Muslim Personal Law synonymous with the Arabic muamalat, which means rules and regulations of social life
What is meant by Muslim Personal LAW?
Muslim Personal Law synonymous with the Arabic muamalat, which means rules and regulations of social life, or the rules that regulate the day to day life of a person. In other words, the rules that a person should follow in his/her personal and social life are collectively called ‘muamalat‘ or social law. The branch of laws treated as ‘personal law’ in the general legal system is called ‘social law’ in Islamic Shariah. Thus Muslim law means the personal and social laws of Muslims.
Law in Muslim jurisprudence is essentially the revealed will of Allah, a divinely ordained system that guides a Muslim state and control a Muslim community. The Muslim law is not applied by the courts of Bangladesh as a whole, but in some specific areas. The power of the courts to apply Muslim law is derived from and regulated partly by statutes, and mostly by legislation.
In Bangladesh, the rules of Muslim law are applied to succession/inheritance, preemption (in purchase of land), land acquisition, marriage, divorce, maintenance of family etc. To have an idea about the Muslim jurisprudence one must analyze the purposes and operation of the Shariah laws i.e. the laws ordained by Allah that provides guidelines for the judicial and administrative system of the Muslim society. Muslim personal laws consist of laws relating to (a) marriage; (b) maintenance of families and guardianship; (c) inheritance of property; (d) waqf and charity; (e) pre-emptive rights in purchase of land.
ObjectIVES of this work:
The whole work is based on women rights, women’s desires, and women’s obstacles and how much their rights are implemented in their own field & what are the developments of Muslim Personal laws & statutory laws relating to women rights.
So the topic of this research work Reformss of Mulsim Personal Laws Relating to Women Rights in Bangladesh: A Legal Analysis’ enable to get a comprehensive idea over the development of Muslim personal laws regarding the women rights in Bangladesh.
Methodology of this work: imam
A research work may put up by following types of methodology. There have three types of methodology such as (i) historical study, (ii) empirical study or statistical or data base study & (iii) analytical study. Among them I particularly follow the analytical methodology.
Summery of each chapter:
This endeavor is completed by five chapters along with one introductory & one conclusion chapter. Introduction & conclusion are not included within five chapters.
The first chapter of this work generally deals with the concept of women rights. To furnish this chapter I compile some definitions like women rights, human rights, feminism & gender sensitivity. I also provide some international instruments where women’s rights are dealt.
The second chapter is embodied with the Shariah Laws. As we know that our personal laws are dealt with Muslim Personal Laws. The sources of Muslim personal Laws are the Quaran, Hadith, Izma, Kiyas & some other customs. In this chapter the provisions of Shariah Laws are stated according to individual headings. The headings are (i) Women Rights in Marriage, (ii) Women Rights in Dower, (iii) Women Rights in Divorce, (iv) Women Rights in Guardianship, (v) Women Rights in Inheritance, (vi) Women Rights in other aspects.
The next chapter is the third chapter of this work. This chapter is elaborated with two separate headings, one is women rights ensured by the Constitution of Bangladesh & another is women rights ensured by other statutory provisions. In the first phase of this chapter, the provisions stated in the Constitution of Bangladesh regarding the women rights are asserted. Thereafter, in the later phase some statutes those are enforcing in the field of women rights are described.
Subsequently, the forth chapter fulfills the main object of this work, where the legal analysis between Muslim personal law & statutory modifications relating to women rights in Bangladesh is shown.
And finally, chapter five gives a critical analysis regarding the proposed women rights policy in Bangladesh.
CONCEPT OF WOMEN’S RIGHTS
1.1 Meaning of Women’S Rights:
Women’s Rights, rights that establish the same social, economic, and political status for women as for men. Women’s rights guarantee that women will not face discrimination on the basis of their sex. Until the second half of the 20th century, women in most societies were denied some of the legal and political rights accorded to men. Although women in much of the world have gained significant legal rights, many people believe that women still do not have complete political, economic, and social equality with men.
Throughout much of the history of Western civilization, deep-seated cultural beliefs allowed women only limited roles in society. Many people believed that women’s natural roles were as mothers and wives. These people considered women to be better suited for childbearing and homemaking rather than for involvement in the public life of business or politics. Widespread belief that women were intellectually inferior to men led most societies to limit women’s education to learning domestic skills. Well-educated, upper-class men controlled most positions of employment and power in society.
Until the 19th century, the denial of equal rights to women met with only occasional protest and drew little attention from most people. Because most women lacked the educational and economic resources that would enable them to challenge the prevailing social order, women generally accepted their inferior status as their only option. At this time, women shared these disadvantages with the majority of working class men, as many social, economic, and political rights were restricted to the wealthy elite. In the late 18th century, in an attempt to remedy these inequalities among men, political theorists and philosophers asserted that all men were created equal and therefore were entitled to equal treatment under the law.
