Muslim women in India have faced a challenging journey towards equality and justice. Although women have been leaders and influential figures throughout history, achieving equal rights remains a struggle, especially for Muslim women in India. The situation for Muslims in India is distinct and often not reflective of their legal status as per the Indian census and laws compared to other Muslim-majority countries.
Muslim women in India have rights under both Islamic law and Indian statutes. These rights, which include marital rights, inheritance rights, maintenance rights, and the right to receive mehr, are not always upheld. Despite the country’s secular and sovereign identity, Muslim women often face legal and societal challenges.
Equality and dignity are central to India’s identity, with its diverse religious landscape including Hinduism, Islam, Christianity, Sikhism, Buddhism, Jainism, and more. India’s religious diversity has shaped its culture and society, with Muslims being a significant minority, making up 10.3% of the world’s Muslim population.
According to the 2011 census, there were over 84 million Muslim women in India, yet only 1.7 million were graduates. This highlights the gender disparity and educational challenges faced by Muslim women.
Muslim women globally face a violation of rights, but India offers a mix of personal and legislative laws. For example, Egypt’s Constitution prioritizes Sharia law, affecting women’s rights by legalizing polygamy and setting a low legal marriage age for women. In contrast, Indian courts provide avenues for Muslim women to claim their rights.
Background
The status of Muslim women in India has evolved since colonization. The British introduced separate personal laws for religious communities, fostering adherence to religion as law. Post-independence, India’s Constitution aimed at justice and equality, but personal laws persisted, creating challenges for women’s liberation.
The Dissolution of Muslim Marriage Act, 1939, granted rights like maintenance and custody under certain conditions. Notably, the 1985 Shah Bano case highlighted conflicts between personal laws and constitutional equality. The Supreme Court’s decision in favor of Shah Bano for maintenance brought national attention to women’s rights within personal laws.
The Muslim Women (Protection of Rights on Divorce) Act, 1986, aimed to address these issues but limited maintenance duration. The 2019 Muslim Women (Protection of Rights on Marriage) Act banned the Triple Talaq system, addressing a significant cause of suffering for Muslim women. However, the struggle for equality continues, with debates on the Uniform Civil Code (UCC) and its potential impact on personal laws.
Poverty, low education, and societal norms hinder Muslim women’s legal protection. Solutions require legal awareness, empowerment, and promoting a reasonable interpretation of Sharia. The path to justice for Muslim women in India is a gradual struggle.
Statutes about the rights of Muslim women
The Muslim Women (Protection of Rights on Divorce) Act, 1986
This Act protects the financial interests of divorced Muslim women under Sharia law in India, ensuring maintenance and mehr from former husbands.
Right to maintenance
Section 3(1)(a) guarantees a divorced woman reasonable maintenance from her former husband during the iddat period, a requirement before remarriage. The Supreme Court, in Danial Latifi & Anr vs. Union of India (2001), emphasized reasonable maintenance beyond iddat for financial security.
Right to recover properties
Section 3(1)(c) allows a divorced woman to reclaim properties given to her during marriage, ensuring her financial security.
Entitlement for the maintenance of children
Section 3(1)(b) allows a divorced woman to claim maintenance for her minor children until age two, reinforcing the father’s financial responsibility. The Supreme Court in Iqbal Bano vs. State of UP (2007) reiterated this responsibility.
Right to maintenance from Wakf Board
Section 4 lets a woman claim maintenance from the Wakf Board if unable to support herself post-iddat. The Supreme Court in Noor Saba Khatoon vs. Mohammad Quasim (1997) supported maintenance claims from the Wakf Board for children’s well-being.
The Dissolution of Muslim Marriages Act, 1939
This Act empowers Muslim women to obtain divorce under Sharia law.
Right to divorce for absence
Section 2(i) allows a woman to dissolve marriage if the husband’s whereabouts are unknown for four years.
Right in divorce for desertion
Section 2(ii) enables a woman to seek judicial separation if deserted by her husband for two years without provision.
Right to divorce in the case of imprisonment
Section 2(iii) permits divorce if the husband is imprisoned for seven years or more.
Right to divorce for failure to perform the marital obligations
Section 2(iv) allows divorce if the husband neglects marital duties for three years.
The wife’s right to divorce for impotence of the husband
Section 2(v) permits divorce if the husband is impotent at marriage and remains so.
The right to divorce on the grounds of cruelty
Section 2(viii) allows divorce for cruelty, including physical, emotional, or financial abuse.
The Muslim Women (Protection of Rights on Marriage), 2019
This Act voids assertions of talaq, including triple talaq, making it a cognizable offense with three years’ detention.
