The population of IndiaPopulation of India https://en.wikipedia.org/wiki/2011_Census_of_India#Population as per 2011 census was 1,210,854,977. Of the 1.21 billion Indians, 833 million (68.84%) live in rural areas while 377 million stay in urban areas. 453.6 million people in India are migrants, which is 37.8% of total population.
India is home to Hinduism, Islam, Buddhism, Sikhism, Jainism, Zoroastrianism. According to the 2011 census, the total number of households in India is 248.8 million. Of which 202.4 million are Hindu, 31.2 million are Muslim, 6.3 million are Christian, 4.1 million are Sikh, and 1.9 million are Jain.
The majority of Indian MuslimsIndian Muslims https://en.wikipedia.org/wiki/Islam_in_India#:~:text=The%20majority%20of%20Indian%20Muslims%20(over%2085%25)%20belong%20to,also%20considered%20to%20be%20Sufis (over 85%) belong to the Sunni sect of Islam while a substantial minority (over 13%) belong to the Shia sect.
Indian Muslims are divided into three main classesMain Classes https://theprint.in/opinion/indias-muslim-community-under-a-churn-85-backward-pasmandas-up-against-15-ashrafs/234599/ . At the top of the hierarchy are the ‘Ashraf’ Muslims. Followed by Ajlaf who are considered backward Muslims followed by Arzal who are dalit Muslims.
Information About Muslim Family Laws And/or Practices In India
Laws Governing Muslim Marriages
The 4 codified laws that govern Muslim marriages are:
1937 – Muslim Personal Law (Shariat) Application Act
1939 – Dissolution of Muslim Marriages Act
1986 – The Muslim Women (Protection of Rights on Divorce) Act
2019 – The Muslim Women (Protection of Rights on Marriage) Act
Muslims can also register their marriage under the Special Marriage Act, 1954.
All other laws which concern family matters are also applicable to the community. For e.g. dowry prohibition act, domestic violence act
Uncodified shariah law is also applicable as per the sect, sub-sect, jamaat to which the individual belongs
Marriage registration is mandatory according to the Supreme Court.
The registration of Muslim marriagesRegistration – How to register your marriage under various laws in India? – LawLex.Org is done under Muslim Marriage Act which is guided by The Muslim Personal Law (Shariat) Application Act, 1937.
Marriage can also be registered with the qazi who solemnises and issues a nikaahnama which acts as a marriage certificate.
No Comprehensive Codified Law
Not having a comprehensively codified law itself puts women in a disadvantaged position. Practices like child marriage, halala, muta’a, polygamy have no legislative prohibition through a shariah based codified statutory law.
Muslim uncodified law allows underage marriage, in some cases puberty and in some cases age 15.
Families decide on the groom and consent to marriage is a mere formality, albeit very essential as it gives her one window to refuse the marriage.
Mehr amount is symbolic, not enough to ensure her financial security as is the purpose of mehr.
In some communities within Muslims, marriage is not solemnized without the wali/guardian. He gives consent to the marriage, especially if the girl is a minor.
Age of marriage, mehr, maintenance within marriage, polygamy, halala, and inheritance remain out of the ambit of a codified law.
The Prohibition of Child Marriage Act, 2006 although applicable to all Indian citizens, there is an untold assumption that it does not apply to Muslims. Same goes for section 494 of the Indian Penal Code which prohibits polygamy.
The 3 codified laws are all concerning divorce and yet there is a legal vacuum where the method of divorce is not laid down in any of the laws.
The codified law exists which lays down provisions of post-divorce maintenance but maintenance during marriage is governed by the Criminal Procedure Code, 125.
Practices like halala, and muta’a, which are specific to the Muslim community have not been made invalid by law.
Since Muslim law is not codified there is no law under which a muslim marriage can be registered. By default they are registered under the Special Marriage Act. By doing so the Muslim couple without their knowledge and consent are taken out of the ambit of the shariah law.
Out of the 4 codified laws mentioned above, 3 are linked to divorce. the 1939 Act gives 9 grounds on which Muslim women could seek divorce but this law does not lay down any provision for men. As a result till 2019 Muslim men continued to divorce orally and unilaterally.
