Table of Contents
CHAPTER-1
ABSTRACT………………………………………………………………….3
INTRODUCTION3
RESEARCH METHODOLOGY……………………………………………...4
RESEARCH OBJECTIVE5
RESEARCH QUESTIONS…………………………………………………...5
LITERATURE REVIEW………………………………………………….….5
CHAPTER-2
MARRIAGE6
POLYGAMY8
RESTRICTION ON NON-MUSLIM MARRIAGE………………………….9
STATUS OF WOMEN BEFORE AND AFTER MARRIAGE………….….9
DIVORCE AND ITS EFFECTS…………………………………………….10
CHAPTER-3
PROGRESSIVE DEVELOPMENTS………………….…………………….10
JUDICIAL DECISIONS……...……………………………………………...11
CHAPTER-4
CONCLUSION………………………………………………………………12
TITLE: CONCEPT OF MARRIAGE & EQUALITY IN THE MUSLIM LAW OF MARRIAGE
ABSTRACT
The issue of gender uniqueness in a country is more sociological than legal. In terms of the law, unless there are specific issues, imbalances in the legal arrangements are uncommon. Individual concerns, on the other hand, are overseen by religious laws and conventions These laws or customs are not derived entirely from religious laws or customs, but they are grouped together under the heading of Personal Law in a country's general set of laws. A few changes were made in their application by ordering institutions or declaring statutes. In any case, they have failed to achieve gender equality. All residents were treated equally under the law's watchful eye. With regards to family issues, in any case, everybody is limited by their own religious law.
A closer look at this religious legislation reveals that women do not have the same rights as men. This holds true not only for Muslim personal law but also for other religious regulations. This research looks at how Muslim women are treated in terms of their personal rights, specifically marriage and the laws that govern it. Existing gender-specific social constructs continue to be a significant impediment to the implementation of existing legal requirements. This paper emphasizes the significance of adopting the Uniform Family Code in order to eliminate inequalities and impose justice on both Muslim and non-Muslim women, particularly in marriage matters. Simultaneously, it emphasizes the significance of state and non-state social education and awareness-raising activities.
INTRODUCTION
Equality and justice have long been ringed by issues and called to action by politics and the law. Women, such as Mernieth, have been leaders of the framework since 3000 BCE, and even now, women and men collectively reign over a large number of people, but this is not equally distributed throughout the world's networks.
Women hold an unrivalled status in all civilizations, whether developed, developing, or underdeveloped. Almost all human communities in various parts of the world are governed by men. Males play an active role in society, whereas females play a passive role.
A "right life" is attained when a person has rights throughout his or her life. Each person is born into the world with no obligations and the freedom to choose their own way of life. We observe egregious violations of Muslim women's rights not just in India, but all throughout the world.
Today, the topic of women's rights in Muslim personal law is extremely controversial. Muslim women's rights to marriage, triple talaq divorce, inheritance, and maintenance, in particular, have recently received a lot of attention. The major row claims that there are both positive and negative sides to the central disagreement on the interpretation of Muslim personal laws and Muslim women's rights. According to certain authors, Muslim personal laws have offered different rights to Muslim women such as preference in marriage, inheritance, and so on, but the implications of those rights formed by the people have caused them to lose their essence and result in inequities.
Most of the judgements articulated by the courts are based on the rules mentioned in the Quran and hadith, and a large part of Muslim Personal Law is still uncodified. In India, there is an ongoing debate about the ramifications of Muslim Personal Law. As a result, such inconsistencies must be addressed by providing the genuine meaning of the Holy Quran in order to protect Muslim women's rights.
In Islam, marriage is regarded as a significant and sacred bond between a man and a woman, fulfilling half of one's religious requirements.
"Among His signs is that He created for you partners from yourselves so that you would find relaxation with them," says a well-known passage in the Quran about marriage. He has also established affection and tenderness between you. There are clearly signs for those who reflect in that."
Marriage is referred to as nikah among Muslims. Nikah is a word that means "to join" or "to unify." It is thought that anyone who does not participate is committing a sin. Marriage is a contract in Muslim law, whereas it is a sacrament under Hindu law. Marriage, according to Muslim jurists, is both a contract and a religious obligation. Marriage among Muslims, according to Mahmood J in Abdul Kadir v. Salima, is merely a civil arrangement, not a sacrament. This, he explained, is because, while it is traditionally marked by the reciting of particular verses from the Koran, Muslim law does not expressly mandate any special ritual for the day. It is a transaction in which both sides agree. Marriage is a necessity, an ethical requirement, rather than a worldly institution.
