Rights of Women Under Islamic Law
The Pakistan Experience
Justice
Dr. Nasim Hasan Shah
Retd.
Chief Justice of Pakistan
Males
and females under Islam have equal rights, but perform complementary functions.
The male is the protector and maintainer of the females (and the children) and
working mainly outside the home, the female is in charge of the home taking
care of the needs of her husband and looking after the upbringing of the
children devoting herself mainly to the home. But the Sharia has given her
legal rights commensurate with her responsibilities and requirements. Although
a son has two shares in the property of his father as against one share given
to the daughters but she has no responsibility in maintaining and satisfying the
financial needs of the family. Moreover, she inherits 1/8th or 1/4th
share in the property of her husband on his demise. Despite the fact that her
main responsibility was in the management of the home and in bringing–up of the
children she can engage in business and in commercial activity. She is the full
owner of her property, over which she has complete dominion and enjoys an
independent legal responsibility.
In
matters of marriage she has full freedom. After attaining the age of puberty, she
can marry whoever she pleases, as marriage in Islam is a contract. Though in
matters of divorce the husband enjoys more power to divorce his wife. This
freedom greatly circumscribed by the fact that this act of divorce is
considered highly reprehensible in Islam, and is greatly discouraged through
social and family pressures and is rarely resorted to.
Women
are free to go out in the public for performance of their daily chores, but
while doing so they should observe hijab i.e. modesty and cover their hair and
not expose the sensuous parts of their body.
As for
the matter of their weight of evidence before courts, it is true that is only
the evidence of adult male truthful Muslims which is accepted in cases involving
Hadd sentence i.e. penalties ordained in the Holy Quran but these sentences are
very rarely imposed and the overwhelming: number of cases in practice are
decided in which sentences are imposed according to those prescribed by laws
framed by the State (tazir). Here their testimony is accepted and given full
weight.
It is
true that traditionally in Islamic Societies women have been mostly confined to
their homes, and their property and their affairs have generally been managed
by males, which has given rise to the impression that women enjoy inferior
status to men in Islam and that they are being exploited by them. To correct
this impression and ameliorate this situation, effective steps are being taken
in Pakistan both by legislation as well as by decisions of the Courts.
At the
outset, it should be stated that consistent with the provisions of our
Constitution whereby all laws that are repugnant to the Qur’an and the Sunnah
will be invalid and that hence–forth decisions of Courts are to be based on the
Injunctions of Islam, Islamic law has become the rule of decision practically
in all matters.
As far
as Islamisation of laws is concerned, all customary laws which denied the
rights of inheritance to females in respect of agricultural property have been
repealed with the result that now every heir, male or female, is entitled to his
or her share as fixed by the Shariat with‘ absolute property rights therein vesting
in them including complete right of disposing it of. Considering that 75% of our
population lives in rural areas and was being governed by customary laws, this
is indeed a revolutionary change.
A remarkable
example of this revolutionary change is manifest from how these matters are now
being viewed by the Courts.
Thus
in the case of Sartlar Ali Vs Ghulam Sarwar (PLD I990 S.C.I.) decided recently
by the Supreme Court, the facts were that the brothers had been in possession
of the land of their sister and had excluded her completely from it. Later on,
they claimed that they had become owners of the land through adverse possession.
This claim was negatived by the Supreme Court in a land-mark ruling wherein the
rights of women and their status in an Islamic Society was discussed in great
detail and it was held, relying on the Qur’an Verse in Sura IV, Verse 34,
declaring men as “protectors and maintainers” that the petitioners being the
brothers of the respondent were required by the Islamic Law to protect the
property rights of their sister if ever they came into possession of her land
in any capacity. The Court went on to observe the “one who is enjoined with the
protection of the other’s property cannot lay claim adverse to the interests
and rights of that other one who owns it”. No brother can now usurp the share
of his sister on the ground that she has relinquished it in his favour or he
has become its owner through adverse possession.
