SYMBIOSIS INTERNATIONAL

UNIVERSITY,

SCHOOL OF LAW, HYDERABAD

PROJECT ASSIGNMENT

ON

FAMILY LAW- I

TOPIC: Islamic Law: Indian Context

SUB TOPIC: Muslim Women- A Minority within Minority

COURSE TEACHER:

SUBMITTED BY: -

NAME-

ROLL NO.-

SEMESTER-

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 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to

______________ for his/her enlightening lectures on Family Law. I would also like to
express my sincere gratitude to our teaching staff for guiding me the path towards
gaining knowledge. I would also like to thank Symbiosis Law School, Hyderabad,
library for the wealth of information therein. I would like to thank Library Staff as well
for their co-operation.

I would also like to thank my batch mates and seniors who inspired, helped
and guided me in making this project. I am grateful to some of my seniors namely,
________________ for their incredible guidance and support.

Name
Roll no.
Semester

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT……………………………………………………....…. 1

ABSTRACT…………………………………………………………………………. 1
RESEARCH METHODOLOGY…………………………………………………. 2

PREAMBLE……………………………………………………………………….... 3

INTRODUCTION…………………………..……………………………………….…….… 3

PERSONAL LAW AS MUSLIM IDENTITY…………………………………... 4

MUSLIM PERSONAL LAW- UNJUST OR MISINTERPRETED………….. 5

POLYGAMY

UNILATERAL DIVORCE

PERSONAL LAW- WHETHER AMNEABLE TO REFORM?.......................... 9

SUGGESTIONS……………………………………………………………………. 11

AN OPT-IN UNIFORM CIVIL CODE-

STRICT APPLICATION OF PERSONAL LAW-

COMBINATION OF TWO- BEST OF BOTH THE WORLD’S

CONCLUSION………………………………….………………….…..... 13

BIBLIOGRAPHY……………………………………..……………..................... 14

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 ABSTRACT
This paper focuses on the position of a Muslim woman in India and compare her position
with other women in the country as it is quite sad to reveal that a Muslim woman suffers
double discrimination one for being a woman and other for being a Muslim women as the
application of personal law imposes certain unjust conditions on her. The paper further
attempts to analyze the controversy by studying the bigger question, whether the Muslim
personal law is unjust in its entirety towards woman or is simply misinterpreted to the
disadvantage of a woman by the orthodox elements of the society to suit their malicious and
greedy needs. The research is however only restricted to the disadvantages meted out to
women in respect of marriage, divorce and, maintenance. The paper also gives a picture as
to whether the personal law is amenable to reform and if yes, how such reform is supported
in India and other Muslim countries. The paper concluded with a trilogy of suggestions,
however, the first two suggestions is rejected as they both suffer from problems of
feasibility.

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 RESEARCH METHODOLOGY

SCOPE AND OBJECTIVE OF THE STUDY

The object of the study is to analyze the disadvantages meted out to an Indian
Muslim Women as compared to women belonging to other religion. A study of the
provisions of the personal law is conducted to find out the causes of such discrimination
and then various attempts have been made to make suggestions which can bring reform
in the condition of Muslim women to enable them to be in equal line with other women
in the country. The study is limited to the disadvantages to a Muslim woman in the
areas of divorce, maintenance and marriage.

RESEARCH METHODOLOGY

The methodology adopted is largely analytical and descriptive. Reliance has

been placed largely on secondary sources like books and articles. The lectures and
classroom discussion have been rich with valuable pointers and gave direction to the
research.

CHAPTERIZATION

This project has been divided in five chapters. It consists of following chapters,
Introduction (Chapter I), Muslim Personal Law-Unjust or Misinterpreted (Chapter II),
Personal law –Whether Amenable to reform (Chapter III), Suggestions (Chapter IV),
and Conclusion (Chapter V).

RESEARCH QUESTIONS

1. Whether a Muslim woman is denied the rights as enjoyed by women belonging to other
religion in India due to the application of personal law in the matters of divorce,
marriage and maintenance?
2. Whether the Sharia Law is unjust towards Muslim women or it is its misinterpretation
which creates inequality?
3. Whether the Muslim personal law is amenable to social reforms without affecting the
group identity of the Muslim community?

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 4. What can be the possible solution to enable Muslim women to enjoy her rights equally
with women belonging to other religion and men?

