This Article has been written by Mr. D.V.V Tanay Raj, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh.
Personal laws are mired with controversies on questions of gender equality. In India, where each community is governed by its own sets of personal laws, Muslim Personal Law, especially, is perceived to further gender inequality. Many people who support equality are confused by the fact that laws in India are still categorized based on religious identities. Despite the fact that the Indian Constitution is based on a “secular” structure, religion and the political system in India are inextricably linked. Article 44 of the Indian Constitution envisions a Uniform Civil Code for its citizens; however, local personal laws apply to each community. The legislative body codifies laws pertaining to Hindus, Christians, and Parsis, while the Muslim Personal Law is mainly uncodified. The stark differences between various personal laws, which are based on religious texts and customs, impact the rights of two individuals who are similarly situated but fall under very different sets of laws simply because they practice different religions.
Women’s rights under Muslim personal law have been hotly debated because of the underdeveloped and backward social status of Muslims generally in India, as highlighted by the Sacchar Committee Report, as well as the perception that Muslim societies are tools for the suppression of human rights. In India, there is a pervasive tendency to hold Islamic laws responsible for laws that are perceived as severely oppressive towards women. The task of providing justice to Muslim women in India is left to the judiciary, which in its hypocrisy has treated Muslim personal law as untouchable while simultaneously reshaping other minority/majority personal laws. This is due to the lack of codified Muslim personal law in India and the widespread misconception that Islamic law is a homogenous entity.
“MINORITIES”: A TERM UNDEFINED IN THE INDIAN CONSTITUTION
The Indian Constitution uses the word “minority” and its plural forms in Articles 29, 30, 350A, and 350B, but it is not defined there. The question of precisely who qualifies as a minority has been the subject of intense debate in India recently. In TMA Pai Foundation & Ors v. State of Karnataka & Ors (2002), the Supreme Court of India ruled that, for the purposes of Article 30 of the Indian Constitution, a minority—religious or linguistic—is determined with reference to a state rather than by taking into account the population of the nation as a whole. Some religious minorities have struggled to receive national-level recognition by India’s central government as a result of state-based recognition of these groups.
One such instance is the Jains, who have religious minority status in a number of states, including Uttar Pradesh, Uttarakhand, Maharashtra, Himachal Pradesh, and Madhya Pradesh.
The Jains filed a petition with the Indian Supreme Court requesting that the central government grant them parallel national recognition.
The National Commission for Minorities in India supported the Jains’ demand, but the Supreme Court left the matter up to the Indian central government without rendering a definitive ruling.
Personal law, which includes laws pertaining to inheritance, divorce, family relationships, custody rights, and other matters, is a contentious area for conservative Hindu and Muslim groups as well as the women’s movement. It delineates not just the dynamics of marriage and family life between men and women, but also the dynamic between women and the government. Personal laws in post-independence India are regulated by the corresponding religious laws, but civil and criminal laws are secular. Muslim women were therefore subject to Muslim personal law. Muslim personal law, which had not seen any legislative changes since the 1937 Shariat Act and the 1939 Dissolution of Muslim Marriages Act, came back into focus with the passage of the Hindu Code Bill and the Shah Bano controversy.
All Indians are granted equal citizenship rights by the Indian Constitution, which also offers protections for minorities.135 Constitutional protections are designed to guarantee all communities, including Muslim communities, full and active participation in the public life of the nation. All citizens are entitled to equality under Article 14 of the Constitution, which prohibits discrimination based on caste, language, or religion. Article 16 guarantees equal rights for all minorities in public employment. Minorities are not required to attend state-funded religious institutions and are entitled to the same treatment as institutions managed by other groups under Articles 26, 27, and 28 of the Indian Constitution.
The right of minorities to run their own educational institutions is protected by Article 30. In order to bring the “Backward Classes” up to par with the general population, they are entitled to preferential treatment under Article 249 of the Indian Constitution. This includes allocating “Backward Classes” seats in national and legislative bodies, as well as in public employment and educational institutions. However, the structural injustices that support caste, class, and gender disparities have not been eliminated by successive governments; instead, their policies regarding reservations have been driven by political considerations.
For instance, the Uttar Pradesh government designated 21 Muslim and 37 Hindu castes as “Backward Classes” in 1977, giving them preference in employment and education.136 The High Court overturned the government order, ruling that it was unconstitutional because it included groups whose economic situation did not call for particular accommodations.
The continuation of “reservation for the Muslim community as a Backward Class in public service and higher education” was demanded in 1987 by the Muslim Majlis-e-Mushawarat. This would not, however, ensure that the reasons for their disadvantage would disappear or that the people who truly deserve reservations could take advantage of them.
It’s also important to consider the political backdrop of the current demand in Parliament for reservations for Muslim women. Muslim lawmakers who have shown scant regard for the welfare of Muslim women with regard to family law, work, education, and health have made this demand. The BJP and Congress Party’s pro-reservation stances against a changing caste composition of Parliament following the implementation of caste reservations for the “Backward Classes” can be explained by their expectation that upper caste, upper class women would be the primary beneficiaries of such a policy, maintaining rather than upending the status quo. Seema Alavi has contended that, The Muslim MPs’ demand for a separate quota for themselves is not motivated by the interest of Muslim women in this particular context. Their main source of concern is the massive power struggles that their respective political parties are involved in.
After fifty years of independence, women in Muslim communities still face many obstacles as Indian citizens and members of the country’s largest minority. Their low socioeconomic standing is a reflection of their limited social opportunities, which is a characteristic shared by Muslim women as well, but is made worse by their marginalization in the larger context of social disadvantage faced by the majority of Indian women.
