This article is written by Aditee Arya and further updated by Adv. Devshree Dangi. It talks about the rights of Muslim women in India. It covers all the aspects of the rights of Muslim women, including their marital rights, inheritance rights, right to maintenance, right to receive mehr, and the other rights given to them under Islamic law and Indian statutes. This article also focuses on various landmark judgments that upheld the rights of Muslim women in India. 

This article has been published by Anshi Mudgal.

Introduction

Equality and justice have consistently been encircled by issues and summoned by politics and law. Women like Mernieth have been leaders of the framework since 3000 BCE, and even today, women and men together rule over innumerable individuals; however, it is difficult to find it anywhere. The situation with Muslims in India, as per the census of 2011 statistics, is different as compared to the actual position prevailing in the country at present. This gap is even more evident when compared to Muslim-majority nations or the laws regulating Muslims in India. 

A “right life” is achieved at the point at which one has rights throughout his life. Each human is brought into the world free; liberated from duties, allowed to pick their method of living, and anyone who determines the life of another person, disregarding their freedom so that they can live a good life at the expense of the other person, indeed shouldn’t merit the “Right life”.

India is a secular and sovereign nation; it welcomes people from all over the world. It purports to treat everybody with equality and dignity, so India is a diverse country. India’s religious diversity is one of the fundamental aspects of Indian identity. Hinduism, Islam, Christianity, Sikhism, Buddhism, Jainism, and many more religions prosper in its territory. This diverse belief and practice system has significantly influenced the development of the country’s culture, traditions, and society, which has made it diverse. India is a bigger Muslim-populated country, having a population of more than 182 million, which is the third largest Muslim-populated country in the world and has the largest Muslim-populated minority in the world. Out of the total number of Muslims throughout the world, India is home to 10.3% of the world’s Muslim population.

According to the census report of 2011, there are more than 84 million Muslim women in India compared to more than 88 million Muslim men; this reflects a 5% lower birth rate of females than males among Muslims.

In 2011, out of 84 million total Muslim females, only 1.7 million graduated. However, slightly over 3 million Muslim men were reported to have graduated. Furthermore, 43 million Muslim women were married, and 37 million Muslim men were married as well.

We see a blatant infringement of the rights of Muslim women not just in India, but throughout the world. If we draw a comparative analysis of Muslim laws in other nations, we will note that India provides enjoyment of personal laws and also legislative laws. Muslim women can appeal to the Indian courts to avail themselves of their legal rights and their laws. For instance, the Constitution of Egypt under Article 2 asserts Sharia as the primary source of law; this has non-negligible effects on women’s rights. These are limitations on maintenance, early legal marriage age for women, and legalised polygamy with limited regulation. This stands uniform for many other Muslim countries.

Background

The reality of Muslim women’s civil liberties in India has not been stagnant and has evolved since colonisation. The British adopted the policy of the application of separate personal laws for the different religious communities, including Muslims. This is all in a bid to promote adherence to religion, but in the process, it fostered a sort of absolute compliance to religion as law. This was the basis for what developed later, which resulted in the complexity seen today.

The new era dawned only with the independence of India in 1947. The Constitution was formulated with society’s goal of providing justice, equality and fairness to everyone, but these provisions have not been followed to their potential. But it also affirmed the existence of what it refers to as the ‘personal laws’ applicable to respective communities. This became one of the first of the major challenges of the period: how was women’s liberation to be squared with the retention of their Sharia laws?

The 1930s and 40s were considered early decades of the Muslim women’s rights movement. However, in 1939, due to the application of the Dissolution of Muslim Marriage Act, 1939, rights like maintenance, custody of the children under set conditions, and inheritance were given to them. However, the dark side of this cultural practice got exposed after a landmark judgment given in 1985 in the case of Mohd. Ahmed Khan vs. Shah Bano Begum And Ors (1985). In this case, Shah Bano, being a divorced Muslim woman, sought maintenance from her former spouse. This record received national controversy after the Supreme Court decided in its favour and affirmed her right to maintenance. The case brought out the conflict between personal laws based on religious practices, through which her claim was restrained and the constitutional provision of equality of women.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted in response to the Supreme Court’s landmark judgement in the Shah Bano case. Although this Act further extended the protective umbrella given by the Supreme Court judgment, it effectively watered it down in terms of limiting the period for maintenance for divorced Muslim women.

These issues were manifested in endeavours to follow religious practices and struggling to adjust the laws to afford equal rights for Muslim women. 

The Muslim Women (Protection of Rights on Marriage) Act 2019 banned the Triple Talaq system that allowed a husband to divorce his wife by pronouncing Talaq three times. It resolved one of the significant causes of the sufferings of Muslim women who were likely to be disconnected from their marriages without any provision. 

However, the struggle for equality is far from being accomplished for everyone because even today, various queer individuals and communities face numerous discriminations. A subject of controversy is the necessity of the Uniform Civil Code, which will presuppose that all the family and personal laws regarding marriage, divorce, inheritance, and adoption would apply across the nation to all people regardless of their religious beliefs. Some people believe that it would increase the scope of rights for women, but others believe that it might hurt Muslim personal laws and culture.

However, equal weight cannot be given to legal structures because there is always an interference of social factors or the norms of society. Many factors, such as poverty, low education standards, and mishandling of women’s rights according to the Sharia laws by the male-dominated society, hinder Muslim women from gaining legal protection.

Solutions for the path ahead are thus required to be multifaceted. Legal awareness among Muslim women and legal aid should be implemented because it empowers women. Promoting reasonable exegesis of Sharia as the source of women’s rights is one of the most effective ways of intervention from the religio-legal perspective. The picture of Muslim women’s rights in India has been a gradual struggle, gradual advancement and a continuous fight for justice. 

Statutes about the rights of Muslim women

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

This Act safeguards the financial interests of Muslim women who are divorced under Sharia law in India. This ensures that they receive their entitled amount from their former husbands in the form of maintenance for a certain period and the dowry or mahr promised to them by their husbands. 

Right to maintenance

Section 3(1)(a): This provision guarantees a divorced woman the right to claim reasonable and fair maintenance from her former husband during the iddat period. A divorced Muslim woman ought to be resourceful and be able to be provided with reasonable and fair provision and maintenance out of the income of the former husband within the Iddat period. A period of three lunar months is required before the woman can remarry; this is referred to as Iddat. It also provides for the woman to be financially taken care of during this time.  

Interpreting this Act, the Supreme Court in the case of Danial Latifi & Anr vs. Union of India (2001) has held that a Muslim husband who intends to divorce his wife can only do so, provided he makes such reasonable and fair provisions for her, for her maintenance and the upbringing of their children, if any, beyond the period of Iddat. The Court stressed that the provision for the maintenance should be reasonable and fair so that the woman can be financially secure once the divorce is final.

Right to recover properties.

Section 3(1)(c): A divorced woman can file to retrieve any properties offered to her in the past, during, or after the marriage, regardless of who the donor is; it may be her relatives, friends, the husband, or the husband’s relatives. This ensures that she can keep her things and anything that has been given to her or that she provided in the dowry.  

