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Muslim Woman’s Rights in India

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One of the vital concerns in India is the non-discrimination between genders.[1] Muslim Woman in India are one of the major groups deprived of their equality within the Human rights framework.[2] Their hardship has derived from cultural and religious reasons.[3] Traditionally Indian woman have been given a lower status then men.[4] This includes being negatively stereotyped within religion, incorporating both Muslim and even Judaic-Christian beliefs.[5] This also includes male interpretations of the Quran.[6] Where the functions of a woman concerning family matters are seen as less than half, according to hijab, then that of their male counterparts.[7]

Brief history of Muslim Law in India

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Muslim law in South Asia is different from Islamic law of Sharia.[8] Shariat law (shari’a or fiqh) law is seen as a body of religious rules that are set out to manage the lives, in all aspects, of every Muslim.[9] However in India there are only are few of these laws that are enforced.[10] This is due to India’s laws having been modified by traditional English common law and equitable principles since the beginning of the British imperialist regime.[11] It is now called Anglo-Muammadan law.[12] Although Islamic law is sacred, due to modern political and social developments sacred interpretation of classic Islamic law’s in India have changed in response to societal requirements.[13]

The Constitution of India outlines the Fundamental rights in India to equality under Article 14.[14] Article 15 covers freedom from discrimination which includes that of gender equality. However, Article 25 justifies the freedom of religion which safeguards the religious rights of Muslim communities, in turn Muslim Personal Law, which is discriminatory between Muslim men and woman.[15] The continuance of discrimination within Muslim personal law contravenes that set out in India’s constitution, notably articles 14 and 15.[16]

Personal law and inequality

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Even though there is formal recognition of rights within the constitution, Muslim women experience gender in-equalities in practice within the sphere of personal law.[17] Personal law enables the continuing practice of giving a lower status to Muslim women in India. Which raises the need for legal reform.[18] This is hard to achieve because often uniformity of family laws are often upheld by staunch supporters of religious traditions, who will ensure that all efforts to keep traditional Muslim practices within the conformity of Islamic ideals.[19] The courts will also favor to not let constitutional rights intrude in personal law.[20] In the High Court case Harvinder Kaur v. Harmander Singh Choudhary, it was rejected that personal law was discriminatory towards Gender inequality in India and stated that the “…introduction of Constitutional law into the home is most inappropriate”.[21] Essentially depriving all woman in India the fundamental rights within the constitution.[22] Personal law discrimination was on the other hand was positively recognized in the case of Amina, here the court noted that Muslim personal law is discriminatory towards Muslim women, and as such is unconstitutional.[23]

Islamic law does however provide for certain rights.[24] One example can be seen within a matrimonial deed, or Nikahnama.[25] A Nikahnama can cover certain rights which pertain to polygamy and the woman’s right to enforce a divorce proceeding.[26] This could even include shares in property rights.[27] Muslim law for financial support due to divorcement has been codified In the Muslim Women’s (Protection of Rights on Divorce) Act 1986.[28] Nevertheless these rights remain minimal. For example, the divorced wife can only receive three months of financial support.[29] Also the husband of the divorced wife only has to pay child support for 3 months if that child is born within the three month period, but if they had a child before that then. The husband is not obligated to pay any support.[30] Woman’s rights in these matters are often not practiced due to Muslim women’s lack of education toward their rights within the Islamic community.[31] Also Muslim woman in India are not protected when it comes to monogamous marriages, but Muslim men are, protected under the Indian Penal Code.[32]

The Human Rights Commission (HRC) under the International Covenant on Civil and Political Rights (ICPPR) highlighted religious based personal laws In India’s report in 1997.[33] It was informed that the Human Rights framework towards multiculturalism should be a remedy when addressing clearly biased provisions and practices towards Muslim women in Islamic legal community.[34]

Muslim woman and Education

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Muslim women are often discriminated against due to their lower achievements within the sphere of education, employment and their general economic position.[35] This is because traditionally Muslim woman are discriminately excluded from participating within the public and private sector.[36]

Human rights and the tradition of ‘Sati’

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Sati may fall into one of three contexts within Hindu Tradition. Firstly, it denotes a woman who embodies the highest conduct of Buddhist principles.[37] This ideal is known as pativrata, an incorrupt/pure wife.[38] Secondly Sati is the wife of Shiva, a goddess in Hindu folklore.[39] Thirdly sati refers to a wife of a deceased husband who memorializes herself on the funeral fire of her dead husband.[40] Sati is revered in parts of Hindu India as a model of a wife’s complete loyalty.[41]

Sati in 1829

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Lord William Bentinck, Governor General (1828-1835) first prohibited the use of sati in the province of Bengal.[42] However it wasn’t until in 1829 prohibition of the Hindu tradition of Sati spread to other provinces.[43] This provoked a strong animosity towards Lord William from the Indian traditionalistic public.[44] Lord William admitted that to forbid sati would ‘inspire extensive dissatisfaction’.[45] He promoted human rights and essentially the protection of Muslim woman’s rights through the need of a higher human morality.[46]

“I know nothing so important to the improvement of their future condition as the establishment of a purer morality, whatever their belief, and more just conception of the will of God. The first step to this better understanding will be dissociation of religious belief and practice from blood and murder”

[47]

