Economic Rights of Women in Islamic Law

Flavia Agnes
The law of marriage in its essence is a law regulating economic transactions and woman's access to and control
over it The Islamic provisions of 'mehr' and marriage agreements, and right of property management have stood
Muslim women in good stead during litigation in the last century. However, gradual infiltration of Hindu notion
of sacramental marriage and English principles of morality and public policy have curtailed Muslim women's rights
granted under Islamic jurisprudence. Muslim leadership needs to give up its attitude of negating women's rights
if it aspires for support of secular and human rights forum in the period of aggressive Hindu communal propaganda
for uniform civil code.
THE law governing marriage and family
relationships in its essence is a law of property
settlement rather than a law governing sexual
morality. Hence, any proposal for reform
would have to necessarily redefine property
rights of women within the family. This
consciousness has led both conservative as
well as progressive forums now engaged in
drafting alternate codes to focus more upon
the economic rights of women rather than
confine the debate to issues of monogamy
and sexual control.
In this context, even the Hindu fundamentalist political parties like the BJP have
been forced to acknowledge that the Hindu
law of succession does not grant rights to
women and hence while enforcing a uniform
code, the concept of Hindu joint family
property may have to be abolished.
Most legal scholars concede that the
Muslim law of inheritance protects women's
rights better than the Hindu law based on
male coparcenary. But in the realm of
matrimonial law, it is presumed that the
Hindu law (which is a reflection of the
archaic British law) will be more favourable
to women than the Muslim law which
permits polygamy and triple talaq. In fact,
the rationale for a uniform code is based
on this premise, i e, liberation of Muslim
women.
The present Hindu law of marriage and
divorce is a curious mixture of Victorian
morality, Hindu notion of women's servility
and the modern concept of a contract between
equals, which collectively work towards the
subordination of women. Since it has nothing
to offer in the realm of economic rights, we
need to take recourse either to the Continental
system which is based on equitable
distribution of matrimonial property or to
the Islamic concept of mehr.
Unfortunately, due to the communal
undertones which usually accompany the
demand for a uniform civil code, the contribution of Islamic legal principles to the modern
matrimonial jurisprudence has not received
due recognition. For instance, the Islamic
principle of marriage as a dissoluble contract
was borrowed first by the Continental and
later by the British matrimonial juris-

2832

prudence, to set off the Christian notion of

marriage as an eternal and indissoluble
sacrament, while ushering in modernity. This
concept was incorporated into the Hindu law
in 1955.
In the British legal system, divorce, in its
origin, was confined to faults, where one
spouse had to prove a matrimonial offence
against the other. And if women were the
'guilty' spouse, they would be deprived of
the meagre maintenance dole and additionally
their property could be settled in their
husbands' favour as compensation for the
loss of proprietary rights.
In contrast, the Islamic law provided for
more civilised modes of dissolving marriages,
either by consent or by providing for
irretrievable breakdown of marriage. Only
in the later half of 20th century the British
matrimonial jurisprudence accepted the
concept of divorce by mutual consent. This
was incorporated into the Hindu law in 1976.
The Indian Divorce Act which governs
Christian marriages has not recognised this
concept to date and the only option open to
consenting spouses under Christian law is
collusion and perjury. The notion of 'no
fault divorce' (or irretrievable breakdown of
marriage) has not yet been accepted by the
Hindu law.
Under Islamic law, while the husband is
granted an unlimited right of divorce, the
wife is also granted a limited right of khula.
To equalise the status of spouses within
marriage, the neighbouring Pakistan and
Bangladesh have, at one level curbed the
husband's right of oral talaq by stipulating
mandatory arbitration procedures, and at the
other level, secured the woman's right to
khula through standardised marriage
contracts, nikah-nama. The contract includes
a routine clause through which the husband
is bound to grant the right of khula to the
wife at the time of contracting the marriage.
The Supreme Court of Pakistan in the
landmark decision in Khurshid Bibi's case1
while interpreting this provision held that
hatred or aversion towards the husband is
sufficient for obtaining khula and ruled that
the consent of the husband is not a necessary
precondition.

The provisions of arbitration and speedy

settlement of matrimonial dispute are also
important principles of Islamic matrimonial
jurisprudence. If arbitration procedures fail,
the matrimonial bond should be severed
with ease, ahsan. Several judgments of
high courts in Pakistan have relied on this
principle and have held that marriage should
be dissolved through a simple deed and
anyone who makes it complicated will stand
ostracised.2 This concept has gained
statutory recognition in India, through the
family courts act which provides for
arbitration and speedy settlements rather
than prolonged adversarial litigation of the
British system, where one spouse is required
to prove the matrimonial offence against
the other, which causes great hardships and
humiliation to women in court rooms.
Since Islamic law provided the modern
matrimonial jurisprudence with important
legal principles, perhaps it would be worth
our while also to examine the Quranic right
of mehr which was meant to provide a
safeguard against arbitrary oral divorcc. This
right of providing for the future security of
the woman at the time of marriage, finds no
parallel in any other legal system.
All provisions of dissolving a marriage
become detrimental to women if they are not
simultaneously linked to protection of
economicrights.It is this court room reality
which makes it imperative to examine the
rights of mehr and pre-marriage agreement
bestowed upon women under the Islamic law.
SUPERIOR POSITION OF WOMEN IN ISLAM

Mehr is a Quranicright.A specific mention

of this right is made in all subsequent legal
texts. Chapter IV verse 3 of the Holy Quran
stipulates: "And give women their dower
freely and if they are good enough to remit
any of it of their own free will, then enjoy
it with a good conscience". There is also a
mention that the Prophet settled 500 dhirams
on each of his wives with the exception of
Omm Babeebah (from Abysinia) on whom
he settled 4000 dhirams.
According to the Maliki school of Islamic
law, a marriage without the stipulation of

Economic and Political Weekly

October 12-19, 1996

mehr is i n v a l i d . A c c o r d i n g to the H a n a f i

I f a m a n agrees t o pay a certain amount

school the marriage is v a l i d but i f n o m e h r

o f m e h r u p o n the c o n d i t i o n that the w i f e is

is stipulated o r i f the amount stipulated is

a v i r g i n and subsequently discovers that she

T h e personal l a w s o f the post-colonial

very l o w , the w o m a n is e n t i t l e d to a proper

is n o t , he cannot retract f r o m his c o m m i t m e n t

p e r i o d are n o l o n g e r applicable i n their

mehr, m e h r - e l - m i s l . T h e proper m e h r w o u l d

and the w o m a n is e n t i t l e d to the f u l l amount.

pristine f o r m . T h e rights are based o n English

have to be d e t e r m i n e d d e p e n d i n g u p o n the

Once settled, the husband cannot be absolved

translations o f the o r i g i n a l texts, the legal

means o f the husband and the f a m i l y status

o f his d u t y t o pay the dues, even w h e n there

precedents o f the B r i t i s h j u r i s t s and the local

o f the w i f e .

is a subsequent separation w h i c h is caused

customs and practices. I n order t o ascertain

J U D I C I A L DECISIONS IN BRITISH PERIOD

is

b y the w i f e ' s action. E v e n w h e n a M u s l i m

the c o n t e m p o r a r y status, a scrutiny o f these

mandatory, the legal texts r o u t i n e l y m e n t i o n

marries a n o n - M u s l i m he is b o u n d t o pay

sources w o u l d be necessary.

amounts o f 1,000 and 2 , 0 0 0 dhirams by w a y

her the mehr.