HYPOTHESIS

With the liberalization and feminism reaching its epitome, muslim women
are still disadvantaged because of the application of personal law which on the face of
it appears to be unjust and discriminatory. But taking a deep study of the personal law
reveals that muslim personal law in itself is not discriminatory rather it is misinterpreted
and which is causing muslim women to suffer. It is time when efforts should be made
at the national level to bring uniformity in the application of personal law so that the
danger which comes with wrong and unjust interpretation of provisions of shariat law
can be dealt with more systematically and muslim women are also given their due right.

MODE OF CITATION

A uniform system of citation is followed throughout in the contents.

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 ISLAMIC LAW AND WOMEN:
INDIAN CONTEXT- A MINORITY WITHIN MINORITY
PREAMBLE:
Muslim women are triply disadvantaged: as members of a minority, as women, and most of all
as poor women. Muslim women continue to struggle articulately for their rights and are still
subject to an archaic family law codified nearly 70-years ago which has remained unreformed
and continues to disadvantage women legally. India being a land of diversity where people of
all religion thrive and constitutional rights are guaranteed to all the citizens irrespective of
caste, creed, religion and sex still while on the same land Muslim women is not only treated
differently from male counterparts but they also experience difference in enjoyment of rights
as compared to a Hindu or a Christian women due to the application of personal law which is
presumed to contain provisions which are in conflict with certain rights guaranteed under the
constitution of India, such as right to equality, against discrimination etc. The project tries to
analyze the cause of this disadvantaged situation of a Muslim woman in Indian society and also
an attempt is made to draw certain suggestions in order to establish a level playing field for
such women. It is further attempted to analyze whether the personal law is amenable to reforms
and whether it is unjust to women as it is perceived to be.
INTRODUCTION
Muslim women in India are often caught between loyalties to their religious or ethnic
communities and a desire for greater freedom and equality as women within those
communities. It becomes difficult for such women to reconcile both these needs because of the
pressure of the community to maintain the precepts of the personal law wherein a woman is
treated as a second class member.
Under the current law and custom, Muslim women are unable to divorce except for cause unlike
Muslim men who may divorce unilaterally and without cause. After divorce, Muslim women
have no legal right to maintenance except for a period of three months after the marriage. And
finally, Muslim men have a legal right to marry up to four wives without the consent of their
wives while Muslim women have no such right to polyandry, despite the fact that there are
more males in India than there are females. These laws indicate the subordinate position of
Muslim women in relation to Muslim men and also show the difference in rights enjoyed by a
Muslim female and a Hindu or Christian female who is being given right to divorce her husband
on more grounds than given to the husband similarly polygamy is also prohibited thus the first

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research question deals with the analysis that the Muslim women is given lesser rights in India
as compared to other women because of the application of personal law in matters of divorce,
marriage, maintenance etc. In the second question it is attempted to establish that the Shariat
law is not unjust from its inception and is not discriminatory and it is the misinterpretation of
law which has evolved the custom of mistreating women. The third question deals with the
scope whether the unjust part of the personal law can be reformed by suggesting that it is being
applied differently in different country thus it is not as rigid as it is made to appear and also
with the change in social circumstances it has undergone change. The last question provides
for suggestions in order to eliminate these inequalities and injustices encoded in the law, a few
solutions have been advanced.
PERSONAL LAW AS MUSLIM IDENTITY
It is relevant to state here how and by what process the personal law of Muslim community
started to be regarded the symbol of Muslim identity in order to establish that the unjust part
of the personal law is in no stretch of imagination a part of Muslim identity and is merely a
customary distorted practice started in the British period. The idea of Muslims as different from
other Indians and the role of law in creating that identity has its genesis in the Mughal period
wherein the law was bifurcated into public and private spheres governed by two distinct
traditions of law, Islamic law and religious law, this was incorporated in the laws made during
the British period and Indians were governed by secular public law and religious
private/personal law.1 From here the notion that Muslims are a separate identity with different
ethnicity started to develop. This difference was further legally recognized when the
codification process started, since there were complexities of the law that could be applied the
customs prevalent and the original sources of Muslim law were over simplified by the British
judges to be applied conveniently in the courts thus ignoring the real customary practices
prevalent.2 During the Independence movement with separate electorates along the communal
lines in the Government of India Act of 1909, Muslims became a legally-recognized minority.3
The creation of a national minority had some perverse impacts and the accretion of the Indian-
Muslim identity as something apart from the Hindu and even “Indian” identity and the