Right against instant triple talaq
Section 3 criminalizes instant triple talaq, protecting women from arbitrary divorce. The Supreme Court in Shayara Bano vs. Union of India (2017) declared it unconstitutional.
Right to maintenance
Section 5 allows women to demand maintenance from their husband post-talaq, ensuring financial support. The Supreme Court in Shamim Ara vs. State of UP (2002) emphasized maintenance for divorced women.
Right to custody of minor children of both parents
Section 6 grants custody rights to women post-talaq, prioritizing children’s well-being.
Muslim personal laws in India
Muslims in India can follow Sharia law, with statutes on succession, divorce, and marriage.
Marriage and divorce among Muslims
Muslim marriage is a contract for marital happiness and social welfare, conducted by a Qazi and involving a mehr, a gift from the groom to the bride.
Right of a wife to mehr
A wife has a statutory right to mehr, which she can claim during or after marriage. Non-payment allows her to file for divorce, providing financial security.
Right to seek divorce in Muslim law
Women can initiate divorce through khula, paying compensation for annulment, or approach court under the Dissolution of Muslim Marriage Act, 1939, for cruelty, desertion, maintenance failure, or polygamy.
Khula (dissolution by wife’s offer)
Khula allows a woman to seek divorce by offering compensation, giving her freedom from an unhappy marriage.
Mubarat (dissolution by mutual consent)
Mubarat involves mutual consent for divorce without compensation, ensuring fair negotiation.
Inheritance
Muslim women’s inheritance rights differ from other religions, with the Muslim Personal Law (Shariat) Act, 1937, governing their rights.
Specific shares and considerations
Inheritance shares depend on the relationship with the deceased and presence of other heirs.
- Daughters: Receive half a son’s share.
- Widows: Get one-fourth if childless, one-eighth if with children.
Special conditions of wills in Muslim inheritance law
Key points on wills include a limited bequest via will, Special Marriage Act provisions, and conversion from Islam affecting will validity.
Maintenance under the Code of Criminal Procedure Act
Maintenance for divorced Muslim women is contested, balancing secular law with personal law.
Section 125 CrPC and its applicability
Section 125 CrPC allows a woman to claim maintenance, irrespective of religion. The Supreme Court in Shabana Bano vs. Imran Khan (2009) upheld this dual right.
Polygamy in India
Polygamy is illegal except for Muslims. The Supreme Court in Khursheed Ahmad Khan vs. State of Uttar Pradesh (2015) upheld polygamy’s non-sacred nature.
Provisions of the Indian Constitution
The Constitution ensures women’s rights and religious freedom.
Preamble
Defines India as a secular state, emphasizing equality.
Article 25
Grants religious freedom, with limitations for public order and health.
Article 14
Ensures equality before the law.
Article 15
Prohibits discrimination based on religion, race, caste, sex, or place of birth.
Article 16
Ensures equal public employment rights.
Article 21
Covers the right to live with dignity.
Educational status and gender inequality of Muslim women
Muslim women face educational challenges, with a high dropout rate and early marriages affecting their opportunities.
Landmark judgements
Indian courts have improved conditions for Muslim women through landmark judgments.
Mohammed Ahmed vs. Shah Bano and Anr. (1985)
The Supreme Court upheld maintenance rights for divorced Muslim women under secular law.
Narunnisa vs. Sheikh Abdul Hamid (1987)
The Karnataka High Court protected women’s inheritance rights, allowing daughters to challenge wills.
Danial Latifi and Anr vs. Union of India (2001)
The Supreme Court affirmed maintenance provisions beyond iddat, ensuring financial security for divorced women.
Shayara Bano vs. Union of India (2017)
The Supreme Court declared triple talaq unconstitutional, strengthening women’s marital rights.
Tarsem Singh Ghuman & Ors. vs. Dharma & Ors. (2024)
A pending case on inheritance rights and testator’s authority.
Challenges and debates
Muslim women’s rights in India face societal and legal challenges, with debates on personal laws and the Uniform Civil Code (UCC).
Implementation of a Uniform Civil Code (UCC)
Uttarakhand adopted the UCC, promoting gender equality and legal unity.
Uttarakhand UCC: A landmark reform
The UCC ends polygamy, standardizes marriage age, and equalizes inheritance rights, safeguarding Muslim women’s rights.
Critical analysis
Muslim women’s rights in India involve complex interactions between Sharia law and state legislation. Legal reforms have aimed at addressing inequalities, but socio-cultural resistance persists.
Conclusion
Indian Muslim women have gained legal status and protection, improving their rights in marriage, succession, divorce, and more. Legislative measures and judicial activism continue to advance their status, enabling them to contribute to the nation’s growth.
