Vol.

3 Apdl,2015

.%gnzb
let justice be done...

St. Page
Contents
No. No.
1 The Rule of Law l-3
Justice P. B. Savant
2 Joistling for Recognition : Transgender 4-lg
Community Awaiting Justice
...... Dr.RohiniHonap
3 Rights of Muslim Woman vdth Special 20-40
Refetence to Matrimonial Causes - A fluman
Rights Petspective
.. . ... Dr. Harunrashid A. Ka&i
4 Impact of Social Media on Society 4t-4A
... ... Dr. Sunita Adhav
5 Effectuating The Voyage Of ffuman Rights 49-64
Education in SAARC Members Countries By
Genemting Waves Of Inclusive Alrproaches
... ... Dr. Sonia B. Nagarale
6 National Space Laws in India : Need fot 65-81
Global Convergence
... ... Dt. Shilpa N. Gaikwad
7 Raising Concerns towards Reptoductive Rights 82-96
of Women in India - Ifuman Rights Approach
... ... Dr. Payal Thaorey

Cortd...
 RIGHTS OF MUSLIM WOMAN WITH SPECIAL
REFERENCE TO MATRIMONIAL CAUSES -A HUMAN
RIGHTS PERSPECTIYE.
- Dt. FlaruntashidA- Kadri'

Absttact
Shad'a Law is applicable to Muslims in India in their petsonal
affaks;however, it has always been subiected to severe criticism for
its teatrnent to woman. It has been atgued thag the polygamy
allowed to a Muslim male, unilaterd divorce by husband, belitded
share to a woman in the ancestral property as comPare to male,
evidentiary value of a female as a witness, etc. are discriminatory
and violative of Human Rights. This paper analyses the pdnciples
of Shari'at Law telating to Matrimonial Causes in the light of
Human Rights. This paper suggests that, the criticism against
Shari'a Law is mainly due to lack of Proper understanding and
interpretationsof Holy Qot'* and Hadith. The perception of
Sharila Law based on social practices or the views of religious
heads leading to improper interpretation of Qura'nic verses is
tesponsible for such understanding about Shari'at Law' This paper
concludes that, Shari'a Law does flot violate Human Rights of
woman; ather it is developed with an objective to enhance the
status of womarr It ensures a better status to a vroman as
compared to other Petsonal Laws.

Keywords : Sharia Law, Rights of Muslim W'omen, Muslim

Persond Law, Muslim marriage, Triple-Talaq, Polygamy

l. Introduction
Violence against women is as old as the society. She has always
been subjected to exploitation, tortufe, discrimination, hardship,
disrespect, abuse and denial of equal rights.l Such violatiofis have
become mofe zggravzted because of further discriminations based on

'The ptesent paper is partly based on the oral ptesentation made at the National Seminar
on Human Rights, held at PES's Shri Ravi Nike College, Ponda, Goa, on 28-29 November
2014.
* Assistant Professor, N. B. Thakur Law College, Nasik. Author can be reached at
kadriharun20O 1 @yahoo.co.in
1 Francis O. Anaeme, "Reducing Gender Discdmination and Violence againstWomen
thtough Ubnry and Information Services", aaailabh at'
http://www.webpages.uidaho.edu/ -mbolin / ataeme.pdf ffisited on March 19, 2015).

m | @DEssNavalmalFitodialawCollege, (2015)3 %Jfu' m40

 Dt. HarunrashidA. Kadri

tece, religiofl, caste, class, ethnicity, sexual identity or age.2 These

violations are found to be deeply rooted in the society and have
become part of global culture where women are exploited, violated ot
denied equal rights with men.3 women are either buried after birth or
hlled before they born. The most basic and natural right of birth is
being deprived from thousands of years.a As a result women remain
kss in demogaphy, weaker in sociological conditions, poot in
cconomic and cultural standard. They are less in education and
employment; they own less and are worct in health. Such violations are
imtified on the basis of religion, culture, custom or tradition.s
International communiry having rcalized the seriousness of
such issues and tole of women in the development of sociery has
reken initiative by adopting various teaties and conventions like
UDH& ICCP& ICSECR, CEDAW, Dwban Declaration, etc. in order
m eradicate the violations of Human Rights of women. Furthermore,
rhese instruments have been mosdy incolporated into domestic laws
rurldwide. However, the principles of Shari'a Law6 have been severely
,inc:zed for violation of Human Rights guaranteed under the National
end Intemational instruments.T This paper analyses some important
,sp€cts of Shari'a Law relating to Matdmonial causes in the light of
Human Rights of women.

'sodd Conference against Racism, Racial Discrimination, Xenophobia and Related

ft rleran6s, 31 August to 8 September 2001,he1d at Durban (populatly
Known as Durban
Daderetion), Para2, aaailabh at http://www.un.otg/vcAR/dutban.pdf ffisited on March
!9,2O1r, See also Women's Human Rights: A Fact Sheeg Amnesty Intemational USA,
drtb at
h//www.arnnestyusa-org/sites/default/files/pdfs/womens-human-rights_fact-sheelpd
f (Tisitd on March 19,2015).

fild 19,2015). See also Women's Human Rights: A Fact Sheet, auailabh at
LTr//vww.arnnestyusa-otg/sites/default/files/pdfs/womens-human-rights-fact-sheerpd
{, (grsited on November 25,2014).
r,,1[Brief History of Infanticide, atailable athttp./
/www.infanticide.ory/history.htm (r'isited
cllzrch 19,2015); See also Women in pre-Islamic Ara:bia, awilabh at
f rry//eo-wikip edia.ory/wiki /Women_in_pre-
Ifmic-Arabia#Legal-Status-and-Tteatrnent-of-rD7omen_in_Pre-Islamic_Arabia (Visited
rlfzrch 19,2015).

lry//vww.aninestyusa.org/sites/default/files/pdfs/womens-human-rights_fact-sheelpd
$ (Srsied on November 25, 201 4) -
olrDbased on commandments of Holy and Hadith applicable to Muslims.
Q*'r.r
T"tDdullahi Ahmed An-Na'im, "Islam and
women's Rights: A case Study'' Septembet 1996,
&lc d, http://www.wluml.org/rode/269 flisited on Novembet 25,2014).
@DES's Navalmal plsdia Law College, (2015) 3 gd_fie, ZO40 I 27
Rights of Muslim Woman with Special Refetence to Matrirnog:T":

2. Consent in Marriage
The universal Declaration of Human Rights (JDHR) declates
that, marriage shall be enteted into only with "the ft9e 11d frrll consent
of ilr. intlnding spouses.s" Further, Article 76 0) @) of the
against
Convention on thl nli-ioraion of All Forms of Discrimination
ensure, on
women (CEDA\O , TgTg,provides that, States prtti.._ shall
a basis oi.qorlity of men ,rrd *o-.n, the same right
freely to choose a
spouse io enter into marriage only with their free and fir1l consenle
^rrd
TheuNConventiononconsenttoMartiage,MinimumAgefor
Marriage and Registtation of Marriages, 1964 tequites for
the marriage
to be vlfid must Le with firll and free consent of both parties expressed
in the pfesence of the authority competent to solemnize the marriage
and of witnesses.lo
Maffiage under Muslim law is a solemn covenant benveen
be
husband ,nd wlfe to lead a farntly life. Marriage agreement should
with free consent of both the parties.ll The consent in exptess terms,
of bride and groom, is taken in the Pfesence of t'wo witnesses. Any
marriage without free consent of *^ o. woman is void'12
This
poti.i^, commandment has been intoduced in Shari'a in the 6s
centufy, ensuflng women's right to choose freely her spouse'
Presence
of p^r..rt, or Ir.ir .or..rri is neither necessafy nor sufficient for
Nikah with a man by accepting the-
-riirg.. She alone can performwitnesses, provided_ she is capable of
propo."^l in the pr.r.r..tf two
;r"t"g consent.lf Sharia Law in respect of consent of the parties to the