While a minimum of

10 d h i r a m s

W h i l e e x a m i n i n g the case l a w concerning

o f examples w h i c h indicate that the amounts

T h e superior position o f w o m e n under

settled w e r e meant t o be far above the lowest

I s l a m i c l a w can be ascertained o n l y w h e n

one can discern a curious trend.

While

stipulated. A d d i t i o n s to the amount stipulated

w e compare it w i t h the status o f w o m e n

judicial

Hindu

w o m a n ' s e c o n o m i c rights b y constraining

w o m e n ' s e c o n o m i c rights w i t h i n marriage

d e c i s i o n s t h r o t t l e d the

at the t i m e o f marriage can be made at any

under other c o n t e m p o r a r y legal systems.

t i m e d u r i n g the marriage. M e h r is a m a r k

U n d e r R o m a n and B r i t i s h legal systems o f

the scope o f stridhana, the M u s l i m w o m a n ' s

o f respect to the w i f e and is meant to set

this period, w o m e n lost their rights to acquire,

e c o n o m i c r i g h t s c o u l d not be

o f f the d i s a b i l i t y suffered by w o m e n under

h o l d and manage separate property u p o n

throttled. T h e legal precedents also indicate

the law o f inheritance. Hence, the amount

marriage. T h e R o m a n l a w o f marriage w h i c h

that the rights o f mehr and pre-marriage

stipulated has to be substantial. A

token

d e r i v e d its roots f r o m the Judaic law was

agreements were not j u s t i l l u s o r y rights but

amount is injustice and w r o n g as per Islamic

based on the n o t i o n o f a patriarchal f a m i l y

were viable e c o n o m i c safeguards.

principles.

consisting o f w i v e s , sons and slaves. T h e

similarly

Several j u d g m e n t s upheld the w o m a n ' s

I f the mehr is p r o m p t it is payable o n

head o f the f a m i l y acquired total c o n t r o l

right

demand. I f it is deferred, it must be paid

over the person, property and labour powers

husbands t h r o u g h private agreements. A s

subsequently

to impose conditions

upon

their

upon

o f all the members o f his household. T h e

per the Christian doctrine o f eternal and

d i s s o l u t i o n o f marriage cither by death or

w i f e was treated as the w a r d and she had

indissoluble marriage, pre-nuptial agreements

divorce. I f at the t i m e o f d i s s o l u t i o n

n o independent i d e n t i t y .

stipulating conditions o f a future divorce

and in any

event

of

marriage the m e h r dues are u n p a i d , the

Under the B r i t i s h system, u p o n marriage,

w o m a n is entitled to retain possession o f her

the w o m a n lost her legal existence. M a r r i a g e

since d i v o r c e was not considered as against

deceased husband's property. U s u a l l y this

meant a legal death. A l l her property belonged

public good under Islamic law. Islamic

right is discussed i n legal texts as a ' w i d o w ' s

to her husband and he c o u l d not o n l y use

j u r i s p r u d e n c e held such contracts as valid.

right'

it but even alienate it w i t h o u t her consent.

but the same p r i n c i p l e w o u l d apply

i f the marriage is dissolved by d i v o r c e .

T h e husband's right to his w i f e ' s property

were deemed to be against public policy. But

W h i l e adjudicating over

matrimonial

disputes, i f the B r i t i s h j u r i s t s relied u p o n

A w o m a n has the right to impose conditions

was held in such high esteem that even after

Islamic principles, the agreements were held

regarding her mehr. F o r instance she can

betrothal, i f the w o m a n alienated her property

to be valid. B u t i f they relied u p o n B r i t i s h

stipulate that i f the husband resides i n the

w i t h o u t the consent o f the g r o o m , he c o u l d

notions o f m o r a l i t y and p u b l i c p o l i c y , the

same city as her parents then the mehr amount

sue her f o r fraud.

agreements w e r e i n v a l i d a t e d . Some important legal decisions i n this d i r e c t i o n are

w o u l d be 1,000 dhirams, but i f he shifts to

O n l y i n the year 1870 a m a r r i e d w o m a n

another c i t y then the a m o u n t s h o u l d be

w h o was l e g a l l y separated f r o m her husband

doubled. In such a case i f the husband docs

was g r a n t e d the r i g h t

separate

I n Badarannissa B i b i ' s case decided by

shift to another c i t y then the w i f e is e n t i t l e d

property. A m a r r i e d w o m a n d i d not have the

the Calcutta H i g h C o u r t i n 1871, 3 the husband

to c l a i m 2 , 0 0 0 dhirams.

right to enter into a contract either w i t h her

had entered i n t o a pre-marriage agreement

husband or w i t h a t h i r d party t i l l the year

(kabin-nama)

1935.

to d i v o r c e h i m i f he remarried w i t h o u t her

M e h r need not be stipulated o n l y i n cash.

G o l d ornaments', valuables and other m o v a b l e

to h o l d

discussed b e l o w .

w i t h his w i f e , authorising her

and i m m o v a b l e property can also be settled

T h e Q u r a n i c right o f m e h r is distinct f r o m

consent. S u b s e q u e n t l y , the husband d i d

as mehr. M e h r is the sole r i g h t o f the w i f e

the c u s t o m a r y right o f bride price and the

remarry and the w i f e approached the court

and the husband cannot have any c l a i m over

E n g l i s h concept o f d o w e r . M a n y tribes and

f o r redress. T h e court dismissed the w i f e ' s

it once the marriage is consummated.

c o m m u n i t i e s i n A f r i c a and A s i a f o l l o w e d a

plea o n the g r o u n d that the M o h a m m e d a n

T h e husband can settle his share o f f a m i l y

c u s t o m o f bride price where the g r o o m was

l a w does not p e r m i t a w i f e to d i v o r c e herself

property o r a particular house as mehr. T h e

b o u n d to pay a certain sum to the b r i d e ' s

upon a private agreement.

w o m a n w o u l d then be entitled to this property

father to compensate h i m f o r the loss o f his

o r its monetary value. I f the w o m a n c l a i m s

daughter's

Prophet

M a h a m a t Hossein, appeared f o r the w i f e and

that the m a t r i m o n i a l residence has been g i v e n

changed the concept o f b r i d e p r i c e t o m e h r ,

p o i n t e d out the relevant sections f r o m the

to her i n lieu o f her m e h r debt, it is for the

a sum to be settled u p o n the w o m a n herself,

legal texts w h i c h specifically m e n t i o n the

husband to rebut the presumption. I f the

as a m a r k o f respect and future security to

delegated p o w e r o f the w i f e to d i v o r c e

husband refuses to pay the p r o m p t m e h r

her. T h e amount settled belonged t o the

husband a n d pleaded that such a p r o v i s i o n

u p o n marriage, the w o m a n can refuse to

w o m a n e x c l u s i v e l y and not t o her relatives.

is not repugnant to the M o h a m m e d a n law.

