Why should Indian Muslim women not deserve the protection of Islam provided to their counterparts in Pakistan & elsewhere? Laws should be revamped now.

Before delving deep into the theoretical and practical aspects of the subject of ‘Rights of Women’ in a civilized society, it would be advisable to make a short study the history of evolution and gradual development of our society from its original concept of creation of a state and the role played by two of its natural pillars – men and women.

men women Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

Both of these entities have been the most intelligent of all creatures of God since time immemorial and an uninterrupted continuity is hoped in foreseeable future. However, the society had always been dominated by men as the average physical prowess of men had been superior to that of   women. He believed in domination over every object around and that included the fair sex also other than his own likes. He tamed the natural resources of this planet, its beasts, animals, birds and in the process completely enslaved the woman also. Patriarchy is symbolic of this desire to dominate.

patriarchal society Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

As exceptions, there had been several isolated examples in the world history when strong women made their presence felt. The stories of their wisdom and bravado may be true or exaggerated but they have had hardly made any tangible impact at the progress of mankind as the times rolled by.

Here is a famous speech of Hazrat Zaynab bint- e- Ali which she had delivered in the court of Yazid – the most powerful ruler of Ommayed dynasty.

“O Yazid! Do you think that we have become humble and despicable owing to the martyrdom of our people and our own captivity? As you have blocked all the paths for us, and we have been made captives and are being taken from one place to another, do you think that Allah has taken away his blessings from us? Do you think that by killing the godly persons you have become great and respectable and the Almighty looks at you with special grace and kindness? For this reason and on account of this incorrect thinking you have become elated and arrogant. You have become boastful because you have seen that the matters have taken a turn in your favour.”

Then lady Zaynab reminded Yazid that on the day of the conquest of Makkah which took place in 8 A.H. the Holy Prophet did favor to all the men and women of Makkah and set them free. Yazid himself was a descendant of those freed persons. His father Mu’awiya, his grandfather Abu Sufyan and Mu’awiya’s mother were among those who were set free at the time of the conquest of Makkah. On that day the Holy Prophet very magnanimously set all of them free irrespective of what they had done in the past and said: “Go, for all of you are free”.

Lady Zaynab had functioned as a model of defiance against oppression and other forms of injustice. Lady Zaynab and the other survivors of Imam Husayn’s army, most of them women and children, were marched to Damascus, Yazid’s capital. Her defiance is an example of courage and wisdom against the tyrant ruler of her times.

Reading these lines, many proponents of different disciplines of religions would take up the cudgel against this scribe and would rain of names of umpteen women who had contributed in the development of society. But, by and large, their roles were limited and their efforts can be summarized as fly on the wheel. There had not been many incidents in world history which have asserted their rights in any lasting form. In fact, patriarchy precluded women from demanding any legal, political or legislative right even if they were mentioned in scriptures. History has evidences that women have been regarded as the property by men.

Even the leading thinkers of the west had often failed to recognize that women, by virtue of human status, have as much claim to enjoyment of basic rights and freedoms as men do. The famous political philosopher Jean Jacques Rousseau advocated that ‘ignorance is entirely beneficial to women’ and they should be excluded from politics. In American Declaration of Independence of 4 July 1776 where it was promised that ‘all men are created equal’ it excluded women from its noble ambit, slaves, and men who did not hold property. The famous Declarations of Rights of Man and Citizen issued by the French National Assembly in August 1789 excluded women as well as non-citizens. When they were married, either her property would transfer to the husband or she would not be able to dispense of it without permission of her husband. In Britain, perhaps the first country to give women some property rights, laws were passed in the 1860’s known as “Married Women Property Act.”

It was only in the late 19th and early 20th century that Europe witnessed the rising concepts of ‘rights of women’ and the new word ‘suffrage’ appeared in currency. It has been a long journey from suffrage to social and economic equality in the public and private sphere and the society accepted the hitherto unmentioned subject of ‘oppressed woman.’ The oppressed women gathered courage to challenge the authority of men. At the dawn of civilization, men realized and made efforts to rationalize the situation. They accepted that role of woman is much more than producing children, cooking food and standing behind the man in each capacity.

gender quran1 Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

However, fourteen hundred years ago, the Holy Quran had declared that ‘men and women have the same spirit, there is no superiority in the spiritual sense between men and women. [Noble Quran 4:1, 7:189, 42:11]. It indicated again that one of the most honored positions of human, is that God created the human, and as I referred to Surah 17 earlier, it means both sexes, as His trustee and representative on earth. There are many references in the Quran that reaffirm this. In terms of moral, spiritual duties, acts of worship, the requirements of men and women are the same, except in some cases when women have certain concessions because of their feminine nature, or their health or the health of their babies. In the area of economic rights, while in Europe until the 19th century, women did not have the right to own their own property Islam are clearly defined the rights of women.