Entitlement for the maintenance of children

Section 3(1)(b): Under Muslim law, a divorced woman has rights over her minor children and can claim maintenance from the ex-husband till the child reaches the age of two years. This provision safeguards the father’s financial contribution towards the upbringing of the kids in their tender ages. In the case of Iqbal Bano vs. State of UP (2007), the Supreme Court added that this provision clearly states that a Muslim divorced woman could claim maintenance for herself as well as her children, thereby reiterating the father’s responsibility of maintaining his children.

Right to maintenance from Wakf Board

Section 4: If a divorced woman is unable to support herself after the Iddat period, she can approach the Wakf Board as defined under the Wakf Act 1954 of the area she resides in to claim the maintenance. If the woman is living a life alone and she doesn’t have her family or relatives around to look after her needs and requirements, or if she is unable to support herself, she can seek financial assistance from the state Waqf board.  In the Supreme Court case of Noor Saba Khatoon vs. Mohammad Quasim (1997), the court laid stress on the well-being of the children and allowed the claim for maintenance from the Wakf Board on behalf of the children for their maintenance. The major reason and objective of this Act was also one of its drawbacks: this Act limited the settlement of the subsistence living amount by her spouse until iddat period and after that either by herself, her relatives or the state Waqf board but later in K Zunnaiddin vs. Ameena Begam (1997), the court adhered that the word within in Section 3(1)(a) did not mean that the husband will have to pay only for the time between the time in iddat but is liable to pay the wife until she remarries. So, if the wife does not marry again for her whole life, the husband will have to pay maintenance to her for the rest of her life. 

The Dissolution of Muslim Marriages Act, 1939

This Act empowers Muslim women in India to obtain a rightful divorce under Sharia law. This ensures that Muslim women are enlightened on their rights in terms of filing for divorce.

Right to divorce for absence

Section 2(i): A Muslim wife has the right to dissolve the marriage if the whereabouts of the husband are unknown for not less than four years.

Right in divorce for desertion

Section 2(ii): A Muslim woman may seek a decree of judicial separation, where her husband fails in the discharge of his pecuniary obligations towards her for a continuous period of two years. This ground safeguards women against desertion without any provision being made for them.

Right to divorce in the case of imprisonment.

Section 2(iii): A woman can seek divorce if her husband has been sentenced to imprisonment for seven years or more. This provision enables a wife to have a new start if her husband is imprisoned for an extended period, affecting her life.

Right to divorce for failure to perform the marital obligations

Section 2(iv): A wife can approach the court seeking a divorce on the basis that her husband fails to perform marital obligations for three years without any justifiable cause. This provision shields women from falling prey to husbands who neglect their responsibilities towards them.

The wife’s right to divorce for impotence of the husband

Section 2(v): If the husband was physically incapable of cohabiting at the time of marriage and remains impotent, the woman can approach the court to seek dissolution of the marriage. This exempts a woman from being trapped in a marriage where she cannot indulge in sexual relations with her husband because of his impotence.

The right to divorce on the grounds of cruelty

Section 2(viii): According to this, a woman has the right to seek dissolution if her husband treats her with cruelty. Cruelty includes physical abuse, emotional torment, financial deprivation, religious persecution, and neglect of marital duties. This provision entails broad coverage for most of the kinds of abuses and neglect that could be inflicted on any vulnerable group.

The Muslim Women (Protection of Rights on Marriage), 2019

The Act makes all assertions of talaq, whether made in written or electronic form, void. Talaq-ul-biddat refers to the practice under Muslim personal laws where the declaration of the word ‘talaq’ threefold in a single pronouncement by a Muslim male. The Act makes revelation of talaq a cognizable offence, carrying a long of three years’ detention with a fine.

Right against instant triple talaq

Section 3: Talaq for any reason by words, mutual or expressed by a Muslim husband upon his wife or in any other manner whatsoever, in writing or through electronic means shall not be lawful. This provision criminalises the act of instant triple Talaq (Talaq-e-bidat), which left the women unprotected and immediately divorced. In the Shayara Bano vs. Union of India (2017), the Supreme Court of India declared triple Talaq unconstitutional instantaneously by approving the 2019 Act. The judgment also focused on the necessity for women to keep away from arbitrate and unilateral divorce procedures.

Right to maintenance

Section 5: A Muslim woman who has Talaq pronounced on her shall have the right to demand subsistence allowance from her husband for herself and her dependent children. The weekly allowance of the child is to be decided by the magistrate, as the legislation does not specify the amount to be issued. To this end, this provision seeks to provide means of sustenance to women and their children after a divorce has been granted. In the case of Shamim Ara vs. State of UP (2002), the Supreme Court held that the Talaq has to be for reasons and attempts at the slightest reconciliation have to be made before pronouncing Talaq. However, even though this case predates the Act, it contributed to the maintenance provisions by stressing the need to provide money for divorced women.

Right to custody of minor children of both parents

Section 6: A Muslim woman on whom Talaq has been declared shall also have the right to seek child custody in case the children are minors. The type of custody will have to be decided by the magistrate, but the well-being of the children will always come first.

Muslim personal laws in India

All Indian Muslims carry the freedom to choose their laws, like the Shariat Application Act, 1937. Some statutes deal with succession, divorce, and marriage among Muslims. Below are the discussed statutes:

Marriage and divorce among Muslims

In India, marriage among Muslims is a common agreement. Marriage among the Muslims of India is regulated by both Islamic law and Indian statutes. Although it is contractual, this idea is based on marital happiness and social welfare at its core. The marriage ceremonies are conducted by a Qazi, an Islamic legal scholar, and accompanied by a sum called ‘Mehr’, a suitable gift from the groom to the bride. Mehr or mahr must be paid by the groom to the bride in an Islamic matrimonial contract. It acts as a symbol of consideration and security to show respect to the wife. Mehr can be a fixed amount or can be left undecided in the marriage contract (Nikahnama).

Right of a wife to mehr

A wife enjoys a statutory right to Mehr once she is married. It belongs solely to her, and she can decide to claim it in its entirety or part, at any time during the marriage or after a divorce. One of the conditions stipulated in the marriage contract is the Mehr, and if the husband refuses or fails to pay it, then the wife has the right to file for divorce. This right provides financial security to the wife and allows her to seek a fair share of property even after divorce if necessary.

On the contrary, divorce under Muslim law is based on two legal systems that include the Sharia law and the Dissolution of Muslim Marriages Act, 1939. The husband can articulate talaq to his better half or a third individual by understanding, called Talaq-e-tafweez. The Muslim man does not need to refer to an explanation behind separation. According to the Islamic law of talaq, the correct procedure requires three months of waiting called ‘iddat’ to try and come back together before the divorce is final. This reform was meant to replace the issues associated with traditional talaq, which was instant and proven to be arbitrary. 

Right to seek divorce in Muslim law

As for divorce, women have greatly acquired legal authority to initiate it. They can ask for khula and pay off the husband to get an annulment from the marriage. Nevertheless, they can approach a court for a dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939, on grounds of cruelty, desertion, failure in providing maintenance or being involved in polygamy even when adhering to strict procedures; they should secure prior permission from any existing wives and ensure that they are well looked after and justice must be served among them.  