including

T h e B r i t i s h j u r i s t s used the w o r d m e h r and

T h e c o u r t c o n c u r r e d w i t h this v i e w and r u l e d

cohabitation. She is not b o u n d to o b e y any

d o w e r interchangeably. B u t the right o f mehr

o f his c o m m a n d s . T h e w i f e is e n t i t l e d to l i v e

is d i s t i n c t f r o m the right o f d o w e r . D o w e r ,

U n d e r the E n g l i s h l a w o f contracts a person

separately and c l a i m maintenance f r o m her

under E n g l i s h l a w , is a w i d o w ' s right t o be

w h o is not a party to a contract cannot

husband d u r i n g this period. E v e n i f the

m a i n t a i n e d f r o m her deceased husband's

e n f o r c e i t even w h e n s/he is a beneficiary.

husband has paid nine d h i r a m s and one

property. T h i s r i g h t is very distinct f r o m the

H e n c e the f o l l o w i n g j u d g m e n t ,

d h i r a m is due, the w i f e has a right t o refuse

I s l a m i c right o f m e h r , w h i c h is a right u p o n

Mohammed

c o h a b i t a t i o n and the husband is not e n t i t l e d

marriage and not a right arising

detail, becomes an important m i l e s t o n e i n

to r e c l a i m the nine d h i r a m s already paid.

widowhood.

f u l f i l her marital o b l i g a t i o n s

Economic and Political Weekly October 12-19, 1996

labour power. The

upon

I n a p p e a l , an I s l a m i c j u r i s t ,

Moulvi

i n the w o m a n ' s favour.

v Husseini

Khwaja

Begum4 discussed i n

the l a w o f contract i n India. T h e p r i v y c o u n c i l

2833

laid down a new precedent by upholding a

minor girl's right to enforce a contract against
her father-in-law, even while she was not
a party to it.
In the year 1877, on the occasion of the
marriage of his son, the father-in-law
executed an agreement that he would pay
the daughter-in-law Rs 500 per month as
kharch-i-pandan in perpetuity. After seven
years, the wife was compelled to leave the
husband's home. Thirteen years later, in
18%, the couple was separated. In 1901, the
wife filed a suit to recover arrears. The trial
court refused to enforce the agreement on
the following grounds:
1 It is unreasonable to suppose that wife
can enforce her contract against her fatherin-law even when she refuses to live with
her husband. To hold so would be
repulsive to conscience and common
sense.
2 The unchastity of the woman has not
been proved, but her character is not
beyond suspicion.
3 If she refuses to live with her husband,
the father-in-law has no duty to pay
kharch-i-pandan.
4 The husband entertaining prostitutes at
home and incurring debts are not
reasonable justifications for wife's refusal
to live with him.
In appeal the Allahabad High Court
decreed in the wife's favour as follows:
1 No condition had been attached to the
payment of the annuity.
2 Nothing is said in the agreement about
the chastity of wife,
3 No provision is stated under which fatherin-law ceases to be liable if wife stops
living with her husband or due to any
other acts of the wife.
In an Appeal against this decree to the
privy council by the husband; it was held:
1 Although she was not a party to the
agreement, the wi le was entitled to enforce
it as she was the only beneficiary of the
agreement. In India and among Muslim
communities, marriage is contracted by
parents/guardians on behalf of minors.
Hence serious injustice will be caused if
the common law doctrine (read English
law doctrine) is applied to agreements
entered into in connection with such
contracts.
2 The wife had not forfeited her right to
the allowance on her refusal to reside
with her husband. By the agreement, the
father-in-law binds himself unreservedly
to pay to the wife the fixed allowance.
There is no condition in the agreement
that it should be paid only while she is
living in the husband's house.
The court admonished the subordinate
judge for his remark that the woman's
character was not 'free from suspicion' and
held that if the allegation of unchastity was

2834

not proved, it was incorrect to make such

derogatory comments in the judgment. The
court also drew adistinction between kharchi-pandan and the English concept of lpin
money' which could only be spent with the
consent of the husband. In contrast, the
Muslim woman could exercise her sole
control over Nir kharch-i-pandan. Explaining
this concept the court ruled, "Kharch-ipandan, which literally means 'betel box
expenses', is a personal allowance to the
wife customary among Mohammedan
families of rank, especially in upper India,
fixed either before or after the marriage.
When they arc minors, as is frequently the
case, the arrangement is made between the
respective parents and guardians."
In a case decided by the Allahabad High
Court in the 1921,5 the husband had married
twice and had treated both wives with cruelty. The father of the third wife entered into
an agreement with the husband and his father
prior to the marriage, binding the husband
to pay a sum of Rs 15 per month for life,
in addition to the dower debt, in case of
divorce.
The wife was subsequently divorced and
she approached the court for the enforcement
of her contract. The court held that the
agreement was enforceable as it was meant
to secure the wife against ill-treatment. The
court countered the plea that pre-marriage
agreements are against public policy and
held that agreements protecting a woman's
future rights are valid under Islamic law.

jointly. The male-headed coparcenaries

denied women their right to a stipulated
share in the property, which they were entitled
to under the Shariat. A woman from the
trading family challenged this practice.
On her behalf it was argued that the Hindu
custom of disinheriting daughters which has
been adopted by Mohammedans is most
unreasonable and that public policy would
dictate the adoption of the wiser rule laid
down by the Quran by which daughters are
allowed a defined share in the succession.
A contrast was drawn between the relative
position which females hold in Hindu and
Muslim systems. It was pointed out that
since the Muslim system was more beneficial
to women, it was the duty of the court to
give it effect when the two come in collusion.
The comments of the concerned judge,
Lord Erskine Perry, while disallowing the
woman's claim are interesting to note: "A
custom for females to take no share in the
inheritance is not unreasonable or against
public policy in the eyes of the English law.
It accords in great part with the universal
custom as to real estates where there are any
male issue and with some local customs
mentioned in Blackstone by which in certain
manors females are excluded in all cases."7
While the high courts of Calcutta,
Allahabad and Lahore upheld a Muslim
woman's right to enter into agreements, the
Bombay High Court relying upon the English
doctrine of public morality, invalidated them.
I n Mehrally vSakerkhanoobhai'the couple
was married in 1901. After a few months,
due to marital conflict the wife left the
PUBLIC POLICY: TREACHEROUS G R O U N D
matrimonial home. Thereafter, in an attempt
While upholding the right of a Muslim to reconcile, the husband executed an
agreement stipulating the following:
wife to enter into agreement in respect of
1 He will rent a house and live separately
future maintenance, the Lahore High Court
with his wife, away from her family and
made an interesting comment regarding the
relatives. If they cannot live together, he
notion of public policy: "There is nothing
will pay her Rs 20 per month as
in the husband's promise to pay a certain
maintenance;
sum of money for the personal expenses of
his wife, which can be regarded as opposed 2 The wife's ornaments (20 tolas of bangles,
to public policy" . The court further cautioned:
five tolas of chain) belong to her
"Public policy is unsafe and treacherous
exclusively and he would not claim any
ground for legal decisions. It must therefore
right over it;
be kept within reasonable restraint."6
3 He would not obstruct her from meeting
her friends and relatives.
It must be noted that notions such as
morality and public policy were English
The reconciliation following this
principles which were surreptitiously
agreement lasted only for one year and
introduced into the Indian family law to the thereafter, the wife returned to her parents'
detriment of women's rights. Based on this house. Husband filed for restitution of
premise, women's customary and textual
conjugal rights. The wife relied upon the
rights to divorce, to adopt children or to agreement in her defence. Rejecting the
inherit property were constantly curtailed.
wife's plea, the court held: 'The principle
The following case reported in 1853 is a upon which the law looks askance at
classic example of how the notion of public
agreements contemplating the future
policy could be used against women's
separation of husband and wife, is a principle
economic interests.
which is thoroughly fixed, having its
The case concerns the Muslim trading foundations in the welfare of society. Hence
communities of Gujarat - Khojas and an agreement which provides for a
subsequent separation, is bad under English
Memons. These communities followed the
law,"
local custom of holding the family property
Economic and Political Weekly October 12-19, 1996