Before the Industrial Revolution most people worked in farming or crafts-making, both of which took place in or near the home. Men and women usually divided the numerous tasks among themselves and their children. Industrialization led male workers to seek employment outside of the home in factories and other large—scale enterprises. The growing split between home and work reinforced the idea that women’s “rightful place” was in the home, while men belonged in the public world of employment and politics.
1.2 WOMEN RIGHTS AND HUMAN RIGHTS:
Any right of human being is centered on liberty. The modern concept of liberty had its origin, development and practice in Britain. This we can see to have resulted mainly from the Magna Carta 1215, petition of Rights 1628, Bill of Rights 1628, Act of settlement 1701,Habeas Corpus Act 1679 Independence 1776 and American Bill of Rights 1791 and the French Declaration of Rights of Man 1789 in which liberty, equality and fraternity acquiesced later in human rights realm.
Old age and disability have a substantially negative impact on the lives of women. Women face discrimination, intimidation, harassment, torture and physical abuse not simply from State organs but also from their own family and other private institutions. A major problem which has led to a negative impact on the position of women is the reluctance of intentional human rights laws to intervene in what is perceived as private (as opposed to public) matters. Attempts to combat discrimination and violence against women in the private domain have been met with substantial opposition. Intrusion into private and family life is not view as a desirable undertaking for legal establishments. Such an intrusion is seen as contrary to the social, cultural and religious values prevalent in many societies. Within the sanctity of the home, women in many parts of the world are regularly subjected to mental and physical violence or sexual abuse, such as incest, rape, dowery deaths, wife battering, genrtial mutilation, prostitution and forced sterilization. In these social structure women have to undergo a persistent cycle of rejection, subordination and shame. Disabled women, as the Committee on Economic, Social and Cultural Rights has noted, suffer from double discrimination.
It is encouraging to mote that the United Nations has undertaken positive steps to combat discrimination and violence against women in both the public and private domains. The United Nations Convention on the Elimination of All Forms of Discrimination against women, the primary focus of this chapter, prohibits discrimination in any other field. At the same time it is important to note that difficulties have arisen in enforcing the norm of non discrimination on the domestic sphere.
1.3 Feminism and Human Rights:
British suffragist and journalist Rebecca West famously said, “Feminism is the radical notion that women are people.” In other words, feminism is a commitment to achieving the equality of the sexes. This radical notion is not exclusive to women: men, while benefiting from being the dominant sex, also have a stake in overcoming the restrictive roles that deprive them of full humanity.
Though the media has maligned feminism as a drive for selfish fulfillment by female professionals, those who stand to gain the most are actually those who have the least. The demand for full equality for all women is profoundly radicalizing when it addresses the additional layers of discrimination women experience because of class, race, sexuality, disability, and age, and also the heightened impact on women and children of war, poverty and environmental degradation. Multi-issue feminism quickly develops into a critique of the whole social system. As Clara Fraser, the pioneering theorist and builder of socialist feminism, wrote, “The logic of feminism is to expand into generalized radicalism.”
The term “Human” includes both male & female and human rights talks for the rights of male & female. Feminists work to achieve & protect the rights of female. It is to be mentioned here that the female part of human beings are suppressed as well as oppressed for the long period even till to date they are continuing their battle for getting equal human rights in every sphere of social life.
So, there is a relationship between feminism & human rights. ‘Human rights’ is a broad meaning than the feminism but the feminist not only activate for their own but also they claim equal human rights.
1.4 International standard of women rights:
Since UDHR several instrument of international concern on right of women have come into being. Those instruments are such as:
1. Convention on the Political Right of Women,1952:
It embodies 11 Articles “…. right to take part in the government of his country directly or through freely chosen representatives” in light of UDHR (Art 21) has been made the basis of this Convention. Women shall be entitled to vote in all election in an equal footing with men. This is the first convention adopted by the United Nations specifically dealing with women.
2. Convention on the Nationality of Married Women, 1957:
It contains 12 Articles. On the aspect of the right to nationality of married women each contracting state in view of Article 15 of UDHR agree that neither the celebration nor the dissolution of marriage between one of its nationals and an alien shall automatically affect the nationality of the wife.
3. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 1962:
It consists of 10 Articles. Taking Article 16(2) of UDHR it was enshrined in this convention that no marriage shall be legally entered into, without the full and free consent of both parties, such consent to be expressed by them in person after authority competent to solemnize the marriage and of witnesses as prescribed by law. State parties shall specify a minimum age for marriage. All marriages shall be registered.