1
Archana Parashar, “Women And Family Law Reform In India: Uniform Civil
Code And Gender Equality”, 1992 at p.60
2
Cyra Akila Choudhury, “(Mis)Appropriated Liberty: Identity, Gender Justice, And Muslim Personal Law
nd
Reform In India”, Available at http://ssrn.com/abstract=969020, Last visited on 22 August, 2012 at
pp.10-15
3
Ayesha Jalal, “Exploding Communalism: The Politics of Muslim Identity in South Asia”, Nationalism,
Democracy & Development: State And Politics In India at pp.90-95

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development of Muslims into a minority occurred and were constructed by and through
discourses of difference engaged in by the British, the Hindus and the Muslims.4 In 1920s the
Shariat Act was passed finally ending the process of codifying Muslim or, in the incorrect
terminology of the British, “Mohammedan” law, while this may not have been a particularly
salutary legal achievement, it was a further realization of the separation between Muslims and
Hindus along “national” lines that had begun earlier. All this ended with the partition of India
and strongly established the differences in the name of religion.5

MUSLIM PERSONAL LAW- UNJUST OR MISINTERPRETED

In an article, Muslim Personal Law was characterized in the following manner:
“Muslim personal laws require a Muslim wife to be monogamous, while a husband can have
up to four wives. They also allow husbands but not wives to divorce unilaterally without fault,
institutionalize dower arrangements that arguably amount to selling women into marriage,
grant male heirs twice the share of female heirs, and do not allow mothers to be guardians of
minor children.”6

The above process of codification clearly points out that there is a considerable gap between
the customary practices and the black letter of the law. In the next few paragraphs it is explained
what Mohammedan law talks about polygamy, divorce and maintenance unjustly towards
woman.
POLYGAMY-
Polygamy is held up as the ultimate evidence of Islamic law’s injustice towards women and as
such, it deserves consideration. While some Muslim countries have either regulated or banned
polygamy, India continues to allow plural marriages for Muslim men. A Muslim male husband
can take as many as four wives at a time to marriage. Now the question is that how far bigamy
is supported by the personal. Since polygamy up to 4 wives is allowed under the Mohammedan
Law as is evident from above statements, therefore no remedy is available to a Muslim women
against polygamy by her husband, however, a condition is imposed upon a Muslim male that
he can marry as many as four wives subject to the condition that all the wives be treated justly
and equitably. Quoting a text from the Holy Quran which seem to support polygamy is-

4
Id.
5
Supra n.2 at p.16
6
Catherine A. MacKinnon, “Sex Equality Under the Constitution of India: Problems, Prospects and
Personal Laws”, Vol.4(2), International Journal of Constitutional Law,2006, at p.192

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 “And if you fear that you will not be fair in dealing with the orphans, then marry as many of
women as may be agreeable to you, two or three, or four; and if you fear that you will not deal
justly, then marry only one or what your right hand possesses. That is the nearest way for you
to avoid injustice.”7

Thus from the above verse it is evident that there are few conditions imposed upon a Muslim
male before he can take up 2nd 3rd or 4th wife which are as follows:-
1. “There is no religious injunction directing muslim to marry more than one wife.
2. To marry a second wife is left to his choice.
3. Permission is granted to him to contract a second or subsequent marriage only in a case
where he comes across a destitute female orphan who requires care and compassionate
treatment for making her life livable.
4. The bar to second marriage is removed in such cases only if a muslim is able to do
justice to her and all his wives, not otherwise”8
Here, it is worth mentioning the views stated by Fyzee that there is some contradiction
in interpreting the term ‘just and equal’ as according to one view it is permitted to have
more than one wives with the condition that he should be just between them and since
capacity to be perfectly just does not exist between them therefore either polygamy is
completely prohibited as it is impossible to satisfy the condition of justness or it allows
only limited polygamy because one who will be unjust will be guilty of fraud and
betrays trust imposed by Allah. However, another view is that on referring to Quran it
is clear that polygamy is allowed and interpreting condition of just and equitability so
strictly would be against the spirit of Quran as it would mean that it suffers from
discrepancy which is impossible as regards Surah 23 pointed out by The Holy Book
itself, moreover polygamy is required under certain peculiar situation thus what is
required is something less than perfect just behavior, i.e. dealing which excludes
injustice but falls short of perfect justice. It is admitted here that the second view
appears to be more acceptable.