T h e c o u r t then a p p l i e d t h i s p r i n c i p l e t o
an agreement r e g a r d i n g m a i n t e n a n c e i n Bai
Fatima's

case. 9 W h i l e c o n t r a c t i n g a s e c o n d

marriage, the husband executed an agreement

passage

Mohammedan

Ali's

o u t o f the s t i p u l a t e d a m o u n t o f Rs 1,50,000

Law: " U n d e r the M o h a m -

from

Ameer

since the assets o f her deceased husband

m e d a n l a w , the m a i n t e n a n c e ( n a f k a h ) o f

w e r e not s u f f i c i e n t t o s a t i s f y the e n t i r e

a w i f e includes everything

a m o u n t . T h e h u s b a n d ' s relatives alleged that

connected

i n f a v o u r o f the first w i f e that i n case o f

w i t h her s u p p o r t and c o m f o r t such as

the d o w e r p u b l i c l y

disagreement he w o u l d pay her Rs 8 per

f o o d , r a i m e n t , l o d g i n g , etc, and m u s t be

intended t o be p a i d and o n l y a s m a l l e r a m o u n t

m o n t h as maintenance. A f t e r separation, t h e

p r o v i d e d i n accordance w i t h the social

settled i n p r i v a t e was payable. B u t the p r i v y

first

w i f e sued f o r r e c o v e r i n g arrears o f

p o s i t i o n o f the parties. The w i f e is not

c o u n c i l v a l i d a t e d the Kabin-nama

m a i n t e n a n c e . R e l y i n g u p o n the p r e c e d i n g

e n t i t l e d m e r e l y to m a i n t e n a n c e i n the

w h e r e a s u m o f Rs 1,25,000 was stipulated.

j u d g m e n t , the c o u r t r u l e d that since the

E n g l i s h sense o f the w o r d but has a r i g h t

T h e d o c u m e n t was s i g n e d b y the husband

separation d i d n o t take place u n t i l

some

t o c l a i m a habitation f o r her o w n e x c l u s i v e

and attested a n d witnessed b y 25 persons.

weeks after the e x e c u t i o n o f the agreement,

use i n accordance w i t h the h u s b a n d ' s

T h e c o u r t h e l d that t h e fact that the husband

the post-nuptial agreement encouraged f u t u r e

means. I t is i n c u m b e n t o n the h u s b a n d

d i d not have the means o r expectations to

separation and hence it w a s against p u b l i c

to p r o v i d e a separate apartment f o r his

pay the a m o u n t was no reason to decree a

policy.

wife's

s m a l l e r sum.

habitation

t o be s o l e l y

and

announced was not

o f 1877

A s can be observed, M u s l i m w o m e n w e r e

e x c l u s i v e l y a p p r o p r i a t e d b y her, because

o n a f i r m f o o t i n g i f the c o u r t s a p p l i e d I s l a m i c

this is essentially necessary to her and

o b s e r v a t i o n s r e g a r d i n g the right o f mehr.

p r i n c i p l e s . T h e d e c i s i o n o f the O u d h h i g h

is therefore her due, the same as her

T h e p r i v y c o u n c i l c o m m e n t e d : " M e h r has

maintenance

God

i m p o r t a n t uses w h i c h a f f e c t the d o m e s t i c l i f e

appoints her a d w e l l i n g house as w e l l as

o f Mohammedans. The law-giver o f Islam

a subsistence".

was anxious to safeguard the w i f e against

court i n Mansur

v A z i z u l 1 0 is yet another

e x a m p l e o f this trend. I n this case the

burt

l a i d d o w n an i m p o r t a n t p r i n c i p l e r e g a r d i n g

and the w o r d

of

the M u s l i m w o m a n ' s r i g h t to shelter o r , as

f o r m u l a t e d i n the present c o n t e x t , the r i g h t

This judgment

is s i g n i f i c a n t

for

its

the a r b i t r a r y exercise o f the right o f d i v o r c e

K E Y S T O N E OF I S L A M I C L A W OF M A R R I A G E

b y the husband. H e a c c o r d i n g l y devised the

A t the t i m e o f the second m a r r i a g e , the

T h e j u d g m e n t s discussed a b o v e i n d i c a t e

M e h r is a w e a p o n i n the hands o f the w i f e

husband entered i n t o an agreement g r a n t i n g

that a M u s l i m w o m a n ' s r i g h t u p o n m a r r i a g e

to protect her f r o m possible i l l - t r e a t m e n t b y

the f i r s t w i f e o p t i o n to l i v e separately and

w e r e superior to the E n g l i s h w o m a n ' s rights.

the husband. I f she s u r v i v e d her husband and

c l a i m maintenance o f Rs 5 per m o n t h i n the

B u t recent research o n M u s l i m

societies

his o t h e r heirs i l l - t r e a t e d her, she w o u l d not

event o f disagreement between the t w o wives.

i n d i c a t e that these rights have been corroded.

be t h r o w n out i n t o the streets but w o u l d be

S u b s e q u e n t l y , the first w i f e sued f o r arrears

M e h r is reduced to a mere t o k e n and in its

able, apart f r o m her legal share, to e n f o r c e

o f maintenance a m o u n t i n g to Rs 5 8 - 7 - 0 .

place, d o w r y , a c u s t o m practiced b y the

against t h e m her c l a i m w h i c h must be p a i d

upper

o u t o f the assets o f the husband b e f o r e they

to m a t r i m o n i a l h o m e .

i n s t i t u t i o n o f m e h r to c o n t r o l that

U p h o l d i n g her right o f separate residence

caste

Hindu

society

is

gaining

right.

and m a i n t e n a n c e , the c o u r t observed: " I f a

acceptance. T h i s d e v e l o p m e n t is d i s t u r b i n g .

are d i s t r i b u t e d a m o n g his heirs. T h i s is the

M u s l i m marries t w o w i v e s and i f the w i v e s

D u e to the r i t u a l i s t i c manner i n w h i c h m e h r

k e y s t o n e o f the M o h a m m e d a n l a w o f mehr

are not able to get along, and i f the husband

settlements are contracted, there is a fear

i n its p u r i t y " .

