Islam is one of the great religions of the world, whose followers are found in every country and continent. As an egalitarian belief system, it introduced the concepts of universal brotherhood and non-discrimination among Muslims on the ground of sex or race. Islam gave the women fundamental rights and championed all movements to improve the status of women, at a time when societies were overtly traditional and socially underdeveloped. This paper attempts to examine the following questions: Does Islam provide for gender equality? To what extent this equality of sexes is found in practice in Islamic societies? Are there any deviations from the scriptural precepts of gender equality? What reformative measures have been undertaken in Muslim countries to improve the status of women by enacting laws? What has been the picture of India in this regard? Answers to these and related questions are explored in this paper.
Islamic Ideals and Precepts
Both the Quran and the Prophetic traditions elevated the status of women and gave her human, civil, social and economic rights never previously given by any religious system. The Muslim woman has an independent personality, equal to man in religious duties, in the right to education, in reward for her deeds as well as in defending her beliefs. She has complete independence and total control over her possessions. Islam gave her equal legal capacity with the man. This means that she has the ability to enter into all kinds of contractual arrangements and to conduct business on her own without the need for her husband’s consent. Such a legal right, given in the 7th century, is yet to be achieved by the married woman in some contemporary societies where the husband has a certain right to oversee his wife’s affairs. French women did not achieve this legal right until 1965.
In inheritance, the woman, as a daughter, gets half of her brother’s share, but under other circumstances she gets as much as or even more than other men in the family. Women’s share in property varies depending on the circumstances. In Chapter 4, Verse 7 of the Quran identifies four circumstances:
- Higher share for males: the son takes twice as much as his sister, if the deceased is their father.
- Equal shares for males and females: “The female takes an equal share to that of the male if the deceased is their son who has children of his own: ‘And to parents (of the deceased) a sixth each of the inheritance, if he has children’”.
- Equal shares are given to males and females (brother and sister) who are distant heirs: ‘to each of them twain (the brother and sister) the sixth’.
- Higher shares for the females than men: The female who is the daughter (with no siblings) of the deceased takes half and his father takes one sixth. And if there be only one (daughter) then the half, and to the parents of the deceased a sixth each.
Thus the Quranic prescription is based on the principle of equity. Higher shares are usually given to those whose needs are greater so that they may discharge their financial responsibility. A woman as a daughter is under the care / responsibility of her father, as a sister under the care of a brother, as a wife under the care of her husband. The often made criticism that Islam does not treat women equal to men in the matters of inheritance is unjustified. Critics always base their remarks looking at the first situation and ignore the three other situations where she gets as much as or even more than males. Many critics are either unaware of the other situations or are biased. Moreover, it should be noted that Islam gave right to property to women twelve centuries before England adopted it legally. Hindu women got this right only in 1955-56 when Hindu Code Bill (comprising four Acts – the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956) was adopted by Parliament.
Muslim woman has other rights too. She cannot be forced into marriage by her family or guardian; she has to give her consent. If the marriage was solemnised during childhood she can repudiate it on reaching puberty. She can retain her maiden name after marriage, if she so wishes. She has the right to demand the power of divorce plus the power at the time of the marriage contract to disallow polygamy by her husband.
Muslim woman was also given equality in the principle of jihad (religious war). Many women participated in battles during the time of the Prophet Mohammad. One Muslim woman, Nasiba bint Ka’b, defended the Prophet with her sword and arrows in the battle of ‘Uhad’. Another example of a brave woman can be found in Umayyati bint al-Gafariyya, whose courage at the battle of Khaibar was praised by the Prophet. After the victory, the Prophet presented her with a necklace, as a counterpart of the military decorations of our day. She wore it throughout her life, and it was buried with her in accordance with her will. In everyone one of the Prophet’s wars of conquest, women generally worked along with men and succoured the wounded.
It is also interesting to note that until the third century of Islam and even later women enjoyed with men the right to pray in the mosques. Khaliph Omar is said to have appointed a reader of the Quran especially for them at public worship.
In sum, women in Islamic teachings / theory enjoy a higher status in comparison to her counterparts in other religious traditions and systems. The Prophet declared many times that “Paradise lies under the feet of the mother”. In his last public address, he advised Muslims to “treat their women well and be kind to them”.
