PROJECT REPORT ON:-

SHARIA AND GENDER JUSTICE

Submitted To

Ms. Vinita Tripathi

(Faculty of Women and Law)

Submitted By
Mahua Dutta
Roll No. 93
Sem-X, Sec- A

HIDAYATULLAH NATIONAL LAW

UNIVERSITY RAIPUR, ATAL NAGAR
CHHATTISGARH.
 DECLARATION

I hereby declare that this project work titled ―Sharia and Gender Justice” is my own work
and represents my own idea, and where others‘ideas or words have been included, I have
adequately cited and referenced the original sources. I also declare that I have adhered to all
principles of academic honesty and integrity and have not misrepresented or fabricated or
falsified any idea/data/fact/source in my submission.

Mahua Dutta

Semester X

2
 ACKNOWLEDGEMENTS

First and foremost, I would like to thank my Faculty Ms. Vinita Tripathi for her valuable
guidance and advice. She inspired me greatly to work in this project. She also helped me in
improving the perception regarding to the study of the topic in its vast resources and in a
broader way. Clearing all the doubts and uncertainty towards this project. Therefore, I want
to thank her for all his efforts and cooperation which she conferred me.
I also owe my gratitude towards University Administration for providing me all kinds of
required facilities with good Library and IT lab. This helped me in making the project and
completing it. My special thanks to Library Staff and IT staff for equipping me with the
necessary data and websites from the internet.

I would also like to thank my dear colleagues who had helped me a lot creating this project
with their ideas and thoughts over the topic. They act as a motivating and guiding force to me
during the making of this project.

Mahua Dutta
ROLL NO: 93
SECTION: A
 CONTENTS

DECLARATION........................................................................................................................................2
ACKNOWLEDGEMENTS..........................................................................................................................3
INTRODUCTION.....................................................................................................................................5
AIM/OBJECTIVE.....................................................................................................................................6
SCOPE....................................................................................................................................................6
RESEARCH METHODOLOGY...................................................................................................................6
CHAPTER 1: BRIEF HISTORY AND OVERVIEW OF SHARIA.......................................................................7
CHAPTER 2: MARRIAGE AND FAMILY LAW............................................................................................9
CHAPTER 3: DIVORCE (TALAQ & KHULA).............................................................................................12
CHAPTER 4: SHARIA AND WOMAN......................................................................................................15
CONCLUSION.......................................................................................................................................16
 INTRODUCTION

The term gender has a very broad meaning pertaining to life of male and female in all walks
of life. Gender refers to the roles each section (male and female) has to play in family, society
and nation. Males and females have to play different roles in every field of human life on
earth. The term male sex and female sex is different from male gender and female gender.
Sociologists have separated area of sex from gender. While sex is related to biological
formation or natural occurrence, gender is connected with behavioral patterns which are
termed as masculine and feminine.

The rights pertaining to physical features of man and woman are natural and cannot be altered
by manmade laws. For example, physical features of a male child are different from those of
a female child, and it continues till maturity. Physical features are naturally designed for
procreation, and all developments are derived from tradition and common practice. Gender
laws are manmade, and vary from faith to faith and from nation to nation. In the book Age of
Faith it is written: ―In the like manner he (Muhammad) improved the position of woman.
He put an end to the Arab practice of (feminine) infanticide. He placed woman on same
footing with man in legal process and in financial independence. She might follow any
legitimate profession, keep her earnings, inherit property, and dispose of her belonging at
will. He abolished the Arab practice of transmitting women as property from father to son.‖

Maulana Abul Maudoodi writes: ―God created a human couple to herald the beginning of the
life of mankind on earth, and everybody living in the world today originates from this couple.
The progeny of this couple were a single group with one religion and the same language. But
as their numbers gradually increased, they spread all over the earth and, as a natural result of
their diversification and growth, were divided in various tribes and nationalities
 OBJECTIVE:

The object of this study is to make an analysis on the impact of gender in the orthodox
Muslim Society. The Projects tends to add points which helps in establishing facts which
determine the role of Sharia Law in tendering gender Justice and Injustice.

SCOPE:

The project includes a clear cut interpretation of Sharia Law in relation to Gender. It contains
the preaching from Quran, various Scholarly Article and research paper. The project also
contains the scene of Sharia in India, Canada, Arabia and some other western Country.