The purpose of this study is to provide a concise and accurate explanation of the concept of marriage and equality status in Muslim law.
METHODOLOGY
The current research topic requires a doctrinal method of research to better understand the topic under the Family law. The doctrinal method of research is mainly concerned with legal propositions and doctrines. The main aim of this research methodology is to specify the facts and attain the objectives of the study. To understand the concept of marriage under Muslim law of marriage and the equality status under it and to analyse the different facts related to them. To draw the analysis of the status of males and females in the Islamic society as per their personal laws and customs the researcher has to study every aspect about them in detail. The judicial precedents and the previous decisions to draw reference includes various case laws, the judicial developments and legislative as it would help the researcher in understanding the general concept and enhancing the quality of the study conducted. A doctrinal analysis encompasses the interpretation of terms as well as pointing to precedents applicable to the present case. Hence, the researcher proposes doctrinal research as it best fits the analysis of the current subject.
RESEARCH OBJECTIVES
The objectives of the study are listed below:
To understand about the concept of marriage under Muslim Law
To learn about the restrictions on marrying a non-muslim and polygamy.
To study about social status of a woman before and after marriage.
To study about the affects of divorce on a woman and problems she faces post-divorce.
To learn about the progressive developments to establish equality.
RESEARCH QUESTIONS
The questions to be answered in the study are as follows:
What is the concept of marriage under Muslim Law?
What is polygamy & restrictions on non-muslim marriage?
What is the status of a woman before and after marriage and what are the effects on her if she takes divorce?
What are the progressive developments to establish equality?
LITERATURE REVIEW
The issue of social stratification in Muslim society is far too broad to be addressed in a single paper. It necessitates inquiries across time and space—a review of key historical, literary, and legal works, as well as social surveys in numerous locales—that are well beyond the capacity of a single person. As a result, this study is an attempt to gain a better understanding of the concept of marriage and its equality status in Muslim marriage law.
The initial research conducted concludes that there are various sources available in the form of journals, articles, textbooks, case laws, and judgments, e-books, etc. to analyze and study about the topic. The topic is about the Equality Status According to the Muslim Law of Marriage. To obtain a clear picture of the topic, the researcher has referred to the Text book on Family Law by B.M. Gandhi which is a comprehensive book of Family Law. The book gives a detailed description about the primary concept of marriage and will allow the researcher to draw a clear picture regarding the status of men and women. Also, the book of Family Law Lectures by Poonam Pradhan Saxena was referred to add more quality to the content of the paper. The article In Search of Equality: Marriage Related Laws for Muslim Women by Kamrul Hossain is one of the literary works considered while making the paper. The article helped in clearing various concepts such as polygamy, forced marriages, etc.
Another article- Women's Rights in Islam Regarding Marriage and Divorce by Imani Jaafar-Mohammad and Charlie Lehmann was also referred while conducting the research to add to the effectiveness of the research paper, it consists of the thorough facts and analysis along with discussions and case studies.
The research paper- Rights of Muslim Women-An Analysis Under Personal Law by Ritika Sahu was referred to learn about the place of Islam regarding the status of woman in society and weather the rights assigned to women by Quran really reside with them or not.
The researcher has quoted a few case laws to draw the reference from them. The famous case of Shayara Bano v. Union of India & Ors. was referred to study about the judicial advancements made to establish equality in true sense.
A blog on- Rights of Muslim women in India proved to be helpful in adding qualitative content and efficiency to the work.
MARRIAGE
Marriage (Nikah) is defined as a contract with the goal of reproducing and legalising children. Marriage has three pillars in Islam: legal, social, and religious. It is a contract, not a forfeit, according to the law. Three significant aspects influence the social side of marriage: After marriage, women in Islamic law have an unquestionably high social rank; he confidently advised marriage to all those who could afford it. Marriage is, in fact, a sign of Allah's blessing.
In India, all types of Muslim marriages are normally solemnised by Kazis or Mullas who are knowledgeable with the legal requirements. Two people are explicitly assigned to perform on behalf of the contractual parties, with a certain figure of witness. "They are your apparels and you are their apparels," the Qur'an says about a man and woman in marriage. "And they (women) have the same rights as those who are oppressing them in a fair way."
