Chapter 1

INTRODUCTION

In the eyes of the Prophet (PBUH) the motive of marriage is that both the man and the
woman may live together in happiness and peace and raise a family for promotion of good in
the society. Marriage in Islam is looked upon as a sacred social need and makes it a duty for
every Muslim to get married unless she/he is not physically fit for getting married or there
are other important reasons for not marrying. The great scholars of the time have quoted what
was spoken, preached and practiced by the Holy Prophet.

As quoted by Bukhari,

“It is necessary for you to marry because marriage is a

protection against the wickedness of the sight. If one of
you cannot marry then let him fast.”
The story behind this Hadith is that once a companion of the Holy Prophet went up to him
saying that he is not in a position to get married. So, the Prophet said that if you cannot get
married then fast, so that you remain protected and safe from the evil desires. Getting
married under Islam is a sacred duty.

Baihaqi has quoted the Holy Prophet by saying that when a man gets married, he makes
Islam half perfect. And let the remaining half fear Allah. Dr. Jung and Sir Abdul Rahim have
also spoken of the sacramental nature of marriage. Sir Abdul Rahim says that marriage is an
institution that is a blend of both the devotional act as well as a worldly affair. That means it
is both a form of Ibadat as well as Muamalat. Dr. Jung says that marriage is both a civil
contract as well as a devotional act.

Divorce among Muslims is an intricate subject where facets of Islamic jurisprudence,

customary regulation of roles are assigned to both the genders, prescriptions of Quranic
verses and related aspects of daily life inevitably interweave and associate.

This research endeavours to bring into light the rights of dissolution of marriage that the law
of Islam gives to Muslim women and how much aware these women are of these rights. This
research work also enshrines the concept of gender justice and equity in Islam but how it is

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not being implemented by the Muslim Personal Law being practised in India and the
implications of it on women.

1.1 Statement of the Problem

According to the norms being followed in the society, Muslim women do not have any right
to dissolve their marriages. Today, it is a controversial topic and people are only highlighting
man’s power to divorce (triple talaq) as arbitrary and Muslim men have given an arbitrary
face to it, though in reality it is no so. Islam condemns it, our Prophet (PBUH), condemns it.
It is thus called Talaq-ul-Biddat. Because of this, Islam and Islamic law has been put to
question and is facing the blame of being patriarchal and unjust to women.

In response to these problems, this research attempts to define, explain and analyse the
various methods of dissolving a marital tie under Muslim law that can be initiated by women.
There are three significant questions here:

i) Has Islam and Muslim law conferred the rights of dissolution of marriage to
women?
ii) If yes, then what are the methods?
iii) Are Muslim women aware of their rights of dissolution of marriage?

This research strives to work on finding the answers to these questions. An empirical survey
is conducted to determine the level of knowledge Muslim women have, regarding divorce
laws. This survey is conducted with women, 200 in Hyderabad and 200 in Delhi, both the
cities representing South and North India, respectively.

This research work also aims to identify problems and provide suggestions and solutions for
the same without hindering the laws laid down by the Qur’an and Hadith.

1.2 Literature Review

A survey of literature in relation to the topic is extremely important for organised planning,
execution of these plans and to understand the correct concept of the issues and its solutions.
There is indeed extensive and substantial material on this controversial and debatable issue,
still a large section of the population lacks awareness, be it religious or legal. There are two
strings to the literature review of this topic.

1. Understanding the condition and status of women before and after the dawn of Islam
with special reference to the present scenario

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2. Understanding the general concepts, definitions, methods and procedures of divorce
under Muslim law

Syed Ameer Ali’s book, Principles of Mahommedan Law, Allahabad Law

Emporium (5th Edn.) 2 Volumes, gave in the hands of the students in an organised
and connected form, the principles of Muslim law collected from the original sources
and authorities. Important judicial decisions have also been referred to in order to make
the concepts easy to understand practically.

Prof. Dr. Tahir Mahmood and Saif Mahmood in their book, Muslim Law in India
and Abroad, Universal Law Publishing Co. Pvt. Ltd., Delhi (2012 Edn.), offered a
wide-ranging study of the complete scope of Muslim Law applicable in India. They
have also included the extensive assessments and evaluations of the legislative
enactments’ existent in India in this domain. Their study has been followed by
articulate discussions and elucidations of the ethics and principles of uncodified
Muslim law in their true sense and spirit and in conformity with the present-day social
conditions. The book aims to help the reader in understanding the contemporary
Muslim law in other countries. Therefore, the book concludes with indications and
pointers of reformation of Muslim Personal Law, in several Muslim-dominated as well
as Muslim-minority nations.