RESEARCH METHODOLOGY:

The method adopted for the research is limited to study based on references from reliable text
books, Articles and internet sources from renounced writers.
 CHAPTER 1: BRIEF HISTORY AND OVERVIEW OF SHARIA

Sharia originated out from the Middle Eastern world in the Hejazi cities of Mecca and
Yathrib (which would later be named Medina).1The Islamic prophet Muhammad proclaimed
anew religion and a new holy book to guide believers called the Quran. With his death in 632
CE, Muhammad had left behind a small state and specific notions of justice. 2―Sharia‖
in Arabic can be roughly translated as ―Islamic religious Law‖.3 Following this, over the
next three centuries the Arab state expanded, and with it came a more developed and
organized version of Sharia law.4 One key aspect to understanding the nature of Sharia is how
it originally interacted with society in the pre-modern Muslim world. Spanning from Egypt to
Iran, this primitive version of Sharia laid out minimal legislative guidance and disputes were
often resolved using ―informal mediation/arbitration‖.5 In addition to this, wherever the
law was concerned, it was often intertwined with ethics and morality. This intertwining of
legal systems and values is absent in Western legal culture.6

Sharia law was also developed out of Islam and this religious background is another factor
which separates Sharia law from western secular law. The Quran, sunnah (sayings and
specific practices of Muhammad) and hadiths (the sayings or acts ascribed to Muhammad)
were the main foundation for Sharia. Sharia became the ruling law for the Ummah (the
Islamic community) but legal details varied from region to region. Countries in North Africa,
the Middle East, West Asia, Central Asia, and Southeast Asia currently have Sharia
established as state law to various degrees. As pointed out in lecture by Professor Webster,
there are no strictly codified sets of Sharia and such laws vary from place to place.7

This is important to remember and understand because Sharia and Western law are two
different legal systems developed out of completely different historical and social settings.
Aside from being a holy book the Quran can also serve as a legal document with specific

1
Wael B. Hallaq, The origins and evolution of Islamic law, (Cambridge, UK New York:Cambridge University
Press, 2005), 2
2
Amanat and Griffel, Shari‘a: Islamic law in the contemporary context, (Stanford, Calif:Stanford University
Press, 2007), 2
4
Hallaq, The origins and evolution of Islamic law, 8.
5
Wael B. Hallaq Shar a: theory practice transformations, (Cambridge, UK New York:Cambridge University
Press, 2009), 159
regulation sand laws in its 114 surahs (chapters) containing 6346 ayahs (verses) 8. As directed
by the Quran, Muslim believers throughout their lives must perform certain religious duties
which are called ―the five pillars of Islam. These five acts are also called al-ibadat, literally
meaning ―slavery or ―worship‖ in Arabic, and are just one of two divisions of Sharia.
These include: (1) Atestimony of belief in Allah being the only god and Muhammad as a
prophet (Shahada); (2) prayer (Salat); (3) an alms-tax (zakat); (4) taking a pilgrimage to
Mecca (Hajj); and (5) fasting (Sawm).9The second division is called al-mu-amalat and this is
more focused on interactions between humans.10

These interactions include matters of finance, inheritance, judicial matters, warfare, dietary
restrictions, marriage, childcare, and penal punishments.11 The hadiths, however, have always
been under speculation by Islamic scholars and lawmakers. The study of Islamic law
(jurisprudence) is called fiqh. Modern research has revealed that ―much of the hadith
is inauthentic, representing accretions on, and significant additions to, the Prophetic sunnah
that early Muslims knew.‖12

8
Andrew Webster, ―Changing Notions of Social Justice,‖ (lecture, Carleton University, Ottawa,ON, May
8, 2013): 59
10
Hallaq Shar a: theory practice transformations, 225.
12
Hallaq, The origins and evolution of Islamic law, 104.
 CHAPTER 2: MARRIAGE AND FAMILY LAW
Perhaps arguably some of the most important aspects of Sharia law are those concerning
marriage. In Islam, the Arabic word for marriage is nikah, meaning to ―collect‖ or
―bond together.‖ The institution of marriage is ―simultaneously regulated sexual, moral
and family relationships. In the legal sphere, marriage was a binding contract between
couples. Fornication and adultery are heavily frowned upon and are seen as the primary cause
of social discord. In Quran 24:2, the act of fornication or adultery is a sin against God and
must be punished in front of a group of witnesses. With so much at risk, it can be said that the
ultimate imperative for marriage is to maintain social harmony. Before a marriage can be
done, the father of the wife served as a guarding figure for her13, making sure that the groom
was compatible for the wife in every way. This is an important aspect of Sharia law because
it ensured the emotional and financial safety of the bride. In addition to this, one of the more
prominent aspects was the dowry (mahr) paid by the husband to the wife, which could be
done in a series of installments.