8 See Article 16 (2) of UDHR, auailable at http://www.un.otg/en/documents/udhr/ flisited

on March 19,2015).
e IJN Convention on the Elimination of All Forms of Discrimination against Womeq 7979,
on March 25,2015)'
oro*Utraf, www.un.org/ril/omenwatch/dzw/cedzw/cedaw'htrn ffisited
10 See Article 1(1) of the United Nations Convention on Consent to Mariage, Minimum
Age

for Marriage anJ R.gistration of Mardage s, 1964, artailable a*

}rrcps: I / rezrr.t.rl.t.-gldo. /T teztes / 7964 / 72/ 796412230 2002-
-
ts"t zini*t/crr-xvl-3p.pdf (Visited on March 21,2015) (Article 1(1) of the Convention
into without the full and free conseflt of both parties'
"No marriage shall be t.gpUy."ta.d
and in the ptesence of--
sr.ch .o.s.n]t to b".*p.J.r.d by them in petson after due publicity
by law'')
the authority competent to sole'mnize the mardage and of wimesses, 11 P^rescribed
1r Sahih Moslim, liook 8, Kitab Al-Nikah, Numbet 3303,3306 & 3307. See also Holy
I, Mariage' aaailable at
Qro'r., ChaPter 4, Verse 21. See also Abdul Rahman November 26,
1ritp,//**r.islamswomen. comf mzriage/intro-to-mardage.Php (Visited on
2014).
12 S;ih Muslim, Book: 8, Kiab Al-Nikah, Numbet 3303,3306 &3307 '
13 If she is minor, conseflt may be given by guatdian'

n | @DES'sNavatmalFirodiaLawCollege, (2015) 3 %-fi'M ?JJ,40

 Dt. Harunrashid A. Kadd

maffiage firlly complies with all of the above Intetnational

Conventions.
on the other hand, there is no expfess provision tequfuing ftee
consent of a girl or boy in marriage under the Hindu Marriage Act,
1955 (trereinafter the Act), even in the 21" century. A Hindu m^ttla;ge
is complete and valid, if it complies with conditions stipulated undel
the Ag1 such as, Monogamy, Age of Majority, Soundness of Mind,
kohibited Relationship and Sapinda Relationship, provided essentizl
customary cefemony, like Saptapadi, etc. is performed.la Howevef, the
plroe meaning of the provisions of Hindu Marriage Act, 1955 indicates
&aq consent of the parties to the matnage is presumed, unless contfafy
k proved. The proof of absence of consent as to the nature of the
ceremony of as to any material fact or circumstafice makes the
m2rriage voidable (not void as in Sharia) and may be annulled by a
decree of nu11ity.15 This presumption of consent undet the law has
become so inconspicuous that, it is being considered as non-existeflt.
Therefote, in ordet to establish srongly that the bride has firll freedom
to choose het husband freely, the requirement of consent should be
hirl down in clear terms. Hence, the Hindu Marriage Acq 1955 needs
to be amended in order to insert a provision making the free and firll
consent of the pafties to the mafflage expressed in the pfeseflce of nvo
rimesses essential fot the validity of matnage, in the absence of which
&e marriage should be considered as void.
On the other hand Chdstian Marriage Act, 1.872, requires one
of, the intending parties to declare that the consent or consents
required by law has or have been obtained.l6 Consent is the most
cssential pan of the Christian mafriage. A Chdsti^fl m^rfi^ge without
msent of parties is invalid.17 Hence, the provision regarding consent
of garties in Christian mafriage is clearer as comPared to the law
ryplicable to Hindus.

rM
Sce Sections 5-7 of the Hindu Marriage Acq 1955.
16 of the petitionet, ot where the
Sce section 12 (c) of the which provides that the coflsent
ffit of the guadian in marriage of the petitionet was requited under Section 5 as it stood
rr'ilFii2tely before the cofirmencement of the Child Marriage Restraint (Amendment) Acq
!!l-& &e consent of such guatdian was obtained by force or by ftaud as to the nature of the
Gtmooy ot as to any matedal fact or ciicumstance conceming the respondent
e Ser Section 18
@) of the Christen Marriage Act,7872.
r.- Frn€st Obodo, The Importance of Consent and the Consequences of the Exclusion of

ffildirr in Marriage, aaailabh athW:/ /www.uibk.ac.at/theol/leseraum/pdf/obodo-final.pdf

@DES's Navalmal Firodia Law College' (2015) 3 %Jfuu. 20-40 | 23

Rights of Muslim Woman with Special Reference to Matrimonial Causes

3. Polygamy in Marriage
The Shari'a Law allows m^t to have fout wives, while a
^
woman is not allowed to have more than one husband at a time. Holy
Qor'* provides that, "lf ye feat that ye shall not be able to deal iustly
with the olphans, marry women of yout choice, two or thtee, ot four.
But if ye fear that ye shall not be able to deal iusdy (with them), then
only one.... That is the nearest way for you to avoid iniustice."18 The
above verse allows a mat: to marry with fout at a time while it denies
the same right to a woman. Howevet, the CEDAW Convention
provides for elimination of discrimination against women in all matters
relating to m^rfiage and family relations and requires the same right to
enter into matdage on the basis of equality of men and women.le
Further, it is also claimed that, the above ptovision of Shada Law is
violative of Article 74 of the constitution as it denies equality, and
hence it is unconstitutional.2o
The above mentioned verse of the Holy Qur'an has been
criticized for discriminating between man and woman 2s a man can,
but a woman cannot, marry with more than one during the lifetime of
a spouse.2l Ftom the plane reading of this verse it appeats that, the
Qur'anic verse denies equal rights for men and women. In order to
understand the philosophy behind the polygarny, this particulzr verse
of the Holy Qur'an should be understood in the light of pte-Qut'anic
scenario in which this vetse has been revealed. Prior to the revelation
of Holy Qor'"n, female infanticide was deeply tooted in the society and
th. grl child was buded alive. Being z father of a gid and giving het in
marriage to a male was consideted against the status and prestige of
man. Nobody wanted to be father of a gyl Woman was being
putchased, sold, used and exploited by men. She was treated like a
chattel. She was not having any share in the property of ancestors,
parents or husband. She was not having any rights as such.22 There was

ts Holy Q*'ro. Chaptet IV, Vetse 3.

le See Article 16(1) (a) of the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), 1979, aaaikbh at
www.un.otg/womenwatch / daw / cedtsl / cedawhtrn flisited on Match 19, 2015)
20 See Shukla V.N., Constitttion of India 80 (Eastem Book Company, Eleventh E&r, 2008).
21 Abdultahi Ahmed An-Na'im, "Islam and Women's Rights: A Case Study'' Septembet