It should be noted here that polygamy as a practice is not widespread among Muslim
communities in India. In fact, the incidence of polygamy among Muslims is
approximately 6%. Even so, the right to plural marriage is possibly the most
objectionable of formal legal rights accorded to Muslim men at the expense of Muslim

7
Arabic text and English translation by late Maulawi Sher Ali, in chapter Al-Nisa
8
Commentaries on Mohhammedan law, S.I. Jafri and B.M. Seth,pp.96,97

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women. Given that it has been restricted if not formally abolished in other Muslim
Countries, the time has come for such anachronistic rights to be changed in India.9
UNILATERAL DIVORCE-
Under the Mohammedan law a Muslim husband is empowered to pronounce Talak10
on his wife unilaterally without her consent and at his own free will with or without any
cause and as rightly said by Anderson “it is the Islamic law of divorce not polygamy
which is the major cause of suffering to Muslim women…the Muslim wife indeed has
always lived, so far as the law is concerned, under the ever present shadow of divorce”

Although according to Hadis “with Allah, the most detestable of all things is divorce”

The tradition of arbitrary talaq at the sweet will of the husband was prevalent since
the pre-islamic days, although the power of divorce was recognized by Prophet to avoid
a greater evil he made various provisions for the protection of women against such
arbitrary and capricious practice of their husbands which are as follows:-
(a)- Fixing of dower
(b)- revocable talaq
(c)-restraint on remarriage between the parties

NOT AT THE WHIMS AND CAPRICE OF THE HUSBAND-

Justice Iyer pointed out in the case of A.Yusuf vs. Sowramma “It is a popular fallacy
that a muslim male enjoys, under the Quaranic law, unbridled authority to liquidate
the marriage. The holy Quaran expressly forbids a man to seek pretexts for divorcing
his wife, so long as she remains faithful and obedient to him, “if they (namely, women)
obey you, then do not seek a way against them”(Quaran, IV:34)….commentators on
the Quaran have rightly observed and this tallies with the law now administered in
some muslim countries like Iraq- that the husband must satisfy the court about the
reason for divorce.”
However in the following cases different view has been taken:
Sarabai Vs. Rabiabai11 it has been held that here may not be a particular cause for
divorce, and mere whim is sufficient. And in the case of Asha Bibi Vs. Kadir Ibrahim12

9
Supra n.2 at p.38
10
“Talak” is defined as “the exercise of the right of pronouncing unilateral divorce on the wife by the
husband, arbitrarily without any cause, at any time during the subsistence of valid marriage including
nd
the period of iddat, is known as Talak.”( Nishi Purohit, The Principles of Mohammedan Law, 2
edition, Orient Publishing Company, 1998, p.183)
11
ILR 30 Bom Dissented
12
ILR 33 Mad 22 Dissented

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it has been held that although an arbitrary or unreasonable exercise of divorce of
marriage is strongly condemned in the Quaran and is treated as spiritual offence, it does
not affect the legal validity of a divorce duly effected by husband.
But in the case of Saiyid Rashid Ahmad Vs. Anisa Khatoon the true concept of talaq
was pointed out by CJ. Baharul Islam that-
• talaq must be for reasonable cause,
• must be preceeded by attempts at reconciliation,
• It ‘may be effected’ if the said efforts fail.

Thus it ended the controversy that for effecting talaq “whim of the husband is
sufficient”.

CAUSES FOR DISTORTIONS IN INDIA13-

It is rightly said that no other matrimonial law has been as much distorted in this part
of the world as its law on divorce, the reasons being-
• Judicial ignorance or irreverence
• Author’s of Muslim law like McNaughten and Mulla who decreed every
Muslim husband’s birth right to divorce his wife at whim.14
• The ill educated maulvees of the village mosque who misguided their followers
by transmitting to them their own faulty understanding of the law

Following decisions of the British India further distorted the law-

In Ahmed Kasim v. Khatoon Bibi, it was held that any Mohammedan may divorce his
wife at his mere whim or caprice
In Sarabai v. Rabiabat, it was observed that an arbitrary divorce by a muslim husband
was ‘good in law’, though ‘bad in theology’.