Also, as popularly known, Sharia marital law allows for a male to marry multiple(maximum
up to four) wives with the scriptural basis for this being found in Quran 4:3. 14 This is known
of course as polygyny. In contrast, polyandry, where a woman marries multiple husbands, is
not permitted. Overall, it is recommended that husbands only take one wife. Many
interpretations of verses in the Quran have arisen over time and as a result, some modern
Islamic states allow for polygamy while others ban it. Islamic marriages also have strict rules
for gender roles in both the sexual and financial aspects.

In Islamic marriages the wife is not obligated to pay for anything, including the support of her
own children.17 Male gender roles in Sharia are heavily emphasized in his ability to provide for
the family and to satisfy his wife sexually. In turn, wives under Sharia are quite well protected.
Failure on the husband‘s part to provide for the wife could be grounds for filing a divorce.
However, women are at greater risk when it comes to divorce (as will be discussed later on
below).With the description given above, it is now possible to examine.

13
Andrew Webster, ―Organised Labour in Retreat in a Globalised World,‖ (lecture, Carleton University, Ottawa,
ON, June 12, 2013): 16.
14
Webster, ―Changing Notions of Social Justice, 64.
16
Andrew Webster, ―Social Justice and Aboriginal People,‖ (lecture, Carleton University, Ottawa, ON, May 29,
2013):2.
social justice aspects of Islamic marriage law. Despite some of the benefits stated above,
historical marriage law in Islam was not always so accommodating for women (or men). One
interesting aspect of Sharia marital law is the handling of children born out of wedlock.
According to section CCXXVI of the Sunni and Imamiyah Code of Sharia, a child who is
born out of an illegitimate relationship has no parentage and cannot gain an inheritance from
their biological mother and father.

In addition, this type of law extends to marriages where a Muslim woman has more than one
husband. Should one of the partners die, the children in the marriage would also be left with
no inheritance because the marriage was considered batil (void and foundationally bad
marriages). In other words, the child is immediately declared an orphan and alienated from
the parents by law without the consent of the parents. Protection of the wife is apparent in
Sharia marital law. In this respect, it maintains a certain degree of equity because it removes
the inequalities that a woman may naturally have (financially) entering into a marriage. The
husband is clearly the sole provider. At the same time, however, it could be argued that the
husband faces discrimination based on his gender. His inability to provide could reflect the
cultural norms of masculinity from which Sharia law emerged from. Such a law also places
the husband at the mercy of court arbitrators. This could potentially violate sections 8 to 10 of
the Canadian18 Charter of Rights and Freedoms (no arbitrary seizure of property).Canada is
no stranger to hotly debated tribunals regarding Sharia marital laws. For example, such
debates have taken place in Ontario but its citizens voted to reject it from being
accommodated with provincial law.19 One of the many reasons is that marriage in the modern
day West is privatized in the sense that it is a ―bilateral contract to be formed, maintained, and
dissolved as the couple sees fit.‖

This would uphold the liberal value of placing the individual in the utmost of importance.
The separation of church and state in the Western world changed the perception of marriage
as a contract between two individuals. A general argument built from this is that privatized in
the sense that it is a ―bilateral contract to be formed, maintained, and dissolved as the couple
sees fit.‖

18
Andrew Armitage, ―Social Welfare: Ideals and Context‖, Chap. 1 of Social Welfare in Canada, 4th
ed., (Toronto: Oxford University Press, 2003), 4
This would uphold the liberal value of placing the individual in the utmost of importance.
The separation of church and state in the Western world changed the perception of marriage
as a contract between two individuals. A general argument built from this is that Sharia
would archaically impose too much of a constructive role on the partof religious or political
authorities to decide what a marriage is. Countering this, Muslim proponents argue that
religious freedom should be exercised.20 Perhaps what is even more controversial than
Islamic marriage is its counterpart: divorce.
20
Llyod V. J. Ridgeon, Major world religions from their origins to the present (New York:Routledge, 2003), 258
 CHAPTER 3: DIVORCE (TALAQ & KHULA)

Divorce within Sharia, as determined by fiqh, can come in the form of two unequal parts. The
first, which is ―unilaterally determined by the will and action of the husband‖, is known as
talaq21Talaq reveals the patriarchal nature of Sharia because just as marriage is initiated first
by the man, so also does he has the right to initiate the dissolution (talaq).