Again,
differing from the earlier view held by the Courts in pre-partition India that a
wife is entitled to claim dissolution of marriage only if she has been treated
with cruelty by her husband, or she has not been maintained by him for two
years or that his whereabouts have become unknown or that he is impotent; it
has now been held by Courts in Pakistan that “in case of dislike by the wife of
her husband Islam concedes the right to the wife, in circumstances of extreme
discord and where life becomes a torture for both, on account of the fixed aversion
on the part of the spouses to seek dissolution of marriage on the ground of
Khula”.
Accordingly,
the Court can order separation by Khula even if the husband is not agreeable to
that course”. (Abdul Rehirn Vs Mst. Shahida Khan — PLD 1934 S.C. 329). In the
same strain our Courts have declared that if there is disagreement between the
husband and a wife, who is sui juris, she cannot be forced to live with her husband
and is entitled to live separately from him (Mst. Sahi Bibi Vs Khalid Hussain
I977 S.C.M.R. 577).
In
addition to the rights accruing to women by Islamization of Laws, the attempt
to secure status of equality for them has also been fortified by Article 25 of
the Constitution. This provides that—
“All
citizens are equal before law and are entitled to equal protection of law.”
And
goes on to add that—
“There
shall be no discrimination on the basis of sex alone.”
And to
further safeguard the rights of women and children, it provided that—
“Nothing
in this Article shall prevent the State from making any special provision for
the protection of women and children.”
The
Supreme Court has explained the scope and intent of this Article in the recent
case relating to admission of girls to Medical Colleges as follows:—
“No
discrimination on the ground of sex alone can be permitted except on the ground
of reasonable and intelligible classification. Such classification in our
Society permits, for the present, establishment of educational and professional
institutions exclusively for the females or exclusively for the males. However,
where co-education is permitted and the institution is not reserved for one sex
alone, the fixation of number on the ground of sex will directly be opposed to
the requirement of Article 25 (2) unless it is justified as a protective
measure for women and children under Article 25 (3). In other words the number
of girl students can be fixed as the minimum but not as the maximum
particularly so where on merit they are likely to get more than the fixed
number of seats. The Constitution assumes that the women and children in our
Society need protection and not the males and as long as the Constitution mentions
that assumption and basis, we cannot reverse it by affording protection on male
and adults at the cost of women and children. That would he opposed to the very
fundamental mandate of the Constitution.”
The
conclusion was expressed thus—
“In
view of the discussion that has proceeded on merits, the claim of the girl
students merited acceptance on the ground that they have been discriminated
against in the matter of admission to co-educational Medical Colleges by
suppressing their merit as against the boys admitted thereto.”
And
admission to co-educational Medical Colleges was allowed strictly on merit,
while maintaining the right of girls to exclusive admission to the girl Medical
College (like Fatima Jinnah Medical College for Girls) (Shirin Munir Vs Government
of the Punjab PLD 1990 S.C. 295).
To
further safeguard the position of women, it would be advantageous to take
guidance from the Holy Qur’an. In Surah Al-Talaq verse 1 it is said herein—
“O
Prophet, when you divorce women them for their prescribed period and calculate
the period, and keep your duty to Allah, your Nourisher. Do not turn them out
of their houses, nor should they themselves do that.”
According
to Maulana Ashraf Ali Thanvi “their houses" means the house in which the
wife lives. In the light of this Qur'anic verse, he transferred the ownership
of his house to his wife. This Qur'anic Injunction is enforced in Egypt and some
other Muslim Countries as Islamic Law.
Accordingly,
if and when a husband divorces his wife or contracts a second marriage, the
ownership of the house in which his first wife resides, is transferred automatically
to her, such a measure could result in reducing drastically the ratio of
divorces pronounced by husbands and second marriages contracted by them.
The
rights given to women in Islam are therefore not only available to women in
Pakistan but are also being duly enforced by Courts of Law.
Post a Comment