PUCL Bulletin, June 2002

Indian Muslim Law and Muslim Women
- By S.M. Daud

The Directive Principles of the Constitution provide for the enactment of a Uniform Civil Code. Politicians, except when concerned with rabble rousing, have preserved a discreet silence on the subject and this silence is deafening when it comes to the Muslim masses. Amongst the rabble-rousing majoritarians, the belief sought to be spread is that Muslims have been pampered and the Hindus discriminated against. No greater falsehood has been trotted, for the greatest casualty of the hands-off-Muslim-personal-law/approach is the mass of females and children amongst the community who number a good 60 to 70 % of the total Muslim population. The die-hards amongst Muslim have convinced themselves as also the ignorant masses that Muslim personal law is permanent and not subject to scrutiny by the legislature. This is to overlook Muslim Law-makers in other countries carrying out amendments to meet the needs of the times. In India a standoff situation prevails and that is why we inquire into the true position at least in relation to the aspects of marriage, divorce, and guardianship.

In Muslim law marriage is a contract, pure and civil and the terms of the contract can include anything provided the same is not against Muslim law or the law of the land and public policy. This being the case at the very inception Muslim women and/or their will-wishers should get the contract reduced to writing. This done, a copy should be retained by the bride with another made over to her parents or guardian. In fact they can also insist that the document incorporating the contract be deposited with the Registrar of Assurances or any other specified authority. There is no reason why the lowest revenue functionary in a village, Taluka, town or municipal council cannot perform this function.

The document should recite in clear terms the amount of dower payable by the groom and whether the same is paid or deferred. The amount of dower should be invested in the name of the wife if paid promptly or as soon as the deferred payment is made. Muslim women are perhaps not aware of the liberality in the law of marriage. The contract can incorporate that the marriage is dissoluble either at the option of the wife or where both so desire. These are recognized forms of divorce. the name given to them in law books being Khula and mubara'at respectively. In the former case no reason is mandatorily assignable for the demanded divorce. In the second case it is a matter of mutual agreement.

Having regard to the plight of Muslim women and their illiteracy it is best that they express their preference for the former. There can be negative terms, e.g., a promise by the husband that he will not exercise the right to seek divorce except under the Muslim Marriage Dissolution Act of 1939. The inclusion of this term in the marriage contract will go a long way to curb the pernicious practice of oral divorce and the exclusive right conferred on a Muslim male to give a divorce without assigning a reason. Next, the contract can also provide that children born of the union shall be under the care and custody of the wife until they attain the age of majority with the husband being under an obligation to provide for their maintenance and in the process compensating the wife for the labour and time spent by her on ministering to the children.

This term will go a long way to curb the threat of a divorce by the husband or his relations. I see no reason why the contract cannot provide for the wife being entitled to maintenance and that too index-linked in the event of a divorce and until she remarries and/or gets the capacity and actually starts earning for herself. This can be said to be against the true spirit of Islam which looks upon divorce as an abomination. If there be in-built checks to dissuade recourse to this abomination, the law, Muslim or otherwise, cannot regard it as contrary to public policy.

Muslim organizations working in the social sphere have to accept that backwardness in the community is responsible for its misery to a great extent. They have further to accept the fact the greatest sufferers - direct or indirect - of this backwardness are the women and children. Unchecked growth of a family deprives the wife, the children, in fact, the bread-earner himself of much that goes into the development of a human being. Consequently marriage contracts can also incorporate a limit on the child bearing to which the wife will be subjected - the husband being placed under an obligation to undergo a sterlisation operation.

Women (and children) whose husband predecease their propertied parents are deprived of a share in the estate of the latter. In fact they are not even entitled to maintenance from the well-to-do parents or brothers of the deceased. This is an affliction entirely unwarranted. Be that as it may, the marriage contract, where possible, can become a tripartite pact to ensure that penury is not to be the lot of the widowed wife or father-less children.

Organizations like the National Commission for Women at the Centre and States can intervene directly with standardized forms to ensure that an unwary female is not left to the tender mercies of the unthinking males and Mullahs. Much can be done within the four corners of the prevalent personal law if the cobwebs of ignorance and traditionalism are removed. Social welfare is high on the agenda of the 1950 Ambedkarite Constitution and there is no reason to deprive the most neglected and unfortunate section of the population, the relief they so urgently require. Islam's true humanitarianism and compassion has to be revealed to eradicate the misunderstanding that religion itself allows injustice to flourish.

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