Introduction

Freedom of religion' does not mean that every person can do what he feels under the veil of the
religion. It does not mean that the religion is uncontrollable, unfettered. The framer of the Constitution
provided some restriction on the freedom of religion, so that the valuable right of freedom of religion
may not be misappropriated. The Constitutions of the democratic States guarantee freedom of
conscience and the right to manifest one’s religious beliefs in overt ways. But this freedom is to be
ensured in a balanced manner so as not to endanger the security and wellbeing of the society, the
maintenance of which is the prerogative of the State for the proper growth and progress of the people.
Hence, Constitutions provide also the power to regulate and even to restrict this freedom. The manner
and various reasons under which religious freedom comes under State restriction in India will be
discussed in research paper

Justice is a very complex concept, as it has a number of sources and dimensions. It has been
examined by different people from different viewpoints within the limits of time, place and
circumstances they lived in. Its greater emphasis is on the principle of equality, both social and
economic, and fraternity with a view to create such human social conditions that ensure free and
fair development of all human beings.

Many social practices that reflect social inequalities hide behind the cover of religion. Personal
laws, under British administrators were drawn from diverse sources. It reflected the gender
prejudices of its times since the interpreters of “religion” have been mostly men. The process of
reforming regressive practices also began during the British rule. Reformers ended practices like
Sati and child marriage. Conservative sections in the society opposed these reforms and insisted
that these be preserved in the name of “defense” of religion. There is a rising people’s movement
within the community to get rid of various forms of Talaq. There has also been a conspicuous
silence among lawmakers around the most abused practice of ‘Nikkah Halala’, which requires a
woman to marry and have sex with another man before she can remarry a man who has divorced
her thrice. The idea is not to essentialise Islam or any other faith –but to remove the orthodoxy of
all religions and cultures which are tilted against women, girls and often children there must be
special law to protect the rights and also the powerful ruling of the highest court to give them a
binding effect.
Many times Indian women are not aware of their legal rights and many times their legal rights
are not protected as described in the laws. But if a woman in India is bent on getting justice and
protection of her rights then Indian laws permit to get her justice and protection through laws,
administration and if need be the judiciary. But in practice it is observed that Indian women do
not usually take advantage of these laws to her benefit to protect her rights. Marriage is a
religious duty of every Muslim and it is considered to be a moral safeguard and a social need.
The Prophet has also said “Marriage is my tradition whosoever keeps away there from is not
from amongst me.”

In Islam divorce is regarded as the unhappy aspect of the institution of marriage in Muslim law
and ‘with Allah, the most detestable of all permitted thing is Divorce. In Islam Divorce is
considered as an exception to the status of marriage. The Prophet, who is head of the community,
affirmed that all the things that have been permitted under the law, the worst is divorce. He treats
it as an evil and suggests everyone to avoid it as far as possible. But in some situations, it
becomes a necessity where living together is not possible. It is better to separate from the spouse
rather than to be in a surrounding full of agony and abhorrence. But, the basis of divorce in Islam
is the inability of the spouse to live together for a genuine reason due to living together is
impossible. There are provisions guaranteed under the Islamic law to get divorce from both the
side of husband and wife. The term ‘talaq’ means repudiation or simply divorce. But in Islam,
the husband only has the right to get divorce through the method of talaq and the wife by the
judicial orders from the court.

Indian Muslim women are subject to the interface between gender and community within the
Indian social, political and economic context. Stereotypes of Muslim Women, entrenched by the
trinity of multiple marriages, triple talaq and Purdah have held them hostage for so long that they
have become difficult to dislodge. The path-breaking decision of the Supreme Court upholding
the constitutional validity of the controversial Muslim Women’s Act is an interesting study of the
issue of gender justice. The present article would try to locate crucial issue relating to divorce
and maintenance (i.e. Muslim Women’s Act 1986) that need to be foregrounded to galvanise
Muslim Women’s struggle for justice and equality and discuss various possibilities as well as
hurdles in the path of evolving alternative discourses. Women had to fight every inch of the way
due to the ambiguities caused by callous drafting. The Act provided ample scope to husbands to
exploit the situation which led to protracted litigation beneficial to husbands and a nightmare to
women. But women withstood the ordeal with courage and determination, with patience and
perseverance. After a decade and a half, the end result of this persistent struggle are clearly
visible. The positive interpretations have ushered new era of protection of rights within the
established principal of Muslim law, but still many changes in MPL is yet to come. Now is the
right time for Muslim intelligentsia to come up to campaign for their womenfolk of their basic
right to survival.

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract. Marriage is necessary for the legitimization of a child. When the marriage is
done in accordance to the prescribed norms it creates various rights and obligations on both the
parties. It appears that Islamic law of marriage and divorce is not identical to the man made laws
which are changed by man himself moment after moment. It is evident that the position of man
and woman in the social set up of the community, is equal inevery respect, but keeping in view
the mindset of both the genders, Islam segregates the rights, duties and functions of both the gender and
then declares their status with regard to family matters.