4. Declaration on the Elimination of Discrimination against Women, 1967:
It contains 11 Articles. The declaration represents a general pronouncement of the United Nations policy in regard to equality of rights of men and women and the elimination of discrimination based on sex.
5. Declaration on the Protection of Women and Children in Emergency and Armed Conflict,1974:
It consists of 6 clauses. Women and the Children in the circumstances of emergency and armed conflict shall not be derived of shelter, food and medical aid or other traditional rights as per UDHR including ICCPR and ICESCR and Declaration of the Rights of Child or other instruments of international law.
6. Convention on the Elimination of All Forms of Discrimination against Women, 1979:
It contains 30 Articles. Although it is not convention to with women right, it is the first universal instrument to address the issue of discrimination.
7. Declaration on the Elimination of Violence Against Women,1993:
The Declaration includes a clear definition of violence as being physical, sexual and psychological violence occurring in the family or the community and perpetrated or condoned by the state.
8. The Convention on the Elimination of All Forms of Discrimination against Women:
In 1993, although the Vienna Declaration and Programme of Action confirmed that the rights of women and the girl child are ‘inalienable, integral and indivisible part of human rights it did not elaborate on what constituted the human rights of women and the girl child. Detailed explanation of discrimination against women first appeared in the CEDAW, adopted by the UN General Assembly on l9December 1979. The Convention has 30 articles in all out of which Articles 1 to 16 relate to different aspects of equal status of women and the law, while Articles 17-30 deal with committee procedures including the formation of the committee and reporting by it. It is a comprehensive document binding state parties with the legal duty of eliminating all forms of discrimination against women in civil, political, economic, social and cultural contexts. Article 1 of the Convention states:
“…discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
The Convention not only provides principles of equality between men and women in all spheres of life but also encourages state parties to reform existing legislation, which are contrary to women’s human rights. Since the principal emphasis is on de facto rather than de jure equality between men and women, the ratification of the Convention requires state parties to promulgate principles for the effective implementation of the Convention in order to remove existing discriminatory treatment on the basis of gender.
Margaret Fuller, one of the greatest exponents of women’s cause had written:
For human beings are not so constituted that they can live without expansion, we would have every arbitrary barrier thrown down. We would have every path laid open to women as freely as to men. What women needs is not as a woman to act or rule, but as a nature to grow, as an intellect to discuss, as a sole to live freely and unimpeded to unfold her power.
It is recognized that all around the world women have a relatively lower status economically, politically and socially’.
A Women’s status is reflected in the authority and power she holds within the family by, and/or prestige she commands from the other members of the family and the community.
The United Nations has defined the status of women as the conjunction of position a women occupies as a worker, student, wife matter of the power and prestige attached to this position and of the rights and duties she is expected to exercise.
After the Second World War in 1948 the United Nations Organization adopted the ‘Universal Declaration of Human Rights” where the equality of rights of women and men was explicitly declared. The preamble to the said declaration affirms the principle of equality and the inadmissibility of declaration proclaiming that all human beings are born free with equal rights and equal dignity.
In the context of human rights, women’s fundamental human rights are frequently violated for instance; violence against women is a common occurrence all over the world. It has no social, economic or racial barriers. Gender violence, i.e. violence against women is defined very broadly to include intent of perpetuation/promotion of hierarchical gender relations in all social structures; family, community, work place and society. Gender violence is an obstacle to the achievement of equality, development and peace.
To remove the barrier the UN General Assembly adopted the “Declaration on the Elimination of violence against women, where the ‘violence against women’ means any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or sufferers to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”.
So violence could be anything beginning from verbal abuse to physical torture and even death.
RIGHTS OF WOMEN AS PRESERVED UNDER ILO CONVENTIONS:
1. Convention Concerning Employment of Women during the Night.
2. Convention Concerning the Rights of Association and Combination of Agricultural workers.(Convention No—11) on No.—29)
3. Convention Concerning forced or compulsory lab our. (Convents
4. Convention Concerning the Employment of Women on Underground work in Mines of all kinds. (Convention No.—45)
5. Convention concerning freedom of Association and protection of the right to organize. (Convention No.—87)
6. Convention Concerning night work of women employed in Industry. (Revised1948). (Convention No.—89)
7. Convention Concerning Discrimination respect of Employment and occupation. (Convention No.—1 11)
8. Convention Concerning equality of Treatment of nationals and non-nationals in social security. (Convention No.—l 18)
9. Convention Concerning Employment and conditions of Work and life of nursing personnel. (Convention No.—149)
1. Convention Concerning Employment of Women during the Night:
This convention consists 14 Articles, Article 3 is the major relating provision of this convention which provides that, Women without distinction of age shall not be employed during the night in any public or private industrial under-takings or in any branch thereof, other than an undertaking in which only members of the same family are employed.