According to Shia law, there are two types of marriage in Islam: the first is marriage through a normal contract, which is referred to as "permanent," and the second is muta marriage, which is a non-permanent marriage for a set period of time.
Muta is distinguished from traditional, long-term marriage by its character.
REQUIREMENTS
In Islam, there are several basic prerequisites for marriage. First and foremost, a couple must agree to marry. This necessitates a clear proposal as well as acceptance. During the procedure, a lady must be accompanied by a wali or legal guardian. A woman must be past puberty and capable to make decisions if a wali is not present.
"Marriage or nikah among Muslims is a solemn covenant' or mithaq-e-ghalid between a man and a woman, seeking each other's life companionship, which in law takes the shape of a contract or aqd," according to Dr Tahir Mahmood. In Anis Begam v. Mohd. Istafa Wali Khan (Anis Begam), Sir Shah Mohammed Sulaiman CJ noted that there are some sources, as cited by Maulavi Samiullah, that show that Muslim marriages are not just legal contracts but also religious sacraments.
OBJECT
Marriages have three main objects, according to Hedaya:
1. Living together
2. The social environment
3. Friendship of equals
A marriage is described as a civil compact that allows two people to have sexual relations and legalise the children that result from those relationships.
According to Muslim law, the following five items are the most significant in a marriage:
1. Maintain control over sexual excitement.
2. Make family life more organised.
3. Having children.
4. A sense of deference and consideration for his wife and children.
5. Nurturing moral children.
PROHIBITED MARRIAGE
According to Muslim law, a Muslim man may not marry within the forbidden consanguinity, i.e., his mother or grandmother, daughter or granddaughter, his sister, whether blood relatives or uterine, his niece or great-niece, his aunt or great-aunt, paternal or maternal. The marriage must not fall under the forbidden reasons of kinship, nor should it be forbidden by care allowance. If such marriages are concluded, they are null and void. Marriages that are prohibited by unlawful association and marriage to a woman who is undergoing an iddat are irregular.
In Chand Patel v. Bismillah Begum considered the marriage of a Muslim man to a sister of his existing wife. Such a marriage was believed to be fasid or irregular, but not batile or null. Therefore, unless terminated in accordance with the law, such a marriage continues and the wife and children of that marriage are entitled to maintenance.
DOWER
Dowry is a necessary accompaniment to a Muslim marriage contract. It is a part of the marriage or a gift or a financial statement made to the wife at the time of the marriage. It can either take place immediately, or it can be postponed to a specific point in time. If no dowry is agreed upon at the time of the marriage, the wife is entitled to a provision that is customary or that corresponds to her condition, which is called mahr-i-misl. It is the wife's personal property.
POLYGAMY
Polygamy is a marriage framework wherein an individual has more than one companion. Polygamy is arranged into two sorts: polygyny, in which a man weds more than one lady, and polyandry, in which a lady weds more than one man. Most Muslim nations basically control a men’s right to have four spouses simultaneously, as endorsed by the Quran.
Polygamy is sanctioned by Muslims based on Chapter 4 of the Quran. Its verses permit men to marry “two, three, or four” women, but they must have a single wife if they “fear” they will not be able to treat them all equally. And this, according to verse 129, is difficult for men to achieve despite their best efforts. Before allowing a man to have more than one wife, Syrian and Iraqi courts must consider legal grounds and financial means.
A Muslim man can have four spouses simultaneously under Islamic law. Tolerating a fifth spouse while previously having four isn't unlawful, however, it makes an uncommon situation. Polyandry is, in any case, prohibited for ladies. The principal contention against having various spouses is that paternity is questionable, though maternity in polygyny is obvious. At the point when the principal marriage is as yet dynamic, Muslim law permits a man to acknowledge a subsequent spouse, yet he should initially get authorization from the primary wife and give a strong premise to the subsequent marriage. The application for approval to wed more spouses is dealt with by an Arbitration Council. It assesses whether the current spouse consents to the marriage and regardless of whether conceding authorization is vital and just. In spite of the way that ladies have all the earmarks of being considered in the dynamic cycle with respect to various relationships, the Arbitration Council needs optional power. By and by, the Arbitration Council is comprised of men who permit remarriage on the least complex of grounds.
