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Like other women Muslim women, are also becoming increasingly
conscious of their rights and are asserting themselves for
realization of their rights. Women in general and Muslim women in
particular are suffering because of denial of their rights in this
patriarchal society. Greater the degree of illiteracy, greater the
lack of consciousness and hence greater their suffering. There being
much greater illiteracy among Muslim women in India there is woeful
lack of awareness among them about their own Islamic rights. Islam,
as I have repeatedly pointed out, lays great emphasis on sexual
equality and, accordingly, granted women equal rights in marriage,
divorce, ownership of property etc. However, except for very brief
period of early Islam, women could never enjoy equality of these
rights. The 'Ulama, with all their sincere commitment to Islam, were
after all product of their time and interpreted the Divine word from
male perspective. They were also influenced by dominant male
attitude of their times and took for granted in right earnest the
prevalent male attitude towards women.
One of the prevailing assumptions in medieval ages was that women
had deficient intelligence (naqis al-'aql) and hence should not be
entrusted with responsible jobs. As late as mid-twenties of
twentieth century Maulana Ashraf Thanavi, a great 'alim in his own
right also said that since women were deficient in intelligence they
should not be entrusted with the responsibility of pronouncing
divorce. Recently when Hosni Mubarak, President of Egypt, got a law
passed in Egyptian Parliament empowering women to divorce their
husbands, the 'Ulama opposed it vehemently saying that women were
emotional and hasty in decision making and if women were given right
to divorce family life would be destabilised. The opposition from
the 'Ulama was so intense that Mubarak had to drop other measures in
order to get the law giving women right to divorce passed.
Many rights which were accorded to women by the Qur'an were
denied to them under such assumptions. It is important to note that
the Qur'an by itself does not make any such pronouncements. It
addresses all human beings - men or women - as u'lil albab (i.e.
people of intelligence) and makes no discrimination between men and
women on such counts. Though there is difference between men and
women on certain functional matters there is no difference between
them in matters of rights. Also, though the Qur'an nowhere says that
a woman's duty is to look after her husband and children and do
household work, the whole Islamic juristic literature is full of
such assertions. Such assumptions come not from the Qur'an but from
the prevailing social ethos.
The Muslim Personal Law in India is also based on many such
assumptions. As pointed out above, Maulana Ashraf Thanavi himself
thought that the women were deficient in intelligence, and from such
assumptions all the problems of Muslim women flow. What is shocking
is that despite evidence to the contrary the 'Ulama's assumptions
acquire divine status and are thought to be immutable. The Qur'an
grants women right to divorce on giving fidyah (compensation) if she
fears she cannot observe Allah's limits, the 'Ulama made it subject
to husband's consent on the assumption that she would take hasty
decisions and would destabilise family life.
The Muslim women today are demanding their Qur'anic rights. They
want to liberate themselves from medieval interpretations of the
Qur'an. However, the Muslim personal law board is resisting such
demands from women. Some Muslim women, aware of their Islamic
rights, drafted a standard Nikahnama and submitted it to the Board.
Since marriage is a contract in Islam, standard contract conditions
can be drawn up and signed at the time of marriage. A woman is
entitled as much as a man to lay down certain conditions at the time
of entering into marital contract. A woman thus can lay down a
condition that her husband will not take second wife, or that he
will delegate right to divorce to his wife (talaq-e-tafwid) etc.
These conditions and similar other conditions, if incorporated into
a standard Nikahnama as prepared by some Muslim women and men, could
solve much of the problems being faced today by Muslim women without
bringing any change in the personal law.
Such Nikahnama is well within the Islamic law and even the 'Ulama
of the stature of Maulana Ashraf Thanavi had drawn up such a
standard Nikahnama way back in the thirties of the twentieth
century. However, the members of the Muslim personal law board are
sitting tight over the proposal. The Nikahnama submitted to the
Board more than an year ago was sent to several 'Ulama for their
approval before it was submitted to the Board and it received their
approval. There is no condition in it which can be construed as
un-Islamic. Even then the members of personal law board are
reluctant to approve it.
Recently there was news that the Board is going to consider the
Nikahnama in its sitting in October in Bangalore. According to some
sources, there are differences among the members of the Board
regarding the draft Nikahnama. It is reported that the Board has
scripted its own Nikahnama which is rather watered down version of
the one submitted by the Muslim women from Bombay. A five member
panel set up by the Board for this purpose has prepared this script.
A spokesman of the Board has said that once this standard Nikahnama
comes into force triple divorce on account of which many Muslim
women are suffering today, will no more be possible. Abolition of
triple divorce in one sitting will be a great relief for Muslim
women. This form of divorce which all 'Ulama agree is altered form
of divorce and one which has been condemned by the Prophet (PBUH) is
still valid in India though it has long been abolished in other
Muslim countries.
It is reported that the Nikahnama being considered by the Board
lays down special conditions for divorce, including the right of
wife to claim khula' (divorce initiated by wife). The Nikahnama
under consideration of the Board is also likely to restrict
polygamy. Like triple divorce, polygamy is another serious problem
for the Muslim women. The Qur'an has permitted it under exceptional
conditions but these conditions are violated in practice. The Board
should strictly regulate it as has been done in other countries
including Pakistan.
With restriction of triple divorce and polygamy Muslim women will
not face much legal problems. Other laws of Islam are very fair to
her and do not pose any problem. Triple divorce also is not
universally practised by all Muslims. The Shi'ah Muslims do not
recognise it and even among the Sunni Muslims Ahl-e-Hadith reject
this concept. But the Shi'as and Ahl-e-Hadith are in minority and
hence large number of Muslim women continue to suffer.
It will be a great change if the Muslim personal law board
approves of the Nikahnama, which its own sub-committee has drafted.
Its present chairman Maulana Mujahidul Qasmi is more liberal and is
in favour of approving the new Nikahnama. He is also connected with
the Fiqh Academy (the academy of the Islamic jurisprudence) which is
actively engaged in taking up newly emerging problems and proposing
changes. The Fiqh Academy has also prepared a volume on Ishtirat fi
al-Nikah (The conditions in Marriage). This volume has examined in
great details the conditions which can be stipulated by husband and
wife at the time of marriage and has the approval of large number of
'Ulama in India from different schools of thought.
Thus it is a good news that the Muslim Personal Law Board has
almost decided to finally approve the standard Nikahnama in its
sitting at Banglaore on 29th October. If finally approved it will be
a first significant step in the direction of the reform of Muslim
personal law in India. Most of the Muslim countries, with some
exceptions, have already carried out reforms benefiting the women.
In fact the secular India should have taken lead in this direction.
However, the things seem to be moving although belatedly and these
changes should be welcome by all those concerned with the plight of
Muslim women.
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