7996, aaailabh athnp:/ /www.wluml.org/node/269 ffisited on November 25,2014)-

22 Christel Gschwandmer, "The Status and Position of Women in Islam", aaailabh at

http:/ /ndtcalruth.net/uploads/pubs/TheSatusAndPositionOflTomenlnlslam.pdf ffisited

on Novembet 25,2074). See also Women in pte-Islamic Arabia, aaailable at

%| @DES'sNavdmdFirodiaLawCollege, (2015) 3%-fM 2040

 Dt. HarunrashidA. Kadri

no limit on number of wives one can have.23 This particular era is

d:d as er^ of Jahahya (ignorance). In this particiar era prophet
Mohammed e.B.u.H.) was born and Hory
eur'an was revealed on
him. The above mentioned verse imposed the limit on the maximum
number of wives one cafl have zt ti-. i.e. maximum four, that to in
exffaordinary cfucumstances, and it"strongry emphasizes on having only
orre, as against unlimited during pre-eur'ani. ir^. The above
,r.i.. of
the Holy Qur'an is revealed to ensure justice to olphans. It provides
that, if you fear that, you are not able do
iustice with oryhr.r.,'yoo
allowed to marry with women more than one, who are ,rrtth.r, of ^r.
such
oqphans. rt indicates that, the primrry objective of polygamous
m-arflage is to do justice with oryhans by
-r..yi"g with their mothers
who ate widows,24 and it is permitted on the condilon subsequent that,
the husband should tteat allwives with equaliry and justice. Thi. lr..r.
does not encoruage polygamy in true ,.r.i, ,^th.. it rimit. porygamy
to
only four, and it stresses on only one if the husband is not able to do
justice between them. The words "deal justly', appears twice
in this
verse and the words "avoid injustice" appears or.. the end. It
"t
indicates that, two major objectives the verie aims to achieve, Firstly,
justice with the olphans; and Secondly, justice with the *irr.r.
Th9ryfore, the primary condition for porygamy is to do justice, which
itself is the prime objective of all the Intemational conventions.2s

http://en.wikipedia.ory/wiki/women-in-pte-Islamic-Arabia#Marriage_by_Agteement
Sisited on Match 21,2015). See also Muslim women's rrague, vo-J., i, pte-Islamic
!?\i?r lldikue at http /./www.mwlusa.orgltopics/histoty/"herstory.htrnl (visited on Match
See also FaryalAbbas Abdullah sulaimani, "rh. cr,r"gi"g position
?6,??15). of women in
Arabia under Islam during the Eady Seventh centuqy',, prr. o. ril.rl (19g6),
university of
l{Il.d, auailabh athttp:/ /usu.salford.ac.uk /14814/1/361089.pdf flisited on March 2i,
201s).
a christel Gschwandtner, "The status and position of women In Islam,,, aaailabh at
http:/ /tzdtczhruth.net/uploads/pubs/TheStatusAndPositionOfWomenlnlslam.pdf
(Visited
on Novembet 25,2014)
2a
This is the primary obiective and thete arc many othet objectives fot which polygamous
marriages ate allowed, discussed in deail in the subsequentparzgruphs.
The polygalous
marfiage with unmarried gkls, childless divotcees and widows is-also allowed, rn
ird.t to
meet the situation where thete are more women than men ot there are
widows,/divorcees in
the society- It is also to ptevent men from extramarital relations. In the recent era,
the
matters of extra-marital tffaks arc on rise, See for detailsblog aaailable at
http,//w*.r.at aindia.com/mumbai/teport-40-mumbai-coofl.s-se.king-extta-marital-
aff*s-1919850 ffisited on March 25,2015).
5 see Pteamble & Article 23 of the convention
on the Elimination of All Forms of
Discrimination against Women (CEDAne ,7979, alaikble at
www.un.org/womenwatch/daw f cedaw / cedaw.htrn
flisited on March 19, 2015).

@DES's Navalmal Firodia Law College, (2015) 3 %juu- Zo/l} I 25

 Rights of Muslim woman with special Refetence to Matdmonial causes

Further, it does not make it obligatory for Muslim men to marry with
four; rather it is purety discretionary, provided justice is ensured with
all. So also, women cannot be forced to maffy r.,afi who is alteady
married, it is the choice of women whether to maffy^ having a
^mafl
wife or m^rry with a man who is single. If a woman wanted to mzur:ry
man, she can do it without that man divorces his first wife. This is also^
in the benefit of first wife as there are many examples where the first
wife has been divorced for marrying with second.26 Therefore, the
above verse is in conformity with the objectives laid down by the
Intemational Conventions.
Now let us discuss why the maximum numbet of wives one can
have is four and why not restricted to only one? Further, why a
Muslim woman is not allowed to marry with more than one m^n at
time? ^

Islam permits polygarny in extra-ordirr.y conditions such as,

where number of women outweighs men (due to various teasons such
as war, accident, epidemic, the degree of immunity against decease,
etc.), where there are widows (along with their orphan children); and
where there are divorcees (which ate single) in the society. Under such
situations, some women may be left without husband. The present
legal system has not addressed this problem. Shari'at seeks to mznage
this disequilibrium in sex ratio, the problem of widows and divorcees
by allowing Polygamy. sToman need a man to finfl the natural
demands of her body i.e. sexual desire, which, although, she may also
get firlfilled iflegitimately, the psychical demands such as building a
home and having a fantly of her own, remains unsatisfied. So also she
needs a companion in whom she has faith & confidence and who is
very special and close to her with whom she can share, express and
live, and stands as backbofle her old age, partic"lr.ly when she
becomes sexually inactive. This^t demands that she should have a man
attached to her permanendy, beyond sexual activity. Under these

26
Examples of di-rorcing fitst wife in order to rnaffy second are numerous. For example, Raj
Kundra divotced Kavia Kundta to marry with Shilpa Shetty, aruilable at
http:/ /datly.bhaskat.com/news/ENT-taj-kundra-cheated-pregnant-wife-kavia-kundra-with-
shilpa-shetty-4497628-PHo.htrnl flisited on Match 27,2015). Cricketer Mohd. Azharuddin
divotced his fust wife Nuteen to matry with Bollywood acffess Szngita Biilani, aaailabh at
http://wwwmasala.com/scandal-flashback-sangeeta-biijlani -and-iharuddins-shocking-
matiage-169914.htrn1 ffisited on March 21,2015). Boni Kapoor divorced his fust wifi
Mona to marry with Sriderri.

26 | @DES's Navalmal Firodia Law College, (2015) 3 %J$,e, 2040

 Dr. Harunrashid A Kadd

cfocrrmstances, she has an option to maffy L tnafl who is ilteady

mqrried and share him with another woman. It is matter of fact that,
rhe life of woman with a rival is miserable, but the life of woman
uiftout a peflnanent man is hell. If we compare the Iife of a woman
rrifrout man or with m^tt in temporary dadonship (for sexual
^ ^
pleaswe), with the ]ife of woman with martin permanent relationship
(though he is ilready married), the ^ latter
always stands bettei.
laerefore, Polygamy has a social objective in the remariage of
&orcees, widows and unmarried.2T Islam permits a m^fl to
fu -roy *ith
and confers alt the wives the status not less than the first wife in
rrlr respect and it also ensures legitimacy of children born out of such
r,rriages. The wives of polygamous mariage and children born out of
r-.f mariage zre entided to maintenance, inheritance, paterniry
IEF-".y, social acceptance, etc. The second wife is denied *re agnt or
inherirance in other personal laws whereas such children are dinied
*ate in Hindu Joint Family Property. Islam promotes mariage2s and
frrbids exta-marital relations.2e Sharia Law confers a much better
[hEs to woman who is a wife of akeady married man, as compare to
e other personal laws. Polygamous marriage is one of the *.*. to
ilsourage illegitimate and exffa-maital relationship and to eradicate
mncubinage. Furthermore, monogamy m^y encourage divorce,3o

tQurb Mohammad (tans: Sajiad Ahmed Kandil'ilii), Islam and tbe Moden MateialisticTborybt
*{2 (New Crescent Publishing Company, Delhi, 1 999).
rrLe Holy Prophet Muhammad (peace and blessings be upon him) said: 'o young people!
oevet amoflg you can suPPort a wife should mar4r, for that is more modeit foith. gVr.
d s.ftr for your pdvate parts.' (Quote ftom Hadith No. 3231, The Book of Marriage
[ rhAl-Nikah), Sahih Muslim, aaailable at
hp//ww.searchtruth.com/book-display.php?book=8&translatot=2&start=0&numbet=