The Privy council in Rashid Ahmed v. Anisa Khatoon took the view that a muslim
husband can effect divorce whenever he desires.

• MAINTENANCE- Muslim Women (Protection of Rights on Divorce) Act, 1986

Upon divorce, a Muslim woman has the right to maintenance for a period of three
months that is her iddat period and the time that elapsed from the end of the iddat until
she received notice of divorce, if any. After that time, the responsibility to maintain her
devolves back to her family. As such, the objective of maintenance is not to compel the
ex-husband to provide for the divorced wife as in the case of alimony. Rather, because
Islam considers marriage a union that can be dissolved rather than an eternal bond, a

13
Furgan Ahmad, “Triple Talaq: an Analytical Study with Emphasis on Socio-legal Aspects”, Regency
Publication, New Delhi, 1994
14
McNaughten declared, “there is no excuse or any particular cause for divorce, mere whim is
sufficient.” And Mulla announces, “any Mohammedan of sound mind, who has attained puberty, may
divorce his wife whenever he so desires without assigning any cause.”

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woman is never considered a part of her husband’s family to the exclusion of her own
paternal family. Neither is she a better half but a fully cognizable legal personality with
independent rights who is capable of remarriage. In fact, remarriage is encouraged in
Islam, which is the underlying rationale behind the short period of alimony provided
after divorce. The passing of three months ensures that the wife is not pregnant. If she
is, the husband is liable, of course, for the child’s maintenance until it reaches majority
and all children from the marriage, in turn, “belong” to their paternal family.
Until the Shah Bano case and the passage of the Muslim Women (Protection of Rights
on Divorce) Act, 1986 (MWA 1986), divorced Muslim women who were inadequately
supported and rendered destitute could sue under Section 125 of the Indian Criminal
Procedure Code for long-term maintenance beyond the iddat period.15 Section 125
applied to all women regardless of religious affiliation, however, for Muslim women,
the passage of the MWA 1986 which provided support to those who had contracted for
insufficient mahr in event of divorce, closed that avenue of legal recourse cutting off
maintenance after three months.

MUSLIM PERSONAL LAW- AMENABLE TO REFORM?

The Sharia law is not a law which has come by way of a dictate from man to man,
instead it is command from Allah, whether expressed in revelation of Mohammed, the
Prophet, in the shape of Holy Quran or in the practices of the Prophet himself and thus
it is the source of all laws as well the only law and according to traditionalist these rules
are something immutable, unchangeable and eternal. However, it has been seen in the
recent time that these rules have been modified by adapting it to the changing needs of
the society.16 Thus the family law presently followed by the Muslim world may be
divided into 3 different groups- countries where classical family law remained
unchanged and uncodified, where Islamic law has been completely abandoned and
replaced by the statutory law applicable on all citizens, where family law has been
refined by various legislative techniques.17

15
Supra n.2 at pp.36-37
16
S.J. Hussain, “Marriage breakdown and Divorce Law Reforms in Contemporary Society”, Concept
Publishing Company, Delhi, 1983
17
Supra n.13

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In a number of countries reforms have been brought about wherein triple talaq has either
being abolished or made ineffective or impracticable- eg in Egypt, Iraq, Jordan,
Morocco, North Yemen, Sudan, Syria, Pakistan, Bangladesh.18

POSITION IN INDIA- However in India where the State has enacted law, it is has
been in response to conservative Muslim pressure and at the expense of women, Armed
with verses from the Qur’an and sayings of the Prophet, they seek to challenge the
allegations made by progressive Muslims and Hindu nationalists alike. The first
argument from conservatives is that the law is immutable.19 The argument that law is
immutable can be dismissed for the reason that the British codification does not reflect
all the law or even the most important parts of the law. In May 1993, a fatwa was issued
know as the Fatwa of the Jamaat Ahl-e-Hadees, which invalidated the triple talaq given
in one sitting which was supported by very few groups and Jamaat Ulema published a
statement upholding the validity of triple talaq.20