Syed Khalid Rashid’s Muslim Law, Eastern Book Company, Lucknow, 2014 (5th
Edn.), is a comprehensive work that lucidly explains the legal principles governing the
Indian Muslims. The latest edition was thoroughly updated with cases, developments in
law and resolutions passed by the All India Muslim Personal Law Board and other
parallel institutions. Landmark decisions that affected and modified the socially
inappropriate and discordant concepts in relation to divorce, mahr, maintenance,
remarriage etc. are incorporated in this book. The high point of this book is the
thorough reasoning and analysis of the constitutional aspects of the principles of
Mohammedan law. The book has also included the interactions between personal law
and social ethos as well as the opinions of academic jurists.

Another book that helped in better understanding of the Muslim law was Outlines of
Muhammadan Law, Oxford India Paperbacks, Uttar Pradesh, 1964 (4th Edn.)
authored by Asaf Asghar Ali Fyzee, edited and revised by Prof. Tahir Mahmood.
The main crux of the book is that it covers matters of marriage and its dissolution,

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parentage and legitimacy, guardianship, maintenance and gifts, inheritance as well as
succession of both the Sunnis and Shias. The author has made notable contributions in
the field of Muslim law as administered and practiced in India.

Mulla, Principles of Mahomedan Law, LexisNexis, Haryana, 2017 (22nd Edn.)

revised by Prof. Iqbal Ali Khan was of great help in understanding the basic concepts
of Islamic law as well as the recent developments in the field. This work covers all
aspects and dimensions of the law of Islam in India. It provides explanations of the
background, history, sources and complexities with a definitive and lucid approach. It
also provides a starting point to begin for future studies. This work is unquestionably
reliable as it has been relied widely upon the pronouncements of the Hon’ble Supreme
Court of India as well as various High Courts in various cases including the landmark,
Triple Talaq judgment of 2017.

Ms. Safia Iqbal, Woman and Islamic Law, Adam Publishers & Distributors, Delhi,
(2009 Edn.), has done quite an extensive research on Muslim women, their position
before and after the advent of Islam discussing in detail all the rights given to them.
She has also imbibed in her work the causes behind women being the weaker section of
the society and how it has contributed in diminishing all the rights given to them by
Islam. The author has covered all the dimensions directed to Muslim women. The book
directly presents the privileges and status of women in Islam without incorporating
lengthy and unnecessary discourses. The various aspects of Shariah law have also been
identified and discussed.

Another book that helped in understanding the position of women in India was Law
Relating to Women and Children written by Ms. Mamta Rao, Eastern Book
Company, New Delhi, 2018 (4th Edn.), reprinted in 2019. It is a well-researched and
systematically organised study on the subject. The author has discussed various
problems faced by women in India and has thrown light on the crimes committed
against them. The main highlight of this book that was beneficial in this research was
the Shayara Bano case on Triple Talaq. Chapter 5 of this book discusses about the
personal laws relating to women, thus highlighting the divorce laws that affect women.

Maulana Wahiduddin Khan, the eminent Islamic scholar, in his book, Women
between Islam and Western Society, Islamic Centre, 1997, emphasized upon the

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difference in the status of women in Islam and in the west. He analysed the troubles of
the Muslim society that stem the gap between principle and exercise.

Another enlightening book on this matter was Asghar Ali Engineer’s book, Rights of
Women in Islam, Sterling Publishers Private Limited, New Delhi, 2008 (3rd Edn.)
where by interpreting texts from the Qur’an and analysing the old, outdated customs in
practice, this book presented a new viewpoint on women’s lives in today’s Muslim
world. It revealed that equality and equal democratic rights of both the genders, reflect
the correct essence of Islam and the Holy Qur’an. He also emphasised and imbibed in
his book the status of women in the pre-Islamic Arabia and how this status completely
transformed with the introduction of Islam and the manner in which it positively
reformed the guidelines for marriage, divorce, inheritance, child custody, polygamy
and property rights. He conveyed to the readers the significance and worth of the
balance between the religious traditions and the social realities in the contemporary
world and how it will help in getting a progressive call to re-evaluate Muslim personal
law and the common civil code.

HD Kohli’s book Muslim Law: Cases and Materials, Universal aw Publishing

Company, New Delhi, 2012 (1st Edn.) benefited in providing all the legal status, laws,
digests and case laws relating to Islamic law in one place.