is not able to p r o v i d e separate apartments,

among women's

activists that this

P r o t e c t i n g t h e w o m a n ' s interest further,

agreement i n f a v o u r o f one w i f e g r a n t i n g her

r i g h t is not an adequate safeguard against

the courts have also r u l e d that m e h r cannot

maintenance (guzara)

rights

is not against p u b l i c

d e s t i t u t i o n . B u t the reported j u d g m e n t s o f

be a b s o l v e d i n distress. Since the w o m a n has

p o l i c y " . T h e c o u r t d i f f e r e d f r o m the v i e w

a b y g o n e era bear t e s t i m o n y to a d i f f e r e n t

a r i g h t to enter i n t o a contract r e g a r d i n g her

expressed b y the B o m b a y h i g h c o u r t that

reality.

m e h r the I s l a m i c l a w grants her the right also

I n Sungra B i b i ' s a case d e c i d e d i n 1880, 1 1

to opt o u t o f the contract. T h i s is c a l l e d the

important

the u n p a i d m e h r dues at the t i m e o f h u s b a n d ' s

right o f remittance. T h i s p r o v i s i o n is misused

authorities on M u s l i m l a w r e g a r d i n g the

death w e r e Rs 5 1 , 0 0 0 and the assets left

b y elders i n the f a m i l y and the w o m a n is

M u s l i m w o m a n ' s r i g h t o f separate residence.

b e h i n d by the husband w e r e i n s u f f i c i e n t t o

coerced i n t o r e m i t t i n g the m e h r d u r i n g the

is

pay the dues. T h e f u l l bench o f A l l a h a b a d

husband's

incumbent upon a husband to provide a

h i g h court h e l d that the w i f e was e n t i t l e d

R e c o g n i s i n g the disability

separate

wife's

to the w h o l e a m o u n t stipulated, i r r e s p e c t i v e

d u r i n g these m o m e n t s , the courts have r u l e d

h a b i t a t i o n to be s o l e l y and e x c l u s i v e l y

o f the fact that the h u s b a n d ' s assets w e r e not

that a consent o b t a i n e d in a m o m e n t

a p p r o p r i a t e d to her use, so that none o f

s u f f i c i e n t to pay the d o w e r debt.

distress does not constitute v a l i d consent

such agreements encourage separation. T h e

judgment

relied

upon

passage f r o m

two

the Hedaya:

apartment

for

his

"It

the h u s b a n d ' s f a m i l y or others m a y enter

without

I n Kamar-un-nissa

Bibi's

case o f the same

bed.
face
of

a n d the w o m a n does not f o r f e i t her rights

period, 1 2 the husband had made an o r a l g i f t

because this is essentially necessary to

o f the p r o p e r t y to his w i f e , i n the presence

her and is therefore, her d u e the same as

o f seven witnesses. L a t e r , he e x e c u t e d a

r e c o g n i t i o n to a w o m a n ' s i n a b i l i t y to c l a i m

maintenance

d o c u m e n t , mukhtar-nama

her dues d u r i n g the subsistence o f her m a r -

and

and

women

desire,

appoints

her p e r m i s s i o n

i l l n e s s o r o n his d e a t h

the w o r d

her a d w e l l i n g

of

God

to g i v e effect to

b y this action.
The

courts

have

also

granted

due

h o u s e as a

the g i f t , w h i c h was made i n lieu o f the

riage. In 1855, the p r i v y c o u n c i l held: It is

subsistence a n d as it is i n c u m b e n t u p o n

u n p a i d d o w e r o f Rs 51,000. H o w e v e r , it was

important to consider h o w inconvenient it

the husband to p r o v i d e a h a b i t a t i o n f o r

p r o v e d that the d o w e r stipulated at the t i m e

w o u l d be i f a m a r r i e d w o m a n was o b l i g e d

his w i f e , so h e is not at l i b e r t y to a d m i t

o f m a r r i a g e was a mere Rs 100. D e c r e e i n g

to b r i n g an a c t i o n against her husband. It

any person to a share i n it as this w o u l d

i n the w o m a n ' s f a v o u r , the p r i v y c o u n c i l

w o u l d be f u l l o f danger to the happiness o f

be i n j u r i o u s to her; n e i t h e r is the h u s b a n d

h e l d that it was not necessary to p r o v e that

married life.14

at l i b e r t y to i n t r u d e u p o n his w i f e , his

Rs 5 1 , 0 0 0 was agreed u p o n at the t i m e o f

I n a series o f j u d g m e n t the courts have

c h i l d b y another w o m a n . I f the h u s b a n d

marriage. Under Mohammedan law, mehr

r u l e d that, i f at the t i m e o f the husband's

appoints his w i f e an a p a r t m e n t w i t h i n his

m a y be f i x e d even after marriage.

death the w i d o w ' s m e h r dues are unpaid,

o w n house g i v i n g her the l o c k a n d k e y

i t is s u f f i c i e n t as the e n d is, b y this means,
fully obtained".

Economic and Political Weekly October 12-19, 1996

T h e Sultan

Begam

case o f 1936 ( A I R

a n d she is already i n possession o f the

1936 L a h 183) is yet another m i l e s t o n e i n

property,

this d i r e c t i o n . T h e w i d o w c l a i m e d Rs 5 0 , 0 0 0

possession. I n e c o n o m i c terms this is a

she has the p o w e r

to

retain

2835

substantial safeguard against destitution. The

husband's relatives do not have the right to
dispossess the widow until her claim is
satisfied. Several courts have also held that
this right is heritable and transferable.
The high amounts demanded by women
as mehr resulted in the enactment of statutes
in the states of Oudh (in 1876) and Jammu
and Kashmir (in 1920) to protect husbands
from the exorbitant amounts claimed by the
wives. The statutes empowered the courts
to reduce the amount if deemed to be too
high and beyond the husband's means.
The amounts mentioned in the judgments
cited above need to be viewed in the context
of the living standards of this period. Only
then will it be possible for us to grasp the
security which the high amounts stipulated
as mehr provided for women. The salaries
for clerical posts in government jobs during
this period ranged from Rs 40 to Rs 100.
A sum of Rs 10 to Rs 20 was deemed an
adequate amount as maintenance.
Although it is possible to argue that the
cases discussed above concern women of
affluent families, the decisions are a reflection
of the prevalent social norms and hence it
can reasonably be assumed that mehr was
a right which provided the Muslim woman
substantial economic protection. The case
law also provides concrete evidence that
even lower class women did enter into
agreements with their husbands to protect
their economic rights as the low amounts of
settled as maintenance indicate.
CONTEMPORARY TRENDS

It is in the context of the above legal status

that the present situation of Muslim women
need to be examined. Despite progressive
legal provisions, it is the customs and
practices prevalent in the community which
determine the status of women in any society.
While the community practices are not
homogeneous, nor is the shariat followed in
its letter or spirit, recent studies indicate that
mehr continues to be an integral part of a
marriage contract among most Muslim
communities. But the right is corroded
beyond recognition. The amounts stipulated
are as low as Rs 101 to Rs 501 and only
among a minuscule section the amounts
excceed Rs 10,000. The communities also
practice the dowry system and the amount
of dower paid to the groom is always higher
than the mehr which is settled upon the
woman.15
There is a pressure within the community
to stipulate a low amount in a ritualistic
manner. The practice of pre-marriage
agreement is almost non-existent. Although
marriage among Muslims is a contract, the
Hindu notion of a sacramental marriage
seems to have permeated into community
practices and high amounts of mehr are

