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Women in general and Muslim women in particular are suffering because of denial of their rights in this patriarchal society. The greater the degree of illiteracy, the &eater the lack of consciousness and, hence, the greater their suffering. There being much greater illiteracy among Muslim women in India, there is a woeful lack of awareness among them about their own Islamic rights.
Islam lays great emphasis on gender equality and, accordingly, granted women equal rights in marriage, divorce, ownership of property, etc. However, except for very brief period of early Islam, women could never enjoy equality of these rights. The Ulema, with all their sincere commitment to Islam, were after all product of their time and interpreted the divine word from the male perspective.
One of the prevailing assumptions in the medieval ages was that women had deficient intelligence (naqis al-aql) and hence should not be entrusted with responsible jobs. As late as the mid- 1920s, Maulana Ashraf Thanavi, a great Alim in his own right, also said that since women were deficient in intelligence they should not be entrusted with the responsibility of pronouncing divorce.
Recently when Egypt's President, Hosni Mubarak, got a law passed in Parliament empowering women to divorce their husbands, the Ulema opposed it vehemently saying women were emotional and hasty in decision-making and if they were given the right to divorce family life 'would be destabilised. This opposition was so intense that Mubarak had to drop other measures in order to get the law giving women the right to divorce passed.
Many rights which were accorded to women by the Koran were denied to them under such assumptions. It is important to note that the Koran by itself does not make any such pronouncements. It addresses all human beings as u'lil albab (people of intelligence) and makes no discrimination between men and women on this count. Though there are differences between men and women on certain functional matters there is no difference in matters of rights.
Also, though the Koran nowhere says that a woman's duty is to look after her husband and children and do household work, the whole Islamic juristic literature is full of such assertions. Such assumptions conic not from the Koran but from the prevailing social ethos. Muslim Personal Law in India is also based on many such assumptions. And from them flow all the problems of Muslim women.
What is shocking is that, despite evidence to the contrary, the Ulema's assumptions acquire divine status and are thought to be immutable. The Koran grants women the right to divorce on giving fidyah (compensation) if she fears she cannot observe Allah's limits, the Ulema made it subject to the husband's consent on the assumption that she would take hasty decision and would destablise family life.
Muslim women today are demanding their Koranic rights. They want to liberate themselves from medieval interpretations of the Koran. However, the Muslim Personal Law Board is resisting such demands from women. Some Muslim women, aware of their Islamic rights, drafted a standard Nikahanama and submitted it to the Board. Since marriage is a contract in Islam, standard contract conditions can be drawn up and signed at the time of marriage. A woman is entitled as much as a man to lay down certain conditions at the time of entering into marital contract,
A woman thus can lay down a condition that her husband will not take a second wife, or that he will delegate the right to divorce to his wife (talaq-e-tafwid), etc. These and similar other conditions, if incorporated into a standard Nikahnama, could solve many of the problems faced today by Muslim women without bringing any change in the personal law.
Such a Nikahnama is well within Islamic law and even Ulema of the stature of Maulana Ashraf Thanavi had drawn up such a standard contract way back in the 1939s. However, the members of the Muslim Personal Law Board are sitting tight over the proposal. The draft Nikahnama submitted to the Board more than an year ago was sent to several Ulemas for their approval before it was submitted to the Board and it received their approval. There is no condition is it which can be construed as un-Islamic. Even then the members of the Personal Law Board are reluctant to approve it.
According to some sources, there are differences among the members of the Board regarding the draft Nikahnama. It is reported that the Board has scripted its own Nikahnama which is a rather watered down version of the one submitted by the Muslim women from Mumbai, A five-member panel set up by the board has said that once this standard Nikahnama comes into force triple divorce, on account of which many Muslim women are suffering today, will no more be possible.
Abolition of triple divorce in one sitting will be a great relief for Muslim women. This form of divorce, which all Ulemas agree is an altered vision and one which has been condemned by the Prophet, is still valid in India though it has long been abolished in other Muslim countries.
It is reported that the Nikahnama being considered by the Board lays down special conditions for divorce, including the right of a woman to claim khula (divorce initiated by the wife). The Nikahnama under consideration of the Board is also likely to restrict polygamy. Like triple divorce, polygamy is another serious problem for Muslim women. The Koran has permitted it under exceptional conditions but these conditions are violated in practice. The Board should strictly regulate it as has been done in other countries including Pakistan.
With restriction of triple divorce and polygamy, Muslim women will not face many legal problems. Other laws of Islam are very fair to them and do not pose any problems. Triple divorce also is not universally practised by all Muslims. The Shias do not recognise it and even among the Sunnis, the Ahl-e-Hadith reject this concept.
The Muslim Personal Law Board's present chairman, Maulana Mujahidul Qasmi, is more liberal and is in favour of approving the new Nikahnama. He is also connected with the Fiqh Academy (the academy of the Islamic jurisprudence) which is actively engaged in taking up newly-emerging problems and proposing changes.
(The author is a well-known
Bohra reformist)
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