Few recommendations can be taken in order to make better things for Muslim minorities in India :- [1] Strengthening human rights
[2] Reform and Constitutional provisions
[3] Self-empowerment
[4] Improving the economic status of Muslims
[5] Improving the educational status of Muslims
[6] Removing social prejudice against Muslims
[7] Sensitizing the police and paramilitary forces towards human rights
MUSLIM PERSONAL LAWS :
Wakaf Acts: Related to Property
The body of laws that can be referred to as Muslim laws dates back to the British Empire’s era. The Mussalman Wakaf Act, which was passed as a result, was a significant piece of legislation that imposed numerous guidelines on the management of Wakaf properties. Among these guidelines was the requirement that accurate records and audits be kept in order to monitor all transactions pertaining to the properties. Subsequently, a number of complementary provincial acts were passed. At the moment, the Central Wakaf Act and the local Acts are both applicable.
1937’s Shariat Act
The Shariat Act, which governs the application of Muslim personal law in India, is made up of just six sections.
Section 2 enumerates the topics that Indian Muslims believe should always be covered by Muslim personal law. Interstate succession, special property females, gifts, marriage, different types of divorce, maintenance, guardianship, dower, trusts, tryst properties, and Wakafs are a few of these.
Its jurisdiction does not extend to matters pertaining to land used for agriculture, charitable institutions, charitable organisations, or religious endowments. They were left out because they conflict with state laws already in place.
The Wakf Act,1954
One of the significant laws pertaining to Muslims that the parliament of independent India passed in 1954 was the Wakf Act. The purpose of the Act was to enhance Wakf board administrative procedures. As a result, each state is required by law to establish a Wakf board.
Muslim Marriage Dissolution Act
According to Section 2 of the Act, a woman married under Muslim law may request a decree of dissolution on a number of grounds from the husband, including cruelty, neglect, a lack of correspondence, imprisonment for a period of seven years or longer, a failure to fulfil marital obligations for a period of more than three years, a period of more than two years of insanity, or if the marriage was solemnised when the woman was under fifteen (15).
Marriage under Islamic Law
In Islam, marriage is the only option because it forbids celibacy outright. It is not a voluntary life vacation. Contrary to most other religions, marriage in Islam is just viewed as a contract, known as an Ibadat or Muamalat, rather than a sacrament. However, some experts argue that the nature of a marriage contract differs from a civil contract because it cannot be concluded based on future events. It cannot be done for a set amount of time either. The one exception to this is muta marriage.
The requirements for marriage, as stipulated by Islamic law, are as follows:
[1] One party to the marriage must make a proposal and the other party must accept it.
[2] Both the proposal and the acceptance have to be made at the same meeting.
[3] The parties need to be capable
[4] Two male witnesses, or one male and two female witnesses, who are sane and present at the moment of the proposal and acceptance of marriage, are required.
[5] Writing is not required, nor is attendance at any religious ceremony.
[6] Polygyny is permitted in some situations, while polyandry is completely forbidden.
Divorce under Muslim Law
In accordance with Muslim law, a divorce may be finalised by a court order or by the parties’ own actions.
As a result, the incapacity of the parties to cohabitate is a legitimate cause for divorce. Either a man or a woman may start a divorce. Therefore, in this instance, uttering a word that suggests the husband’s intention suffices. The wife can only file for divorce on her own if her husband grants her the authority to do so. These woman-initiated divorces are referred to as Mubarat or Khula
Inheritance under Muslim Law
If there are children, the woman is entitled to one-eighth of the share; if not, she is eligible to get one-fourth. If there are multiple wives, the one-eighth is split equally between them. If there are children, the husband inherits one-fourth of the wife’s estate; if not, he inherits half of the estate upon the death of his spouse.
If a daughter lives in a single family, she will receive an equal portion of the property—two thirds. Should there be just one female kid in the household, she will be entitled to half of the assets. If the deceased kid had grandchildren, the mother receives one-sixth of the property; if not, she receives one-third.
Islam changed the ancient customs surrounding inheritance, although it did not completely eradicate them. When a minor child cannot take care of themselves, an adult guardian must be appointed. This adult guardian must be able to make choices on behalf of and in the best interests of the minor child, whether they are a girl or a male. The types of guardianship recognized by Muslim law include the following:
- A guardian by nature or by law
- A guardian by testament
- A court-appointed guardian or a legally mandated guardian
- The protector in fact.
The following situations provide the court the authority to remove the guardian:
If the husband has betrayed the woman’s confidence;
If he has not fulfilled his obligations as the husband;
The husband lacks the ability to carry out his responsibilities;
The husband has not treated the woman properly;
The husband disregards the court’s instructions; and the husband is also unaware of the Guardianship Act’s requirements.
When the spouse has been judged to be morally reprehensible
possess different goals in mind as a guardian once the wife’s status as a minor is achieved.
The foundation of Islamic inheritance law is the identification of two separate groups of legitimate heirs: the male agnates, who are considered the heirs of the tribal customary law, and the new uranic heirs.
With this inheritance scheme, new classes of heirs were added while previously eligible groups were removed. Many successors received special privileges, which occasionally led to the property being divided into smaller halves.
REFERENCES :
[1] https://www.legalserviceindia.com/legal/article-5493-muslim-personal-laws-in-india.html
[2] Constitutional and Legal Challenges Faced by Religious Minorities in India By U.S. Commission on International Religious Freedom.
[3] Report on Muslim Women in India by Minorities International Group
[4] The Indian Divorce Act, 1869 (Act IV of 1869).
[5] Married Women’s Property Act, 1874.