frequently used by men. The Muslim Personal Law
affects women directly and adversely. Their position under its provision is unequal. Though
polygamy and unilateral divorce were not widespread as they affected only a small section of
the population; maintenance, inheritance and adoption laws affected all families and women
from all classes.

RESEARCH OBJECTIVES

 To study the concept of marriage under Muslim Personal Law

 To critically analyze the biasness in the rights of Muslim women under Muslim
Personal Law
 To analyze the rights o Muslim women in a polygamous marriage under Muslim
Personal Law
 To critically analyze the response of the judiciary on the status on women under the
Muslim personal law
 To study the right to maintenance of a Muslim women under Muslim Personal Law

RESEARCH QUESTION

 What is the status of women with respect to her rights under Muslim Personal Law?

LITERATURE REVIEW

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According to Patel (2009), the present form of Muslim Personal Law in India has some
provisions, which are not seen as in accordance with the values of gender equality and are
constantly opposed by many groups and individuals. The provisions regarding oral divorce,
polygamy and maintenance after divorce are found to be used frequently by Muslim men. As
it is a violation of women's human rights this is opposed mainly by secular and women's
rights activists. The Hindu chauvinists portray this as a special concession to Muslims and are
opposing these from this stand point.

According to Gallagher, N. (2005), there are two major views on personal laws: one
advocates no separate personal laws for Muslims, and calls for immediate implementation of
Uniform Civil Code as per Article 44 of the Constitution; another view advocates retaining
separate laws, but making some reforms which address the above lacunae. There is also a
third view, which denies that there are any unjust provisions at all, and a proper
implementation of religious scriptures will ensure justice to women.

According to Lal, R. (2004), it is relevant to take a close look at the model nikahnamas
proposed recently by the Muslim Personal Law Board of India allows for polygamous
marriage, portrays husband as the main decision-maker, and the wife is seen as dependent on
and subordinate to him. The new model also places the initiative for divorce in the hands of
the husband. As per this nikahnama, the wife cannot go to the court of law against talaq. This
nikahnama also talks about darul kaza meaning the shariat court. It says that in case of any
dispute, the parties should go to the shariat court and not to a court of law. Thus the intention
of this nikahnama is to restrain Muslim women from going to the court, and thereby not
recognising official judicial systems.

According to Subramanian (2008), legal mobilization, especially by women's organizations

and other rights organizations for women's rights and cultural pluralism, and by community
organizations to promote visions of group identity and to uphold particular versions of group
law; and policy makers' orientations toward the regulation of family life, their understanding
of group norms and group initiatives, and their normative vision of family life over the last
generation contributed to gender-equalizing changes in the laws of India's religious minorities
.i.e. Muslim Personal Law but there are still major drawbacks in these laws.

In the current context in India, according to Yamini Aiyar, & Meeto Malik. (2004), where
Muslims have been marginalised in the political sphere, the role that civil society can play in

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providing the necessary space for Muslims to articulate their needs is particularly relevant.
Hence it is critical that civil society re- examine its current understandings of minority rights.

MARRIAGE UNDER MUSLIM PERSONAL LAW

In Muslim law, marriage is a contract having as its object, the procreation and legislation of
children.3 Under Muslim law, a view has been expressed that unless a marriage contract is
completed , no right and obligations arise thereunder, and therefore no suit for damages for
breach of agreement to marry can be filed.4

It is a peculiar feature of Muslim law that it stipulates for the appointment of agents for
marriage. These are known as witalat-ba-nikah. A Muslim, desirous of entering into
matrimony, may appoint any personas his agent for the purpose. Sometimes guardians or
parents of a minor or of persons of unsound mind, 5 also appoint agents for procuring a
suitable life partner. These agents are known as Vakils. In the case of the marriage under the
Muslim law, it is to be noticed that neither writing nor any religious ceremony is essential. All
that is necessary is that there should be a proposal and an acceptance in the presence of
witness.6

A remarkable feature of Muslim matrimonial law is that it permits the spouses to enter into
certain agreements, either at the time of marriage, or even thereafter. These agreements relate
mainly to two aspects: (i) regulation of matrimonial life, and (ii) stipulation for dissolution of
marriage on the happening of stipulated contingency. It has been held that an agreement for
future separation between a Muslim husband and wife is void as being against public policy.7

The bride has a right to agree or refuse certain terms and condition in marriage. However,
issue is that how to ensure the free consent of the Muslim women because many Muslim
women who do not want to give the consent some time forced by family to give the consent.

