1.

INTRODUCTION

"And for women are rights over men similar to those of men over women."
[Noble Quran 2:228]

“Whenever weakness creeps into the faith of Muslim men they tend to
treat women oppressively and seek to exploit them. Present Muslim Society has
become unduly conservative for fear that freedom of thought would lead astray
and divide the community; and that freedom of women would degenerate into
licentious promiscuity - so much that the basic religious rights and duties of
women have been forsaken and the fundamentals of equality and fairness in the
structure of Muslim Society, as enshrined in the Sharia, have been completely
overlooked.

In the fallen society of Muslims, women have little freedom. All sorts of
subterfuges are employed to deny her inheritance. In the domain of public life, she
is not allowed to make any original contribution to the promotion of the quality of
life. A revolution against the condition of women in the traditional Muslim
societies is inevitable.

The teachings of their own religion call upon Islamists to be the right
guided leaders for the salvation of men and women”.1The issues of women and
Islam among masses have for quite some time attracted the interest of intellectuals
and politicians. But much of this interest is caught up in misconception. Religion
is seen to be the primary force influencing every aspect of women’s lives. They
are still isolated from world affairs, wherein every move of their life is controlled
by men and religious dogmas issued from time to time by religious leaders and
scholars.

1
[Dr.Hassan Abdalla Al Turabi (Sudan)]
https://www.countercurrents.org/farooqi090311.htm (accessed on 26/04/2018) 1
 The spotlight is always on the role of religion in their life. It is normally
believed that they are strictly controlled by Muslim personal law.2
The social status of Muslim women as projected to the outside world is the result
of select cases of Muslim women passionately discussed in media. It has resulted
in identifying the Muslim religion as a sole locus of gender injustice.

According to the Sachar Committee report (2006) as a result of such

biased propaganda the civil society and the state locate Muslim women’s
deprivation not in terms of the ‘objective’ reality of societal discrimination and
faulty development policies, but in the religion and religious politics.

Furthermore when the community identity is under siege it affects women

in dramatic ways. Women sometimes out of their will, sometimes under
community pressure, adopt visible markers of community identity on their person
and in their behaviour which hampers social, educational and economic growth of
Muslim women.

The morality of women and movement in public spaces are under constant
scrutiny and control. A gender based fear of the ‘public’ experienced to some
degree by all women, is magnified manifold in the case of Muslim women. A
rigid line is drawn between safe and unsafe places. The community and its women
seem to withdraw into the safety of familiar orthodoxies, within boundaries of
home and community, reluctant to apply modern thought and practices.

This study aims at analysing social status and suggesting social enlistment
criteria for Muslim women. Muslims in general have a poor representation in
employment market particularly in public employment. Deprivation from means
of livelihood due to displacement from traditional occupation led to their
economic backwardness.

2
Empowerment of Muslim Women , http://shodhganga.inflibnet.ac.in/bitstream/10603/92196/4/chapter-%203.pdf
(accessed on 26/04/2018) 2
 Muslims by large are engaged in the unorganized sector of the economy
which rarely enjoys support of any nature from government and non government
bodies.

They are mainly self employed (engaged in home based work). Sewing,
embroidery, zari work, chikan work, readymade garments, agarbatti and beedi
rolling are some of the occupations in which Muslim women are concentrated and
characterized as low income, poor work conditions. The distinct pattern of
Muslim women’s employment in home based work is in part due to
discrimination in formal employment.

In part it is due to vicious cycle of poverty, lack of education and technical

skills etc. Muslim women are unable to bargain for better work conditions
because much of work they do is subcontracted. Many home based workers are so
low down in the assembly line of production that they operate entirely through
middlemen and do not even know who their employer is.3

Muslims in general and Muslim women in particular generally lag behind

in most of the spheres of life in India. The causes are multifaceted and have been
discussed in this dissertation. It is commonly perceived that the problems of the
Muslim women are much different and more complex than their counterparts
belonging to other religions and communities. In a way it is correct, Muslims
since independence have lived in a fear of attack, they have been ignored by
successive Governments and sometimes they have been targeted in the name of
avenging some wrong doings in the past which have also been supported by
various political parties and government.

Such movements have targeted the community and women being the most
vulnerable have been exposed to all sorts of violence. Without proper education
and knowledge they are not even able to take up their cases and obtain justice.

3
https://www.researchgate.net/publication/283539413_Empowerment_of_Muslim_Women (accessed on 26/04/2018)3
 All that men have to do is support their wives and children. If men want
future generations to succeed in the world, it is just as important to educate their
daughters as their sons; indeed, it is probably more important to educate the
daughters.

The bigotry and useless customs that are prevalent in the culture will
disappear only with appropriate education and development. If they learn the
precepts of their religion, they will be better wives, mothers, guides to their
children, and better Muslims.

In addition, sending girls to school as opposed to instructing them at home

is much better, because a school can afford better teachers and broader curricular
offerings than any home instruction. The need to teach reading, writing,
mathematics, and a basic knowledge of the world, and practical subjects like
health and cleanliness, household accounting and management, cooking, sewing,
child care and exercise for bodily health is especially needed.

People who keep women in ignorance are the worst enemies of

humankind, ensuring the decline of future generations. If the women of the
community are backward the men of that community can never advance.

1.1 BASICS OF THE RESEARCH OBJECTIVE -

The present study explores, the socio-economic status of women in

Muslim communities, along with their level of education, their participation in the
progress of the society and the need for legal reform, are major causes of concern
and need immediate attention. The impoverished status of a large number of
Muslim women in India underlines the urgency for further inquiry in this area and
also the need for active intervention by state agencies to implement policies to
redress this imbalance and ensure Muslim women's full and equal participation as
Indian citizens.

4
 Like women from other communities, Muslim women are differentiated
across gender, class, caste and community, and are subject to the interface
between gender and community within the Indian social, political and economic
context. After seven decades of independence the majority of Muslim women are
among the most disadvantaged, least literate, economically impoverished and
politically marginalized sections of Indian society.

The social and economic issues confronting women in Muslim

communities mandate attention as does the violation of their rights as citizens of
India. To create a detailed and comprehensive description of the lived experiences
of Muslim women while advancing an understanding of the Quran itself and
Islam as a religion, can promote gender equality for Muslim women.

The present study aims to encompass the social, economic, and

environmental conditions of the Muslim women . The study aims at examining
their vulnerable living conditions and empowerment levels. And to suggest
appropriate policy for empowerment of Muslim women through improving the
education.

LIMITATIONS -

The research is based on external views and assimilation of the same in the
form of a structured understanding of the researcher, her thoughts and
experiences. It relies on statistical data which is based on the findings of Bhartiya
Muslim Mahila Andolan (BMMA) Muslim Mahila in “Seeking Justice Within
Family” and affidavits filed by an NGO Majlis and others.

METHODOLOGY -

The Researcher has adopted this method, being an interdisciplinary study,

for deducing the practices of Muslim Communities and violation of Muslim
Women’s rights in India.
5
SCOPE -

Historically and culturally constructed patriarchal gender roles within

Islam, Western media’s depiction of Muslim women in need of saving, and
misogynistic religious interpretations have forced the issue of gender inequality
within Islam to the forefront of Muslim women struggling lives.

As the Muslim world comes to grips with its gender inequality, internal
conflict, Muslim women, non-Muslims, researchers, academia, and non-
governmental organizations are seeking ways to understand Islamic theology to
promote gender equality within Islam and relating it to fundamental rights. This
research study is significant, for its desired outcome to provide information,
suggestions, and recommendations on sustainable social, economic, and political
opportunities for Muslim women seeking gender equality within Islam to improve
their lives.

As Muslim women constantly struggle with how they can acquire gender
equality within Islam without separating religion from culture, Islamic feminists
are seeking proactive ways to highlight Muslim women’s rights guaranteed to
them via Islam and the Constitution of
India.

THE RESEARCH PROBLEM -

The social and behaviour of the society needs to be analyzed around

critical question as to how the violations against women that rob them of their
fundamental right must be curbed be investigated to reach a solution. This study
addresses three research questions about how Muslim women's rights in Islam be
restored, the primary source of Islam, i.e. the Quran, be interpreted rightly, the
Muslim Personal Law be supported by the Constitution of India to get her what
she rightfully deserves.

6
 Islamic law seeks to be kind towards women, the Constitution has carved
out special laws for women yet the women are treated with prejudice and bias.

The policies and decisions that need be taken by the State, the Judiciary,
by Islamic clerics and Scholars needs to be in the light of fairness towards
women. How this will be done is the question we need to arrive at.

HYPOTHESIS -

During the study of this research, the Researcher seeks to make an attempt
to answer the following :

Muslim women face a unique problem with regards their fundamental

rights due to the mis-interpretation of their primary source of law and their socio-
economic conditions, background, circumstances add to their woes.

Women empowerment and socio-economic characteristics are positively

co-related and education leads to empowerment.

RESEARCH DESIGN -

Procedures followed in collection of data4, Procedure followed in

analyzing and classifying the data in different forms like tabulation, statistical data
collection etc.

4
Dr. S. R. Myneni, Legal Research Methodology, Allahabad, 2017 7
LITERATURE REVIEW -

The research study included a qualitative research approach. Data were

collected from multiple sources: observations, educational levels, socio-economic
backgrounds. Inductive analysis allowed for the emergence of patterns and themes
in relation to Muslim women and gender equality within Islam.

The methodology adopted is doctrinal research while referring to research

of other learned people, Supreme Court judgements, relevant laws related to
women, magazines and journals, books authored by muslim scholars. The
Constitution of India and the Quran was also referred to so as to understand the
primary source of Islamic law. Quoting first-hand narration and affidavit of
women-centric NGO at work and internet websites.

8
2. EVOLUTION OF THE RIGHTS OF MUSLIM
WOMEN IN ISLAM

With changing times, the rights of Muslim Women have evolved from
pathetic to excellent to very bad and they are supposedly improving once again…

2.1. WOMEN IN PRE ISLAMIC TIMES

Before Islam, the status of the woman was degraded and base in most
nations. They did not consider her a human being with a soul; rather, they used to
believe that she is created from a base soul and that she is the source of evil and
sin. The distinction that Islam gave to the woman set a precedent in the history of
mankind fourteen centuries ago.5

WOMEN IN ANCIENT HINDUISM -

According to the Hindu Laws of Manu, the woman had no rights. She was
a mere servant to her husband or father. She did not have the competence to
dispose of her property, and she had no right of ownership. Anything that she
owned was the property of her husband, father or son. Also, when her husband
died, she was to be burnt alive and buried with him. This heinous crime lasted
even after the start of the British occupation in India which imposed laws banning
the act of burning women alive. Nevertheless, the burning of wives continued
from time to time even in the twentieth century.

WOMEN IN THE ANCIENT GREEK CIVILIZATION -

In ancient times, Greece was the most civilized and urbanized of nations.
Athens was the city of wisdom, philosophy, medicine and knowledge.

5
http://www.islamweb.net/womane/nindex.php?page=readart&id=177693 (accessed on 26/04/2018) 9
 However, the people of Athens used to buy and sell the woman as if she
were a mere commodity. They considered the woman nothing but defilement from
the devil’s handiwork. The Spartan women were allowed in the past to marry
more than one husband, and most Spartan women practiced polyandry.

WOMEN IN ARAB SOCIETY BEFORE ISLAM -

In the pre-Islamic period, the Arabs regarded the woman as a piece of

property or as rubbish. When the husband died, his guardian would cover the wife
of the deceased with his garment and she could not remarry until he permitted her
or until she ransomed herself. They used to prevent her from remarrying until the
young matrimonial guardian would grow up and then decide whether he wished to
marry her or give her in marriage to anyone else and take the dowry as long as she
was not his mother. If she was his mother, he would not marry her.


The woman had no rights and she did not inherit anything. She was
considered a source of humiliation and shame. Moreover, the Arabs in the pre-
Islamic era did not only deprive the woman of inheritance but also deprived her of
life itself. When some of them begot a female child, they would dig a hole and
throw her into it and heap dust over her. What is worse and more disgusting is that
once, a father was away travelling when his wife gave birth.

When he came back, he took his grown up daughter from her mother, dug
a hole while she removed the dust from his clothes, and then, taking her by
surprise, pushed her into the hole then heaped dust over her while she screamed
for pity. But his heart did not soften for her.

Some mothers used to fear this painful destiny. So, the mother would dig a
hole herself during her pregnancy. If she delivered a girl, she would throw her into
the hole in order to save her from the tragedy that would take place when the
father returned from traveling. Some mothers would strangle their baby daughters
after delivering them.

10
 Their hatred for girls was based on two reasons: First, girls do not take
part in wars. Second, they feared that the girl may later become a source of shame.
Despite their fear of shame, strangely enough, we find that many Arab tribes were
quite lenient in the face of prostitution and that they used to force their slave girls
into prostitution

It is time we noticed the humiliated state of women in these times and

discussed the status of women in Islam in order to see the great difference
between that low degrading status and the refined, sublime status that Islam
granted them.

2.2. WOMEN AT THE ADVENT OF ISLAM

Educate a man, you educate a person. Educate a woman and you educate a
family. Educate a family and you educate the Ummah.6

Islam brought about liberation of women from bondage and gave her equal
rights and recognized her individuality as a human being.

Islam improved the status of women by instituting rights of property

ownership, inheritance, education, marriage (as a contract) and divorce. The
women of the Prophet's time enjoyed the full range of rights and freedoms that
Allah and the Prophet allowed them. There were many prominent Muslim women
in that generation who were outspoken and contributed to building the Islamic
society. Their names have been recorded. Quran is insistent on the full
participation of women in society and in the religious practices.

The history of Muslims is rich with women of great achievements in all

walks of life from as early as the seventh century.

6
Status Of Muslim Women In Islamic Societies – Past And Present by By Dr. M.I.H. Farooqi
https://www.countercurrents.org/farooqi090311.htm (accessed on 26/04/2018) 11
 Since the beginning of Islam, Muslim women have made strong
contributions in the development of Islamic Societies. The Qur'an provides clear-
cut evidence that woman is completely equated with man in the sight of God in
terms of her rights and responsibilities. In terms of responsibility and authority,
men are placed a degree higher. (Qur’an 2:228). Few examples of Quranic
injunctions for the rights of Woman are as follows:

“Every soul will be (held) in pledge for its deeds” (Qur'an 74:38).

“So their Lord accepted their prayers, (saying): I will not suffer to be lost
the work of any of you whether male or female. You proceed one from another”
(Qur'an 3: 195).

“Whoever works righteousness, man or woman, and has faith, verily to

him will We give a new life that is good and pure, and We will bestow on such
their reward according to their actions”. (Qur'an 16:97, see also 4:124).

“When news is brought to one of them, of (the Birth of) a female (child),
his face darkens and he is filled with inward grief! With shame does he hide
himself from his people because of the bad news he has had! Shall he retain her
on (sufferance) and contempt, or bury her in the dust? Ah! What an evil (choice)
they decide on?” (Qur'an 16: 58-59).

“O Mankind, keep your duty to your Lord who created you from a single
soul and from it created its mate (of same kind) and from them twain has spread a
multitude of men and women” (Qur'an 4: 1). A scholar who pondered about this
verse states: “It is believed that there is no text, old or new, that deals with the
humanity of the woman from all aspects with such amazing brevity, eloquence,
depth, and originality as this divine decree.”

It has been rightly claimed by some scholars that any interpretation of the
Qur'an that is discriminatory against women is contradictory to core spirit, general
principles and ultimate purposes of Islam.
12
 Islam honours women as daughters, and encourages raising them well and
educating them. Islam states that raising daughters will bring a great reward. For
example, the Prophet (peace and blessings of Allah be upon him) said:

“ Whoever takes care of two girls until they reach adulthood, he and I will
come like this on the Day of Resurrection,” and he held his fingers together.
(Muslim)

On another occasion Prophet said:

“None but a noble man treats women in an honourable manner. And none
but an ignoble treats women disgracefully”. ( At-Tirmidi ).

As a result of rather revolutionary laws for women, early Islamic societies

saw Muslim women being involved in diverse occupations and economic
activities. They were employed in Hospitals as physicians and nurses. They were
employed even in Secret Service (as part of Postal Department) during the period
of Abbasids 7 and Islamic

Spain in the field of education, they could study, earn Ijazahs (academic
degrees), and qualify as scholars and teachers. The women of Islamic Spain, like
their counterparts in other Islamic societies, were active participants in political
and cultural affairs. They helped shape the cosmopolitan civilization associated
with the Muslims.

There are authentic reports that during the Rise of Islam, (7 th Century to
15 th Century AD) Muslim women were active patrons and sponsors of public
works. Rich women supported many public fountains, gardens, hospitals, and inns
through their own assets and property.

7
Members of the dynasty of Calipphs ruling at Baghdad, 750-1258 AD, governing most Islamic world and claiming
decent from Abbas, Uncle of Mohammed. 13
 All through the period of Islamic rise of Medieval Period it was
impossible for anyone to justify any mistreatment of woman by any ruling
embodied in the Islamic Law, nor could anyone dare to cancel, reduce, or distort
the clear-cut legal rights of women given in Shariah. As a matter of fact the
reputation, purity and maternal role of Muslim women were objects of admiration
by observers from the West. Female religious scholars were relatively common in
Muslim Societies.

Mohammad Akram Nadwi has compiled biographies of 8,000 female

jurists during Islamic Rise. and orientalist Ignaz Goldziher estimated that 15
percent of medieval hadith scholars were women. Women were important
Transmitters of Hadith compiled by Sahih Sitthah (Six Collections of Prophetic
Traditions).

Many Western Scholars have appreciated Islamic recognition of

fundamental rights of women. For instance, Annemarie Schimmel states that
“compared to the pre-Islamic position of women, Islamic legislation meant an
enormous progress; the woman had the right to administer the wealth she had
brought into the family or had earned by her own work.”

Similarly, William Montgomery Watt states that “ Muhammad, in the

historical context of his time, can be seen as a figure that promoted women's
rights and improved things considerably”. Watt further explains: “At the time
Islam began, the conditions of women were terrible - they had no right to own
property, were supposed to be the property of the man, and if the man died
everything went to his sons.

Muhammad, however, by instituting rights of property ownership,

inheritance, education and divorce, gave women basic safeguards.”

After fifteenth century AD things started changing against the interest of

women. Harsh restrictions on women and general violation of human rights
began.
14
 Culture and patriarchal constraints played instrumental roles in restricting
Muslim women's educational and economic participation. This was the period of
Decline (Fall) of the Islamic World.

The situation has gone so bad that many people believe that Muslim
women are oppressed in Islamic Societies. They are denied education and other
basic rights. These are not baseless accusations. But one must understand that
these oppressive practices do not come from Islam.

These are part of local cultural traditions in various countries. Western

observers portray Islam as uniquely patriarchal and incompatible with women's
equality. Two rather unfortunate examples of deprivation of Muslim women from
her Islamic Rights, after the fall of Islamic Societies, are with regard to their
Education and inheritance in properties.

As against the high women literacy during the Rise, (as high as hundred
percent in highly developed cities of Baghdad and Cordova), it was deplorable
during the Fall. An Indian survey in 1921 showed that only four out of every
1,000 Muslim females were literate. This situation was more or less the same
throughout the Islamic World.

The reason was the general edict that Muslim girls need not learn the
writing as reading was enough for them. In even 21st century women education
finds low priority in the Islamic world and the gap between male-female literacy
is sometime as high 40%.

For Instance, according to the Adult Literacy Rates and Illiterate

Population by Country and by Gender report (of September 2006) by UNESCO
Institute for Statistics (UIS), Egypt's adult literacy rate for males is 83% whereas
that of females is 59.4%. The male adult literacy rate for Morocco is 65.7% and
that of females is only 39.6%. Pakistan, another Muslim country's literacy rate is
63% for males and a 36% for females.

15
 Similar is the case of Yemen (male literacy rate 73.1 percent, female 34.7
percent, difference 38.4 percent) and Afghanistan (male 43.1, female 12.6,
difference 30.5), In Muslim Countries like Chad, Niger, Benin, Guinea, Sierra
Leone, Cote d'Ivoire, Senegal, Malawi, the malefemale gap is between 20 and 30
percent.

Denial of inheritance to women was another distressing example of

unIslamic attitude during the Fall. A glaring denial of property to her was quietly
accepted in India when legislations were passed (20 th Century) that Women
(Muslims or non-Muslims) had no rights in agricultural land and the properties of
Taluqdars (Big Landlords) Similar situations existed then throughout the Islamic
world.

It is being claimed by some Muslim Scholars of Turkey and Egypt that

during the last two decades things are changing in favour of Women.

2.3. WOMEN IN CURRENT TIMES

8
Muslim women in India are potential catalyst for development. Their
emancipation may be a crucial step in the development of community. Their
present status by and large reflects the dominance of traditional attitude. An
improvement in their present day status will not only contribute in the progress
and modernization of the community but also the development and modernization
of entire nation.9

8
Islam and muslim Societies: An analysis of Sachar Committee Report by Azra Khanam, P.K.
Mathur http://www.muslimsocieties.org/Vol_4_No_1_Status_of_Muslim_Women_in_India.html
(accessed on 26/04/2018)
9
Sushila Aggarwal, 1988, The Process of Modernization in India and the Status of Muslim Women, Jaipur, Printwell
Publishers.
16
 The literature on Indian women in general is characterized by three broad
tendencies; it ignores Muslim women and considers their status a product of
personal law and assumes a sameness in the status and form of oppression, cross
community, first the problem of omission with some important exception & most
studies take notice of Muslim women.10

The minority location does qualitatively transform women’s experience

and perception in a very distinct way and change in their status and role is central
to understanding the development of the community. 11

And since Muslim are in minority in India, their women’s position is even
worse because there is an attempt to safeguard the community identity that
generally prevent Muslim women to participate in development processes. One
manifestation of this is, as pointed out in one study, that majority i.e. 69.75
percent Muslim women do not want to educate their daughters beyond the
primary level of education. Further many middle class women who have requisite
qualifications are not allowed to seek employment because ‘community
respectability’ is likely to get smeared. This has resulted in general backwardness
of Muslims and particularly Muslim women in India.12

Sachar Committee report also highlights the role of community identity

for the status of Muslim women. it says, “Women in general are the torch bearers
of community identity when community identity is seen to be under siege. It
naturally affects women in dramatic ways, women sometimes of their own
volition sometimes because of community pressure, adopt visible marker of
community identity on their person and in their behaviour.

10
Zoya Hasan and Ritu Menon, 2005, In a Minority, London, Oxford University press, P. 3.
11
Andra Beitelle, 1975, “The Position of Women in Indian Society” in Indian Women (ed) Devki Jain, New Delhi,
Publication Division Ministry of Information Broadcasting Government of India, P. 63.
12
Asghar Ali Engineer, 2005, Islam Women and Gender Justice, New Delhi, Kalpaz Publishers. P. 348
17
 The community and its women withdraw into the safety of familiar
orthodoxies, reluctant to participate in the project of modernity which threatens to
blur community boundaries.