Varying Practices and Modern Reforms
Throughout the Islamic world, there has been a considerable gap between scriptural dictates and actual practice. As a result, we find many discriminatory practices toward women. Due to these discriminatory practices, Islam has been criticised on the ground of polygamy, divorce laws, veiling and seclusion of women and the generally prevailing unequal treatment of women as compared to men. Moreover, there are varying practices of applying gender equality in different regions of India. In fact, we find divergent practices in different countries and different schools of Islamic law (Shariah). These discriminatory practices can be removed by reforming and reinterpreting Shariah in the light of contemporary socio-political thought and the huge corpus of international human rights law.
Though Islam does permit plurality of wives not exceeding four, it is only on the condition of strict equality of treatment among them. But the practice shows that this condition is not followed universally by the majority of Muslims in the world. God warns in the Quran that “If you fear you will not be able to deal justly with them, then marry only one” (Chapter 4, Verse 4). In another place, He cautions: “You are never able to be fair and just between women, even if it is your ardent desire” (Chapter 4, Verses 3 and 129). Polygamy is not a general rule; it is only a necessary and emerging provision for the preservation and fostering of high social values (involving marriages of widows or orphans) and for safeguarding society against promiscuity. This permission has undoubtedly been abused, but many Muslim States are seeking to eradicate such abuse through legal regulation of the institution of marriage. For instance, Egypt changed its marriage laws in 1920, 1923, 1929 and in 1956 it abrogated the Shariah courts. In 1931 Egypt restricted the solemnization of child marriages by precluding the court from hearing any claim of marriage whatever if the husband had not reached the age of 18 and the bride the age of 16 at the time of litigation. Furthermore, the court could not hear any disputed claim of marriage unless that marriage contract had been registered. Earlier, in 1923, it had made it a criminal offence for a Registrar to register a marriage in a case where the bride was not above 16 and the bridegroom above 18.
Similarly, Tunisia, Morocco, Algeria, Iraq and South Yemen have enacted new provisions governing personal laws. Syria, Morocco, Pakistan and Iran have also severely restricted polygamy noting the impossibility of fulfilling the Quranic injunction that multiple wives be treated equally. Tunisia and Turkey have gone the farthest in directly outlawing polygamous marriages. In Lebanon, Jordan, Egypt and Morocco the woman can insert in her marriage contract the right to divorce if her husband should take a second wife.
Regrettably, no serious attempts have been initiated in India to reform family laws with a view to improving the status of women. Such initiatives should come from the leaders, theologians and cross-section of people of the Muslim community. Government initiative will be misconceived by the community as a step towards Uniform Civil Code.
Though the Quran commands that the wife alone shall receive the dower (mahr) payable by the husband, which was paid in pre-Islamic period to her father, in many cases in India it is hardly paid in practice.
Originally, divorce laws were fair. Out of three kinds of divorce, two were to be initiated by women. First, a wife may seek from a court a judicial separation on grounds of deficiency, mischief, fear of temptation arising due to long absence of the husband or inadequate maintenance. Second, a wife can seek divorce by redemption (Khul) on grounds of deep-seated animosity. But the most commonly practiced system is divorce by the husband – independently of the intervention of his wife or of court – leading to misuse. In the majority of divorce cases, the husband plays a dominant role. The tightening of divorce laws were the later developments. Moreover, the Quran prescribes that this kind of divorce will not be effective until the “waiting period” (Idda) is over. Prior to Islamic era a husband could discard his wife at a moment’s notice. The Quran now virtually suspended the effect of the divorce until the expiry of idda, which was to last until the wife had completed three menstrual cycles or, if she proved pregnant, until the delivery of the child. This period is primarily designed, according to the express terms of the Quran itself, to provide an opportunity for reconciliation, and during it the wife is entitled to receive maintenance from the husband. In fact, the husband is required to pronounce talaq (divorce) thrice to his wife with a gap of one month each between these utterances. The practice of triple talaq in one breath, which prevails in India and other Muslim countries, goes against this Quranic precept.
