INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & …

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VOLUME I ISSUE X

(FEBRUARY 2021)

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INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS

(ISSN 2582 – 6433)

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Volume I Issue X| February 2021 ISSN: 2582-6433

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Copyright © International Journal for Legal Research & Analysis


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EDITORIAL TEAM

EDITORS

Ms. Ezhiloviya S.P.

Nalsar Passout

Ms. Priya Singh

West Bengal National University of Juridical Science

Mr. Ritesh Kumar

Nalsar Passout

Mrs. Pooja Kothari

Practicing Advocate

Dr. Shweta Dhand

Assistant Professor


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GENDER JUSTICE VIS A VIS THE PROPERTY RIGHTS OF WOMEN UNDER MUSLIM

LAW

(By Jahanvi Tuli & Apoorva Bhangla)

INTRODUCTION

Every civilization’s development is reflected by the levels of emancipation and position of the

women. The legal and cultural landscapes of several countries has been shaped by gender.

However, in terms of power an influence women have always been a minority group. It is

because if the the inadequate implementation of the prevailing laws in India that women are still

given an inferior status. The key factor to this problem is the conflicting relationship between the

legislation and treatment of women. According to a report by the United Nations (1980), it was

observed that “Women constitute half of the world’s population, perform two-thirds of the

world’s work hours, earn one-tenth of the world’s income and own less than one hundredth of

the world’s property”.1

Several gender biased legislative provisions are the reason for the traditional mindset about

women’s property rights. These fail to provide women with adequate access to economic

resources.

Therefore, there is a need to understand the underlining cause of dependency of women on men

and shift the focus towards non-discriminatory legislative provisions. Redeeming and regressive

features with respect to women’s rights of inheritance can be observed under muslim law.2 The

muslim law of inheritance is built on the foundations of pre-Islamic customary law of succession.

Under muslim law, female heirs inherit half that of male heirs implying the concept that a

woman is worth half a man. Further, a Muslim wife is entitled to inherit one eight share of the

total property from her husband if they have children together and one fourth share of the total

property, if there are none. In case there is more than one wife, the share may diminish to one

sixteenth.3

The law is still governed by the rules in Sharia and not much of it has been codified. In the

present world, where the position of women is considered to be equal the provisions under

1 Srimati Basu, She Comes to Take her Rights: Indian Women, Property and Propriety, State University of New

York Press, 1999, p7 2 B. Sivaramayya, Women’s Rights of Inheritance in India, The Madras Law Journal Office, 1973, p.9. 3 Poonam Pradhan Saxena, Family Law Lectures, Family Law II, Lexis Nexis Buttersworth Wadhwa, 2009, p125.


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Muslim law with respect to women’s property rights seem to be inequitable. To illustrate this

economic dependence of women, present study analyses the role of legislation in defining

property rights of women in India. The primary aim of this study has been to investigate and

review the position of woman vis-a-vis her property rights with special reference to Muslim Law.

It examines the relationship between law and women’s economic status within the family. It also

highlights the areas requiring priority attention for comprehensive legislations. The present study

observes that existing law do technically confers equal social status upon women, but they

simultaneously also constrain the potential development of women by sustaining patriarchal

norms, thereby denying women the access to economic resources outside the family, and provide

an inequitable distribution of property within the family.

INHERITANCE RIGHTS OF MUSLIM WOMEN

Under Part III of the Constitution of India, various fundamental rights are ensured to the citizens

of India irrespective of their sex, caste, religion or race for their complete development. Despite

of being a multicultural and multi religious society all citizens are given equal opportunities.

However, the Muslim women are still governed under their own Islamic law and therefore could

not benefit from the various welfare legislations. Despite of these constitutional assurances, their

status remain stagnant due to the religious ordain with its conservative approach.4

Quranic laws related to inheritance

Sharia is the body of Islamic law. The Quranic verses are a source of the Muslim law of

succession and inheritance. Some pre- Islamic customs and traditions that were approved by the

prophet are taken into consideration as well. Prior to the advent of Islam, women themselves

were regarded as objects of inheritance. They were considered to be parts of the estate to be

divided. They were considered as movable property and had no right of inheritance or right to

possess property. Muslim law of succession is divine law as it is based on Quran.

In terms of inheritance, it is different from Hindu law since herein a person will acquire right of

inheritance even though he may be in the mother’s womb. Fixed shares are provided under the

law of inheritance that take precedence over the succession of the next of kin to the residue.