The 1986 legislation is about post-divorce maintenance to women by the husband, children, her relatives and the wakf board. But this law is silent on maintenance within marriage.
The 2019 Act criminalized triple divorce but did not lay down the valid procedure of divorce, neither for men nor for women.
Although informal adoptions are happening in the community, shariah does not approve of formal adoption.
Positive Feature(s) Under Muslim Family Law
The law needs to be comprehensively codified. Piecemeal laws passed over decades has harmed the rights of Muslim women within the family.
The alternative dispute resolution forums [ADRFs] have been recognised as informal structures for availing justice. As a result for Muslim women, the qaziat, although deeply patriarchal, offers some hope of redresser.
Nikaahnama is also considered as a valid marriage certificate. In the absence of a national law of registration of marriages and in the absence of a codified Muslim family law, a nikaahnama proves to be an important document which serves as a proof of marriage.
Mehr, if made into a substantial amount through legislation, can prove to be a method of financial security for women. Right now it is a symbolic amount.
The formality of seeking the bride’s consent at the time of nikaah is crucial because even if she has not been involved in the process of deciding her life partner, she has this one window when she can refuse the marriage, negotiate her mehr amount and even put conditions in her nikaahnama.
Administration Of And Access To Justice On Marriage And Family Matters
The judicial system comprises of Supreme Court, High Courts, District Courts, also Civil Courts and Criminal Courts. in addition there are Lok Adalats/Village Courts and Tribunals. Family Courts have been set up specifically to look into family matters.
Both formal courts and community courts adjudicate matrimonial disputesMatrimonial Disputes – Muslim Law and Judicial Reform | Encyclopedia.com in India. The parties can either go to the qaziat or to the formal courts. They do have a choice. They can do so on all matters related to the personal law.
The parties are free to challenge the decisions of these informal religious courts in the formal courts. Decisions taken by the formal court are binding on the parties as well as the religious judicial bodies.
Non-Muslim lawyers and judges can adjudicate on Muslim family matters.
Women lawyers and judges irrespective of their religious background are free to fight cases of the Muslim community pertaining to civil as well as criminal matters.
Constitutional Provisions and National Legislation
Constitution of IndiaConstitution of India – https://www.refworld.org/docid/3ae6a8394.html:
Article 14 – Equality before the law
Article 15 –Prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth
15(1) 10 prohibits state discrimination based on the grounds of religion, race, caste, sex or place of birth, and subsection
15(2) adds that no one is to be denied access to public and state-funded services and facilities.
15(3) states that the government may make special provision for women and children
Article 19 -Guarantees to all the citizens the six freedoms and they are:
- Freedom of speech and expression, Freedom to assemble peaceably and without arms
- Freedom to form associations or unions
- Freedom to move freely throughout the territory of India
- Freedom to reside and settle in any part of the territory of India
- Freedom to practice any profession, or to carry on any occupation, trade or business
Article 21 – Protection of life and personal liberty.
Article 29 – Protection of interest of minorities.
The Constitution guarantees six fundamental rights to Indian citizens as follows:
right to equality,
right to freedom,
right against exploitation,
right to freedom of religion,
cultural and educational rights, and
right to constitutional remedies.
In January 1992, the National Commission for Women was established to investigate cases of abuse and report to the government on measures to improve the situation of women in India.
In December 1993 National Commission on Human Rights was established to investigate and report on allegations of human rights violations
India also releases its National Policy for Women [2001, 2016] from time to time, reflecting its commitment to protecting and promoting women’s rights.
All statutory laws of the country cannot violate the constitutional values as embedded in the Preamble of the Constitution as well as in the various Articles espousing equality, justice and freedom.
No exception is made in the constitutional principles. But the conservative religious groups have invoked Article 25 to justify their right to continue with discriminatory practices within the community
The Supreme Court in its judgment in 1951 stated that personal laws are immune from application of Article 13Article 13 – https://www.google.com/search?q=article+13+of+indian+constitution&rlz=1C5CHFA_enIN914IN929&oq=article+13+of&aqs=chrome.0.0i512j69i57j0i512l8.4039j0j7&sourceid=chrome&ie=UTF-8 which enjoins a duty on the Indian State to respect and implement the fundamental right. And at the same time, it confers a power on the courts to declare a law or an act void if it infringes the fundamental rights. It says so because Personal laws are not “laws” under Article 13(3)(a) of the Constitution and they are not “laws in force” under Article 13(3)(b) of the Constitution.