Khula (dissolution by wife’s offer)

Khula means that the wife can initiate the process of divorce; she will offer some valuable items in exchange for her freedom from the marriage tie. This could be in cash, return of Mehr or refusal of any further rights in the marital property. Although reasons are not a necessity for khula, a woman can ask for khula due to an unhappy marriage, cruelty, neglect or any other ground. Factually, any fault on the part of the husband is immaterial. Khula usually takes place in the form of a discussion between the wife and the husband with the intervention of a Qazi, who is an Islamic legal expert. After the compensation has been negotiated and accepted by the husband, the divorce is said to have taken place. Khula enables women to initiate the process of separation from an unhappy marriage without the husband’s cooperation. However, the responsibility lying with one party to provide compensation can be a disadvantage, particularly for financially vulnerable women.

Mubarat (dissolution by mutual consent)

Mubarat is a process where divorce is sought by both parties. It is a mutual consent of both the husband and the wife. In contrast to Khula, there is no need for the wife’s compensation in any kind or any reciprocation at all. Both partners seek an end to the marriage. Like Khula, Mubarat also allows the intervention of a Qazi or the lawyers who ensure fair negotiation and that the documentation is complete. Mubarat brings honour to the couple because it provides a method of divorce when the husband and wife cannot continue living together. It helps to eliminate the situation when one of the partners is forced to demand a divorce, which does not contribute to the easy parting of the two individuals.

Due to the recent legal developments on women’s rights, the status and issues are somewhat better off, but debates and talks still go around on the magnanimity of having the legal provisions. Other social changes that are related in this case are those that seek to embrace gender equality and women’s rights as well as to enhance equity in society.

All these rights exist within and are complemented by the judicial system. In other words, women are still able to file for divorce through the courts using different grounds such as cruelty, desertion, or failure in the manner prescribed by the legislative statutes. These rights again may not be applied uniformly by the Islamic parties following different schools of Islamic jurisprudence. These are human rights that women should be able to exercise, and this requires social reforms such as for women to be financially empowered and have equal rights with men.

Inheritance

The inheritance rights of Muslim women are different from women from other religions in India. Islamic law also determines how Muslim women should get their share of inheritance. Thus, the Muslim Personal Law (Shariat) (1937) holds tremendous importance in deciding the inheritance rights of women of India. This Act serves as the legal basis for the implementation of Muslim personal law that pertains to personal matters of the Muslims in India, such as inheritance.

Before this Act, there were some issues concerning unequal implementation of the inheritance laws for Muslim women. To some extent, the Shariat Act also served the purpose of introducing the principles based on Islamic law, which helped avoid confusion in the provision of legal provisions. Thus, it forms a better understanding of the Muslim families in India to understand the existing laws of inheritance. But it is crucial to note that the Shariat Act per se does not prescribe particular shares to the heirs. It furnishes the legal foundation for applying the Sharia of Islamic inheritance to ascertain these shares.

Specific shares and considerations

While Muslim law grants women inheritance rights, the specific share they receive depends upon several factors:

• Relationship with the deceased: A daughter benefits differently than a wife or a sister since their relationship with the deceased is different.
• Presence of other heirs: The total of shares is split among all the candidates for the inheritance. The existence of other heirs, like the sons or parents, will influence the quantity of shares that a Muslim woman will receive.

Here are some examples of inheritance shares under Islamic law:

• Daughters: A daughter receives an equal proportion of half a son’s share from her father’s inheritance.
• Widows: A widow without children gets one-fourth share of the property of her deceased husband. A woman who remains a widow with children or grandchildren will be entitled to a one-eighth share of the husband’s property.

Special conditions of wills in Muslim inheritance law

Key points regarding wills (wasiyat) in Muslim inheritance rules:

• Limited bequest via will: Muslims are allowed to make a will, but only one-third of their property can be disposed of through will. The rest of the two-thirds are inherited under the fixed inheritance shares recognised by Sharia law.
• Special Marriage Act and wills: When a Muslim person gets married under the Special Marriage Act, 1954, the distribution of the property is governed by the Indian Succession Act, 1925 and not by Sharia. This enables more independence to be given during the testament, which can be more than the one-third prescribed legal limit. 
• Attempted suicide and wills: A will drafted by a Muslim who attempts to commit suicide is null and void. However, regarding this principle, Shia and Sunni have different views.
• Conversion from Islam: Notably, the will of a Muslim continues to be effective even when the person changes his religion from Islam, provided that the person was a Muslim while declaring a will. This creates specific opportunities for making decisions on their property upon their demise.

Maintenance under the Code of Criminal Procedure Act

The concept of maintenance for a divorced Muslim woman in India remains an area of contestation and is fraught with several complications that arise while negotiating between a secular legal framework, the Code of Criminal Procedure, 1973, and Muslim personal law. Even though the relief has been provided through the Muslim Women (Protection of Rights on Divorce) Act, 1986, the CrPC provides broader relief through Section 125. Recently, on 1st July, 2024, the new criminal laws were enforced in India. The CrPC is replaced with the new criminal procedure law, ‘Bhartiya Nagarik Suraksha Sanhita (BNSS)’. The provisions of maintenance provided under Section 125 of CrPC are now available under Section 144 of the new Act. However, the provisions for maintenance under Section 144 of BNSS are similar to the previous provisions provided under CrPC. 

Section 125 CrPC and its applicability

Section 125 of the CrPC is a secular law. It enables a wife, whether separated, neglected, abandoned, or even a divorced woman, provided that she has not remarried, to apply to the court for interim maintenance for herself and her children. This right is neither religion-based nor has any relation with the place of birth or residence of a person living in India. This Section allows every woman to claim maintenance from her husband. A husband who has sufficient means and who refuses to take care of his wife or maintain her, the courts make it mandatory for such husbands to maintain their wives with monthly payments.

Initially, there was uncertainty about whether divorced Muslim women could seek financial support under Section 125 of the CrPC. The Muslim Women (Protection of Rights on Divorce) Act, 1986, also outlines provisions concerning maintenance during the iddat period and even after this time. However, in Shabana Bano vs. Imran Khan (2009), the Supreme Court ruled that a divorced Muslim woman lawfully can seek maintenance under both the 1986 Act and the CrPC. This established a crucial principle, that a woman claiming a right under a secular law like CrPC has her rights under Muslim personal law not wiped out. 

This precedent has been followed by lower courts. The Allahabad High Court in Arshiya Rizvi vs. State of U.P. (2022) has reaffirmed the legal proposition that so long as the woman claiming maintenance under Section 125 CrPC is unmarried, it is immaterial whether the new Act of 1986 applies or not. Thus, there is an emphasis on the continuous financial provision for a woman. The present legal position is still fairly dynamic at this point. 

In the case of Mohd Abdul Samad vs. the State of Telangana (2024), the Supreme Court has ruled that Muslim women can claim maintenance under Section 125 of CrPC who are illegally divorced through triple talaq. It is a significant verdict given by the Supreme Court, which provides additional financial support to Muslim women who may have been left helpless due to divorce. However, it is crucial to note that this right is provided in addition to the remedy granted under the Muslim Women (Protection of Rights on Marriage) Act 2019.