Under Islam, inheritance is restricted to family and specific rights have been determined

depending upon the closeness to the deceased along with gradation. Therefore, with the advent of

4 Dr.A.K.Srivastava ``Muslim Personal Law and Rights of Muslim women, A Sociolegal Study‖ Vol.3. SCJ.18

(2007).


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Islam the status of women slowly improved. The prevailing notion that women were inferior to

men was done away with. It asserted the dignity of women and held the view that men and

women are equal. They complement each other.5

Progressive elements in the Quranic Laws

Under Koranic Law, there are twelve species shares. The primary heirs include the sons,

daughters, parents and the spouse. They under no circumstances can be excluded from

inheritance. Also, there is no distinction of the quantum of the share between the father and

mother when they succeed to the estate of the deceased along with his children. However, an

outstanding feature of this provision is that even though the share of a female heir is half to that

of a male, no disability has been imposed on the basis of nature of property and her rights extend

over the entire movable and immovable property of the deceased.

In case the deceased has left no children except for his brothers and sisters, then the mother’s

share is reduced from one-third to one-sixth. The right of the husband in the property of the wife

is concerned in the absence of children he is entitled to half, and when he takes along with

children, his share is one-fourth. Under the Quranic law of inheritance, eight out of the twelve

heirs who are ranked as sharers are females.

This is indicative of the fact that under the pre Islamic law of inheritance modifications were

required to be introduced to give rights to female heirs. Another conspicuous feature of the

Islamic law of inheritance is the recognition of a distinction between the full and half blood and

between consanguine and uterine heirs. The preference for consanguine heirs over uterine heirs

especially of a consanguine sister to a uterine sister can be attributed to the patriarchal concepts

that prevailed among the Arabs of that time.

MUSLIM WOMEN’S RIGHT TO MEHR

i. Wife’s Right to mehr

Under Islam, marriage is a contract of civil law. It showcases traces of being developed from the

purchase of the bride, conclusion of the contact is done by the bridegroom with the help of the

legal guardian (wali) of the bride. The bridegroom pays the mehr or dower to the wife and not to

5 Mohammad Mazherddin Siddique, Women in Islam, Adam Publishers, New Delhi ,1992, p 14.


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the wali as was done during the pre- Islamic period.6 Under Islam, mehr is the absolute property

of the wife. It is a unique concept of Muslim matrimonial law and neither constitutes as dowry or

consideration for marriage.7

The concept of mehr and the wife’s right to receive it provides the Muslim marriage status of a

civil contract. It is a token of respect towards women. Mehr can be either monetary or non-

monetary. The parents or guardians of the wife have no right over it. Thus, it helps in removing

the disability suffered by women under the law of inheritance. In case of refusal by the husband

to pay mehr, the wife is entitled to refuse co- habitation and other marital obligations. She can

refuse to obey any of his commands, live separately and even claim maintenance from her

husband during this period.8 In case of non-payment of mehr she is also entitled to talaq –

tafwiz.

ii. The fixation of dower

The fixation of dower depends upon the social status of the parties.9 It varies from family to

family and their status in the society. A Muslim woman possesses independent legal, economic,

identity and independence. Dower can neither serve the function of protecting the marriage nor is

maintaining the wife after divorce in case the amount of dower low.

iii. Widow’s Right of retention of estate

The right of retention of estate against the unpaid dower is available to the widow. However, this

right available to the widow does not create any right for her on the property. She can simply

retain the possession and appropriate the usufruct until her dower debt is satisfied. Without being

allowed reasonable compensation, the widow cannot be made to account for the projects of the

estate. This compensation although may be allowed in the form of interest upon dower.

iv. Protection of mehr under Dowry Law

The term dowry denotes property. The wife brings it to her husband on marriage and can be real

or personal. It does not include dower or mehr. Mehr has been excluded expressly from its

application as is clear from the definition of dowry given under the Dowry Prohibition Act

6 Joseph Schacht, An Introduction to Islamic Law, Oxford University Press, 1964, p161. 7 Flavia Agnes, Law and Gender Inequality: The politics of women’s Rights in India, Oxford University Press, New

Delhi, 1999 p2832.

8 A.A.A. Fyzee, Outlines of Muhammadan Law, 4th

edition, 1974, p 135. 9 Ameer Ali, Mohammadan Law, Vol. II, 5th

Edition, 1929 , p 434.