In the recent case of Shayara Bano v. Union of IndiaShayara Bank v. Union of India Personal Laws vis-à-vis Fundamental Rights, Part III of the Constitution | CJP, the dispute between Part III of the Constitution and the Religious Personal Laws was raised again. Although the Court held that triple talaq was unconstitutional by examining it in accordance with Part III of the Constitution and that the Narasu Appa Mali judgement needed reconsideration, the Supreme and Fundamental dispute in law was left completely unresolved.
Other National Laws
All laws given below are applicable to the Muslim women.
An optional marriage law in the form of Special Marriage Act is available to all communities. Muslim couple can choose to opt out of their personal law and choose the Special Marriage Act. If the marriage of a Muslim couple happens under this Act, then too all laws mentioned are available to them. Additionally, the Muslim husband would not be able to practice polygamy and other discriminatory practices in the name of shariah.
Indian criminal law is set out in the Indian Penal CodeIndian Penal Code – https://www.refworld.org/docid/3ae6a8394.html which addresses crimes against women:
- Voluntarily causing a miscarriage for reasons other than health of the woman (s. 312)
- Assaulting a woman with the intent of outraging her modesty” (s. 354)
- Abducting a woman and compelling her to marry/illicit intercourse (s. 366)
- The penal code has a section on offences relating to marriage.
- Deceiving a woman to believe she is married and then cohabiting with her (s. 493)
- Committing bigamy (s. 494)
- Committing adultery with a married woman (s. 497)
- An adulterous married woman is not punished as an abettor (s. 497).
- Section 498(a) of the penal code makes it a crime for a husband or his relatives to cause any harm to his wife. The crime carries a punishment of up to three years imprisonment and a fine.
- The penal code also addresses rape (s. 375) albeit not within marriage.
LAWS PROTECTING RIGHTS OF WOMEN
Domestic Violence Act, 2005
Special Marriage Act, 1954
Dowry Prohibition Act, 1961
Indian Divorce Act, 1969
Maternity Benefit Act, 1861
Medical Termination of Pregnancy Act, 1971
National Commission for Women Act, 1990
Maternity Benefit Act,1861.
Medical Termination of Pregnancy Act,1971.
The Indian Penal Code,1860
The Indian Evidence Act,1872
Regional or International Human Rights Principles
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
India signed the Convention on the Elimination of All Forms of Discrimination against WomenCEDAW Report No.270 on 30 June 1980 and ratified it on 9 July 1993. After that India was expected to submit its report to the Committee on Elimination of Discrimination against Women (CEDAW). The first report was submitted in 1998. The combined fourth and fifth periodic reportsPeriodic Report – Consideration of reports submitted by States parties under article 18 of the Convention, Combined fourth and fifth periodic reports of States parties:India were submitted in 2012.
The first declaration in regards to Article 5[a] keeps India from enforcing equal rights between men and women by stating they will not interfere in personal affairsPersonal Affairs – CEDAW: A Critical Analysis From Indian Perspective of a community. The second declaration states with regards to Article 16 of the CEDAW, the Indian government declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country with different customs, religions and level of literacy [UN, 2013]. In addition with regards to Article 29 of the Convention, the Indian government did not consider itself bound by it. Also India has not ratified Optional Protocol to CEDAW. Therefore, India does not comply with regular reporting and several reports remain pending. Finally a reservation India makes that it will not submit to arbitration if there is a dispute of CEDAW. If a country is not going to enforce equal rights for women, an adult age of marriage for girls, individual complaints or undergo arbitration, then it seems that India did not ratify the convention with full conviction.
Any other relevant regional or international treaty or convention signed by India
IndiaIndia – Declaration / Covenants | National Human Rights Commission India has signed the
- United Nations Declaration of Human Rights
- International Covenant on Civil and Political Rights in 1979
- International Covenant on Economic, Social and Cultural Rights in 1979
- Convention on the Rights of Child in 1992 –
Third and fourth periodic report of India under the Convention on the Rights of the Child (CRC/C/IND/3-4)
Optional Protocol on the sale of children child prostitution and child pornography (CRC/C/OPSC/IND/1).
