Muslim Women Manifesto for Reform of Inheritance Distribution
By
Grace Mubashir, New Age Islam
22 May 2024
A Pamphlet
Is Published In The Form Of A Demand For Timely Reform Of The Indian Muslim Succession
Law In Favour Of Muslim Women By The Forum For Muslim Women's Gender Justice. The
Forum For Muslim Women's Gender Justice Is An Advocacy Group Based In Kerala Dedicated
To Advancing The Rights And Status Of Muslim Women Through A Focus On Gender
Justice. The Organization Aims To Address The Unique Challenges Faced By Muslim
Women By Promoting Equality, Empowerment, And Social Justice Within The Context
Of Islamic Principles And Broader Human Rights Frameworks.
Forum
for Muslim Women's Gender Justice – Introductory Pamphlet
This is
translated from the original Malayalam version with due permission.
(https://www.sanghaditha.com/indian-muslim/)
-----
Photo: https://www.sanghaditha.com/indian-muslim/
------
Beloved Citizens,
You must be
aware of the discrimination faced by Muslim women in the division of family
property since time immemorial. Sometimes it doesn't really affect you, so you
don't think much about it. Just because you haven't been affected yet, doesn't
mean you or your children won't experience it in the future. Life is full of
contingencies. If we don't remember, big crises can come in our lives due to
this.
Perhaps you
have heard about the ordeal of a mother in Malappuram through social media. Her
husband has been working hard in the Gulf for years and owns a house and a plot
of land. He couldn't earn anything beyond that, probably because they had three
daughters. One of them was divorced and the unlucky father died while staying
at home with his children. The plight of that mother and her family is beyond
words. Death can happen to anyone at any time. When he is the head of the
family, his death makes the family members insecure. What if the relatives who
have to stay with them in that insecure situation use it as an opportunity and
make their lives like hell by colluding with the pro-male laws?
The uncle's
brothers took the approach that selling the house and the land paying off the
loan and starting a small life would hinder their desire to start a small life.
As the years passed, the loan increased, and those poor people were in the
midst of helplessness. Because only
girls were born as children, that mother had to suffer these sorrows alone. In
fact, it is the desperation of only girls and fathers who are alive. The fear
that one-third of their hard-earned wealth might be taken away by those who
have shown no regard for them till then, or who are richer than them. In the
Qur'an relatives are only entrusted with the task of managing the property of
orphans. It is their responsibility until they reach adulthood. The Qur'an says
that brothers inherit only when there are no children (4:12,176). Some
scholars, though rare in Islam, say that this word was twisted and taken as the
state of having no sons. The Qur'an warns us not to take the property of
orphans unjustly, as it is like filling your bellies with fire. So, isn't it
clear that the relatives who claimed the property of the father who suffered in
the Gulf are unjustly acting against the Qur'an? It is a pity that even when
the insurance amount of the father who died in the accident comes through, and
the family without the father gets paid for the land given to the national road
development, the relatives have to pay each share due to this distortion!
Even the
judgments of the judges become unjust because of the vagueness of the Muslim
Personal Law which was created by the British rulers in 1937 before the
independence of India. Shouldn't this law then be revised and codified and made
equally applicable to all sections of Muslims? Due to the fact that it is not
codified, the Qur'an, jurisprudence books and previous court rulings have to be
read every time and often non-Muslim judges have to give their verdicts. Who is
responsible for any defects in judgments that may arise? What is the point of
defending male-dominated laws from time to time by arguing that touching the
personal law is tantamount to playing with the Qur'an? Almost everyone knows that in Islam, a man's
property rights are twice that of a woman's when it comes to dividing family
property. When talking about the right of succession, only that one thing is
generally mentioned. At a time when women had no right to property, Islam
actually brought a revolutionary law.
It can be
understood from the basic concepts of the Qur'an that it should be modified
according to the times. Such a law came into being in the era when the man
himself was carrying out the expenses of the family. (Qur'an as 'because he is
the steward of the family'). Times have changed today. Women also get educated,
earn jobs, and share in family expenses after marriage through reforms in Islam
itself. At least in some families, the man's irresponsible attitude leaves her
to bear the entire cost.
Even then,
she is half a woman-in-law! If she owns half of her father's property if her
husband dies, she will have a right to his property, and if she dies, only half
of her husband's right! When a son dies unmarried, five-sixths of his property
goes to his father, and the mother has to patiently take only one-sixth to
bring him up. If there is more than one wife, and children, all the wives shall
equally share the one-eighth right prescribed for a single wife in the property
of a man. Isn't it a grave injustice to a woman who has shared the joys and
sorrows of life as one, even though the two may be the same, that a single wife
who has no children will get only a quarter of her husband's property and the
remaining three-quarters will go to her relatives? Mehr, prescribed by the
Qur'an as a woman's right at the time of marriage, has lost its relevance
today. And the new practice of her entering the marriage marquee with a heavy
dowry burden has become prevalent among the Muslim masses.