2836

disapproved due to its analogy to a contract

of sale. The absence of economic safeguards
has upset the delicate balance upon which
the Islamic law of marriage had rested and
tilted it in husband's favour. The arbitrary
oral divorce which cause destitution of
women perhaps is a direct corollary to the
deterioration of the economic safeguards.
Unfortunately, there are no sociological
studies which shed light on the social
processes which were instrumental to this
deterioration.
Partition and the transfer of population
which followed it, have resulted in the general
lowering of economic and social status of
Indian Muslim community. The communal
holocausts in the intervening years and the
communalisation of political processes in
the country have kept ablaze the insecurities
experienced by Muslims at the time of
Partition. This insecurity has resulted in a
narrowing down the visions and aspirations
of the community in the post-independent
period. In this mileu the rights of women
are deliberately allowed to corrode. While
the community leadership has been vigilant
in opposing state interventions in the realm
of personal laws for fear of subversion of
its identity, the subversion of women's rights
through the process of Hinduisation seems
to have caused no concern for the leadership.
The insidious co-relationship between dowry
and mehr is a case in point.
Another example of this trend is a recent
judgment byJustice.Tilhari which invalidated
the practice of triple talaq. The community
leadership opposed the judgment as
intervention into the personal laws of the
community. But the basic issue which the
judgment was meant to address was of land
rights. Under state enactments, the woman's
individual property was deemed as the

property of the husband as head of household.

This principle is un-Islamic, but this violation
of the Islamic principle seems to have caused
no concern for the Muslim leadership.16
The neglect of women's concerns can also
be ascertained through the events following
the controversial judgment in the Shahbano
case. The adverse remarks of the judiciary
regarding Islam and the Prophet aroused the
wrath of the Muslim leadership which led
to enactment of the Married Women's
(Protection of Rights upon Divorce) Act,
1986, which the religious and politcal leaders felt would be more in keeping with the
Islamic precepts. The preamble of the act
emphasises this.
The act disentitled divorced Muslim
women from claiming maintenance under a
secular provision of the Criminal Procedure
Code (Cr PC). But instead of a monthly
maintenance dole of Rs 500 (provided by
section 125 Cr PC), the act granted Muslim
women the right to a fair and reasonable
provision and maintenance, which the
Muslim leadership felt were more in keeping
with the Quranic principles.
While the act met with a lot of criticism
from progressive and women's rights forums,
several courts interpreted the provision in
women's favour by granting them lump sum
settlements. In one of the earliest cases after
the statute came into effect, the judicial
magistrate at Lucknow's Diwani Kacheri
awarded the divorced Muslim wife a sum
of Rs 85,000 as fair and reasonable
settlement.17
The Gujarat high court18 while interpreting
the clause, reasonable and fair provision and
maintenance to be made and paid to her, held
that the word 'provision' indicates that
something is provided in advance for meeting
future needs. At the time of divorce the

Economic and Political Weekly October 12-19, 1996

M u s l i m h u s b a n d is r e q u i r e d t o v i s u a l i s e o r

' r e f o r m f r o m w i t h i n ' rather t h a n a u n i f o r m

o v e r t h e deed t o her husband. T h e m o t h e r

contemplate

c i v i l code.

f i l e d s e v e r a l c o m p l a i n t s a g a i n s t the

requirements

the extent
and

of

make

the

future

treatment o f her d a u g h t e r i n the

ill

Fauzdari

preparatory

A l t h o u g h these suggestions h a v e not yet

arrangements i n a d v a n c e f o r m e e t i n g the

been accepted, the F i q a h A c a d e m y w h i c h

c o u r t a n d f i n a l l y o b t a i n e d p e r m i s s i o n to v i s i t

same. T h i s i n t e r p r e t a t i o n seems to be i n

is the apex b o d y o f M u s l i m j u r i s p r u d e n c e

the daughter. A t this m e e t i n g the husband

c o n f i r m a t i o n w i t h the cases discussed above.

in

i n f o r m e d the w i f e ' s m o t h e r : " I have d i v o r c e d

T h e K e r a l a h i g h c o u r t reiterated t h i s v i e w

i n t e r n a t i o n a l c o n f e r e n c e has addressed this

her. Y o u g i v e u p the paper a n d take a w a y

a n d h e l d that e v e n a m i l l i o n a i r e w i f e w h o

issue. M a u l a n a M u j a h i d u l I s l a m Q a s m i , a

y o u r d a u g h t e r " . B u t the m o t h e r refused to

l i v e s i n l u x u r y a n d a f f l u e n c e is e n t i t l e d to

l e a d i n g M u s l i m t h e o l o g i a n , m a d e a plea f o r

g i v e u p the settlement deed. B u t i n 1850

c l a i m under the act and the r e q u i r e m e n t o f

structural r e f o r m s w h i c h w o u l d reflect the

since the d a u g h t e r ' s c o n d i t i o n was b e c o m i n g

' n o t b e i n g able to m a i n t a i n h e r s e l f is n o

social realities o f M u s l i m w o m e n i n India. 2 1

unbearable, u p o n her desperate plea, the

longer applicable to M u s l i m w o m e n under

the act. 19

India,

in

its

recently

concluded

W h i l e this is o n e area' o f l a w
another

area

which

the

reform,

m o t h e r sent o v e r the d o c u m e n t and the w i f e

women's

handed it o v e r to her husband. T h e r e a f t e r ,

I t is i n this c o n t e x t that the c o m m i t m e n t

organisations are p u r s u i n g is s m a l l s p e c i f i c

the husband f o r c e d the w i f e to sign a

o f the M u s l i m l e a d e r s h i p t o w a r d s its w o m e n

l e g i s l a t i o n s w h i c h w o u l d not arouse the

Khoolanama

becomes questionable. Instead o f w e l c o m -

c o n t r o v e r s y o f the u n i f o r m c o d e a n d at the

i n g the p r o - w o m e n j u d g m e n t s as c o n c u r r i n g

same t i m e protect w o m e n ' s rights. B i l l s l i k e

recovery

w i t h the I s l a m i c p r i n c i p l e o f p r o v i d i n g f u t u r e

D o m e s t i c V i o l e n c e A c t and the R i g h t to

Rs 2 6 , 0 0 0 ( t h e 1,000 g o l d mohurs

s e c u r i t y to w o m e n , t h e M u s l i m

r e l i n q u i s h i n g the m e h r dues.

S u b s e q u e n t l y the w i f e f i l e d a suit f o r the

of

her

mehr

dues v a l u e d

at

valued

Personal

M a t r i m o n i a l H o m e and P r o p e r t y are already

at Rs 16,000) i n the d i s t r i c t court. T h e case

L a w B o a r d f i l e d appeals to the s u p r e m e

o n the a n v i l . T h e s p e c i f i c statutes are meant

was s u b m i t t e d to the ' m o u l v i e ' for his ' F u t w a '

c o u r t c h a l l e n g i n g the C o n s t i t u t i o n a l v a l i d i t y

to f i l l the lacunae w i t h i n the e x i s t i n g I n d i a n

w h o p r o c l a i m e d that as per the M o h a m m e -

of

matrimonial

d a n l a w , a Khoolanama

these

judgments.