The basis of discrimination against women is generally attributed to Quranic injunctions / verses. A literal or restrictive interpretation of these verses reduces women to a lower status. Let us cite these verses: “Men stand superior to women in that God has preferred the one over the other, they have authority over the other, they have authority over women because they spend their wealth to maintain them. Good women are obedient…. As for those from whom you fear disobedience, admonish them and send them to beds apart and beat them, but if they obey you, take no further action against them [italics added]” (Quran, 4:34). Veiling of women is supported through verses 30-31 of Chapter 24, and verses 53and 59 of Chapter 33.
In the 7th century Arabia and other places women were economically dependent on men for their survival and security. In such a social and historical context, the Quranic pronouncement of men’s superiority was rationalized. Women were then considered as wards of men. Applying his evolutionary principle of interpretation Ustadh Mahmood Taha, the leader of the reformist movement in Sudan, who was executed by former Sudanese President Numeri, says that now the male guardianship over women should be terminated as women are no longer economically dependent on men these days. This Quranic verse (i.e., 4:34) should be set aside as having served its purpose and should not be applied to contemporary societies.
As regards the veiling it should be said that it was a pre-Islamic practice in many societies – from Greece to Persia and the Byzantine Empire. One verse of the Quran (24:30-31) tells women to veil their bosom and hide their ornaments. “Ornaments” was later taken (by the early interpreters of Quran from Persia) to mean everything except the hands, feet, and perhaps the face, though this interpretation makes no logical or linguistic sense. In addition, if everything was to be veiled, there would be no point in ordering bosoms veiled separately. Another verse tells them to draw their clocks tightly round them so that they may be recognized and not annoyed. And these are the only words taken to refer to veiling. Thus, it appears that the veiling and the harem system were later developments that arose in certain Muslim countries as a result of social conditions and local traditions. Whatever are the causes of their developments, such practices have nothing to do with the principles of Islam.
The gap between precepts and practices is quite glaring with respect to women’s inheritance rights. It must be noted that except for the Arab populations which was responsible to develop Shariah under the guidance of the Prophet, for other peoples (who became Muslims later) Shariah posed serious problems; because its basic concepts were often wholly alien to the traditional structure of their societies. Despite being Muslims, they could not strictly adhere to Shariah. Local customs determined the inheritance rights of women. For instance, the Berber community of North Africa does not provide inheritance to women. Berber customary law of this nature is applied to almost half of the Muslim population of Morocco in all civil matters. In Java and Sumatra, inheritance rights continued to be regulated by the customary matriarchal law. In western Nigeria Shariah is scarcely applied. It is interesting to note that certain Arab tribes of Yemen never relinquished their established customary law under which, inter alia, women did not enjoy any property rights.
In the Indian sub-continent, the Ishmaelite Khojas, the Bohoras and the Kutchi Memons continued, after their conversion to Islam from Hinduism, to be governed by the Hindu law of succession, and thus retain the power, in contravention of Shariah, to will away the whole of their estates.
In almost every region of India customarily Muslim women were not given share in landed property. It was a prerogative of males only. Muslim males resented when attempts were made to enforce Shariah rules on giving inheritance rights to women. When the Federal Assembly was debating the adoption of Muslim Personal Law (Shariah) Application Act, 1937, there was strong opposition to it from the landowning classes of Punjab on the ground that the bill would ruin agriculturists. Though the Act was passed, this abrogated prevailing customs or usage concerning inheritance rights, among others, it explicitly excluded from its purview agricultural land, the devolution of which would continue to be governed by local customs. While the Act meant to extend women’s property rights, it hardly served that purpose. Thus the Act served the political purpose of affirming Muslim identity, without antagonizing the powerful Punjabi landlords.
After India’s independence, legal reforms were initiated in the subcontinent. The Pakistani Parliament initially passed the West Punjab Muslim Personal Law (Shariat) Application Act of 1948, which included agricultural land in its purview. In 1962, it passed the West Pakistan Muslim Personal Law (Shariat) Application Act, which was applicable to the whole of West Pakistan, except the “Tribal Areas” in North West Frontier Province. It made women legally entitled to inherit agricultural property as full owners.
The Bangladeshi (formerly East Pakistani) Muslims were not affected by legal reforms in West Pakistan. Here the 1937 Act of India was in force. Here despite the absence of subsequent amendments (or even before the passage of 1937 Act), Shariah applied also to agricultural land.
