No.77 (July-August 1993) 9

INDIAN MUSLIMS follow the MuslimPersonal Law or the Shariat Act of1937 in matters of marriage, mehr,maintenance, dowry and judicialseparation. Therefore, a Muslimwoman must resort to the legal systemto procure a divorce. The Dissolutionof the Muslim Marriage Act of 1939was passed to allow a woman to askfor divorce but only in very specialconditions, as when her husband’swhereabouts have not been knownfor a period of four years, she hasbeen neglected by him, or the husbandhas not provided maintenance sincefour years. The other conditions arehusband’s impotency, imprisonmentfor three years, insanity, or failure toperform marital obligations for threeyears. If a woman seeks divorce, sheforfeits her right to mehr andmainte-nance even during the iddat(three months and 10 daysimmediately after the divorce) period.

I interviewed a group of 100di-vorced Muslim women fromBombay and Pune. Fifty women wereselected from the MuslimSatyashodhak Mandal and 50 fromthe community through the snowballtechnique. The sample consisted of30 Shias and 70 Sunnis. Most of them(80 percent) belonged to the lowersocio-economic strata, with very littleeducation.

In order to study the impact of theprovisions in the law, we tried to puttogether information about women’smarriage and divorce, includinginformation on whetherthe women or theirhusbands had beenmarried before,amountof mehr settled,the actualpaymentofmehr or reasons fornonpayment, return ofdowry, divorceprocedures and issuesof maintenance.

From the sample of 100, there wereseven women who had married asecond time and 13 husbands withprevious marriages. In eight of the 13instances of remarriage among theinterviewed men, their first wives hadinitiated the present divorce. In theremaining five instances, thehusbands had initiated the presentdivorce. Besides, there were only fivewomen who were in polygamousliaisons, where the husband had takena second wife as allowed by theShariat. Four of these five wives hadinitiated the present divorce as theycould not tolerate being secondwives.

The trend appears to be that moreMuslim women were asking fordivorce second marriages, especiallyin case of their husbands entering intoa polygamous marriage. Polygamydoes not appear to be widely prevalent(five out of 100). The reasons couldbe the living pattern in the urban areas,women’s awareness of their role andstatus, so that they do not want toplay second fiddle, or the easy accessto divorce for the men.

The women were asked todescribe the divorce procedures andalso questioned whether the wife orthe husband wanted the divorce andwho initiated the procedure. Forty-three women in the sample said thatthey wished to end the marriagealthough only 38 initiated the divorceproceedings. The fact that women arewilling to end a marriage that is notworking is evident from the growingnumber of women who said that theywanted a divorce. In the remaining fivein-stances, the husbands sent thedivorce papers when they becameaware that their wives wanted adivorce.

Of the 38 women who initiated thedivorce, 35 applied to a kazi (priest)or a marriage council for a divorce. Inorder to procure the divorce, it wasessential that the husband agree tothe divorce. Three women soughtdivorce through the Dissolution ofMarriage Act as their husbands weremissing for more than four years.

By comparison, 48 husbandswished to terminate the marriage. The

Divorce AmongIndian Muslims

Survey Report from Bombay and PuneMunira Merchant

10 MANUSHI

Muslim Personal Law permits ahusband the right to divorce with anoral pronouncement, andalso to do sowhen the wife is not in his presence.Therefore, it is not surprising to findthat 17 of the husbands divorced theirwives by oral pronouncements, while28 husbands, which included fiveinstances where the wives wished toterminate the marriage, sent divorcepapers by registered mail to theirwives at their parents’ home. Thedivorce decree or talaknama was awritten statement, which usuallycontained the day, time and the yearof divorce, details of mehr (if he waspaying it), reasons for the divorce andcustody/maintenance issues. Amongthe husbands who divorced theirwives, only eight applied for a divorceto a kazi or to a marriage council. Thewives then agreed to the divorce. Outof the hundred couples, nine mutuallyagreed that they wanted to end theirmarriage.