fus my sunna is not of me. (Quote ftom Hadith No. 3236, The Book of Marriage (I(ab
^frInme$, Sahih Muslim, aaaikble at
fryr//vww.searchtrutl.com/book-display.php?book=8&ftanslatot=2&start=0&number=
f (fisiEd on April 7,2075)-
tThewoman and the man guilty of adultery ot fomication, flog each of them with a
Lnd"ed stdpes: Let not compassion move you in theit case, in fm^n , prescdbed by Allah,
fyc l*lisvs in Allah and the Last Day: and let patty of the Believers witness theit
^
Fishment", The Holy Q*'- Chaptet 24yerce 2 (trans: yusuf Ati), auailabh at
lry//wwv.seatchtruth.com/chapter-display.php?chapter=24&translatot=2
ffisited on
"t?d 1,201s).
nFr-tnFles of divotcing fitst wife in otdet to marry
second are numerous. Fot example, Raj
fndra divorced Kavia Kundra to marry with Shilpa Shetry, auilable at
,*,/ /d^lly'bhaskat.com,/news/ENT-raj-kundta-cheated-pregnant-wife-kavita-kundra-with-
Qa-shetty-4497628-PHo.htrnl ffisited on March 21,2015).; Cdcketet Mohd Azharuddin
&orced his fust wife Nureen to marry with Bollywood actress Sangita Biilarri,

@DES'sNavalmalFirodialawCollege, (2015) 3 %Jfuru Zo/}O I n

Rights of Muslim woman with specid Rdetence to Mattimonial Causes

desertion,3l bride butning or mufdef32 as the husband is not allowed to

rnmry with anoth., *o-rn without the divorce or death of the first-
The process of divotce being time consuming complicated and cosdy
affai,zz with additional burdin on husband to maintain het for whole
life or till her next marriage,v there is chance that the husband may
choose to kill her for marrying with anothet woman'35
Polygamy as such cannot be condemned particularly when w9
afe allowing extamarital relationship or live-in-relationship which
permits sexual telation with any numbet of womerl without marrying
with them. The so called 'modetn cultute' permits exploitation of
women fot sexual pleasute and dispose them off whenever desire is
firlfilled, without ondetgoing divorce. Her status in such relationship is
like a concubine, wherJthe *o-rtt is denied legal rights, tefused social
starus and legitim acy and patemity of the children born out of such
relation is ch-allenged. It may also result in killing of such children in
the mother's wornb through abortion, in order to avoid social outcry
and future complications that may adse.36
hand, if a woman is allowed to mafry with mote
on the other
than one husband at a time, she would undetgo a hardship whjle
managing sexual relations simultaneously with all husbands. It would

http://www.masala.com/scandal-flashback-sangeeta-biiilani-and-azharuddins-shocking-
madzge-769914.htrn1 flisited on Match 21,2075).;Boni Kapoor divorced his
fust wife
Mona to marry vrith Sridevi.
31 Bollywood actor Dharmandra married to actess Hema Malini by deseting his fLst wife

without divorce.
:2 See Why do men kill their wives?, The Boston Globe Sunday Magazine, July 22,2007 ,
on March 21,
aaailable aihttp:/ /keiitob.com/stories/why-do-men-kill-theit-wives/ ffisited
20ts).
33 Divorce is allowed on the ptoof of grounds available under the law, only through the
courts, subiect to multiple appeals provided undet the tespective laws.
1 See Section 125 of Code of Criminal Procedute 1973'
rs see vhy do men kill theit wives?, The Boston Globe Sunday Magazine,July 22,2007,
amilabh aihttp:/ /keithob.com/stories/why-do-men-ki11-theit-wives/ (isited on
March 21,
2o1s).
36The US Abortion Satistics shows thag about 1.06 million abortions took place
in the U.S.
1fl2077,out of which about 85.570 of all abotions are by the unmarded womefl' See U'S'
Abortion Statistics, Facts and figures relating to the ftequency of abortion in the united
Sates, aaailable atLttp:/ /www.iaor7Z.r"^/abortion-facts/us-abortion-satistics/ flisited
on March 21,2015). Se. dso btog http://www.dw.de/illegitimate-newboms-murdeted-and-
discarded/a-1 7 582853 (Visited on Match 29, 2015)' See blog at
http://wwwfreetepoblic.com/focus/news/ 2891012 / poss (r'isited on March 29, 2015).

28 I @DES's Navalmal Firodia Law College, (ilfi) 3 %Jf'ffi' 2040

 Dt. flarunrashid A. Kadri

also cteate confusion about paternity and questions of maintenance,

inheritance and social acceptance of children.
Regarding the issue of unconstitutionality of Sharia Law, the
honorable Supreme Court has already held that, the Petsonal Law is
oot a "L^w" within the meaning of Article 73 o{ the Constitution and
hence it cannot be declated as violative of Fundamental Rights.:z
Therefore, it is not coffect to say that the Sharia Law is discriminatory
or violative of Human Rights. On the cofitrzrry, it offers a better
solution to the problems of society, by ensuring the women theit
rights, protection, respect and dignity.
The present law applicable in India allows a. man to enjoy all
benefits including sexual pleasure without mariage and ftee from other
responsibilities. However, it prohibits him from doing the same thing
hr marrying with another woman, during the existence of fitst wife.
This means that, he is allowed to do everything with any number of
u-omen except undergoing marriage ceremony, like Saptapadi under
Hindu Law. As a result, he is punished only for undergoing the
marriage cefemony such as 'Saptapadi' and not for enjoying mzital
benefits with women other than wife. In short, law allows a rn fl to
enioy many womefl at a time without marrying with them and hence
qirhout any butden of mainteriance or succession rights fot woman
rnd children. Further, in this relationship, the first wife has no temedy
6cept filing a suit for divotce, which, if granted after spending a long
rirne and rnofley, would itself be punishment for her and teward to the
husband in the form of freedom from first wife.
Undet the customary Hindu Law prior to 1955, the concept of
Pohgamy was very common and was deeply tooted in the Society.38
The examples of polygamous marriage ate well known in Hinduism.3e
Shri Krishna is said to have maried with some 16000 wives,ao King

7 Krbbna S ingh v. M athtra Abrr, (AIR 1 980 SC 7 07 ; Mabarsbi Audhesb v. U nion of I ndia, 199 4
Stpp 0) SCC713; Ahnedabad Women Axion Grorp b Ors. v. Union of India,1997 3 SCC 573.
x See Dharmashastra, Anusasana Parva, Section XLIV. See also
:op / / en.wikipedia. o g/wiki /Polygamy-in-India
:

-* See Polygamy fot Hindus, available at

:mp://hinduism.aboulcom /od/mztrimorualT/z/polygamy.htrn ffisited on March 23,
3rrl). See also Polygamous Matdages in India, aaailable at
papers / 700754 ffisited on Match 23, 20t5).
=q: / / paa2}l0.Princeton.edu /
ar htp://en.wikipedia.otg/wiki/Krishna#Family ffisited on March 23, 2015)'