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1961.10 Even though mehr is an economic safeguard of women but very few Muslim women get

their mehr and majority don‘t even get it. Some excused the amount, either in the lifetime or at

the death of their husbands. Several times the women are not aware of the actual amount or the

nature of their mehr.

v. Loopholes

There are several tools through which financial shield provided to the wife by the fixation of

dower is defeated. Many a times, the validity of the marriage is questioned when the claimant

sues for dower. The dower becomes nominal when the marriage has lasted for a Lin period of

time because of the mounting inflation. In some cases, the wives who are ill- treated ignorer to

free themselves for go mehr.11 However, the practice of waiving prompt dower has become

institutionalized among married Muslim women.12

MAINTENANCE RIGHTS OF MUSLIM WOMEN

Nafaqa is referred to as maintenance and it basically mean food and lodging. The reason as to

why it is important for a person to maintain another involves: marriage, relationship and

property13. Under the Islamic law, it is a Muslim man’s personal and absolute obligation to

maintain his wife. The fact that she’s living in easy or difficult circumstances is irrelevant. This

obligation of a person to maintain his wife is not shared by anyone. However, a woman is under

no obligation to maintain her husband, however indigent he might be14. There must be

stimulations in the marriage contract to make the husband duty bound to make specific

allowance to the wife, apart from the legal obligation of a Muslim to maintain his wife.15 Apart

from the maintenance allowance, the wife maybe entitled to such special allowance. In case there

is an express agreement between both the parties at the time of marriage the husband may be

rendered liable to make the allowance. It may be also stated in the agreement that if at a

particular point of time the parties are not staying together, the wife is then entitled to receive

special allowance.

Obligation to maintain

10 The Dowry Prohibition Act, 1961, Section 2 11 Shibani Roy, Status of Muslim Women in Northern India, B.R. Publishing Corporation, 1979, p 83. 12 Patricia Jeffery, Frogs in a Well: Indian Women in Purdah, Zed Press, 1979, at p 58. 13 Op. cit. Fyzee, p203. 14 Op.cit. Paras Diwan, p 157. 15 Ali Akbar v Fatima , (1929)11 Lah 85


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Irrespective of the fact whether the husband is a poor person or his wife is an affluent woman, a

Muslim man has an absolute personal obligation to maintain his wife. Under Muslim Law, this

obligation arises in two cases:

(i) On the basis of status of the wife arising out of marriage under a pre-nuptial agreement

entered into between the parties to the marriage or between the parents in case both the parties

and one of them is a minor.

ii) Under Muslim law, the word maintenance in the context of wife has a wide connotation. It

includes food, clothing, lodging etc. and the wife has no obligation to bear any expenses if the

matrimonial establishment either wholly or partly.

A Muslim is bound to maintain his wife irrespective of the fact that she has means of her own or

not.16 The Muslim husband‘s obligation to maintain his wife of a valid marriage exists in all

circumstances.17 The wife’s maintenance has priority over the maintenance of children.

However, the rights granted to women have been denied in practice by both contrary customary

observances and juristic interpretations. According to Khalid, “Koran gave special status to

women; but in a standard projection of Islam this part is overlooked and in some cases even

explained away”.18

Divorced Wife’s Right to Maintenance and Iddat under Section 125 of Code of Criminal

Procedure

The wife is not entitled to maintenance even the period of iddat when the marriage is dissolved

by the death of the spouse.19 However, the wife is entitled to maintenance during the period of

iddat when the marriage is dissolved by divorce. If the divorce is not communicated to the wife

even after the expiry of the period of iddat,20 as per the Shia and Sunni law, it is laid down that

the wife is not entitled to maintenance even during the period of iddat, if the marriage is

dissolved in the irrevocable form. However, if the irrevocable divorce is pronounced during the

period of pregnancy, the wife is entitled to maintenance until delivery. Under Muslim law, a man

had no obligation to maintain a divorced wife.21 However, section 125 of Criminal Procedure

(Amendment) Act, 1973 is a pre-emptive provision intended to prevent vagrancy and destitution

and applied to all communities and thus, a characteristic of a common civil code.