Is it not
un-Islamic to associate the Qur'an with those who do not take into account any
of those things as contrary to the Qur'an in order to maintain the law of
unjustly usurping women's property? Do you not think, do you not use
intelligence, the question arises many times in the Qur'an? Now let's talk
about another justice that acts in the name of personal law. Many of you may
have gone through this situation. The plight of children who lose their father
while their grandfather or mother is still alive and their mother has no right
to their grandfather's property! The misfortune of losing this hereditary
property right often occurs when the deceased's wife has to suffer with minor
children. Which Qur'anic verse should scholars point to as the basis for this
misjudgement?
Many
Muslim-majority countries have had and revised Sharia laws on such matters over
the years. Morocco (in 1958), Tunisia (in 1957), Jordan (in 1951), Pakistan (in
1961), Syria (in 1953), Iraq (in 1959) and more than 20 Muslim countries such
as Turkey, Egypt, and Bangladesh have undergone reforms in personal laws. They
have no Sharia: Did Allah enjoin the responsibility of protection on Indian
Muslims only? Then which model is Sharia? Recently, the Maintenance and Welfare
of Parents and Senior Citizen Act 2007 is applicable to all castes and
religions in India. According to this, there is no distinction between men and
women in carrying out this responsibility. The law does not allow female
subjects who have received only half of their property and grandchildren who
have been disinherited under Muslim inheritance law to avoid this
responsibility. So which law needs to be reformed? Can't be a law to protect
the elderly!
The
Constitution of India is a rare and beautiful constitution. The concepts of
liberty, equality and fraternity are included in its preamble itself. It
applies to all citizens irrespective of caste, religion, gender and language.
In fact, these ideas are close to the fundamentals of Islam. The framers of the
Constitution have written in it that before making any decision if doubts
arise, check whether it is consistent with these fundamentals. Also, the
Constitution provides freedom to practice religion and live according to
religious practices in Article 25, fully recognizing the diversity of faiths in
India. It is only that the customs should not be prejudicial to public
morality, public health or the maintenance of law and order. Hindu and
Christian labour laws have been revised and codified over time. That's not to
say they're still flawless. But no such reform or codification has taken place
in Muslim personal law.
There have
been nominal additions to Muslim law. It is also relevant to remind about some
of them. One of them was the legislation enacted when the male Islam protested
against the court order that a rich husband, who works as a lawyer, should pay
a small monthly maintenance to his poor divorced wife (Shabanu case) for being
un-Quranic. Accordingly, all she has to do is give the number fixed by the
court at one time. If you want, that too can be accused of being against the
Qur'an. It must have been accepted because it was masculine. While it is
comforting for Muslim women who pronounce three talaqs at once, the triple
talaq ban introduced by the BJP government criminalizes a man who pronounces
triple talaq (3 talaqs) on his wife. It is also noteworthy that the community
did not have the courage to raise its voice against it even though it was
extremely inhumane.
Voices
against it are also raised by the democrats. Although the damage of Talaq abuse
is not known in Kerala, the community leadership did not allow the personal law
reform process to be carried out in a timely manner, but it created another
reason to imprison Muslim men as criminals in North India. The demand for
reform of the succession laws in favour of Muslim women is rising strongly in
the society even in these insecure times because the judgment of a case on this
issue is imminent in the Supreme Court. There are many families around us who
are suffering from the Muslim Succession Act in India. Below are some of the discriminations
that Muslim women are experiencing even in modern times due to the laws made on
the concept that families should be under the protection of men only.
Shouldn't
these discriminations change in the new age when tribal social system and joint
family system are replaced by nuclear families and family responsibilities are
shared equally?
1. If the deceased has a son or daughter
alive then only 1/3rd of the property goes to the daughter and 2/3rd to the son
2.
2. If the deceased has only one daughter,
then she gets only half of the total property. For the rest of the relatives.
If there are more than one daughter, 2/3rd share to the daughters and the rest
to the relatives
3. If
one's son and daughter die while one is alive and their children are alive,
then if there are no other heirs, then only the sons' children get the right to
the property and the daughters' children do not get any right.
4. If
the husband dies childless, the wife gets only 1/4 of the husband's property.
If the wife dies, half of the wife's property goes to the husband.
5. A
woman with children has only 1/8 of her husband's property. But the husband
will get 1/4 of the wife's property.
6. If an unmarried son dies, 5/6 of the son's
property belongs to the father. Mother has only 1/6 part.
7. If a
person dies while his parents are alive and there are other heirs, the orphaned
children of the deceased will not get even a fraction of the property that the
father would have had if he had been alive. Women in families with men who do
not carry out family responsibilities and women who have to leave their homes
when their husbands die bear the brunt of these laws. While conservative
religious scholars argue that inheritance laws are not subject to any change,
believers find many ways to escape from the injustices of the same law.
