The opinion survey that led to a fatwa: What it reveals about sharia law and Muslim women

Shumaila Anjum popped out of the inside pages of a national newspaper before she stopped coming, at least temporarily, to the Mahatma Jyotiba Phule (MJP) Rohilkhand University in Bareilly, Uttar Pradesh.

Perhaps this Ph.d student is lying low in the hope that the controversy triggered by a fatwa decrying her academic survey subsides, and her life returns to what it had been before the episode.

Anjum’s survey became contentious because she elicited the opinion of 100 Muslim women in Uttar Pradesh’s Rohilkhand region on the personal laws governing them. Worse, three of her findings turned popular beliefs about Muslim Law on its head – 60 percent of the women said they wanted to have the same right to divorce as Muslim men; 50 percent felt that the mere payment of mehr or dower by a husband to his wife at the time of divorce was grossly insufficient for her maintenance; and a whopping 80 percent said they wanted equal property rights.

The women who were surveyed were drawn from different economic classes and included working women, housewives, and those who do the purdah.

“Anjum had planned to seek the opinion of 500 women for the survey, but could manage only 100. It is difficult to access women in the region infamous for patriarchy, regardless of which religion they belong to,” said Dr Amit Singh, who heads the department of law of MJP University.

Anjum’s survey was stridently criticised by the three muftis (those who give opinion on religious matters) of Bareilly’s much-revered Dargah Ala Hazrat. They said Anjum had erred because she had sought the opinion of women on those aspects of Shariat, or Muslim Law, which they believe are immutable.

It would have been alright, they say, had her questions pertained to those laws which are changeable.

One of the muftis, Mohammed Saleem Noori, told this writer, “The Muslim woman’s right to divorce can’t be expanded. A divorcee’s settlement can’t exceed the amount of mehr affixed at the time of marriage plus the gifts her husband gave her during their marital relationship, and women can’t ask for a larger share in the ancestral property than fixed under the Shariat.”

Undoubtedly, Mufti Noori’s interpretation of Muslim law is not only a manifestation of an extreme, and enslaving, notion of patriarchy, but is also both outdated and bad in law - secular as well as Islamic. Muslim women do have the unilateral right to divorce through the process called khula.

Over the last three decades, it is also a settled legal principle that a fair and reasonable provision for the maintenance of a Muslim divorcee can be in excess of mehr.

Against this backdrop, it would seem the respondents in Anjum’s survey, as also the muftis of Bareilly’s Dargah Ala Hazrat, are oblivious of the expansion of women’s rights under Muslim Law.

Says Supreme Court advocate Saif Mahmood, who with his father and legal luminary, Tahir Mahmood, has authored the seminal Muslim Law in India and Abroad, “Even courts in India are unaware of the rights community members enjoy under Muslim Personal Law.”

So then, how was the Muslim woman’s right to divorce expanded to match that of her male counterpart?

They always had the option of khula, or separation from the husband in return for payment. This included remitting the mehr the husband paid to her, or waiving it in case he hadn’t already. But she could also free herself from the knots of marriage through a payout heftier than mehr.

The Dissolution of Muslim Marriages Act, 1939, specifically laid out conditions which the woman could invoke to opt for khula. These included cruelty to the wife, or if the whereabouts of her husband were not known for four years, or insanity and such like. Over the years, though, the scope of the Act has been widened to allow women to seek khula regardless of any conditions.

Then again, khula earlier required the woman to ask her husband to release her from marriage, but the divorce came into effect only when he gave her talaq. But this requirement is no longer mandatory. Should a husband refuse to accede to his wife’s wish for divorce, she can now approach the court or the qazi (judge) to have khula enforced.

In fact, khula constituted the nub of the controversy surrounding the marriage between cine star Sanjay Dutta and Manyata. Her former husband, Meraj Ur Rehman, petitioned the magistrate’s court in Mumbai claiming he hadn’t divorced her and she was, therefore, guilty of bigamy. Manyata’s counter was that she had obtained the decree of khula from a qazi and her marriage to Dutt was therefore legitimate. The magistrate’s court asked the couple to appear before it for responding to the charges of adultery and bigamy.

The case then went in appeal to the sessions court. Mahmood was among the three lawyers who represented her. He said, “The court went through cases in Pakistan and examined the practice of khula as it evolved there (following the 1939 Act.)” The sessions court ruled in Manyata’s favour, upholding the view that a Muslim woman doesn’t have to depend on the husband to divorce her for the annulment of marriage. This view the Bombay High Court subsequently upheld as well.