The Brahmo Samaj were a social, political and religious movement in India (1820-1930).[48] The Brahmo communities political ideals fit into two categories: either liberal or nationalist.[49] The liberal ideal of the Brahmo’s movement was a necessary part of securing early human rights for women in India.[50] Brahmo Samaj supported Lord William’s efforts to abolish sati.[51] Raja Rammonhan Roy was said to be the ‘Maker of Modern India’ with his ideals of India’s requirement to implement English, mathematics and science.[52] He was one of the founding fathers of Brahmo Sabha which brought about Brahmo Samaj.[53] He is also acknowledged as one of the main contributors, if not the main person by India’s citizens as having put an end to the ritual of sati.[54]

Sati in the 21st Century

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The ritual of immolation (Sati) and the rights of Muslim woman is ongoing. In September 1987 an incident occurred where a widow was involved in a sati ritual, publicly, in a village in Rajasthan.[55] This not only highlighted questions surrounding woman’s rights but also the role of law in India.[56] Despite fierce opposition by Indian woman’s movements, sati continued to exist.[57] Even being funded by organisations to build sati temples, which were allowed by the government, to continue the tradition.[58] During the 1980’s it was estimated that known sati practices happened at least once a year.[59] Despite fierce opposition and the call for change it was allowed to continue.[60] Today there is around 250 sati temples that still operate and that potentially practice these rituals.[61] However laws such as The Commission of Sati (Prevention) Act 1987 and public awareness is helping to find a solution to eradicate the tradition being practiced in India.[62] Nearly after 200 years after Lord Williams’s prohibition of sati, India’s laws have failed to protect Muslim woman’s rights, namely the right to life.

  1. ^ Syed Mehartaj Bejum Human Rights in India: Issues and Perspectives (2000, A.P.H. Publishing Corporation, New Delhi) at 188.
  2. ^ At 188.
  3. ^ At 188.
  4. ^ At 188.
  5. ^ At 188.
  6. ^ At 188.
  7. ^ At 190.
  8. ^ Vrinda Narain Gender and Community: Muslim Women’s Rights in India (2001, University of Toronto Press Incorporated, Canada) 2001 at 7.
  9. ^ At 7.
  10. ^ At 7.
  11. ^ At 7.
  12. ^ At 7.
  13. ^ At 7.
  14. ^ At 36.
  15. ^ At 36.
  16. ^ At 43.
  17. ^ At 3.
  18. ^ Syed Mehartaj Bejum Human Rights in India: Issues and Perspectives (2000, A.P.H. Publishing Corporation, New Delhi) at 190.
  19. ^ At 190.
  20. ^ Vrinda Narain Gender and Community: Muslim Women’s Rights in India (2001, University of Toronto Press Incorporated, Canada) 2001 at 49.
  21. ^ At 49.
  22. ^ At 49
  23. ^ At 51.
  24. ^ Syed Mehartaj Bejum Human Rights in India: Issues and Perspectives (2000, A.P.H. Publishing Corporation, New Delhi) at 190.
  25. ^ At 190.
  26. ^ At 190.
  27. ^ At 190
  28. ^ Vrinda Narain Gender and Community: Muslim Women’s Rights in India (2001, University of Toronto Press Incorporated, Canada) 2001 at 28.
  29. ^ At 28.
  30. ^ At 28.
  31. ^ Syed Mehartaj Bejum Human Rights in India: Issues and Perspectives (2000, A.P.H. Publishing Corporation, New Delhi) at 191.
  32. ^ Vrinda Narain Gender and Community: Muslim Women’s Rights in India (2001, University of Toronto Press Incorporated, Canada) 2001 at 25.
  33. ^ Syed Mehartaj Bejum Human Rights in India: Issues and Perspectives (2000, A.P.H. Publishing Corporation, New Delhi) at 191
  34. ^ At 191.
  35. ^ At 191.
  36. ^ At 191.
  37. ^ "Paul B. (2012). Sati Oxford University Press".
  38. ^ "At".
  39. ^ "At".
  40. ^ "At".
  41. ^ "At".
  42. ^ Radha Kumar The History of Doing: An Illustrated Account of Movements for Women’s Rights and Feminism in India 1800-1900. (1993, Zubaan, New Delhi) at 9.
  43. ^ At 9.
  44. ^ John Rosselli Lord William Benticnck: The Making of a Liberal Imperialist, 1774-1839 (1974, Great Britain) at 209.
  45. ^ At 211.
  46. ^ At 211.
  47. ^ At 211.
  48. ^ David Taylor "David Kopf: The Brahmo Samaj and the shaping of the modern Indian mind” (1979) xxiii, 399 pp. Princeton, N.J.: Princeton University Press at 609.
  49. ^ At 609.
  50. ^ At 609.
  51. ^ David Kopf The Brahmo Samaj and the Shaping of the Modern Indian Mind (1979, Princeton University Press, Princeton N.J) at 158.
  52. ^ C.N.Jayalakshimidevi Raja Rammohan Roy (2014, Voume 66, Litent, Bharata Bharati) at 1.
  53. ^ At 1.
  54. ^ At 1.
  55. ^ Radha Kumar The History of Doing: An Illustrated Account of Movements for Women’s Rights and Feminism in India 1800-1900. (1993, Zubaan, New Delhi) at 173.
  56. ^ At 173.
  57. ^ At 173.
  58. ^ At 173.
  59. ^ At 173.
  60. ^ At 173.
  61. ^ "Indian Times Website: Why is sati still a burning issue". Retrieved 27 April 2015.
  62. ^ "RT Question News Website: India ritual suicide sati". Retrieved 27 April 2015.
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