@DES's Navalmat Firodia Law College, (2015) 3 %$,w. 2040 I 29

 Rights of Muslim woman with special Reference to Matrimonial causes

Dashtatha thtee wives,al Yajnyawalkya married to two, etc.42 Further,

the book of Baudh^yafl^ Dharmashastra lays down the rules
regatding me
regafomg the number of w1ves, "'lhere
ot wives, (vzma, viz)
"There are four castes (vzrrra,
Brihmanas, Kshatriyas, vaisyas, and sridras. Males belonging to them
may take wives according to the order of the castes, iz. a Bri.hmana
four, a Kshatriya three, a Vaisya nvo and a Sridra ofle."43 According to
census of 1967, polygamy was highest among the Adivass (15.25%o)
followed by Buddhists Q.9,A, Hindus (5.8ol0 and was lowest in
Muslims (5.7'A. It was in 1955 that the Polygamy was strictly
prohibited under the Hindu Marriage Act applicable for Hindus.
Following this Act, the rate of polygamous mariage among all the
societies has been substantially come down by 2006.4
The perspective of Bible on Polygamy is not very clear. There
are conflicting verses regarding polygamy in the Bible.as Jesus Christ
remained unmaried whereas King Saloman maried to 1000 women46,
Abraham married to three,47 David married to 18 women48 and Jacob
maried to four.ae There is no express provision in Bible that prohibits
polygamous mariage.50 Therefore, Chtistians vrere permitted to have
as many wives as they wished; however, it was only a few centuries ago
that the Church has imposed the restrictions on the number of wives
to only one.51

a1 hnp; / / e*wrkipedia.org/wiki/Dasharatha ffisited on Match 23, 2015).

a2 See Hinduism and PolygamR aaaildble at
http,//**..t induwebsite.com/hinduism/h-polygamy.asp (y'isited on March 23,2015).
a3 See Hinduism
and Polygamy aaailabh at
http,//*-"r.t induwebsite.com/hinduism/h_polygamy.asp (visited on March 23,2015).
4 See Muslim ril/omen and the surprising facts about polygamy in India, available
at:
http://scroll.n/arnde/669083/Muslim-women-and-the-surprising-facts-about-polygamy-
in-India (Tisited on March23, 207 5).
as Richard M.
Davidson, "Polygamy in Old Testamenf,, aaailable at
http://www.andrews.edu/-davidson,/Publications/polygamy /polygzmlfl/o20in%20OT.pdf
ffisited on November 25, 2074). See also James p. Breckenridge, old Testa:ment Teaching
On Polygamy,T Torch Tnnig Joanal l0-30 (2004), aaailabh at
http://www.ttgst.ac.kt/upload/ttgst-resourcesT3/20123-17g.pdf (visited on March 23,
201s)
a! http://www.biblicalpolygamy.com/polygamists/solomon/ ffisited on March 29,201s).
aT http:/ /www.biblicalpolygamy.com/polygamists/abraham/ (visited on March 29,2015i.
a8 http://www.biblicalpolygamy.com/polygan:rists/david/
(isited on March 29,2015).
ae http://www.biblicalpolygamy.com/polygamis*/iacob/
S/isited on March 29,2015i.
s0 http://en.wikipedia.org/wiki/Legal-satus-of-polygamy#North_Amedca
ffisited on
Match23,2015).
sl See Polygamous Mardages in India, aaailabh at
http: / / paa201 0.pdnceton. edu/papers / 1 00754 ffisited on March 23, 201 5).

30 I @DES'sNavalmalFirodiaLawCollege, (2fi5\3 %$M- 2040

 Dt. HarumashidA. Kadri

+ Dower in Marriage
The Holy Qot'^ says. "And give to the women (whom you
mary) their Maht (dower) with a good heart, but if they, of their own
good will, remit paft. of it to you, take it, and enioy it without fear
^fiy
of -y hatm (as Allah has made it 1awfir1)."52 According to this verse,
M€hr is essential part of Muslim matriage and wife is entided to receive
dwer ftom het husband at the time of marriage or thereaftef as pef
fre agreement. However, the dower may be fofeited by her aftet the
mpletion of a. manizge as it is het right to forfeit. The above verse of
I{oly Qur'an is also subjected to criticism ctaiming that the provision of
Dflchf under the above vefse is violative of women's Human Rights for
&e following reasofls. Firsdy, Meht is a consideration for sale of
tr/Ele/*\ it is bride pdce, and woman is considercd a chattel or
property. Secondly, Mehr/dower is a price for sexual services provided
tf h* to her husband.s3
Qura'n tefers the Mehr as 'sadaqah',s4 meaning the gift that is
Siseo in good faith and as a good deed, out of genetosity.ss
At the
o6er place another word used is 'aif ,se which means revzard. It is a
rssard or gift glven to the womafl who is joining new home by leaving
hcr family. Mehr is an amount/ornament/property to be paid or
pomised to pay by groom to the bride at the time of marnage/ntkzh
-hid is essential for validity of marriage. It is right of the bdde and
6t of her father, to receive the Mehr. Hence, such Mehr caffiot be
rymded as consideration in exchange for bride. It is illogical and
irensible to consider it as considetation, which is paid to the gid
&ctty and not to her father. Secondly, mariage in Islam is permanent
ad for the whole life. Aftet m^fflage,bdde and groom, both love each
ofieq serve each othet. And therefore, it is wrong to zssume that only
rtxftur ptovides sexual services to her husband for which she has been
paLl the Mehr as a considetation; rather it is mutual exchange of
sri..t, love, affection and comfort to each other. Objective of

EIIdy Qut'an, Chaptet IV, Vetse 4.

sfultzna Kamal, "Mehr: An Advantage ot Dependency Reinforced?", auailable ah'
Irry//www.wluml.org/ r'ode / 305 ffisited on March 23, 2015) -
*Holy Qur'an, ChaPtet fV, Vetse 4.
sl$lofar Ahmed, "The imporance of 1VIeht",
aaailabh at
lry//www.dawn.com/nqvsf7266t7/the-impottance-of-mehr (Visited on November 25,
D,0-
r Holy Qut'an, Chaptet )OO(III, Verse 50.

@DES'sNavalmalFitodialawCollege, (2015) 3 %f@. 2tr40 I 31

 Rights of Muslim Woman with Special Refetence to Matrimonial Causes

m f:riageis not mefely sexual pleasure, but it is to cfeate a deep, stfong,

healthy and pemanent relationship. It creates vadous rights in favour
of wife including right of maintenance, inheritance, fespect, status, etc.
If it would have been only for sexual pleasure, it would have come to
an end immediately aPter the parties become incompetent for sexual
activity. Muslim marriage is permanent in nature and it exists till the
divorce or death of the spouse. Hence, Mehr canflot be consideted as
pdce for sexual services. In fact Meht/Dower is paid by husband to his
new guest as a gift of honot, an expression of love and responsibility,
which in effect cfeates confidence in her mind & taises her love
towards husband. It is a welcome kit given by gtoom to newly wedded
bride, which she can use exclusively without interference by anybody
. including husband. Such a gft by husband can nevef be equated with
considetation and hence not violative of het Human Rights. Such
provision of Mehr is absent in other personal laws. On the contrary, a
iong existing practice of Dowry to be paid by the gful's side to the
groom is based on the culture and religious scripts of Hinduism.sT This
practice, although originated amongst the Hindus, it gtadually leached
in othet communities including Muslims, Chdstians, etc. Though, it is
ptohibited by law, it still exists in India and found tn form
^ggr^v^ted
in the educated families.ss
5. Divorce - The TriPle Talaq
There ate thtee types of Talaq, Talaq-a7-ahsaan, Talaq-al-hasan
and Talaq-a1-biddah, based mostly on intelPretations of the Holy
Qoran and Hadith, except the last one. Talaq-al-ahsaan is most
approved, and Talaq-al-hasan is approved, by the Holy Quran and the
Hadith, whereas Talaq-al-biddah is the ptoduct of interpretations not
based on Holy Qor* and hence disapproved.ss Talaq-al-biddah ot
Triple Talaq is pronouncement of three Talaqs in a single sitting and it
is irrevocable. Such Talaq is also called as "Taltq-al-Mughallaz" i.e.

sz Amarpal Dhillon, "The Origins of the Hindu Dowry Tradition", Match 2008, auailabh ah.
http://www.mahtvjdya.cz/wp-content/uplo ads/2008/06/ dhillon-amarpal-dourry.pdf
ffisited on March 29,2015). See also Dowry A Social Evtl., aaailabh at
http://shodhganga.inflibnet.ac.in:8080/ispui/bitstream/10603/21634/73 /13-chapte{/o207.
pdf ffisited on March 23,2015).
s8hnp: / / en.reserorg/knowledge/dowry-system flisited on March 25, 2015).
seDt. Shahzad Iqbal Sham, "Some Aspects of Marriage afld Divotce in Muslim Family
La:t/' , aaailable at inttp,/ /pu.edu.pk/image s/ioumil/ szic/currentissue-pdf/E-
1oh20Shehza,h20sharrfh20$slamicoh20Lavf/o20o9/o20Mttiage'h20atdoh20Divorce).pdf
flisited on Match 25,2075).