The length of time betweenseparation and granting of the finaldivorce is an important indicator ofthe process for securing a divorce.Since Muslims do not necessarilyhave to resort to the law courts, thetime span between separation andfinal divorce could be as little as onemonth. Twenty four husbands eithersent divorce pa-pers or pronouncedan oral divorce within one month oftheir decision to divorce their wives.However, when the wife wanted adivorce and the husband was notagreeable, the separation could beagonisingly long, lasting upto fiveyears. Since the husbandmustconsent toadivorce (divorce beinggranted under the Dissolution ofMuslim Marriage Act in special cases),it is not surprising that several womenin the sample could not remarry or askfor any maintenance or child supportas there was no official divorce.

It is customary for the bride’sfamily to give gifts (which may take

the form of cash, household articles,clothes, jewellery) to the bride as“dowry” at the time of the marriage.Generally, among the Muslims, therewas no tradition of demand orcoercion by the husband or his familyas to the type or form of the dowry. Itwas left to the wife’s family to giveaccording to their means. The trendis changing, with more and morefamilies insisting that the family of thebride give large sums of money, luxuryitems, household furniture, evenbefore arranging the marriage. In thepresent sample, 42 women broughtback with them all (35 percent) or some(17 percent) of their dowry afterdivorce. A significant number of thosewomen who received back theirdowry after divorce had initiated thedivorce and/or belonged to the Shiasect, so that the marriage councilregulated the divorce, thus ensuringthat the women took back whatbelonged to them.

All the women were aware of thecustom of mehr, a sum of money to bepaid by the husband to the wife at thetime of the marriage or in the event ofdivorce. The mehr amount rangedfrom as little as Rs 100 to as much asRs 35,000. Sixty women did not receivemehr although it is considered to be

the right of the wife, as stipulated inthe Muslim Personal Law, except whenthe wife initiates a divorce. In twoinstances, where the mehr amount wasfairly large, the husband would notdivorce the wife because he would beforced to pay the mehr. After a longseparation, the wives initiated thedivorce proceedings, thus losing theirright to the mehr. Thus, mehr,especially a large sum, which issupposed to be a protection for thewife and a deterrent to a hasty divorce,does not always work in favour of thewife.

Seventy-seven percent of thewomen did not receive anymainte-nance after the divorce. Sevenwomen, out of those who wereguaranteed maintenance (33 out ofhundred), were to receive on amonthly basis .amounts ranging fromRs l00 to Rs 500. At the time of theinterview, only two women were stillreceiving the amount that had beenagreed upon. Four women receivedthe money irregularly, and one waspaid only after the husband receiveda court order. Thus, it ap-pears thateven when they are grantedmaintenance by the courts, in realitythe women do not get any financialsupport from their husbands.

No.77 (July-August 1993) 11

Three women received a fixedamount, less than Rs 5,000, while twowere paid more than Rs 5,000. Onewoman took her husband to court andasked for maintenance and a home asshe had three children and was livingwith her parents. After six years of nosettlement in the court, sheapproached the local kazi, who wasable to bring together the husband’sfamily and appeal on her behalf. Thehusband’s family pressured thehusband, who had long sinceremarried, into buying a home andgiving a fixed amount as maintenancefor the children of the first wife. Inthis one instance, it appears that thecommunity and social pressuresworked whereas the courts failed. Tenwomen were given maintenance forthe iddat period (upto Rs 2,000) asper the Shariat.

Eight women out of the 23belonged to the MuslimSatyashodhak Mandal and hadclaimed maintenance with theorganisation’s help. Eleven of the 23women belonged to the Snia sect,which has marriage councils toregulate the divorce proceedings. TheShias usually approach thecommunity authorities (marriagecouncil or its equivalent) for divorce,ensuring some regulation of thedivorce settle-ment. However, it isimportant to be cautious ininterpreting the role of these councilsas well as organisations such as theMuslim Satyashodhak Mandal sincethe maintenance received insomecases was either afixedamountof money, or only for the iddat period.

It is quite evident from the findingsof this study that a husband hasgreater choice and control in thedivorce strategy and its outcome. Theresults indicate that the women arenot getting their rightful dues inmatters of maintenance, dowry, mehrand child support even within thetenets of the existing personal law.

