Women in Islam

Women’s Economic Rights in Islamic Law

However, if we were to approach the issue without communal blinkers we would probably have to concur with the privy council’s comment in the Moonshee Buzloor Ruheem vs. Shamsoonissa Begum case of 1867 that:

‘Distinction must be drawn between the rights of a Mahomedan and a Hindu woman and in all that concerns her power over her property. The former, is by law, far more independent, in fact even more independent than an English woman. The Mahomedan law is more favourable than the Hindu law to women and their rights and does not insist on their dependence upon the subjection to the stronger sex."

Islam provided Muslim women with rights centuries ago which European and Hindu women have only recently begun to enjoy. It was the Islamic principle of marriage as a dissoluble contract that was borrowed by British matrimonial jurisprudence to replace the Christian notion of marriage as an eternal and indissoluble sacrament. This Islamic concept was incorporated into Hindu Law in India only as recently as 1995. The British Legal system originally provided for divorce only in cases of matrimonial offences, and if the woman were the ‘guilty’ spouse, she would be denied maintenance and property rights. Islamic Law, on the other hand, guaranteed substantial rights for the wife even in such cases, in the form of maintenance payments and the mehr.

Mehr is a right providing for the future security of the woman after marriage and is agreed to at the time of marriage. When a Muslim marriage is to be solemnised, the groom promises to pay the bride a certain sum which is specified in the marriage-contract, the nikah namah. This sum is called Mehr in Arabic. Mehr is a Qur’anic right. The Muslim holy text stipulates: ‘And give women their dower freely, and if they are good enough to remit any of it of their own free will, then enjoy it with a good conscience." (Surah An-Nisa 4:3)

According to the Maliki school of Islamic law, a marriage without the stipulation of Mehr is invalid. In Hanafi Islamic law, the marriage remains valid but a woman is still entitled to a proper mehr, or mehr-al-misl. This would be determined taking into account the means and status of the husband and his family. Interestingly, Mehr is the sole right of the wife. The husband can have no claim over it once the marriage is consummated. This is in striking contrast to traditional Roman and British Law, for instance, where upon marriage a woman completely lost her independent identity, and with it her right to acquire, hold and manage her own separate property.

Given the fact that as far as women’s rights were concerned Islamic law was far in advance over British legal notions, it is not surprising to find that in many cases British courts in India actually worked to undermine some of the rights that Islam had bestowed on Muslim women. This was particularly the case when they relied upon British, instead of Islamic, notions of ‘morality’ and ‘public policy’. As a result of this Muslim women’s customary and Islamic rights to divorce, to adopt children or inherit property seem to have actually been curtailed by the judges. An interesting instance of this was a case that came up before a British Indian court in 1853, in which a Muslim woman from the Bombay Presidency pleaded that she be granted the inheritance rights in her family property in accordance with the provisions of the Islamic law. In turning down her plea, the English Judge Lord Erskine Perry declared,

"A custom for females to take no share in the inheritance is not unreasonable or against public policy in the eyes of the English law. It accords in great part with the universal custom as to real estates where there is any male issue and with some local customs mentioned in Blackstone by which in certain manors females are excluded in all cases."

In another case, the Bombay High Court, relying upon the British doctrine of ‘public morality’ denied a Muslim woman of a substantial right that Islamic law provided for. In the 1905 Meherally verses Sakerkhanoobhai case, the court disallowed a woman’s request that she be granted a regular maintenance and 25 tolas of gold as agreed to earlier by her husband in an Islamic contract to come into effect in case of separation. The court, rejecting the wife’s plea, held that the arrangement for agreements contemplating the future separation of husband and wife, which was allowed for in Islam, was something which it "looked askance at", because, it claimed, such an agreement "is bad under English Law."

It was this principle which was later applied by the court in the 1913 Bai Fatima versus Ali Mohamed Aiyab case denying a man’s first wife a regular maintenance of Rs.8/- per month even though he had agreed to pay this sum in case of divorce or separation. Relying upon this principle, the court ruled that since the separation took place some weeks after the execution of the agreement, the agreement had encouraged the separation and that hence it was against the British notion of ‘public morality’.

It is ofcourse nobody’s contention that the denial to Muslim women of rights guaranteed to them by Islam owes entirely, or even largely, to British judges with their archaic notions of justice and morality. The British have long since gone, but Muslim women still remain, by and large, ignorant of their Islamic rights. Most Muslim women are still promised only a very nominal sum as mehr, although it is said that the Prophet (Pbuh) settled a large sum of 500 dirhams with each of his wives, except for one, Umme Habibah, whom he agreed to pay 4000 dirhams as mehr. Scattered efforts, such as by the Muslim Personal Law Board and the Fiqh Academy, to prepare standardized nikahnamas that provide for Muslim women’s rights, are now being made, but these still remain far from adequate to address the magnitude of the problem.

Women in the Contemporary Society

The western propaganda bombardment is fast catching up the outlook of today’s youth through films, magazines, satellite broadcast etc. This destroys the moral and intellectual growth of the young generation. Unfortunately the weapon used for this destruction is once again the womenfolk. The process of educating Muslim women is a dilemma in the contemporary society. It is very important that Muslim women be educated and made aware of various realities since they are the only class of women capable of challenging the influence of western propaganda. Prophet (Pbuh) said, "Acquisition of knowledge is a duty of all Muslims". A society whose women are sufficiently intellectually developed and morally and spiritually sound will develop fast in attaining happiness. But a community consisting of ignorant and restricted women will continue to move backward until it is left behind by other communities. Muslim women have to be realistic. They must get out of the theological strangle. The modern woman is a changed creature. She is not the slave of yester years however comfortably she might have been looked after nor is she happy to be a useless ornamental doll. She wants to be useful, resourceful and assertive.

Most of the Muslims, ignorant of Islamic principles degrade the position of women, holding her intellectually deficient and assigning her a position equal to that of animals. It is a pity that most families give greater attention to their sons than their daughters. The so called Muslim woman is dormant. They will remain so as long as they are victims of our ambitious ulema. The ulema have wasted the energies of our women in the name of religion, morality, integrity, chastity and feminine virtue. They have paralysed our women by ‘don’ts’ - don’t go there, don’t do this, don’t write, don’t read, don’t ask, don’t, don’t, don’t...

It is highly regrettable that women are a not ready to consider the fact that though they are weaker sex, as a matter of biology, they are the strength of the stronger sex. Therein lies the secret of women’s power.

TOP