32 I @DES's Navalmal Firodia Law College, (2015) 3 %Jfr,M. n40

 Dt. HarunrashidA Kadri

irrevocable talaq. This parricular kind of Talaq under the Shari'at Law
has been severely criticized for allowing the husband to divorce his
wife unilaterally and irrevocably, without any reason and without scope
for reconsideration or reconciliation, by just pronouncing the words -..r
divorce you" thrice in one single sitting.oo It is also believed that once
such pronorurcement is complete, their mariage comes to an end
irtevocably and re-union between them is not possible unless she
marries with a flew man and he divorces her after the marriage is
consuinmated.6l
Let us discuss the commandments of Holy eor,r, regarding
resolution of conflict between husband and wife. The Holy e*'"r,
provides that, "rf the fear Shiqaq @reach) between the Twain, appoint
(two) arbiters, one from his family and other from hers, if they wish for
peace, Allah will cause their reconciliation."62 This verse requires the
parties to appoint arbiters in order to resolve the dispute and if it is not
possible to resolve, then proceed to divorce. The HoIy eur'an refemed
Td"q, as "the most detestable of permitted things!"63 The tradition
saylng of prophet Mohammed @BUrf says, "\x/hat Al1ah hates most
among what is allowed is a divorce."64 These verses indicate that,
though roJaq is permitted, it should be exercised only when there is
a complete breakdown of mariage and as a last resort, since it is the
most disliked thing for the a$rgt.y Allah, amongst the permitted acts.
Holy Qur'an lays down that,
"O Prophet! !flhen ye do divorce women, divorce them
at their prescribed pedods, and count (accutately), their
prescdbed pedods: and fear Allah yout Lord: and turn
them not out of their houses, nor shall they (themselves)
leave, except in case they are g"rtty of some opeo
lewdness. Those are limits set by Allah: and any who

oSee Islamic Law

- And rtiple Talaq - over the Yeats - Need for r-hrnge!, mil& d.
@,s:/ /bh"txchugh.wordpress.com/201 2/11/04/islannc-hw-and-triple-t t"q-over$c-
rcers-need-forchangef . See also http://www.hindustantimes.com/india-nevs/rrlple-urrr
h-one-go-worst-form-of-divorce-scholats/articlel-1266854.aspx (visited on Merrh 25,
201s).
s http://en.wikipedia.otg/wiki/Nikah_Halala
$/isited on Match 25, 2015).
GHoly Q*'r.r, Chapter IV, Verse 35.
6 Holy
Qur'an, Chapter II, Vetse 226-240.
tr christel Gschwandtnet, "The Satus and Position of women In
Isirm", aaailablc at
h*tF:/ /ndtcaltruth.net/uploads/pubs/TheStatusAndPositionOf!7om6nlfl5lam.pdf (Visited
rn November 25,2014).

@DES's Navalmal Firodia Law College, (2015) 3 %ge, ZW I 33

Rights of Muslim Woman with Special Reference to Matrimonial Causes

transgresses the limits of Allah, does verily wrong his

("*"1 soul thou knowest not if perchance Allah will
bflng about thereafter some neur situation.6s Those who
intend to divorce their wives shall wait four months
(cooling off); if they change their minds and reconcile,
then God is Fotgiver, Merciful. If they go thtough with
the divorce, then god is Hearer, Knowef'"66 'rMhen you
divorce women, and they reach their prescribed term,
then retain them in kindness and fetzin them not fot
i.i"tysothatyoutransgress[thelimitsl"'0zltotdains
that, "Once the interim is firlfitledi lou may reconcile
with them equitably, of go through with the sepatation
equitably. You shall have two equitable witnesses witness
the di.rorce befote god. This is to enlighten those who
believe in God and the Last D^y' Anyone who
68
reverences God, He will cteate an exit for him' "
In the light of the above vefses and Hadith , it may be stated that
Tataqmay be gr.r." only when all four ptior steps have been taken to
,..o.r.il.je but failed to settle the dispute. Once such teconciliation is
failed, Til^q has to be ptonounced during the period of purity i.e.
ruhf.7o Furthet, both should continue to stay togethet for the period of
Iddat. The period of iddat gives them furthet oppornrnity to reunite' If
they are abie to reconcile, they can revoke the Talaq by simply reioining
agananytime during the pedod of iddat. But, once iddatpenod is over,
,h. op,ion of rejoining ends, now the only option remains for
,..ro.iaion of Talaq is remarriage. Howevet, such tevocation of Talaq

os Holy Q*'r., ChaPtff 65, Verse 1.

66 Holy Qot'-, Chapter II, Vetse 226-240'
oz Holy Ci*,r", Chapter II, Verse 237. See also Holy Q*'r., Chaptet II, Verse 228-232-
rs ChaPter 65, Vetse 2.
Holy Q*'*,
rs ThoHily euran itovrdes for fout step reconciliauon attempt befote going for divorce. _

Firsg When tiere is dispute, parties to sort it oot amolrg themselves fa'ilu,hanna); Second,
if
petsist, tfr.", f.-p"o.y physical separaflon (uabjttm bmna);Thitd, the husband
differences
has to explain once aga.in to his wife the setiousness of the situation and try to
bdng about 2
reconciliation (aaqnbi hanna);and Fourth, place the matter before rwo arbiters, one from the
family of each .porrr. (fubittation). See fot details A. Faizut Rahman, The continuing
ty.r.r.ry of the triple talaq, The Hindu, Aptil.a' 2014, aaailable at
frttp,/i***.th.hindo..o-/opinion/op-ed/the-continuing-tganny-of-the-triple-
tabq/ a:njcle327 7 9 08.ece ff isited on March 25, 201 5)'
70 is the purity after menstruation. It is the period of deanliness i.e' the pedod between
T;hr
the two menses without having sexual intetcourse'