- Beijing Platform for Action 1994
Sustainable Development Goals
India along with other countries signed the declaration on the 2030 Agenda for Sustainable DevelopmentSustainable Development India and Sustainable Development Goals: The Way Forward, comprising of seventeen Sustainable Development Goals (SDGs) at the Sustainable Development Summit of the United Nations in September 2015.
The 3rd edition of the SDG India IndexSDG India Index – NITI Aayog Releases SDG India Index 2020 –21 2020 – 21 was released in June 2021. The SDG India Index 2020-21, developed in collaboration with the United Nations in India, tracks progress of all States and UTs on 115 indicators that are aligned to MoSPI’s National Indicator Framework (NIF). The SDG Index was launched by Niti Aayog in 2018 and has become the primary tool for monitoring progress on the SDGs in the country and has simultaneously fostered competition among the States and Union Territories.
The report titled “SDG India Index and Dashboard 2020–21: Partnerships in the Decade of Action” was launched by NITI Aayog Vice-Chairperson Dr Rajiv Kumar. Two goals – 2 (zero hunger) and 5 (gender equality) demand special attention, as the overall country score is below 50.
Key Resources About Muslim Family Law
By local researchers, activists and civil society groups
- The Madras High Court ruled that a certificate issued by the Chief QaziChief Qazi No legal validity for talaq certificate issued by kazi: Madras HC | India News,The Indian Express on talaq is only an opinion and has no legal validity. The ruling was the result of the PIL filed by Adv Bader Sayeed.
- Sharifa Khanum began the Tamil Nadu Muslim Women’s JamaatMuslim Women’s Jamaat The Tamil Nadu Muslim Women’s Jamaat to offer legal aid to Muslim women.
- Aurton ki Shariat AdalatAurton ki Shariat Adalat Women’s Shariah Court-Muslim Women’s Quest for Justice by BMMA
- Darul Uloom-e-Niswaan – Training syllabus for women qazi prepared by BMMA
- Anthology of 90 articlesAnthology Indian Muslim Women’s Movement covering Muslim law, shariah matters, Indian Constitution.
- Codification of Muslim Personal Law by Dr Asghar Ali EngineerDr. Engineer Codification of Muslim Personal Law Paperback – 1 January 2019, Qutub Jahan Kidwai
- Articles on Muslim women, Muslim community and Muslim family lawArticles https://noorjehansafianiaz.blogspot.com/
By government agencies/committees
- Muslim Personal Law reforms: The overall well-being of Muslim women is linked with the implementation of reforms in the personal lawReforms in Personal Laws https://mdd.maharashtra.gov.in/Site/Upload/Pdf/Mahmmodur_Rahman_Committee_Report_with_Cover_page.pdf. Based on the experience of working with Muslim women, women’s organizations have argued for the need for reform in the Muslim Personal Law. The effective change can only be achieved if the community groups organize consultations to bring about such a reform . These reforms can be at par with the principles adopted in other Islamic countries.pg. 160
- Law Commission’s consultation paper on ‘Reform of Family Law. Commission had 3 recommendationsRecommendations Law Commission for religion-wise amendments to address issues like ‘triple talaq’ | ORF regarding Muslim family law:
- Codify Inheritance law, introduce adultery as a ground for divorce in DMMA, nikaahnama must mention 494 IPC against polygamy.
By international bodies
- Towards a Muslim Family Law Act? Debating Muslim women’s rights and the codification of personal lawsCodification https://www.tandfonline.com/doi/full/10.1080/09584935.2019.1684444 in India, by Justine Jones
- Sagnik Dutta’s has explored Muslim women’s activism, pedagogy, and alternative dispute resolution at the intersection of Muslim personal law, minority rights, liberal constitutionalism in India, and transnational Islamic feminismagnik Dutta https://journals.sagepub.com/doi/abs/10.1177/14647001211023641 Articles: Feminist Theory: Becoming equals: the meaning and practice of gender equality in an Islamic feminist movement in India Ethnicities ‘Divorce, kinship, and errant wives: Islamic feminism in India, and the everyday life of divorce and maintenance’ Asian Journal of Law and Society: From Accommodation to Substantive Equality: Muslim Personal Law, Secular Law, and the Indian Constitution 1985–2015.