Polygamy is practiced with or without the agreement of wives in many Muslim countries. Consent is frequently linked to a woman's financial liberty. Those who are not financially self-sufficient are unable to refuse approval to their husbands who insist on marrying another woman unless their paternal households are willing to support them. For this reason, wives may not be able to divorce their husbands who want to remarry, even though it is against their marital contracts.
RESTRICTION ON NON-MUSLIM MARRIAGE
This restriction stems from the Islamic tradition that a Muslim man can marry a kitabi (Muslim, Jewish, or Christian) woman. The legal consequences of this type of marriage would be the same as if it were a full-fledged marriage. A Muslim man, on the other hand, is permitted to marry a non-kitabi woman, though the marriage will be considered irregular. It will be fully legal once such a marriage becomes regular. If a man marries a non-kitabi woman and she converts to Islam, the marriage is considered regular or valid as of her conversion date.
In Islamic law, this rule is applied discriminatorily to Muslim women. No Muslim woman can legally marry a non-Muslim man, even if he is a kitabi, unless he converts to Islam.
Marriage with a kitabi man, on the other hand, is not void at first glance, but rather irregular. Any marriage with a person of a different religion, such as a Hindu, would be considered a batil or void marriage, with no legal consequences. Many countries' legal systems adhere to rules governing such marriage restrictions without change.
Both of these concepts distrust the basic idea of equality under the Muslim Law of Marriage. The rights of polygamy to a male and restriction on marrying non-muslim males are discriminative with the females and disrupt the equality status. The law provides the rights to Muslim men but not to the women in any circumstances. Along with this she has no say in the matter as well. Her consent does not even affect the decision. Her financial dependence on the man makes her lose her say in the matters of polygamy.
STATUS OF WOMEN BEFORE AND AFTER MARRIAGE
Unmarried Muslim ladies stay under the protection of their dads. At the point when their status changes in spouse and mother, it moves to their husbands. By and by, then, at that point, when the spouse is in control, their primary job is to care for kids and do family tasks. In Islam, while ladies are not denied from carrying on with work when they need to, actually ladies are still generally monetarily reliant upon their spouses. Since really focusing on youngsters and other family errands are substantial obligations, the outcomes of a perceived separation ought not be overlooked. Restoration is especially significant for ladies who might somehow stay powerless in case of such a status change. For instance, most ladies engaged in socially denounced exercises have been deserted by their spouses.
This is because of the way that endurance is more fundamental than the punishments forced. Subsequently, such changes in ladies' day to day environments have lasting effects and sweeping ramifications for the social order. It's additionally significant that the law gives assistance to ladies after a separation; notwithstanding, getting this through the Court of Justice is amazingly troublesome. These issues emerge in standard common courts, which neglect to help penniless or separated ladies who can't uphold themselves and their youngsters monetarily. It is additionally costly from one perspective and tedious on the other.
Ladies regularly pick to suffer with misfortune and subject themselves to abuse due to monetary worries and the need to get the existence of their kids.
DIVORCE AND ITS AFTER EFFECTS
In the Qur'an, the overall justification for separation is viewed as the miserable disappointment of one or the two players to satisfy their conjugal obligations and to manage each other in benevolence, harmony, and sympathy. Nonetheless, men reserve the privilege to separate, not ladies. Separate procedures are allowed under old style Islamic law in an assortment of ways. There are two sorts of separation: separate by verbal presentation (talaq-I-ahsan, talaq-ihasan, talaq-ul-bidaat, or talaq-I-badai) and separate by composing (which is irreversible separation (talaq-I-bain) and taking effect right now). The most well-known sort of separation is talaq-ul-bidaat or talaqi-badai, which implies three revelations immediately (I divorce you 3 times). When such a presentation is finished, the separation is irreversible or invalid and void and produces results right away. A remarriage between the gatherings is completely disallowed under old-style Islamic law, except if one more marriage with an outsider is in this way finished up and separated upon fruition, which sets aside time.
For a Muslim woman, the post-divorce effect is quite worrying as women are still largely ignored while living under the rule of their husbands. When it comes to divorce, financial insecurity is the biggest problem a Muslim woman faces. If Muslim scholars and lawyers are of the opinion that the woman's maintenance claim stems from marriage and that the wife comes first in the ranking of this claim, ahead of children, parents and relatives, then the question arises as to whether this claim also arises persisting after the termination of the marriage is controversial.