It was said that for a large number of Muslim women in India today the
only safe place (both in term of physical protection and in term of protection of
identity) is within the boundaries of home and community”. 13

Education has always played a very important role in every society. It

makes an individual to internalize the value and norm of the society and
simultaneously offers the specific skilled persons to serve different functions in
society. 14

The role of education in facilitating social and economic progress is well

accepted today. Improvement in education opens up opportunities leading to both
individual and group entitlements. 15

Muslims are at a double disadvantage with low level of education

combined with low quality of education: their deprivation increases manifold as
the level of education rises.

In some instances the relative share for Muslims is lower than that of
schedule caste and schedule tribes who have been victim of long standing caste
system.16

13
Social, Economic and Educational Status of the Muslim Community of India; A Report,, New Delhi, Prime
Ministers High Level Committee Cabinet Secretariat, Government of India, P. 13, 2006
14
Rashid Shaz,“The Cultural Problem of Muslim in India” in Muslim Minority Procedure of Sixth International
Conference of the World Assembly of Muslim Youth, Reyadh. P. 412, 1986
15
Social, Economic and Educational Status of the Muslim Community of India; A Report, New Delhi, Prime Ministers
High Level Committee Cabinet Secretariat, Government of India, P. 50, 2006.
16
Ibid, P. 50
18
 Muslims have very low share in regular jobs in large private enterprise and
this differential is very high between Muslims men and women. The share of
Muslim male and female in regular works in public and large private sector jobs is
quite low as compared to other socioreligious communities.

As compared to other socio-religious communities much largest

proportion of Muslims (including both male and female) work in self owned
proprietary enterprises in rural area. Similar trend is also found in urban area.17 To
assess the profile of Muslim women in regard to education and economy the data
presented in Sachar Committee Report (2006) has been analyzed.

The findings of the committee show that Muslims are at double

disadvantaged with low level of education combined with low quality of
education. Muslim women are educationally backward, and the drop out rate is
significantly high among Muslim women as compared to Hindu women and their
Muslim male counterpart.

As far as economy and employment is concerned the work participation

rate among Muslim is lower as compared to other socio-religious communities
Muslim women work participation rate is much lower than that of Hindu women.
Therefore, on the basis of information given in the report it may be concluded that
in general Muslim are economically and educationally more backward and the
condition of Muslim women is very bad as they are educationally and
economically more backward as compared to Muslim men and Hindu women.

17
Ibid, P. 92 19
3. ISSUES FACED BY MUSLIM WOMEN IN INDIA

Some problems faced by Muslim women in India are specific to only them.
The unfairness involved in Mahr is the issue that only the Muslim of the Muslim
Community face. Also Polygamy, Halala, Triple Talaaq, are unique issues of
Muslim women. The researcher here believes that with better education, the
women will be more empowered, think more liberally, their horizons will be
widened and their sufferings will be greatly reduced. The unfair and irrational
treatment meted upon them can be confronted by them head on. This can happen
with renewed zest and confidence armed with encouragement from family
members and the community itself.

3.1. MAHR

Mahr is one of the Composites of Marriage In Islam

Mahr is the consideration for the contract of marriage between the parties.
It may be in the form of money and/or goods given by the Bridegroom to the
Bride in consideration for the marriage. It is an essential element of Muslim
marriage and is exclusively reserved for the use of the female partner, the
intending husband is asked to offer a Mahr to the bride.

The Quran says: “And give women their Mahr as a free gift, but if they of
themselves be pleased to give up to you a portion of it, then eat it with enjoyment


and with wholesome result.” (Surah an-Nisaa’, 4:4)


It is obligatory on the husband to pay Mahr to his wife unless she

expressly by her own will without any pressure forgives him or returns the
amount of Mahr to him. Mahr belongs to the wife and it is to be given to her only.
It is not the property of her parents or her guardian. No one can forgive the
husband to pay the Mahr except the wife herself.

20
 If a husband dies without paying Mahr to his wife, it will be an
outstanding debt on him and it must be paid before the distribution of his
inheritance among his heirs. Mahr is not a bride price. It is a woman’s right and it
signifies a husband’s love and appreciation for his wife. In the Qur’an it is called
“sadaqah” which means a token of friendship. Mahr also signifies a husband’s
commitment to take care of his wife’s financial needs. Payment of Mahr could be
immediate - Muajjal (prompt), or Muwajjal (deferred).18

According to the Shari`ah, the Mahr should also be reasonable and be

fixed according to the financial status of the husband and according to the time
and place. It is a principle of the Shari`ah that the Mahr should not be too
expensive. Sometimes the groom declares a big amount and secretly thinks that
this is just a commitment on paper.

People are often heard saying, “Write whatever you want, no one asks and
no one pays.” Muslims should only commit to what they are really capable of
paying and what they intend to pay. It is haram to enjoy relations with a wife and
then deny her the Mahr when she demands.”

Often times, the amount of Mahr is kept very low as if following a mere
ritual and that is when the bride - to - be suffers. Mahr is not to be confused with
Maintenance at the time of Talaaq.

19
In Bai Tahira v. Ali Husain Fidaali Chothia The Supreme Court
regarded Mahr as the sum payable under Customary or Personal Law on divorce,
as referred in section 127 (3)(b) CrPC. 2021

18
https://archive.islamonline.net/?p=1299 (accessed on 26/04/2018)
19
(1979) 2 SCC 316: 1979 SCC (Cri) 473
20
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012
21
(1985) 2 SCC 556; 1985 SCC (Cri) 245
21
 In Mohammed Ahmed Khan v. Shah Bano Begum 21 Appellants argument
was that Mahr was the sum payable by the husband to the wife on divorce, It was
rejected and the court held: The payment of the amount is not occasioned by
divorce which is what is meant by the expression “on divorce” under section 127
(3)(b) CrPC.

If Mahr is an amount which a wife is entitled to receive, from the husband

in consideration of the marriage, that is the very opposite of the amount being
payable in consideration of divorce. Divorce dissolves the marriage. Therefore, no
amount which is payable in consideration of the marriage can possibly be
described as an amount payable in consideration of divorce.

In Hassena Bano v. Noor Alam, AIR 2007, Raj 49, the fight over the
payment of Mahr brought the parties before the court. The court held that since
the concept of contract is the basis of marriage, the principles of a valid contract
would be applicable to the relinquishment which should be voluntary, without
being induced by duress, fraud, misrepresentation, undue influence or mistake,
with free consent. 22

23
In Kapore Chand v. Kidar Nissa Begum , The Supreme Court held that
the widow is not entitled to priority as against her husband’s unsecured creditors.

22
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012
23
AIR 1953, SC 413: 1950 SCR 747 22
How much Mahr Did You Get?

In Hamira Bibi v. Zubeida Bibi 24, the Privy Council Explained the special
right of the widow to enforce her demand for the payment of unpaid dower.

A Study by Dr Noorjehan Safia Niaz and Zakia Soman in their research

titled Seeking Justice Within Family they say, Mahr is yet another provision of
the Islamic Family Law that has been reduced to a meaningless ritual in our
country. Their data reveals utter dilution of Mahr. More than 40% of the
respondents have received less than Rs 1,000/- as Mahr. A mere 450 respondents
have received Mahr above Rs 50,000/-. 69% of women have reported that they
were not asked to write off the Mahr amount. 44% of respondents say they have
not received the Mahr at all. Although the amounts have been very low, more than
47% have said that they have received Mahr at the time of the Nikah. Close to
40% of respondents have received Mahr in cash. Only 13% have received in the
form of jewellery.

24
(1915 - 16) 43 IA, 294 23
 A minuscule 2.3% of respondents have had a say in deciding the amount
of Mahr. It is either her parents for 29.4% or the groom’s
Who Decided the Mahr Amount?

Parents for 21.1% who decide the amount. The amounts are kept low
irrespective of which parents decide it. 30.1% that is 1417 women were asked to
write off the Mahr. This practice indicates that women do not get their due Mahr.

Deciding the Mahr amount is an unregulated affair in India. There can be

no bar on the upper limit however there should be some basis for a woman to
decide her own Mahr amount. A substantial 27.5% say that he should be put
behind bars in case of breach of agreement. 22.7% want some kind of penalty to
be imposed for not paying the stipulated amount. Muslim women are not willing
to let go of their rights and want the law to be responsive to their needs. 25

25
Dr Noorjahan Safia Niaz & Zakia Soman - Seeking Justice Within Family - Belgaum - Bhartiya Muslim Mahila
Andolan - March 2015 24
3.2. TALAAQ

The Prophet declared that among the things which have been permitted by
law, divorce is the worst. We need to look at the Qur'anic procedure of Talaaq
afresh. In chapter 4 verse 34 & 35, The Qur'an clearly lays down that in the event
of any differences or discord of serious nature between husband and wife, the
husband has first try and improve the differences by being firm or by not
maintaining physical relations or by mildly punishing his wife if she is at fault and
finally appointing two arbiters to mediate the matter and avoid divorce. 26

If the patch-up still does not materialise, the Holy Qur'an lays down the
prerequisite of the appointment of an arbiter each from the bride’s and the
groom’s families to counsel and prevent divorce. If still all these steps fail, the
husband may proceed to divorce her first time.

If there is reunion between them, there will be no break of marriage. But if

reunion doesn’t occur, next month this first divorce will become second. And if
during these three months, problem remains unsolved and no physical contact is
there, then there will be a final divorce and separation follows.
In case the separation becomes inevitable, the Qur'an ordains to appoint 2
reliable persons to witness financial, material and residential issues in Quran 65:6.

Once separation takes place, the responsibility of food, housing, medical

and education will fall upon the father of the children. Postseparation custody of,
access to and maintenance of kids is hardly taken care of nor preached by these
self-appointed custodians of the religion.

If the separated wife is pregnant, according to Quran (Chapter 2:233), the

financial responsibility of her health, residence and all other expenses will be on
the ex-husband till the delivery of the child.

26
http://www.explore-quran.com/articles/Halala.html (accessed on 26/04/2018) 25
 If the ex-husband, i.e. the father of the new born wants to get the infant
nursed and breast feed by the divorced mother, he has to bear the responsibility of
housing, food, clothing, healthcare and remuneration not more than 2 years. The
financial responsibilities for both, the mother and the new born will rest with the
father of the child.

Should the process of Arbitration be made mandatory before Divorce

is Finalised?

Should the Legal Method of Divorce be “Talaaq E Ahsaan”?

The divorced ladies have to observe iddat and avoid next marriage at least
for three months or duration of three menstrual periods according to 2/228.
During this period, all the expenditure will be borne by the ex-husband. He has to
provide the residence on par with the standard they maintained when they were
married. The final statement on Talaaq appears in first verse of surah At-Talaaq.
It says that three Talaaqs at one go is allowed only in the case of adultery.

26
 In such case a husband can’t wait for a time bound process of divorce.
This is also very much natural as no husband can withstand a cumbersome
process in the event of open lewdness and the revulsion emanating from it. 27
Should there be a Ban on Oral Unilateral Triple Talaaq?

Its a pity is that the so-called scholars don’t know there are 4 essential
steps to be taken into consideration before pronouncing first Talaaq.

They never propagate this nor the procedure of periodical Talaaq. And
finally either they don’t know or they want to keep the male section of the
Muslims in dark about the provision of providing residence to the divorced lady
for the prescribed period to pass for another marriage.

If this has been known to the public, millions of divorce cases could not
have happen. In fact persons not 28 having another accommodation have to move
out of their homes to allow the lady to pass the stipulated period. Even the
scholars don’t preach that all the responsibilities of the children rest with the
father only in the case of divorce and lady will be free to marry any person. They
only disclose to the public how to kick out the wife mercilessly in helpless
condition in the name of The Most Gracious and Bountiful God, God of Universe,
God of women-folk too.

27
Dr Noorjahan Safia Niaz & Zakia Soman - Seeking Justice Within Family - Belgaum - Bhartiya Muslim Mahila
Andolan - March 2015
28
ibid
27
 The Fatawa-i-Alamgiri terms Talaaq in its original sense means
repudiation or rejection; but under Muslim Law it is a release from the marriage
tie, either immediately or eventually. 29

In Pre Islamic period, the husband possessed and unlimited power to

divorce. They could revoke their divorce and divorce again as many times as they
preferred, accused their wives of adultery, dismissed them and leave them, while
they themselves would go exempt from any formal responsibility of maintenance
or legal punishment. 30

In Wajid Ali Khan v. Jafar Husain Khan, AIR 1932 Oudh 34, it is said that
the word Talaaq means freedom from the bondage of marriage and not from any
other bondage. 31

In Chand Bi v. Bandesha, AIR 1961 Bom 121, where the wife and the
husband were living separately or when the wife was of advanced age, the
condition for tuhr was not applicable. 32

Indira Jaising, Counsel for Petitioner, Bebak Collective, a Muslim

organisation,: Triple Talaaq is violative of the right to equality of Muslim women
guaranteed under Articles 14 and 15 of the Constitution to the extent that a
Muslim man exercised power to declare unilateral divorce, but the Muslim
woman has no control over such unilateral, arbitrary, extra-judicial divorce and
her marital status. 33

Ram Jethmalani: The right of triple Talaaq is available only to the husband
and not the wife and it breaches Article 14 (Right to Equality) of the Constitution.

29
Fatawa-i-Alamgiri, Volume 1, 491
30
Ibrahim Abdul Hamid, “Dissolution of Marriage”, 1956, 3 Islamic Quarterly 166
31
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012
32
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012
33
Case Files: The Making of the Landmark Judgement on Triple Talaaq
https://www.thequint.com/news/india/tripletalaq-supreme-court-hearings (accessed on 26/04/2018) 28
 There is no saving grace for this method of granting divorce. One-sided
termination of marriage is abhorrent and avoidable. Article 15 of the Constitution
prohibits discrimination on the grounds of religion, race, caste, sex or place of
birth. It is settled proposition that a law can be made to improve the situation of
women and not to deprive them of their rights.

Former Union Minister and senior advocate Salman Khurshid, was

assisting the court in interpreting the holy book of Quran as an amicus curiae:
Triple Talaaq is a non-issue as it cannot take effect and considered to be complete
without conciliation efforts between the couple.

3.3. HALALA

The way Halala is practiced today is nothing but a fraud in the name of
religion. It is, to say the least, institutionalizing degradation of women, which The
Qur'an intensely detests.

Some of the instances of it’s being sanctioned or ordered, by the so-called

scholars speak volumes about the ignorance and lack of common sense of the men
who occupy the seats of justice there.

Far from sanctioning such vulgar practice, spirit of the Holy Qur'an
dictates that such corrupt practices, if any in the society, are stamped out.

The social structure of the Islamic society rests on the foundation stone of
marriage which enables two individuals to enter into a socially recognized
relationship. Islam has laid down norms that could enable them sever this bond
amicably and honorably. It is why the Holy Qur'an laid down the procedure of 3
Talaaq (divorce) in the most elaborate manner.

29
 But, the small minds that tampered with the process of Talaaq—by
legitimizing the triple Talaaq at one go for petty reasons—saw in Halala a handy
tool to reconnect the severed bonds in the clumsiest manner. The unstable minds
who today pronounce three Talaaqs on petty preventable reasons take the easy
recourse to Halala to enable the ex-husband to take her back in marriage.

Now let us cast a glance at verse 2/230 of the Holy Qura’n which are
today interpreted to play with the sacred laws laid down and imported from it
Halala of today.And if he divorces her finally, she shall thereafter not be lawful
unto him unless if she marries another man.

If (by chance this marriage also breaks) and the present husband divorces
her, there shall be no sin upon either of them (the first husband and the divorced
wife) to remarry—provided that both of them think that they will be able to be
within the bounds set by Allah: and these are the bounds of Allah which He
makes clear unto people of innate knowledge.” (Quran 2:230)

A man of even ordinary intelligence who is going to finally divorce his

wife can glean from this verse the consequences. In doing so, he is
acknowledging the fact that she will henceforth be a free individual and can
choose to engage herself and marry any man of her choice.

The verse implies a warning that the conjugal and marital bonds will be
cut a sundered and the return will not be possible.

At least not within foreseeable future, as she will be Halal, lawful for the
first husband only if she gets married to another person, shares a conjugal
relationship with him and gets divorced through the same elaborate process.
It will be a mockery if the former husband, realizing his mistake of discarding and
divorcing his wife unmindful of the consequences, stage-manages a marriage of
his former wife to another person in order to contrive legitimacy for his reunion
with her.

30
Are you a victim of Halala?

It is simply inconceivable from the Qur'anic point of view as it reduces the

women to the status of a plaything who can be discarded through stupid and
rapid-fire utterances of Talaaq and brought back to himself after a one-night stand
with a stranger.

To expect that such a fraudulent method would be sanctioned by the

Qur'an is in itself a fallacious understanding of the spirit of the Divine Revelation
and the status of women in the Qur'an. How could The Qur'an undermine the
dignity and self esteem of a woman whom it holds equal to man?

In fact, the Halala is the obnoxious corollary of the allowance of triple

Talaaq that has found favour with the today’s interpreters. One farce has led to
another sham. The actual process of Talaaq mentioned in the Holy Quran chapter
4 verse 34 is neither preached nor taught to the general Muslim masses.

Nor even the scholars of today know it directly from the Qur'an. They only
know their man-made Fiqh and issue fatwas. 34

Triple Talaaq, ‘nikah-halala' and polygamy violate Muslim women's right

to equality and dignity and are not protected by the right to profess, practise and
propagate religion under Article 25(1) of the Constitution.

34
Triple Talaaq, nikah halala violate right to equality, Centre tells SC,
http://www.business-standard.com/article/news-ians/triple-talaq-nikah-halala-violate-right-to-equality-centre-tells
sc-117041001325_1.html (accessed on 26/04/2018)
31
 The conferment of a social status based on patriarchal values or one that is
at the mercy of menfolk is incompatible with the letter and spirit of Articles 14
and 15. The right of a woman to human dignity, social esteem and self-worth are
vital facets of her Right to Life under Article
21.35

3.4. MAINTENANCE

Under Muslim Law, wife is entitled to maintenance during the Iddat

period only while other laws allows a post-divorce permanent alimony.

In case of Mohammad Ahmed Khan v. Shah Bano Begam, a petition was

filed by Shah Bano under Section 125 of the Criminal Procedure Code against her
husband. Supreme Court upheld that a Muslim wife has a right under Section 125
of the Criminal Procedural Code. Hence, Section 125 overrides the personal law.
Does your husband support you financially during your marriage?

The Shah Bano Case had received a lot of varied public stances. Muslim
women vehemently defended the Supreme Court judgement of husbands having
to maintain the wife. The then government had passed a legislation, termed as
‘The Muslim Women (Protection of Rights on Divorce), 1986’, and aimed to
overturn the judgement of the Supreme Court.According to this legislation,
Muslim women were entitled to a ‘fair and just’ amount of money within the
‘iddat’ period, beyond which, the husband was to have no liability.

35
Dr Noorjahan Safia Niaz & Zakia Soman - Seeking Justice Within Family - Belgaum - Bhartiya Muslim Mahila
Andolan - March 2015 (accessed on 26/04/2018) 32
 In Bai Tahira v. Ali Husain Fidaali Chothia, the husband stressed that the
payment of Rs 5000/- as Mahr had satisfied the requirement of section 127 (3)(b)
and absolved him of further obligation to pay maintenance to his divorced wife.

The Court held that since the amount of Rs 5000/- could not provide
sufficient interest to keep the woman’s body and soul together, the husband’s
defence was rejected and the court restored the magistrates order of Rs 400/- per
month for the wife and Rs 300/- per month for the child as maintenance
allowance. 36

In Amir Mohammed v. Bushra, AIR 1956 Raj 102, it was held that if the
husband has not paid prompt dower (muajjal) the wife does not loose her right to
maintenance.

In Bai Fatema v. Alimahomed Aiyeb ILR (1912), 37, BOM 280. A person
who had a wife living and wanted to marry another, had entered into an agreement
with his first wife that he would pay her a certain allowance as maintenance if any
disagreement took place between her and him thereafter. The agreement here was
treated as opposed to public policy because it encouraged separation between the
husband and wife.

In Mansur v. Azizul ILR (1928) 3 Luck 603, an agreement between a

Muslim man and his first wife made after his second marriage, providing for a
certain maintenance to her if she could not in future get on with the second wife
was not held void on grounds of public policy. The judgement was in contrast to
Bai Fatima v. Alimahomed Aiyeb, ILR (1912) 37 Bom 280


36
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012 33
 In Danial Latifi v Union of India, the constitutional validity of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, under which section 125
CrPC providing for Maintenance of wives, including divorced women, by their
former husbands was inapplicable to divorced Muslim women was challenged.

The petitioners primarily submitted that section 125 CrPC furthers the
concept of social justice embodied in article 21 of the Constitution of India, that
the Act is un-islamic and suffocates the Muslim women while undermining the
basic secular character of the Indian Constitution and is violative of article 14 and
21.

The interpretation that the liability of the former Husband to provide

Maintenance is limited to the period of iddat and therefore she has to make an
application under section 4 of the Act was given in Usman Khan Bahamani v.
Fathimunnisa Begum, AIR 1990 AP 225: 1990 Cri LJ 1364. Mohd. Marahim v.
Raiza Begum (1993) I DMC 60 and Abdul Haq v. Yasmin Talat 1998 Cri LJ 3433
(MP).

In Ahmedabad Women’s Action Group (AWAG) v. Union of India[3], a

PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and
Christian statutory law. This time Supreme Court became a bit reserved and held
that the matter of removal of gender discrimination in personal laws involves
issues of state policies with which the court will not ordinary have any concern.

The study by Dr. Noorjahan Safia Niaz and Zakia Soman reveals that
almost 50% women have reported that they have been receiving financial support
and maintenance from their husband during their marital life. But 27% reported
that they have not received any maintenance from their husband. 37


37
Dr Noorjahan Safia Niaz & Zakia Soman - Seeking Justice Within Family - Belgaum - Bhartiya Muslim Mahila
Andolan - March 2015 (accessed on 26/04/2018) 34
 Of those who have been receiving maintenance 31% feel that they have
been receiving sufficient maintenance and close to 19% feel that what they have
been receiving is not sufficient. All those who feel it’s insufficient work for
money.

A smaller number 159 and 173 are dependent on either their in laws or are
dependent on their own parents for survival.

If divorced, what is the source of your maintenance?

With divorce the dependence on parents increase further. 246 our of 525 ie
46.9% divorced women reported that they had to start supporting themselves and
an equal number 250 (47.6%) reported that they began to get dependent on their
parents. Very minuscule received support from their ex-Husbands or in laws.

These figures also coincide for maintenance of children. 244 our of 525
(47%) women support their children and 242 (46%) parents of the women support
their children. In a slightly significant change one sees 32 ex-husbands providing
Maintenance for their children.

Collectively close to 95% of divorced women do not get any financial

support from their former husband. Neither for themselves nor for their children.

If we see these figures along with the figures of age of divorce it indicates
a big chunk (44%) are divorces within 3 years of marriage., saddled with 1-2
children (55.3%), probably are around the age of 18-21 year ss (43.5%) with no
hopes of maintenance (95%).
35
3.5. POLYGAMY

Polygamy is when a marriage in which an individual, usually the man, is

allowed to have several spouses at a time. Islam has prescribed a complete
marriage system, which takes into account all human variables, providing men
and women with viable options. Under Sharia law, men may have up to four
wives while women may have only one husband. Before the advent of Islam,
there was no limit on the number of wives a man could have and it was common
for polygamous men to treat their wives inequitably.

