All the Muslims in India are governed by Muslim Personal Law (Shariat) Application Act, 1937. It deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriage Act, 1939 deals with the situations in which Muslim women can take divorce or the rights of the divorced Muslim women. These laws are not applicable in Goa State, where Goa Civil Code is applicable for all, irrespective of their religion. This law isn’t applicable to Muslims who have married under the Special Marriage Act, 1954.
During Sher Shah’s regime, powers of the court were restricted and Muslim Law was modified to that extent which can suit the requirements of the time. Ulemas (religious scholars) had considerable influence on legal decisions. During Akbar’s regime, powers of Ulemas were reduced and shattered the dominance of Sunni school. Cutting of noses and ears and death penalty couldn’t be inflicted without Emperor’s permission during Jahangir’s regime. Aurangzeb ordered compilation of code of law. In 1822, Privy Council recognized right of Shia Muslims to their own law.
British Raj passed Shariat Act in 1937 for the matters related to marriage, divorce and succession of Muslims.
Indian society was defined by caste and religious identity, with lack of citizenship under British rule. Individual could be limited based upon caste, religion and economic status, etc.
Points of gender, caste and religion are still determinants of political influence and access to resources.
Current organizations of Muslim Personal Law discriminates against women in three ways:
1. Muslim men is allowed to marry up to four wives at a time.
2. He can divorce his wife without getting into any legal processes.
3. He doesn’t need to provide financial support to his ex wife after three months of divorce whereas men are required to support their ex wife forever after divorce in other religions.
Marriage and Divorce
Muslim marriage is a civil contract between man and a woman. Dissolution of marriage can be done by husband (talaq), wife (khula) or mutual (mubarat).
Talaq allows a Muslim man to divorce his wife by just stating the word talaq three times. On 22 August 2017, Supreme Court of India deemed triple talaq unconstitutional. Muslim Women Act announced triple talaq illegal and void in 2019.
Other Muslim groups follow talaq-i-hasan where husband pronounces talaqs on three separate months. If husband changes his mind after first or second talaq, divorce is nullified.
Husband can pronounce divorce through an agreement known as talaq-e-tafweeh.
A woman can ask for divorce in the following situations:
1. If whereabouts of husband is not known for more than four years.
2. If husband hasn’t provided her maintenance for two years.
3. If husband has been sentenced for imprisonment for seven or more years.
4. If the husband was impotent at the time of marriage and is still impotent.
5. If husband is insane from two years.
6. If husband treats his wife with cruelty.
7. If husband disposes of her property and doesn’t allow her to exercise her legal rights.
Mahr is the total money or property that husband is required to give wife at the time of marriage.
A Muslim can give only one third of the total property through will.
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