Triple Talaq

Triple talaq is one of the obnoxious practices that have been followed by the Muslim where
in pronouncement of talaq word three times leads to dismissal of marriage. The Supreme

3 SUBBA RAO, ‘FAMILY LAW IN INDIA’, 178 (Tenth Edn., 2011).

4 Abdul Razak v.Mohammed Hussein,ILR (1916) 42 Bom 499
5 Shafi Ullah v. E.,AIR 1934 All 589
6 Dr. Nanda Chiranjeevi Rao, presumption of marriage under Muslim Law, Indian bar review, page 133, Vol.
39, issue 4, 2012
7 Bai Fatima v. Ali Mahomed,ILR (1937) 37 Bom 280

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Court (SC) ruled that the practice of “triple talaq”, whereby Muslim men can divorce their
wives by reciting the word talaq (divorce) three times, was both unconstitutional and un-
Islamic.8 Giving instant triple talaq will be illegal and void and will attract a jail term of three
years for the husband, according to a draft law aimed to curb the practice which continues
despite the Supreme Court striking it down.

The draft 'Muslim Women Protection of Rights on Marriage Bill' was prepared by an inter-
minister group headed by Home Minister Rajnath Singh.

The proposed law would only be applicable to instant triple talaq or 'talaq-e-biddat' and it
would give power to the victim to approach a magistrate seeking "subsistence allowance" for
herself and minor children.

The woman can also seek the custody of her minor children from the magistrate who will
take a final call on the issue.Under the draft law, triple talaq in any form, spoken, in writing
or by electronic means such as email, SMS, and WhatsApp, would be bad or illegal and void.

"The provision of subsistence allowance and custody has been made to ensure that in case the
husband asks the wife to leave the house she should have legal protection," the functionary
said.9

According to the draft law, which would be applicable to the entire country except for Jammu
and Kashmir, giving instant talaq would attract a jail term of three years and a fine. It would
be a non-bailable, cognisable offence.

RIGHTS OF MUSLIM WOMEN

8 Shayara Bano and Ors. v. Union of India (UOI) and Ors. MANU/SC/1031/2017
9 See article, Triple talaq bill has many 'flaws', says AIMPLB, The Economic Times, Published on February 8,
2018.

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It seems unlikely that the Muslim com- munity can be led to believe that equality of sexes is
in conflict with the spirit of Islam. If the principle of equality is conceded, present legal
provisions regarding polygamy, divorce, guardianship, inheritance, Iddat and maintenance
would have to be drastically modified. While Mohammadan law permits a male Muslim to
have as many as four wives (fifth marriage being irregular though not void), it is not lawful
for Mohammadan woman to have more than one husband at the same time. The provisions
for men and women in this respect are grossly different and inequitable.

The power to give divorce belongs primarily to the husband. But he has a right to delegate
the power to his wife who by virtue of power acquired from her husband can divorce him. It,
again, is a patently unequal position.10However, the Dissolution of Muslim Marriages Act
VIII of 1939 gives substantial relief to Muslim women on this issue and lays down the
following grounds of divorce: (1) the whereabouts of the husband are unknown for a period
of four years; (2) failure of the husband to pro- vide for the maintenance of the wife for a
period of two years; (3) sentence of imprisonment on husband for a period of seven years; (4)
failure without reasonable cause to perform marital obligations; (5) impotence of husband;
(6) insanity of husband; (7) repudiation of marriage by wife (a minor girl married by a father
or grandfather has a right to repudiate marriage after attaining age of 18 years provided it was
not consummated); (8) cruelty of husband, and (9) apostasy from Islam of the husband.

The enactment definitely improved the status of Muslim women. But all the grounds for
divorce in the pase of a woman are subject to proof and judicial scrutiny whereas a man need
not assign any reason for divorcing his wife. This is far from the requirements of equality of
sexes. Inequality is equally glaring in the law relating to guardianship. For it recognises the
father as the primary and natural guardian of his minor children. The mother is only entitled
to the custody of her male child until the age of seven and of her female child until she attains
puberty. But the right of custody is subject to the supervision of the father and this right, too,
lapses after her remarriage. The law of inheritance is no less inequitable. For whatever be the
line of succession, the share of male heirs at every level shall be twice that of female heirs at
that level. Provision of Iddat, period of seclusion, applies only to a woman after divorce or
death of her husband and is clearly discriminatory.