Some points to remember: 

• The amount of maintenance granted under Section 125 of CrPC depends on the ability of the husband to pay and the requirements of the wife that are reasonable. 
• The legal procedure of filing for maintenance under Section 125 CrPC is comparatively easier than some of the provisions of the personal laws. 

The right of a divorced Muslim woman to maintain is therefore still emerging. Section 125 of CrPC has a wider ambit as compared to the Muslim Women (Protection of Rights on Divorce) Act, 1986, because the former offers rights in general while the latter offers specific rights. Judicial decisions over the past years have been inclined towards supporting a woman’s right to have recourse to the provisions in the two Sections. Nonetheless, the ability of the Supreme Court to rule in the case might bring a shift in the legal disposition. This is a continuous process that underlines the importance of protecting the financial rights of divorced Muslim women in India. 

Polygamy in India 

Polygamy has been illegal in India since 1956, with an exception for Muslims. Goa, however, has a unique situation where polygamy is not permitted for Muslims under specific customary law conditions. Sections 494 and 495 of the Indian Penal Code, 1860, make polygamy a crime; also, this is a ground for divorce for those who married under the Hindu Marriage Act, as such marriages are null and void. Although in personal laws, it is permissible for a Muslim man to marry more than one woman, polygamy is not practised widely because of socio-economic issues and changing trends. However, its existence has consequences linked with certain inequalities of gender in marriages. 

Muslims in India can marry up to four women, based on the Muslim Personal Law (Shariah Application) Act of 1937. It remains a part of the religious and legal regulation of Muslims’ personal lives in India. 

But, in the recent case of Khursheed Ahmad Khan vs. State of Uttar Pradesh (2015), the Supreme Court of India upheld that while indeed Muslim personal law allows a man to marry up to four women, the act is not sacred. This case occurred when a government employee married for the second time, while the first marriage was valid. The court also asserted that polygamy is not a requirement for a religious duty and can, therefore, not be considered under the freedom of conscience. 

It has been witnessed that there has been a severe reduction in writ petitions to challenge the legality of polygamy under the Muslim Personal Law. These petitions claim that legalising polygamy as a matter of right infringes Articles 14 and 15 of the Indian Constitution, which states that all citizens are equal before the law and shall not be discriminated against for reasons of religion, race, caste, sex, colour, or place of birth in India. The petitioners in the above-mentioned case asserted that since Muslim Personal Law allows polygamy, which violates the Constitution and should be declared illegal.

In Islam, polygamy enables a man to marry more than one woman, which has implications of inequality and vulnerability for the existing wives. These lead to such problems as pressure on the first wife, both emotionally and financially, while other wives may experience problems of insecurity and instability. Based on the case of Sameena Begum vs. Union of India (2018), Muslim women continue to resist the practice of polygamy, claiming that it demeans them. They demand a total prohibition, which can be achieved possibly through the implementation of a Uniform Civil Code whereby the same laws applicable to all citizens of India, irrespective of religion, will be prescribed. 

However, the matter is not devoid of its legal controversies. Those who are against such a ban are likely to say that they are denying Muslims a right to practise polygamy, which the religion allows under certain circumstances. Thus, achieving an optimisation of the mentioned factors means that the strategy should be more balanced rather than extreme. It is appropriate that free discussion among Muslim scholars, Islamic jurists, and feminist campaigners exists. Thus, raising awareness of Muslim people about women’s rights in terms of Islamic sharia on one hand, and on the other hand, advocating for Muslim women to fight for their rights are crucial steps taken forward. A change in Muslim personal laws is challenging. The solution must be sensitive enough to resolve gender disparity but at the same time recognise cultural sensitivity by respecting religious views. 

Finally, the dilemma is to find a way to mainstream respect for religious freedom while incorporating the roles and concerns of Muslim women in India. It has to be carried out in a sensitive manner that accounts for the dispositions of everyone concerned and sets the stage for religious liberty and the emancipation of gender minorities in the future. 

Provisions of the Indian Constitution 

Religious freedom and equality of women in India have been partially made possible through the Indian Constitution. Although these provisions of the Constitution are gender-neutral, they create a strong base to uphold the rights of women. The Indian Constitution, which upholds diversity and inclusivity in the country, equally protects the rights of women as well as religious freedom. Articles 14, 15, as well as Article 16, lay down the principles of non-discrimination against women. On the other hand, Article 25 guarantees freedom of religion. Realising the multicultural nature of Indian society, the Constitution in Article 30 gives minorities the freedom to establish and administer educational institutions. This clause, in particular, points to the protection of minorities’ rights within a constitution, yet, it also helps support the understanding of the constitution as a rather adaptable framework that can address the needs of the united citizens concerning their cultures and traditions, therefore contributing to the establishment of peace between those groups and communities. Here’s a detailed breakdown of some key Articles:

Preamble

The Preamble to the Indian Constitution provides the principles on which the Indian Constitution has been created. At first, it proclaimed India as the ‘Sovereign Democratic Republic’. However, a significant turning point emerged when in 1976 the 42nd Amendment was enforced, which added the words ‘socialist’ and ‘secular’ and became “Sovereign Socialist Secular Democratic Republic,” replacing the “Sovereign Democratic Republic”. This amendment thus highlighted the Indian commitment to social and economic justice and its secularism. When defining India as secular, the Constitution stated that all religions must be treated equally, and the state couldn’t act in support of only one religion. 

Article 25

This provision gives freedom of speech and the right to exercise one’s religion by practising and propagating one’s religion and beliefs. This provision addresses the general values of secularism adequately to allow individuals to practise the freedom of religion and belief that they prefer. But, this liberty is held under certain regulations that encompass public order, morality, and health. Furthermore, it guarantees freedom to manage religious affairs and entities often referred to as the ‘three P’s’. This means the right to proclaim and recognise one’s religion (to profess), to hold religious meetings and conduct religious rites and services without interference (to practice), and to persuade others about those beliefs and teach them (to propagate). 

Consequently, the Preamble and Article 25 help to define India as a secular state in which no citizen can be deprived of their freedom to pursue their religious practices and where the state cannot support any of the religious doctrines while being a neutral presiding over all of them.

The Constitution provides a strong foundation for ensuring women’s equality through several Articles:

Article 14  

This Article guarantees equality before the law or the equal protection of the laws and ensures that no person shall be discriminated against. It guarantees equal protection for women as well as men in all aspects.

Article 15 

This Article ensures no discrimination on the grounds of religion, race, caste, sex, or place of birth. The following sub-clauses of this Article specifically contribute to the formulation of gender equality:

• Article 15(1): The Indian Constitution provides equality to all citizens without discrimination on the grounds of religion, race, caste, sex, or place of birth. This implies that all people have an equivalent opportunity to access public amenities and receive services based on these aspects. In particular, the Constitution provides for everyone, including women, the right to access, among other things, shops, restaurants, hotels, and establishments providing entertainment services within the territory accessible to the public. 
• Article 15(3): This provision enables the state to establish a special regime for women and bring them up to the desired status socially and educationally. This clause mainly serves the purpose of affirmative action to empower the deprived segment of society, especially women. Essentially, Article 15(1) does not allow discrimination based on religion, race, caste, sex, or place of birth. Thus, Article 15(3) is an exception to this general prohibition. It enables the State to provide for special protection of women and children. The purpose is to allow equal opportunities and equal chances for those who have been historically disadvantaged. This has led to reservation policies in education and in government jobs for women. 