2. Convention Concerning the Rights of Association and Combination of Agricultural workers:
This convention consist 9 Articles and Article 1 is major relating provision of this convention which provide that, Each member of the International Lab our Origination which ratifies this convention undertakes to sure to all those engaged in agriculture the same rights of association and combination as to industrial workers, and to repeal any statutory or other provisions restricting such rights in the case of those engaged in agriculture.
3. Convention concerning forced or compulsory lab our:
This convention consists 13 Articles and Article, 2 is major provision which provide that, (1) For the purpose of this convention the term forced or compulsory lab our shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
4. Convention Concerning the Employment of Women on Underground work in Mines of all kinds:
This convention consist 3 Articles and the Article 2 is major provision which provide that, No female, whatever her age, shall be employed on underground work in any mine.
5. Convention concerning freedom of Association and protection of the right to organize:
There are 11 Articles in this provision and Article 5 and 11 are the major provision provided that, Workers and employers organizations shall have the right to established and join federations and confederations and any such origination, federation or confederation shall have the right to affiliate with international origination of workers and employers.
Each Members of the International Lab our Origination’s for which this convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize.
6. Convention concerning night work of women employed in Industry:
This provision has 8 Articles and Article 3 is the major provision is provided that, Women without distinction of age shall not be employed during the night in any public or private industrial undertaking, or in any branch thereof, other than an undertaking in which only members of the same family are employed.
7. Convention Concerning Discrimination respect of Employment and occupation:
There are 14 Articles and Article 2 in consist of this provision is provided that, Each member for which this convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect there of.
8. Convention concerning equality of Treatment of nationals and non-nationals in social security:
This provision are 14 Article and Article 1 is provides that, Each Member may accept the obligations of this convention in respect of any of more of the following branches of social security for which it is has ineffective operation legislation covering its own nationals within its own territory:
(i) Medicinal care, (ii) Sickness benefit, (iii) Maternity benefit, (iv) Invalidity benefit, (v) old-age benefit, (vi) Survivors benefit, (vii) Employment injury, (viii) Unemployment benefit, (ix) Family benefit.
9. Convention Concerning Employment and conditions of Work and life of nursing personnel:
There are 9 Articles in this provision and Article 1 and 2 is consist that, For the purpose of this convention, the term nursing personnel includes all categories of persons providing nursing care and nursing service. This convention applies to all nursing personnel, wherever they work..
1.5 gender sensitivity:
GENDER SENSITIVITY means taking women and men seriously:
SEEING – women and men, what they actually do, rather than relying on assumptions.
HEARING – women and men, their needs, priorities and perspectives.
COUNTING – the value of women’s work.
RESPECTING – women and men’s views and human rights.
CARING – about women and men and what happen to them through development programs.
Otherwise Gender Sensitivity is a frame of mind, a set of attitude and the way we approach whatever we do in our intimate relationships, in our work, in our everyday transactions with the outside world;
– Not a war of the sexes
– Not an anti-male
– Both women and men are victims, although women are affected more than men.
In practically all cultures women have a lower status than men.
What is Gender?
Gender is a dynamic concept that looks at the system formed by the interrelations between men and women in the context of society.
Gender socially determined characteristics, models of behavior and roles that are taught to us through socialization. Gender role assigned to men and women based on their gender.
Social Institutions – family, education, religion, media & state assigns characteristics to be associated with women and men, influence gender role socialization & served as mechanism that maintain gender roles.
Why is gender a development issue?
In the areas of reproduction, production, and the community-women have often been adversely affected by the development process. There is a wide gap bet. Women’s high yet unrecognized, economic participation and their low political and social power.
‘’A very important point is that the woman’s share in labour was of much more vital importance to the maintenance of the household than the man’s work . . . even the food supply contributed by the women was far more important than the man’s share . . food collected by the women was the staple food of the natives . . . economically the family is entirely dependent upon women’s work..
Although the principle of equality of men and women were recognized in the UN Declaration of Human Rights, the majority of development planners and workers did not fully address women’s position in the development process. The ways of defining women’s position in development has changed through the years.
1992 – World Health Assembly
1994 – International Conference on Popn. & Devlpt ( ICPD )
1995 – Fourth World Conference on Women in Beijing
In 1994, the Phils responded to the call and were committed to uplift the status of women in all aspects of society especially in improving her health and well-being.
