Property Rights of Muslim Women in India

Oct 8, 2020

India is a secular nation with extremely diverse cultures and traditions followed across the country. The intricacies of these different religions, beliefs and folklores make our country a rich and beautiful heritage site. Our country is also home to numerous religions, and the devotion of the people towards their religious affiliations has also led to the birth of numerous personal laws. Unlike other legislations, these personal laws govern aspects like marriage, divorce and adoption differently for different religions. These personal laws also govern the property rights of individuals. By the religions, the customs that have been prevalent since times immemorial were made into laws; some codified, like the Hindu Marriage Act, 1955, and others non-codified. One of the examples of non- codified laws that have stayed in the limelight for a long time is the property rights of Muslims in India.

Patriarchal system has been followed in our country since the codification of laws did not even exist. The women bore the brunt of various discriminations based on the fact that they were considered to be the weaker sex, as the dominance of males in the families also instilled the fear of violence in them, and the impact of this system is visible even in the contemporary world in certain aspects. Personal laws have been observed to be discriminatory towards women in a spectrum of facets. One such aspect is succession and inheritance laws for women. The framework becomes more complex due to the ambiguity that arises due to different property laws for different religions.

Muslim law is majorly based on the teachings of the Quran and the Prophet, respectively. And their command has been followed faithfully by those practising the religion since times immemorial. When it comes to Muslim inheritance laws, due to the absence of any codified laws, two venerated schools, the Hanafi School and the Shia School are followed respectively. The Hanafi School, a part of the Sunni teachings, is based on the preaching of Abu Hanifah and has continued to stay dominant even after his death, as his successors continued to spread its ideologies. The school is dominant in parts of Central Asia, India, Pakistan and the Ottoman Empire till date. The other school, i.e. the Shia School of Muslim Law, has various sub-schools and is majorly followed by the minority of Muslims in Iran.

Coming to inheritance and succession, the first aspect of inheriting property is that the claim is passed on to legal heirs only after the death of the previous owner. They get the rights to enjoy the property, but the right to claim remains ceased till the sole proprietor passes away. By the Hanafi School, the legal heirs of the deceased should be related through a male, i.e. son’s children, husband’s mother etc. Whereas the Shia School does not discriminate the legal heirs as such depending on the relationship they share with the deceased to be able to lay a claim on the ancestral property. They can lay the claim even if related through a female relative. The quantum of this distribution for women is pre-decided. The wife is entitled to a mere 1/8th share in her deceased husband’s property if they had children and 1/4th in a scenario with no children. The daughter is indulged to half of the share of her brother, and in case of two sisters, 2/3rd of the property is divided equally between them. At the same time, the mother is entitled to 1/6th property if there are grandchildren and 1/3rd in case of no grandchildren. This method of division of the inherited property has been in place since a very long time. It has been scrutinized continuously, as it violates Articles 14, 19 and 21 of the Constitution of India respectively.

Even though the conventional arguments and explanation of culture and religion are given to justify the succession and inheritance laws, such provisions have only proven to be atrocious and discriminatory for Muslim women, as they only receive half the property of the male counterparts in the family. The patriarchal norms followed by the society also act as huge barriers in the path of gender equality.

However, a revolution was witnessed post-Ahmed Khan v Shah Bano Begum Case, a landmark judgment settling the controversies of the maintenance claim of aggrieved divorced Muslim women. Since then, many women have been raising voice against these customary laws that have done nothing but only favoured the males and discriminated the females about inheritance and succession.

One problem that has continued to resurface time and again with the religions that were brought to India from foreign countries is the rigidity that accompanies them. From the struggle to get maintenance after divorce to the abolition of Triple Talaq, these decisions have been bold and were opposed to a great extent, by defending than in the name of Quran. However, as time changes, it also demands a change in these tricky practices. Just like Sati was a widely practised act in ancient India, it was later acknowledged as a ‘social evil’, and its practice was condemned in all forms. Similarly, Islamic practices like lack of maintenance for wife after divorce, that were once practised without any opposition started getting a rigid opinion from people and had to be changed ultimately. Inheritance is also a tricky part of Islamic law, but it is just another step in the ladder of change and equality for both genders, respectively.