In Independent Thought vs. Union of India (2017), the Supreme Court focused on the analysis of Exception 2 to Section 375 of the Indian Penal Code, 1860 under which intercourse with a wife between 15-18 years was not considered rape. Independent Thought, an Indian NGO, claimed that this exception was an infringement of the rights of the minor girls under Articles 14, 15, and 21. On this point, the Court said that this exception was unconstitutional and brought the IPC into line with the Protection of Children from Sexual Offences (POCSO) Act, 2012. Thus, referring to Article 15(3) of the Indian Constitution, which states that the state may make provisions for women and children, the judgment focuses on the rights and protection of minor girls from sexual exploitation.

Article 16

This Article ensures equal rights to public employment for all citizens without discriminating against the sex of the person. This allows women an equal opportunity to apply for government positions and be considered for the positions.

Article 21

This fundamental right of an individual covers a woman’s right to live and be free. It enables her to make decisions concerning her life, schooling, employment, and marriage (to some extent). The religious dignity and rights of Muslim women have been protected and enforced through Article 21 of the Indian Constitution. The judiciary, through assessing the right to life as encompassing the right to live with dignity, has offered a solid legal footing to combat discriminatory policies that are inclined in the personal laws. 

Landmark judgements such as Mohd. Ahmed Khan vs. Shah Bano Begum And Ors (1985), which have given right to maintenance to Muslim women after dissolution of marriage and Shayara Bano vs. Union of India (2017) judgement for declaring triple talaq unconstitutional are enough to demonstrate the role that our courts have been playing to give the best possible rights to the Muslim women just like other citizens of the country. There are various landmark judgments through which the Supreme Court has protected the rights of Muslim women. These decisions have raised the status of Muslim women in society and have also revolutionised the change in the understanding of personal laws.

Nevertheless, the social practice of child marriages remains a major concern as far as the attainment of women’s independence in matters concerning life partners is concerned. The issue of child marriage is still prevalent and negatively affects women’s self-sufficiency and health. It denies the girl an education, health, and a choice in life. But the Kerala High Court in Moidutty Musliyar vs. Sub Inspector Vadakkencherry Police Station (2017) clearly stated that the Prohibition of Child Marriage Act, 2006 has the effect of rendering personal laws, including Muslim personal law, inapplicable. This historical ruling settles the matter that the status and protection awarded to children under Indian law do not hinge upon religious traditions and prohibits the child marriage of any young girl, no matter the religion she belongs to. 

Additional provisions

Article 39(d): This provision deals with the Directive Principle of State Policy (DPSP), which requires the State to provide equal remuneration for equal work done under the same conditions, irrespective of sex/ caste/ religion. This helps in achieving economic status for women. 

Article 42: This provision under the Directive Principle of State Policy directs the State to take legislative steps to ensure safe and decent working conditions and maternity protection measures for women. Thus, the welfare of women is upheld in the workplace. 

Article 51(A)(e): This provision empowers citizens to abide by the provisions of the state to maintain the unity and integrity of India and foster the spirit of fraternity and brotherhood amongst all people of India regardless of their religious, linguistic, regional or sectional affiliations; also to abstain from practices that are prejudicial to maintaining the dignity of women. This fundamental duty serves as the principle that defines the responsibility of every citizen to build a society that empowers women and allows them to find their rightful place within the society without being subjected to discrimination or oppression. 

Right to education

The Constitution mandates under Article 21A for the State to provide free and compulsory education to children up to the age of 14.  This also ensures that all women attain education and achieve economic independence.

Educational status and gender inequality of Muslim women 

If we talk about India and especially about Indian Muslims, we should go through the education system and trends in Jammu and Kashmir. J&K’s social, monetary, and political conditions have expanded sex differences in the locale, with men ruling its financial and political procedures. Patriarchal culture, throughout the years, kept many women at home to do family chores, especially in the rural setting where they do not have adequate education and training. As indicated by a 2011 census, the male education rate in J&K was 68.74 percent; education among women was 58.01 percent. 

The female secondary school dropout rate is higher than the male rate. Literacy rates in Jammu and Kashmir reveal a significant gender gap, where one in three of the adult women in the state are illiterate as compared with one in five of the adult men in the state. According to Census 2011, the situation as indicated by the literacy and marriage rates among the Muslim women of India is a grim one. The literacy level and, to some extent, school enrolment rates indicate a very high level of inequality between the sexes: a large proportion of girls do not even complete their secondary education. This gender gap is further widened by factors such as early marriage and childhood marriage, where most of the victims are Muslim girls. The early marrying of girls results in the dropping out of school for the female child, thereby reducing her stakeholders’ value and increasing poverty and dependence. 

As we note, we see that a lesser number of girls are educated than boys, which is a fundamental right of a child, and every parent must give education to children up to at least 16 years of age, but we see discrimination and infringement of equality rights towards girls. These problems are linked as they affect the social, economic, and health lives of Muslim women and exclude them from enjoying an optimal quality of life in society. The analysis of the marriage patterns of Muslims in India demonstrated a highly alarming level of early marriage, especially among females. Few Muslim girls are forced into marriage, and many of the marriages are contracted with offenders still below the required legal age of marriage. 

This has remained a preserve of many young women and hurts their lives. These differences in literacy rates are directly affecting their physical, mental, as well as emotional health. This vision can only be achieved if further serious attention is paid to ending child marriage by coming up with a package of interventions aimed at preventing child marriage due to poverty, gender inequality, and other cultural norms that perpetuate the violation of girls’ rights. 

Landmark judgements

Indian courts have put much effort into improving the conditions of Muslim women in India. The following are the important judicial decisions taken by the Indian courts.

Mohammed Ahmed vs. Shah Bano and Anr. (1985)

Facts

The case of Mohammed Ahmed v. Shah Bano and Anr. (1985) is a landmark decision that significantly transformed the status of a divorced wife and her former husband regarding the right to maintenance after divorce. The wife sought maintenance under Section 125 of CrPC, and on the other hand, the husband reiterated that he was no longer bound to support the wife after getting a divorce.

Issues

The scope of application of Section 125 of the Code of Criminal Procedure, wherein the Muslim woman seeks maintenance from the husband after divorce.

Judgment

The bench headed by Justice Chandrachud delivered a judgment in favour of Shah Bano, the petitioner. Mehr is the amount of money the husband pays to his wife at the time of marriage; that money belongs to the wife only. The Supreme Court held that the wife was eligible to get maintenance under the provisions of the Code of Criminal Procedure, which is a secular law. Thus, the provisions under Section 125 of the Code are not in conflict with the norms of the Muslim personal law on the aspect of the Muslim husband’s liability to provide maintenance to a divorced wife incapable of supporting herself. This case was a fight for Muslim women’s rights in India and against the male-gender-biased Muslim personal laws. The Supreme Court helped Muslim women fight for their rightful claim over maintenance.

