AUTHORED BY - HASIR GHAZALI
When it comes to women's rights and universal standards of gender equality, some Islamic laws are interpreted as contradictory. The slim line of qualification of abuse towards ladies in Muslim and non-Muslim countries is that in Muslim nations, it is finished for the sake of Islam. According to Islamic countries' personal status laws, discrimination against women is justified by the fact that these laws are based on Sharia law, so the discrimination against women is in line with Sharia law. In point of fact, the patriarchal interpretation of the sacred laws rather than Islam is to blame for the decline in women's status in these nations. The conventional male overwhelmed social orders attempt to rule the ladies people under the affection of Islam. This paper will investigate how personal status laws in Egypt and India affect Muslim women who divorce. The author will discuss how these personal laws affect the freedom and rights of women under their jurisdiction.
Keywords: personal status law, women, divorce, Egypt, India
A personal status system is one in which members of various ethno-religious communities who are judicially recognized as such are subject to the jurisdiction of communal (rather than national or territorial) norms regarding matters such as marriage, divorce, spousal maintenance, and inheritance. In the past, colonial rulers used personal status systems to label subjects into ethno-religious and confessional groupings, distribute goods and services, and deny certain populations the benefits of full membership in the political community. See generally Post What were they going to do with these disjointed systems, which weren't always good for creating a modern bureaucratic apparatus or a sense of civic pride in one's nation? A few nations selected institutional unification (solidifying the courts of various gatherings under an overall arrangement of public courts); some for normative unification (enacting uniform territorial laws in their place of various communal laws); a few for each; and some for neither. In the end, the ideologies of their ruling class elites influenced these postcolonial nations' choices. For some, it was determined by these nations' ethno-religious groups' capacity to resist personal status changes from the government. As a result, Egypt received the Ottoman Millet System. Under this framework fifteen ethno-strict networks were conceded independence to run their own courts and apply their own regulations with respect to their individuals' issues of individual status. However in 1955 the Nasserite system established Regulation No. 462 which canceled all strict courts in the nation, including Sharia courts. They were brought into a chief organization of public courts. The practice of employing "secularly trained" judges in civil and specialized family courts began in 2004. People from various ethno-religious backgrounds were subjected to various religious laws.
The situation in India was a little bit different in that, following the country's independence, its leaders felt the need to replace individual laws with a Uniform Civil Code (UCC). This code would be appropriate to every one of the residents of the country independent of their position and strict alliance. However, due to opposition, particularly from Muslims, this dream could only partially be realized. Through the reforms made to the Hindu code bill in 1955 and 1956, known as the Hindu Marriage Act, No. The Hindu Succession Act, No. 25 of 1955 The Hindu Minority and Guardianship Act, No. 30 of 1956 The Hindu Adoptions and Maintenance Act, No. 32 of 1956 78 of 1956 and agreed to maintain personal laws for Zoroastrian Parsis, Christians, and Muslims.
WHAT IS SHARIA LAW
"Shari'ah is an Arabic word that implies the Way to be followed," alluding to various legitimate directives known as Islamic law.5Islamic regulation has its essential source through Heavenly Quran, as well as other advantageous sources. Sunna, the Prophet's oral teachings, are the other primary source. The divine is the source of these two sources. There are three other human made sources called Qiyas, Ijmaa and Ijtihad, which are fundamentally founded on human thinking. In this manner Sharia regulation is definitely not a static element yet a fairly developing and changing substance that comply with the standards of equity and government assistance of individuals and society.
DIVORCE IN SHARIA LAW
Separate is alluded to as 'talaq'. Islam permits ladies the option to separate from her significant other on a few grounds yet Islam looks to reconciliate among the life partners.
The word "to release a human being from any obligation incumbent upon him" is the root of the word "talaq."
In Islam, a man can get a divorce from his wife in two ways: Talaq-al-Sunna and Talaqal bidaa. Talaq-al-Sunna is drawn from the lessons of the Prophet and Talaqal bidaa which is viewed as a creative type of separation took on by men, which don't follow the Prophet's lessons. The arrangement of Talaq-al-Sunna is where the men can separate from his significant other under a solitary declaration. After that, the spouses must continue their sexual abstinence for a period of three months. Iddah is the name given to this time. In this period the spouse can rethink his choice and accommodate with his better half. Be that as it may, toward the finish of the period, in the event that the spouse doesn't alter his perspective then the marriage will be broken up. Therefore, if a person wishes to reconcile with his recently divorced wife after the iddah period, he must remarry her. In addition, unless the wife has divorced and married another man in the interim, the man cannot marry his wife a fourth time if he has divorced her three times before.
In Talaq-al-bidaa, the man can separate from his significant other by articulating 'I separate from you' multiple times without a moment's delay. After the finish of the iddah period, the detachment happens at long last. This system is completely at odds with the entire concept of the iddah period—the iddah period provides an opportunity for couples to reconcile—and is not mentioned anywhere in any of the Islamic texts.
In Islam, the following steps must be taken by a woman in order for her to get a divorce:
The initial is known as TalaqTafwid: Under this, a spouse has the privilege to separate from provided that her significant other representatives this right to her which is by and large remembered for their marriage contract. This designated type of talaq is known as the Right of ladies to separate voluntarily. While this privilege is reserved solely for women, it does not restrict men's ability to divorce according to their own preferences.
The second way for ladies to get separate is called Khul. In order to get a divorce, a woman can give up all or part of her dowry. The consent of khul is concluded from Sura 2, refrain 229 and Sura 4, stanza 128 of the Quran. If a woman is concerned that her husband will be cruel to her or leave her, the Quran also allows her to request a Khul. Classical jurists agree that this divorce method is legal.