When Islam made its ruling on polygamy, it compelled Muslim men to

adhere to three criteria:

1. It is not for every man.

2. The limit is four wives at one time.
3. All wives must be treated equally.

This goes on to show that Islam has established the rules of behavior for
polygamous marriages. For instance, the husband’s time must be equally
distributed among the wives. This means that he should spend his nights and days
equally between them. If he gets a gift for one wife, then he must present the other
wives with gifts of equivalent values.

In Quran, Allah gives fair warning to polygamous husbands who do not

display equality and fairness between their wives:

“If you fear that you shall not be able to deal justly with the orphans,
marry women of your choice, two, or three, or four; but if you fear that you shall
not be able to deal justly (with them), then (marry) only one…” (Qur’an 4:3)

Although polygamy may be painful for some women, it is also beneficial

for other women and society as a whole.

36
 Since Muslims must accept Allah’s message wholeheartedly, denying the
validity of polygamy is tantamount to denying the comprehensiveness of the
Islamic marriage system and the wisdom of the divine decree. 38

Polygamy serves as a solution, creating room for already-married,

financially capable men to provide shelter, protection and honor to widows and
divorcees. When there is a growing disparity between the number of women of
marriageable ages and the number of eligible men polygamy helps in striking a
balance in the men-women ratio.

Polygamous marriages are recognized as a civil entity in nearly fifty

countries, most of which have Islam as their state religion. They are also accepted
in some countries of Africa.

Polygamy is criticized vehemently and shunned with abhorrence in many

societies. In our culture, the concepts of both monogamous and polygamous
marriages exist and are being followed side by side.

Compared to polygamy, monogamy is a more straightforward and

uncomplicated approach towards marital life. While a monogamous marriage may
not necessarily be tranquil or successful, it allows the couple to give their
undivided attention to building the bond they share with each other. In a
monogamous marriage the man and woman can show more focus and devotion
towards raising a single family. 39

Monogamous relationships present the solution to what many consider to

be the downside of polygamy and is vehemently seen as the more productive and
just marital system in most societies around the globe.

38
http://blush.com.pk/the-ideal-marriage-system-monogamy-or-polygamy/ (accessed on 26/04/2018)
39
International Journal of Humanities and Social Science Invention ISSN (Online): 2319 – 7722, ISSN (Print): 2319
– 7714 www.ijhssi.org Volume 4, Issue 3 || March. 2015 || PP.21-27 (accessed on 26/04/2018) 37
 On March 14, Nafisa Khan had moved the apex court saying that by virtue
of Muslim Personal Law, section 494 of IPC (marrying again during lifetime of
husband or wife) was rendered inapplicable to this community and no married
Muslim woman has the avenue of filing a complaint against her husband for the
offence of bigamy. 40

She sought to declare the Dissolution of Muslim Marriages Act, 1939,

unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of
conscience and free profession, practice and propagation of religion) of the
Constitution in so far as it fails to secure for Indian Muslim women the protection
from bigamy which has been statutorily secured for women in India belonging to
other religions.

In Badruddin v. Aisha Begum, 1957 All LJ 300, it was held that where a
husband marries a second wife or keeps a mistress, the wife may refuse to live
with her husband and still claim maintenance. 41

The agreement in Mohd. Muin-ud-din v. Jamal Fatima ILR (1921) 43 All

650, was executed before marriage in order to restrain the prospective husband
from turning her out. In view of the circumstances established, the agreement did
not offered section 23 of the Contract Act, 1872 or encouraged or facilitated a
seperation between the plaintiff and her husband. The agreement therefore was
upheld.


In Mansur v. Azizul ILR (1928) 3 Luck 603, an agreement between a

Muslim Ans his first wife made after his second marriage, providing for a certain
Maintenance to her if she could not in future get on with the second wife was not
held void on grounds of public policy. The judgement was in contrast to Bai
Fatima v. Alimahomed Aiyeb, ILR (1912) 37 Bom 280

40
http://www.business-standard.com/article/pti-stories/sc-to-examine-constitutional-validity-of-polygamy-
amongmuslims-118032600983_1.html (accessed on 26/04/2018)
41
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012 38
 An overwhelming 4320 women ie 91.7% have given their verdict against
polygamy saying that Muslim man should not be allowed to have another wife in
the subsistence of the first marriage.

On being probed further 72.9% ie 3434 women think that polygamy

should not be allowed irrespective of consent from first wife. 2959 women think
that polygamy should not be allowed irrespective of first wife’s illness and 2983
agree that polygamy should not be allowed irrespective of first wife’s inability to
conceive.

Should the husband take the permission of the court before

second marriage?

Should Polygamy be allowed after due consent from first wife?

2949 women disagree that the husband’s second marriage be allowed even
with widows. 83.4% ie 3929 women do not agree that the husband should
39
be given permission for second marriage irrespective of the ratio of women to
men ie no permission to balance out the sex ratio either. 3000 women of 4710 i.e.
91.7% respondents do not want their husband to enter into a second marriage
while the first marriage is intact.

An analysis of reasons why polygamy was permitted at all would show

that in the specific socio-political incidents of men dying in large numbers during
conflicts and battles so that war-widows and orphans are not abandoned without
any social security and also to balance out the skewed sex ratio in the event of
men being lost to war. 42

The Quran in verse 4:3 and 4:129 has stated the ideal is monogamy
because only then bliss, happiness and tranquility can prevail in a marital
relationship and verse 30:21 explicitly states that.

According to the researcher if the third criteria and verse 3 of surah 4 of

(Qur’an 4:3) mentioned above cannot be fulfilled then the man has no right to
marry more than once.

3.6. PROPERTY RIGHTS

“For men there is a share in what parents and relatives leave, and for
women there is a share of what parents and relatives leave, whether it be little or
much – an ordained share.” (Quran 4:7)

Some general rules of inheritance for women as per the Muslim personal
law:

A Muslim mother is qualified to inherit from her children if they are

independent.

42
Dr Noorjehan Safia Niaz and Zakia Soman, Seeking Justice Within Family, Belgaum, Published by Bhartiya
Muslim Mahila Andolan, 2015 (accessed on 26/04/2018) 40
 She is likely to inherit one-sixth of her dead child’s property if her son is a
father as well. In the absence of grandchildren, she would get the one-third share.
43

A Muslim daughter owns whatever asset she obtains. If she has no brother,
she gets half of the share. It is legally hers to manage, control, and to dispose of
the property whenever she desires.

She can also receive gifts from those she would inherit the property from.
Until a daughter is unmarried, she is eligible to stay at her parents’ house and seek
subsistence.

In case of a divorce, the charge for maintenance reverts to the women’s

parental family after approximately three months period is over. However, in case
her children are in a position to support her, the responsibility is on them.

Do you have any property in your name?

43
Muslim Woman’s Right to Property in India
https://www.nrilegalservices.com/muslim-womans-right-to-property-in-india/ (accessed on 26/04/2018) 41
Is the current residence in your name?

If yes then what is the source of the property?

In the event of the death of husband, a widow is entitled to one-eighth

share in case they’ve children, but if there are no children, the woman will get
only one-fourth share. In case a husband has more than one wife, the share comes
down to one-sixteenth.

Islamic law also provides financial security for the Muslim woman in the
following ways:-

A Muslim wife is entitled to receive total money or property from her

husband at the time of marriage. The wife may inherit a higher amount of will
when there are no heirs for the estate as prescribed by the law because a Muslim
cannot give away more than one-third of his/her total property through a will.

42
 The difference between the man and the woman in their respective shares
in inheritance established by Allah's statement: " Allah commands you as regards
your children's (inheritance); to the male, a portion equal to that of two females. [
Surah 4:11], is clearly due to the difference in the duties and costs that each has to
cope with by virtue of the Islamic teachings (Shar’ia)".

For example, if a man dies leaving a son and a daughter, the son gets
married and pays the obligatory bridal money (dower) to the bride and as soon as
they live together, he has to provide and pay for their living expenses. On the
other hand, when his sister gets married, she receives the bridal money from her
bridegroom and when they live together, the husband provides for her without her
paying a single penny, even if she is among the richest of people. Poor or rich, her
living costs are estimated in proportion to her husband's financial ability.

The Qur'an puts it thus:" Let the rich man spend according to his means".
[Surah 65:7] To simplify matters, if the father leaves a wealth of about 150,000
dollars, the son would get 100,000 and the daughter would get 50,000 dollars.
Then the son pays the bridal money (dower) gives presents and furnishes a flat
which may cost at least 25,000 dollars.

On the other hand if the daughter gets married and has the bridal money
and the presents, she would get another 25,000. This makes them about even. 44
But this is not all; the man's duties and spending increase as he provides for his
children, in some cases his ageing parents, his brothers and sisters who have no
income of their own and no one else to provide for them, and further still his
relatives who are in similar circumstances-all by virtue of the Islamic Teachings
(Shari'a) and under certain conditions. For her part, though, the woman is not
commanded by the Shari'a to furnish aid unless she chooses to do so out of good
manners and morals.

44
http://www.iupui.edu/~msaiupui/qaradawistatus.html (accessed on 26/04/2018) 43
 Inspite of the islamic law muslim women do not get their dues from their
husbands and sometimes from her own family, that leaves her in a lurch and she
has to fend for herself and her children if any.

The blame of this goes on the Muslim Personal Law that has not been
codified neither in Shias or Sunnis, whereas many other Islamic countries have
codified it already .

Also, many a times the family is so poor that even if they give her what is
due to her they will be be left with meagre amount of property and that prompts
them not to give her her share anyway. The most common reason is that they do
not know of their obligation towards her regarding her property. And the women
are not aware of their rights.

3.7. ADOPTION

According to the Sharee'ah (Islamic law), there is no legal adoption. It is

prohibited for a person to legally adopt a son or a daughter of whom he is not the
biological father.

If a person adopts a son or daughter, the Sharee'ah will not confer on the
adopted person the status or rights of a biological son or daughter. According to
the Quran, one cannot become a person's real son merely by virtue of a
declaration; Allah Says (what means): "...And He [i.e., Allah] has not made your
claimed [i.e., adopted] sons your [true] sons.

That is [merely] your saying by your mouths, but Allah says the truth, and
He guides to the [right] way. Call them [i.e., the adopted children] by [the names
of] their fathers; it is more just in the sight of Allah. But if you do not know their
fathers, they are your brothers in religion…" [Quran 33: 4-5] This shows that the
declaration of adoption does not change realities, alter facts, or make a stranger a
relative, or an adopted child a son or daughter.

44
 The prohibition of legal adoption in Islam was ordained to protect the
rights of the adopted, adopter, biological parents, other individuals affected by the
adoption, and society as a whole.

LINEAGE AND LEGITIMACY

The principle of legitimacy holds that every child shall have a father and
one father only. This is why Allah has ordained marriage and has forbidden
adultery, so that paternity may be established without doubt or ambiguity and that
the child may be referred to his father, and the father to his sons and daughters.
Hence, adoption cannot be used in Islam to hide the illegitimacy or the paternity
of the child.

INHERITANCE

By adopting someone's child as one's own, the rightful and deserving heirs
to the property of a man are deprived of their shares. Hence, Islam has made it
Haraam (forbidden) for a father to deprive his natural children of inheritance.

Allah has established the distribution of inheritance in order to give each

eligible person his or her share. In matters of inheritance, the Quran does not
recognise any claim except those based on relationship through blood and
marriage.

The Quran stipulates (what means): "And those who believed after [the
initial emigration] and emigrated and fought with you – they are of you. But those
of [blood] relationship are more entitled [to inheritance] in the decree of Allah.
Indeed, Allah is knowing of all things." [Quran 8:75]

45
MARITAL RELATIONS

Taking a stranger into the family as one of its members and allowing him
to be in privacy with women who are non-Mahram (i.e., non marriageable
relatives) to him is a deception, for the adopter's wife is not the adopted son's real
mother, nor is his daughter the boy's sister, nor is his sister the boy's aunt, since all
of them are non-Mahram to him and vice-versa for an adopted daughter.

The Quran has, thus, declared that only the wives of one's real sons, and
not the wives of any sons under one's care, are permanently forbidden in marriage.
This is according to the verse (which means): "…The wives of your sons who are
from your [own] loins…"[Quran 4:23]

Accordingly, it is permissible for a man to marry the divorced wife of any

son under his care, since, in actuality, she has been the wife of a 'stranger' who
was not related by blood. Also, when the adopted child's lineal identity or
paternity is changed, it is quite possible that the adopted child may, unknowingly,
enter into incestuous relationships by marrying close relatives of his natural
parents; also, his marital chances may, in general, become subject to confusion.45

SOLIDARITY

If the adopted child were to receive a claim on the inheritance of the

adopter, the real relatives may become rightfully angry feeling that the adopted
child has received something that is not rightfully his, depriving them of their full
inheritance. This could lead to quarrels, fights and the breaking of relations among
relatives. Therefore, adoption is not conducive to family solidarity and overall
harmony and peace, which are necessary for social stability.

45
http://www.islamweb.net/en/article/135420/adoption-in-islam (accessed on 26/04/2018) 46
PERMISSIBLE FORMS OF 'ADOPTION' IN ISLAM
ORPHANS

This is a completely different form of adoption, which is not prohibited by

Islam - that is, when a man brings home an orphan and wants to raise, educate,
and treat him as his own child.

79.8% want the adopted child to be treated as a natural heir to

the property

In this case, he protects, feeds, clothes, teaches, and loves the child as his
own without attributing the child to himself, nor does he give him or her the rights
which the Sharee'ah (Islamic Law) reserves for his natural children. This is a
meritorious and noteworthy act in Islam.

There are also numerous Quranic verses that support the act of taking care
of orphans and enough cannot be said about how pleased Allah is with this noble
and charitable act, see: [Quran: 2:220; 4:2; 4:6; 4:10; 4:127; 17:34] . As far as the
concept of helping the poor and the orphan is concerned, Islam not only agrees to

47
 46
it but even highly recommends it. In all types of charities, the orphan and the
poor are mentioned as the prime eligible recipients for such help. 47

Are you aware that even if you adopt a child, it cannot legally
become a natural heir to your property?

In case of the rights of the orphan children, Allâh is very severe; for
example, He says, “Those who `swallow' the property of the orphans unjustly, are
actually devouring fire into their bellies and they shall enter the burning fire.”
(4:10)48

FOUNDLINGS

A foundling or abandoned child is also regarded as an orphan, and one

may apply the term 'wayfarer' to him as well. In this case too, as in that of
orphans, the child's lineal identity must be unchanged and parenthood to the
natural parents should not be denied. When the parents of such children are
unknown, the children must be made brethren in faith; See [Quran: 33:4-5], as
cited at the beginning of this article. If a man is childless and wishes to benefit
such a child (orphan or foundling) from his wealth, he may give him whatever he
wants during his lifetime.

46
https://www.al-islam.org/articles/adoption-islam-sayyid-muhammad-rizvi (accessed on 26/04/2018)
47
http://www.islamweb.net/en/article/135420/adoption-in-islam (accessed on 26/04/2018)
48
Dr Noorjehan Safia Niaz and Zakia Soman, Seeking Justice Within Family, Belgaum, Published by Bhartiya
Muslim Mahila Andolan, 2015 48
 There is either misconception regarding adoption or little or no knowledge
of the same and the reasons for the prohibition are unknown to everyone alike.

One may not pay attention to adoption as it is uncommon practice to

adopt and more common to ‘help’ amongst Muslims. The Quran, Sunnah and
Hadith, and other teachings of Islam regarding hijab and lineal identity to avoid
incest, distribution of property etc are interwoven concepts that reason why
adoption is not legal. Awareness is the key.

49
4. ISSUES OF MUSLIM WOMEN COMMON TO ALL
WOMEN

India is an incredible country, it has such a beautiful culture rich of

spirituality, but it’s still a man’s land. And while in the west women are fighting
for equal pay here women are still fighting for their life.

No matter how much progress we made in gender equality, being a woman

it’s still far more difficult and dangerous than being a man. Personal safety is
always on the back of our mind. A man who’s simply walking down the street in
the evening doesn’t have to worry of being raped. A woman does! Generally, the
only time an adult man worries for his sexual safety is if he’s going to jail. A
woman instead has to worry about it by simply existing. We have to put a lot more
thought on how we dress, what we say, how we behave.

There’s so much work to do still to reach gender equality. Life is far

difficult for women in less developed countries compared to developed ones.
Being born a girl in India is a dangerous business. Although the law protects
women’s rights there’s still a patriarchal society that devalues women as human
beings and countless of them have to face violence on a daily basis. 49

4.1. DOMESTIC VIOLENCE

Prophet Muhammad’s Sayings About Treatment of Women

“…and to your wife you have a duty and a responsibility. Do treat your
women well and be kind to them, for they are your partners and committed
helpers.”
“Be kind with the soft and gentle ones (females).”

49
http://behindthequest.com/documenting-violence-women-india-actionaid/ (accessed on 26/04/2018) 50
 The most perfect of the believers in faith are the best of them in morals.
And the best among them are those who are best to their wives. (Narrated in
Mosnad Ahmad, and Al-Tirmizi)

Any act that threatens the well-being of an individual is termed as abuse,

while domestic violence is the systematic method in which one partner gains
power and control by instilling fear and forcing subservience. Violence has many
shades, there’s physical violence (in India 70% of women is at some point victim
of domestic violence), that in the worst cases can turn into murder: dowry deaths,
honour killings, witchcraft related murders, female infanticide and foeticide are
still happening.

Have you faced domestic violence in your life?

There’s sexual violence, rape, gang rape and marital rape. There’s
psychological violence, verbal abuses and threats, and the list continues with
forced child marriage, acid attacks, human trafficking and abduction. 50

In a marriage, the social stigma of public dishonour is the greatest cause

for a woman to become trapped in this atrocious environment, and another
important reason is economic dependence on her perpetrator.

50
http://www.iqrasense.com/muslim-character/muslim-women-and-cases-of-domestic-abuse.html (accessed on
26/04/2018) 51
 Many times a woman feels that the abuse she goes through is her fault,
that she has made a mistake. An abuser feels entitled over the victim’s body and
her mind, she is not allowed to have individuality, for the abuser she is his
commodity.

Where do you go if you have to complain about domestic violence?

Many women believe that staying with her husband and tolerating this
abuse would be in the best interest of her children, as the family is kept together.

There are severe effects of domestic violence on the victim. She slowly
becomes dependent on the male as her freedom is snatched from her and she is cut
off from family and friends, she is made to feel incompetent and doesn’t have the
confidence to leave him. The famous ‘Bell Bajao’ campaign encouraged residents
to stop domestic violence by ringing the doorbell whenever violence was
suspected. Women are usually afraid to report cases of domestic abuse in fear
that her husband will be arrested, that a long legal proceeding will ensue bringing
public shame and scrutiny.

Even though the law is on women’s side, with the Protection of Women
against Domestic Violence Act (2005), the Indian Law has still to realize that
there are multifaceted problems faced by women in domestic affairs.

52
 This Act is aimed at protecting women, help women, and also provides
safety to women economically, physically and mentally. 51

4.2. GENDER DISCRIMINATION

Gender equality is understood to mean that the “rights, responsibilities and

opportunities of individuals will not depend on whether they are born male or
female” (Warth and Koparanova, 2012). It is also defined as a situation where
“…all human beings are free to develop their personal abilities and make choices
without the limitations set by predefined gender roles; that the different
aspirations and needs of women and men are considered, valued and favoured
equally” (Holzner et al., 2010).

The ultimate goal of gender equality is the non-existence of discrimination

on the basis of one's gender (Alvarez and Lopez, 2013). To this end,
empowerment of women has an indispensable role (Alvarez and Lopez, 2013). 52
The principle of gender equality is enshrined in the Indian Constitution in its
Preamble, Fundamental Rights, Fundamental Duties and Directive Principles.

Pointing out that gender justice was a constitutional goal of overwhelming

importance and magnitude, the Union government said the Fundamental Right to
Equality takes within its fold, equality of status and that gender equality, gender
equity and gender justice are values intrinsically entwined in guarantee of equality
under Article 14.

51
https://blogs.timesofindia.indiatimes.com/arise-awake-and-stop-not/domestic-violence-how-women-can-deal-withit/
dated March 2017 (accessed on 26/04/2018)
52
Pacific Science Review B: Humanities and Social Sciences Volume 2, Issue 1
https://www.sciencedirect.com/science/article/pii/S2405883116300508 (accessed on 26/04/2018)
53
 The practices of triple Talaaq, ‘nikah halala’ and polygamy impact the
social status and dignity of Muslim women and render them unequal and
vulnerable qua men belonging to their community; women belonging to other
communities and also Muslim women outside India, it added.

Referring to reforms by several Islamic countries, including those that

have majority Muslim population, the Centre said Pakistan, Bangladesh,
Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt and Iran have
undertaken significant reforms and the practices of instant triple Talaaq or
automatic polygamy at will is not permitted in most of these countries. 53

"Patriarchal values and traditional notions about the role of women in

society are an impediment to the goal of achieving social democracy and they are
likely to hold back the community at large, resulting in lopsided development and
pockets of social backwardness ..."

Patriarchy has no single religion or culture. It rears its head in all nations
and in all cultures with uniform ferocity, despite the differing ideologies by which
it seeks to perpetuate itself. Two-thirds of the world's illiterate adults are women.
Only half of the world's women are employed, compared to three-quarters of the
world's men. In most developing countries, female employment is even lower, at
around 25 percent.

Yet, women spend two and a half times more time and effort than men on
unpaid care work and household responsibilities. 54

53
Triple Talaaq, nikah halala violate right to equality

http://www.business-standard.com/article/news-ians/triple-talaq-nikah-halala-violate-right-to-equality-centre-tellssc-
117041001325_1.html (accessed on 26/04/2018)
54
The Muslim world must realise that not supporting women's empowerment is among the biggest barriers to a
country's economic advancement. https://www.aljazeera.com/indepth/opinion/2017/04/case-gender-equality-muslim-
world-170424095756513.html (accessed on 26/04/2018) 54
 Lack of access to education has an inextricable rebound effect on health.
Women are unable to access critical information and are disempowered from
changing their own lives, making them more vulnerable to regressive cultural
practices and distorted religious teachings. All these act as fundamental barriers
not just to the advancement of women, but to the overall economic development
of entire societies.

4.3. MUSLIM WOMEN & EDUCATION

When the non-believers of Makkah attacked Madinah, the city of the

Prophet and Almighty God provided victory to the defending army of the Prophet
and there were captives of the war.

The Prophet ordered for those infidel captives who knew reading or
writing to teach it to at least ten Muslims and they will be set free.

This first educational system ever adopted by the Prophet clearly indicates
that education is not essentially related to religion. In one of his well known
Hadith stressing the importance of education, he said, “Seek knowledge even if
one had to go to China”.

It is worthwhile to note that China was and still remains a developed

country and it was never an Islamic country. 55

As far as the education among Muslims is concerned, they have been

aware only in the recent 20-30 years. Other communities on the other hand have
been more aware since 90-100 years. They have started seeing marriage as a
secondary thing now and education and career as primary and basic.