Narunnisa vs. Sheikh Abdul Hamid (1987) 

Facts

In the case of Narunnisa vs. Shek Abdul Hamid (1987), a will was prepared by Shaik Abdul Ghani, where he bequeathed more than one-third to his son. The rest of the heirs, which included the daughters, would lose more in percentage than what they would have received without the will being prepared.

Issues

• If the daughters have allowed the father to establish his will, it is lawful for it to be taken as implied consent.
• Whether the bequest of more than one-third of the estate to an heir was valid under Hanafi Law without the consent of other heirs.

Judgement

This stance was affirmed by the Karnataka High Court, which noted the need to protect Muslim women’s right of inheritance. Thus, the court distinguished a daughter’s silence to mean endorsement of a will that violates the Islamic law under inheritance. The Karnataka High Court duly considered these points and issued a ruling that provided the Muslim women a reasonable chance to claim their rightful share of the inherited property. This means that even if a daughter does not challenge a will, especially where she has been disinherited, she has the right to challenge the will at a later date.

Danial Latifi and Anr vs. Union of India (2001)

Facts

The case of Danial Latifi and another vs. Union of India(2001) is concerned with a petition to set aside the Muslim Women (Protection of Rights on Divorce) Act, 1986, that restricted a Muslim man’s duty to support his divorced wife till the period of iddat. It emerged due to the conflict between this Act and Section 125 of the Code of Criminal Procedure that enabled divorced women, irrespective of their religion, to claim maintenance from their former husbands.

Issues

Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 contradicts the provisions under the Indian Constitution, which states the principle of equality before the law.

Judgment

The Act has recently been affirmed by the Supreme Court regarding its constitutional status, where it struck down the constitutional challenges to the Muslim Women (Protection of Rights on Divorce) Act, 1986. Overall, the court concluded that a Muslim husband must provide adequate and equitable financial support to his divorced wife, both for her present needs and future security. All these provisions have to be made within the iddat period. Thus, it can be noted that the codified law casts the onus of paying maintenance on the husband, and it is not limited only to the period of iddat. In a situation where the divorced woman finds it difficult to fend for herself after the expiration of the iddat, the woman approaches the court against her relatives who are under an obligation to support her. In a personal capacity, if all the relatives are unable to pay, the Magistrate may direct the State Wakf Board to contribute to the maintenance.

Shayara Bano vs. Union of India and others (2017)

Facts

In the case of Shayara Bano vs. Union of India and others (2017), a Muslim woman named Shayara Bano challenged the practice of talaq-ul-biddat, which permits a man to divorce his wife by saying talaq three times consecutively. She asserted that it infringed her rights as a woman guaranteed by the Indian Constitution.

Issues

The case was focused on the violation of Articles 14, 15, 21, 25, and 44, where the practice of talaq-ul-biddat was challenged for its impact on the rights of Muslim women in India.

Judgement

The Supreme Court declared the act of talaq-ul-biddat and triple talaq unconstitutional. The practice was deemed to have infringed on Article 14, Article 21, and Article 15. The court also stressed that the practice of triple talaq was not an integral part of the Islamic religion. The Supreme Court in this landmark judgement has given more rights to Muslim women regarding their marital status by declaring the talaq-ul-biddat to be unconstitutional. The decision caused tremendous controversy socially and politically, and thus led to the legislation of the Muslim Women (Protection of Rights on Divorce) Act, 2019, that made instant triple talaq a criminal offence. This case addressed the issue regarding Muslims’ triple talaq, where a man could terminate a marriage simply by saying ‘talaq’ three times. 

Presently, no man can divorce his spouse by only pronouncing the word ‘talaq’ successively three times. This additionally fortifies Muslim women’s status and rights in India. 

Tarsem Singh Ghuman & Ors. vs. Dharma & Ors. (2024)

The case of Tarsem vs. Dharma & ors. (2024), pending before the Supreme Court of India, raises a relevant question that concerns the future of Muslim women’s inheritance.

Facts

Hazi, a Muslim man, passed on, and in his will, he disentitled his son Tarsem from inheriting any assets that belonged to him. However, the whole estate went to the other son, Dharma and another beneficiary through the said will made prior to Hazi’s death. Tarsem submitted that the will was unlawful to deprive him of his rightful share as per Sharia law. 

Issues

The main issue in this case is based on the testator’s authority to transfer all his/her property by will.

The debate and potential impact

Conflicting High Court Decisions: In the Indian legal scenario, there are no legal precedents or laws that deal with the freedom of disposition of a Muslim testator. Some high courts have also ruled that a testator cannot disburse over 1/3rd of the total property, leaving some for legal heirs, which may include daughters as well. But some other High Courts have opened a way for testators to even transfer the whole property if the heirs agree.

Implications for Muslim women

If the Supreme Court affirms the testator’s right to alienate the whole estate, daughters may be completely excluded. This would create grave doubts about how they would defend their Sharia-assured inheritance rights.

Under the Sharia Law, daughters have a particular share that they are entitled to in the property of their deceased father. Such entitlements contradict the outlined inheritance privileges of a woman by excluding them completely.

The case is a turning point.

This case can prove to be monumental in the eyes of the Supreme Court, depending upon the nature of the judgment and become a precedent dealing with the capacity of a Muslim and the rights and entitlements of a Muslim woman over her inherited property.

Possible outcomes

• Limiting testator’s power: Restriction of the testator’s power may occur with the court establishing a minimum entitlement for legal heirs, which might include daughters. 
• Consent-based distribution: While the court could give its approbation to the testator’s freedom, it could insist on the consent of the heirs (of daughters inclusive) before they are locked out by a will.
• Gender equality in succession: A less reactionary probable resolution could involve consideration of important matters about gender equity and possibly support the argument of Muslim females for outright sharing of inheritance, irrespective of the will.

It is interesting to note that legal practitioners and the Muslim population in India are closely monitoring this case. Thus, the decision of the Supreme Court will create a protracted shift in the relationship between the testator’s autonomy and the rights of Muslim women to succeed under Sharia law in inheritance.

Challenges and debates 

Muslim women’s rights in India can be deemed a complicated issue where its roots are strongly embedded in society and the topic is still actively discussed today. The main challenge is that Muslim women continue to be subjected to a practice that denies them equal rights with women of other religions, the practice of different personal laws for different religious groups, where Muslims are left with no option other than to accept such laws. Some of these laws derived from scriptures can also deny them their rightful inheritance, forbid divorces, especially through instant triple talaq, and restrict options in child custody. Exacerbating the issue, some Muslim communities submit to strict social norms through pressure. Customs such as dowry, illiteracy, and restricted freedom of movement hinder a woman’s ability to exercise agency in her life.

The interpretations of religious texts complicate the matter even further, given various concerns that entail the ways they are perceived and implemented. Citizens can have a progressive approach that supports gender equality, and that is why they vote for relevant Bills. Some citizens believe in a literal interpretation of the law. This fuels a central debate. In other words, the struggle is to maintain the reforms in personal laws to protect women’s rights, equality with men, and freedom of religion. 

