Islamic Clergy's Misogynistic Interpretation of Sharia At the Root of Gender Bias
Muslim Women
Demand Equal Rights In Dissolution Of Marriage
Main
Points:
1. Kerala High
Court granted Right to Khula to Muslim women.
2. Madras High
Court supported Kerala High Court's judgment.
3. Muslim Women
Protection Act 2019 abolished Triple Talaq.
4. Muslim Laws
need to be codified.
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By
New Age Islam Staff Writer
13 February
2023
Representational
image of Muslim women wearing hijab | ANI
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The
rigidity of the Islamic clergy over the need to bring revolutionary changes in
Muslim personal laws in view of new challenges has led to anxiety among Muslim
women and compelled the Indian governments to interfere with Muslim Personal
Laws to fulfil constitutional commitments towards equality and justice to
women.
The Muslim
women had long been demanding that the instant triple Talaq should be abolished
to save them from the instant Talaq by their husbands on flimsy grounds in
violation of the Quranic mode of Talaq but the clergy was of the opinion that
though the instant Talaq was wrong but once pronounced, it was valid. This led
to hundreds of thousands of instant Talaq. The central government had to move
in and it passed the Muslim Women's Protection Act in 2019.Once the Law was
enforced, instant Talaq became literally non-existent. Thousands of women and
their families were saved.
Since the
husbands cannot give instant Talaq, the cases of Khula have risen. Apparently,
the men are applying indirect pressures on their wives to go for Khula as they
cannot give instant Talaq. But again the AIMPLB is opposing Khula on the
pretext that women cannot be granted divorce by Khula unilaterally if the
husband does not agree. If it is true, then where does the justification for Khula
lie? The Quran recognises the women’s right to khula by mutual agreement but
what will the woman do if the man neither wants to kerp his wife nor divorce
her? There is the need of a way out. She cannot be left at the mercy of an
uncaring husband. Therefore, the Kerala High Court ruled in January this year
that a woman can be granted divorce by khula even if the husband does not
agree. In February, the Madras High Court also pronounced the same judgment.
The Madras High Court also ruled that only family courts can grant khulas. The
Muslim clergy often presents arguments in favour of sharia councils that the
courts get overburdened by divorce, khula, maintenance and inheritance cases.
So, sharia councils can take the extra burden off the courts and provide speedy
and hassle free solution to the family disputes. But the counter -argument is
that the sharia councils give resolution under the sharia laws which often are
tilted against women due to the misogynistic interpretation of sharia by the
Islamic clergy. In this article, Amana Begum, a women's rights activist
discusses the Muslim women's issues from a liberal perspective.
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Madras
High Court Making Khula Valid Isn’t Enough without Codifying Muslim Personal
Law
By
Amana Begam
10 February,
2023
In November
2022, the Kerala High Court held a remarkable judgment stating that Muslim women have
the absolute right to divorce their husbands without taking their consent — a
type of divorce known as Khula in sharia. The court dismissed a review petition
filed by a man challenging the divorce granted to his wife under the
Dissolution of Muslim Marriages Act 1939. The husband asserted that the divorce
was not absolute and was different from talaq.
Earlier
this month, the Madras High Court followed suit, ruling that Muslim women have
the right to terminate marriage through Khula (which is different from Talaq,
where both partners consent to divorce). The HC also asserted in a separate
hearing that it could only be granted by a statutory court.
The absurd
and unfair idea that a Muslim man can divorce his wife at will while the
woman’s right to break the marriage is subject to the husband’s consent is
widely accepted among Indian Muslims. The Kerala and Madras high courts have
challenged the status quo. It is a necessary change in light of the Islamic
clergy’s misogynistic interpretation of sharia.
Having
moved one step forward, there’s still, however, a question that needs to be
addressed. Will Talaq also come under the purview of statutory bodies? The
Madras High Court asserted in a separate hearing that only family courts can
grant khula and not private sharia councils. The same court, in 2017, had ruled
that Muslim clerics have no authority to issue divorce certificates
If Talaq
indeed also comes under the State’s purview, then procedures for Muslim men
should also be clarified.
Moreover,
what will be the role of sharia councils in society if statutory bodies are
made the sole authority on divorce? A clear set of guidelines should be
provided, and councils should be instructed not to handle matters related to
divorce, maintenance, and inheritance.
A Wide
Spectrum of Discrimination
Although it
appears that the courts are doing their best to be fairer toward Muslim women,
it may not be of much use if the law itself is discriminatory. As far as Muslim
civil matters are concerned, they are governed by Muslim personal laws, which
are not in line with ideas of gender equality. Men can practise polygamy and
divorce their wives unilaterally. Until 2019, when the Muslim Women (Protection
of Rights on Marriage) Act was passed, men could even practise instant triple Talaq.
According to Muslim inheritance laws, a son inherits double the share of a
daughter; a wife receives one-eighth share of the deceased husband’s wealth if
she has children and one-fourth if she does not, whereas the husband receives
one-fourth share of the wife’s wealth if he has children and half if he does
not.
Furthermore,
guardianship (Hizanat) law discriminates against women — mothers are not
regarded as natural guardians of their children. While they can retain custody
when the child is a minor, the ultimate Hizanat lies with the father who
is deemed responsible for the child’s welfare.
It’s
evident that such laws not only reflect patriarchal ideologies but also violate
fundamental rights enshrined in the Constitution. And this is just the tip of
the iceberg — there’s an even wider spectrum of discrimination in Muslim
personal laws.
Go
beyond the 2019 Act
Prior to
the introduction of the Muslim Women (Protection of Rights on Marriage) Act
2019, women were subjected to oral and written threats of talaq, even over
electronic devices. There was a big legal vacuum that further disadvantaged
Muslim women. By outlawing instant triple talaq and making inclusions for
maintenance and custody, the Act became the first step in the right direction.
But there is a need to do more to safeguard women, especially where the
societal setup is patriarchal.
As much as
I appreciate courts’ decisions and amendments in Muslim family law, it is
imperative to make fundamental, not superficial, changes to achieve gender
equality. Muslim law needs to be codified and sharia councils must be given
strict guidelines to ensure that they do not act as a parallel judiciary. In
this regard, the Uniform Civil Code (UCC) can help Muslim women who are looking
for justice but are too scared to speak up. Societal interference will be
minimised and each citizen will get equal treatment before the law.
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Amana
Begam Ansari is a columnist, writer, and TV News Panellist. She also runs a
weekly YouTube show called ‘India This Week by Amana and Khalid’. Views are
personal.
(Edited
by Humra Laeeq)
Source: Madras
High Court Making Khula Valid Isn’t Enough without Codifying Muslim Personal
Law
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