There is no restriction in Islamic law that says a woman cannot work or have a profession, that her only place is in the home. In fact, by definition, in a truly Islamic society, there must be women physicians, women nurses, women teachers, because it’s preferable also to separate teenagers in the volatile years in high school education. And if she chooses to work, or if she’s married with the consent of her husband, she’s entitled to equal pay, not for equal work, but for work of equal worth.

But all that glitters is not gold. In practice while Islam doesn’t discriminate against women, the men do discriminate, and men control society. The Muslim men seek to justify that oppression under the guise of Islam. In the name of “Hadees” or ‘Traditions’ they bend the Islamic Laws if they don’t break. While they talk of few Muslim Lady Greats, they usually keep the women at arm’s length when it comes to giving them leadership status or even being treated equally. Muslim women are still not allowed to pray in many mosques. They are not allowed to enter the sanctum sanctorum of a Dargah. Fatima Thompson, a woman Muslim activist walked into the National Mosque in Washington DC once and protested and described the area for females in the mosques as a “penalty box” noting the 7-foot-high wooden panels separating her from the much larger prayer area designated for men. It must be noted that during the time of the Prophet, women used to offer prayers along with men in the same prayer area.

Fatima Thompson Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

The Shia Fiqh (Islamic Jurisdiction) doesn’t allow the divorce based on triple talaq but it is still prevalent in other Islamic School of Thoughts. As an scholar had once put it, ‘there is not a single verse in the Holy Book that suggests that men’s gender roles are a function of their biology, or that biological differences between men and women make them unequal”. While Quran doesn’t discriminate on the basis of gender between man and woman, Muslim societies tend to be very biased and prejudiced as such.

Muslim Personal Board is considered as the guardian of religo-legal interests of Muslim community. However, most of the time they have proved themselves to be the part of the problem instead of being the harbinger to an just and amicable solution. Consequently, the Supreme Court has decided to examine Islamic personal law to consider doing away with provisions biased against Muslim women, often victims of polygamy and the triple talaq system, a controversial move that may upset a section of the community that has resisted reform.

The similar is the case of female genital mutilation (FGM) that is sometimes called female circumcision or female genital cutting. FGM is the cutting of the clitoris of girls in order to curb their sexual desire and preserve their sexual honor before marriage. The practice is still prevalent in some Muslim societies. The guardians of those societies deny but it happens. The practice is not rooted in religion but rather in culture but the glaring example of discrimination against the weaker sex.

genital mutation Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

There is another complex issue of ‘Waqf’ which literally means “religious endowment.” It is recognized by the Islamic law as religious, pious or charitable donation. It has been a source of development such as the building of mosques, madrasa, educational institutions, libraries, travelers’ lodges, and inns. It’s benefits are not restricted to the Muslim community alone but goes beyond religious, cultural, racial and sectarian boundaries. Unfortunately, in many greedy  Muslim families, this noble concept of Islam is circumvented, misappropriated and used brazenly to deny the girls their legal rights on property and inheritance.

In this backdrop, it was interesting to read the remarks of Supreme Court as it questioned if a woman’s age determine her right to pray? The Supreme Court asked the Sabarimala temple board on Wednesday, adding that the Hindu religion doesn’t discriminate against women. “In Hindu religion, there is no denomination of a Hindu male or female. A Hindu is a Hindu.” The court is hearing a public interest litigation (PIL) challenging the decades-old tradition of keeping women of reproductive age out of the famous the Sabarimala Ayyappa temple. One of the holiest Hindu shrines, the hilltop Kerala temple even allows in non-Hindus.

sabarimala cant ban women Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

Women aged between 10 and 50 years are not allowed because the deity is a celibate (Naisthik Brahmachari), the Kerala government and the Travancore Devaswom Board that manages the temple have submitted. The court wondered if the argument would stand constitutional test. “They (temple) have developed a custom and tradition being followed to maintain purity of the temple. But the question is whether physiological phenomenon can be a guiding factor to deny entry to a class of women within the class of females,” Justice Misra said. However, justice Kurien asked if the temple — as an institution — was entitled to protect its deity. “Are they not entitled to institutional protection?” he asked senior advocate Indira Jaising, appearing for NGO. Happy to Bleed. On the petitioners’ contention that women were allowed in other Ayyappa temples, the state government said the deities there were in a different form.

The court also didn’t accept immediately the board’s request to refer the matter to a five-judge bench. The court will now hear the case on April 18.

