Inequality refers to the phenomenon of not treating people on the same terms. Personal laws become subject to unequal treatment easily. In Muslim personal laws, the provisions are biased towards males in some categories and towards females in others.
The Court of law is the overseer of rights enshrined in the Constitution of India. Article 14 asserts the Right to Equality before Law and Article 15 covers Prohibition against Discrimination. The Court of law strives to eradicate the disparity through various precedents.
Marriage is a sacred solemnization of a bond. Muslim marriage is considered a contract between bride and groom.
The marriage consists of an offer, acceptance, and consideration in the form of Mehr is a promise to the female partner. The concept of Mehr is an essential religious practice and is promised as a form of maintenance after being provided after talaq.
There is no such provision of Mehr for the male partner as he is impliedly considered as a guardian of his wife.
Age of Consent
According to the aforementioned contention that Muslim marriage is a civil contract, consent plays an extremely prominent role. And, to develop a rational understanding for entrust assent, the age of majority is essential. The age of majority in Muslim personal law is 15 years. Moreover, the minimum age to get married for girls is 9 years and for boys 12 years.
The disparity in the age of the majority considered for marriages is a vindictive epitome of gender bias in Muslim personal law. This extends the stereotyped formula of society that the wife should be younger than the husband.
Furthermore, the age of the girl does not hold prominence; the guardian’s permission is sufficient to execute the marriage ceremony.
The term polygamy refers to a procedure of having multiple spouses. The Muslim personal law allows the phenomenon of polygamy, and it applies to males who are its subjects. The holy book of the Quran permits the male followers of the Islam religion to have four wives.
The concept a fortiori exhibits inequality as the female admirers of the same religion do not possess the right to polygamy. Furthermore, polygamy puts a financial burden upon the husband as maintaining multiple wives requires a substantive division of income. And, such division leaves an impact on the living standards of the first wife or previous wives.
Muslim marriages require witnesses during the commencement of the ceremony. The number of witnesses required by the personal law is – two male witnesses or a single male witness along with two female witnesses to assert the execution of marriage.
The requirement of one male witness in comparison to two female witnesses exhibits the intent of valuing two females equal to a male witness. The testimony of two female witnesses and one male witness has homogenous reliance.1
Custody of Child
The law of custody of child and guardianship runs parallel to each other but is diversified in nature. Law also considers their concept analogous to each other.
Custodial right is entrusted to a Muslim mother till the age of 7 years in the case of a son and the age of attaining puberty in the case of a girl child. Moreover, the father is considered a natural guardian of the child, and the mother is not entitled to become a guardian even after his death.
After the death of the father, the executors of the father become the guardian of the child under the Sunni school of Muslim law.
Inheritance and Succession
Women who belong to Islam do have the right to acquire property. Nevertheless, they are only entitled to half of the shares of male members of the same religion.
Additionally, even after acquiring a share in the property, only men are termed as legal heirs.
In Muslim personal law, the most discriminatory subject is the practice of divorce. Male members are allowed to give divorce or declare the divorce without attesting any reasoning for the same.
Nonetheless, Muslim women have close to no right to divorce in their personal law. There is no ground for a woman to declare divorce from her own wish. A woman who is subject to Muslim law can only go for divorce if her husband has delegated her right to take divorce.
This phenomenon is known as Talaq-e-tafweez under Muslim personal law. This was asserted by the court of law in Md. Khan vs. Shahmai.2
The article is not subject to a conclusion as there are several initiatives taken by the court to nullify the bias.
Goa has become the first state to implement Article 44 of the Constitution of India which asserts a Uniform Civil Code for all.
Additionally, the court with the help of several precedents initiated certain evolutions in the Muslim personal law. In the case of Yunusbhai Usmanbhai Shaikh v. State of Gujarat, the court of law clearly stated that the age of majority for girls must be 18 years.3
In Md. Ahmad Khan vs, Shah Bano Begum (AIR 1985 SC 945) the Apex court confirmed that the practice of triple talaq is not an essential religious practice in the Muslim religion. And, the practice is contrary to provisions for equality in the Constitution of India.
by Khushi Shukla
Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Adjuva Legal and Adjuva Legal does not assume any responsibility or liability for the same.
- Surah-An-Nisa [4:3]
- AIR 1972 J&K 8
- Criminal Misc. Application (For Quashing and setting aside FIR/Order) No. 8290 of 2015