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JULY 2000

MONTHLY    *    Vol 14-07 No:163    *   JULY 2000 / RABI-UL-THANI 1421H
  email: editor@islamicvoice.com

MUSLIM WOMEN AND THE LAW


Is it Violative of 1986 Act?
Bigamy and Incest

Maintenance Judgement

Is it Violative of 1986 Act?

By A Staff Writer

Calcutta: The Calcutta High court judgement extending the iddat period for maintenance from three months to “Till the woman remarries” has raised questions if the Muslim Women’s Act 1986 can be “Liberally” interpreted to extend a specified term.

Adopting a ‘generous interpretation’ of the provisions of Muslim Women (Protection of Rights on Divorce) Act 1986, Justice Basudev Panigrahi of Calcutta High Court extended the expression ‘Iddah Period’ in the Act till ‘the time the divorced Muslim Women remarries.’ Justice Panigrahi gave this verdict while hearing revisional petition of a divorced woman, Shakila Parveen of north Calcutta.

Perveen (28), after being divorced by her husband Haidar Ali in 1993, had filed a case in the lower court of Sealdah seeking maintenance and allowances.

Talking to Islamic Voice, Shakila, appeared quite ecstatic. A resident of Narkaldanga, in Calcutta, Shakila was married to Haider in 1991. “ One fine morning in 1993, he ( my husband) came to me and pronounced talaq, talaq and talaq. I was shattered. For once, I couldn’t believe that he had actually deserted me. I ran from pillar to post to get justice in my favour, but to no avail. Every body expressed his helplessness in my matter until I came across Manas Barman who assured me of all helps and filed a case in Sealdah court on my behalf,” a penury stricken Shakila narrated.

The lower court had granted maintenance allowances of Rs. 800 for a customary three menstrual periods or Iddah and told Haider to pay another Rs. 2500 to Shakila as Dain Mehr. Seemingly dissatisfied with the judgement, Shakila moved to High Court praying for its revision.

Delivering his ruling in the matter, Justice Panigrahi, observed, “ The Trial court of Sealdah had wrongly interpreted the provisions of section 3 1(a) of the Muslim Women (Protection of Rights on Divorce) Act 1986. The expressions that a reasonable and fair provision and maintenance to be made and paid to the divorced wife by her former husband within Iddah Period should be interpreted liberally.”

Shakila says the victory in her legal battle against her former husband has now boosted the low morale of similar divorced women of her locality. This correspondent interacted with a dozen of divorced ladies who have been leading miserable life after being deserted by their husbands.

Noorjahan’s plight too is not different from that of Shakila. About five years ago, her husband too had divorced her by simply pronouncing three talaqs. Now even Noorjahan is determined to initiate a legal battle against her former husband. Known as Kasai Basti, this locality has a population of about 20,000 people with a 60 square feet area playing host to more than ten people. The hut where Shakila stays with her brother and his five other kids is barely a 50 sq ft hut. Shakila is critical of the community leaders including imams who have voiced their resentments against the ruling. “ Where were these saviours of religion when I was forced to lead a miserable life. No one ever came to my rescue and tell my ex-husband why had he deserted me for no fault of mine,” Shakila questioned.

Calcutta High Court’s ruling may have given the much needed respite to Shakila and her family, the issue is unlikely to die down soon in near future. Muslim Mahila Organisation representing the Muslim standpoint to Karnataka Governor V.S.Ramadevi.

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Two Case Studies from a Muslim Mohalla

Bigamy and Incest

Prof. Mumtaz Ali Khan

Marriage is a major social institution which recognizes the relationship between a man and a woman in all societies. It has to follow certain dos and don’ts. Social norms are very rigid and prohibitive. Whimsical selection of partners in violation of social norms clothed in legal prescriptions is not permitted and tolerated. Islam has a well-defined and structured marriage system. In fact, its marriage laws are most progressive and healthy. It could be that in practice many tricks of trade are played.

Marriage in Islam takes care of both endogamous and exogamous entries. But whom a person shall not take in marriage has been mad extremely clear. For instance, a person cannot marry his wife’s sister without divorcing his wife. There are some instances of such marriages in violation of Islamic code of conduct. Secondly, bigamous marriages are not allowed. Neither a man can marry a woman who has her husband intact nor a married woman can marry another person without a khula from her husband. But there are some instances where married women have taken second husband without divorcing their husbands. Two case studies are presented here. It is desirable to stress that I am not making a generalization. It could be that such marriages are exceptional. But the gravity of the situation is so important that even a few cases would need to be examined as quite a few other issues are involved and consequences are most harmful.