In the Masroor Ahmed vs State (NC of Delhi) and Another, Justice BD Ahmed of the Delhi High Court ruled in 2007, “Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. (Italics mine).” He further noted, “It is important to note that…under khula…there is no need for specifying any reason for the divorce.”

Justice Ahmed also opined that the Muslim woman could obtain divorce outside the court through khula.

Bareilly’s Mufti Noori hasn’t heard of these judicial pronouncements on khula. He insists that the wife can either ask her husband to release her from marriage or approach the qazi to persuade the husband to do the same. But her marriage wouldn’t be annulled until the husband accedes to her request and gives her talaq. “If the husband doesn’t agree, then the woman remains his wife,” said Mufti Noori.

His opinion is in violation of the court rulings which mirror the practice of khula in many Muslim countries and is also followed by the Islamic Sharia Council in London. Call it a consequence of illiteracy or patriarchy or the sway of orthodoxy, the muftis and qazis as well as ordinary Muslims, evident from Anjum’s survey, are not aware of the evolution of Muslim Law which has helped expand the divorce rights of women.

This ignorance is precisely why Muslim women believe their right to maintenance at divorce includes only the payment of mehr and possession of assets mutated in her name. This the Shah Bano case sought to alter, making it incumbent upon her husband to pay her monthly allowance for her upkeep.

However, the Muslim Women (Protection of Rights on Divorce) Act, 1986, sought to overturn the judgement, reaffirming the notion that maintenance to the divorcee entailed merely the return of mehr and making provision for her during the iddat period, which corresponds to roughly three months.

The 1986 Act was challenged in the Danial Latifi & Another vs Union of India.

The Supreme Court interpreted the Act creatively to find a way out for Muslim divorcees. It held, “A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period.” This meant a certain amount for the “maintenance” of the divorcee until her remarriage could be fixed.

The Supreme Court’s interpretation of the 1986 Act has had women approach the courts to seek maintenance in excess of the one-time payment of mehr. But do shariat courts, considered an informal mechanism for dispute resolution, recognise and execute the Supreme Court verdict in Danial Latifi? Mahmood says the shariat court in Phulwarisharif, Bihar, has indeed handed out very generous settlements to divorcees who have approached it.

This is decidedly not a universal practice. As Mutfi Noori told this writer, “No, the divorcee is entitled to just mehr and gifts her husband gave her. She or her family should have foreseen the future and fixed a higher amount of mehr at the time of marriage.” This is easier said than done – a demand for a high amount of mehr can become an impediment to her marriage.

Complicating the issue even further is that a large percentage of Muslims prefer to take family matters to the qazis and muftis, both because it is a process infinitely less expensive than going to the courts, and because they believe it is the religiously right course to adopt. The denial of rights to divorce and maintenance to Muslim women arises because of the variance between the judiciary’s interpretation of Muslim Law and that of the mufti and the qazi.

However, there is no difference between them as far as property rights under Muslim Law go.

Property rights under Muslim Law are both hellishly complicated and iniquitous, even though Islam was arguably the first religion to bestow on women a share in ancestral property. It was indeed a radical measure for the seventh century, not so for the 21st century. To begin with, a Muslim can bequeath only one-third of his property. The female’s share is roughly half of that of male. Other relatives of the deceased too have rights to his property. For instance, the mother of the deceased is entitled to a one-third share in case he had no children, but it is reduced to one-sixth in case he had an issue or issues.

The inequitable shares of males and females under Muslim Law have been justified on the grounds that the woman is entitled to a percentage in the husband’s ancestral inheritance as well. But Mahmood and others feel the unequal property right of Muslim men and women is patently unfair. However, nobody quite knows how to overcome this inequity without flouting the sacrosanct Shariat. Perhaps the way out is to have the Muslim couple declare at the time of marriage whether they wish to be governed under secular or Muslim laws.

The debate over property rights apart, there is no denying the pressing need to educate Muslim women on their rights to divorce and maintenance under the personal law governing them. It is because of their ignorance, and perhaps the self-serving orthodoxy of males, they have been denied their just and fair due. It’s time pressure is mounted from inside the community on the mullahs to adjust to the changing times and laws.

(Ajaz Ashraf is a journalist from Delhi. His novel, The Hour Before Dawn, published by HarperCollins, is available in bookstores. Email: ashrafajaz3@gmail.com)