Thus looking at the position in various countries all over the world it may be stated that
the Sharia Law is amenable to change and can be modified to suit the needs of the
society but is not accepted in the Indian society due to various reasons one being such
interference by courts, as was mistakenly done in shah Bano case where court tried to
interpret the Quaranic text21, may be against the constitutional rights of religion
guaranteed under it to profess, propagate and practice their own religion and therefore
it cannot bring reform through legislation in India as against other Muslim countries.
However it may also be pertinent to mention here that the reform of personal law is said
to violate constitutional provisions when the cultural identities of muslims depends
solely or partly on their religious law, and neither polygamy nor unilateral right to
divorce can be identified with muslim culture and thus reform of Islamic law in India
will not be unconstitutional.22

SUGGESSTIONS23-

18
Id. at pp.118-122
19
Supra n.2 at p.34
20
Sanober Keshwaar, “The Triple Talaq-Unjust, Untenable, Un-Islamic”, in Indira Jaising(ed.), “Justice
for Women”, The Other India Press,1996 at pp.82-85
21
Ijtehad
22
Supra n.13
23
Supra n.2

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 Muslim women’s formal rights in the area of family law clearly have not kept pace with women
from other Indian communities or other nations because the area of the family law in question
has not been revised by the State since its enactment more than 70 years ago. For several years,
the call for reform has been growing. The following three suggestions may be of certain help-
I. AN OPT-IN UNIFORM CIVIL CODE-
Article 44 of the Indian Constitution directs the State to “endeavor to secure for the citizens a
uniform civil code throughout the territory of India.” Over the years, the Uniform Civil Code
has met sustained resistance from conservative Muslims. The opt-in solution has called for the
promulgation of a UCC that women can then choose as the law governing their marriage. This
solution allows women choice while not threatening the traditional religious personal law
regime. Women are given the choice of the secular and more favorable law in the event that
they are faced with inequitable personal law remedies without any threat of invalidation of
personal law as a whole.
SEVERAL PROBLEMS-
1. The Assumption of a Robust Secularism- Secularism is an essential prerequisite in
establishing the trust of minority communities in the State. Without such a trust in the neutrality
of the government, minorities, particularly Muslims who have been discriminated against for
decades, are unlikely to acquiesce to a relinquishing of their laws.
For instance, in the Hindutva cases, the Indian Supreme Court held that references by the Hindu
Right to ideologies of Hindu nationalism or Hindutva were not violations of Section 123(3) of
the Representation of the People Act, 1951 (RPA 1951) which bars appeals to religion and
communalism in attempts to gain votes. Rather, Hindutva was construed by the Courts as a
general reference to Indian culture and a “way of life”.

Relying on two cases, Sastri Yagnapurushadji and Others v. Muldas Bhudardas Vaishya and
Another and Comm’r of Wealth Tax, Madras and Others v. Late R. Sridharan by L.R.s the
Court concluded that it could give no definition to Hinduism, Hindu or Hindutva. It concluded
that the Hindutva is a synonym for Indianisation and “the development of a uniform culture by
obliterating differences between all the cultures coexisting in the country”, by equating Indian
culture and Indian identity with Hinduism. The Court went on to state that speech promoting
Hindutva was acceptable in the promotion of secularism and that it was a matter of fact whether
or not there was a violation of the RPA 1951. Under these circumstances, liberal calls for
uniformity and secularism take on a sinister tone. It strains reason to assume that a political
system in which such ideologies have substantial purchase, in which parties espousing these

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 ideologies are elected to state and central government, could pass a secular code that acts
neutrally.

2. The Assumption of Political Will to Better Women’s Status- The enactment of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 shows the extent to which women’s rights
are susceptible to political pressure and manipulation. The Act overturning the Shah Bano
judgment was passed by a political fearful Congress government under pressure from Muslim
conservatives is an example of how communal politics can serve up gender justice on a platter
if it suits. The Supreme Court of India ruled in her favor granting her continued maintenance.
In reaction, fundamentalists, both Hindu and Muslim, mobilized a discourse of identity that
threatened to unseat Congress (I), the leading party and to tear Indian society apart along
communal lines. Muslims, the Congress-led Indian Parliament passed the MWA 1986 that
reversed the Court’s decision and foreclosed the right of Muslim women to sue for continued
maintenance beyond the iddat period.

3. The maintenance of a private sphere in which unjust religious laws can operate, and the other
has to do with the possibility of “free choice”. An optional code, particularly one that requires
Muslim women to opt-in by entirely abandoning Muslim laws preserves a public/private
dichotomy.