U| @DES'sNavalmalFirodiaLawCollege, @15)3 %Jfu' m4O

 Dt. Harunrashid A Kadri

by rejoining ot remaffiage is possible only for two times (occasions) in

[i.. 6n.., tht.. such Talaqs (on different occasions in whole life) ate
complete followed by respective pefiods of iddat, revocation of Talaq
by iefoining or remarriage is not allowed, unless she marries with
another man and he dies of divofces her on his own ftee will aftet the
marriage is consummated. These ate the limits set by Allah and any
p..ron who transgfesses these limits commits sin.71 Therefote, the
;Tripl. Tala{' i.e. "Talaq-A1-Biddat"72 which allows three
pronouncements of Tataqin a single sitting, has no basis in the HoIy
q*'rrr and the Hadith'73 such an innovation in the lsliglon has been
stongly forbidden. The Ptophet Mohammed (P.B.U.H.) has said
"every innovation is misguidance and all misguidance is in- the
Hellflre."Ta He further watned, "\Whoever innovates of zccofllmodates
an innovator then upon him is the cutse of Allah, His Angels and the
whole of mankind."75 Despite such clear and cogent guidelines
rqafding the divorce, the Moulavis and Muftis have interpteted the
oor.. oi q*rn to the effect that, three Pfonouncements of Talaq in
one breath makes the Tataq irtevocable.T6 Because of such
n Holy Q*'^r, ChaPter 65, Verse 1.
u Biddat or Biddai meafls innovation or new invention in the matters of teligion' See for
details Abu.Iyaad, A Concise Explanation of the Shadah Definition of Bidah and Its
Proofs
ftom the Ptophetic Sunnah, blog awikble at: httP://www.bidah.com/articles/rwmef-
erylanation-of-ttre-shadah-definition-of-bidah-and-its-proofs.cfm flisited on Match 29'
Z)15). See also
ttp,i /***.sahihmuslim.com/sps/sp.cfm?seclD=BDH&loadpage=displaysecuon.cfm
$rsited on March 25,2015).
- Sh.-, Pkzada.(Itans: Sutan Akhtar), "Triple Talaq - In The Light of Quran and Sunnah"
5 auilabh at htrql / /www.muslim-
dlllooks /EngIish_TRIPLE-TALAQ-IN-THE-LI GHT-OF-QURAN-AND
htbrary. com /
on Match 25,2015).
-SUNNAH.pdf flisited
; R.po.t"d by an-Nasra'e e (l from Jaabir bin Abdullaah and it is saheeh as declared by
/22\
Sh.rtih ul-Islaam Ibn Tayrniyrah in Mafmoo' wl-Fataastza (3/58), aaailabh at
hup://wwrv.sahihmuslim.com/sps/sp.cfm?seclD=BDH&loadpage=displaysection.cfm
on March 26,2075).
;0rrsited
Report d by Bukhaatee (12/ 41) and Muslim / 140), aaailable a*'
(9

n prT/*rr*.trtitl-"slim.com/sps/sp.cfm?seclD=BDH&loadPage=displaysection'cfm
(Vrsited on March 25,2015).
* tr,tofti Muhammad Yusuf Danka, The Giving of Three Talaaqs in One Sitting According
to Shari'ah, ctoydon Masiid & Islamic centfe Q5/04/2008), aaailable at
hup://www.croydoomosqoe.com/pdf/The-Giving-of-Three-Talaaqs-in-One-Sitting-Ac
cording-to-shariah'pdf ffisited on March 29, 5)' See also
201
hup: / Iwwwabigm.i sag...om / newdeoband-fatwa-no -i oke-say-ta1aq-thdce-and-you-
divtrce-yout-wife.htrnl flisited on Match 29,2015)' See also
hap://wwwanindianmuslim.c om/2070/77/darul-uloomdeoband-tums-into-fatqza.htrnl
rvi.i..a on March 29,2ol5). See also http://defenceforumindia.com/fotum/politics-

@DES'sNavalmalFitodialawCollege, (2015) 3 %Jffi' ?fr40 I 35

Rights of Muslim Woman with Specid Reference to Matrimonial Causes

interpretations and also m^y be due to the lack of proper

understanding of the Qura'nic injunctions, the practice of Triple-Talaq
is widespread among Sunni Muslims and it has been recognized as
legally valid by some religious scholars.TT Because of ignorance, the
innocent people fall prey to such intelpretations and adopt the itlegal
form of Talzq.In order to eradicate such un-Islamic form of Talaq, a
wide awareness about the commandments of the Holy Quan and
Hadith is required. The Talaq-al-Biddat is an innovation which is
forbidden in Sharia, and hence the new form of Talaq i.e. Talaq-Al-
Biddat is not enforceable and bad in lavr. The Honorable Supreme
court has dghdy declared such Talaq as immoral and not enforceable
as it does not give the husband a chance to reconsider or reconcile the
dispute which is required by the Holy Qur'an.7a
Before the revelation of Holy Qur'an, under the customarylzw,
the practice of divorcing the wife at limidess times and reverting back
to her as per his wish was prevalent. The successive divorces and
reverting back was so intense and rampant, that caused hardship and a
sense of uncertainty for the woman for whole hfe.7e In order to avoid
such harassment, the Holy Qor'"., puts a limit on the maximum
number of times one can divorce his wife and revoke it agatn so as to
restore the marital relationship. He can divorce for two times
(occasions) in life and may revoke ig however, if he divorces third time
it is irtevocable and they cannot come together aga:nunless she marries
a new man, maniage is consurnmated and he divorces her of his own
will or dies.
It is further
argued that, the Shada Law is discriminatory as it
grants a unilateral power of divorce in favour of husband.s0 Before we

soaety/33872-drunk-hubby-says-alaq-thrice-deoband-saysdivotce-valid.htrnl
flisited on
March29,2015).
77 Nehaluddin Ahmad,'A cdtical Appmisal of "Triple Divotce'in Islamic Lzs/',23(7) rntJ
r-aw Polry Fanil153-61 (2009) (fot detailed analysis Qw'anic vetses and Hadith on Talaq).
78 Khatoon Nitav.
State Of U.P. And On,2003 (1) Awc 128 sc,JT 2002
o) sc 631, 2002 (6)
scALE 765; Mut Rttkia Khatun v. Abful Ktalique l-.asktr, (1981) 1 GLR 375; si Jiatddin
Abnedv. Mrs. Anvara Begm, (1981) 1 GLR 35l;RabnatUllalt And Kltatoon Nisav. State Of
U.P. And Ors., n (1994) DMC 64
7eShams Pkzadz (Irans: Sulan Al<htat), "Ttiple Talaq - In The Light of
eumn and
Srrnnah", ztp.5, auaikbh at }rlryt/ /www.muslim-
library. com /dllbo oks /EngIish-TRIPLE-TALAQ-IN-THE-LIGHT-OF_eLrRAN_AND
_SUNNAH.pdf (Visited on March 25,2015).
80 See Islamic Law And
- Triple Talaq - over The Yeats - Need For change! aaaikble at
https:/ /bhatatchugh.wordptess.com/2012/11/M/islzmlc-lew-and-tdple-talaq-ovet-the-

36 I @DES'sNavalmalftusdie LawCollege, (X15)3 %-f@, 2040

 Dt. HarunrashidA. Kadd

bqin to discuss this issue, we should understand the philosophy of

Mariage and ralaq. Man and woman cannot live life independently,
frey are interdependent by riature. Both of them need a companion to
L"d a peacefirl and complete life. Therefore they are .rot .r.i..ted to
livl wrthout a spouse. A man and awoman can enter into a n,ptial tie,
dich creates reciprocal dghts and duties. The wife is not
"16mately
ellowed to m^ffy with another man in the lifetime of husband, whereas
husband is allowed to maffy with another woman to the maximum of
6ut at a time.81 If wife wants to maffy with another man, she can do
so only after getting divorce from the first husband. Therefore, for
*oman divorce is in fact an end of her maitaltie with the husband and
Hom to marry with another man of her choice. consequently,
divorce to wife has been understood to mean primarily, a freedom to
merry with another man, which she cannot do so during their marital
tie. Therefore, by gving divorce, husband confers a freeJom on her to
marry with another man. on the other hand, as the husband may
merry with another woman during the existence of first wife, he need-
rDt to annul his mariage with first wife or get freedom from her as he
k dready allowed to maffy with four. It means he can marry even
vifiout divorce from previous wife. To be clearer, wife is under
ohligation of not marrying with another, and always remains under the
fuy to perform maital obligations, which she needs to be relived
ft,om, for second marriage, which the husband can do through divotce.
rf husband v/ants to marry even when first marriage exists, he need not
bc rclieved from his wife as he is already allowed io another
end keep first wife also. Now the question may arise^^rrywith
that if he wants to
m2try with more than four women (the maximum permissible limit for
hsband) whether he needs to be divorced by his wife? The answer is
h ngative as even the fifth marriage of husband is not void and is
irregular (fasid) which becomes valid on death or divorce of any
rydy
of previous four wives. The fifth wife enjoys all rights once it is
rqularized.
Further, the Sharia Law permits the wife to seek divorce from
hcr husband in otder to end the madtal tie by 'Khula, mode of

pers-need-forchange/ (Visited on Match 29,2015). See also

Llry//www.hindustantimes.com/india-news/riple-talaq-in-one-go-wotst-form-of-divorce-
dohrs/artid e1-7266854.aspx flisited on Match ZS, ZOIS1.
m Though he is allowed
to maffy only fout, the fifth not void but it is iregular
^u;^grin
rd m become valid on death ot divorce of any of previou-s four wives.

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I
Rights of Muslim Voman with Special Reference to Matrimonid Causes

divorces2 for induding impotency, insamty, adultery, etc.

arry reasons
with the consent of husband. If the husband denies the demand fot
Khula, she may get it done through Kazi. Furthermore, accotding to
"Talzq-i-Tafixrid" whete she may enter into an agreemefit the time of
^t
m^rflage and get the rights of divorce delegated to herself or any other
person of her choice. In such case, the wife can use the rights delegated
to her at any time in life and may divorce her husband.s3
Even in case of divorce by husband stated above, the most
apptoved forms of Talzq tequire appointment of Arbitrator.
Unfortunately, due to improper intelpretations and conflicting views of
scholars, society is adopting the 'Triple-Talaq' system which is not
founded on any Quta'nic commandments,s and which is already
declated as immoral by the Courts. Therefote, it is not tme to say that
the Sharia Law grants a unilateral and arbitary powet of divorce on
husband.
6. Conclusion
Sharai marriage is a solemn covenant between husband and wife
to lead a maital life. It creates various obligations and confets various
rights on the spouses. Consent of the parties play a pivotal role in the
rn rrL^ge undet Sharia Law. It ptovides for ftee consent of both the
parties to marriage in exptess terms.85 It ensures the women's right to
'Sfoman
choose fteely her spouse and promotes respect for womefl.
has been confered with an unequivocal and absolute right to enter into
mantal tie with the person of her choice. This particulat aspect is still
lacking in the Hindu Martiage Act, 1955. The consent of the parties is

82 The Holy Q*'* Chapter II, Vetse 226. See also Dt. Shahzad Iqbal Sham, Some Aspects
of Matriage arid Divorce in Muslim Family l-,aw 29 aaailable at
http: / /pr:-edu pk /'mzges / iowr'al / szic / ctttrentis sue-pdf/E-
Toh2}ShehzaohZ}shanoh}}Qslznico/o20Lzsf/o20oP/o20Manage'h20ardoh20Divorce).pdf
(Visited on March 25,2015).
s: Lucy Cartoll and Harsh Kapoor (edit), "Talaq-i-Ta6rid: The Muslim Woman's
Contractual Access to Divorce: An Infotmation KiC', arailable at
http://www.wluml.org/sites/wluml.og/files/import/english/pubs/pdf/misc/talaq-i-
tawfid-eng.pdf (Visited on March 25,2015).
8a See Nehaluddin Ahmad, "A Critical Appraisal of 'Triple Divorce' in Islamic La'd',23(1)

Int J l-aw Poliry Fa:nily 53-61 (2009) (fot deailed analysis Qur'anic vemes and Hadith on
Talaq).
8s Sahih Muslim, Book 8, Kitab Al-Nikah, Number 3303,3306 e. T07. See also Holy
Qur'an, Chapter 4, Verse 21. See also Abdul Rahman I, Mardage, aaailabh at
http,//t **.islamswomen.comf mariage/intro-to-marriage.php ffisited on November 26,
2014).

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 Dt. Harunrashid A. Kadd

:aesumed and express consent is not required for validity of marriage.

\frrriage is valid if the essential customary ceremony Iike Saptapadi,
ezc. is petformed. This particular Act is not in conformity with the
Inrernational conventions. Hence, the Hindu Marriage Act, 1955
:eeds to be amended in otder to make the free and firll consent of the
rarries (n express terms) essential for validity of mariage.
The feature of Sharia Law requiring the husband to pay Dower
ueh, to the bride, is absent in othet personar raws. Mehi is paid by
:usband to his new guest zs z gsft of honor, an expression of love and
responsibiliry which in effect creates confidence in her mind & raises
ier love towards husband. It enhances the status of woman and
in-sures &s"ity. on the cofltaa.rf, the dowry system, although it is a
crime, is deeply rooted in the Indian societies. This evil of dowry has
dlso been entered in the Muslims in India and the nerghbtdng
countries, owing to intercultmal exchanges. This particrrlar aspect o-f
:nerriage in the form of dower takes the Sharia law beyond the
espectations of fnternational Conventions.

The system of rriple Talaq(Irrevocable Taraq) is widesptead in

:nrnoi Muslims and has been recognizedby clerics as valid. Htwever,
:r is not apptoved by the Holy Qua'n and the Hadith. This form of
-leq is eflcouraged owing to wrong interpretations based on traditions
ror approved by Holy Qwa'n.86 The Holy euta'n at the fitst instance
discourages Talaq and if at all ralaq is given, it gives multiple
oppornrnities for the couple to reconcile. The practice of Triple-Talaq
Ehich is violative of Human Rights of women is sinful in religion, and^
declared as illegal by the Courts in India.87 The practice of Triple Tataq
mar be avoided by focusing more on original text of the Hoty
e*^r,
;od Sahih Hadith and increasing the awareness about it. Furher, such
sjoful practices should be strongly discouraged by one and all.
The polygamy system in the sharia law is in fact a limitation on
multiple marriages as against the pre-euta'nic culture, with special

ft Shams Pizaaa (trans: Sultan Akhtar), "Triple Talaq - In The Light of

j euan and sunnah,,
caihble at http://www.muslim-
irarv. com /dllbooks / EngIish-TRIPLE-TAIAe_IN_THE_LIGHT_O F_eURAN_AND
SL\NAH.pdf (Visited on March 25,2015).
\ F4', Niyv. State Of U:P. and O*.2003 (1) AWC 128 SC,JT 2002 O) SC 631, 2002 (6)
:c{LE 165;Mut.RtkiaKbatmv.AbdutKlaliqur-askar,0981) 1GLR375; siJiaaddin"
-liarcdv. Mrs. Anaara Begtn, (1981) 1 GLR 358;Rabnat ullab
.--P.
and Klatoon Nisai. state of
And Orl,II (1994) DMC 64

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 causes
Rights of Muslim voman with special Reference to Matrimonial

and it is
emphasis on only one marriage. It is permitted with a purpose
lt th. interest oljustice to woman, her secutrty and Pfotection'
AscomparedtotheStatusofwomaninotherpersonallaws,she
enjoys a bettei position in Sharia Law. If understood propetly,
the
International
commandments of Holy Qurzfl ^te compatible with atl
Conventions. The commandments of the Holy Qurz'n aimed
to
pfotect rights of women in all respects. It guafzntees human rights of
ioo.rrr' cJmp^rrti.rely better than any other personal laws' Looking at
the Pre-Qur?nic practices, it may be stated that, the Shari'a Law
is

developeJwith an obiective to enhance the status of woman

tr

40 I @DES'sNavalmalFirodialawCollege, (2015) 3 %ie 2040