Distinction between Sex & Gender:
|1. Biological Dimension||1. Socio-Cultural Dimension|
|– Reproductive parts:
(i) internal (ii) external
|2. Relatively fixed from birth||2. Learned|
|– Gender of rearing|
|– Gender identity|
|– Gender role|
|3. Universal||3. Variable across age and time|
|4. Variable across culture|
|Born with||Socially constructed|
|Cannot be changed||Changeable|
|– Only women can give birth||– Women can do traditionally male jobs|
|– Only men can produce sperm||– Men can take good care of children|
WOMEN RIGHTS ENSURED BY ISLAM
2.1 Women’s rights within the Islamic context:
The approach to protection of women’s rights in Islam is best demonstrated by reference to the web of family relationships, which encompasses a range of reciprocal rights and obligations.
Reciprocity is the key to understanding how the system is framed and, we are convinced, is also the key to formulating a robust framework for protecting women’s rights in Muslim society. From this perspective women’s rights should not be seen as stand-alone claims made by women, but as claims arising from a system of mutual rights and obligations guaranteed by both religion and law.
Women’s rights in general are not unreciprocated burdens placed on society, or gratuitous favours done to them, but compensatory gestures arising from an equitable distribution of claims and burdens within the society. An example which clearly highlights this principle of reciprocity is the husband-wife relationship, the underlying principles of which are described in the Qur’an in terms of mutual respect, security, and compassion, all demonstrative of Allah’s signs understood only by ‘those who reflect’.
Islamic law assigns rights and duties to both the husband and the wife: that is to say the rights of the wife are the husband’s duties, and her corresponding obligations are his rights in relation to her. The Qur’an says women have rights even as they have obligations according to what is equitable. Among the obligations of the wife the Qur’an mentions devout obedience, and conscientious guarding of her chastity. Her main obligation is to contribute to the success of the marriage, taking care of the comfort and wellbeing of the husband, avoiding conduct that may offend him. The husband is required to discharge the reciprocal obligations of loving and caring for his wife, treating her well and providing for her needs such as food, clothing and shelter.
It should be noted that the mutual rights and obligations of the husband and wife in particular, and of the family members in general, are not mere private concerns of the individual marriage partners or individual members of the family. They are also the concern of society as a whole, because the protection of the family relationship, which in turn ensures the sustenance of human progeny, is identified by Muslim scholars as one of the fundamental goals of Islamic law.
The progress, well-being and continuity of human society depend on how far the lights and duties relating to the family relationship are respected and protected. Consequently the mutual expectations of family members, in terms of rights and obligations, which pertain to a variety of issues such as lineal identity, maintenance, succession, affection and socialization of the young, security for the aged and maximization of effort to ensure the family’s continuity and well-being, are reinforced and complemented by the values and norms of the larger Muslim community. This in essence means that striving to protect the rights accorded to women, while they in turn discharge their duties, is one of the obligations imposed by God on all members of Muslim society.
It is useful to understand this context of family relationships in the form of reciprocal and mutual rights and obligations, and the ennobling of these relationships in Islam through law, morality and a sense of social responsibility as we proceed to examine in detail the various practices which relate to the rights of women.
2.2 Women Rights in Marriage:
In Islam, marriage involves legal, social and religious matters. Marriage is a contract, which permits wedlock and procreation and gives legal recognition of the parenthood of children. According to a verdict given by Justice Mahmud, “Muslim marriage is not a sacrament; it is absolutely a civil contract”. The essential terms and conditions of Muslim marriage are: proposal and acceptance; eligibility for the marriage contract; presence of two witnesses; utterance of the proposal and acceptance in the same sitting; and absence of impediments. Marriage has four purposes: (a) formal recognition of conjugal relationship of men and women and refraining them from adultery; (b) expression of love and cordiality between men and women in a sacred way; (c) maintenance and protection of a family; and (d) formation of a family.
According to the provisions of the holy quran, a person can not marry his mother, daughter (and her offspring), sister, aunt, niece, foster-mother, foster-sister, and mother-in-law. A person also can not marry two sisters at a time. It may be mentioned that a Muslim male can marry a ‘kitabia woman’ (follower of ahl-e-kitab), but a Muslim woman cannot marry a non-Muslim.
Shariah gives as a condition for the permission to marry more than one wife the ability and willingness to do justice between co-wives.
The Qur’an says, ‘Marry women of your choice, two or three or four, but if you fear that you shall not be able to deal justly with them, then only one . . .’
Dealing justly with co-wives means not showing any preference for one over the other, sharing your time equally between them and providing for them equally. Non-provision of amenities or conjugal desertion is grounds for divorce because they constitute cruelty and ill-treatment.
The Prophet (SAW) is reported to have said that anybody who openly shows preferential treatment of a wife over another will be raised on the Day of Judgment with half of his body paralyzed. The Prophet used to say, after distributing his time and provisions among his wives, ‘God, this is what I can do over what I can control. As for that which I have no control over, I believe I will not be taken to task.’ The Jurists unanimously agree that the justice demanded by Sharia among co-wives is justice that is determinable and objective, rather than immeasurable things such as emotional feelings.