4. Muslim women may be unable or unwilling to jeopardize their religious affiliations

particularly in a society in which they are discriminated against. An assumption of free choice
in a traditional society is unwarranted.

Therefore, formal rights enacted by a State without political will to challenge gender inequality
may not amount to real gains for women.

II. STRICT APPLICATION OF PERSONAL LAW-

The argument from conservatives is that the law is misapplied. The following can be stated the
misconceptions-
1. If the giving of mahr is practiced according to Muslim law, it is a security for women in a
society that provides no social safety net.
2. A bride’s family can stipulate a high mahr to deter unilateral divorce and abandonment. If
the law were enforced, therefore, Muslim women would be financially more secure and less
likely to be divorced without their consent.

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 3. The triple talak, which is the most unfavorable form recognized in Islam, is incorrectly
practiced by Muslim men. The way in which men have used it—in one sitting—is
disapproved of because it contravenes the rules set out in the Qur’an.
4. Maintenance for three months may be adequate if a divorced wife has contracted for an
adequate mahr that she may leave with or has prospects of remarriage or self-support.
PROBLEMS-
The way in which such laws are interpreted create an environment of unjustness for
women such as in the case of Shah Bano who, at an age of 73, did not have many
prospects of remarriage nor is it likely that there was much of her paternal family left
to support her.
III. COMBINATION OF TWO- BEST OF THE TWO WORLD’S-
Internal Reform, Legal Assistance and External Reform-
1. Internal Change: Muslim Personal Law Reform
2. Practical Assistance: Both Economic Empowerment and Teaching Women
to Use the Law
3. A Parallel Code: Drafting a Model UCC and Advocating its Passage

The State cannot continue to uphold religious laws that conflict with the fundamental rights
and justify the subordination of women on this basis. Further, male leaders of the religious
community also cannot continue to use and control women as a symbol of identity by
politicizing their rights. For these reason, an effort needs to be made to move towards a system
that can afford women their rights while respecting their religious communities. As either a
step towards a civil code or as an end in itself, Muslim Personal Law reform is long overdue.

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CONCLUSION
It is clear from the above discussion that a Muslim woman is doubly disadvantaged in India.
Such position of Muslim women is only due to the misinterpretation of the Sharia law and not
because the personal law is unjust in its entirety and the provisions of the law are amenable to
reform suiting the needs of the changing society and has been incorporated by a number of
Muslim countries. According to the study and my personal opinion among the suggestions
given the last one which is the combination of the two is the best solution to bring reforms as
either UCC alone or strict application of personal law have their own shortcoming and are not
feasible in the present scenario. The best approach in the interim is for radical reform of Muslim
Personal Law coupled with the drafting of an aspirational code that is then advocated
vigorously. However, all these reforms will be of no use unless the perception of the society is
changed towards a woman. An effort needs to be made to move towards a system that can
afford women their rights while respecting their religious communities. Whatever be the means
it may be concluded that Muslim Personal Law reform is long overdue and presently Muslim
women is a minority within minority in India.

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 BIBLIOGRAPHY
• Archana Parashar, “Women And Family Law Reform In India: Uniform Civil Code And
Gender Equality”, 1992

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Asia”, Nationalism, Democracy & Development: State And Politics In India

• Catherine A. MacKinnon, “Sex Equality Under the Constitution of India:

Problems, Prospects and Code And Gender Equality”, 1992

• Cyra Akila Choudhury, “(Mis)Appropriated Liberty: Identity, Gender Justice,

And Muslim Personal Law Reform In India”, Available at
http://ssrn.com/abstract=969020, Last visited on 22nd August, 2012

• Furgan Ahmad, “Triple Talaq: an Analytical Study with Emphasis on Socio-legal

Aspects”, Regency Publication, New Delhi, 1994

• Nishi Purohit, The Principles of Mohammedan Law, 2nd edition, Orient Publishing
Company, 1998, Vol.4(2), International Journal of Constitutional Law,2006

• S.I. Jafri and B.M. Seth, “Commentaries on Mohhammedan law”

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Society”, Concept Publishing Company, Delhi, 1983

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Jaising(ed.), “Justice for Women”, The Other India Press,1996

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