55
www.ijhssi.org
Research Scholar Department of Geography Aligarh Muslim University Aligarh, UP. 202002 (accessed on
26/04/2018)
55
 This is across classes leaving the poor and low economic strata, where
parents are unable to carry on with the education of their girls because of Poverty.
Through education a woman can now have own her identity and self worth. She
can be an asset rather than a liability. 56

“Educational vision” of Muslims in India is where the problems and

concerns lie. Education is the only mechanism that enhances the process of
awareness in social, economic, and cultural development of communities.
Commonly Muslims are found to be a lesser educated section of Indian Society
which is reflected in their backwardness.

There are several reasons for backwardness of Muslims in India such as

large family size, lack of link between madarsa education and modern education,
economic poverty, negative attitude towards girl’s education etc.

The community is to be blamed for insufficient education imparted to the

girl child. Growth of education is considered as a sign of human growth and
development. Education is an indispensable means for helping the Muslims out of
their economic misery. Indian Muslims are far behind in achieving the literacy
status because of their economic conditions, no availability of schools, more drop-
outs, less likely to survive educationally, lack of resources in the available schools
and low level of interest in education, lack of honest leadership in the community.

Even though Muslims are beginning coeducational institutions there is a

definite preference for government schools for only girls, which if available
would surely increase their school enrolment and retention. 57 Islam does not
stand against the acquisition of knowledge and education among its believers and
has given proper emphasis on attainment of education and has provided many
guidelines for it. According to Islamic prescriptions acquisition of knowledge is
compulsory for all men and women.

56
Zoya Hasan and Ritu Menon, Educating Muslim Girls, A comparison of five Indian cities, New Delhi, 2005 56
 Prophet Muhammad (PBUH) declared that “the pursuit of knowledge is
incumbent on every Muslim male and female”.

In the view of Islam, a society cannot flourish, unless its human resources
are properly utilized through education (Abdalati, 1975). Islam says develop
harmony, equilibrium and balance by utilizing the knowledge; still Muslims are at
the bottom of educational level. Research at micro level to find out the reasons
behind this variation between the text of Islam is required, however, it has been
rather scanty so far. 58

57
Zoya Hasan and Ritu Menon, Educating Muslim Girls, A comparison of five Indian cities, New Delhi, 2005
58
Abdalati, H. Islam in Focus, Aligarh, Crescent Publishing Company, 1975

Muslims are the largest minority in India, majority of this community is

far behind with respect to benefits in education and employment. There are many
reasons which are responsible for lower literacy among

What do Muslim Women do?

Muslims but the main cause is the vision of Muslims towards modern
education. If this is true to male muslims in India, one can only imagine the plight
and educational backwardness of the female muslims. It is observed that the
Muslims do not enthusiastically provide education to their children, especially
their daughters.

57
 The educational backwardness of Muslim community is generally
attributed to their religious orthodoxy coupled with their emphasis on the
theological education with little effort to change the traditional education system
and acquire the knowledge relevant to the needs of changing world (Fahimuddin,
2004). 57

It is universally accepted fact that education is the most potent and

effective tool to achieve any section of society. Although it is right that socio-
economic conditions also makes a significant contribution in this regard and
positive attitude towards education ensures the development of confidence and
self - worth.

Economic well-being and employment can be enhanced by development

in the quality of education. Muslim students do not have access to quality
education and end up with low paid jobs and less remunerative employment. Add
to that the recurring insecurity from communal violence.

Muslim women are changing very slowly due to being kept secluded and
living the life of submission and hence resist change. Participation of Muslim girls
in educational activities has been studied by Hassan and Menon (2004) who found
that very few Muslim women in India are in high profile jobs and that less than
15% of Muslim women report themselves to be working.

Generally, Muslim women are self-employed or engaged in home-based

labour. This leads to a huge dropout of Muslim girls from schools. The Sachar
Committee Report (2006) also reflects the same feeling that parents feel that
education is not important for girls.

57
Fahimuddin, Modernization of Muslim Education in India, Delhi, Adhyayan Publishers and Distributors, 2004 58
 Even if girls are enrolled, they are withdrawn at an early age to marry
them off. This leads to a higher dropout rate among Muslim girls. At the all India
level Muslim women are three times behind their Hindu sisters. The attainment of
higher education among girls is a rare phenomenon ever in the urban areas.

The studies done in the field of Muslim women revealed that the lack of
good quality schools and hostel facilities for girls are important factors
responsible for the low level of education among Muslims women and prevent
them from continuing education. Muslims are at a much larger disadvantage at the
higher secondary level as per Sachar Report (2006).

Literacy Rate among Religious Communities: (in % age)

In Muslim societies especially in remote areas women lose courage from

the childhood and become dependable on men. Parents also discourage their
female children for higher studies. Muslim women suffer more because they are
not given enough freedom and hardly have access to higher education and even
primary level education is not easily accessible to them.

There is also lack of schools and colleges in the areas where there is a
higher concentration of the Muslim population. Girls are enrolled in nearby
schools and are not sent far off to study due to safety reasons. Muslim women of
the day need to develop capabilities in making themselves more confident. These
demand a thorough discussion among policy makers, academicians and
community leaders.

59
 According to Sachar Report (2006) both Muslim and ‘Other’ children
mostly attend the inexpensive Government or Government-aided schools; about
one third attend private schools. Many of the government - aided schools may
effectively be privately run; an analysis of the proportion of children going to
government versus government-aided schools would be instructive. A small
proportion (4%) of Muslim children also attend Madarsas.

Presently there are 30,000 to 40,000 Madarsa in India. Madrasa education

in India can contribute positively to provide a better access to quality education
for rural and low socio-economic population. Studies conducted in India reveal
that the reason for Muslims opting for Madrasa was lack of access to modern and
other educational facilities nearby.

Saxena (1983), in his study on Moradabad town, observed that most of the
regular schools were located in the non- Muslim localities.

While there is a significant rural-urban differential, it was observed that

the gap between Muslims and the other SRCs across all level of education is
generally higher in urban areas than in rural areas. Similarly, though Muslim
women have lower educational attainments than men, the gap with other SRCs is
lower for women. Analysis of time trends indicate that, despite overall
improvement in educational status, the rate of progress has been the slowest for
Muslims. Sachar Report (2006)

4.4. CHILD MARRIAGE

Child marriage is a violation of child rights, and has a negative impact on

physical growth, health, mental and emotional development, and education
opportunities. While regional disparities exist, child marriage has significantly
decreased. 58

58
http://unicef.in/Whatwedo/30/Child-Marriage (accessed on 26/04/2018) 60
 It also affects society as a whole since child marriage reinforces a cycle of
poverty and perpetuates gender discrimination, illiteracy and malnutrition as well
as high infant and maternal mortality rates. Both girls and boys are affected by
child marriage, but girls are affected in much larger numbers and with greater
intensity. Child marriages can be seen across the country but it is far higher in
rural than in urban areas.

Girls from poorer families, scheduled castes and tribes, and with lower
education levels are more likely to marry at a younger age.

Although child marriage is declining, the rate of decline is slow. Broad,

multifaceted strategies are needed to target different aspects of the problem,
including deep-rooted social norms and behaviours, the perceived low value of
girls, limited access to education, exposure to violence, restricted freedom of
movement and economic vulnerability.

What should be the age of marriage of girls in the Muslim

Community?

61
 Poverty, weak enforcement of laws, patriarchal social norms intended to
ensure family honour are significant factors that increase the risk of girl being
married off while still a child. Limited education opportunities, low quality of
education, inadequate infrastructure, lack of transport and therefore concerns
about girls’ safety while travelling to school significantly contribute to keeping
girls out of school and therefore tend to favour child marriage. Girls are often seen
as a liability with limited economic role. Women’s work is confined to the
household and is not valued.

Drop out of school have a low-paid job and limited decision-making

power at home. A girl with 10 years of education has a six times lower chance of
being pushed into marriage before she is 18.

Face violence, abuse and exposure to sexually transmitted diseases

because they have fewer skills and less negotiating power. Married girls between
15-19 years of age experience more sexual violence by their husbands compared
with women experiencing such violence between the age group of 30-39.

The Prohibition of Child Marriage Act, 2006 makes it illegal for girls to
marry under 18 years and for boys under 21 years. Child marriage can be made
voidable by the child but within two years of becoming an adult.

UNICEF has been working tirelessly to prevent child marriage across the
states where it works. Partnerships with government and civil society are a crucial
part of these efforts, but much more can be done.

The study by Dr. Noorjahan Safia Niaz and Zakia Soman in their book
“Seeking Justice Within Family” reveals that an overwhelming 75.5% or 3555 (
2626+929) women feel that the age of marriage for girls should be above 18 years
of age.

19.7% or 929 women feel that the age of marriage should be 21 years and
above Ans 55.8% ie 2626 say the marriage age should be over 18 years.
62
 Only 2.9% ie 138 women say that marriage should be at the age of 15
years Ans 4.7% ie 223 women even today think that the marriage age should be
on attaining puberty.

4.5. RAPE

While communal violence has a long history in Gujarat, the violence

perpetrated against the Muslim community after 27 February 2002 differs
significantly from the many instances which occurred in the past, as noted earlier.
In 2002, almost everywhere, the violence was inflicted by the majority on the
minority community.34 Many observers have pointed to the “overwhelming and
sinister similarity” of the attacks which speak for organization and planning and
undermine official claims of spontaneous retaliation by an outraged majority
community. 35 As outlined above, reports suggest the violence was systematic,
widespread and pursuant to an organization policy. 59

Women have been raped and sexually humiliated the world over in clashes
between communities as a mechanism of dishonouring their entire community
which becomes impure and polluted by the rape of an outsider.

Several eye-witnesses testified before human rights groups that a young

woman, Kausar Bano of Naroda Patiya, Ahmedabad, who was nine months
pregnant, was gang-raped and had her womb cut open with a sword; her foetus
was ripped out, hacked to pieces and flung on the fire. The mother’s body was
thrown on the fire as well. Police in Vadodara were reported by several witnesses
to have hit the bodies of pregnant women with rifles shouting “kill them before
they are born”.

59
https://www.amnesty.org/download/Documents/84000/asa200012005en.pdf page 16- 21 (last accessed 26/ 04/
2018) 63
 Children of all ages were deliberately and mercilessly threatened, beaten,
cut with swords and killed by Hindu mobs in front of their mother’s and other
relatives’ eyes. In Naroda Patiya, a Muslim area of Ahmedabad, new born infants
were torn from the arms of their mothers and thrown on the fire. Also in Naroda
Patiya, mothers were reported to have pleaded with police to save their children.
Bilqis Yakoob Rasool from Randhikpur village, Dahod district who was five
months pregnant when a violent Hindu mob caught up with her and her family
was violently gang-raped and made to watch as her threeyear old daughter was
killed.

On 28 February 2002, a Hindu mob of around 25,000 surrounded a

Muslim area in Saijpur Patia, Naroda, Ahmedabad, and stormed the lanes and
raped girls and women in front of their male relatives. Among the victims were
girls as young as 11 who were stripped of their clothes in front of the violent
mobs who humiliated and gang-raped them, thrust swords and knives into their
vaginas before burning them alive. They then killed Muslim men and women with
swords before setting them on fire. Justice, the victim - Gujarat state fails to
protect women from violence, Amnesty International January, 2005, AI Index:
ASA 20/001/2005.

60
Similar cases are cited in the book , “Of Lofty Claims And Muffled
Voices”, edited by Flavia Agnes of Majlis NGO, is a collection of first person
narratives by the volunteers who worked for the legal initiative programme, in
order to record the experiences of the volunteer’s struggles and the voices of those
women who had dared to speak to them they brought out their entire journey
through the Carnage.

The invisibility of sexual abuse in official records and the Herculean

efforts needed to bring it into the domain of law and legal mechanisms were their
primary concerns for the publication of it.

60
Edited by Flavia Agnes, “Of Lofty Claims And Muffled Voices”, Mumbai, Majlis NGO, 2002 64
 While the immediate context is the communal carnage unleashed upon
“Muslim women in Gujarat”, the issues are not confined to Gujarat. They raise
questions of state structures, Constitutional provisions and the civil society at
large. The barbarity of the crime reflects the debasement of an entire nation the
volunteers says.

The incidents stated above substantiate that sexual acts, conduct and abuse
was used as a weapon to humiliate Muslim women and the Muslim Community.
It is sad to state that prominent politicians, the police were involved in instigating
or supporting the well thought-out violence.

65
5. ISSUES OF MUSLIM WOMEN IN OTHER
COUNTRIES

Women’s rights around the world is an important indicator to understand

global well-being.

A major global women’s rights treaty was ratified by the majority of the
world’s nations a few decades ago.

Despite many successes in empowering women, numerous issues still exist

in all areas of life, ranging from the cultural, political to the economic. Gender
discrimination affects girls and women throughout their lifetime; and women and
girls are often are the ones that suffer the most poverty.

Women continued to be deprived of basic and fundamental rights because

of measures imposed in certain countries.

5.1. AFGHANISTAN

Horrific Cases of Women Abuse exist in Afghanistan. Women continue to

be tortured, sold, killed, and even mutilated for honour by their husbands and
terrorist organisations. 61

The three-decades-long civil war in Afghanistan caused chronic poverty,

unemployment, destruction, and mass migration. These misadventures have
caused starvation and diseases, which forced poor Afghan parents to sell their
daughters for bread, fuel, debt settlement, and other necessities.

61
http://www.rawa.org/temp/runews/2016/11/22/horrific-cases-of-women-abuse-in-afghanistan.html (accessed on
26/04/2018) 66
 Sexual abuse of young girls in safe houses, police stations, prisons and
private jails of foreign forces, as well as that of war criminals in districts and
provinces, became a national shame. Private security companies, government
officials, IS commanders, and even Taliban are also involved in episodes of child
sex.

Women continue to be tortured, sold, killed and even mutilated for honour
by their husbands and terrorist organizations that include Taliban and the IS in all
cities and towns of Afghanistan. Human trafficking is another challenge that has
grown with the civil war as huge money is retrievable from this business.

On December 14, 2013, BBC had reported that an Afghan official

confirmed that a man had incised the nose and lips of his 30-year-old wife,
Setara, in Herat province. However, preliminary reports indicated that Setara had
been stabbed several times in her face as well. According to an Afghan NGO,
RAWA, 90 percent of Afghan women are abused by their parents, relatives and
husbands

The tradition of child marriage has long been practised in Afghanistan.

Afghanistan’s civil war has left thousands of women widowed and young girls
orphaned. Education for girls in these provinces is also considered to be a great
sin while sports and other hobbies are not allowed. The majority of Afghan girls
become pregnant before they reach physical maturity because they do not know
about the law of the country. Poverty-stricken girls and children are being
kidnapped and later sold into prostitution. Afghan civil law sets the minimum age
for marriage at 16 for girls and 18 for boys. Director of an Afghan NGO, Women
Rights, Sabrina Hamidi said that women are traded like animals in different parts
of Shinwari area of Jalalabad province in Friday Baazars.

Afghan women did gain rights throughout the twentieth century — in the
cities. In the countryside, where the majority lived, no such thing happened. And
the Taliban did not turn the Afghan homeland into a patriarchal jail; it was already
a prison for women.
67
 There are three causes for women’s predicament. First, Afghanistan was
and is a rural society, and in the south and east dominated by tribes. This tribal
society is deeply patriarchal, with women commodified into a resource to be
bartered, sold and fought over.Hence the Pashtun man is honor-bound to defend
zan, zamin and zar (woman, land and gold).

Various Afghan leaders - including some kings and the Communist

government - tried in vain to modernize the countryside. But this was a second
reason why women remained oppressed - the central state has been weak and
unable to successfully enact reforms throughout the country.

Thirteen years after the fall of the Taliban, women in Afghanistan continue
to suffer oppression and abuse. Research by Global Rights estimates that almost
nine out of 10 Afghan women face physical, sexual or psychological violence, or
are forced into marriage. In the majority of cases the abuse is committed by the
people they love and trust the most - their families. 62

While shelters are trying to provide protection and legal help to some,
many women return to abusive homes because there is no alternative. Unable to
escape their circumstances, some are turning to drastic measures like self-
immolation to end their suffering.

5.2. PAKISTAN

Women contribute to half of the country’s population and it is abundantly

clear that there can be no development unless their needs and interests are fully
taken into account. It is the role and responsibility of the state and the society to
give due priority to the needs and aspirations of the women of Pakistan and take
up critical challenges in a positive manner.

62
https://www.aljazeera.com/programmes/101east/2015/06/afghanistan-country-women-150630115111987.html
(accessed on 26/04/2018) 68
Women concerns needing urgent attention include:

Honor killings, Domestic violence, Dowry abuse, Sexual harassment, Acid

throwing, Human Trafficking, Marriage at a very young age. Honor killing is a
form of gender-based violence, it is the homicide of a member of a family or
social group by other members, due to the belief the victim has brought dishonor
upon the family or community. The killing is viewed as a way to restore the
reputation and honor of the family. e.g.: Karo karri. 63

Domestic Violence is a violent confrontation between family or household

members involving physical harm, sexual assault, or fear of physical harm. The
batterer uses acts of violence and a series of behaviors, including intimidation,
threats, psychological abuse, and isolation to coerce and to control the other
person.

Dowry-related violence is a serious problem that affects the lives of

women and girls. Dowry includes gifts, money, goods or property given from the
bride’s family to the groom or in-laws before, during or anytime after the
marriage. Dowry is a response to explicit or implicit demands or expectations of
the groom or his family.

Acid attack or vitriolage is a form of violent assault, usually at the victim’s

faces, burning them, and damaging skin tissue, often exposing and sometimes
dissolving the bones. Men sometimes assault women for refusing to marry them.
Victims continue to suffer and face oppressive patriarchal structures, rigid
orthodox, non-flexible and stifling social culture customs and traditions.

Institutionalized violence against women allows crime of ‘passion’ and

‘honor’ to go unpunished while gender discriminatory legislation violates the
human rights of Pakistani women.

63
https://www.slideshare.net/Iqra254/a-brief-review-of-women-issues-in-pakistan (accessed on 26/04/2018) 69
 Excluded from decisionmaking at national, provincial, community and
household level they are less educated than man and their access to employment
and income generating activities is limited. With constant motherhood their
nutrition and health standards are lower than their male counterparts with lower
life expectancy and higher maternal mortality rates. 64

The need of the hour for Pakistani women is to have an integrated

approach including improvement of their educational and health needs, removing
gender discrimination and promoting gender equality, equity, providing them with
opportunities for training in new technologies and market based needs.Improving
and extending nutrition, hygiene and sanitation to the poor urban and rural
women.

Provision of reproductive and maternal health care facilities. Increasing

awareness about family planning by media including incentives for small families.
Providing them with low cost housing and day care centers for low income
working women. Lastly efforts towards enhancements of employment
opportunities and empowering women will equip a nation to develop in a well
rounded manner.

MALALA YOUSUF ZAI


Members of the Insani Haqooq Itehad (IHI) a coalition of human rights

organizations, rallied to condemn the brutal attack on three young girls, basically
targeting the 15 year old girl child Malala Yousuf Zai, The Taliban said that they
shot Malala because they saw her as a symbol of secularism and Westernisation.
Her desire for the right to an education was fuelled by the want to have a
successful life. 65

64
http://www.progress.org.pk/pak-women-develop-issues/ (accessed on 26/04/2018)
65
http://www.standpointmag.co.uk/counterpoints-november-13-malalas-real-message-i-am-malala-christina-lamb
(accessed on 26/04/2018)
70
 The Taliban became powerful in Swat, the area in which Malala lived.
Because of people's ignorance people initially did not find the Taliban a threat,
since it is supposedly Islam that they are fighting for. Malala seems to have been
used by the Pakistani media as the central person to speak out against
discrimination in the name of terror, mostly because journalists were too scared
themselves to even attempt to make such determined statements.

In their speeches various activists said that the attack on Malala and the
other girls travelling with her, was not only an act of violence and terrorism
contravening the right to survival of children as per the Convention on the Rights
of the Child (CRC), but also a conspiracy against bringing peace to Swat and the
empowerment of women and girls in the area. 66

5.3. SYRIA

Women in Syria have been sexually exploited by men delivering aid on

behalf of the UN and international charities, the BBC has learned. Aid workers
said the men would trade food and lifts for sexual favours. They were withholding
aid that had been delivered and then using these women for sex.
Women and girls 'without male protectors', such as widows and divorcees as well
as female IDPs (Internally Displaced Persons), were regarded as particularly
vulnerable to sexual exploitation.

Sexual exploitation and abuse of women and girls has been ignored, it's
been known about and ignored for seven years. The UN and the system as it
currently stands have chosen for women's bodies to be sacrificed. Somewhere
there has been a decision made that it is alright for women's bodies to continue to
be used, abused, violated in order for aid to be delivered for a larger group of
people.

66
https://www.af.org.pk/activities-archive.php (accessed on 26/04/2018) 71
 Another source who attended the July 2015 meeting on behalf of one of
the UN agencies told the BBC that there were credible reports of sexual
exploitation and abuse going on during the cross-border aid delivery and the UN
didn't make any serious moves to address it or end it. 69

Aid workers would allegedly regularly harass and abuse women and girls
trying to access humanitarian assistance in the war-torn country, to the point that
some stopped asking. Some victims were allegedly forced to marry locally-hired
officials working for the UN and other international charities for “sexual services”
in order to receive meals. 70

After seven years of conflict, many of their fathers, brothers, husbands and
sons have been killed, injured, forced to flee the country or joined in the fighting,
significantly decreasing the number of working-age men. The result is that
women are now the decision-makers and breadwinners in almost one in three
households. Necessity has also forced them into roles that were unthinkable
before the conflict.

69
http://www.bbc.com/news/world-middle-east-43206297 (accessed on 26/04/2018)
70
https://www.telegraph.co.uk/news/2018/02/27/women-syria-forced-exchange-sexual-favours-un-aid/ (Feb 12,
2018) (accessed on 26/04/2018)

There are factories in Damascus almost totally populated by women. They

work in restaurants, in services, they go to factories, they do agriculture, they
make the handmade things. They are the base today for the future.

The conflict has also allowed women to break into the civil society, media
and government sectors – something that was consistently prevented prior to the
war. The increase in autonomy and responsibility of women has not been
accompanied by equal opportunity. Income in female-led households “tends to be
below that of male-headed households,” according to the March 2016 research
assessment “Women, Work & War” published by CARE. In the southern
province of Deraa, for instance, femaleheaded households’ monthly income is 15-
32 percent lower than those headed by men.
72
 As the conflict continues, more and more women are building skills and
taking on employment. Some learn on the job, while others developing their skills
under NGO or United Nations programs. 67

A study aimed to gain a better understanding of Syrian women’s beliefs

regarding women’s rights, work, education, and vocational skills by Bareeq
Education from Amman, Jordan found that women are disproportionately affected
by conflict and the need to understand Syrian women’s perspectives and needs
has become critical due to the current civil war in Syria. All 1,006 respondents
believe that educating women should be required by law and nearly all of them
believe that their daughter should go to school.

The vast majority of respondents believe that women’s rights are

important issues, that education is an essential form of empowerment, that women
should be able work and attain leadership positions.