Today’s reform process of Muslim personal laws is towards the codification and formalisation of these laws. Nevertheless, there is a set of critics who suggest that it violates citizens’ rights to freedom of religion. This is again on account of the proposed Uniform Civil Code for the people of India, irrespective of religion. While some want it to be the way to gender equality, others think that it can harm the country’s multifaceted culture and spiritual traditions. 

All in all, the transformation towards better conditions requires a sensitive approach. Therefore, Muslim women’s narratives, religious scholars, legal experts, and policymakers should be encouraged to freely engage in more open dialogue. The problem of how to mobilise Muslim women to gain the Islamic knowledge that would enable them to stand up for themselves and their rights within the country and Islamic countries, and at the same time protect religious freedom, is still urgent and open. 

Implementation of a Uniform Civil Code (UCC) 

India has had several distinct personal laws about marriage, divorce, succession, and family relations based on religion for years. This system has, from time to time, aggravated discrimination, especially against women, and has produced gaps in the legal system. It is for the above realisations that the need to establish the Uniform Civil Code (UCC) has arisen, and it entails the formulation of a single body of laws to regulate the entire community without distinction of religion. 

Uttarakhand UCC: A landmark reform 

Uttarakhand became a pioneer in the country by adopting the Uniform Civil Code in February 2024. This legislation regulates matters of marriage, divorce, succession, and maintenance of live-in relationships irrespective of the religion of the parties involved, thereby doing away with the disparity arising out of the personal laws. Some of the main goals of the UCC are the equality of gender, as well as the demystification of legal procedures and the unity of society. 

The Hon’ble Madhya Pradesh High Court in the case of Aliya vs. State of MP (2024) commented on the need for the Uniform Civil Code to eliminate discrimination and inequality in personal laws. The case concerned the complainant who was being subjected to physical and mental torture for dowry by her husband and her in-laws, and she got ‘Talaq’ from her husband. The petitioners, her mother-in-law and sister-in-law, stated that the FIR was wrongly filed and Section 4 of the Muslim Women (Protection of Rights on Marriage) Act 2019, which makes the husband liable for punishment for pronouncing Talaq, does not apply to them. As to these kinds of charges under this Act, the Court partly dismissed them against the petitioners but continued with other charges under the IPC and the Dowry Prohibition Act, 1961.

The Court also pointed out that while the Act has made some advancements, there are still loopholes and old prejudices that are still present, and a more effective UCC will be able to close those gaps and provide equal legal standing for all citizens by eradicating discrimination based on prejudice. The Court noted that many religious practices are nearly archaic and prejudicial and are practiced under the name and guise of ‘religion’ and ‘religious beliefs’, which is quite unconstitutional and unjust. This highlighted that if a proper draft of UCC was made, it could play an essential role in doing away with such vicious and unfair practices, as it brings parity in personal laws and strengthens the unity of the nation. The Court’s decision indicates that more legal changes are needed to achieve actual matrimonial justice and extend the UCC, which is not only about the legislative intent that has had social and legal impacts and seeks equality for women.

How does Uttarakhand UCC safeguard the rights of Muslim women 

The Uttarakhand UCC has brought a dramatic change in the legal position of Muslim women, wherein the issues that were earlier regulated by the Muslim Personal Laws have been resolved. Some of the key provisions include: 

Marriage and divorce under the Uttarakhand Uniform Civil Code 2024 

Abolition of Polygamy and Triple Talaq

• Polygamy: Under the Shariah law of Islam until recent times, a Muslim man was allowed to marry up to four wives, but he had to treat them all equally. However, this practice has been receiving criticism and condemnation, especially from the gender perspective. The Uttarakhand UCC erases polygamy and adopts monogamy as the new marriage model for all marriages. This reform aims at protecting the rights of Muslim women who are often exposed to emotional, financial, and social difficulties provided by polygamous marriages. 
• Triple Talaq: Talaq, e-Bidat, which allows a Muslim man to unilaterally divorce his wife by saying the word talaq thrice in one sitting, was struck down as unconstitutional by the Supreme Court of India in the year 2017. The Uttarakhand UCC supports this decision by banning the practice of triple talaq in its totality, hence preventing Muslim women from being divorced arbitrarily. According to the UCC, all religious people are required to undergo a legal process to dissolve their marriage, thus locally providing efforts in reconciliation before marriage dissolution as well as addressing the critical issue of women’s rights. 

Uniform age of marriage and divorce grounds 

• Uniform age of marriage: The UCC provides that any marriage that takes place in Uttarakhand must be of individuals who are at least 18 years of age for women and 21 years of age for men in all the regions, regardless of religion, and this also applies to Muslims. This uniformity has been very useful in the prevention of child marriage, which otherwise would have been a major problem in some areas due to the practice of separate personal laws. Whereas, by arriving and maintaining a specific legal age, the UCC seeks to prevent youthful females from being forced to marry and be childbearing; thus, they should be empowered to go to school and get employment. 
• Grounds for divorce: The UCC has occasioned the standardisation of the causes of termination of marriage, which applies to all citizens irrespective of their religion, including Muslims. These grounds include:
  • Mutual consent: The parties acknowledge that the marriage should be dissolved mutually. 
  • Cruelty: Domestic violence or any sort of cruelty, either physical or emotional, makes it unbearable to live with one’s partner. 
  • Adultery: Adultery is cheating on the partner by either of the two individuals who are involved in the marriage. 
  • Desertion: This means one spouse leaving the other without proper cause for a particular time. 
  • Irretrievable Breakdown: Both parties cannot continue the marriage any longer, and hence there is no hope of salvaging the marriage. 

These standardised grounds make the path for Muslim women towards legal separation and divorce clear and reasonable so that they cannot be left in the lurch due to the absence of any protection under archaic personal laws. 

Succession laws under Uttarakhand UCC 2024 

Equal inheritance rights for daughters

• Equal shares: In the context of inheritance under traditional Islamic law, it is provided that female heirs receive half of what male heirs get. For instance, it is the practice that a daughter would claim half of what a son would get from their father’s property. The Uttarakhand UCC deviates from this principle in a way that daughters and, for the first time, Muslim women will be allowed to have an equal share with sons on the father’s property. This reform eliminates gender bias in inheritance that has been there for a long time, which leads to improved financial livelihoods of women. 
• Inheritance of ancestral property: Furthermore, the UCC provides for equal division of both the self-acquired property as well as the ancestral property. This means that the daughter, regardless of her religious affiliation, has an equal right to the inherited property from century-old generations; this goes against the common cultural belief that only male children were allowed to inherit property. 

This provision of equal rights in inheritance is a positive move towards the reduction of inequality between women and men, giving women the same rights as men as far as issues related to do with inheritance are concerned. It also assists in the reduction of economic losses that women experience when a parent or a spouse dies. 