Maintenance for Muslim Wives

10 TAHIR MAHMOOD & INDIAN LAW INSTITUTE, FAMILY LAW REFORM IN THE MUSLIM WORLD, (1972)

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Another issue that concerns the rights of women, though not directly linked with the question
of equality, is that of maintenance. Under the Mahomedan law there is no provision for
maintenance for a widow or a divorcee; except that in the case of the latter, it is limited to the
period of Iddat (seclusion) which lasts from three months to the period of pregnancy, which-
ever is longer. The right to maintenance of a married woman, according to the Mahomedan
law, is valid only so long "she is faithful to him and obeys his reasonable orders" and she is
"not too young for matrimonial intercourse". Inferiority of woman implied in this provision,
is unmistakable.

However, Sections 125 and 127 of the Code of Criminal Procedure 1973 recognise the right
to maintenance as a distinct statutory right irrespective of the nationalities or creed of parties
and makes it independent of personal law or any custom governing the parties. 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 Code of Criminal Procedure is not
dependent on the religion of the spouses. It is a secular law applicable to all irrespective of
the religion. The husband in this case had argued that since he had returned to his wife ‘the
whole sum which, under the personal law applicable to the parties was payable on such
divorce’, he was exempted from paying maintenance in view of s.127. The court did not
accept this argument also. It held that mahr was an obligation imposed on the huband as a
mark of respect for his wife. It is not an amount in consideration of divorce. 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 1986.11

Husband’s Polygamous Marriage: Wife Entitled to Separate Maintenance

Even though polygamy is permissible under Islam, the Code of Criminal Procedure, 1973
vide explanation to s.125(3) entitles a wife whose husband has contracted a second marriage
or keeps a mistress, to live separately and claim maintenance from her husband . As pointed
out by the court in Begum v. Hyderbaig:12

11 Mohd. Ahmad Khan v. Shah Bano Begum ,AIR 1985 SC 945

12 (1972) CrLJ 1270

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A husband cannot expect any self respecting wife, in keeping with modern ideas, to share the
conjugal love with a mistress or another wife. Man is no longer the master of woman and he
cannot, with impunity inflict indignities on woman.

In Sabani alias Saira Banu v. A.M. Abdul Ghaffar, 13the court held that the defense of personal
law permitting second marriage to a husband was not available and the provision was
uniformly applicable to all husbands and wives. In Mohd Ismail v. Bilquees Bano14the
Allahabad High Court held that even though the Muslim personal law permits a husband to
take another wife, it is his duty to create an atmosphere for amicable and peaceful living of
the wives.

The Apex Court in Prakash v. Phulavati and Ors.15, Javed and Others v. State of Haryana
and Others16, held that “In spite of guarantee ofthe Constitution, Muslim women are
subjected to discrimination. There is no safeguard against arbitrary divorce and second
marriage by her husband during the currency of the first marriage, resulting in denial of
dignity and security to her. This violates Articles 14,15 and 21 of the Constitution of India
and international conventions and covenants.”

Article 2(2) of the International Covenant on Economic, Social and Cultural Rights17
requires States to guarantee that the rights enunciated in the Covenant can be exercised
without any discrimination of any kind including on the lines of gender or religion.
According to Article 1 of Committee on the Elimination of Discrimination against
Women,18the term “Discrimination against Women” shall mean any distinction on the basis
of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status.

Thus it is well recognised in international law that polygamy critically undermines the dignity
and worth of women.

MUSLIM PERSONAL LAW: RESPONSE OF THE JUDICIARY

13 AIR 1987 SC 1103

14 (1998)CrLJ 2803(All)
15 Civil Appeal No.7217 of 2013
16 (2003) 8 SCC 369
17 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
United Nations, Treaty Series, vol. 993, p. 3
18 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, p. 13

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The response of the judiciary on the status on women under the Muslim personal law has
been ambivalent. Many of the cases give the impression that the role of our judiciary has
been healthy and satisfactory. Whereas in some of the case court held the validity of the
personal laws cannot be challenged on the ground that they are in violation of fundamental
rights because of the fact parties in personal law is not susceptible to fundamental rights.

Shah Bano Begum19 case has been dealt with previously in this paper.

Danial Latifi V. Union of India20 - In this case constitutional validity of the Muslim Women
(protection of rights on Divorced) Act 1986 was challenged on the ground that it infringed
article 14, 15 and 21 of the Indian constitution. The court remarked that the “legislature does
not intend to enact unconstitutional laws” but that per se is no ground for upholding an Act as
Constitutional, through its un convincing interpretation, Court imposed a seal of the
constitutional validity of the statute. The Supreme Court held that reasonable and fair
provisions include provision for the future of the divorced wife (including maintenance) and
it does not confine itself to the iddat period only. The Constitutional validity of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 was also upheld.