Women between the ages of 18 and 25 endorse the highest rate of

progressive beliefs that align with women’s empowerment and equal rights. Laws
related to marriage and family, including minimum age that a woman can marry,
divorce, get fair share of inheritance, and have priority in child custody, are
important to a large proportion of Syrian women. Women are willing to work far
from home and women who have attained degrees below the university level are
open to vocational training opportunities. 68

5.4. AMERICA

Muslim families face different issues & concerns. They are often forced to
find their communal relationships in non-familial structures, a new experience for
many immigrants and even for African Americans.

67
https://www.newsdeeply.com/syria/articles/2017/12/22/the-shifting-role-of-women-in-syrias-economy (accessed on
26/04/2018)
68
http://bareeqeducation.org/wp-content/uploads/syrian_women_survey_2017.pdf (read) (accessed on 26/04/2018)73
 Muslim leadership is working to defend the right of Muslims to define
their relationships according to their own norms.

Muslims are challenged to paint as positive a picture as possible of the

advantages of living Islamically, particularly in the light of current anti-islamic
feeling in the West.

They are also recognising that the only way to counter some of those
problems faced by Muslim families and in particular women is to need to
acknowledge those problems and move actively towards the solution.

One important issue that many women must come to terms is whether or
not they should seek outside employment. Some feel employment for women is
acceptable as long as it meet islamic restrictions as permitting the woman to wear
islamic dress, not placing her in situation in which she has unnecessary contact
with men and does not expose her to haram (forbidden) substances such as
alcohol, drugs, or pork products.

Present New Concerns for Muslim Families in the American Context: The
elderly women, are often lonely, isolated, increasingly frail and in many cases
psychologically separated from younger people in the family whose new ideas
and ideals they may not understand.

Other traditionally hushed up topics include women’s mental health

concerns, spousal abuse, child abuse, homosexuality, and the possibility of AIDS
in a family. Many Muslims still want to insist that such things do not occur in the
Muslim Family while others recognise and seek to provide Islamically-guided
assistance. It is often difficult for women to speak out against abuse by their own
husbands.

Traditionally Muslim women have either kept their personal problems and
concerns to themselves or shared them with closest family members.

74
 Making them accessible to counselling and other kinds of assistance still
remains a big problem. Male authority in the family is being challenged and
negotiated. Women are increasingly assuming public roles beyond the confines of
the home, generally with the support of the community.

The problem of anti-muslim discrimination, complicated as it is, by the

historically adverse relationship between Muslim societies and the West has
become especially pronounced in the United States since 9/11.

The FBI along with local law enforcement agencies has reported a huge
increase in the harassment of Muslims, as well as violent crime against their
person and property. 69

Muslim women, like all people in the United States, have the right to
practice their religion, right to be treated equally and the right not to be
discriminated against or harassed because of their religion, gender, or perceptions
about their nationality or ethnicity. Muslim women have been harassed, fired from
jobs, denied access to public places and discriminated against because they wear
hijab. Because of their visibility, Muslim women who wear hijab face particular
exposure to discrimination.

While it is difficult to obtain accurate statistics about discriminatory

incidents, reported instances of discrimination appear to be on the rise. Spitting,
shoving, beating, harassment by teachers & classmates and by parents of other
children were noticed regularly in schools.

Numerous sources of law protect these rights. These rights protect Muslim
women's right to participate equally in society, whether at work, at school, or
other government offices, in the criminal justice system, or in public places.

69
Yvonne Yazbeck Haddad, Jane I. Smith and Kathleen M. Moor - Muslim Women in America - USA - Oxford
University Press - 2006 75
 On September, 30 2002, the Equal Employment Opportunity Commission
(EEOC) sued Alamo Rent-a-Car Company because a customer service
representative in its Phoenix Office, Bilan Nur was denied permission to cover her
head with a scarf in the holy month of Ramadan. Civil rights complaints filed with
one Muslim advocacy group rose from 366 in 2000 to 2,467 in 2006, an increase
of 674%.2.

e.g., Medina v. County of San Bernardino, et al., No. 5:07-cv-01600 (C.D.

Cal. filed Dec. 5, 2007).

Jameelah Medina, a practicing Muslim woman who was forced by local

deputies to remove her headcovering while she was in custody in San Bernardino
County's West Valley Detention Center. In October, 2008, the County agreed to
adopt a policy accommodating the right of Muslim women to wear headscarves in
County jails. Also Khatib v. County of Orange, et al., No. 8:07-cv-01012 (C.D.
Cal. filed Sept. 4, 2007).

Souhair Khatib, a practicing Muslim woman who was forced to remove

her hijab while in custody at an Orange County courthouse holding facility. The
rights of Muslim women have become part of Western political agenda, often
perpetuating a stereotype of universal oppression. 70

5.5. MUSLIM WOMEN GLOBALLY

Muslim women inhabit a uniquely marginalised space in a world where

the existence of rampant Islamophobia both disregards their voices in the wider
world and is also used to justify silencing their voices within Muslim
communities - by prioritising the issue of anti-Muslim racism over the struggle
against patriarchal oppressions.

70
https://www.aclu.org/other/discrimination-against-muslim-women-fact-sheet#1 (accessed on 26/04/2018) 76
 Muslim women who speak out, write, or activate in public spaces against
the patriarchal oppressions and violence they face are meted with reactions from
the muslim communities.

The active policing of women’s voices inside Muslim communities and

the prejudice and racism faced by us outside of their communities contributes to
creating exceptionally testing conditions for Muslim women survivors of
violence, activists, and allies.

The prevalent patriarchal order dictates which forms of violence against

Muslims are more urgent and demand activism on their part. Under this order,
anti-Muslim racism wins many times over before patriarchal oppressions are even
discussed. The system that protects male privilege and gender hierarchies goes
into overdrive when the reputation at stake is that of prominent Muslim men, such
as clerics.

When Muslim women speak up about this, they are accused of creating
theatre. Some people add the helpful reminder that “not all Muslim men” behave
like this. But a woman who grew up in a majority Muslim country; knows that not
all Muslim men are sexual predators but they also know that many, many men are
– in cultures, communities and countries around the world. So its logical to
choose to believe women.

Pretending that Muslim women are somehow responsible for

Islamophobia if they talk about the violence they face is not just absurd, it is also
a glaringly obvious patriarchal power tactic that seeks to prioritise Muslim men
and their reputations over women’s issues. When the tactic works, Muslim
women and their issues are rendered disposable, and shoved to the back of the
line. 71

71
https://www.theguardian.com/commentisfree/2018/jan/03/muslim-women-speaking-up-against-violence-
aresilenced-we-must-amplify-their-voices (accessed on 26/04/2018) 77
 Recent reports by Amnesty International and the Organisation of Islamic
Cooperation indicate that Muslims are long-standing victims of prejudice in the
West. Today, the prevalence of Islamophobia in Western societies is a mounting
concern globally.

Muslim women, however, face perhaps the greatest challenges of the

Muslim population due to multiple layers of discrimination rooted in religion,
gender equality and migration.

In the aftermath of the 11 September 2001 (9/11) terrorist attacks in New

York City, a political rhetoric and climate emerged in the West which was
dominated by the “war on terror”. For Muslims living in the West, 9/11 was
socially and politically pivotal. Globally, there is a continuing tendency to
associate terrorist attacks with Islam. This association, however, can be traced
back to much earlier episodes; the 1979 Iran-US hostage crisis for instance.

Following the terrorist atrocity in Paris on 13 November 2015, media

outlets such as Al Jazeera, The Washington Post, The British Broadcasting
Corporation and The Guardian reported that the number of hate crimes against
perceived Muslims had skyrocketed, particularly in France and Britain. According
to these media articles, the majority of victims were “visible” Muslim women,
particularly those wearing the veil.

Muslim women have been fighting for their human rights all over the
world. They are facing discrimination and violence both in Islamic and non-
Islamic countries. This is often connected to the obligation to dress as Muslim
women and cover their head or entire body. Muslim women in countries like
Saudi Arabia and Iran are forced to wear veils by laws and customs that fit within
each government’s version of true Islamic religion based on their interpretations
and understanding of Islam. The problem for Muslim women in the “modern
West” still surrounds their female bodies and how to present and dress them.

78
 Consequently, veils such as the hijab and burqa increasingly have been
deliberately the subject of political debates, security concerns and media
coverage. In this political discourse, it is Muslim women’s bodies that are
subjected to regulation and political actions within Western societies in the name
of national security, preserved national identities and gender equality, for
example, France bans wearing a burqa or niqab in public spaces.

The media is one of the most powerful determinants of global public

opinion, shaping popular understanding and beliefs around sociocultural issues
such as attitudes towards Muslim women. The veil has been represented
extensively as a symbol of oppression, fundamentalist beliefs, and a threat to
Western democratic values.

What is more important is to recognise Muslim women beyond

constructed binary identities of being either oppressed or security threats. There is
a crucial need to be aware of Muslim women’s diversity in terms of culture,
history and personalities. Many Muslim women over the world are well
acquainted with the principles of universal modernity and values of individualism
and professionalism. They actively adopt parts of these values and reflect them in
their everyday lives. This growing group of Muslim women has access to higher
education, engages in social and political debates, they wear fashionable clothes,
and take an active role in spreading and improving understanding of Islam.

Moreover, these women are technologically adept and social mediasavvy.

They have various reasons for wearing the veil, not exclusively because their
religion or someone else has forced them to do so. For Muslim women living in
Europe and the United States, wearing the veil is a way of forming an ethno-
religious identity — a way of belonging. Their reasons to wear a veil are highly
influenced by factors such as their backgrounds and the social and political
environments they live in and are shaped by. 72

72
https://unu.edu/publications/articles/confronting-prejudice-against-muslim-women-in-the-west.html (accessed on
26/04/2018) 79
6. SOCIO-ECONOMIC CONDITIONS

In India and also Globally, Muslim women have fewer opportunities for
economic participation than men, less access to basic and higher education,
greater health and safety risks, and lesser political representation. Guaranteeing
them the rights of women and giving them opportunities to reach their full
potential is critical not only for attaining gender equality, but also for meeting a
wide range of national development goals. Empowered women and girls
contribute to the health and productivity of their families, communities, and
countries, creating a ripple effect that benefits everyone.

6.1. Socio-Economic Conditions In India

Condition of women in India is far below normal and Muslim women do

figure lower in comparison to all other sections except those of scheduled castes
and tribes women. The trend is likely to continue as Muslim women do not stand
covered by the concessions allowed to the SCs and STs. Reasons responsible for
the prevalent condition are many including consistent campaigns for stereotyping
the Muslim women through capital intensive organised efforts. 73

There are multiple causes responsible for bad condition of Muslim women
particularly in northern and eastern parts of the country. A number of studies
including the reports of the National Commission for women reflect predictable
conclusions about socio economic status of Muslim women. Lack of access to
asset ownership coupled with poor educational attainment and occupational
pattern make the life difficult.

They show clustering in low paid activities and the concentration of

Muslim population in economically backward regions of the country.

73
//economictimes.indiatimes.com/articleshow/48849266.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (accessed on 26/04/2018) 80
 This economic differentiation is prominent between Muslim and Hindu
women in aggregate. One of the stereotype assumptions about Muslim women is
that Islam prevents them from getting equal access to economic and educational
fields.

It is also true, that elements of orthodox set up, environment and lack of
uniform structures of redress have contributed to their plight. However, these
studies show that this is essentially the result of low socio-economic opportunities
rather that the religion.

Across these surveys, it is clearly brought out that among all communities
and caste groups, financial constraints and gender bias dominate over other
factors. But there is no doubt that condition of Muslim women is far from
satisfactory and needs immediate improvement through effective empowerment
measures. Archana Chaturvedi in her compilation “ Encyclopaedia of Muslim
Women,” concludes “ Muslim women remain largely backward and deprived.
They continue to be uneducated, resourceless and victimised in spite of
reformative attitude of Islamic movement.”

There are a number of disturbing negative trends contributing to

worsening the situation in case of Muslim women. The Amnesty International,
Human Rights Groups and media have supplied ample evidence to these negative
trends. These includes spreading violence particularly through communal riots,
hate campaigns organised by vested interests, active operations of myth creation
mechanisms, spreading women related crime, erosion of established socio-cultural
regulatory structures, rampant corruption at all levels, crisis situation in governing
agencies, expensive and delaying legal system, diminishing role of civil society
and its ready posture to accept the stereotype portrayal of Muslim women,
absence of uniform and powerful religious structures, fear of appeasement charge
in political parties etc.

81
 This list can be drawn to far greater length, but it is more pertinent to point
out that there is no viable and powerful reform campaigns in this context.
Individual efforts in recent past are praiseworthy, but such issues need to be
tackled on much higher and wider scale.

There is no denying the fact that the complexities of the issues involved in
the status of Muslim women require exhaustive multidimensional study, that
would include aspects related to psychological, social cultural, economic,
educational factors responsible for shaping particular mindset. Muslim women
share operational space with all other sections of Indian society they should not be
included in the progress of Indian society.

They should be taken as part of Indian women folk, who have multiple
roles to play in different capacities as economic, social, cultural and political
actor. She is participant in all processes and sufferer of all ills. She is to be taken
beyond marriage, divorce and guardianship syndrome. Hence, the study of Indian
Muslim women has to take into account the prevailing context at national and
international level. This may lead to carving out new strategies and action plans
by concerned sectors.

A recent report by the National commission for women indicates an urge

and environment of change to striving women for better opportunity in field of
economy and education. Certain organisations like the Institute of Islamic Studies;
the Centre for study of Society and Secularism of Mumbai, the Institute of
Objective Studies, New Delhi etc. are discussing various issues concerning
Muslim women empowerment issues. Even the Personal Law Board has
organised open sessions with women representatives.

Muslim women’s Forum is also active. Muslim reform movements like

those of Nadwatul Mujahidin, Jamaat-e-Islami floated their own women
organisations and are trying to unleash a new awareness. The All India Muslim
Majlis-e-Mushawarat (AIMMM), works towards providing a common platform
for different Muslim organisations to collectively think, speak, deliberate
82
and arrive at a common minimum programme. Another non-profit organisation,
National Muslim Women Welfare Society (NMWWS) works with and for Indian
Muslim women on issues of domestic health, public health, literacy, legal aid, and
family counselling.

There is no doubt that successive Indian government in independent India

have avoided articulating Muslims in India and taking any legislative measures to
end discrimination and exploitation of Muslim women. Reasons are well known
as such issues are politicised in one form or the other.

But such a policy contradicts India’s commitment to the welfare of people

and the constitution. The ambit of Fundamental Rights is increased by Judicial
pronouncements especially under Article 21 is right to life.

Supreme Court decided to extend the scope of this article on the basis of
finding a fair and reasonable procedure for this article. “If life is restricted to
vegetable existence, mere breathing, then this article has no meaning.

So came the question: What are the inputs for deciding the concept of life?
The judiciary has provided new inputs and increased the meaning of life by
adding concepts like of ‘education’, ‘dignity’, ‘privacy’, ‘environment’ and so on.
In our country, there is a vast mass of people who are not aware of their rights.

This opens up a new horizon to find space to operate for all including
Muslim women. Awareness is the key to utilise the opportunity. To sum up, there
are scores of problems and issues relating to Muslim women in India, but these
are to be analysed in a proper perspective. Their status and conditions are related
to their economic and educational advancement.

Secondly, a strong movement is to be built to open a dialogue within the

community for providing space and choice of opportunity to Muslim women
unleashed by emerging positive context. Emphasis on human rights and their
violation, Social mobility from rural to urban centres, Utilisation of
83
government schemes, Campaigns for awareness about Muslim women political
bargaining power, require to be worked on. Voluntary self help groups and NGOs
play a crucial role.

Chandra Bhan Prasad, Dalit activist and advisor to the Dalit India
Chamber of Commerce and Industry (DICCI), commiserates with the plight of the
Muslims. “Their continued alienation is definitely bad for the health of the
system,” he says.

The study by Dr. Noorjahan Safia Niaz and Zakia Soman in their book
“Seeking Justice Within Family” 78 gives voice to an ordinary and marginalised
muslim woman to share her views about Muslim family Law.
This study was done with 4710 women from 10 states of Bihar, Gujarat,
Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Orissa, Tamilnadu and
West Bengal.

78 Dr Noorjahan Safia Niaz & Zakia Soman - Seeking Justice Within Family - Belgaum - Bhartiya Muslim Mahila Andolan
- March 2015

The data was collected between a July to December 2013. A sample of

women from poor strata of the community and above the age of 18. This data
shows that Muslim women are wanting reforms

STATUS OF MUSLIM WOMEN

While there is s a trend of young Muslim women educating themselves,

this does not reflect in their participation in work force. Muslim women thus are
not able to take up gainful employment. Out of 4710 respondents in this study, it
was observed that an overwhelming number 78.7% of women are homemakers
whereas 7.9% work in organised sector and remaining 12.4% work in unorganised
sector. Muslim women were still far from formal employment.

84
 The annual income of 73.1% of the families is below Rs. 50,000 out of
which for 39.1% families the income is below Rs.35,000. 18.3% of the families
have an annual income between 50,000 to 1 Lakh and Only 8.6% ie 407 families
have an annual income over 1Lakh.

This reinforces the findings of the Sachit report that the Community
continues to remain poor. The study shows that Muslim women are not
encouraged to be economically independent. As per the data 78.7% of the women
are home makers whereas only 7.9% Work in the organised sector and remaining
12.7 Work in the unorganised sector.

6.2. SOCIO-ECONOMIC CONDITIONS GLOBALLY

“Education is the great engine of personal development. It is through

education that daughter of a peasant can become a doctor…” - Nelson Mandela.
In France, one notable area of distinction has been attitudes toward women.
Brouard and Tiberj (2011) survey French immigrants and citizens, and reveal
distinctive Muslim attitudes toward the status of women.

The question whether distinctive Muslim attitudes translate into distinctive

Muslim behaviour. This question is critical if we are to understand Muslim
immigrant integration, both economic and social, into European societies. Indeed,
three possible mechanisms might link socio-economic integration with distinct
behavior toward women.74

First, distinct behavior toward women might lead to an under or

overinvestment in female education and thus to differential rates of humancapital
accumulation. Second, distinct behavior toward women might affect the balance-
of-power women have in their households, and their ability to contribute to

74
https://halshs.archives-ouvertes.fr/halshs-00977064/document (accessed on 26/04/2018)
85
consumption and investment decisions.75 Finally, distinct behavior toward women
might trigger a backlash by a hosting community that feels culturally threatened.76
Scholarships for women in Islam and among Muslims delivers ambiguous results.
Historical accounts of women’s status in the Middle East claim that Islamic
traditions explain female repression in both public and private life in the region
[e.g. Mernissi (1987); Sharabi (1992)]. Cross-country analyses suggest that
Muslim-majority countries tend to repress their women [e.g. Boone (1996);
Dollar and Gatti (1999)].

Survey analysis indicates that Muslims hold distinctive attitudes toward

women [e.g. Alexander and Welzel (2011); Bisin et al. (2007), (2011a); Fish
(2011); Inglehart (2003)]. And Blaydes and Linzer (2008) explain why and how
Islamic fundamentalism represses women.

However, more recently, carefully controlled analyses that emphasize the

role of confounding factors suggest instead that there is no significant relationship
between Islam and the repression of women. Ross (2008) contends that oil is an
important omitted variable that accounts for female underrepresentation in public
life in oil-abundant Muslim countries.77 Hajj and Panizza (2009) analyze
individual-level data and use a difference-in-difference approach to compare the
investment of Muslims and Christians in female education in Lebanon.

They find “that other things equal, both Muslim and Christian girls receive
more education than their male counterparts, and that there is no significant
(either statistical or economic) difference between the education gender gap of
Muslims and Christians” [e.g. Hajj and Panizza (2009, p. 344)].78

75
See Duflo (2012) for a review of the literature on the role of female education and bargaining-power on
development outcomes.

76
See Hainmueller and Hiscox (2007), Hainmueller and Hangartner (2011) and Sniderman et al. (2004) on cultural
threats driving immigrant exclusion
77
According to Ross, oil production reduces the number of women in the work force; this suppresses their political
influence (Ross 2008).
78
Problems undermine their analysis, however: they rely on two populations that share only a small overlap in
socioeconomic status, introducing estimation bias in regression analyses. This is because the algorithm used in 86
 On a positive note, in many Muslim countries, women are on the move.
There are both kinds of Islamic and secular movements in Muslim world but
reflecting a change. In some Muslim countries, Muslim women theologians have
also emerged with thorough knowledge of the Quran, Islamic theology and
Sharia.

There are well-recognised women theologians like Fatima Mirsani from

Morocco, Amina Wadood and Riffat Hassan from USA. There are a number of
famous women organisations also like ‘Sisters in Islam’ in Malaysia, Shirkatgah
in Pakistan and so on. Iran has very active women’s movement.

They are active in practically all field of work and represent in

considerable number in Iranian Parliament as well. Another success story may be
taken from Indonesia where women have made their presence felt in higher
education. There are large number of Islamic universities and a strong movement
for women’s rights. As per figures of 2000, Saudi women also outnumbered men
as graduates making up 58 percent of nearly 3200 students.

Jordan has amended its law to give equal rights to men and women. These
trends are visible in many countries like Pakistan, Bangladesh etc. as well. Hence,
the women world is not static. They are on the move. Their efforts in finding
place in economic and educational sectors must be properly channelised. 79

A significant emerging area is the shift in the paradigm of development as

a concept. From mid 1980s, there is a growing realisation that the actual base line
of development is not GNP, but well-being and welfare of human beings.
Mehbub-ul-Haq says “We approach every issue from the vantage point of people.
Do they participate in economic growth as well as benefit from it? Do they have

regression analysis extrapolates from a comparison of those overlapping populations (i.e. rich Muslims with poor
Maronites), two sub-sets that surely differ on many unobservables. Our strategy, to be explained in the following
section, avoids this problem, as the overlap in socio-economic status between our comparison groups – Senegalese
Muslim versus Senegalese Christians is large
79
http://iosworld.org/SOCIO-ECONOMIC_STATUS_OF_INDIAN_MUSLIM_WOMEN.htm by PROF. Z.M. Khan.
(accessed on 26/04/2018)
87
full access to opportunities of expanded trade? Are their choices enlarged by new
technologies? Is economic expansion leading to job-led growth or jobless growth?
Are free markets open to all people ? 80

Amartya Sen emphasises promotion and fostering human capabilities.

Expansion of choices is the primary ideal of development. The basic purpose of
development is to enlarge people’s choices.

Human Development Report of 1996 is categorically clear that people

centred development paradigm is marked by two premises: (a) People are the
means and end of development (b) Culture plays a highly significant role in
development process.

The concerned sectors in general and Muslim

women in particular should try to analyse issues and
problems in the context of this shift in paradigm.

80
Dr. M.I.H. Farooqi, The Muslim Societies - Rise and Fall, Lucknow, Sidrah publishers, 2010 88
7. LEGAL RIGHTS OF MUSLIM WOMEN IN
INDIA

A constitutional is the basic document of a country having a special legal

sanctity which sets framework and the principal functions of the organs of the
government of a state and declares the principles governing the operation of these
organs.81

The constitutional aim at creating legal norms, social philosophy and

economic values which are to be affected by striking synthesis, harmony and
fundamental adjustment between individual rights and social interests to achieve
the desired community goals. 82

The preamble contains the quintessence of the constitution and reflects the
ideals and inspirations of the people. The preamble starts by saying that we, the
people of India give to ourselves the Constitution. The source of Constitution is
this traced to the people ie men and women of india irrespective of caste, creed,
community, religion or sex. For the unity to be lasting, it should be based on
social, economic and political justice. Such Justice should be equal for all citizens.
The aspect of social justice is further emphasized and dealt with in the directive
principles of state policy.