So, the reader can feel the pulse of changing times. A new awakening is coming within the societies and that is a positive sign. Fundamentals of Religion need not change with the change of circumstances and environments, geography and climate, social and political realities but the new challenges are bound to raise their head. You can’t face tomorrow’s problems with anchorite ideas of yesterday. Time and tide wait for one.

dr b r ambedkar Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

As I’d already covered the different lacunae in principles and practices of most of the followers of religion I must come back to great wisdom of our constitutional fathers. The first image that conjures before the mind is that of Dr BR Ambedkar- the chief of the drafting committee of the Constituent Assembly. Pandit Jawaharlal Nehru, Sardar Patel, Dr Rajendra Prasad, Maulana Azad etc were also a part of the history chapters that tell us about how our Constitution, the lengthiest and probably the most complicated one in the world, was written. They were truly, the founding fathers of our Republic.

The Constitutional Fathers had absorbed substance of the Universal Declaration of Human Rights adopted by the United Nations on December 10, 1948, is embodied as Fundamental Rights in our Constitution. The right to equality before the law is guaranteed to citizens and non-citizen alike. All religions are treated with equal tolerance and equal reverence. The religion of a citizen is no bar to his holding any office, however exalted, in politics or the judiciary.

In this respect, we are more secular than the United Kingdom where a Roman Catholic cannot be the monarch or the Lord Chancellor. Our Constitution is more progressive than that of the United States of America. Equality of the sexes is a guaranteed right in India, whereas the attempt to incorporate a similar right in the United States Constitution was met with resistance.

In Indian constitution the ‘Right to Equality’ is given under ‘Article 14’ of which is one of the fundamental rights. It ensures the guarantees to every person the right to equality before law & equal protection of the laws. It is not only right of Indian citizens but also right of non-citizens Article 14 says “The state shall of India.” article 14 define no one is above the law. All are equal in eye of law. Equality before law – “The state shall not deny to any person equality before the law.”  Meaning of right to equality – “This means that every person, who lives within territory of India, has the equal right before the law.” There would be no discrimination based on religion ,race, caste, sex,and place of birth.

Article 15 (Prohibition of discrimination on grounds of religion,race,caste,sex or place of birth): Article 15 says that the state shall not discriminate against only of religion, race, sex, place of birth or any of them. Under article 15 (3) & (4), government can make special provisions for women & children and for group of citizens who are economically and socially backward.

Article 16 (Equality of opportunities in matters of public employment):Article 16 says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.

Article 17 (Abolition of Untouchability):Article 17 says that Untouchability is abolished and its practice in any form is forbidden. the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.

Article 25 {Freedom of conscience and free profession, practice and propagation of religion} – Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Our democratic country has separate personal laws for each religion that govern marriage, succession, adoption and maintenance. Hindu family laws were modified in the 1950s but activists have long argued Muslim personal law, which has remained mostly unchanged, is tilted against women.

“The practice of polygamy is injurious to public morals and can be superseded by the State just as practice of sati,” the bench said, quoting from a 2003 verdict. The court said the matter needed consideration because it was related not just to policy but also fundamental rights of women to equality, non-discrimination, life and liberty.

“There is a misconception that Muslim personal law is covered by the right to religious freedom under the Constitution. Personal laws are within the legislative competence of the state. There is no doubt in practice Muslim women are discriminated against. The legislature has done nothing to end it. The SC must take cognizance of such discrimination and do something for them,” …. noted Islamic scholar and former chairman of the National Commission for Minorities Tahir Mahmood.

In 1985, the Supreme Court had awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano, but the then Congress government reversed the verdict after pushback from the clergy and Muslim Personal Law Board.

rajiv gandhi shah bano case Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

The court said the Muslim Women (Protection of Rights on Divorce) Act, 1986 that was passed during the Rajiv Gandhi government needed to be examined by a Constitution Bench. India’s criminal procedure code guarantees maintenance to divorced women throughout their lifetime unless they remarry. In 1985, the Supreme Court awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano, but the then Congress government reversed the verdict after pushback from the clergy and Muslim Personal Law Board.

aimplb Why Should Indian Muslims Suffer Under An Anglo Mohammedan law ?

In a survey conducted in it was found that 95 percent of the women were not even aware of the existence of the All India Muslim Personal Law Board (AIMPLB) which fancies itself as the collective conscience of the community on matters relating to family law.  This body is refusing to see the new realities and had been able successful to block any changes in the name of self-proclaimed interpretations of Sharia.  It has even dismissed the demand for a ban on oral talaq.  Sultan Shahin, editor-in-chief of NewAge Islam website had backed call for government intervention. “It is for the government of India to take a call in the matter. Why should Indian Muslim women not deserve the protection of Islam provided to their counterparts in Pakistan, Bangladesh and elsewhere, practically in the entire Islamic world, except Saudi Arabia. Egypt, Iran, Jordan, Morocco, even Yemen and Sudan have more modern Muslim Personal Laws than India. Why should Indian Muslims suffer the indignities imposed by the British in our land under an Anglo-Mohammedan law.”

By Naim Naqvi

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