National Groups and Campaigns Working on Muslim Family Law
- BMMA’s ongoing campaign for comprehensive codification of Muslim family law since 2007
- BMMA filed a PIL in Supreme Court against triple divorce, polygamy and halala BMMA started 4 Aurton ki Shariat Adalats to provide legal aid to Muslim women
- Bader Sayeed’s PIL to disallow qazi to issue talaak certificate
- Shah Banu’s petition for post-divorce maintenance
- Shayara Bano’s petition against triple divorce
- Shehnaz Sheikh’s challenged the Muslim personal law in the Supreme Court, the first one to do soShehnaz Sheikh Shehnaaz Sheikh: Triple talaq: More and more Muslims speaking out | Hyderabad News – Times of India.
- Bharatiya Muslim Mahila Andolan
- National Muslim Women’s Welfare Society
- Ashana Trust
- Nari Shishu Kalyan Kendra
- BIRD Trust
- Manitham Trust
Muslim Personal Law (Shariat) Application Act
Dissolution of Muslim Marriage Act
Muslim Women (Protection of Rights on Divorce) Act
Muslim Women (Protection of Rights on Marriage) Act
Timeline of triple divorce legislation
- August 22, 2017: Supreme Court declares practice of Triple Talaq illegal. Asks Centre to frame a law.
- December 2017: Lok Sabha passes Muslim Women (Protection of Rights on Marriage) Bill, 2017
- September 19, 2018: Cabinet clears ordinance. Triple Talaq becomes a punishable offence with a three-year jail term.
- July 25, 2019: Lok Sabha passes triple talaq bill amid walkout by the Opposition.
- July 30, 2019: Rajya Sabha passes triple talaq bill.
- Shahnaz Shaikh, the founder of the Muslim women’s organisation Awaaz-e-Niswaan, had challenged the constitutional validity of the Muslim Personal Law in the Supreme CourtShehnaz Sheikh Putting faith in the secular courts – The Hindu. This was just before the 1985 Supreme Court’s Shah Bano judgment. But the aftermath of that judgment generated the Ayodhya campaign, and seeing the charged atmosphere, Shahnaz withdrew her petition.
- Shah Bano BegumShahbanu Begum Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985 filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband. Her case also led to the post divorce maintenance law  almost 50 years after the first attempt at codification. The judgement is a crucial landmark in Muslim women’s law reform trajectory.
- Shayara Bano, Isharat Jahan, Gulshan Parveen, Afreen Rahman and Atiya SabriShayara Bano, Ishrat Jahan, Gulshan Parveen, Afreen Rahman, Atiya Saabri Triple Talaq – Supreme Court Observer Reportable IN THE SUPREME COURT OF INDIA Original Civil Jurisdiction Writ Petition (C) No. 118 of 2016 Shayara Bano … Petition approached the Supreme Court against the practice of triple divorce and got a judgement which declared the practice of triple divorce as void.
- Bharatiya Muslim Mahila Andolan (BMMA) impleaded in the Shayara Bano case with signatures of 50,000 women who demanded an end to triple divorce. BMMA has also filed a petition in the Supreme Court against polygamy and halala.
- Earlier too along with triple divorce, BMMA had reached out to the Supreme Court against halala and polygamy.
Discussions to make minimum age of marriage applicable to the Muslim community
Currently the process of amendment to the Prohibition of Child Marriage Act, 2006 is being discussed. The amendment to the Muslim community is the fact that if passed by the Parliament it will be unequivocally be made applicable to the Muslim community apart from raising the age of marriage of girls from 18 to 21.
This country page was prepared by Dr. Noorjehan Safia Niaz, Co-Founder of Bharatiya Muslim Mahila Andolan/Indian Muslim Women’s Movement. Research assisted by Adv. Rukhsar Memon as a collaboration under the Campaign for Justice in Muslim Family Laws.