The Constitution of India not only allows equality to all women but also
empowers the State to use measures of positive discrimination in favour of
women for neutralizing the cumulative socio-economic, education and political
disadvantages faced by them.

Human rights which are entitlement of every man, woman and child
because they are human beings, have been enforceable as constitutional or

81
Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book Company, 2012
82
Dr. S.R Myneni, Women and Law, Hyderabad, Asia Law House, 1993 89
fundamental rights in India. Fundamental Rights ensure equality before the law
and equal protection of the law; prohibits discrimination against any resident on
the grounds of religion, race, caste, sex or place of birth, and ensure equality of
opportunity to all citizens in concerns relating to employment. Articles 14, 15,
15(3), 16, 21, 21(A), 22, 23, 25, 29, 30, 39(a), 39(b), 39(c) and 42 of the
Constitution are of special importance in this regard. 83

7.1. CONSTITUTIONAL RIGHTS OF WOMEN IN INDIA

Article 14 says that the government shall not deny to any person equality
before law or the equal protection of the laws. The Constitution of India
guarantees equality of sexes and in fact grants special favours to women. The
principle of equal protection does not mean that every law must have a universal
application for all persons, who are not by nature, circumstance or attainments
(knowledge, virtue or money) in the same position as others.

Varying needs of different classes of persons require separate treatment

and a law enacted with this object in view is not considered being violative of
equal protection. The constitution however, does not stand for absolute equality.
The state may classify persons for the purpose of legislation. But the classification
should be on the reasonable basis. Hence, equal protection has reference to the
person who has same nature, attainment, qualification or circumstances.

Article 14 prohibits class legislation but permits reasonable classification.

The five-judge Constitution bench that heard the triple Talaaq case of 2017 and
abolished the practice calling it unconstitutional had kept the issues of polygamy
and nikah halala open. Under this article the women can claim their rights if
violated by triple Talaaq, nikah-halala, polygamy, gender discrimination,
educational rights. 84

83
https://www.nrilegalservices.com/constitutional-women-rights-india/ (accessed on 26/04/2018)
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https://www.thehindubusinessline.com/news/supreme-court-set-to-hear-plea-on-polygamy-nikah-halala/
article23353948.ece (accessed on 26/04/2018) 90
 Article 15 declares that government shall not discriminate against any
citizen on the ground of sex. Article 15 Prohibition of discrimination on the
grounds of religion, race, caste, sex or place of birth describes: The state shall not
discriminate against any citizen on ground only of religion, to race, caste, sex, and
place of birth or any of them.

No citizen shall, on the ground only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or condition
with regard to: Access to shops, public restaurants, hotels, and place of public
entertainment; or the use of wells, tanks , bathing ghats and places of public resort
maintained wholly or partly out of state or dedicated to use of the general public.

The article is self explanatory about violation of fundamental rights on the

basis of sex, religion, race, so if a woman is ill-treated for dowry, or is divorced
unlawfully, is discriminated and suffers domestic violence. The court has been
challenged by the two practices of Polygamy and Nikah Halala saying they
violated the Right to Equality and gender justice.

Article 15 (3) makes a special provision enabling the State to make

affirmative discriminations in favour of women. Moreover, the government can
pass special laws in favour of women.

Under 93 Constitutional Amendment Act, this clause conferred on the

state the power to make any special provision by law for the advancement of any
socially and educationally backward class or for the schedule caste or the
scheduled tribes in so far as such special provisions relate to their admission to
educational institution including private educational institutions, whether aided or
unaided by the state, other than the minority educational institutions.

91
 Clause 3 of article 15 of the Constitution of India permits ‘protective
discrimination’ in favour of women according to which state can make special
provision for women and the scope of this article is wide enough to cover the
entire range of state activity including employment. 85

A woman can also take advantage of this clause for the betterment of her
social and economic conditions by taking admission in government run or aided
schools , colleges etc . Apply for loan meant for women of economically
backward class to start an enterprise of her choice.

Article 16 guarantees that no citizen shall be discriminated against in

matters of public employment on the grounds of sex religion, caste, creed, sex,
descent, place of birth, residence. There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the
state. No citizen shall, on the grounds only of religion, caste, creed, sex, descent,
place of birth, residence, or any of them, be ineligible for, or discriminated against
in respect of, any employment or office under the state.

Nothing in this article shall present parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to an
office under the government of, or any local, or other authority within a state or an
union territory, any requirement as to reside within that state or union territory
prior to such employment or appointment.

In this article nothing shall prevent the state from making any provision of
reservation in matter of promotion to any class or classes of posts in the service
under the state in favour of schedule caste and schedule tribe which, in the
opinion of the state, are not adequately represented in the services under the state.

85
https://buddymantra.com/protection-women-indian-constitution/ (accessed on 26/04/2018) 92
 In Article 21, constitution is giving protection of life and Personal liberty
of the individual. Constitution guarantees that no person shall be deprived of his
life or personal liberty. “Except according to procedure established by law”.

Article 21 provides for Right to life and personal liberty of each and every
person in India which includes Right to live with human dignity, right to
livelihood, right to work, right to privacy, right against sexual harassment etc.

The Supreme Court also emphasized the need to provide a life of dignity
even to the sex workers in our country by giving them some technical skills
through which they can earn their livelihood instead of by selling their bodies. So
why will Muslim women be left behind.

Through 86 amendment act, 2002, the right to education was provided for
the Indian citizen. For the purpose a new article in part –III was inserted and two
articles in part IV were amended.

The newly inserted article 21A declared that “the state shall provide free
and compulsory education to all children of the age of six to fourteen years in
such manner as the state may by law, determine.

Article 21, if read literally, is a colourless and would be satisfied the

moment it is establish by the state that there is a law which provides a procedure
which has been followed by the impugned action. But the expression ‘procedure
establish by law’ in article has been judicially construed as meaning a procedure
which is reasonable, fair and just.

Article 22. Protection against arrest and detention in certain cases: No

person who is asserted shall be detained in custody without being informed as
soon as may be, of the grounds for such arrest nor shall he be detained the right to
consult, and to be defended by a legal practitioner of his choice.

93
 Every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place or arrest to the court
of the magistrate and no such person shall be detained in custody beyond the said
period without the authority of a magistrate.

These fundamental Rights are particularly important from the perspective

of human rights of women. As the fundamental rights are justifiable, an aggrieved
person can seek redressal through writ petitions. These fundamental rights are
particularly important from the perspective of human rights of women. As the
fundamental rights are just able, an aggrieved person can seek rederessal through
writ petition.

RIGHTS AGAINST EXPLOITATION

Article 23 prohibition of traffic in human beings and forced labour: Traffic

in human beings and beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable
in accordance with law.

Nothing in this article shall prevent the state from imposing compulsory
service for any public purposes, and in imposing such services the state shall not
make any discrimination on the grounds only of religion, race, caste, creed or any
of them.

Article 24 prohibition of employment of children in factories, etc. - No

person below the age of eighteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment. Exploitation under article
23 and 24 means utilization of a person for one’s own ends. It is opposed to the
basic concept of our constitution, as well as to the dignity of the individual which
our constitution, guarantees in its preamble.

94
 It not only violates the preamble of our constitution, but is also opposed to
the directive principles of state policy contained under article 39, for the object of
promoting economic equality.

Article 25 Freedom of conscience and free profession, practice and

propagation of religion

1. Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion

2. Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law

a. regulating or restricting any economic, financial, political or other

secular activity which may be associated with religious practice;

b. providing for social welfare and reform or the throwing open of

Hindu religious institutions of a public character to all classes and
sections of Hindus Explanation I The wearing and carrying of
kirpans shall be deemed to be included in the profession of the
Sikh religion Explanation II In sub clause (b) of clause reference to
Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to
Hindu religious institutions shall be construed accordingly

Article 26 - Freedom to manage religious affairs-

Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right—

(a) to establish and maintain institutions for religious and

charitable purposes;
95
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable property; and
(d) To administer such property in accordance with law.

Article 28 - Freedom as to attendance at religious instructions or religious

worship in certain educational institutions

(1) No religious instruction shall be provided in any educational institution

wholly maintained out of State funds.

(2) Nothing in clause (1) shall apply to an educational institution which is

administered by the State but has been established under any endowment or trust
which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or

receiving aid out of State funds shall be required to take part in any religious
instruction that may be imparted in such institution or to attend any religious
worship that may be conducted in such institution or in any premises attached
thereto unless such person or, if such person is a minor, his guardian has given his
consent thereto.

CULTURAL AND EDUCATIONAL RIGHTS

Article 29: protection of interests of minorities: Any section of the citizens

residing in the territory of India or any part thereof having a distinct language,
script or culture of its own shall have the right to conserve the same No citizen
shall be denied admission into any educational institution maintained by the state
or receiving aid out of state on ground only of religion, race, caste, language or
any of them.

96
 Article 30 right of minority to establish and administer educational
institutions: All minorities, whether based on religion or languages, shall have the
right to establish and administer educational institutions of their choices.

The state shall not, in granting aid to educational institutional institutions,

discriminate against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language. All these are
fundamental rights. Therefore, a woman can go to the court if one is subjected to
any discrimination.

When we talk about constitutional rights of women in India, we mainly

pertain to those areas where discrimination is done against women and special
laws formulated to fight those bigotries. The most important issues stand as those
pertaining to marriage, children, abortion, crimes against women, and inheritance.

Fundamental Duties - Part IV of the constitution of India mentions

the duty of the state towards its citizens

Under the Directive Principle of the State Policy (DPSP)

Article 39-A. Equal justice and free legal Aid: The State shall secure that
the operation of the legal system promotes justice, on a bases of equal
opportunity, and shall in particular provide free legal aid by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are
not denied to any citizen by reason economic or other disabilities.

Article 42 directs the State to make provision for ensuring just and
humane conditions of work and maternity relief. Above all, the Constitution
imposes a fundamental duty on every citizen through Articles 15 (A) (e) to
renounce the practices derogatory to the dignity of women.

97
Article 44 - Uniform civil code for citizens

The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.

7.2. VARIOUS LEGISLATIONS FOR WOMEN IN INDIA

To uphold the Constitutional mandate, the State has enacted various

legislative measures intended to ensure equal rights, to counter social
discrimination and various forms of violence and atrocities and to provide support
services especially to working women.

Although women may be victims of any of the crimes such as 'Murder',

'Robbery', 'Cheating' etc, the crimes, which are directed specifically against
women, are characterized as 'Crime against Women'.

These are broadly classified as:

• The Crimes Identified Under the Indian Penal Code (IPC)

• Rape (Sec. 376 IPC)
• Kidnapping & Abduction for different purposes ( Sec. 363-373)
• Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B
IPC)
• Torture, both mental and physical (Sec. 498-A IPC)
• Molestation (Sec. 354 IPC)
• Sexual Harassment (Sec. 509 IPC)
• Importation of girls (up to 21 years of age)
• The Crimes identified under the Special Laws (SLL)
• Although all laws are not gender specific, the provisions of law affecting
women significantly have been reviewed periodically and amendments
carried out to keep pace with the emerging requirements.
• Maintenance under Section 125 of Criminal Procedure Code-
98
 • Section 125 of the Criminal Procedure Code also deals with maintenance
of wife and children. If there is a decree of maintenance against the
husband and the couple have been living apart for over one year, it would
be a ground for the wife to seek dissolution of marriage.

Some Acts have special provisions to safeguard women and their interests.

ACTS SPECIFIC TO MUSLIM WOMEN

• Muslim Women (Protection of rights on Divorce) Act, 1986

• Muslim Personal Law (Shariah) 1937
• The Special Marriage Act, 1954
• Dissolution of Muslim Marriage Act, 1939



SOME MORE ACTS THAT CAN BE UTILISED BY MUSLIM

WOMEN: 86

• The Family Courts Act, 1954

• Domestic Violence Act, 2005
• Immoral Traffic (Prevention) Act, 1956
• The Maternity Benefit Act, 1961 (Amended in 1995)
• Dowry Prohibition Act, 1961
• The Medical Termination of Pregnancy Act, 1971
• The Equal Remuneration Act, 1976
• The Prohibition of Child Marriage Act, 2006
• The Factories (Amendment) Act, 1986
• Indecent Representation of Women (Prohibition) Act, 1986
• Commission of Sati (Prevention) Act, 1987
• The Protection of Women from Domestic Violence Act, 2005

86
Mamta Rao, Women & Children, Lucknow, Eastern Book Company - 2012
99
 Formerly, child marriages were common. The Child Marriage Act of 1929
was not very effective as such marriages continued to be performed. Now,
however, the bridegroom must be 21 years old and the bride 18 years.

NATIONAL COMMISSION FOR WOMEN

The United Nations Commission on the status of women in its 25th Report
had recommended to all Member States to establish National Commissions or
similar bodies with a mandate to review, estimate and recommend measures and
priorities to ensure equality between men and women and full integration of work
in all spheres of national life. 87 The Government of India has set up a committee
in 1971 known as committee on the Status of Women. The committee
recommended Constitution of statutory autonomous commissions at the Centre
and in the States, thus The National Commission for Women Act, 1990 came to
be passed.

The functions of the commission would be such functions as to protect the

rights of women, take up cases of violation of the provisions of the Constitution
and other laws relating to women with appropriate authorities. Look into
complaints and take suo moto notice of matters relating to deprivation of
women’s rights, take up promotional and educational research to suggest ways of
representation of women in different spheres etc.

7.3. LANDMARK CASE - SHAH BANO V. MOHAMMED

KHAN

The judgment in Shah Bano’s case was delivered by Justice Y.V.

Chandrachud, the then Chief Justice of India on April 25th, 1985.

87
ibid 100
 The decision upheld the High Court’s decision to grant maintenance in
favour of Shah Bano under the provisions of the Cr.PC, however increasing the
88
quantum of maintenance. The decision took note of several debatable aspects
surrounding the practice/regime of distinct personal laws, including the need for
implementation of a Uniform Civil Code as provided for under Article 44 of the
Constitution, and saw a departure from the Apex Court’s traditional interpretation
of personal laws, recognising the conflict between the need for gender equality
and perseverance of religious principles, and adapting a more inclusive and
egalitarian interpretation of Muslim Personal Law.

POST SHAH BANO

The decision drew severe criticism from the conservative groups within
Muslim community and added to the communal tension, given the political
environment surrounding the decision. In an attempt to appease the Muslim
community, as well as suppress the growing atmosphere of discontent and counter
pressure the Congress Government, which under the leadership of Rajiv Gandhi,
felt a need to pacify the masses and accordingly passed the Muslim Women
(Protection on Divorce) Act, 1986.

The Act, in effect overturned the decision in Shah Bano’s case providing
that a husband was bound by law to pay maintenance to a divorced wife only for
the period of iddat, following which, in case the woman was unable to provide for
herself, or did not have relatives to support her, the magistrate could direct the
Wakf Board to provide her with sufficient means of sustenance for herself and her
dependent children, if any.

The Act was received particularly well by conservative fundamentalists.

On the contrary, it was critiqued for having defeated the cause of the rights of
Muslim women that had been brought forth in Shah Bano’s case, thus relegating

88
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them to a subordinate position within the domain of the personal, the attempts for
gender equality being suppressed in favour of communal harmony.

(The Constitutional validity of the Act was challenged by Shah Bano’s

Lawyer Danial Latifi and upholding the validity of the Act, the Supreme Court
observed that the liability of the husband to pay maintenance under the Act was
not limited to the iddat period.)

THE IMPORTANCE OF THE DECISION

The decision in Shah Bano according the protection of Section 125 of the
Code of Criminal Procedure, 1973 to Muslim women, despite attempts having
been made to render it futile, is seen as a landmark decision in the domain of
social and legal history of India. Though the decision was not the first to
recognise Muslim women’s rights to maintenance under Section 125, it was
particularly significant in the context of the conflicting claims of gender justice
within personal laws and the need to strike a balance between the conflicting
religious and cultural claims to bring them in conformity with the ideal of
equality, gender equality in particular.

The decision resulted in the filing of a number applications for

maintenance by divorced Muslim women, further questioned the role of families
and communities as protective institutions. The decision was a milestone in the
quest for justice by women within the institution of families, of Muslim women in
particular. The debates following the decision used the question of rights of
Muslim women as a tool for gaining political favour, which in turn undermined
the question of equality, emphasis shifting that of secularism.

The Shah Bano judgment remains significantly relevant, particularly in the

present day context, when the question of Triple Talaaq under Muslim Law has
been gaining focus in discourse on gender inequality. In the struggle between
preservation of religious and cultural principles and the quest for gender justice,
the latter tends to be compromised to yield to the demands of the former.
102
7.4. LANDMARK CASE - SHAYARA BANO V. UNION OF
INDIA

When she agreed to an arranged marriage in 2001, Shayara Bano was a

confident sociology postgraduate from a simple, middle-class family in Kashipur,
Uttarakhand. Fourteen years later, when her husband Rizwan Ahmed sent her
back to her maternal home from Allahabad, she was depressed, defeated and
traumatised from years of domestic abuse.

Bano said that Ahmed had tortured her for dowry right from the time they
got married. He had forbidden her from meeting her sister and threatened her
regularly with divorce. They had two children, but he forced her to have at least
six abortions.

In April, 2015, Ahmed dropped Bano at Kashipur along with their son and
daughter, but returned soon after to take the children away. For months, Bano and
her family tried to reach out to Ahmed, hoping that he would eventually return for
his wife. She could never reach his phone, but occasionally he would call and
threaten to marry another woman.

Then he told her family that he’s sending some property papers through
speed post that Shayara must receive it. When she opened the papers, all Bano
found was a document with the word “Talaaq” written three times. It was over
just like that and even the local mufti (priest) told Shayara that the divorce was
valid.

With the support of her brothers, Bano approached a local lawyer who
transferred the case to Srinivasan at the Supreme Court who proposed a case that
could be wider in scope.

For the first time, Bano discovered that instantaneous triple Talaaq was an
un-Quranic custom outlawed in 22 Muslim countries.

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 She had to decide whether she wanted to go beyond her own divorce and
pursue a legal fight for the rights of all Muslim women by challenging the very
power vested in all-male Muslim law-making bodies in India.

She had not seen or spoken to her children for almost a year was a moment
when she had lost all hope in life, and going ahead with the case felt like the only
option. Bano has been joined by at least five other women from different parts of
the country, seeking a similar ban. But since her’s being the first petition, this case
is known as Shayara Bano versus the Union of India.

The practice of ‘talaaq-e-biddat' or triple talaaq is violative of the

fundamental rights guaranteed to the citizens in India, under Articles 14, 15 and
21 of the Constitution of India. And the practice of 'talaaq-ebiddat' cannot be
protected under the rights granted to religious denominations (-or any sections
thereof) under Articles 25(1), 26(b) and 29 of the Constitution of India.

AFREEN RAHMAN

It took just three months for 28-year-old Afreen Rahman’s dream marriage
to turn into a nightmare. The MBA-graduate from Jaipur married an Indore-based
lawyer in 2014 after meeting him via a matrimonial website. He seemed like a
decent, normal man from a reputed family. So she agreed to the match after the
first meeting itself. Her brothers had taken a loan of Rs 25 lakh to fund their
sister’s “fourstar” wedding.

The first time he hit her, it came as such a shock, to Afreen. Then it
became regular, and her mother-in-law beat her too. It was all about dowry.
Afreen chose not to say a word to her mother and brothers back home, because of
the loan they still had to repay.

But the story of her ordeal became public when she was kicked out of her
marital home in August 2015, a year after she was married.

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 Her family kept asking him to take her back, because all of them really
wanted Afreen’s marriage to work. He picked her up nine days later, only to
throw her out again the next month. 89

In October, when Afreen’s mother died in a bus accident, her husband

visited for a few days, showing her some signs of sympathy. Then he left and
completely blocked her on the phone and all social media.

In January 2016, when she opened a speed post letter from him, she was
caught off guard. It was a divorce, a completely un-Islamic triple Talaaq. There
was not even a reason given for it. Their local qazi said a divorce can happen only
after the husband and the wife get three months to reconcile, but she was not
given that option.

Distraught and feeling helpless, Afreen found courage when she came
across local representatives of the Bharatiya Muslim Mahila Andolan and joined
the organisation. With their help, and with the inspiration of Shayara Bano, she
decided to go to the court, and then her petition was incorporated in Bano’s case
and accepted in the apex court.

A few individual cases were combined to make one big petition. She was
wronged, but this issue was so much bigger, it concerns a lot of devastated
women. The male leaders have been misusing Islam, and they have made a
mockery of marriage. In view of the different opinions recorded, by a majority of
3:2 the practice of ‘Talaaq-ebiddat’ – triple Talaaq was set aside by CJI, Justice
Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohington Fali Nariman and
Justice Uday Umesh Lalit on August 22, 2017 .

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7.5. LANDMARK CASE - GUJARAT RIOTS - BILKIS BANO
CASE

Bilkis Yakoob Rasool alias Bilkis Bano, a resident of Radhikpur village in

Dahod district of Gujarat, was 19 years old and five months pregnant in March
2002. She along with 16 others including her mother, sisters and three year old
daughter, fled from their village on 28 February 2002 when rampaging mobs
attacked the village. They hid in a field, hoping to escape, but were attacked the
next morning by a mob of 20-30 men carrying swords and sickles. Bilkis, her
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mother and sisters were gang-raped. With support from various activists,
organizations and the National Human Rights Commission, Bilkis petitioned the
Supreme Court, seeking a probe by the Central Bureau of Investigation. Based on
a report from a senior police officer in Gujarat, which pointed out several acts of
negligence on the part of the local police, the Supreme Court directed the CBI to
investigate the case.

The CBI discovered that local policemen had buried some of her relatives'
bodies with salt to speed up decomposition.

Many factors contributed to attaining justice in Bilkis‟ case, including the

incredible courage and determination that Bilkis had, the continued support from
her husband, relatives, friends, activists and organizations, the decision to hold the
trial in camera (behind closed doors) which instilled confidence in the witnesses,
and positive interventions by the CBI and the Supreme Court.

7.6. LANDMARK CASE - KATHUA RAPE - ASIFA BANO

An eight-year-old girl was gang-raped repeatedly inside a village temple,

kept sedated for hours, and raped again just before being killed in Jammu and

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Kashmir's Kathua by six men, including one who had been "invited" to come all
the way from Meerut to "satisfy his lust", the police have told a court.

The girl, held captive for a week in January of 2018, was strangled and
then hit with a large stone by the rapists "just to be sure that she was dead", a
police charge-sheet reveals in horrifying detail. 91

The kidnapping, rape and killing of the girl of the Bakherwal community
at the Rassana area of Kathua was part of a planned, chilling strategy to instill fear
and drive the nomadic tribe out of the region, reveals the 15-page charge-sheet
filed by the Jammu and Kashmir Police in the chief judicial magistrate's court.
On January 23, 2018, about a week after the body was discovered, the government
handed over the case to the Crime Branch, which formed a Special Investigation
Team.