16 The Hedaya ,140 17 Baillie,1,431 18 Khalid M. Ishaque, Foreword to Sabeeha Hafeez, Metropolitan Women In Pakistan, Karachi:Royal Book

Co.,1981,pxi. 19 Badruddin v Aisha, (1957) All L.J. 300 20 Marian v Kadir AIR 1929 Oudh 527; Asmtulla v Khatunnisa, AIR 1937 All 592; Ahmed v Khaun, ILR (1939) 59 Cal 833; Munnisa v Noor Md, AIR 1965 AP 231 21 Badruddin v Aisha, (1957) All L.J. 300


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A wife is defined as a woman who has been or obtained divorced from the husband and has not

remarried, under sec 125 of CrPc. Thus, by the step of husband divorcing the wife her

maintenance suit cannot be simply frustrated. The protection of economic condition of the

discarded wives and divorcees is the primary objective of section 125. The extension of

protection to the divorcee and taking mehr to the doorsteps of maintenance are two achievements

towards this welfare goal.22 However, Mehr is ingeniously used by husbands as an escape lane

and thereby has assumed a negative role. It is negatively highlighted as a representative of the

customary or personal law sum mentioned in Section 127(3) (b). This section ordains that on

proof that the divorcee has received from her husband the whole of the sum which under

customary or personal law was to be paid on divorce, and the customary or personal law sum

under Section 127(3) (b) envisaged the Mehr, the Magistrate shall cancel his order passed under

Section 125.

In Bai Tahira v Ali Hussai n Chothia23 the husband contended that payment of Rs. 5000 by

him as mehr money satisfied the requirements of Section 127(3) (b) and absolved him of further

obligation to pay maintenance to his divorced wife. The Supreme Court observed that “since the

amount paid by the husband could not provide sufficient interest to keep the woman‘s body and

soul together his defense was rejected and the court restored the Magistrate‘s order of Rs 400

per month for the wife and Rs 300 per month for her child as a maintenance allowance imposed

on him.” The same was reiterated in Fuzlunbi v. Khader Vali.24

Rights under the Muslim Women (Protection of Rights on Divorce) Act, 1986

The Act provides is enacted with a view to protect the rights of divorced Muslim women and

provide relief to the divorced wife. It is an Act dedicated to the protection of divorced Muslim

women.25 Section 3 of the Act provides a divorced woman various reliefs’ scubas maintenance

and mehr.

In Danial Latifi v. Union of India26 the constitutional validity of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 was challenged. The Supreme Court opined that

“the purpose of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is to allow the

22 Tyabji, Muslim Law (4th

ed.) para 304. 23 AIR 1979 SC 362. 24 AIR 1980 SC 1730. 25 The Muslim Women (Protection of Rights on Divorce) 1986, Statement of Objects and Reasons 26 (2001) 7 SCC 740.


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Muslim husband to retain his freedom of avoiding payment of maintenance to his wife after

divorce and the period of iddat.”

In Shamim Ara v State of U.P27 the Supreme Court held that “a mere plea of previous divorce

in the written statement cannot be treated as a pronouncement of talaq by the husband on the

wife. The liability of the husband to pay maintenance to his wife does not come to an end

through such communication.”

In Abdul Latif Mondal v. Anuwara Khatun28 the husband challenged the order of maintenance

Magistrate‘s court on the ground that he had divorced his wife two years prior to her filing the

application for maintenance. However, the Hon’ble court rejected this contention and held that

the Muslim wife who has been divorced by her husband is entitled to claim maintenance under

Section 125 of CrPc in addition to her claims under the Muslim Women (Protection of Rights on

Divorce) Act 1986.

Conflict between Sec 125 CrPC and Sec 3(1)(a) of the Muslim Women Act,1986

In Hashim Huzursab Sayed v Goribi Hashim Sayed29 the respondent claimed maintenance

from her husband and filed an application under Section 125 CrPC. She contended that her

husband had refused to maintain her and her son born out of their wedlock. The applicant

contended that the respondent had left the matrimonial house willfully and he was unable to pay

maintenance as he did not have sufficient. The application was allowed by the trial court granting

maintenance to wife until the iddat period was over as mehr amounting to Rs 500 per month and

Rs 250 to son. The respondent filed a criminal revision after being aggrieved by the decision of

the trial court. The session’s court directed the husband to pay maintenance of Rs 500 per month

till her death or till the time she remarried. Later, the husband filed a criminal revision in the

Bombay High Court. He contended that maintenance cannot be claimed by wife under Section