The system is viewed as an agreement made by both parties, and the wife can get a divorce by returning something to the husband and saying "khul" or something similar with the same meaning. According to the Maliki school of law, a divorce would still be valid even if a woman's wife forced her into the khul.
The third option is a divorce granted by a court. There are differences between the different schools of law, such as the Maliki school, which is more liberal and gives women the right to divorce in cases of abuse, desertion or absence for more than a year, husband physical or mental unfitness, and so on. The Hanafischool, on the other hand, restricts the court's involvement only in situations in which the husband is unable to complete the marriage or is absent for an extended period of time.
A breach of the marriage contract is another reason for divorce. After discussing the rights of men and women to divorce under Sharia, it is noteworthy that Quranic verses place an emphasis on the importance of justice and kindness toward both men and women. These conditions include a woman's right to divorce her husband at will, the prohibition of polygamous marriages, and the prohibition of divorce unless by mutual consent. The connection between the mates ought to be founded on affection and kindness and "ladies will have privileges like those against them, as per what is fair," (Quran, Sura 2, verse228). Women and men were treated similarly and on an equal footing. However, the traditional Islamic legal system did not reflect this positive outlook. They gave the man express one-sided right to separation and return to the spouse at whatever point they satisfied without her assent. It was decided that the wife's consent was of no consequence.
MUSLIM WOMEN’S RIGHT TO DIVORCE IN INDIA
Muslims can divorce in India in either a judicial or extrajudicial manner. Ladies in India can separate from under three classifications
• Disintegration of Muslim Relationships Act 1939
Talaaq-I-tafweez and lianare extra legal approaches to getting divorces in India.
Talaq-i-tafweez is a common practice among Shia and Sunni Muslims in which the husband gives the wife the authority to end their marriage. Muslim women now have the ability to end their marriages without the interference of a court through this delegated form of divorce. Most of the time, delegated divorce arrangements are addressed in prenuptial agreements.
In the 1976 Nurjahan v. Kazim Ali case, the second type of divorce known as Lian was demonstrated. The wife has the right to file for divorce under Lian if the husband accuses his wife of adultery but the accusation is proven to be false. This is seen as a form of character assassination.
The Dissolution of Muslim Marriages Act of 1939 is the third and most common legal means of divorce. Divorces of this kind would occur when:
• The husband disappears for at least four years • The husband fails to provide maintenance for two years • The husband is sentenced to seven years or more in prison • The husband fails to fulfill his responsibilities as a husband for three years Grounds of separation could be because of serious physical or psychological instability, or hopeless infections. The husband will undoubtedly receive time from the court to recover from his illness. In GulMohd. In the Khan v. Hasina case, the wife filed a lawsuit claiming she was unable to conceive. The court gave the husband time to prove his ability to conceive when he asked for an order to do so. Other explanation of separation could incorporate assuming she had been given in marriage by her watchman before she achieved the age of fifteen.
• Savage treatment by the spouse to the wife by encroaching actual mischief through attacks, drives a notorious life,forces the wife to have a shameless existence, arranges her property off or restricts her from playing out her legitimate privileges, disallows her strict practice, inconsistent treats his wives.
The Allahabad High Court stated that "Muslim crulety" or "Hindu cruelty" does not suffice to describe acts of cruelty toward Muslim women, as long as they result in physical or mental harm to the wife.
It was discovered that judicial decisions have made it easier for Muslim women in India to get divorced after examining the Muslim laws in Egypt and India regarding the right of women to divorce. Triple talaq, also known as Talaq-i-bidda, was deemed unconstitutional by the Supreme Court of India and made punishable beginning on August 1, 2019. Even though women have gained a number of rights and Egyptian discourse has become more liberal over time, cultural practices still treat women unequally. Women's rights are not upheld in practice. The Islamic faith is misunderstood and unfairly criticized for its unequal treatment of men and women. One of the most underserved segments of Indian society are Muslim women. To empower them and bring about social equity, a growing number of institutional reforms are required.
1YükselSezgin, A Comparative Study of Personal Status Systems in Israel, Egypt and India 1 (Int’l Council on Hum. Rts. Pol’y, Working Paper No. 169, 1999).
2MahmoodMamdani, Citizen and Subject: Contemporary Africa and the legacy of late colonialism (1996).
3YükselSezgin, Legal Unification and Nation Building in the Post-Colonial World: A Comparison of Israel and India, 8 J. COMP. ASIAN DEV. 273, 275–76 (2009).
4YükselSezgin, A Comparative Study of Personal Status Systems in Israel, Egypt and India 1 (Int’l Council on Hum. Rts. Pol’y, Working Paper No. 169, 1999)
4Abdur Rahman I. Doi, Shari'ah: The Islamic Law 2 (1984).
5RagaaBahloul, Ijtihad: A Feminist Interpretation of Islam 114 (19-20 Feb. 1999).
6AznanHasan, Granting Khul‘ for a Non-Muslim Couple in Egyptian Personal Status Law: Generosity or Laxity?, 18 ARAB L.Q. 81, 81 (2003) (citing Law No. 462 of 1955 (Dissolution of the Sharia andConfessional Courts and Transfer the Complaints that Would be Heard Before them to the National Courts), Al-Waqai al-Misriyah, 21 Sept. 2003 (Egypt)).
7AsmaBarlas, “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an 94-95 (2002); Judith E. Tucker, Women, Family, and Gender in Islamic Law 30-31 (2008