2.3 Women Rights in Dower:
Dower (Mahr)a symbol of honour offered by a bridegroom to the bride. According to Islamic Shariah, marriage is a legal bondage and dower is the most important among its terms and conditions. Islam declared dower as the honorarium paid by the husband to his wife for making the conjugal relationship legal.
It said in the Quran that, “pay mahr as a farz (obligatory) to your wives for the pleasure you get from them”. The reasonable amount of dower is determined on the basis of financial solvency of the husband and the social status of the wife. The Prophet Muhammad (Sm) said, “The best amount of mahr is that which can be paid easily. According to the Hanafi school of thought, the minimum amount of mahr is ten dirham.
2.4 Women Rights in Divorce:
The Arabic for divorce is talaq, which means repudiation. The morphological root of the word implies releasing a wife or freeing her from the bondage of marriage. According to Muslim Shariah, divorce can be implemented in any of the following ways: (a) by the husband at his will or by mutual consent of the wife and the husband without the intervention of a court; and (b) by a decree of the court on the lawsuit filed by the husband or wife. The divorce made by the husband at his will is called talaq; when it is effected by a mutual agreement on terms and conditions, it is called khula or mubarrat.
Shariah requires that following divorce, for a certain number of months in which the wife is serving the iddah (waiting period), the husband must continue to maintain her in all respects as if no divorce had taken place. It is unlawful to ask her to leave the matrimonial home during that period.
Allah says in the Qur’an, ‘O Prophet, when you do divorce women, divorce them at their prescribed periods . . . and fear Allah your Lord and turn them not out of their houses, nor shall they leave except in case they are guilty of some open lewdness . . . When they fulfill their term appointed, either take them back on equitable terms or part with them on equitable terms . . .’
Allah also specifically instructs that the husbands ‘shall bear the cost of their feeding and clothing on equitable terms . . .’
The Shariah recommends that beside the legal entitlement of the wife, she should be given a parting gift known as mutual. Allah says, ‘. . . bestow on them [divorced women] a suitable gift, the wealthy according to his means and the poor according to his means, a gift of a reasonable amount is due from those who wish to do the right thing.’
All the Jurists agree that a divorced wife can sue and successfully recover withheld entitlements from the divorcing husband. Divorce in Islam is relatively easy and formally simple. Its revocability is also easy and formally simple. There are also various grounds and mechanisms to dissolve a marriage and there are various alternatives for redeeming it. Contemporary Muslim scholars concentrate on the Sunnah or orthodox method of divorce as the ideal moral solution for the Muslim community while they condemn the unapproved types (bridal) as deviations and unacceptable. It is also true that Islam recognizes the right of each party to seek and acquire the dissolution of an unsuccessful marriage.
The ease with which it can be done is also an avenue for frivolous people with questionable moral credentials to resort to misusing the right to divorce as a license for engaging in multiple marriages and changing women as frequently as they wish. The Prophet condemned this practice when he said, ‘God has cursed that man who divorces so often’. The State can always put restrictions on an individual’s right to exercise his freedom of choice when harm is occasioned on others.
Khul’ divorce at the instigation of women
Among the forms of divorce, one of the frequently used methods by which women do terminate marriage is khul’. This is a Shariah process where, if the woman desires a separation for any reason and the husband will not pronounce a talaq, the wife offers to pay back some property, mostly the dowry that the husband paid her during marriage. Thereafter, she becomes separated from him, irrespective of his wishes. This form of divorce affords women an opportunity to terminate an unsatisfactory marriage without much difficulty. However, Shariah does not oblige the husband to provide any maintenance for the upkeep of the wife following this kind of divorce, but her rights to custody or to custody allowances are not affected.
This method of divorce is widely used by Muslim women. In comparison, due to its lack of formality talaq is been the most prevalent method of bringing a marital relationship to its end. However, khul’ seems to be the most popular of all methods of divorce available to women, perhaps because the standard of proof is low.
Other grounds on which the Qur’an has provided relief to women are:
This is where a husband accuses his wife of adultery but he has no witness except himself. This can take the form of denying responsibility for her pregnancy.
(ii) Ila (vow of continence):
This is where the husband for reasons best known to himself vows not to approach his wife for an unspecified period. The Qur’an gives him up to a maximum of four months to go back to her or consider the marriage terminated.
(iii) Zihar (injurious dissimulation):
This is a customary Arab practice where, to humiliate the wife, the husband contrives to avoid her by comparing her to his mother. The Shariah requires that whoever after doing this wishes to go back to his wife must expiate by either freeing a slave, or fasting for two consecutive months or feeding 60 needy people. His delay in doing the expiation entitles the wife to divorce.