125 CrPC after Muslim Women‘s Protection of Rights on Divorce Act 1986 came into force. The

court was faced the question that “whether a divorced Muslim woman was entitled to claim

maintenance under section 125 CrPC after coming into force of the Act of 1986”. Thus, the

Hon’ble High Court refused to grant maintenance under Section 125 of CrPC after the Act of

1986 came into force. However, a different view was taken by the sessions as well as the trial

court. The Muslim Women (Protection of Rights on Divorce) Act, 1986 has been held to be

27 2002(7) SCC 518 28 2002 Cr.L.L. 2282 Cal 29 2009 (3) Mah.LJ. 217


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constitutionally valid but since then till date, Supreme Court itself has decided cases under CrPC

in order to award maintenance to Muslim wife keeping aside the later Act of 1986.30

SUGGESTIONS

To strengthen the property rights of women, the following is suggested:

Being influenced by the pre-Islamic culture, the intestate succession is of complex nature under

the Muslim Law, thus, is not as per the needs of a modern Muslim society. Therefore, a uniform

law of secular nature will prove to be an aid for simplifying their customs. The discriminatory

principles under sharers and residuary system should be abolished so that equality will be applied

between men and women in inheritance matters.31

In order to change the negative active towards women claiming their inheritance rights

information and communication campaigns should be carried out. Women’s associations should

be supported and awareness, funding as well as capacity development should be raised in

community and civil society organizations.32

Customary laws should not be allowed to deprive women of their property rights. They should be

codified while discarding the gender inequitable practices.

The existing priority accorded to debts over maintenance rights should be discarded under all

laws. The provision should be extended to claims for dower under Muslim law. Maintenance

claims should be considered as secured debts.

To ensure that the issue of inheritance understood by the society, adequate attention should be

given to protection and promotion of women’s inheritance rights.

To align national frameworks to international law legal and administrative reforms should be

promoted regarding women’s inheritance rights and access to land.

30 Shamima Farooqui v Shahid Khan, AIR 2015, SC 2025. 31 31 Islamic C.L.Q. Volume-1,1981,p. 144-145. 32 Ombretta Tempra, Siraj Sait, “Women and Land in the Muslim World” available at https://www.sheltercluster.org/sites/default/files/docs/women_and_land_in_the_muslim_world.pdf accessed on 30

Nov 2020


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CONCLUSION

Though the basic source of the Muslim law is the Kuran and the Hadith, the relations it regulates

are, from no religious stand point. They are social relations well within the province of the State.

Muslim polygamy has no religious motivation as Islam neither prescribes funeral ceremonies

performable by a son nor denies salvation to a son less Muslim. Therefore, marriage, divorce,

inheritance and other aspects of personal status are, despite the source of the Muslim law

regulating them, social or secular activities surrounding religion.

The primary source of Muslim law is the Koran and the Hadith. In respect of matters governed

by the Muslim law the state can valid enact measures of social welfare and reforms.33 Despite of

the fact that equal status has been given to men and women by Islam in law and religion; the

position of Muslim women is in fact miserable. The lives of Muslim women are governed under

the Muslim Personal Law that is heavily tilted against women and thus they remain a minority

within a minority. Many NGOs have taken steps to provide a platform to Muslim women where

they can voice out their opinion and stand up for their rights. One of the non- profit organization

set up by the Shariah courts, Bhartiya Muslim Mahila Andolan offers mediation to women

victimized under oppressive laws.34

According to Sir William Muir, “the position fixed by Muhammad for women is that of an

inferior creature destined only for the service of her lord, liable to be cast off without the notice

of a single hour”.35 Therefore, it can be said that Islam scribes a superior status to men and and

have not given women superior status with men. Islamic orders regarding seclusion of women,

men‘s right to divorce and other provisions imply that the position of women under Islam is

inferior. Muslim law at every stage is fettered with inequalities, with the woman in every case

being less equal than men. Though Islam treats women with respect and honor it has not given

men and women equal status. Unfortunately in actual practice, the tendency seems to accord

woman an inferior status to that of men and overlook or misinterpret the principles and orders of

the Koran.

33 Mohammad Ghouse, Security, Society and Law in India, Vikas Publishing House, 1973, p227 34 Vandana Shukla. Muslim Women‘s Quest for Equality, The Tribune, September 24, 2015. 35 Quoted by K.M Kapadia , 1958, p 200.


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