In the light of developing course by way of judicial decisions in Muslim law, the book
entitled Muslim Law of Marriage, Dower, Divorce and Maintenance, Regal
Publications, New Delhi, (2015 Edn.) authored by Prof. Kahkashan Y. Danyal
successfully explained the basic concepts of Family law governing the Indian Muslims
in an easy manner. This book mainly highlights that section of Muslim law that deals
with Muslim women. It has provided answers to the most commonly asked questions
on the rights given to Muslim women by Islam. It has, in detail, laid down the
landmark judicial pronouncements given by the High Courts and the Supreme Court
that changed and revolutionised the conflicting and discrepant social concepts relating
to dower, maintenance and divorce.

Another book that was of great importance in this research work was Aqil Ahmad’s
Mohammedan Law, Central Law Agency, 2016 (26th Edn.) revised by Prof. Iqbal
Ali Khan. This book’s highlight was that it encouraged the fact that even the personal
law must adapt as per the need of changing times and according to people. Apart from

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the discussions of the law of Islam, efforts have been made to put forward the law as
implemented by the courts in India, with clarity.

Kauser Edappagath’s book, Divorce and Gender Equity in Muslim Personal Law of
India, LexisNexis, Haryana, 2014, was a valuable and much-needed resource for the
understanding of Muslim Personal Law in its multi-dimensional perspective. It
illustrates the laws clearly stated in the Holy Qur’an and by the Shariah, its
interpretations by the courts of colonial, pre-independence era and the recent judicial
pronouncements of the pro-women Quranic injunctions and mandates beyond its
several deformities. This book is concerned with the sociological, legal and
constitutional exploration of divorce in general and talaq in particular in the Muslim
personal law of India. The book examines in detail and with clarity the issue of gender
justice in Muslim Law of India in a socio-legal and constitutional outlook. The struggle
between the Shariah law and the Muslim personal law regarding divorce has also been
thoroughly examined. The book also provides with solutions to difficulties challenging
Muslim women in the matter of talaq and ensure gender equity.

Codification of Muslim Personal Law, Kalpaz Publications, Delhi, 2019, authored

by Asghar Ali Engineer and Qutub Jehan Kidwai was of great help in studying the
Muslim personal laws in other countries. This book is a project that supports the
codification of family law for the Muslims within the framework of the Qur’an. It gives
a draft of the family code that has taken into account the sensibilities of all the schools
of Islamic jurisprudence and principles laid down in the Qur’an with regard to family
laws for Muslims.

The subject of Triple Talaq is of central importance considering the recent times and
developments. Furqan Ahmad’s Triple Talaq, An Analytical Study with Emphasis
on Socio-Legal Aspects, Regency Publications, New Delhi, 1994, expounds the
Islamic views on divorce in general and deals specifically on the controversial topic of
triple talaq.

Another book focussing specifically on the debatable matter of triple talaq that helped
in this thesis was Dr. Shabnam Khan’s Triple Talaq and Muslim Women, Critical
Sociological Perspective, Pointer Publishers, Jaipur, Rajasthan, 2018. This book is
a sociological study of Muslim women.

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For a better and considerate understanding of the position of Muslim women in India,
Dr. Juhi Gupta’s book, The Future of Indian Muslim Women: Fatwa vs. Feminism,
Readworthy Publications, 2012, was also referred to.

Women in Islam, Adam Publishers and Distributors by M.M. Siddiqui gave an

interesting overview of the Islamic and legal view-point with special reference to
women.

Women in Islamic Shari’ah, Goodword Books, 2000 (2nd Edn.) authored by

Maulana Wahiduddin Khan is a book that endeavours to bring clarity into the
conception of Islam regarding women.

This book, The Muslim Law of India, LexisNexis Butterworths, 2002 (3rd Edn.)
authored by Prof. Tahir Mahmood had an objective of educating the Muslims who
misuse their personal law for selfish motives as well as the non-Muslims who
misunderstand its precepts. Starting from the status and scope of Muslim law, the
author has taken into account the legal standing of Muslims with reference to the
Indian Constitution. He has further explained several terms used in Muslim law in
detail aiming towards better understanding. This book serves as a great help in
understanding Muslim law to all.

Paras Diwan’s Muslim Law in Modern India, Allahabad Law Agency, 2018 (13th
Edn.) does not only provide with the expositions of the law but has successfully
approached the subject in its true spirit. The author has included to suggest his own
approaches faithfully, with the objective of supporting the development of law and
bring about a positive and desired social change.