Case-study of Zarin Taj:

Zarin Taj is just 23 years, having got married nine years ago. Her husband, Chand Pasha, deserted her four years ago. His whereabouts are not known. He goes on changing his place of residence from place to place. He was a cook in a big hotel. Since he is a good cook, he is always in demand. But he would not tell his wife as to how much he was earning. Nor would he give her anything. She had to undergo mental torture and financial bankruptcy. She had to struggle to earn some for just survival. Working as a housemaid, now she earns Rs 500 a month. She came into contact with one Noor Pasha who was already married to Shakira. He had no children from her. Slowly, intimacy developed between Pasha and Zarin Taj. She told him that she was already married and had three children from her husband. Since the husband was not traceable, Zarin decided to forget him as dead. She was ready to marry Pasha who promised her that he would keep her happy and there would be no problem from his first wife? Though initially Zarina was reluctant to enter into marital relationship, she finally agreed.

Zarina and the first wife of Pasha, Shakira, were good friends, visiting each other’s house frequently. The second marriage was kept secret. But the first wife came to know about the Nikah papers later on and since then her relationship with Zarina became strained. Her informal relationship with Pasha became a talk of the town. She was scandalized and therefore she decided to marry Pasha. She went to some mosque and handed over a letter to the Imam asking him to annul her marriage. She was asked to meet him after some time. What happened later on she does not know. She thinks that her marriage is annulled as she gave a letter for Khula. She does not know that it is her husband who should receive Khula proposal and endorse it. She does not know that her marriage to Pasha is illegal and her physical relationship is immoral. Her husband is alive and her relationship with him remains on paper. She does not accept that she has two husbands at the same time.

The second major issue is the role of the Qazi who performed her Nikah with Pasha. Should not the Qazi verify certain basic antecedents? Is it only the responsibility of the Qazi to make entries into Nikahnama and pronounce the man and woman as husband and wife. It is obvious that the Qazi has totally failed. It cannot be out of ignorance. But the issue is of grave consequences as both Zarina and Pasha have committed the act of bigamy. Ignorance of law is no excuse.

II. Case-study of Shameem:

Shameem is 29, married to Nazir, an autorickshaw driver and has a son and a daughter. Shameem got married when she was just 13. She is in poor health condition. She has a sister, Nigar Sultana, 5 years younger to Shameem. Nigar too had been married. But her husband divorced her. She has a son. Nigar is very good looking. Shameem’s husband and Nigar fell in love with each other. Once Shameem witnessed their love -making, but did not take it seriously. As time passed on, the affair between the two got intensified.

Shameem used to visit hospital frequently for treatment. During one such absence, her husband married Nigar. Shameem did not know it. Her husband informed this to her when she was in hospital. Shameem was shocked and had no words. Her mother consoled her. “Nothing can be done now since the marriage is over”. Her relatives also told the same thing. Shameem was angry with her sister for deceiving her. Shameem’s husband stays away with his second wife and once in a while visits Shameem and gives her some money.

Shameem and her sister are not on talking terms. Shameem has a beautiful daughter aged 14 years. Even this girl does not talk to her aunty, now transformed into ‘step-mother’. I interviewed this girl, Heena Kausar for half an hour. She is disgusted with her father and aunty. She talks to the father whenever he comes home. Sir, I hate marriage. I hate my aunty who spoiled my mother who was so affectionately attached to her younger sister. How can my father marry my mother’s own sister? Does Islam permit this? I said, “no, not at all. It is a sin and also a crime”. The question now needs to be addressed is: “ What is the role of the Qazi? Can he just solemnize such marriages? Should not some enquiries be conducted? “Heena is right in putting such questions. The Jamaat has a big role to play. The Nikahnama should contain some questions relating to previous marriage, if any and its present status. But the man and woman should give an undertaking that this marriage does not violate Islamic rules governing marriage. The Qazi should also certify that he has made attempts to testify the marriage conditions and he is satisfied.

The two case-studies presented here should open the mind of Muslim religious and social organizations to prevent people from bringing disgrace to Islam.

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