The divorce works by the husband, not in a state of anger but with a sound mind, uttering the
phrase ―Talaq‖ (roughly translated as ―I divorce you‖) three times to the wife.

This may be done in two ways: (1) uttering it three different periods of times and (2) uttering
all three times at once in quick succession. After this, the couple is officially divorced. It is
important to note that the divorce is not done out of compulsion.22

The only way that they can remarry is if the woman first marries another man and repudiates
that marriage.23

The reason for this is that the intervening marriage serves as a buffer for maintaining sexual
honor and preventing a hasty initiation of talaq on the part of the husband. The second form
of divorce in Sharia is called khul, and this is initiated by the wife. The motive for kuhl could
range from ―his ugly appearance or as a result of discord between the two.‖ This divorce
is different from talaq because it is not an immediate dissolution carried out by the wife, but is
instead an offer to the husband. It is up to the husband to accept the offer and as
compensation he is allowed to reclaim the money that he paid in the dowry. And because of
this consent between the two partners, unlike talaq, there is no need for an intermediate
marriage.24

If the husband does not consent to the divorce, the case can be brought to the higher courts to
determine if the husband had been neglecting or abusing his wife and/or family. Occurrences
of khul are also apparently more common than talaq. For example, in a Yemeni family court,
of 415 divorce cases between 1983 and 1995, ―74.2 percent were filed by women, and only
25.8 percent by men.‖ Khul in these cases are supervised by the court and even when they
were passed the wives had to pay the compensation to the husbands.

21
Ibid note 23
22
Rex Ahdar and Nicholas Aroney,Shari'a in the West , (Oxford New York: Oxford UniversityPress, 2010), 80.
23
Quran 2:275, 2:276, 3:130, 4:161 and 30:39
In light of secular human rights, Rawlsian notions of social justice and Western liberal
values, divorce in Sharia law is quite fair to both genders. In some respects, it actually
increases the rights of women.

In Sharia, if a man divorces a woman, she can keep and manage her property. If referring to
Rawls, social justice is maintained in this case because the inequalities normally faced by a
woman are changed to her advantage in a fair manner without inducing extra cost to the
husband. However, divorce initiated by the husband does not require the consent of the wife.
Divorces initiated by the wife are passed through only if there is consent between the couple.
It should also be noted that some women‘s rights issues appear when divorce cases are
brought to Islamic authorities. In a study by Julie Mcfarlane, approximately 20 percent of
divorce seekers (mostly female) were unable to attain a divorce. 25This was mostly due to the
refusal of imams to take further action after the husband did not give his consent to the
divorce. Given that all Islamic authorities are usually male and the different levels of consent
between spouse in talaq and khul, perhaps Sharia is inherently patriarchal. If this is true, it
would violate Rawls‟ liberty principle and Canadian liberal values of equality.

 Sharaya Bano v. Union of India and others.26

As a five-judge Constitution bench of Supreme Court begins its historic hearing on a plea
whether triple talaq is fundamental to Islam, here's the story of Shayara Bano.

After being married for 15 years, Shayara's husband gave her triple talaq in October 2015.
The woman from Uttarakhand then approached the Supreme Court in 2016, challenging the
validity of arbitrary practices against women followed by Muslims. Her petition seeks the
Supreme Court to declare talaq-e-bidat, polygamy and nikah halala illegal and
unconstitutional on the grounds that they violate the rights guaranteed by the Constitution
under Articles 14, 15, 21 and 25. Shayara‘s husband has opposed her plea on the ground they
were governed by the Muslim Personal Law and all three discriminatory practices are
sanctified provisions under the very same law.