In

1992,

Syed

laws. T h e bills have

been

cannot be p r o v e d

Shahabuddin introduced a private members

debated i n p u b l i c f o r u m s and i n the P a r l i a -

b i l l i n the L o k Sabha t o p l u g the l o o p h o l e s

m e n t . It w i l l i n d e e d be t r a g i c and i r o n i c i f

h u s b a n d has the p o w e r t o g i v e talaq

the

through w h i c h the courts granted w o m e n

in t o d a y ' s v i t i a t e d atmosphere, the M u s l i m

divorce cannot

the

leadership pleads f o r e x e m p t i o n f r o m t h e i r

husband is liable t o pay the w h o l e

application

a n d iddit

l u m p s u m settlements. 2 0
B u t c o n f r o n t e d w i t h the aggressive H i n d u

on

the

pretext

of

state

w i t h o u t the w i f e ' s a d m i s s i o n . B u t since the

be d i s p u t e d .

Hence

dynmohur.

a l l o w a n c e . I n an appeal filed b y

c o m m u n a l p r o p a g a n d a i n the p o s t - A y o d h y a

i n t e r v e n t i o n , w h e n i n fact the statutes w o u l d

the h u s b a n d , the 'Sadar D e w a n n y A d a w l u t '

phase a n d its d e m a n d f o r a u n i f o r m c i v i l

be g i v i n g legal effect to I s l a m i c p r i n c i p l e s

u p h e l d the t r i a l c o u r t ' s d e c i s i o n .

code, the M u s l i m

today

o f w o m a n ' s s e c u r i t y , in a s i m i l a r m a n n e r the

T h e husband f i l e d an appeal the p r i v y

c o m p e l l e d to f o c u s a t t e n t i o n to the p r o b l e m s

p r i n c i p l e o f m a r r i a g e as a d i s s o l u b l e contract

c o u n c i l w h i c h c o n f i r m e d the l o w e r court

faced b y w o m e n . It is e v i d e n t that in the

was extended to other j u r i s p r u d e n c e i n the

order o n the f o l l o w i n g g r o u n d : " M u s l i m l a w

name o f p r o t e c t i n g its c u l t u r a l i d e n t i t y , i f

last c e n t u r y .

recognises t w o f o r m s o f d i v o r c e , talaq

leadership

is

i t pursues its o s t r i c h l i k e a t t i t u d e o f n e g a t i n g

khoola.

Talaq

and

is the a r b i t r a r y act o f the

w o m e n ' s rights, it w i l l lose the support o f

P R E D I C A M E N T S OF W O M E N A N D

husband, w h o m a y repudiate his w i f e at his

secular a n d h u m a n r i g h t s f o r u m s , w h o h a d

M A N I P U L A T I O N S BY H U S B A N D S

o w n pleasure, w i t h or w i t h o u t cause. B u t i f

stood b y the c o m m u n i t y

i n its h o u r

of

he adopts that course he is l i a b l e to repay

t r i b u l a t i o n f o l l o w i n g the d e m o l i t i o n o f B a b r i

W h i l e not d e n y i n g that the p r o v i s i o n s o f

M a s j i d . T h i s p o l i t i c a l r e a l i t y has led to s o m e

shariat are patriarchal and reflect a m a l e bias

w i t h the consent a n d at the instance o f the

s t i r r i n g s w i t h i n the M u s l i m leadership.

p a r t i c u l a r l y i n the r e a l m o f penal l a w and

w i f e . I n such a case the terms o f settlement

A t the b i a n n u a l m e e t i n g o f the A l l I n d i a
Muslim

Personal

Law

Board

held

in

her d o w e r . A d i v o r c e b y khoola

is a d i v o r c e

succession rights, at least i n its o r i g i n , the

are a matter o f arrangement b e t w e e n the

l a w o f marriage was tilted i n w o m e n ' s f a v o u r ,

spouses and the w i f e m a y , as a consideration,

r e l i n q u i s h her m e h r a n d other

rights.

But

A h m e d a b a d i n O c t o b e r , 1995, a g r o u p o f

by securing their economic

M u s l i m w o m e n w e r e i n v i t e d to present t h e i r

Islamic

v i e w s . T h i s g r o u p has been w o r k i n g o n a

a p p l i e d to safeguard the w o m e n f r o m their

f o r m a t o f standard nikahnama

h u s b a n d ' s m a n i p u l a t i o n s to d e p r i v e t h e m o f

was

adequately protect w o m e n ' s r i g h t s w i t h i n

these rights. T h e f o l l o w i n g three cases arc

r e p u d i a t i o n o f the w i f e . H e n c e he was b o u n d

the I s l a m i c

the

discussed to d r a w a parallel b e t w e e n the

t o pay his m e h r d u e s " .

suggestions f o r m u l a t e d b y this g r o u p are: -

p r e d i c a m e n t s o f w o m e n o f the last c e n t u r y

m e h r s h o u l d be s t i p u l a t e d i n g o l d , s i l v e r o r

and the w o m e n o f today.

framework.

which could
Some

of

other v a l u a b l e s so that o v e r the years its

value is not d e p r e c i a t e d ; the

nikahnama

and talaq-e-tawfeez; a m a n should

dyn-mohur

(mehr) in

since the w i f e has not a d m i t t e d t o the

khoola,

it does not c o n s t i t u t e a d i v o r c e . T h e d i v o r c e
effected

through

the

husband's

I n the second case a M u s l i m w i d o w w i t h

five children,

Shamsoonnisa

Begam,23

Buzul-ul-

i n h e r i t e d a large share o f her father's property

10,000

i n N o v e m b e r , 1847. A f e w m o n t h s p r i o r to

w e r e settled as

this, i n M a y 1847 she m a r r i e d M o o n s h e e

v Luteefutoon-Nissa22

a n d Rs 1,000 g o l d mohurs

Hence,

effectively

I n the f i r s t case, Moonshee

Raheem

s h o u l d p r o v i d e the w o m a n the r i g h t of khoola

bind

rights.

p r i n c i p l e s c o u l d be

Rs

1842. I n

1847 the

B u z l o o r R u h e e m . D u e to i l l treatment, i n

h i m s e l f t o d i v o r c e t h r o u g h an a r b i t r a t i o n

h u s b a n d r e m a r r i e d . T h e second w i f e l a i d

D e c e m b e r , 1855 she l e f t her husband. B u t

f o r u m , the h u s b a n d s h o u l d not

contract

d o w n a c o n d i t i o n that the h u s b a n d s h o u l d

the husband

b i g a m o u s m a r r i a g e w i t h o u t the c o n s e n t o f

d i v o r c e the first w i f e . B u t i f he d i v o r c e d her

securities w h i c h she had i n h e r i t e d

the f i r s t w i f e a n d i n the e v e n t that he does,

he c o u l d be c o m p e l l e d t o pay the m e h r dues.

her father. So i n A p r i l , 1856 she f i l e d f o r

a n d release

So he treated her w i t h c r u e l t y a n d d e n i e d

r e c o v e r y o f her p r o p e r t y . I n retaliation, the

h e r s e l f o f t h e m a r r i a g e b o n d a n d c l a i m her

her f o o d a n d c l o t h i n g i n o r d e r to i n d u c e her

husband filed for restitution o f

m e h r dues. T h e r e is a l s o a s u g g e s t i o n that

to ask f o r d i v o r c e , khoola,

rights.

i n the e v e n t o f a r b i t r a r y o r a l t a l a q , t h e

w o u l d be c o m p e l l e d to f o r f e i t her r i g h t t o

m a n s h o u l d be c o m p e l l e d t o pay p e n a l t y

dower.

t h e w i f e c a n p r o n o u n c e khoola

i n w h i c h case she

retained the

government
from

conjugal

T h e h u s b a n d ' s suit f o r r e s t i t u t i o n was

d i s m i s s e d b y t h e t r i a l c o u r t a n d the h i g h

m e h r , d o u b l e o r t r i p l e the s t i p u l a t e d s u m .