Bai Tahira v. Ali Hussain21- Supreme Court in this case upheld that, the payment of trifling
amounts of mehr to a divorced Muslim woman is no substitute for the maintenance.

Rashida Khatun V. SK Islam 22 - The parties to the proceeding are Mohammedans belonging
to the Islamic faith and are governed by their personal law. In the instant case as to the
validity of the marriage, it was argued that in a Muslim marriage no rituals and functions are
necessary and the Muslim marriage being a civil contract, consent of respondent to marry
the petitioner and thereafter cohabitation with her was sufficient to prove her status as his
wife. Therefore, court upheld that there was no acceptance of the offer to marry, but there was
only an assurance to marry in the future and therefore mere cohabitation with such of
assurance does not constitute the factum of marriage.

ShamimAra v. State of Uttar Pradesh23- In instant case Court held that, for 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

19 Supra note
20 2001 (7) SCC 740
21 AIR 1979 SC 362
22 AIR 2005 Ori 56
23 AIR 2002 SC 3551

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itself be treated as effectuating talaq on the date of the delivery. Hence, judgement 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

CONCLUSION AND SUGGESTIONS

What independent India inherited from its colonial past in the name of “Mohammadan law”
or “Anglo-Mohammadan law” was generally a distorted version of the original Muslim law.
This legacy of our colonial past has been retained in independent India for too long, despite
its conflict with the Constitution of India and the international human rights law.

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India does need its own code of Muslim law, and in preparing such a code legislative reforms
of this law in Muslim countries can be kept in mind. In the light of the experience since the
advent of independence, enactment and enforcement of a comprehensive code of Muslim law
for India however seems to be a cry for the moon. In this situation the role of the judiciary in
properly interpreting and restoring the original, unadulterated Muslim law is extremely
important.

A former Chief Justice of India, describing the legislature, executive and judiciary as “pillars
of democracy serving the society” had once observed:“An obligation is cast on one pillar to
be ready to additionally bear the weight and burden if another pillar becomes weak or for
some reason or the other is unable to bear the weight or is in the danger of crumbling.”24

In respect of Muslim law bearing such additional burden by the judiciary seems to be
imperative. Religion is the root of all these problems and if Uniform Civil Code is
implemented then it can resolve all the contradictions that will arise from substitution of the
present system with any other system that derives its sustenance and sanctity primarily from
religion.25 If religion is continued to be treated as a supreme when it is about marriage,
divorce or anything which directly affects the life of a woman, then the women of that society
will continue to suffer from inequality and discrimination. And that has happened with the
Muslim women.

Uniform Civil Code is one of the way by which the problem of all the inequalities, injustice
and the obnoxious practices could be stopped that are going on in the name of religion
whereas Codification of Personal Laws is the need of the hour of all the Muslim women as
they believe that their family disputes could be resolved if law based on Quranic principles is
codified. Both ways the society will be uplifted and the Muslim women will get justice.

REFERENCES

ARTICLES

24 RC Lahoti, lecture on judicial activism, Delhi, 8 November 2004

25 Supra note 6

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 PATEL, R. (2009). Indian Muslim Women, Politics of Muslim Personal Law and
Struggle for Life with Dignity and Justice. Economic and Political Weekly, 44(44),
44-49.
 Gallagher, N. (2005). Amnesty International and the Idea of Muslim Women's Human
Rights. Journal of Middle East Women's Studies, 1(3), 96-107.
 Subramanian, N. (2008). Legal Change and Gender Inequality: Changes in Muslim
Family Law in India. Law & Social Inquiry,33(3), 631-672.
 Lal, R. (2004). Islam in India. In RABASA A., BENARD C., CHALK P., FAIR C.,
KARASIK T., LAL R., et al. (Authors), The Muslim World After 9/11 (pp. 297-320).
RAND Corporation.
 Yamini Aiyar, & Meeto Malik. (2004). Minority Rights, Secularism and Civil
Society. Economic and Political Weekly, 39(43), 4707-4711.

BOOKS
 SUBBA RAO, ‘FAMILY LAW IN INDIA’, (Tenth Edn., 2011).
 B. R. VERMA, COMMENTARIES ON MOHAMMADEN LAW, (Twelfth Edn. 2011)
 WERNER F. MENSKI, MODERN INDIAN FAMILY LAW, (1st Ed., 2001)
 M. NEJATULLAH SIDDIQI, SOME ASPECTS OF THE ISLAMIC ECONOMY, (1970).
 TAHIR MAHMOOD & INDIAN LAW INSTITUTE, FAMILY LAW REFORM IN THE MUSLIM
WORLD, (1972)

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