Many social practices that reflect social inequalities hide behind the cover of religion. Personal
laws, under British administrators were drawn from diverse sources. It reflected the gender
prejudices of its times since the interpreters of “religion” have been mostly men. The process of
reforming regressive practices also began during the British rule. Reformers ended practices like
Sati and child marriage. Conservative sections in the society opposed these reforms and insisted
that these be preserved in the name of “defense” of religion. There is a rising people’s movement
within the community to get rid of various forms of Talaq. There has also been a conspicuous
silence among lawmakers around the most abused practice of ‘Nikkah Halala’, which requires a
woman to marry and have sex with another man before she can remarry a man who has divorced
her thrice. The idea is not to essentialise Islam or any other faith –but to remove the orthodoxy of
all religions and cultures which are tilted against women, girls and often children there must be
special law to protect the rights and also the powerful ruling of the highest court to give them a
binding effect.
Courts interpret law and evolve justice on such interpretation of law. It is in the domain of the
legislature to make law. Justice has become elusive for Muslim women in India not because of the
religion they profess, but on account of lack of legal formalism resulting in immunity from law. Law
required to be aligned with justice. The search for solution to this predicament lies in the hands of the
law makers. It is for the law makers to correlate law and social phenomena relating to divorce through
the process of legislation to advance justice in institutionalized form. It is imperative that to advance
justice, law must be formulated without any repugnance to the religious freedom guaranteed under the
Constitution of India. It is for the State to consider the formulation of codified law to govern the matter.
Therefore, I conclude by drawing attention of those who resist any form of reform of the divorce law of
Muslim community in India to the following verses of Holy Quran.

Supreme Court

in India, courts
are considered as a temple of justice as well as the custodian of constitutional values by the
common people. Court room is a space where domination and oppression is challenged
and social
as well as economic and political justice is facilitated. The prime duty of the court, hence, is
to
uphold the spirit of the constitution, the rights of people and the rule of law. In fact, the
democratic
society places a high value on the independence of judiciary. However, often, deeply
embedded in
the layered, hierarchical, patriarchal society, the courts, most of the times, reiterate and
reinforce
masculine values and androcentric morals while ignoring the fact that their prime concern is
to
disburse justice as per the constitutional and legal provisions. Patriarchy exhibits itself in
various
forms day in and day out in the courtrooms. The discrimination exists not only in the terms
of the
number of men and women who get to rule in the higher echelon of judiciary, but biases
also exist
in various forms in the everyday practice in the courtrooms. Patriarchal, male-dominated
courts
often act hostile to women’s concerns. The analysis of everyday proceedings in the
misogynist
court rooms reveals the manner in which sexism operates and is reinforced, post-mortemed
and
reiterated in daily decisions, orders, conversation, jest, reasoning and assumptions based
on
ideology that subjugate women despite of the fact that the Constitution of India guarantees
affirmative provisions in favour of women. Nevertheless, the women who gather courage to
fight
for justice against such oppressive culture in these patriarchal courtrooms may gain small
triumph
in some form or the other because of the support they may receive from several quarters
and above
all because of their persistence and sheer grit4. It is not because the courtrooms suddenly
become
sympathetic or sensitive to women’s concerns or questions, rather it is the resilience of
these
women who persist in their struggle, and therefore they could smash patriarchy that exists
within
the courts and within the society. This piece of work examines the manner in which the
patriarchy
operates in the court rooms and the manner in which women are trying to overcome such
maledominated,
conservative, traditional regressive notions in the courtrooms.

Chapter-V

Conclusions and Suggestions

Summary:

In the above discussion on dissolution of Muslim marriage it may be concluded by saying that,
Muslim husband and now his wife have various remedies which he or she avail of according to
the existing circumstances before them. However, Islam does not allow husband or wife to use
divorce as mockery and takes extra precaution for the welfare of wives. A former Supreme Court
Judge, Justice Krishna Iyer remarked that ‘a deeper study of the subject discloses a surprisingly
rational, realistic and modern law of divorce.1

The true Islamic law of divorce is in conformity with the breakdown theory of divorce. The
Quaran did not specify any matrimonial offences. The Prophet of Islam laid down no bars to
matrimonial relief. The lawgiver of Islam did not want the matter to be taken to court at all
unless it became unavoidable for a wife due to age-old predominance of men.

A marriage may be dissolved either at the instance of the husband or at the instance of the wife.
The husband can use his unilateral power of Talaq either in forms of Talaq-ul-Sunnat or Talaq-
ul-Biddat, without the intervention of the court. The wife has also right to get divorce by a decree
of the court according to the provisions of the dissolution of Marriage Act, 1939 and also by a
procedure of Lian. Apart from all these modes of husband and wife have a right to resolve their
1
Yousuf v. Swaramma, AIR 1971 Ker 261: 1970 Ker LJ 544: ILR (1971) 1 Ker 154.
marriage by mutual consent by way of Khula and Mubaraat. After the dissolution of marriage
there is no status of husband and wife between the parties, dower becomes payable, besides wife
is entitled to maintenance during Iddat.

It is important to note that the laws, passed in 1939 and 1986, were not the result of a concerted
effort towards reforms. They were more a result of reactions by the conservation who saw reform
in personal law as an infringement of their right to religion and a threat of their mail identity.

Many a social practices among Muslims is very retrograde and detrimental to the lives of
women. Women’s rights of inheritance, polygamy, triple Talaq, divorce etc., and show the
subordinate position of women in the community. There have been no major reform movements
in the country improving the lot of women. Despite these adverse circumstances, there have been
efforts by scattered individuals to initiate the reform process among Muslim women. Many
Muslim intellectual are working on an idea Nikah Nama (marriage contract) which can protect
the rights of women after marriage. The Muslim scripture gives some grounds to fight for the
better rights for women, though they are still far away from gender equality.

The Muslim women, meanwhile, continued to suffer because of polygamy, unilateral divorce,
low Mahr amount, lack of maintenance and other ills which plague Muslim Law. In the last two
decades except for some pro-women judgments, there has been no forward movement in the
effort to reform the Muslim law by codifying it and making it uniformly applicable to the entire
Muslim population across the country. Therefore a reform should be brought in the Muslim law
to uplift the position of the women.