In India too, the 1937 Act has continued to be applicable even after independence. It is gratifying to note that in Tamil Nadu and Andhra Pradesh the Act was amended in 1949 to include agricultural land, in 1963, Kerala did the same. In Assam, Maharashtra, Gujarat, and West Bengal, there was no strong preference of custom even before the Act was passed; hence in these states the Shariah rules could be applied to agricultural land as well. But in several states of north-west India such as Uttar Pradesh (which included till recently Uttarakhand region too), Punjab, Himachal Pradesh and Haryana, the Act has not been amended to include agricultural land. Despite the land reform laws, customary law still governs the succession of such land. Thus, in these states severe gender inequalities still persist as far as succession of landed property among Muslims is concerned. Muslim intelligentsia and leaders (both political and theological) should mobilize public support to amend / reform the 1937 Shariah Act to remove gender inequality.
Empowerment of Muslim Women: Towards Reforming Muslim Personal Law
Mahatma Gandhi once said “one step for women, ten steps for nation”. “Human Development, unless engendered, is endangered”, proclaimed the 1995 UNDP’s Human Development Report, which was released on the eve of Fourth World Conference on Women: Action for Equality, Development and Peace, held at Beijing, China. These two profound statements highlight the importance of women’s empowerment. Empowerment means to give somebody the power or authority to act. Therefore, empowerment of women means that the women have the power or capacity to regulate their day-to-day lives in the social, economic and political fields. This will enable them to move from the periphery to the centre stage. The main motive behind women’s empowerment is to protect their rights, to enrich their quality of life and involve them in decision making processes at all levels, particularly in those decisions, which are related to their lives and families. Empowerment of Muslim women involves: higher literacy level and education, better health care for them and their children, awareness about their reproductive rights, implementation of Shariah law to give inheritance rights, abolition of triple talaq, a practice followed in India in contradiction of Quranic dictum, punishing those demanding dowry (as it is against Shariah), ensuring the payment of Mehar (dower) to women at the time of marriage, encouraging their participation in local and urban governments as elected representatives.
Some of the reforms / measures suggested above require reforms of Muslim Personal Law. Initiatives in this regard should come from the Muslim community itself. If the Government, a political party or Supreme Court advocates such modest reforms, it will be taken by the community leaders, both religious and political, as interference in their personal laws and threat to their identities, which are protected by the constitution. Moderate Muslim intellectuals and women’s groups from the Muslim community should initiate debate and discussion in this direction. The Women’s NGOs and Hindu women’s organizations should not insist on the need of drafting Uniform Civil Code, rather the approach of all should be to advocate reforms in all personal laws of different communities so as to make them gender just. Changes made in all family laws as a result of the initiatives of the respective communities to reform their personal laws will be more acceptable to them than the uniform laws which may threaten their distinct cultural identities.
Abdulrahim P. Vijapur holds M.A. in Political Science from Karnatak University, M. Phil. & Ph.D. from Jawaharlal Nehru University and LL.M. in international human rights law from University of Essex, the United Kingdom. He worked as Professor of Political Science (1998-2020) in Aligarh Muslim University and worked as Chairman (2010-2013) of its Department of Political Science, and Director (2010-2013) of its Centre for Nehru Studies. He specializes in International Human Rights Law, Minority and Dalit Rights, Federal Nation-building in India, Islamic concept of rights and women’s rights. Previously he was Visiting Professor in Human Rights Studies in Jawaharlal Nehru University. He has been a Visiting Professor to ICCR (Indian Council of Cultural Relations) Chair at the Carleton University, Ottawa, Canada (2013-14). He was Visiting Faculty at University of Mumbai. He also taught at South Asian University, New Delhi. During 2005-2007 he was Professor, Ford Foundation Endowed Chair in Dalit Studies at Jamia Millia Islamia, New Delhi. During 1996-1999 he was Director, Centre for Federal Studies, Jamia Hamdard, New Delhi.
Disclaimer: Gender Equality in Islam and Muslim Women in India: An Agenda for Reforms by Abdulrahim P Vijapur - Views expressed by writers in this section are their own and do not necessarily reflect Latheefarook.com point-of-view