(iv) Forceful denial of post-divorce custody:
Shariah categorically gives custody of minor children to the mother: girls until they marry and boys until they reach the age of puberty and discretion. This ruling is based on the case that was brought before Caliph Abubakar by a grandmother challenging the attempt of Umar to take his child away from her. Caliph Abubakar decided in her favour adding that, ‘The hugs and kisses of that old woman to the child are more important and valuable than whatever material wealth you can offer the child’. This provision of Shariah, besides granting rights to the wife, has the additional benefit of placing restraint on indiscriminate divorce. In effecting a divorce the husband has to consider the unpleasant prospect of losing custody of the children.
Muslim Jurists unanimously agree that custody of young children is rightly in the hands of the mother and her relatives. In the order of priority outlined in Shariah, the father is fifth in line of eligibility to custody. So far, from all the known cases, the courts have unhesitatingly given custody to the mothers.
(v) The custody of children after divorce:
Shariah makes it the duty of the father to provide maintenance and education for his children. In fact Sharia insists that the father must pay for a nanny or domestic help to cater for his children where such services are needed.
According to the Law, the divorced mother is entitled to be paid specifically for suckling the child of a husband who divorces her.
‘. . . and if they [divorced wives] suckle your offspring, give them their recompense. And take mutual counsel together, according to what is just and reasonable. And if you find yourselves in difficulties, let another woman suckle the child on the father’s behalf.’
Allah also says,
‘The mothers shall give suck to their offspring for two whole years, for him who desires to complete the term. But he shall bear the cost of feeding and closing on equitable terms, no soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child nor father on account of his child. An heir shall be chargeable in the same way. If they both decide on weaning by mutual consent, and after due consultation, there is no blame on them. If you decide on a foster-mother for your offspring, there is no blame on you, provided you pay the foster-mother what you offered on equitable terms. But fear Allah and know that Allah sees well what you do’.
2.5 Women’s Rights in Maintenance:
Maintenance includes food, clothing and lodging. It also includes the expenses required for ensuring the mental and physical well being of a minor that suits his/her social status. Educational expenses are also included in maintenance. The following five classes of persons have the right to claim maintenance: infants and unmarried daughters, grown up children, parents, grand-parents, and wife.
It is against the basic principle of Islam to marry knowing full well that one cannot maintain a wife. The directive of the Prophet is to the effect that ‘O young people! Whoever has the wherewithal should get married. Those who do not should fast because fasting suppresses sexual urge.’
Maintenance under Islamic law includes not only basic necessities such as accommodation, food and clothing, but also the provision of all items required by a wife to live decently. The Qur’an says, ‘Let those who find not the wherewithal for marriage keep themselves chaste, until God gives them means out of His grace.’
On the obligations of maintaining a wife the Qur’an says, ‘Let the women live in the same style as you live, according to your means. Annoy them not so as to restrict them . . . Let the man of means spend according to his means . . .’
Qur’an says “Men are the protectors and maintainers of women because Allah has given the one more (strength) than the other and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in (the husband’s) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct admonish them (first) (next) refuse to share their beds (and last) beat them (lightly); but if they return to obedience seek not against them means (of annoyance): for Allah is Most High Great (above you all).”
2.6 Women Rights in Inheritance:
Under Shariah, no one can deprive a woman of her share in the estate left by her parents or close relatives. ‘There is a share for men and a share for women from what is left by a parent and those nearest related, whether the property be small or large – a legal share.’
“Allah (thus) directs you as regards your children’s (inheritance): to the male a portion equal to that of two females: if only daughters two or more their share is two-thirds of the inheritance; if only one her share is a half. For parents a sixth share of the inheritance to each if the deceased left children; if no children and the parents are the (only) heirs the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah and Allah is All-Knowing All-Wise.”
“In what your wives leave your share is a half if they leave no child; but if they leave a child ye get a fourth; after payment of legacies and debts. In what ye leave their share is a fourth if ye leave no child; but if ye leave a child they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question has left neither ascendants nor descendants but has left a brother or a sister each one of the two gets a sixth; but if more than two they share in a third; after payment of legacies and debts; so that no loss is caused (to anyone). Thus is it ordained by Allah and Allah is All-Knowing Most Forbearing.”
2.7 Women Rights in other aspects:
(i) Early and forced marriage:
It is true that some parents force their children to marry husbands of their parents’ choice. This practice still persists in some parts of Northern Nigeria. Parents who do this rely on the jurisprudential ruling of Imam Malik to the effect that a father may compel his previously unmarried daughter to marry a man he chooses for her. The right of compulsion, where it exists, can only be exercised by the father, who is also qualified to be a guardian on the assumption that his care and compassion for his daughter are ordinarily taken for granted. This fatherly power is known as ijbar.