Yet another book by the renowned Muslim theologian, Asghar Ali Engineer, Islam,
Women and Gender Justice, Gyan Publishing House, Delhi, 2001, significantly
helped in this research work. This book throws light on all the facets of problems that
Muslim women in India have to face. There is a general belief that these women face
only two legal problems, i.e. triple talaq and polygamy. People think that if these two
get abolished, everything will be perfect for them. The author has stressed upon the fact
that this belief system is far from the truth and has laid down all the complex problems
that women face apart from the legal ones.

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1.3 Objectives of Study

The main objective of this research study is to highlight and explain the less-talked about
rights of Muslim women to dissolve their nuptial ties and also do a field study analysing
how much are the Muslim women aware of these rights given to them under Islam. The
objective would also extend:

1. To scrutinize and assess the struggle of laws between the law of Shariah and Muslim
Personal Law being practiced in India on the matter of Talaq;
2. To study the awareness about laws of divorce amongst Muslim women;
3. To inspect and evaluate the consequences of talaq on divorced women;
4. To study the reasons for the existence of gender discrimination in the matter of talaq
under the personal laws of Muslim existing in India;
5. To survey the socio-psychological complications of divorced Muslim women and their
adjustments to life after divorce.

1.4 Hypothesis
1. Lack of awareness among Muslim women regarding their rights of dissolution of
marriage leads to misuse of these procedures in India.
2. There is a correlation between the awareness amongst Muslim women regarding their
right to divorce under Muslim Personal Laws and their possibility of exercising those
rights/options

1.5 Reasons for Selection of Delhi and Hyderabad

The cities of Hyderabad and Delhi have been chosen to carry out the survey to
understand the level of awareness among Muslim women regarding the rights that they
have been bestowed with by Muslim law. Both historical significance as well as the
present situation are attached behind the reasons of choosing Hyderabad and Delhi for
survey. Hyderabad was selected as in the South Indian cities it has maximum Muslim
population. According to the 2011 census, Delhi has a Muslim population of 12% while
Hyderabad resides in itself 65% of Muslims, making Muslims a majority in the city. Both
Delhi and Hyderabad have been symbols of Muslim rule in India. Delhi was for 800
years been a Muslim capital while Hyderabad has been a centre of regional Muslim
political establishment for up to 300 years. Therefore, there were no other cities better to
study the family practices and social behaviour of Muslims. Both Delhi and Hyderabad

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 have old city areas that predominantly have Muslim population. With the passage of
time, new Muslim habitats emerged in both the cities. In Delhi areas like trans-Yamuna,
Indralok, Seelampur, Ghonda, Jafarabad, Zakir Nagar and other areas in Okhla, etc.
emerged. Similarly, in Hyderabad, new areas like Tolichowki, Gachibowli, Falaknuma
and adjacent areas arose and developed. Gradually, we have been seeing that the literacy
rate has been increasing in both the cities. Especially, in Delhi where girls are sincerely
moving forward than boys. But there is a social imbalance in Delhi, since girls are more
qualified. Hence, they face adjustment issues after their marriages. Quoting a famous
saying here, “Dilli ki ladki, Mathura ki gaaye, Kismat phoote, Toh baahar jaaye”. The
situation in Hyderabad is worse due to poverty and lack of family planning. The
condition of female child is shoddier as Hyderabad is a hunting ground for brides. There
were pathetic times where the old-age Arabs married these girls and later abandoned
them. Madarsas for girls have been open but still theological discourse is basically
conceived for men, hence, they are moulded into a manner that favours patriarchy. In
Hyderabad, specially, camps for match-making are being organised over the years.
Organisations like Urdu Daily Siasat has been playing a very crucial role in this scenario.
Along with match-making, they also work on creating awareness about the rights and
obligations that arise out of marriage. Delhi has been following the traditional system, but
now with the passage of time and exposure, girls have started choosing grooms for
themselves. This led to a decision-making of choosing these two cities for survey.

1.6 Research Methodology

The research study covers both the social and legal issues relating to dissolution of
marriage and gender equity in the Muslim personal law of India. Therefore, the study
that was resorted to was analytical and empirical, as it qualifies for a research design
that is socio-legal and helped in quantifying the data which was beneficial in answering
the research question.