Many supporters of Islamic law have argued that Muslim women have the right to help from their husbands even after the marriage has ended. This was also confirmed by the court decision, despite the fact that many spouses disregard their ex-spouses when a divorce is finalized.
PROGRESSIVE DEVELOPMENT
Over the years, certain positive advancements have been made, such as the Muslim Family Law Ordinance of 1961, which made some essential modifications that I have mentioned several times in the preceding sections.
In addition, court decisions have shown some significant advancements in this area.
LEGISLATIVE CONCERNS
With the enactment of the Muslim Family Law Ordinance in 1961, the majority of legislative advancements in Muslim personal law happened. Any marriage entered into under Muslim law shall be registered in accordance with the provisions of this ordinance, independent of any law, custom, or custom. The Union Council gives a license to one or more Nikah registrars for the purpose of registering weddings under this Regulation.
This fundamental shift was accomplished first by declaring that earlier laws, practices, or traditions (primarily Islamic) were no longer applicable once the Ordinance went into effect. Second, marriage registration had been made mandatory, and third, polygamy had been outlawed.
Furthermore, measures are currently being introduced that would go much beyond previously taken measures. The proposed law, if passed, would be uniform and apply to everyone. Women have more control over their life as a result of this consistent family law. The introduction of the Unified Family Law is primarily intended to improve existing family laws in order to make them more compassionate and advantageous to women. This legislation will eradicate gender discrimination and provide women an equal footing in society, regardless of religion.
JUDICIAL DECISIONS
Indian courts have gone to tremendous efforts to improve Muslim women's living conditions in India. The following are some of the most notable judicial decisions rendered by Indian courts.
The Shah Bano case, which was decided by Justice Chandrachud, favors sixty-year-old divorced women in terms of their divorce and other issues. The amount of money paid by the husband to his wife at the moment of marriage is greater, and this money belongs exclusively to the wife. This lawsuit was a fight for Muslim women in India, who were fighting against male-biased Muslim personnel legislation. The Supreme Court backed these Muslim women in their struggle for proper support.
The Case of the Triple Talaq
Shayara Bano v. UOI & Ors. This case examined the Muslim practice of divorce, which states that if a Muslim man divorces three times, he will be released from his marriage. When we look at the Koran and other religious texts, the Supreme Court declared that this non-religious thing should be void, prohibited, and never promoted at any cost. At this time, no guy can divorce his wife simply by saying talaq numerous times. In India, this improves the status and rights of Muslim women.
The status of equality that a women will get seems to have been handled by men in the Islamic culture. Despite various rights that the Quran provides to a woman the status of the women is still undermined and every female suffers some kind of discrimination or has been restricted to use her rights. The Quran thinks very highly for the women but when it comes to the practical applicability it seems different. Form the texts of classic Muslim law major rights about taking the decisions resides with men most of the time. But with time there were ordinances and various amendments suggested and implemented by the court of law. These alterations provided some type of power to the women to be in charge of their decisions, but they still lack it many situations.
The topics covered in this study however shows some instance of inequality, but there are many more. It shows how women have been subjected to various restrictions whereas men have been given the rights, women on one hand denied the right to marry anyone outside the Islamic community but men are allowed to do so. The men have the rights of polygamy which are regulated by the court but the council lacks the discretionary power and allows men over pettiest reasons. Women are under protection of their father before marriage that shifts post-marriage, women are not prohibited from doing business when they need to, the reality is that women are still largely economically dependent on their husbands, which even prevent them from having a say in important matters. There are measures being taken but still for a woman there is a long way to go to attain the equal status as of a man in the society.
CONCLUSION
This study looked at traditional Islamic laws on marriage and related concerns, as well as current Muslim laws in the country, in order to identify discrepancies between males and women's rights. While the researchers focused on Muslim women's disadvantages as a result of their own personal regulations, members of other faiths are also bound by their own religious laws and face numerous inequalities. Inequalities vary from woman to woman, depending on which religion she belongs to, because rules change from religion to religion. It is exceedingly undesirable for legislation addressing the same topic to be so disparate.
With the exception of religious fundamentalists, there is strong support for the Single-Family Code, which would consolidate the country's diverse personal laws under a single heading in the civil code. These objections, however, must be overcome in order to achieve a balanced and equitable society.
AUTHORED BY - VRANDA RELLAN
SYMBIOSIS LAW SCHOOL HYDERABAD
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