25
Mayer, Islam and human rights, 12
26
Writ Petition (C) No. 118 of 2016, Supreme Court.
However, under the Constitution, religious freedom is subject to all other Fundamental
Rights. Article 25 — which guarantees Freedom of Practice and Propagation of Religion —
does not protect religious practices since they can negatively affect the welfare of citizens.
Article 14, which guarantees the Right to Equality, overrides Article 25 because triple talaq
denies a Muslim woman's equality before the law. Similarly, Article 25 is subject to Article
15 (1) which says that the State "shall not discriminate against any citizen on grounds only of
religion, race, caste, sex..." Since triple talaq does not work in the favour of women, it
violates Article 15 (1) of the Constitution. The Supreme Court's decision will affect many
women victims in the country and those who are vulnerable to the instantatenous oral and
unilateral triple talaq.
 CHAPTER 4: SHARIA AND WOMAN

Overall, penal codes under the auspices of Sharia or Islamic Law in Sudan have made it
difficult for women to participate in politics. 27 Moreover, the state‘s conservative
interpretation and implementation of Sharia law is criticized for deviating from the Islamic
precepts of tolerance, forgiveness and equality. Yet, with the support of Islamists, and the
power of the military, President al-Bashir was successful for maintaining these draconian
laws.

Under the type of Islamic law that was implemented in Sudan, women had limited financial
resources because they virtually lacked any legal right to ownership. They are restricted from
having access to land, even in the form of tenancy. Their access to property other than land is
equally restricted in that although women can possess assets, it is virtually impossible for
them to manage such assets freely. According to Sharia law, women must always defer to
their husbands or male guardians in administering their assets. Widows cannot even manage
inherited assets; they must transfer the administration to sons or other male family members.
Islamic law which allows the state to enforce public morality has reduced women‘s mobility
and their participation in the public sphere. In Sudan gender segregation is implemented in all
public spaces. For example, on public buses, women must stand separately in the back.

The government also restricts women‘s freedom of dress. In 1983, the Islamic government
enforced the practice of wearing veils for all women, including non-Muslims. In Khartoum,
the restrictions became even more severe in 1991 when the government imposed the wearing
of opaque clothes from head to feet. Women that are caught in violation of these restrictions
can be subject to high fees and lashings. These restrictions are a stark contrast to the 1960s, a
period during which women typically wore veils in villages but felt free to adopt western
styles of dress in larger towns and cities.
 CONCLUSION

The term Gender Justice is one of the topmost concepts within the modern feminist literature
and Human Rights movement in the West. Several books and articles authored by feminists
on this concept of Gender Justice ‘have attracted young and old around the world.
Furthermore, hundreds of NGOs which are working on the main Agenda – Women‘s
Empowerment’ are all streamed towards achieving Gender Equality‘ and Gender Justice‘,
based on a specific feminist perspective, known as gender perspective‘. Thus intellectual as
well as practical political efforts at international level are directed by highly influential
feminists to achieve Gender Justice‘. For a systematic study and a critical analysis of this
concept, it seems better to study it under two broad topics, one, its stance on gender‘, gender
differences, and natural institutions, marriage and family and the other, on its International
Politics on sexuality and reproduction justice’ although both are related to each other. In this
article we would look into the first topic, Gender Justice ‘on Gender, Gender Differences,
Marriage and Family.

Natural differences and natural institutions should be neither marginalized like what Gender
Feminism does, nor should these differences and these institutions be manipulated to stop
women from every other role and function in the society, like we find in some Muslim
societies. Gender Justice requires justice to natural differences between men and women
while respecting the basic equality of men and women as human beings, and as co-
vicegerents of Allah so that they stand together to build and maintain healthy and stable
families for a healthy and stable civilization.
 COMCLUSION

BOOKS

 Wael B. Hallaq, The origins and evolution of Islamic law, (Cambridge, UK New York:Cambridge
University Press, 2005), 2
 Amanat and Griffel, Shari‘a: Islamic law in the contemporary context, (Stanford, Calif:Stanford
University Press, 2007), 2

 Llyod V. J. Ridgeon, Major world religions from their origins to the present (New York:Routledge,
2003), 258

RESEARCH PAPERS

 Mayer, Islam and human rights

 Llyod V. J. Ridgeon, Major world religions from their origins to the present

 Andrew Webster, Changing Notions of Social