Legal recognition of live-in relationships under Uttarakhand UCC 2024 

The Uttarakhand UCC 2024 has also legalised live-in relationships and given women many rights, such as rights of maintenance and rights in the property acquired during the relationship. These are relevant to Muslim women, they will act as a shield against financial difficulties and unfair treatment. Besides, through legal recognition of live-in relationships through the UCC, society will remove all the stigma and disadvantages that people in such relationships face. 

Critical analysis 

The protection of the rights of Muslim women in India relates to both the Sharia law and state legislation, which implies that the issues identified are best understood and solved concerning a wide range of factors. Family laws in India function with twofold religious laws, such as Muslim personal laws and secular civil laws. This inevitably leads to various complications and conflicts or even semantic overlaps in issues concerning marriage, divorce, and inheritance. The Muslim personal law, which is founded on the Shariah law, is partially favourable to women where certain rights are provided, and at the same time, there are provisions that, if viewed in a certain light, are otherwise unfavourable to women. 

Some of the legal policies and acts passed towards abating these inequalities include the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the Muslim Women (Protection of Rights on Marriage) Act, 2019, to reflect the fight for religious rights and women’s rights simultaneously. The 1986 Act, passed in the wake of the Shah Bano case, intended to give the divorced Muslim woman the parity to claim maintenance, but it was criticised as a law that made a compromise to religious fundamentalists, partially endangering the women’s rights. The Triple Talaq bill, passed in the year 201,9, that holds the ‘Talaq-ul-Biddat’ as a criminal offence is being considered one of the biggest wins by women activists. In addition to addressing injustice, this law was an announcement of a more general state policy to fight gender injustice in the Muslim community. 

India has gone through colonial legal reforms and post-independence legal reforms regarding the rights of Muslim women. In the colonial period, legal reforms like the Dissolution of Muslim Marriage Act, 1939, gave opportunities for Muslim women to seek divorce and to achieve individuality on the legal front. The Muslim personal laws were put into action by the birth of India as an independent nation, where the Indian judiciary for many a time, has tried to reinterpret and at times even override the provisions of Muslim personal laws by providing justice to the needy, like in the case of Shah Bano in 1985. However, with the political protest and aftermath regulation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the dynamics of the opposition of progressive legal reforms to conservative religious forces remained an acute issue. 

Based on this, it is important to stress that although the issues of Muslim women’s rights have seen some progress in India, many challenges persist. Socio-cultural resistance and the most dominant cultures that embrace male chauvinism and female subjugation militate against the progressive implementation of progressive laws in the Muslim community and amongst Muslims generally in society. Further, the political structure of India, where on the one hand it tries to maintain secularism and, on the other hand, accommodate religion, hinders the process of implementing gender-just laws uniformly. In the future, it is imperative to continue the process of legal changes for gender equality and the advancement of Muslim women’s rights as human rights supported by people’s awareness and change of culture in society. 

Conclusion

Indian Muslim women have a well-provided legal status and protection, which helps to secure their rights and safety regarding social, political, economic, and personal aspects of life. For a long time, they have faced many hardships and have been restricted within conventional frameworks. But, over time, legislative measures and judicial activism have steadily improved their status, especially in matters of marriage, succession, divorce, alimony, employment, and domestic violence. Legislation such as the Muslim Personal Law (Shariat) Application Act, 1937, and the Muslim Women (Protection of Rights on Divorce) Act, 1986, as well as landmark verdicts by the courts, have been productive in addressing issues of equality and also in boosting the socio-economic status of Muslim women. These legal provisions only point to India’s conformity to the protection of the rights of women and, in particular, those of Muslim women, to enable them to live with dignity and free from oppression while enabling them to be active participants in the growth of the nation.

Frequently Asked Questions (FAQs) 

Is it possible for a Muslim woman to have equal inheritance rights as men as per Sharia law? 

In India, the Muslim Personal Law (Shariat) Application Act 1937 is applicable, which specifically deals with the issues of Muslim women’s inheritance. Again, under this law, women are entitled to inheritance and owning property in the way and manner of this, which is often framed by Sharia laws. However, the daughters traditionally get half of what sons do, though this can again be subject to the family pact. 

In what ways can Islamic divorce procedures be distinguished from the procedures of divorce procedures of law in India? 

Muslim personal laws that are practised in India and other nations also tend to favour the husbands in most of the issues related to divorce. Smart practices such as Talaq-e-Ahsan and Talaq-e-Hasan do exist, yet these forms remain an extension of the legal tradition that primarily gives the husband the option to end the marriage without the need for legal grounds or approval. This stark imbalance in favour of husbands is partly redressed by the Dissolution of Muslim Marriages Act, 1939, a secular law that addresses legal grounds for women to seek divorce.

In comparison, the divorce laws in India, such as the Hindu Marriage Act, 1955, and the Indian Divorce Act, 1869, offer a more nuanced approach in terms of personal laws as well as the secular laws of the country. The conditions for divorce are specified, and both spouses have the equal right to file for one. Judicial systems have a critical duty in handling divorces and may resolve matters to do with maintenance, access to children, and property. 

What civil liberties does a divorced Muslim woman have in case her husband fails to maintain her? 

Maintenance in India for married Muslim women is governed by Section 125 of the Criminal Procedure Code, 1973 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Whenever a husband fails in either neglect or refuses to pay maintenance after a divorce, the Muslim woman has the right to approach the court for the enforcement of her right. The court may direct the husband to pay such an amount as the court considers reasonable, having regard to the details of the husband’s income and the woman’s requirements, whereby the aim must be to enable the woman to support herself. 

Is employment and having a career compatible with being a Muslim woman in modern-day India? 

Islamic law does not bar women from working or seeking employment, let alone seeking careers. On the contrary, Islam does provide equal opportunities for education and means for both men and women to be active in such a way that they could be useful to the community. More often than not, Muslim women across India are also employed where they exercise legal practices, clinical and teaching services, entrepreneurship, and political activities. The Constitution of India grants protection of ‘equality’ to all citizens without any discrimination based on their gender or religion, where many Muslim women enjoy complete freedom of selecting their professions to enrich the socio-economic status of the country. 

In what way can the law safeguard Muslim women in India from domestic violence and abuse?

Every Muslim woman in India has the protection to fend for herself from any account of domestic violence and abuse from her husband or in-laws under the provisions of the Protection of Women from Domestic Violence Act 2005 (PWDVA). This is a law to protect women from being subjected to violence irrespective of religion and offers civil redress, which includes: protection orders, residence orders, monetary relief, and custody orders. Further, for cases of violence, Muslim women can also refer to the Indian Penal Code (IPC). 

References

• https://blog.ipleaders.in/examining-the-inheritance-rights-of-muslim-women-under-muslim-law/
• https://articles.manupatra.com/article-details/Dissolution-of-Marriage-in-Islam-Balancing-Sacred-and-Secular-Perspectives 
• https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1201&context=slr  
• https://core.ac.uk/download/pdf/43024291.pdf  
• https://www.livelaw.in/top-stories/muslim-women-illegally-divorced-through-triple-talaq-can-seek-maintenance-under-section-125-crpc-supreme-court-262937 
• Need for Uniform Civil Code to curb superstitious practices: MP High Court | SCC Times (scconline.com) 

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