The investigation explained in detail how the accused police officials

washed the clothes of the girl before sending them to the forensic laboratory and
planted false evidence. Sanji Ram, the master mind of this gang-rape was against
the Bakherwals living in the Rassana, Kootah and Dhamyal area and always kept
on instigating people of his community against giving them land to graze.

7.7. MORE CASE LAWS

Case -Danial Latif V. Union of India (2001) 7 SCC 537.

After the landmark judgement of Shah Bano’s case, there was a chaos in
the Muslim personal law. The parliament passed and enforced The Muslim
Women (Protection of Rights on Divorce) Act, 1986, which provided that under
section 3(1)(a), a divorced woman is entitled to reasonable and fair provisions,
and maintenance within the ‘iddat’ period.

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 One of the council, i.e, Danial Latifi challenged the above act, claiming
that it was unconstitutional, and in violation of Article 14, and 21.

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 unconvincing
interpretation, Court imposed a seal of the constitutional validity of the statute.

In this case, it was held that the petitioner, in his argument said that the
Act is unconstitutional and has the potential of suffocating the Muslim women,
and undermines the secular character, which is the basic feature of the
Constitution. There is no reason to deprive the Muslim women of the applicability
of section 125 of CrPC and present act is in violation of article 14, and 21. To
this, the respondent said that personal laws are a legitimate basis for
discrimination and therefore does not violate article 14 of the Constitution. The
Court thereby held that the said Act was not in violation of Article 14 and 21 of
the Indian constitution.

Case - Bai Tahira v. Ali Hussein AIR 1979 SC 362

Supreme Court in this case upheld that, the payment of trifling amounts of mahr
to a divorced Muslim woman is no substitute for the maintenance.

Case - Rashida Khatun V. SK Islam AIR 2005 Ori 56

Issue of this case was if an assurance to marry be equated to an acceptance to
marry so and to confer status of legal marriage? The parties to the proceeding are
Muslims belonging to the Islamic faith and are governed by their personal law.
In 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.
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 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. 92

Case of ShamimAra v. State of Uttar Pradesh (2002) 7 SCALE

183.

In instant case Court held that, Talaaq 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 itself be
treated as effectuating Talaaq on the date of the delivery. Hence, judgement seeks
to provide some norms and parameters within which the husband can pronounce a
Talaaq. The very concept and right of unilateral triple Talaaq has however being
assailed. 98 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.

Mrs Sabah Adnan Sami Khan vs Adnan Sami Khan on 23 March, 2010
Bench: D.B.Bhosale, R.Y. Ganoo

The court held that the divorce between the appellant and the respondent
under the Divorce Agreement dated 18.4.2004 was a Talaaq in the ahsan mode
and, therefore, the appellant was not obliged to undergo halala prior to the second
marriage. In our opinion, even in case of a divorce by khula, the wife is not
obliged to undergo Halala before contracting remarriage with the same husband.

Under the circumstances, the petition filed by the wife and her
Misc.Application under the provisions of the Domestic Violence Act before the
Family Court are tenable.

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98 Rights of Muslim women: An Analysis of... (PDF Download Available). Available from: https://
www.researchgate.net/publication/
274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law#pf3 [accessed 26/04/2018].

The judgment and order dated 14.10.2009, impugned in the present

appeal, is set aside and the petition and the Misc. Application stand restored to
file. The Family Court shall endeavour to dispose of the petition expeditiously. 93

Ali Abbas Daruwala v. Shehnaz Daruwala, HC of Mumbai, writ petition

114/2018

In the light of the latest pronouncement of the judgement by the Apex

court in case of Shayara Bano v. Union of India and ors.(2017-9SCC-1), the
Talaaqnama is not valid.

The enactment no way intends to protect the woman aggrieved, who are
victims of Domestic Violence. The definition and connotation of Domestic
Violence under section 3 of the enactment do not indicate any intention either
express or implied to exclude Muslim women.

Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3

SCC 573

Facts of the case: Muslim law allows Muslim men to have four marriages,
along with the right to divorce, under the concept of Talaaq, whereby, the husband
has the authority to divorce by the utterance of the term ‘Talaaq‘, without judicial
methods, and this may happen without her consent. The PIL filed in this case
addressed both these issues, along with some others.

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The PIL addressed five major issues. They were:

• To declare Muslim Personal Law which allows polygamy as void as

offending Articles 14 and 15 of the Constitution.
• To declare Muslim Personal Law which enables a Muslim male to give
unilateral Talaaq to his wife without her consent and without resort to
judicial process of courts. as void, offending Articles 13.
• 14 and 15 of the Constitution.
• To declare that the mere fact that a Muslim husband takes more than one
wife is an act of cruelty within the meaning of Clause VIII. of Section 2 of
Dissolution of Muslim Marriages Act. 1939.
• To declare that Muslim Women (Protection of Rights on Divorce Act,
1986 is void as infringing Articles 14 and 15.
• To further declare that the provisions of Sunni and Shia laws of
inheritance which discriminate against females in their share as compared
to the share of males of the same status void as discriminating against
females only on the ground of sex.

It was held that India and Indians have been governed by personal laws,
regardless of the time period. It was of the opinion that an interference by the
court would lead to several undesirable outcomes, as the adjudication of personal
laws was beyond the jurisdiction of the courts. The petition was therefore
dismissed.

HASINA BANO V. ALAM NOOR AIR 2000 RAJ 49

The fight over the payment of Mahr brought the parties before the court.
The wife demanded the payment of mar while the husband denied his liability to
pay mar as she had relinquished her rights through an agreement.

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 The court held that since the concept of contract is the basis of marriage,
the principles of a valid contract would be applicable to the relinquishment which
should be voluntary, without being induced by duress, fraud, misrepresentation,
undue influence, or mistake, with free consent.

ITWARI VS SMT. ASGHARI AND ORS. AIR 1960 ALL 684

In India, polygamous Muslim marriages have been the subject of court

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cases. In Itwari v Asghari, the Allahabad High Court ruled in 1959 that a
Muslim man was legally entitled to marry again but he could not compel the first
wife to live with him. It described the second marriage as a “continuing wrong” to
the first wife who is consequently justified to dissolve her marriage.

Again a Muslim wife can stipulate for the power, to divorce herself in case
of the husband availing of his legal right to take another wife

Sheikh Moh. v. Badrunnissa Bibee. 7 Beng LR App 5 (sic),

Badarannissa Bibi v. Mafiattala, 7 Beng LR 442.

In Ayatunnessa Beebee v. Karam Ali, ILR 36 Cal 23, it was held that a
Muslim wife, who has the power given to her by the marriage contract to divorce
herself in the event of the husband taking a second wife does not lose her option
by failing to exercise it the very moment she knows that he has done so, for "a
second marriage is hot a single but a continuing wrong to the first wife.

A marriage between Mohammedans is a civil contract and a suit for

restitution of conjugal rights is nothing more than an enforcement of the right to
consortium under this contract. The Court assists the husband by an order
compelling the wife to return to cohabitation with the husband. "Disobedience to
the order of the Court would be enforceable by imprisonment of the wife or

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attachment of her property, or both. Moonshee Buzloor Ruheem v. Shumsoonissa
Begum, 11 Moo Ind App 551 (609); Abdul Kadir v. Salima, ILR 8 All 149 (FB).

7.8. MUSLIM PERSONAL LAW AS OPPOSED TO UCC

In India, there has never been an Indian personal law. Instead, there are
several personal laws, application to various religious communities i.e. the
Hindus, Muslim, Christian, Jews and Parsees.
Are you aware that MPL in India is not codified?

• Each of this is known as the personal law of the particular community and
covers matters of the personal relationship like marriage, adoption,
inheritance and succession, maintenance and guardianship.
• Two major personal laws in India are the Hindu and the Muslim.
• The Constitution enjoins upon the state to Secure for the citizen a uniform
civil code throughout the territory of India.
• The bone of contention revolving around Uniform Civil Code has been
secularism and the freedom of religion enumerated in the Constitution of
India.
• The Indian Constitution desires and aims for a Uniform Civil Code (UCC)
for its citizens. Harmony, unity, equal treatment of everyone before law,
equal penalty or punishment for everybody (irrespective of religion, caste,

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 creed or sex), secular law in a secular nation, gender equality, justice for
all, etc are certainly noble objectives that could be pursued through a
Uniform Civil Code. These could be ideal goals for a developing nation of
great diversities, pluralities and potentials, like India.

Are you aware that Muslim Personal law in other Islamic Countries is
codified?

Although the spirit and intent behind “one nation one law” is worth
appreciating, the task has never been easy. Back in those days, the Constituent
Assembly, comprehending the benefits along with the complexities attached to
this idea, had vigorously debated the subject at length. The founding fathers
ultimately decided not to go ahead with uniform personal law as a justifiable right
in wake of severe opposition from the Muslim members. The socio-economic and
political conditions in the country were also not in favour of that.

They also argued that UCC in matters of marriage, divorce, succession,

inheritance would be tyrannical to minority rights. Given this strong opposition,
the committee decided not to put personal laws under fundamental rights per se,
but provided for their protection under various other related provisions and chose
to put UCC under a “nonjusticiable” constitutional provision.

Even the Hindu Code Bill faced some serious resistance from
conservatives, reactionaries and from some key organisations in the 1950s.
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 Interestingly, the Hindu Personal Laws adopted changes by means of
amendments until as recent as in 2013 - on daughters’ inheritance, divorce,
dissolution of marriage, children, compensation, etc. And, it was not until the
2005 Amendment in Hindu Succession Act, 1956 that daughters were allowed
equal rights to coparcenary property, as sons.

Similar challenges to reforms have also arisen in matters of Christian

Personal Laws over these years. Hence, forging consensus and effecting
uniformity within the personal laws of communities have always been complex,
contested, arduous and long drawn out processes – always ridden with conflicts
and competing contentions from within.

No wonder, an effort to forge similar uniformity by means of uniform civil

code, now, would amount to a humongous social and political challenge and a
proportionate level of social disruption ridden with risks. For that matter, even
codifying Muslim Personal Laws is not going to be an easy task (as some of us
think). Perhaps, it will be an equally complex and difficult process, if not more.

With the existing clear-cut, sharp divisions on Shia-Sunni lines,

differences between further sub-sects and schools of theological thoughts among
both the Shias and Sunnis like Ithna Asharia, Ismailia, Hanafi, Maliki, Hanbali,
Shaafei, etc – along with the fact that each school has its own set of jurisprudence,
forging any kind of consensus among these sects could be difficult.

It is only a matter of speculation if various traditions and sects within the

minority community will be ready to come on a common platform and accept
secular laws or accept laws of one sect over the other (both within the community
and of other communities). Therefore, it is a nobrainer that any such effort of
forging uniformity in Muslim Personal Laws would be a hugely complex socio-
political challenge on the ground. 95

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 Firstly, no one knows the contents of a representation (called Progressive
Uniform Civil Code) on UCC that was made to the law commission by a group of
eight individuals. It is not yet known how credible is that draft as the commission
hasn’t recognised or endorsed its existence and credibility. If there is a draft at all,
it will be interesting to find out how the common code would treat existing
personal laws of communities and of sects within the communities across the
regions.

Second, it is yet not clear whether, for instance, existing secular laws like
Special Marriage Act or Indian Succession Act will be reinforced and broadened;
or some new secular common law would be brought into effect replacing the
existing personal laws; or personal laws of one community would be made to
prevail over the other.

It is also unknown how a UCC will treat the essential and mandatory
Quranic requirements of Nikaah and Mehr for a valid marriage between two
Muslim parties or how it will deal with the Quranic method of Talaaq for valid
dissolution of marriage between two Muslim parties. Questions will also arise as
to how a common code will deal with the other essential requirements for a valid
Hindu marriage like degrees of prohibited relationships, prohibition under sapinda
(cousin marriage), etc.

It will also be interesting to find out as to how a Uniform Civil Code will
reconcile varying ceremonies, customs, practices and traditions in marriages from
Punjab to Goa to Kerala to Tamil Nadu to North East, etc, which are otherwise
considered valid in law.

Given the fact that personal laws are matters of deep faith, founded in
theology, practices and traditions, and have an emotional and sensitive content
attached to it, any effort towards a secular, uniform, personal law could also be
(rightly or wrongly) perceived as encroachment, interference and intimidation by
the state and could even be considered by some as imposition of one personal law
(as the common personal law), over all others.
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 Without a doubt, Uniform Civil Code is easier said than done in a
democratic set-up with such diversities of faiths, theologies, tribes, personal laws,
cultures, traditions, practices, history etc. Given the existing social divisions and
fissures within the major communities and also between the communities on
various counts, and with a maze of personal laws, probability of effecting
uniformity doesn’t appear to be encouraging at the moment. No wonder, the
difficulties, challenges and risks of such an exercise make the codification process
a hugely complex affair.

There are chances (however feeble they may be) that a top-down
disruption in the present conditions may also throw the nation’s social fabric and
economy into a tailspin and that will never be in nation’s overall interest. This
overarching but real concern has essentially been the reason why Parliament
hasn’t looked into this subject until now.

Even the Constitution Bench of the Supreme Court appeared to be aware

of this fact while pronouncing its judgment in the Triple Talaq case and it had to
walk a delicate balance on the subject of whether personal laws qualify akin to
statutory laws or not; whether personal laws fall under fundamental rights or not;
and whether courts are qualified to adjudicate on matters of personal laws.

The emphatic majority view of the Constitutional Bench that personal law
is not statutory law but is guaranteed and protected under various provisions of
the fundamental rights and that courts are not qualified to interfere in personal
laws (which many across the country may not agree), has not only made the task
of moving towards a secular uniform personal law much more difficult, but has
also added roadblocks to any future UCC passing the judicial muster.

In its judgment on triple Talaaq, the Supreme Court articulated its position
clearly and it saw no role for judiciary in adjudicating matters of personal laws. It
appeared to have silently, cautiously and wisely thrown the ball into the
legislature’s domain to deal with this hotpotato issue. Hence, it is now up to the
legislature to apply its wisdom and assess whether it makes sense, at this
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juncture, to venture out into this space or not. It is also up to the government to
evaluate costbenefit of such a contentious move and assess whether the fastest
growing economy of the world immediately needs such a wide-ranging social
reform to support economic growth.

The government needs to apply its mind and examine whether people
could come around to some kind of a working consensus on the subject. The
government’s hands are already full with impending challenges and matters of
immediate high priorities.

7.9. INTERNATIONAL LAWS ON WOMEN’S RIGHTS

Violence against women is recognised in international law as a violation

of human rights. The past two decades have seen numerous resolutions from the
UN General Assembly on violence against women.

This section will review the international treaties and resolutions

impacting violence against women, with a focus on three primary ways that
violence against women violates human rights: as a violation of basic freedoms
such as the right to life and security of person, as a violation of the right to
equality, and as a violation of the prohibition against torture.

THE RIGHT TO LIFE, LIBERTY AND SECURITY OF

PERSON

Early human rights law enacted by the United Nations did not specially
mention violence against women, although they are still relevant. In 1948, the
Universal Declaration of Human Rights (UDHR) was adopted by the United
Nations General Assembly.

Although this document was not originally binding on member states, it

has received such wide acceptance as an outline of foundational human rights
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principles that it has been recognized as a binding expression of customary law
and an authoritative interpretation of the UN Charter itself. Article 3 of the UDHR
states, “Everyone has the right to life, liberty and security of person.”

This right was reaffirmed in by the International Covenant on Civil and

Political Rights (1966), which protects the right to life (Article 6) and the right to
liberty and security of person (Article 9). These rights, as well as others in the
UDHR, ICCPR, and the International Covenant on Social, Economic, and
Cultural Rights (ICESCR), such as the right to equal protection under the law and
the right to the highest standard of physical and mental health, are implicated in
violence against women cases. Therefore, States that are parties to these
instruments have an implicit obligation to protect women from violence as part of
their obligations.

The Right to Equality and Freedom from Discrimination

Like the earlier human rights instruments, the main text of the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW),
entered into force in 1981, did not explicitly include language on violence against
women.

However, CEDAW’s primary focus, in which State Parties agree to

“condemn discrimination against women in all its forms was interpreted as
covering violence against women.

As described by Rashida Manjoo, the current UN Special Rapporteur on

Violence against Women, “States must acknowledge that violence against women
is not the root problem, but that violence occurs because other forms of
discrimination are allowed to flourish”.

This view of violence against women as the most extreme manifestation

on a continuum of discrimination led the Committee on the Elimination of All
Forms of Discrimination against Women, the monitoring body of
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CEDAW, to adopt General Recommendation Number 19.This recommendation
explicitly included gender-based violence as a form of discrimination covered by
CEDAW, saying:

The definition of discrimination includes gender-based violence, that is,

violence that is directed against a woman because she is a woman or that affects
women disproportionately. It includes acts that inflict physical, mental or sexual
harm or suffering, threats of such acts, coercion and other deprivations of liberty.
Gender-based violence may breach specific provisions of the Convention,
regardless of whether those provisions expressly mention violence.
Recommendation 19 also specifically addressed violence as a form of
discrimination against women, stating:

Family violence is one of the most insidious forms of violence against

women. It is prevalent in all societies. Within family relationships women of all
ages are subjected to violence of all kinds, including battering, rape, other forms
of sexual assault, mental and other forms of violence, which are perpetuated by
traditional attitudes.

Lack of economic independence forces many women to stay in violent

relationships. The abrogation of their family responsibilities by men can be a form
of violence, and coercion. These forms of violence put women's health at risk and
impair their ability to participate in family life and public life on a basis of
equality. 96

In 1999, the General Assembly adopted the Optional Protocol to the

Convention on the Elimination of all Forms of Discrimination against
Women.[14] The Optional Protocol created two procedures to monitor
compliance with CEDAW. First, it established a communications procedure for

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individual women, or groups of women, to submit claims of violations of
CEDAW after exhausting domestic remedies.

Second, the Optional Protocol created an inquiry procedure which enables

the Committee to investigate situations of “grave or systematic violations” of
women’s rights. The decisions for such communications and inquiries are
published on the UN Women website. Both procedures can only be used in cases
where the State is a party to the Convention and the Optional Protocol. Currently
104 countries are parties to the Optional Protocol.

In Shayara Bano case in paragraph 74 of the Judgement, It was asserted

on behalf of the Union of India, that the Indian State was obligated to adhere to
the principles enshrined in international covenants, to which it is a party.

India being a founding member of the United Nations, is bound by its

Charter, which embodies the first international agreement to proclaim gender
equality, as a human right in its preamble, reaffirming faith in fundamental human
rights, through the dignity of the human person, by guaranteeing equal rights to
men and women.97

THE RIGHT TO BE FREE FROM TORTURE

CEDAW Recommendation 19 also states that violence against women is a

violation of the right not to be subject to torture or to cruel, inhuman or degrading
treatment or punishment, as protected by UDHR Article 5 and ICCPR Article 7.
In recent years, the view has been affirmed by the Committee Against Torture,
which is the monitoring body of the Convention Against Torture (CAT).

The Convention Against Torture, which has been ratified by 151 states,
strictly prohibits torture of any kind, with torture defined as any act by which

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severe pain or suffering, whether physical or mental, is intentionally inflicted” for
purposes such as obtaining information, punishment, intimidation or coercion, or
any reason based on discrimination.

Although such acts generally must be inflicted by a public official, the

State can also be responsible if it acquiesces to the act. In clarifying State
responsibility for torture by non-state actors, the Committee specifically cited
“States parties’ failure to prevent and protect victims from gender-based violence,
such as rape, domestic violence, female genital mutilation, and trafficking” as a
violation of CAT.

In reviewing country compliance with CAT, the Committee and the

Special Rapporteur on Torture routinely request information on the prevalence of
violence against women in a country. In particular, concern about torture in the
form of violence against women has been raised in recent Committee review for
Bosnia and Herzegovina, Turkey, Azerbaijan, Moldova, and many others.

122
8. CONCLUSION SUGGESTIONS & REMEDIES

The researcher concludes that if the future generations have to succeed

then the girls should be educated just like the boys. The superstitions, ugly
customs, ignorance can disappear only with proper formal education and
enlightenment. This will be possible when the men of the society will decide that
for the betterment of their daughters, sisters, wives, consequently also of their
descendant sons they must support education that is not only islamic in nature but
also formal worldly education.

The woman must be given her due importance and not be exploited in the
name of religion. The laws of islam is not being interpreted in the light of
kindness and humanity or their wouldn’t be an array of cruelty, violation of
women’s rights by muslim men.

Education alone will empower the women and break them free from the
shackles bonding them in the name of religion. By not educating the women the
men are disabling their wives from giving basic education to their daughters as
well as sons.

It will also be correct to say that educating the girls of their rights as they
are brainwashed of their duties should be the obligation of the parents towards
their daughters. By empowering their daughters they can ensure that she will be
independent and no man can rob her of her fundamental human rights as she will
be a smart personality to fight for her rights.

The current state of women even though they are educated is bleak, the
researchers thinks that the reason is that the women are taught to be submissive,
accommodating and committal towards their familial obligations. They have
fewer or no role model leading them to salvation, however, they have plenty of
role models around them living a resigned, long-suffering, stoic lives.

123
 The entire community in general is backward in terms of eduction and
economy. Economic empowerment which can be accomplished through
eradication of poverty from the community and income generation. The socio-
economic status of muslim women needs enhancement through health, nutrition,
etc in addition to education and skill development along with an awareness drive
campaign telling them of their rights.

The Muslim sons are do not have guidance and are ill-informed thus have
a bigotry and dictatorial attitude towards women in their community. With proper
Islamic insight of his duties and kindness, topped with some legal human rights
education, moral science and community living lessons the sons can make this
world a better place to live in. They too are mostly self employed in small
businesses and not progressive and avant grade in their attitude in general.

The codification of Muslim Personal Law will prevent the clerics from
giving a go-ahead to wrongly pronounced Talaaq thus intercept a family from
falling apart.

We have clerics who term organ donation as illegal and un-Islamic. If

clerics are going to run parallel courts with shallow knowledge of their work then
it is harmful to the muslim society at large. Muslim clerics must be checked on as
not all have religious and legal training on which to base their authority.

The Muslim Community as a whole is backward; it is not only upto the

Government but also they who are responsible for their advancement.

The researcher further concludes that poor economic growth is due to

many factors like paucity of capital, absence of entrepreneurial skills, deficiency
in managerial talent, lack of social and institutional set-up, high conservatism, low
ambition drive, corruption, inequality, unevendistribution of resources, high rate
of unemployment etc. are various reasons for socio-economic backwardness.

124
 However, a substantial reason for socio-economic backwardness is dearth
of education which forms a vicious circle. And, women empowerment and socio-
economic characteristics are positively corelated and education leads to
empowerment.

The researcher urges for self education, awareness campaigns and formal
education as the problem with regards the fundamental rights due to the mis-
interpretation of their primary source of law and their socio-economic conditions,
background, circumstances add to their woes of Muslim women.