Significant material on the topic was gathered through various sources both primary
and secondary. The primary data was collected from 200 Muslim women in Delhi and
200 Muslim women in Hyderabad through questionnaires, legislations, etc. The
secondary data was assembled from legal texts, judicial pronouncements, reports by
research scholars from various Universities, drafts prepared by the legal academicians
and papers presented in Conferences and Seminars, etc. A scrutiny of the benefits and

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pitfalls of the drafts that have been conceived towards the codification of Muslim
Personal Law was also carried out.

The mechanism used to collect data for the empirical research study was in
questionnaire form. The questionnaire is a mixture consisting of primary dichotomous
questions and a secondary exploratory question to gauge the understanding of the topic
asked in the primary question by the participants. The collected data was arising out of
the dichotomous questions and exploratory questions were quantified and carefully
classified, edited and tabulated. The same was done with the statistical analysis as per
the need of the study. The research here is a critical study of an issue, a prospective
plan of action, a theory or a hypothesis.

The field study was conducted on the basis of random sample survey of 400 Muslim
women of two cities, Delhi and Hyderabad. 200 women in Delhi and 200 women in
Hyderabad were approached. The sample was heterogeneous in nature and the criteria
of selection of these women was made on the basis of age-groups (18-25, 25-40, 40 and
above), educational qualifications and whether these women were working or
homemakers or students. Their marital status was also an important criterion, whether
they were unmarried, married or divorced.

The choice of sampling was random as to get the nearest possible representation of the
Muslim society in India and the sample was curtailed to the quantitative limit of 400 so
as to maintain the standards of accuracy and acceptable confidence level as the
researcher personally looked into the filing of questionnaires. The sample was
approached so as to specify with precision the estimation of the research question and
then the sample size was determined.

The technique used here was that the researcher visited areas of Muslim majority as
well as Universities in order to get an idea of how aware Muslim women are of their
rights given to them under Muslim law. This procedure continued until the number of
women targeted had filled up the questionnaires.

In this research project, data collection by way of questionnaire was a significant part
and the prime methods adopted were questionnaire, observation, case study and its
analysis.

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The type of observation method which was applied was the participant observation
method which was notably valuable in this research study. The researcher spoke to the
divorcee respondents which made it simpler to understand the in-depth problems and
consequences they faced after dissolution of their marriage.

The research reveals how much aware are these women about their rights of dissolution
given to them under Muslim law. The portion of the questionnaire specifically for the
divorcees reveals the age they were married, how they got divorced and what were the
consequences.

1.7 Scheme of the Chapters

Every attempt has been made to include each and every field that is closely or loosely
related to Muslim women and Muslim divorce law in this thesis.

The first chapter, Introduction, gives an introduction to the topic of research study. It
also deals with the statement of problem, literature review, objectives of study,
hypothesis and research methodology.

The second chapter, Concept and Historical Approach, gives us the concept and
history about women and divorce. The first section gives an idea of the condition of
women in pre-Islamic Arabia. The second part lays down the concept of divorce under
Muslim law and the various methods with which dissolution of marriage can be
initiated. The third section gives an outlook of how the condition of women changed
and reformed after the advent of Islam, specifically discussing the laws of marriage,
dower, divorce, maintenance and inheritance.

The third chapter, Divorce by Husband, deals with the classification of the procedures
to dissolve a Muslim marriage and the processes through which a husband can initiate
divorce. Divorce by mutual consent, Mubara’at and judicial imprecation, Lian have
also been briefly taken up.

The fourth chapter, Divorce by Wife, is the crux of this thesis as it explains the forms
of divorce that can be initiated by the wife. It discusses khula, talaq-e-tafweez,
repudiation of marriage and faskh in detail. An essential legislation that was enacted for
the empowerment of women has also been included in this chapter i.e. The Dissolution
of Muslim Marriages Act, 1939.

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The fifth chapter, Consequences of Divorce, deals with the consequences of
dissolution of Muslim marriage in India. It contains details about iddat, remarriage,
child custody, dower and maintenance.

The sixth chapter, International Approach, gives an outline to the international

approach to Muslim personal law with special reference to divorce. It lays down the
details of Muslim law of divorce in other countries.

The seventh chapter, Judicial Approach, encompasses in it all the major and landmark
judicial pronouncements till date that have been significant for the Muslim women in
India.

The eighth chapter, Muslim Women and Divorce Rights: An Empirical Research
Analysis, discusses the major findings of the survey analysis carried out with 200
women in Delhi and 200 women in Hyderabad, through tables, charts and figures.

The last and the ninth chapter is Conclusion and Suggestions.

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