Increasingly, religiously married couples who have only daughters are
remarrying under the Special Marriage Act to pass their earnings to their
children. There is a provision in Sharia law (Mulla's Principles of Mahomedan Law
Section 117, 118) that heirs should not be bequeathed. In order to overcome it,
there are those among the religious people who make a document that the
property has been sold to the heirs.
A codified
Muslim Succession Act needs to be enacted in the country if Muslim women are to
be guaranteed civil rights and gender justice guaranteed by the Indian
Constitution. The Forum for Muslim Women's Gender Justice (FMWGJ) in Kerala
demands and approaches that succession law should be codified and reformed
keeping in mind the current situation in India. We also share the concerns of
Muslims that their traditional religious and religious rights will be denied in
a uniform civil law imposed by the central government. FMWGJ is also adamant
that our interventions should not under any circumstances help a government
that is aggressively anti-minority to enact an anti-Muslim law or introduce a
uniform civil code that undermines democratic diversity in civic life.
The Hindu
Code Bill, introduced in the Constituent Assembly on 11 April 1947, was
strongly opposed by Hindu nationalists, the Hindu Mahasabha and conservative
Hindu religious leaders, just as conservative Muslim clerics opposed the demand
for gender-justification of the Muslim Succession Act of 1937. In 1951, from
the position of Law Minister, Dr B.R. Ambedkar had to resign because of the
Hindu Code Bill. The Christian law of succession also changed after protracted
legal battles.
In 2008, a
writ petition was filed in the Kerala High Court by organizations and
individuals including the Kozhikode-based 'Nisa' for the rights of Muslim
women. The petition was filed seeking to declare the Muslim Personal Law, 1937
under Article 13 of the Constitution relating to the Muslim Women's Succession
Act as violative of Articles 14, 15, 19, 21 and 25 of the Constitution and
therefore declared null and void. But the High Court decided on the petition on
July 2, 2015, ruling that it is the legislature that should consider and enact
legislation. Subsequently, a Special Leave Petition (SLP 9546/2016) was filed
in the Supreme Court. The Supreme Court has asked the Kerala government to
submit an affidavit clarifying its stand on the matter. But it was learned that
the Kerala government called a meeting of some male Muslim religious scholars
and they informed that neither the court nor the government has the authority
to interfere in personal law.
It is in
this situation that Forum for Muslim Women's Gender Justice is formed. This
group is formed by demanding that the government should stand with the interest
of Muslim women as a group facing discrimination in property rights. The demand
of this group is to ensure equal rights for women and men in the rights of
succession in the Muslim Personal Act of 1937. Misogyny is still embedded in
the personal laws of various religious sects in many ways. Therefore, the voice
should be raised now for the equality of women's rights in the civil laws of
various religious groups. Historically, women are still fighting for equal
rights, even in Western societies that seem developed today. Even in the early
part of the 20th century, they had to fight for civil rights including the
right to vote. Therefore, we believe that it is not right to label any
religious group as backward or uncivilized. Islam has been willing to recognize
women's identity and give them some rights, albeit limited, during a period
when women had no rights. However, it is still reluctant to embrace the
modernization that has taken place in the tribal way of life and family
structure. This is the background of the demand to revise the Muslim Personal
Law of 1937 so as to ensure equal civil rights to the men of Islam as religious
believers. The Muslim Personal Law (Shari-at) Implementation Act of 1937 was a
start to reform the customary laws and traditional laws that existed among
Muslims on the basis of Shari-at, although on a limited scale. Another step in
the direction of codification was the Muslim Marriage Dissolution Act of 1939.
In the
context of not clearly defining what the laws are and many courts continue to
pronounce judgments in various ways based on the books of many scholars, it has
become necessary to revise and codify the law. In terms of constitutional
principles and provisions, the Hindu-Christian family laws, which were backward
to Islam, have been reformed. Therefore, Muslim personal law should also be
reformed by ensuring the equal rights of women in order to ensure the
fundamental rights in the constitution. It is the responsibility of all of us
to make efforts to enact laws that establish equality before women and the
opposite sex, based on the 1979 United Nations Declaration on the Elimination
of All Forms of Discrimination against Women, which was adopted by India in
1993, in accordance with the principles of gender equality and justice of the
Constitution of India, incorporating the humanity of the values, principles and
injunctions of the Qur'an. But this reform and codification should not
prejudice the rights of religious sects following different faiths. This group
consists of people who firmly believe in Islam and stand for social welfare and
human justice regardless of caste and religion. Let it be said again that the
policy of this association is not religious sectarianism but the dream of an
India where justice and constitutional rights prevail is shared by this
association.
Sincerely,
Dr. Khadija
Mumtaz (Vice-Chairperson),
Neju Ismail
(Treasurer),
M. Sulfat
(Convener),
Adv. Ramlat
Puducherry (Joint Convener)
-----
A regular columnist for NewAgeIslam.com, Mubashir
V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance
journalist.
New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism