Rights Of Muslim Women With Special Reference To Matrimonial Causes - A Human Rights Perspective.pdf

Vol.3

Apdl,2015

.%gnzb let justice be done...

St.

1

Page

Contents

No.

No.

The Rule of Law

l-3 Justice P. B. Savant

2 Joistling for Recognition : Transgender

4-lg

Community Awaiting Justice

......

3

Dr.RohiniHonap

Rights of Muslim Woman vdth Special

Refetence to Matrimonial Causes Rights Petspective ..

4

.

...

- A fluman

Dr. Harunrashid A. Ka&i

Impact of Social Media on

Society ...

5

20-40

4t-4A

... Dr. Sunita Adhav

Effectuating The Voyage Of ffuman Rights 49-64 Education in SAARC Members Countries By Genemting Waves Of Inclusive Alrproaches

6

... ... Dr. Sonia B. Nagarale National Space Laws in India : Need fot

65-81

Global Convergence

... ... Dt. Shilpa N. Gaikwad

7

Raising Concerns towards Reptoductive Rights 82-96 of Women in India - Ifuman Rights Approach

... ... Dr.

Payal Thaorey

Cortd...

RIGHTS OF MUSLIM WOMAN WITH SPECIAL REFERENCE TO MATRIMONIAL CAUSES -A HUMAN RIGHTS PERSPECTIYE.

- Dt. FlaruntashidA-

Kadri'

Absttact Shad'a Law is applicable to Muslims in India in their petsonal affaks;however, it has always been subiected to severe criticism for its teatrnent to woman. It has been atgued thag the polygamy allowed to a Muslim male, unilaterd divorce by husband, belitded share to a woman in the ancestral property as comPare to male, evidentiary value of a female as a witness, etc. are discriminatory and violative of Human Rights. This paper analyses the pdnciples of Shari'at Law telating to Matrimonial Causes in the light of Human Rights. This paper suggests that, the criticism against Shari'a Law is mainly due to lack of Proper understanding and

of Holy Qot'* and Hadith. The perception of Sharila Law based on social practices or the views of religious heads leading to improper interpretation of Qura'nic verses is

interpretations

tesponsible for such understanding about Shari'at Law' This paper concludes that, Shari'a Law does flot violate Human Rights of woman; ather it is developed with an objective to enhance the status of womarr It ensures a better status to a vroman as compared to other Petsonal Laws.

Keywords

:

Sharia Law, Rights

of Muslim

W'omen, Muslim

Persond Law, Muslim marriage, Triple-Talaq, Polygamy

l.

Introduction

Violence against women is as old as the society. She has always been subjected to exploitation, tortufe, discrimination, hardship, disrespect, abuse and denial of equal rights.l Such violatiofis have become mofe zggravzted because of further discriminations based on

The ptesent paper is partly based on the oral ptesentation made at the National Seminar on Human Rights, held at PES's Shri Ravi Nike College, Ponda, Goa, on 28-29 November

'

2014.

* Assistant Professor, N. B. Thakur Law College, Nasik. Author can be reached at kadriharun20O 1 @yahoo.co.in

Francis O. Anaeme, "Reducing Gender Discdmination and Violence againstWomen thtough Ubnry and Information Services", aaailabh at' http://www.webpages.uidaho.edu/ -mbolin / ataeme.pdf ffisited on March 19, 2015). 1

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Dt. HarunrashidA. Kadri

tece, religiofl, caste, class, ethnicity, sexual identity or age.2 These violations are found to be deeply rooted in the society and have become part of global culture where women are exploited, violated ot denied equal rights with men.3 women are either buried after birth or hlled before they born. The most basic and natural right of birth is being deprived from thousands of years.a As a result women remain kss in demogaphy, weaker in sociological conditions, poot in cconomic and cultural standard. They are less in education and employment; they own less and are worct in health. Such violations are imtified on the basis of religion, culture, custom or tradition.s

International communiry having rcalized the seriousness of such issues and tole of women in the development of sociery has reken initiative by adopting various teaties and conventions like UDH& ICCP& ICSECR, CEDAW, Dwban Declaration, etc. in order m eradicate the violations of Human Rights of women. Furthermore, rhese instruments have been mosdy incolporated into domestic laws rurldwide. However, the principles of Shari'a Law6 have been severely ,inc:zed for violation of Human Rights guaranteed under the National end Intemational instruments.T This paper analyses some important ,sp€cts of Shari'a Law relating to Matdmonial causes in the light of Human Rights of women. Conference against Racism, Racial Discrimination, Xenophobia and Related

'sodd ft rleran6s, 31 August to 8 September 2001,he1d at Durban (populatly

Known as Durban Daderetion), Para2, aaailabh at http://www.un.otg/vcAR/dutban.pdf ffisited on March !9,2O1r, See also Women's Human Rights: A Fact Sheeg Amnesty Intemational USA,

drtb

at

h//www.arnnestyusa-org/sites/default/files/pdfs/womens-human-rights_fact-sheelpd

f (Tisitd on March 19,2015).

fild

19,2015). See also Women's Human Rights: A Fact Sheet, auailabh at LTr//vww.arnnestyusa-otg/sites/default/files/pdfs/womens-human-rights-fact-sheerpd

{, (grsited on November 25,2014). r,,1[Brief History of Infanticide, atailable athttp./ /www.infanticide.ory/history.htm cllzrch 19,2015); See also Women in pre-Islamic Ara:bia, awilabh at f rry//eo-wikip edia.ory/wiki /Women_in_preIfmic-Arabia#Legal-Status-and-Tteatrnent-of-rD7omen_in_Pre-Islamic_Arabia

rlfzrch

(r'isited

(Visited

19,2015).

lry//vww.aninestyusa.org/sites/default/files/pdfs/womens-human-rights_fact-sheelpd $

(Srsied on November 25, 201 4) -

olrDbased on commandments of Holy Q*'r.r

and Hadith applicable to Muslims. T"tDdullahi Ahmed An-Na'im, "Islam and women's Rights: A case Study'' Septembet 1996, &lc d, http://www.wluml.org/rode/269 flisited on Novembet 25,2014).

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Rights of Muslim Woman with Special Refetence to

2.

Matrirnog:T":

Consent in Marriage

The universal Declaration of Human Rights (JDHR) declates that, marriage shall be enteted into only with "the ft9e 11d frrll consent of ilr. intlnding spouses.s" Further, Article 76 0) @) of the against Convention on thl nli-ioraion of All Forms of Discrimination on ensure, women (CEDA\O , TgTg,provides that, States prtti.._ shall freely to choose a a basis oi.qorlity of men ,rrd *o-.n, the same right io enter into marriage only with their free and fir1l consenle spouse ^rrd

TheuNConventiononconsenttoMartiage,MinimumAgefor

the marriage Marriage and Registtation of Marriages, 1964 tequites for to be vlfid must Le with firll and free consent of both parties expressed in the pfesence of the authority competent to solemnize the marriage and of witnesses.lo Maffiage under Muslim law is a solemn covenant benveen be husband ,nd wlfe to lead a farntly life. Marriage agreement should terms, with free consent of both the parties.ll The consent in exptess of bride and groom, is taken in the Pfesence of t'wo witnesses. Any This marriage without free consent of *^ o. woman is void'12 poti.i^, commandment has been intoduced in Shari'a in the 6s Presence centufy, ensuflng women's right to choose freely her spouse' of p^r..rt, or Ir.ir .or..rri is neither necessafy nor sufficient for Nikah with a man by accepting the-riirg.. She alone can performwitnesses, provided_ she is capable of propo."^l in the pr.r.r..tf two consent.lf Sharia Law in respect of consent of the parties to the

;r"t"g 8 See

Article 16 (2) of UDHR,

auailable

at http://www.un.otg/en/documents/udhr/ flisited

on March 19,2015). e IJN Convention on the Elimination of All Forms of Discrimination against Womeq 7979, on March 25,2015)' oro*Utraf, www.un.org/ril/omenwatch/dzw/cedzw/cedaw'htrn ffisited Age 10 See Article 1(1) of the United Nations Convention on Consent to Mariage, Minimum for Marriage anJ R.gistration of Mardage s, 1964, artailable a* }rrcps: I / rezrr.t.rl.t.-gldo. /T teztes / 7964 / 72/ 796412230 2002ts"t zini*t/crr-xvl-3p.pdf (Visited on March 21,2015) (Article 1(1) of the Convention parties' both of free conseflt and full the into without "No marriage shall be t.gpUy."ta.d and in the ptesence of-sr.ch .o.s.n]t to b".*p.J.r.d by them in petson after due publicity by law'') the authority competent to sole'mnize the mardage and of wimesses, 11 P^rescribed Holy also See & 3307. 1r Sahih Moslim, liook 8, Kitab Al-Nikah, Numbet 3303,3306 I, Mariage' aaailable at Qro'r., ChaPter 4, Verse 21. See also Abdul Rahman November 26, 1ritp,//**r.islamswomen. comf mzriage/intro-to-mardage.Php (Visited on 2014). 12 13

S;ih Muslim, Book: 8, Kiab Al-Nikah, Numbet 3303,3306 If she is minor, conseflt may be given by guatdian'

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Dt. Harunrashid A. Kadd

maffiage

firlly complies with all of the above Intetnational

Conventions.

on the other hand, there is no expfess provision tequfuing ftee consent of a girl or boy in marriage under the Hindu Marriage Act,

1955 (trereinafter the Act), even in the 21" century. A Hindu m^ttla;ge is complete and valid, if it complies with conditions stipulated undel the Ag1 such as, Monogamy, Age of Majority, Soundness of Mind, kohibited Relationship and Sapinda Relationship, provided essentizl customary cefemony, like Saptapadi, etc. is performed.la Howevef, the plroe meaning of the provisions of Hindu Marriage Act, 1955 indicates &aq consent of the parties to the matnage is presumed, unless contfafy k proved. The proof of absence of consent as to the nature of the ceremony of as to any material fact or circumstafice makes the m2rriage voidable (not void as in Sharia) and may be annulled by a decree of nu11ity.15 This presumption of consent undet the law has become so inconspicuous that, it is being considered as non-existeflt. Therefote, in ordet to establish srongly that the bride has firll freedom to choose het husband freely, the requirement of consent should be hirl down in clear terms. Hence, the Hindu Marriage Acq 1955 needs to be amended in order to insert a provision making the free and firll consent of the pafties to the mafflage expressed in the pfeseflce of nvo rimesses essential fot the validity of matnage, in the absence of which &e marriage should be considered as void.

On the other hand Chdstian Marriage Act, 1.872, requires one of, the intending parties to declare that the consent or consents required by law has or have been obtained.l6 Consent is the most cssential pan of the Christian mafriage. A Chdsti^fl m^rfi^ge without msent of parties is invalid.17 Hence, the provision regarding consent of garties in Christian mafriage is clearer as comPared to the law ryplicable to Hindus. rM

Sce Sections 5-7 of the Hindu Marriage Acq 1955. Sce section 12 (c) of the which provides that the coflsent

of the petitionet, ot where the of the guadian in marriage of the petitionet was requited under Section 5 as it stood rr'ilFii2tely before the cofirmencement of the Child Marriage Restraint (Amendment) Acq !!l-& &e consent of such guatdian was obtained by force or by ftaud as to the nature of the Gtmooy ot as to any matedal fact or ciicumstance conceming the respondent e Ser Section 18 @) of the Christen Marriage Act,7872. r.- Frn€st Obodo, The Importance of Consent and the Consequences of the Exclusion of 16

ffit

ffildirr

in Marriage, aaailabh athW:/ /www.uibk.ac.at/theol/leseraum/pdf/obodo-final.pdf

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Rights of Muslim Woman with Special Reference to Matrimonial Causes

3.

Polygamy in Marriage

The Shari'a Law allows m^t to have fout wives, while a ^ woman is not allowed to have more than one husband at a time. Holy Qor'* provides that, "lf ye feat that ye shall not be able to deal iustly with the olphans, marry women of yout choice, two or thtee, ot four. But if ye fear that ye shall not be able to deal iusdy (with them), then only one.... That is the nearest way for you to avoid iniustice."18 The above verse allows a mat: to marry with fout at a time while it denies the same right to a woman. Howevet, the CEDAW Convention provides for elimination of discrimination against women in all matters relating to m^rfiage and family relations and requires the same right to enter into matdage on the basis of equality of men and women.le Further, it is also claimed that, the above ptovision of Shada Law is violative of Article 74 of the constitution as it denies equality, and hence it is unconstitutional.2o The above mentioned verse of the Holy Qur'an has been criticized for discriminating between man and woman 2s a man can, but a woman cannot, marry with more than one during the lifetime of a spouse.2l Ftom the plane reading of this verse it appeats that, the Qur'anic verse denies equal rights for men and women. In order to

understand the philosophy behind the polygarny, this particulzr verse of the Holy Qur'an should be understood in the light of pte-Qut'anic scenario in which this vetse has been revealed. Prior to the revelation of Holy Qor'"n, female infanticide was deeply tooted in the society and th. grl child was buded alive. Being z father of a gid and giving het in marriage to a male was consideted against the status and prestige of man. Nobody wanted to be father of a gyl Woman was being putchased, sold, used and exploited by men. She was treated like a chattel. She was not having any share in the property of ancestors, parents or husband. She was not having any rights as such.22 There was ts

Holy Q*'ro. Chaptet IV, Vetse

3.

Article 16(1) (a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979, aaaikbh at www.un.otg/womenwatch / daw / cedtsl / cedawhtrn flisited on Match 19, 2015) 20 See Shukla V.N., Constitttion of India 80 (Eastem Book Company, Eleventh E&r, 2008). 21 Abdultahi Ahmed An-Na'im, "Islam and Women's Rights: A Case Study'' Septembet 7996, aaailabh athnp:/ /www.wluml.org/node/269 ffisited on November 25,2014)22 Christel Gschwandmer, "The Status and Position of Women in Islam", aaailabh at http:/ /ndtcalruth.net/uploads/pubs/TheSatusAndPositionOflTomenlnlslam.pdf ffisited on Novembet 25,2074). See also Women in pte-Islamic Arabia, aaailable at le See

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no limit on number of wives one can have.23 This particular era is d:d as er^ of Jahahya (ignorance). In this particiar era prophet Mohammed e.B.u.H.) was born and Hory eur'an was revealed on him. The above mentioned verse imposed the limit on the maximum number of wives one cafl have zt ti-. i.e. maximum four, that to in exffaordinary cfucumstances, and it"strongry emphasizes on having only orre, as against unlimited during pre-eur'ani. ir^. The above ,r.i.. of the Holy Qur'an is revealed to ensure justice to olphans. It provides that, if you fear that, you are not able do iustice with oryhr.r.,'yoo allowed to marry with women more than one, who are ,rrtth.r, of ^r. such oqphans. rt indicates that, the primrry objective of polygamous m-arflage is to do justice with oryhans by -r..yi"g with their mothers who ate widows,24 and it is permitted on the condilon subsequent that, the husband should tteat allwives with equaliry and justice. Thi. lr..r. does not encoruage polygamy in true ,.r.i, ,^th.. it rimit. porygamy to only four, and it stresses on only one if the husband is not able to do justice between them. The words "deal justly', appears twice in this verse and the words "avoid injustice" appears or.. the end. It "t indicates that, two major objectives the verie aims to achieve, Firstly, justice with the olphans; and Secondly, justice with the *irr.r. Th9ryfore, the primary condition for porygamy is to do justice, which itself is the prime objective of all the Intemational conventions.2s http://en.wikipedia.ory/wiki/women-in-pte-Islamic-Arabia#Marriage_by_Agteement Sisited on Match 21,2015). See also Muslim women's rrague, vo-J., i, pte-Islamic !?\i?r lldikue at http /./www.mwlusa.orgltopics/histoty/"herstory.htrnl (visited on Match See also FaryalAbbas Abdullah sulaimani, "rh. cr,r"gi"g position of women in ?6,??15). Arabia under Islam during the Eady Seventh centuqy',, prr. o. ril.rl (19g6), university of l{Il.d, auailabh athttp:/ /usu.salford.ac.uk /14814/1/361089.pdf flisited on March 2i, 201s).

a christel Gschwandtner, "The status

and position of women In Islam,,, aaailabh at http:/ /tzdtczhruth.net/uploads/pubs/TheStatusAndPositionOfWomenlnlslam.pdf (Visited on Novembet 25,2014) 2a This is the primary obiective and thete arc many othet objectives fot which polygamous marriages ate allowed, discussed in deail in the subsequentparzgruphs. The polygalous marfiage with unmarried gkls, childless divotcees and widows is-also allowed, rn ird.t to meet the situation where thete are more women than men ot there are widows,/divorcees in the society- It is also to ptevent men from extramarital relations. In the recent era,

the

matters of extra-marital tffaks arc on rise, See for detailsblog aaailable at

http,//w*.r.at aindia.com/mumbai/teport-40-mumbai-coofl.s-se.king-extta-maritalaff*s-1919850 ffisited on March 25,2015). 5 see Pteamble & Article 23 of the convention on the Elimination of All Forms of

Discrimination against Women (CEDAne ,7979, alaikble at www.un.org/womenwatch/daw f cedaw / cedaw.htrn flisited on March 19, 2015). @DES's Navalmal Firodia Law College, (2015) 3 %juu-

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Rights of Muslim woman with special Refetence to Matdmonial causes

Further, it does not make it obligatory for Muslim men to marry with four; rather it is purety discretionary, provided justice is ensured with all. So also, women cannot be forced to maffy r.,afi who is alteady ^ married, it is the choice of women whether to maffy having a ^mafl wife or m^rry with a man who is single. If a woman wanted to mzur:ry man, she can do it without that man divorces his first wife. This is also^ in the benefit of first wife as there are many examples where the first wife has been divorced for marrying with second.26 Therefore, the above verse is in conformity with the objectives laid down by the Intemational Conventions.

Now let us discuss why the maximum numbet of wives one can have is four and why not restricted to only one? Further, why a Muslim woman is not allowed to marry with more than one m^n at time?

^

Islam permits polygarny in extra-ordirr.y conditions such as, where number of women outweighs men (due to various teasons such as war, accident, epidemic, the degree of immunity against decease, etc.), where there are widows (along with their orphan children); and where there are divorcees (which ate single) in the society. Under such situations, some women may be left without husband. The present legal system has not addressed this problem. Shari'at seeks to mznage this disequilibrium in sex ratio, the problem of widows and divorcees by allowing Polygamy. sToman need a man to finfl the natural demands of her body i.e. sexual desire, which, although, she may also get firlfilled iflegitimately, the psychical demands such as building a home and having a fantly of her own, remains unsatisfied. So also she needs a companion in whom she has faith & confidence and who is very special and close to her with whom she can share, express and live, and stands as backbofle her old age, partic"lr.ly when she becomes sexually inactive. This^t demands that she should have a man attached to her permanendy, beyond sexual activity. Under these 26

Examples of di-rorcing fitst wife in order to rnaffy second are numerous. For example, Raj Kundra divotced Kavia Kundta to marry with Shilpa Shetty, aruilable at http:/ /datly.bhaskat.com/news/ENT-taj-kundra-cheated-pregnant-wife-kavia-kundra-withshilpa-shetty-4497628-PHo.htrnl flisited on Match 27,2015). Cricketer Mohd. Azharuddin divotced his fust wife Nuteen to matry with Bollywood acffess Szngita Biilani, aaailabh at http://wwwmasala.com/scandal-flashback-sangeeta-biijlani -and-iharuddins-shockingmatiage-169914.htrn1 ffisited on March 21,2015). Boni Kapoor divorced his fust wifi Mona to marry with Sriderri.

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cfocrrmstances, she has an option to maffy L tnafl who is ilteady mqrried and share him with another woman. It is matter of fact that,

rhe life of woman with a rival is miserable, but the life of woman uiftout a peflnanent man is hell. If we compare the Iife of a woman rrifrout man or with m^tt in temporary dadonship (for sexual ^ ^ pleaswe), with the ]ife of woman with martin permanent relationship ^ latter (though he is ilready married), the always stands bettei. laerefore, Polygamy has a social objective in the remariage of &orcees, widows and unmarried.2T Islam permits a m^fl to -roy *ith

fu

and confers alt the wives the status not less than the first wife in rrlr respect and it also ensures legitimacy of children born out of such r,rriages. The wives of polygamous mariage and children born out of r-.f mariage zre entided to maintenance, inheritance, paterniry IEF-".y, social acceptance, etc. The second wife is denied *re agnt or inherirance in other personal laws whereas such children are dinied *ate in Hindu Joint Family Property. Islam promotes mariage2s and frrbids exta-marital relations.2e Sharia Law confers a much better [hEs to woman who is a wife of akeady married man, as compare to e other personal laws. Polygamous marriage is one of the *.*. to ilsourage illegitimate and exffa-maital relationship and to eradicate

mncubinage. Furthermore, monogamy m^y encourage

divorce,3o

tQurb Mohammad (tans:

Sajiad Ahmed Kandil'ilii), Islam and tbe Moden MateialisticTborybt (New Crescent Publishing Company, Delhi, 1 999). rrLe Holy Prophet Muhammad (peace and blessings be upon him) said: 'o young people! oevet amoflg you can suPPort a wife should mar4r, for that is more modeit foith. gVr. d s.ftr for your pdvate parts.' (Quote ftom Hadith No. 3231, The Book of Marriage

*{2

[ rhAl-Nikah), Sahih Muslim, aaailable at hp//ww.searchtruth.com/book-display.php?book=8&translatot=2&start=0&numbet= fus

my sunna is not of me. (Quote ftom Hadith No. 3236, The Book of Marriage

(I(ab

^frInme$, Sahih Muslim, aaaikble at fryr//vww.searchtrutl.com/book-display.php?book=8&ftanslatot=2&start=0&number=

f

(fisiEd on April 7,2075)-

tThewoman

and the man guilty of adultery ot fomication, flog each of them with a

Lnd"ed stdpes: Let not compassion move you in theit case, in fm^n , prescdbed by Allah, fyc l*lisvs in Allah and the Last Day: and let patty of the Believers witness theit

Fishment", The Holy

Q*'-

^ Chaptet 24yerce 2 (trans: yusuf Ati), auailabh at

lry//wwv.seatchtruth.com/chapter-display.php?chapter=24&translatot=2

"t?d

1,201s).

ffisited on

nFr-tnFles of divotcing fitst wife in otdet to marry

fndra

,*,/

second are numerous. Fot example, Raj divorced Kavia Kundra to marry with Shilpa Shetry, auilable at

/d^lly'bhaskat.com,/news/ENT-raj-kundta-cheated-pregnant-wife-kavita-kundra-withQa-shetty-4497628-PHo.htrnl ffisited on March 21,2015).; Cdcketet Mohd Azharuddin &orced his fust wife Nureen to marry with Bollywood actress Sangita Biilarri,

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Rights of Muslim woman with specid Rdetence to Mattimonial Causes

desertion,3l bride butning or mufdef32 as the husband is not allowed to rnmry with anoth., *o-rn without the divorce or death of the firstThe process of divotce being time consuming complicated and cosdy affai,zz with additional burdin on husband to maintain het for whole life or till her next marriage,v there is chance that the husband may choose to kill her for marrying with anothet woman'35

Polygamy as such cannot be condemned particularly when w9 afe allowing extamarital relationship or live-in-relationship which permits sexual telation with any numbet of womerl without marrying with them. The so called 'modetn cultute' permits exploitation of women fot sexual pleasute and dispose them off whenever desire is firlfilled, without ondetgoing divorce. Her status in such relationship is like a concubine, wherJthe *o-rtt is denied legal rights, tefused social starus and legitim acy and patemity of the children born out of such relation is ch-allenged. It may also result in killing of such children in the mother's wornb through abortion, in order to avoid social outcry and future complications that may adse.36 hand, if a woman is allowed to mafry with mote than one husband at a time, she would undetgo a hardship whjle managing sexual relations simultaneously with all husbands. It would

on the other

http://www.masala.com/scandal-flashback-sangeeta-biiilani-and-azharuddins-shockingfust wife madzge-769914.htrn1 flisited on Match 21,2075).;Boni Kapoor divorced his Mona to marry vrith Sridevi. 31 Bollywood actor Dharmandra married to actess Hema Malini by deseting his fLst wife

without divorce. :2 See Why do men kill their wives?, The Boston Globe Sunday Magazine, July 22,2007

,

on March 21, aaailable aihttp:/ /keiitob.com/stories/why-do-men-kill-theit-wives/ ffisited

20ts). Divorce is allowed on the ptoof of grounds available under the law, only through the courts, subiect to multiple appeals provided undet the tespective laws. 1 See Section 125 of Code of Criminal Procedute 1973' rs see vhy do men kill theit wives?, The Boston Globe Sunday Magazine,July 22,2007, March 21, amilabh aihttp:/ /keithob.com/stories/why-do-men-ki11-theit-wives/ (isited on

33

2o1s).

in the U.S. The US Abortion Satistics shows thag about 1.06 million abortions took place 1fl2077,out of which about 85.570 of all abotions are by the unmarded womefl' See U'S' Abortion Statistics, Facts and figures relating to the ftequency of abortion in the united 36

Sates, aaailable atLttp:/

/www.iaor7Z.r"^/abortion-facts/us-abortion-satistics/ flisited

on March 21,2015). Se. dso btog http://www.dw.de/illegitimate-newboms-murdeted-anddiscarded/a-1 7 582853 (Visited on Match 29, 2015)' See blog at http://wwwfreetepoblic.com/focus/news/ 2891012 / poss (r'isited on March 29, 2015).

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also cteate confusion about paternity and questions inheritance and social acceptance of children.

of

maintenance,

Regarding the issue of unconstitutionality of Sharia Law, the honorable Supreme Court has already held that, the Petsonal Law is oot a "L^w" within the meaning of Article 73 o{ the Constitution and hence it cannot be declated as violative of Fundamental Rights.:z Therefore, it is not coffect to say that the Sharia Law is discriminatory or violative of Human Rights. On the cofitrzrry, it offers a better solution to the problems of society, by ensuring the women theit rights, protection, respect and dignity.

The present law applicable in India allows a. man to enjoy all benefits including sexual pleasure without mariage and ftee from other responsibilities. However, it prohibits him from doing the same thing hr marrying with another woman, during the existence of fitst wife. This means that, he is allowed to do everything with any number of u-omen except undergoing marriage ceremony, like Saptapadi under Hindu Law. As a result, he is punished only for undergoing the marriage cefemony such as 'Saptapadi' and not for enjoying mzital benefits with women other than wife. In short, law allows a rn fl to enioy many womefl at a time without marrying with them and hence qirhout any butden of mainteriance or succession rights fot woman rnd children. Further, in this relationship, the first wife has no temedy 6cept filing a suit for divotce, which, if granted after spending a long rirne and rnofley, would itself be punishment for her and teward to the husband in the form of freedom from first wife. Undet the customary Hindu Law prior to 1955, the concept of Pohgamy was very common and was deeply tooted in the Society.38 The examples of polygamous marriage ate well known in Hinduism.3e Shri Krishna is said to have maried with some 16000 wives,ao King

7 Krbbna S ingh v. M athtra Abrr, (AIR 1 980 SC 7 07 ; Mabarsbi Audhesb v. U nion of I ndia, 199 4 Stpp 0) SCC713; Ahnedabad Women Axion Grorp b Ors. v. Union of India,1997 3 SCC 573. x See Dharmashastra, Anusasana Parva, Section XLIV. See also :op / / en.wikipedia. o g/wiki /Polygamy-in-India -* See Polygamy fot Hindus, available at :

:mp://hinduism.aboulcom /od/mztrimorualT/z/polygamy.htrn ffisited on March 23, 3rrl). See also Polygamous Matdages in India, aaailable at papers / 700754 ffisited on Match 23, 20t5). =q: / / paa2}l0.Princeton.edu / ar

htp://en.wikipedia.otg/wiki/Krishna#Family ffisited on March 23, 2015)'

@DES's Navalmat Firodia Law College, (2015) 3 %$,w.

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I 29

Rights of Muslim woman with special Reference to Matrimonial causes

Dashtatha thtee wives,al Yajnyawalkya married to two, etc.42 Further, the book of Baudh^yafl^ Dharmashastra lays down the rules regatding me regafomg the number of ot wives, w1ves, "'lhere "There are four castes (vzrrra, (vzma, viz) Brihmanas, Kshatriyas, vaisyas, and sridras. Males belonging to them may take wives according to the order of the castes, iz. a Bri.hmana four, a Kshatriya three, a Vaisya nvo and a Sridra ofle."43 According to census of 1967, polygamy was highest among the Adivass (15.25%o) followed by Buddhists Q.9,A, Hindus (5.8ol0 and was lowest in Muslims (5.7'A. It was in 1955 that the Polygamy was strictly prohibited under the Hindu Marriage Act applicable for Hindus. Following this Act, the rate of polygamous mariage among all the societies has been substantially come down by 2006.4

The perspective of Bible on Polygamy is not very clear. There are conflicting verses regarding polygamy in the Bible.as Jesus Christ remained unmaried whereas King Saloman maried to 1000 women46, Abraham married to three,47 David married to 18 women48 and Jacob maried to four.ae There is no express provision in Bible that prohibits polygamous mariage.50 Therefore, Chtistians vrere permitted to have as many wives as they wished; however, it was only a few centuries ago that the Church has imposed the restrictions on the number of wives to only one.51 a1

hnp; / / e*wrkipedia.org/wiki/Dasharatha ffisited on Match 23, 2015). Hinduism and PolygamR aaaildble at http,//**..t induwebsite.com/hinduism/h-polygamy.asp (y'isited on March 23,2015). a3 See Hinduism and Polygamy aaailabh at http,//*-"r.t induwebsite.com/hinduism/h_polygamy.asp (visited on March 23,2015). 4 See Muslim ril/omen and the surprising facts about polygamy in India, available at: http://scroll.n/arnde/669083/Muslim-women-and-the-surprising-facts-about-polygamyin-India (Tisited on March23, 207 5). as Richard M. Davidson, "Polygamy in Old Testamenf,, aaailable at http://www.andrews.edu/-davidson,/Publications/polygamy /polygzmlfl/o20in%20OT.pdf ffisited on November 25, 2074). See also James p. Breckenridge, old Testa:ment Teaching On Polygamy,T Torch Tnnig Joanal l0-30 (2004), aaailabh at http://www.ttgst.ac.kt/upload/ttgst-resourcesT3/20123-17g.pdf (visited on March 23, a2 See

201s) a!

http://www.biblicalpolygamy.com/polygamists/solomon/ ffisited on March 29,201s). http:/ /www.biblicalpolygamy.com/polygamists/abraham/ (visited on March 29,2015i. a8 http://www.biblicalpolygamy.com/polygan:rists/david/ (isited on March 29,2015). ae http://www.biblicalpolygamy.com/polygamis*/iacob/ S/isited on March 29,2015i. s0 http://en.wikipedia.org/wiki/Legal-satus-of-polygamy#North_Amedca ffisited on Match23,2015). sl See Polygamous Mardages in India, aaailabh at http: / / paa201 0.pdnceton. edu/papers / 1 00754 ffisited on March 23, 201 5). aT

30

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Dt. HarumashidA. Kadri

+

Dower in Marriage

The Holy Qot'^ says. "And give to the women (whom you mary) their Maht (dower) with a good heart, but if they, of their own paft. of it to you, take it, and enioy it without fear good will, remit ^fiy of -y hatm (as Allah has made it 1awfir1)."52 According to this verse, M€hr is essential part of Muslim matriage and wife is entided to receive dwer ftom het husband at the time of marriage or thereaftef as pef fre agreement. However, the dower may be fofeited by her aftet the mpletion of a. manizge as it is het right to forfeit. The above verse of I{oly Qur'an is also subjected to criticism ctaiming that the provision of Dflchf under the above vefse is violative of women's Human Rights for &e following reasofls. Firsdy, Meht is a consideration for sale of tr/Ele/*\ it is bride pdce, and woman is considercd a chattel or property. Secondly, Mehr/dower is a price for sexual services provided tf h* to her husband.s3 Qura'n tefers the Mehr as 'sadaqah',s4 meaning the gift that is At the Siseo in good faith and as a good deed, out of genetosity.ss o6er place another word used is 'aif ,se which means revzard. It is a rssard or gift glven to the womafl who is joining new home by leaving hcr family. Mehr is an amount/ornament/property to be paid or pomised to pay by groom to the bride at the time of marnage/ntkzh -hid is essential for validity of marriage. It is right of the bdde and 6t of her father, to receive the Mehr. Hence, such Mehr caffiot be rymded as consideration in exchange for bride. It is illogical and irensible to consider it as considetation, which is paid to the gid &ctty and not to her father. Secondly, mariage in Islam is permanent ad for the whole life. Aftet m^fflage,bdde and groom, both love each ofieq serve each othet. And therefore, it is wrong to zssume that only rtxftur ptovides sexual services to her husband for which she has been paLl the Mehr as a considetation; rather it is mutual exchange of sri..t, love, affection and comfort to each other. Objective of EIIdy

Qut'an, Chaptet IV, Vetse 4.

sfultzna Kamal, "Mehr: An Advantage ot Dependency Reinforced?", Irry//www.wluml.org/ r'ode / 305 ffisited on March 23, 2015) -

auailable ah'

*Holy Qur'an, ChaPtet fV, Vetse 4. sl$lofar Ahmed, "The imporance of 1VIeht",

aaailabh at lry//www.dawn.com/nqvsf7266t7/the-impottance-of-mehr

D,0r Holy Qut'an, Chaptet )OO(III,

(Visited on November 25,

Verse 50.

@DES'sNavalmalFitodialawCollege,

(2015) 3

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31

Rights of Muslim Woman with Special Refetence to Matrimonial Causes f:riageis not mefely sexual pleasure, but it is to cfeate a deep, stfong, healthy and pemanent relationship. It creates vadous rights in favour of wife including right of maintenance, inheritance, fespect, status, etc. If it would have been only for sexual pleasure, it would have come to an end immediately aPter the parties become incompetent for sexual activity. Muslim marriage is permanent in nature and it exists till the divorce or death of the spouse. Hence, Mehr canflot be consideted as pdce for sexual services. In fact Meht/Dower is paid by husband to his new guest as a gift of honot, an expression of love and responsibility,

m

which in effect cfeates confidence in her mind & taises her love towards husband. It is a welcome kit given by gtoom to newly wedded bride, which she can use exclusively without interference by anybody . including husband. Such a gft by husband can nevef be equated with considetation and hence not violative of het Human Rights. Such provision of Mehr is absent in other personal laws. On the contrary, a iong existing practice of Dowry to be paid by the gful's side to the groom is based on the culture and religious scripts of Hinduism.sT This practice, although originated amongst the Hindus, it gtadually leached in othet communities including Muslims, Chdstians, etc. Though, it is form ptohibited by law, it still exists in India and found tn in the educated families.ss

5.

^ggr^v^ted

Divorce - The TriPle Talaq

There ate thtee types of Talaq, Talaq-a7-ahsaan, Talaq-al-hasan and Talaq-a1-biddah, based mostly on intelPretations of the Holy Qoran and Hadith, except the last one. Talaq-al-ahsaan is most approved, and Talaq-al-hasan is approved, by the Holy Quran and the Hadith, whereas Talaq-al-biddah is the ptoduct of interpretations not based on Holy Qor* and hence disapproved.ss Talaq-al-biddah ot Triple Talaq is pronouncement of three Talaqs in a single sitting and it is irrevocable. Such Talaq is also called as "Taltq-al-Mughallaz" i.e. Amarpal Dhillon, "The Origins of the Hindu Dowry Tradition", Match 2008, auailabh ah. http://www.mahtvjdya.cz/wp-content/uplo ads/2008/06/ dhillon-amarpal-dourry.pdf ffisited on March 29,2015). See also Dowry A Social Evtl., aaailabh at http://shodhganga.inflibnet.ac.in:8080/ispui/bitstream/10603/21634/73 /13-chapte{/o207. sz

pdf ffisited on March 23,2015).

hnp: / / en.reserorg/knowledge/dowry-system flisited on March 25, 2015). Dt. Shahzad Iqbal Sham, "Some Aspects of Marriage afld Divotce in Muslim Family La:t/' , aaailable at inttp,/ /pu.edu.pk/image s/ioumil/ szic/currentissue-pdf/E-

s8 se

1oh20Shehza,h20sharrfh20$slamicoh20Lavf/o20o9/o20Mttiage'h20atdoh20Divorce).pdf flisited on Match 25,2075).

32

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Dt. HarunrashidA Kadri irrevocable talaq. This parricular kind of Talaq under the Shari'at Law has been severely criticized for allowing the husband to divorce his wife unilaterally and irrevocably, without any reason and without scope for reconsideration or reconciliation, by just pronouncing the words -..r divorce you" thrice in one single sitting.oo It is also believed that once such pronorurcement is complete, their mariage comes to an end irtevocably and re-union between them is not possible unless she marries with a flew man and he divorces her after the marriage is consuinmated.6l

Let us discuss the commandments of Holy eor,r, regarding resolution of conflict between husband and wife. The Holy e*'"r, provides that, "rf the fear Shiqaq @reach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, Allah will cause their reconciliation."62 This verse requires the parties to appoint arbiters in order to resolve the dispute and if it is not possible to resolve, then proceed to divorce. The HoIy eur'an refemed Td"q, as "the most detestable of permitted things!"63 The tradition saylng of prophet Mohammed @BUrf says, "\x/hat Al1ah hates most among what is allowed is a divorce."64 These verses indicate that, though roJaq is permitted, it should be exercised only when there is a complete breakdown of mariage and as a last resort, since it is the most disliked thing for the a$rgt.y Allah, amongst the permitted acts. Holy Qur'an lays down that, "O Prophet! !flhen ye do divorce women, divorce them at their prescribed pedods, and count (accutately), their prescdbed pedods: and fear Allah yout Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are g"rtty of some opeo lewdness. Those are limits set by Allah: and any who o

See Islamic Law - And rtiple Talaq - over the Yeats - Need for r-hrnge!, mil& d. @,s:/ /bh"txchugh.wordpress.com/201 2/11/04/islannc-hw-and-triple-t t"q-over$c-

rcers-need-forchangef . See also http://www.hindustantimes.com/india-nevs/rrlple-urrr h-one-go-worst-form-of-divorce-scholats/articlel-1266854.aspx (visited on Merrh 25, 201s).

s http://en.wikipedia.otg/wiki/Nikah_Halala $/isited on Match 25, GHoly Q*'r.r, Chapter IV, Verse 35.

2015).

6 Holy Qur'an, Chapter II, Vetse 226-240. tr christel Gschwandtnet, "The Satus and Position of women In Isirm", aaailablc at h*tF:/ /ndtcaltruth.net/uploads/pubs/TheStatusAndPositionOf!7om6nlfl5lam.pdf (Visited

rn November 25,2014).

@DES's Navalmal Firodia Law College, (2015) 3 %ge,

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Rights of Muslim Woman with Special Reference to Matrimonial Causes

limits of Allah, does verily wrong his ("*"1 soul thou knowest not if perchance Allah will bflng about thereafter some neur situation.6s Those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then God is Fotgiver, Merciful. If they go thtough with

transgresses the

the divorce, then god is Hearer, Knowef'"66 'rMhen you divorce women, and they reach their prescribed term, then retain them in kindness and fetzin them not fot

i.i"tysothatyoutransgress[thelimitsl"'0zltotdains that, "Once the interim is firlfitledi lou may reconcile with them equitably, of go through with the sepatation equitably. You shall have two equitable witnesses witness the di.rorce befote god. This is to enlighten those who

believe

in God and the Last D^y' Anyone

reverences God, He will cteate an exit for him' "

who

68

In the light of the above vefses and Hadith , it may be stated that Tataqmay be gr.r." only when all four ptior steps have been taken to ,..o.r.il.je but failed to settle the dispute. Once such teconciliation is failed, Til^q has to be ptonounced during the period of purity i.e. ruhf.7o Furthet, both should continue to stay togethet for the period of Iddat. The period of iddat gives them furthet oppornrnity to reunite' If they are abie to reconcile, they can revoke the Talaq by simply reioining agananytime during the pedod of iddat. But, once iddatpenod is over, ,h. op,ion of rejoining ends, now the only option remains for ,..ro.iaion of Talaq is remarriage. Howevet, such tevocation of Talaq os

Holy

Q*'r.,

ChaPtff 65, Verse

1.

Holy Qot'-, Chapter II, Vetse 226-240' oz Holy Ci*,r", Chapter II, Verse 237. See also Holy 66

rs rs

Holy

Q*'*,

Q*'r.,

Chaptet II, Verse 228-232-

ChaPter 65, Vetse 2.

ThoHily euran itovrdes for fout step reconciliauon attempt befote going for divorce.

_

if Firsg When tiere is dispute, parties to sort it oot amolrg themselves fa'ilu,hanna); Second, the husband bmna);Thitd, (uabjttm separaflon physical f.-p"o.y tfr.", petsist, differences bdng about 2 has to explain once aga.in to his wife the setiousness of the situation and try to one from the arbiters, rwo before reconciliation (aaqnbi hanna);and Fourth, place the matter continuing The Rahman, A. Faizut family of each .porrr. (fubittation). See fot details ty.r.r.ry of the triple talaq, The Hindu, Aptil.a' 2014,

aaailable

at

frttp,/i***.th.hindo..o-/opinion/op-ed/the-continuing-tganny-of-the-tripletabq/ a:njcle327 7 9 08.ece ff isited on March 25, 201 5)'

is the purity after menstruation. It is the period of deanliness i.e' the pedod between the two menses without having sexual intetcourse'

70

T;hr

U|

@DES'sNavalmalFirodiaLawCollege, @15)3

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Dt. Harunrashid

A

Kadri

by rejoining ot remaffiage is possible only for two times (occasions) in [i.. 6n.., tht.. such Talaqs (on different occasions in whole life) ate complete followed by respective pefiods of iddat, revocation of Talaq by iefoining or remarriage is not allowed, unless she marries with another man and he dies of divofces her on his own ftee will aftet the marriage is consummated. These ate the limits set by Allah and any p..ron who transgfesses these limits commits sin.71 Therefote, the ;Tripl. Tala{' i.e. "Talaq-A1-Biddat"72 which allows three pronouncements of Tataqin a single sitting, has no basis in the HoIy q*'rrr and the Hadith'73 such an innovation in the lsliglon has been stongly forbidden. The Ptophet Mohammed (P.B.U.H.) has said "every innovation is misguidance and all misguidance is in- the Hellflre."Ta He further watned, "\Whoever innovates of zccofllmodates an innovator then upon him is the cutse of Allah, His Angels and the whole of mankind."75 Despite such clear and cogent guidelines rqafding the divorce, the Moulavis and Muftis have interpteted the oor.. oi q*rn to the effect that, three Pfonouncements of Talaq in one breath makes the Tataq irtevocable.T6 Because of such n Holy Q*'^r, ChaPter 65, Verse 1. u Biddat or Biddai meafls innovation or new invention in the matters of teligion' See for Proofs details Abu.Iyaad, A Concise Explanation of the Shadah Definition of Bidah and Its httP://www.bidah.com/articles/rwmefat: awikble blog Sunnah, Ptophetic ftom the erylanation-of-ttre-shadah-definition-of-bidah-and-its-proofs.cfm flisited on Match 29' Z)15). See also

ttp,i

/***.sahihmuslim.com/sps/sp.cfm?seclD=BDH&loadpage=displaysecuon.cfm

$rsited on March 25,2015).

Pkzada.(Itans: Sutan Akhtar), "Triple Talaq - In The Light of Quran and Sunnah" 5 auilabh at htrql / /www.muslim-

- Sh.-,

dlllooks /EngIish_TRIPLE-TALAQ-IN-THE-LI GHT-OF-QURAN-AND on Match 25,2015). -SUNNAH.pdf flisited htbrary. com /

;

from Jaabir bin Abdullaah and it is saheeh as declared by wl-Fataastza (3/58), aaailabh at Mafmoo' in Sh.rtih ul-Islaam Ibn Tayrniyrah hup://wwrv.sahihmuslim.com/sps/sp.cfm?seclD=BDH&loadpage=displaysection.cfm

R.po.t"d by an-Nasra'e e (l

/22\

on March 26,2075). d by Bukhaatee (12/ 41) and Muslim

;0rrsited Report

/ 140), aaailable a*' n prT/*rr*.trtitl-"slim.com/sps/sp.cfm?seclD=BDH&loadPage=displaysection'cfm (9

(Vrsited on March 25,2015). * tr,tofti Muhammad Yusuf Danka, The Giving of Three Talaaqs in One Sitting According to Shari'ah, ctoydon Masiid & Islamic centfe Q5/04/2008), aaailable at

hup://www.croydoomosqoe.com/pdf/The-Giving-of-Three-Talaaqs-in-One-Sitting-Ac 5)' See also hup: / Iwwwabigm.i sag...om / newdeoband-fatwa-no -i oke-say-ta1aq-thdce-and-youdivtrce-yout-wife.htrnl flisited on Match 29,2015)' See also

cording-to-shariah'pdf ffisited on March 29,

201

hap://wwwanindianmuslim.c om/2070/77/darul-uloomdeoband-tums-into-fatqza.htrnl rvi.i..a on March 29,2ol5). See also http://defenceforumindia.com/fotum/politics-

@DES'sNavalmalFitodialawCollege,

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Rights of Muslim Woman with Specid Reference to Matrimonial Causes

interpretations and also m^y be due to the lack of proper understanding of the Qura'nic injunctions, the practice of Triple-Talaq is widespread among Sunni Muslims and it has been recognized as legally valid by some religious scholars.TT Because of ignorance, the innocent people fall prey to such intelpretations and adopt the itlegal form of Talzq.In order to eradicate such un-Islamic form of Talaq, a wide awareness about the commandments of the Holy Quan and Hadith is required. The Talaq-al-Biddat is an innovation which is forbidden in Sharia, and hence the new form of Talaq i.e. Talaq-AlBiddat is not enforceable and bad in lavr. The Honorable Supreme court has dghdy declared such Talaq as immoral and not enforceable as it does not give the husband a chance to reconsider or reconcile the dispute which is required by the Holy Qur'an.7a Before the revelation of Holy Qur'an, under the customarylzw, the practice of divorcing the wife at limidess times and reverting back to her as per his wish was prevalent. The successive divorces and reverting back was so intense and rampant, that caused hardship and a sense of uncertainty for the woman for whole hfe.7e In order to avoid such harassment, the Holy Qor'"., puts a limit on the maximum number of times one can divorce his wife and revoke it agatn so as to restore the marital relationship. He can divorce for two times (occasions) in life and may revoke ig however, if he divorces third time it is irtevocable and they cannot come together aga:nunless she marries a new man, maniage is consurnmated and he divorces her of his own will or dies.

It is further

argued that, the Shada Law is discriminatory as it grants a unilateral power of divorce in favour of husband.s0 Before we soaety/33872-drunk-hubby-says-alaq-thrice-deoband-saysdivotce-valid.htrnl

March29,2015). 77

flisited on

Nehaluddin Ahmad,'A cdtical Appmisal of "Triple Divotce'in Islamic Lzs/',23(7) rntJ

r-aw Polry Fanil153-61 (2009) (fot detailed analysis Qw'anic vetses and Hadith on Talaq). 78 Khatoon Nitav. State Of U.P. And On,2003 (1) Awc 128 sc,JT 2002 o) sc 631, 2002 (6) scALE 765; Mut Rttkia Khatun v. Abful Ktalique l-.asktr, (1981) 1 GLR 375; si Jiatddin Abnedv. Mrs. Anvara Begm, (1981) 1 GLR 35l;RabnatUllalt And Kltatoon Nisav. State Of U.P. And Ors., n (1994) DMC 64 7e

Shams Pkzadz (Irans: Sulan Al
library. com

/dllbo

oks

/EngIish-TRIPLE-TALAQ-IN-THE-LIGHT-OF_eLrRAN_AND

_SUNNAH.pdf (Visited on March 25,2015). 80 See Islamic Law And Triple Talaq - over The Yeats - Need For change!

aaaikble

at

https:/ /bhatatchugh.wordptess.com/2012/11/M/islzmlc-lew-and-tdple-talaq-ovet-the-

36

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Dt. HarunrashidA. Kadd

bqin to discuss this issue, we should understand the philosophy of Mariage and ralaq. Man and woman cannot live life independently, frey are interdependent by riature. Both of them need a companion to L"d a peacefirl and complete life. Therefore they are .rot .r.i..ted to livl wrthout a spouse. A man and awoman can enter into a n,ptial tie, dich creates reciprocal dghts and duties. The wife is not "16mately ellowed to m^ffy with another man in the lifetime of husband, whereas husband is allowed to maffy with another woman to the maximum of 6ut at a time.81 If wife wants to maffy with another man, she can do so only after getting divorce from the first husband. Therefore, for *oman divorce is in fact an end of her maitaltie with the husband and Hom to marry with another man of her choice. consequently, divorce to wife has been understood to mean primarily, a freedom to merry with another man, which she cannot do so during their marital tie. Therefore, by gving divorce, husband confers a freeJom on her to marry with another man. on the other hand, as the husband may merry with another woman during the existence of first wife, he needrDt to annul his mariage with first wife or get freedom from her as he k dready allowed to maffy with four. It means he can marry even vifiout divorce from previous wife. To be clearer, wife is under ohligation of not marrying with another, and always remains under the fuy to perform maital obligations, which she needs to be relived ft,om, for second marriage, which the husband can do through divotce. rf husband v/ants to marry even when first marriage exists, he need not bc rclieved from his wife as he is already allowed io another end keep first wife also. Now the question may arise^^rrywith that if he wants to m2try with more than four women (the maximum permissible limit for hsband) whether he needs to be divorced by his wife? The answer is h ngative as even the fifth marriage of husband is not void and is irregular (fasid) which becomes valid on death or divorce of any rydy of previous four wives. The fifth wife enjoys all rights once it is rqularized. Further, the Sharia Law permits the wife to seek divorce from hcr husband in otder to end the madtal tie by 'Khula, mode of pers-need-forchange/ (Visited on Match 29,2015).

See also

Llry//www.hindustantimes.com/india-news/riple-talaq-in-one-go-wotst-form-of-divorcedohrs/artid e1-7266854.aspx flisited on Match ZS, ZOIS1. m Though he is allowed to maffy only fout, the fifth not void but it is iregular ^u;^grin rd m become valid on death ot divorce of any of previou-s four wives. @DES's NavalmalFirodialawCollege, (2015) 3 %J[du-

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Rights of Muslim Voman with Special Reference to Matrimonid Causes

for

induding impotency, insamty, adultery, etc. with the consent of husband. If the husband denies the demand fot Khula, she may get it done through Kazi. Furthermore, accotding to "Talzq-i-Tafixrid" whete she may enter into an agreemefit the time of ^t m^rflage and get the rights of divorce delegated to herself or any other person of her choice. In such case, the wife can use the rights delegated to her at any time in life and may divorce her husband.s3 divorces2

arry reasons

Even in case of divorce by husband stated above, the most apptoved forms of Talzq tequire appointment of Arbitrator. Unfortunately, due to improper intelpretations and conflicting views of scholars, society is adopting the 'Triple-Talaq' system which is not founded on any Quta'nic commandments,s and which is already declated as immoral by the Courts. Therefote, it is not tme to say that the Sharia Law grants a unilateral and arbitary powet of divorce on husband.

6.

Conclusion

Sharai marriage is a solemn covenant between husband and wife to lead a maital life. It creates various obligations and confets various rights on the spouses. Consent of the parties play a pivotal role in the rn rrL^ge undet Sharia Law. It ptovides for ftee consent of both the parties to marriage in exptess terms.85 It ensures the women's right to 'Sfoman choose fteely her spouse and promotes respect for womefl. has been confered with an unequivocal and absolute right to enter into mantal tie with the person of her choice. This particulat aspect is still lacking in the Hindu Martiage Act, 1955. The consent of the parties is 82

The Holy

Q*'*

Chapter II, Vetse 226. See also Dt. Shahzad Iqbal Sham, Some Aspects

of Matriage arid Divorce in Muslim Family l-,aw 29

aaailable

at

http: / /pr:-edu pk /'mzges / iowr'al / szic / ctttrentis sue-pdf/E-

Toh2}ShehzaohZ}shanoh}}Qslznico/o20Lzsf/o20oP/o20Manage'h20ardoh20Divorce).pdf (Visited on March 25,2015). s: Lucy Cartoll and Harsh Kapoor (edit), "Talaq-i-Ta6rid: The Muslim Woman's Contractual Access to Divorce: An Infotmation KiC', arailable at

http://www.wluml.org/sites/wluml.og/files/import/english/pubs/pdf/misc/talaq-itawfid-eng.pdf (Visited on March 25,2015). 8a See Nehaluddin Ahmad, "A Critical Appraisal of 'Triple Divorce' in Islamic La'd',23(1) Int J l-aw Poliry Fa:nily 53-61 (2009) (fot deailed analysis Qur'anic vemes and Hadith on Talaq). 8s Sahih Muslim,

Book 8, Kitab Al-Nikah, Number 3303,3306 e. T07. See also Holy Chapter Verse 21. See also Abdul Rahman I, Mardage, aaailabh at 4, Qur'an, http,//t **.islamswomen.comf mariage/intro-to-marriage.php ffisited on November 26, 2014).

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Dt. Harunrashid A. Kadd :aesumed and express consent is not required for validity of marriage. \frrriage is valid if the essential customary ceremony Iike Saptapadi, ezc. is petformed. This particular Act is not in conformity with the

Inrernational conventions. Hence, the Hindu Marriage Act, 1955 :eeds to be amended in otder to make the free and firll consent of the rarries (n express terms) essential for validity of mariage. The feature of Sharia Law requiring the husband to pay Dower to the bride, is absent in othet personar raws. Mehi is paid by :usband to his new guest zs z gsft of honor, an expression of love and responsibiliry which in effect creates confidence in her mind & raises ier love towards husband. It enhances the status of woman and in-sures &s"ity. on the cofltaa.rf, the dowry system, although it is a crime, is deeply rooted in the Indian societies. This evil of dowry has dlso been entered in the Muslims in India and the nerghbtdng countries, owing to intercultmal exchanges. This particrrlar aspect o-f :nerriage in the form of dower takes the Sharia law beyond the espectations of fnternational Conventions.

ueh,

The system of rriple Talaq(Irrevocable Taraq) is widesptead in :nrnoi Muslims and has been recognizedby clerics as valid. Htwever, :r is not apptoved by the Holy Qua'n and the Hadith. This form of -leq is eflcouraged owing to wrong interpretations based on traditions ror approved by Holy Qwa'n.86 The Holy euta'n at the fitst instance discourages Talaq and if at all ralaq is given, it gives multiple oppornrnities for the couple to reconcile. The practice of Triple-Talaq Ehich is violative of Human Rights of women is sinful in religion, and^ declared as illegal by the Courts in India.87 The practice of Triple Tataq mar be avoided by focusing more on original text of the Hoty e*^r, ;od Sahih Hadith and increasing the awareness about it. Furher, such sjoful practices should be strongly discouraged by one and all. The polygamy system in the sharia law is in fact a limitation on multiple marriages as against the pre-euta'nic culture, with special ft

j

Shams

Pizaaa (trans: Sultan Akhtar), "Triple Talaq - In The Light of euan and sunnah,,

caihble at http://www.muslim-

irarv. com /dllbooks / EngIish-TRIPLE-TAIAe_IN_THE_LIGHT_O F_eURAN_AND SL\NAH.pdf (Visited on March 25,2015). \ F4', Niyv. State Of U:P. and O*.2003 (1) AWC 128 SC,JT 2002 O) SC 631, 2002 (6) :c{LE 165;Mut.RtkiaKbatmv.AbdutKlaliqur-askar,0981) 1GLR375; siJiaaddin" -liarcdv. Mrs. Anaara Begtn, (1981) 1 GLR 358;Rabnat ullab .--P. And Orl,II (1994) DMC 64 @DES's Navalmal

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causes Rights of Muslim voman with special Reference to Matrimonial

and it is emphasis on only one marriage. It is permitted with a purpose lt th. interest oljustice to woman, her secutrty and Pfotection'

AscomparedtotheStatusofwomaninotherpersonallaws,she the enjoys a bettei position in Sharia Law. If understood propetly, International commandments of Holy Qurzfl ^te compatible with atl to Conventions. The commandments of the Holy Qurz'n aimed of rights pfotect rights of women in all respects. It guafzntees human ioo.rrr' cJmp^rrti.rely better than any other personal laws' Looking at is the Pre-Qur?nic practices, it may be stated that, the Shari'a Law developeJwith an obiective to enhance the status of woman

tr

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