Public morality and the individual’s own integrity take priority over personal freedom when they come into conflict.
(ii) Abuse and violence against the girl-child:
First, Shariah rejects any form of injustice. Even the practice of showing preference among co-wives is highly condemned. It is unlawful under Sharia to mistreat and abuse one’s children, who are seen not only as gifts but also as a trust from Allah. Any kind of abuse is prohibited. Beating one’s child lightly as a means of correction once he or she has reached the age of discernment may be tolerated provided there is no physical harm to the child. The only instance reported from the Prophet (SAW) in which he sanctioned beating children lightly for the purposes of correction is where he said ‘Command your children to pray at the age of seven and beat them (to compel them to do it) at the age of ten.’
(iii) Equal Preference for the child:
The Prophet Muhammed (SAW) not only praised the parents who successfully raise a daughter to puberty, but categorically stated that ‘any person who raised and catered for three girls will be admitted to Paradise’. A lady asked ‘what about two?’ He replied ‘even two’. Another lady asked ‘what about one?’ He replied ‘even one.’
The Qur’an condemns the behaviour of those parents who show preference for a male child over a female child. It also prohibits the ugly and barbaric practice of the Jahiliyya Arabs of burying alive a female child in the name of saving the family honour. The Qur’an says, ‘When news is brought to one of them of the birth of a female child, his face darkens, and he is filled with inward grief with shame does he hide himself from his people, because of the bad news he has had. Shall he retain it on sufferance and contempt or bury it in the dust? Ah! What an evil choice they decide on?’
The Prophet (SAW) said ‘Do justice among your children’ by not preferring one over the other. He also said ‘fear Allah and treat your children with equality and justice.’ A Muslim is required to believe in line with the Quranic provision that children are gifts from Allah and it is He who decides whether to give one a male or a female child. The Qur’an states:
‘To Allah belongs the kingdom of the heavens and the earth. He creates what He wills, He bestows female (offspring) upon whom He wills and bestows male (offspring) upon whom He wills. Or He bestows both males and females and He renders barren whom He wills. Verily He is the All-knower and He is able to do all things.’
(iv) Equality in feeding boys and girls:
In Islam, more value is attached to the upbringing and care of daughters to the extent that the Prophet (SAW) expressly guaranteed paradise for successfully bringing up daughters.
(v) Exploitation and abuse of wives:
Shariah prohibits all kinds of abuse and exploitation. The Prophet (SAW) is reported to have said ‘You should not harm anybody, nor should you be harmed.’ ‘You are not a true believer until you love for your brother (Muslim) what you love for yourself.’
Islam not only condemns maltreatment of wives but goes further to require the husband to be loving and compassionate to his wife, to the extent that the Prophet (SAW) says ‘the best among you in the sight of Allah is the best to his family.’
‘. . . and live with them [your wives] honorably. If you dislike them it may be that you dislike a thing and Allah brings through it a great deal of good.’
On the issue of abuse arising from polygyny, Shariah has laid down conditions and specific rules to ensure justice is done to all wives. These conditions include the ability to provide for wives adequately and to treat them equally. Shariah gives as a condition for the permission to marry more than one wife the ability and willingness to do justice between co-wives.
The Qur’an says, ‘Marry women of your choice, two or three or four, but if you fear that you shall not be able to deal justly with them, then only one . . .’ 
Dealing justly with co-wives means not showing any preference for one over the other, sharing your time equally between them and providing for them equally. Non-provision of amenities or conjugal desertion are grounds for divorce because they constitute cruelty and ill-treatment.
The Prophet (SAW) is reported to have said that anybody who openly shows preferential treatment of a wife over another will be raised on the Day of Judgment with half of his body paralyzed.
The Prophet used to say, after distributing his time and provisions among his wives, ‘Allah, this is what can do over what I can control. As for that which I have no control over, believe will not be taken to task.’ The Jurists unanimously agree that the justice demanded by Shariah among co-wives is justice that is determinable and objective, rather than immeasurable things such as emotional feelings.
(vi) Heavy and discounted domestic chores:
Under Shariah, both the husband and the wife have rights and duties. It is interesting to note that to most Jurists domestic chores are not part of the duties or obligations of a wife of an Islamic marriage. It is, however, recommended that she carries out her duties and tasks of her own volition in the interests of good companionship, and that the husband reciprocates by showing appreciation as a division of labour between them. It is also highly recommended in line with the practice of the Prophet (SAW) that husbands should assist their wives with domestic work. This corresponds with the report that the Prophet (SAW) used to assist his wives with their routine domestic tasks. Muslim Jurists are of the view that where the husband can afford it, he should supply domestic help for the wife. This is include