T h e m e h r deed was i n the possession o f

A l l t h e s u g g e s t i o n s are w i t h i n t h e I s l a m i c

her m o t h e r a n d the w i f e i n f o r m e d her o f i l l

f a v o u r r e g a r d i n g the p r o p e r t y detained b y

precepts a n d s u b s c r i b e t o the t h e o r y

t r e a t m e n t a n d requested the m o t h e r t o h a n d

her h u s b a n d v a l u e d at Rs 2,34,800. T h e

of

Economic and Political Weekly October 12-19, 1996

c o u r t . T h e w i f e o b t a i n e d a decree i n her

2837

husband appealed against both the orders to

the privy council.
During litigation, the husband claimed
that he had purchased the securities from the
wife and she had spent the amount for the
marriages of her children from previous
marriage. But the husband was already in
debt and a decree was passed against him
for a sum of Rs 2,48,000. The documents
concerning the securities were traced in the
hands of the husband's creditors.
The privy council while upholding the
wife's claim of property held as follows:
"The wife came to her husband's house as
a wealthy woman and left as a destitute. As
a Muslim woman of rank, she was in Zenanah
and had passed the securities to her husband
who was supposed to have managed them
for her for the purpose of collecting interest.
Instead he had transferred them to his
creditors. Her communication to the outside
world was from behind the Purdah. Due to
her state of seclusion (i e, Purdah-nusheen)
her husband, who managed her affairs for
her, was in a position to use undue influence
on her".
Regarding the right of Muslim women
upon marriage the privy counciI commented:
"Distinction must be drawn between the
rights of a Mahmmodan and a Hindu woman
and in all that concerns her power over her
property, the former is, by law, far more
independent, in fact even more independent
than an English woman. There is no doubt
that a Mussulman woman when married
retains her dominion over her own property
and is free from the control of her husband
in its disposition. The Mohammedan law is
more favourable than the Hindu law to
women and their rights and does not insist
on their dependence upon and subject to the
stronger sex".
The third case concerns a marriage
agreement. At the time of the marriage
Poonoo Bibi's24 husband entered into the
following agreement with his wife: "That I
shall never give you trouble in feeding and
clothing you; that I shall make over to you
and nobody else besides you whatever I shall
draw from employment; that I shall never
exercise any violence on you; that I shall
not take you anywhere else away from your
home; I shall not marry or make nikah without
your permission; that I shall do nothing
without your permission; and if I do anything
without your permission you will be at liberty
to divorce me and realise from me the amount
of dynmohur forthwith and this nikah will
then be null and void''.
After desertion, the wife filed for the
enforcement of the agreement regarding the
husband's savings. The husband was
employed in a clerical post and was drawing
a salary of Rs 40 and had savings of around
Rs 568. The husband's advocate argued
that the agreement is against public policy

2838

as it amounts to reducing the husband to a

slave. During litigation a compromise was
arrived at and the wife agreed to a monthly
maintenance of Rs 10. Although, the court
commented, "Some part of the agreement
may be void", it did not strike down the
agreement as invalid or against public policy.
The law of marriage is not a law concerning sexuality or morality. The law of
marriage in its essence, like all civil laws,
is a law regulating economic transactions,
and more specifically, women's access to
and control over it. The Islamic provisions
of mehr and marriage agreements, and right
of property management have stood Muslim
women in good stead during litigation in the
last century. Hence, the decline from
Luteefutoon-Nissa
and Shamsoonnisa
Begam in1860toShahbano Begam in 1985,
is not a reflection of the Islamic law of
marriage, but a sad comment on the politicisation of women's rights within a communally vitiated and patriarchally tilted social
structure.

Notes
1 Khurshid Bibi v Mohammad Amin PLD 1967
SC 97.
2 See Dr Qamar Murtaza Bokhari v Mst
Zainab Bashir PLD 1995 Lah 187 and Shah
Begam v District Judge, Sialkot and Ors
PLD 1995 Lah 19.
3 Badarannissa Bibi v Mafiattala (1871) 7 BLR
442.
4 (1910) 37 1A 152.
5 Muhammad Muin-ud-din v Jamal Fatima AIR
1921 All 152.

6 Muhammad Alt v Mst Fatima (1929) ILR 11

Lah 85.
7 Kutchi Memon's Case Perry's Oriental Cases
110-129 (cited by A A A Fyzee (1965) in
Cases of Muhammadan Law of India and
Pakistan, Oxford University Press, London,
pg xxix.
8 (1905) 7 Bom LR 602.
9 Bai Fatima v Ali Mahomed Aiyab (1913) ILR
37 Bom 280.
10 AIR 1928 Oudh 303.
11 Sungra Bibi v Masuma Bibi (1878-80) 2 All
573 (FB).
12 Kamar-un-nissa Bibi v Hussaini Bibi (1881)
3 All 266 (PC).
13 Sultan Begam v Sarajuddin AIR 1936 Lah 183.
14Ameer-un-nissa v Muradunnisa (1855) 6 M I A
211.

15 See Newsletter of Women's Research

and Action Group, Bombay V o l 1/2
September, 1994, Vol 11/1 February, 1995,
Vol 11/2 and 3 August 1995 and Vol 11/4
October, 1995,
16 Flavia Agnes: Triple Talaq Judgment. Do
Women reallyBenefit?Economic and Political
Weekly, 29-20 May 14,1994, p 1169.
17 Flavia Agnes: State, Gender and the Rhetoric
of Law Reform, SNDT Univeristy, Bombay,
1995 p 240.
18 A A Abdullav A B Mohmuna Saiyedbhai, AIR
1988 Guj 141.
19 Ahmed v Aysha II (1990) D M C 110 Ker
20 Bill No 155 of 1992.
21 Islamic Conference Proposes Amendments
on Marriage Laws, The Times of India,
(Bombay edition), October 27. 1995.
22 (1861) 8 M I A 379.
23 Moonshee Buzloor Ruheem v Shamsoonnisa
Begum (1867) 11 M I A 551.
24 Poonoo Bibi v Puex Puksh (1875) 15 BLR
App 5.

Economic and Political Weekly October 12-19, 1996