8.1. EDUCATION

“Education is the most powerful weapon we can use to change the world”
- Nelson Mandela

A lot has been said and written about the educational backwardness of
Muslims especially Muslim girls and women based on small sample studies
(highly localized) with limited generalization possibility and some very large all
India sample surveys /studies by Aizazuddin Ahmed (1983, 93, 94, 95); Zoya
Hasan & Ritu Menon (2000 - 01), (Shamim Shah - 1983), among others.

All of these studies have pointed out the relative educational

backwardness of Muslims, especially, their female half. The reasons and
perceptions range from perceived neglect and discrimination, to low economic
status, restrictive and often apathetic attitude of the community and parents.

Noted scholars and leaders from the same community, however, see
regional disparities and heterogeneity in levels of basic infrastructure of
education, health, water, sanitation, roads, electricity, transport and
communication as key variables reflected in unequal income and capacity of the
parents to avail even the existing educational infrastructure, howsoever poor or
deficient.

125
 Further, proposed measures of Sachar Committee Recommendations
(2006) be implemented for muslim girls / women

1. The criticality of education, as access to education is critical for benefiting

from emerging opportunities that are accompanied by economic growth.
2. Adequate reflection of social diversity in the content of school textbooks.
3. Initiatives for school education close to Muslim habitation to ensure that
adolescent Muslim girls can continue their education. 

4. Technical and vocational education and training for non-
5. Matriculates.
6. Initiatives for higher education.
7. Provision of hostels, for providing hostel facilities at reasonable costs to
students both boys and girls from minorities to be taken up on a priority
basis.
8. Teacher training programmes to enhance the quality of teachers available
in both rural and urban areas.
9. Interventions to support the Urdu language.
10. Linking madrasahs to mainstream education.
11. Enhancing access to credit and government programmes.
12. Improving employment opportunities and conditions.
13. Enhancing the efficacy of infrastructure provision.
14. Encouraging community initiatives.
15. Access to higher education in general and the need for offering it to all at
affordable cost is required.
16. Innovative trainings for girls to enhance their prospects for future life.
17. Parents should develop positive attitude towards girl‟s higher education.
18. Increase in awareness among Muslims about the importance of education,
various employment opportunities, self employment schemes as well as
resultant economic well being through it.
19. The Government should give more emphasis towards the concept of small
family size for the improvement of socio-economic condition of Muslims.
20. Governmental incentives and scholarships are also necessary for the poor
and deprived Muslims girls
126
 Although the same recommendations in the report were well thoughtout
and ambitious, but nothing substantial has been done so far. It will make a
difference to the muslim community and in turn help uplift the girls too as the
issues are significantly important. The special provisions for the Scheduled Castes
and Scheduled Tribes have been part of the Constitution and have supposedly
been implemented since 1950 – but these two constitutional categories are still the
most backward, similar is the plight of the backward muslims.

There is need of genuine social and political leader to reform the backbone
of Muslim community.

According to the researcher, modern education, blended with noble human

values, should be taught in school education. If someone wants to be a cleric, he
can study theology of his own religion at a later stage. It should never be mixed
with school education. There must be no interference in school educational
pattern.

The educational system must be trustworthy and give equal opportunities

to the girls as to the boys. The teachers must be trained to pay attention to the
progress of both the genders.

Parents need to be enlightened about the opportunities their little and big
girls would miss if they are not educated. We need to have Mohalla Committees
to take up a matter so crucial as this to bring about a change.

The Government should support a task like this to reach out to villages and
remote parts of India. “Beti Bachao, Beti Padhao" is a slogan rightly penned by a
very good Public Relations of PM Modi if only it could be implemented
immediately.

127
8.2. WOMEN EMPOWERMENT

There is no tool more effective than empowerment of women. - Kofi Annan

Women's empowerment refers to “women's ability to make strategic life

choices where that ability had been previously denied them” (Malhotra et al.,
2009). Accordingly, empowerment is central to the processes of maintaining the
benefits of women at individual, household, community and broader levels
(Malhotra et al., 2009).

It involves the action of boosting the status of women through literacy,

education, training and raising awareness (Alvarez and Lopez, 2013). Hence,
women's empowerment is all about allowing and equipping women to make life-
determining choices across different issues in the country.98 As per the Sachar
Report (2006) the analysis of differentials in poverty across SRC shows that
Muslims face fairly high levels of poverty. Their conditions on the whole are only
slightly better than those of SCs/STs.

As compared to rural areas, Muslims face much higher relative deprivation

in urban areas. A more detailed analysis is required to unravel the required
changes.99 Policy interventions are urgently required to remedy the situation of
poverty amongst muslims across all States of India.

When in general the Muslims are backward the only option is to empower
their women which makes up almost 50% of the muslim population. For the
Empowerment of Muslim Women and Development of Children every effort
should be made to create an enabling environment where women can freely
exercise their rights both within and outside home, as equal partners along with
men.

98
Pacific Science Review B: Humanities and Social Sciences, Volume 2, Issue 1, January 2016,
https://www.sciencedirect.com/science/article/pii/S2405883116300508 (accessed on 26/04/2018)
99
http://ijhssi.org/papers/v4(3)/Version-3/E0433021027.pdf (accessed on 26/04/2018) 128
 By empowerment, women should be made the agents of social change.
Education being the most powerful instrument for empowering women and be
made special priority. Make “Education for Women’s Equality” the goal.

Empowerment of Muslim Women into action through -

1. Creating an environment, through positive economic and social policies, for

the development of women to enable them to realise their full potential;
enjoyment of all human rights and fundamental freedoms by women on par
with men in all spheres – political, economic, social, cultural and civil.
Providing equal access to participation and decision-making for women in
social, political and economic life of the nation; 

2. Ensuring equal access to women to health care, quality education at all levels,
career and vocational guidance, employment, equal remuneration,
occupational health and safety, social security and public office etc. Creating
job opportunities for Muslim women, ensuring primary, secondary, higher
secondary education and also encouraging them to aim for professional
degrees like MBBS & MD, Architecture, BDS, Professors, inspire them to
become Principals of schools and colleges, Scientists, Pilots, etc. make
available easy loans and scholarships for competent muslim girls
3. Strengthening legal systems aimed at the elimination of all forms of
discrimination against women; Changing societal attitudes and community
practices by active participation and involvement of both men and women;
Mainstreaming a gender perspective into the development process;
Eliminating discrimination and all forms of violence against women and the
girl child; and Building and strengthening partnerships with civil society,
particularly women’s organisations, corporate and private sector agencies. 


Promote Protection For Women And Adolescent Girls from trafficking

and early child marriage.

129
Training pertaining to Legal Literacy should include -

Right to live, right to equal status, right to freedom, protection of

fundamental rights, legal provisions for the development of women in the Indian
context. Womens rights are human rights, right to education, right to
empowerment, right to property, right against sexual exploitation, right to equal
wages etc should be imparted. 100

Raising awareness on various legal provisions or Acts that prohibit

domestic violence, sexual harassment , Human Rights etc

Organize mobilizational campaigns around dowry related abuse, prebirth

elimination of female foetus, girl child infanticide, early childhood marriages,
trafficking of girls, and girl child discrimination. Disseminating information to the
community members on various welfare schemes of the government to promote
social and economic empowerment of girls and women. Include schemes
providing education and financial assistance for girl children, pension for widow,
unmarried and destitute women etc. 101

Access to health services - Provide emotional support by talking to her and

helping her overcome the feelings of shame, fear, anger and depression. Reassure
that abuse is not her fault. Take measures for the woman’s safety: Explain to the
woman that she should try and anticipate situations when violence is likely to
occur and seek a safe haven for herself and her children.

In some districts, government or NGO run centres are also functioning

to support women in distress. One can support the woman in seeking shelter at
these centres.

100
http://www.jeywin.com/wp-content/uploads/2009/12/An-Analytical-Study-of-Education-of-Muslim-Women-and-
Girlsin-India.pdf (accessed on 26/04/2018)
101
http://egyankosh.ac.in/bitstream/123456789/6823/3/Unit-20.pdf (accessed on 26/04/2018)
 130
Inform the woman on legal recourse: in case she wants to report the violence,
provide her with details of Legal Aid Centres existing in court at the district level
and provide guidance on seeking legal assistance.


By empowering girls and women we can give them tools to defend themselves.
By giving girls an education, and educating them equally without discriminating,
we can prevent horrible situations from happening. Man needs to take part in this
conversation too, violence against women is not just a woman’s issue, it’s a man’s
issue too. And men listen to other men, boys listen to men. If more and more
people take a stand we will see change sooner than later.102
The goal of this reading is to bring about the advancement, development and
empowerment of women. Specifically, the Government should take up the case of
the backwardness of Muslim women and following objectives and policies should
included in the upliftment of the downtrodden and other women whether Muslim
or not.

Creating an environment through positive economic and social policies for full
development of muslim women to enable them to realize their full potential.103

Equal access to participation and decision making of muslim women in social,

political and economic life of the nation. Equal access to muslim women to health
care, quality education at all levels, career and vocational guidance, employment,
equal remuneration, occupational health and safety, social security and public
office etc.

Strengthening legal systems by eliminating less knowledgable clerics and

unreasonable fatwas to eliminate all forms of discrimination against muslim
women

102
http://www.iosrjournals.org/iosr-jhss/papers/Vol.%2022%20Issue6/Version-3/C2206031013.pdf (accessed on
26/04/2018)

103
http://www.wcd.nic.in/sites/default/files/
National%20Policy%20for%20Empowerment%20of%20Women%202001.pdf (accessed on 26/04/2018) 131
Changing societal attitudes and community practices by active participation and
involvement of both men and women. Mainstreaming a gender perspective in the
development process.

Elimination of discrimination and all forms of violence against women and the
girl child; and Building and strengthening partnerships with civil society,
particularly women’s organizations.

Policy Prescriptions for Judicial Legal Systems- Legal judicial system should
be made more responsive and gender sensitive to women’s needs, especially in
cases of domestic violence and personal assault. And to ensure that justice is
quick and the punishment meted out to the culprits is commensurate with the
severity of the offence.

Aim to encourage rational fatwas by Clerics in personal laws such as those

related to marriage, divorce, maintenance and guardianship so as to eliminate
discrimination against women.

Dispensing of property rights without delays according to the laws of islam.

Decision Making - Muslim Women’s equality in power sharing and active

participation in decision making, including decision making in political process at
all levels will be ensured for the achievement of the goals of empowerment.
Guarantee the women equal access to and full participation in decision making
bodies at every level, including the legislative, executive, judicial, corporate,
statutory bodies, as also the advisory Commissions, Committees, Boards, Trusts
etc.

Affirmative action such as reservations/quotas, including in higher legislative

bodies, will be considered whenever necessary on a time bound basis. Women–
friendly personnel policies will also be drawn up to encourage Muslim women to
participate effectively in the developmental process.

132
Mainstreaming a Gender Perspective in the Development Process -
Government Policies, programmes and systems be established to ensure
mainstreaming of muslim women’s perspectives in all developmental processes,
as catalysts, participants and recipients. Women’s issues and concerns as a result
will specially be addressed and reflected in all concerned laws, sectoral policies,
plans and programmes of action.

Economic Empowerment of women Poverty Eradication - Since muslim women

comprise equal population as muslim men who are below the poverty line and are
very often in situations of extreme poverty, given the harsh realities of intra-
household and social discrimination, macro economic policies and poverty
eradication programmes will specifically address the needs and problems of such
women. There should be improved implementation of programmes which are
already women oriented with special targets for women empowerment. Steps be
taken for mobilization of poor women and convergence of services, by offering
them a range of economic and social options, along with necessary support
measures to enhance their capabilities

Women and Economy - Muslim women’s perspectives be included in their

contribution to socio-economic development as producers and workers will be
recognized in the formal and informal sectors (including home based workers)
and appropriate policies relating to employment and to her working conditions
will be drawn up.

The provision of support services for women, like child care facilities, including
crèches at work places and educational institutions, homes for the aged and the
disabled will be expanded and improved to create an enabling environment and to
ensure their full cooperation in social, political and economic life. Women-
friendly personnel policies will also be drawn up to encourage women to
participate effectively in the developmental process.

133
Social Empowerment of Women through Education - Equal access to
education for muslim women and girls should be ensured. Special measures be
taken to eliminate discrimination, universalize education, eradicate illiteracy,
create a gender-sensitive educational system, increase enrolment and retention
rates of girls and improve the quality of education to facilitate life-long learning
as well as development of occupation/vocation/technical skills by women.
Reducing the gender gap in secondary and higher education would be a focus
area. As they belong to weaker sections just like the Scheduled Castes/Scheduled
Tribes/Other Backward Classes/Minorities.

Health - A holistic approach to their health which includes both nutrition and
health services will be adopted and special attention will be given to the needs of
women and the girl-child at all stages of the life cycle. The reduction of infant
mortality and maternal mortality, which are sensitive indicators of human
development, is a priority concern. They should have access to comprehensive,
affordable and quality health care.

Nutrition - In view of the high risk of malnutrition and disease that women face
focussed attention would be paid to meeting the nutritional needs of women at all
stages of the life cycle.

Drinking Water and Sanitation - Special attention will be given to the needs of
these poor women in the provision of safe drinking water, sewage disposal, toilet
facilities and sanitation within accessible reach of households, especially in rural
areas and urban slums.

Housing and Shelter - Special attention should be given for providing adequate
and safe housing and accommodation for women including single women, heads
of households, working women, students, apprentices and trainees.

Environment - Muslim Women should be involved and encouraged their

perspectives reflected in the policies and programmes for environment,
conservation and restoration. The vast majority of rural women still
134
depend on the locally available non-commercial sources of energy such as animal
dung, crop waste and fuel wood. In order to ensure the efficient use of these
energy resources in an environmental friendly manner, the government must aim
at promoting the programmes of non-conventional energy resources. Women will
be involved in spreading the knowledge and use of solar energy, biogas,
smokeless chulahs and other rural application so as to have a visible impact of
these measures in influencing eco system and in changing the life styles of rural
women.

Women in Difficult Circumstances - In recognition of the diversity of women’s

situations and in acknowledgement of the needs of specially disadvantaged
groups, measures and programmes will be undertaken to provide them with
special assistance. These groups include women in extreme poverty, destitute
women, women in conflict situations, women affected by natural calamities,
women in less developed regions, the disabled widows, elderly women, single
women in difficult circumstances, women heading households, those displaced
from employment, migrants, women who are victims of marital violence, deserted
women and prostitutes etc.

Violence against women - All forms of violence against women, physical and
mental, whether at domestic or societal levels, including those arising from
customs, traditions or accepted practices shall be dealt with effectively with a
view to eliminate its incidence. Institutions and mechanisms/schemes for
assistance will be created and strengthened for prevention of such violence,
including sexual harassment at work place and customs like dowry; for the
rehabilitation of the victims of violence and for taking effective action against the
perpetrators of such violence. A special emphasis will also be laid on programmes
and measures to deal with trafficking in women and girls.

Rights of the Girl Child - All forms of discrimination against the girl child and
violation of her rights shall be eliminated by undertaking strong measures both
preventive and punitive within and outside the family. These would relate
specifically to strict enforcement of laws against prenatal sex selection and
135
the practices of female foeticide, female infanticide, child marriage, child abuse
and child prostitution etc.

Removal of discrimination in the treatment of the girl child within the family and
outside and projection of a positive image of the girl child will be actively
fostered. There will be special emphasis on the needs of the girl child and
earmarking of substantial investments in the areas relating to food and nutrition,
health and education, and in vocational education. In implementing programmes
for eliminating child labour, there will be a special focus on girl children.
Institutional mechanisms, can be utilised to promote the advancement of women,
which exist at the Central and State levels, will be strengthened. These will be
through interventions as may be appropriate and will relate to, among others,
provision of adequate resources, training and advocacy skills to effectively
influence macro-policies, legislation, programmes etc. to achieve the
empowerment of women.

Have representatives from the concerned Departments/Ministries, National and

State Commissions for Women, Social Welfare Boards, representatives of Non-
Government Organizations, Women Organisations, Corporate Sector, Trade
Unions, financing institutions, academics, experts and social activists etc. These
bodies should review the progress made in implementing the Policy each year.
These Centers can link up with Women’s Studies Centres and other research and
academic institutions through suitable information networking systems.

Muslim women should be helped by Government through its programmes to

organize and strengthen into Self-Help Groups (SHGs) at the
Anganwadi/Village/Town level. The women’s groups can thus be helped to
institutionalize themselves into registered societies and to federate at the
Panchyat/Municipal level.

These societies will bring about synergistic implementation of all the social and
economic development programmes by drawing resources made available through
Government and Non-Government channels, including banks and financial
136
institutions and by establishing a close Interface with the Panchayats/
Municipalities.

Gender Sensitization - the measures should include: (a) Promoting societal

awareness to gender issues and women’s human rights. (b) Review of curriculum
and educational materials to include gender education and human rights issues (c)
Removal of all references derogatory to the dignity of women from all public
documents and legal instruments. (d) Use of different forms of mass media to
communicate social messages relating to women’s equality and empowerment.

The involvement of voluntary organizations, associations, federations, trade

unions, non-governmental organizations, women’s organizations, as well as
institutions dealing with education, training and research will be ensured in the
formulation, implementation, monitoring and review of all policies and
programmes affecting women.

Towards this end, they will be provided with appropriate support related to
resources and capacity building and facilitated to participate actively in the
process of the empowerment of women.

International Cooperation The Government policy should aim at implementation

of international obligations/commitments in all sectors on empowerment of
women such as the Convention on All Forms of Discrimination Against Women
(CEDAW), Convention on the Rights of the Child (CRC), International
Conference on Population and Development (ICPD) and other such instruments.

International, regional and sub-regional cooperation towards the empowerment of

women will continue to be encouraged through sharing of experiences, exchange
of ideas and technology, networking with institutions and organizations and
through bilateral and multilateral partnerships.

137
Yet mere economic growth cannot assure the growth of the nation. For India to be
considered truly developed, it has to treat its women with respect and dignity!!
Gandhiji said -

“Be the change you want to see in the world”

…the researcher urges the readers to strive for a world where being born a
female is not a disadvantage and the researcher is willing to play her part in
making that world a reality. Will you ?

138
GLOSSARY

Ahasan talaaq: In this the husband is required to pronounce the formula of

talaaq three time during three successive tuhrs. If the wife has crossed the age of
menstruation, the pronouncement of it may be made after the interval of a month
or thirty days between the successive pronouncements. When the last
pronouncement is made, the talaaq, becomes final and irrevocable.

Din: (literally 'religion') the way of life based on Islamic revelation; the sum total
of a Muslim's faith and practice. Dīn is often used to mean the faith and religion
of Islam.

Dunya : The physical Universe, as opposed to the Hereafter; sometimes spelled

Dunia.

Fatwā : legal opinion of an (alim) binding on him and on those who follow his
Taqlid

Fiqh : jurisprudence built around the shariah by custom (al-urf). Literally means
"deep understanding", refers to understanding the Islamic laws. (see Faqih)

Hadith: A collection of Muhammad's sayings and deeds, known as the Traditions,

which is commonly taught as a part of Islamic theology. Hadiths are explanations
and interpretations of Muhammad's living example.

Hijab [hee-jaab]: Commonly, the term hijab is used to denote the scarf or other
type of head-covering and / or covering a woman’s entire body, worn by Muslim
women throughout the world.

Iddat, : that is, the waiting period that a woman must observe following a divorce,
with the exception of a divorce ending an unconsummated marriage. ʿIddat
usually lasts for three menstrual cycles or, where the wife proves to be pregnant,
until the delivery of the child.
139
ʾIjmā' : the consensus of either the ummah (or just the ulema) – one of four bases
of Islamic Law. More generally, political consensus itself. Shi'a substitute
obedience to the Imam; opposite of ikhtilaf

ʿIlm : all varieties of knowledge, usually a synonym for science

ʾIslām : ”submission to God". The Arabic root word for Islam means submission,
obedience, peace, and purity.

Khula : a procedure in which a woman can divorce her husband in Islam

Madinah: Originally this city was called Yathrib, and was located about 200 km
north of Mecca. This was the first city-state that was established under the banner
of Islam.

Mahr - is a mandatory payment, in the form of money or possessions paid by the

groom, or by groom's father, to the bride at the time of marriage, that legally
becomes her property.

Makkah [muck-ah]: A city in Saudi Arabia where Muhammad, was born in

Makkah in 570 C.E.

Muajjjal - immediate or early

Muhammad [moo-hum-mud]: The prophet and righteous person believed by

Muslims to be the final messenger of God. He was born in 570 C.E.,

Muslim Law: any person who professes as a religion, that there is but one God
and that Mohammad is the prophet of that God.

Muta marriage : a temporary marriage; for a fixed period.

140
Muwajjal -literally means late or something that will be given later at a specified
or unspecified date.

Nikah : Customary marriage according to muslim rites

Shari’ah [sha-ree-ah]: Literally "the path to water," this term refers to guidance
from God to be used by Muslims to regulate their societal and personal affairs.
The Shari’ah is based upon the Qur’an and the Sunnah of Muhammad, and is
interpreted by scholars in deliberating and deciding upon questions and issues of
a legal nature.

Sunnah [soon-nah]: Literally, this term means habit, practice, customary

procedure, action, norm, or usage sanctioned by tradition. More specifically,
Sunnah refers to Prophet Muhammad’s sayings, practices, and habits.

Shi'ite: Partisan or follower who believes that leadership should come from
descendants of Muhammad's family.The plural is Shi’a.

Sunni: Most Muslims are Sunni. This name is derived from sunna (tradition) for
one who follows the tradition of Muhammad (who did not designate a successor).
It is the belief that leadership should come from among the Quraish Arabs
(Muhammad's tribe).The plural is Sunnites.

Surah: Chapter of the Qur'an, of which there are 114.The plural of surah is
suwar, which means chapters. Also spelledsurah.

Talaaq - The term talaaq is commonly translated as "repudiation" or simply

"divorce". In classicalIslamic law it refers to the husband's right to dissolve the
marriage by simply announcing to his wife that he repudiates her.

Triple talaq - It has two forms: (i) the triple declaration of talaaq made in a
period of purity, either in one sentence or in three, (ii) the other form constitutes a
single irrevocable pronouncement of divorce made in a period of tuhr or
141
even otherwise. This type of talaaq is not recognized by the Shias. This form of
divorce is condemned. It is considered heretical, because of its irrevocability.

Halala - If a husband divorces his wife (irrevocably) he cannot after that remarry
her until after she has married another husband and he has divorced her.
Polygamy: One man married with several wives at the same time

Qur’an: The word Qur’an means "the recitation" or "the reading," and refers to
the divinely revealed scripture of Islam. It consists of 114 surahs (chapters)
revealed by God to Muhammad over a period of twenty-three years.

142
BIBLIOGRAPHY

Mamta Rao, Law Relating to Women and Children, Lucknow, Eastern Book
Company, 2012

Dr Noorjahan Safia Niaz & Zakia Soman - Seeking Justice Within Family -
Belgaum - Bhartiya Muslim Mahila Andolan - March 2015
Status Of Muslim Women In Islamic Societies – Past And Present By Dr. M.I.H.
Farooqi (check book online)

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International Journal of Humanities and Social Science Invention ISSN (Online):

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Pacific Science Review B: Humanities and Social Sciences Volume 2, Issue 1

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Rights of Muslim women: An Analysis of... (PDF Download Available). Available

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