Almost all women in India sufferfrom inequities which are a part of awider socio-cultural complex andcannot be explained entirely in termsof legal codes or religious ethos. Forinstance, the custom of purdahinhib-its women’s creativity and limitstheir job and learning opportunities.

What Will HelpPerhaps the most effective way to

enhance the status of Muslim womenis to educate them. Education andeconomic independence would go along way to improve the status ofwomen. An expansion ofwomen’sroles beyond that of motherand wife, and increasingopportunities to learn, work and beproductive, will effect a rapid change.

Education and awareness willenable women to demand and insistupon getting their rightful dues underthe Muslim Personal law, theDissolution of Marriage Act, and therecently passed Muslim Women’s(Protection of Rights on Divorce) Act.Most Muslims, even if they do notget any formal education, are exposedto religious teachings, usually limitedto the recital of daily prayers andreading of the Koran, without anyinsight into the meaning of theKoranic injunctions. Perhaps a betterknowledge of and understanding byboth men and women of the legalprovisions and the Koranicinjunctions may be able to altersignificantly the status of women and

12 MANUSHI

make men more aware of women’srights and their own obligations.

Since Muslims consider marriagea contract and there is always anikahnama or marriage agreement atthe time of the wedding ceremony, thenikahnama could be standardised toensure that some of the inequitiessuffered by the women are removedfrom the marriage agreement. Thenikahnama could state that the mancannot practice polygamy, that thewoman’s right to divorce would beequal to that of the man, and that mehrwould be paid immediately afterdivorce. Since there is no uniform formof nikahnama ordained by the Koran

Anis, 35, does beadwork in her home near Ajmeri Gate in Old Delhiwhile caring for her eight children. She earns Rs 15 a day and says her

husband has not earned for many years

or the Shariat, such steps would notmean changing or challenging Muslimlaw. The passage of the MuslimWomen’s (Protection of Rights onDivorce) Act (1986) has made itpos-sible for the wife to be paid hermehr, dowry, maintenance for theiddat pe-riod , and child support tillthe children are two years of age. TheAct does not specify what constitutes“reasonable and fair pro vision”,which is left to the judge’s discretion.Thus, there is scope for justice withinthe constraints of the law. With thehelp of forward thinking lawyers andjudges, women could get a fair shareas demonstrated by two decisions of

Justice Rekha Dixit. In addition, withthe establishment of family courts insome of the major cities, for dealingspecifically with issues of marriage,custody of children and divorce, itmay be possible to secure a settlementearlier as well as allow the women tohave a more equitable amount.

A general policy that aims toinform Muslim women about theMuslim Personal Law should beincorporated into the marriageprocedure. The kazis and members ofthe marriage councils should be madeto impart this information at the timeof the marriage as well as maintainformal registration of marriages anddivorces.

Finally, it should be kept in mindthat mere changes in the law are notlikely in themselves to result in alasting solution. Not many peopleknow the legal provisions nor canthey afford legal recourse. Far-reaching social changes arenecessary to effect collective actionand increase women’s bargainingpower.

ReferencesBhatty, Z.: Status of Women: A sympo-

sium on the discriminated sex of asociety. Seminar 165:9-12 1973.

Bhatty, Z. : Status of Muslim Women andSocial Change. In Indian Women fromPurdah to Modernity, ed., B. R. Nanda,New Delhi, Vikas Publishing House,1976.

Caroll, L. : Talaq-i-tafwid and Stipulationin a Muslim Marriage Contract:Important means of protecting theposition of the South Asian wife.Modern Asian Studies 16 : 277-309,1982.

Epstein, T. S. : Socio-cultural andAttitudinal Factors Affecting theStatus of Women. In Women andSociety, ed. A.K.Gupta, pp 26-70NewDelhi,Criterior Publications,1986.

Jaising, I : The Politics of Personal Law.The Lawyers Collective l(2):6-8, 1986.

Mahmood, T., ed.: Islamic Law inModern India. Bombay, 1972.