A large volume of contemporary discourse holds the existing institutions and norms of social order responsible for the discrimination against women. While some of their arguments hold merit, nevertheless, they have been also been subjected to counter-criticism, primarily for overgeneralizing their premise to include systems and institutions that evidence suggests have done otherwise.
The religion of Islam has been at the centre of many such discourses that have criticized it as being unfair against women. This article argues that while a skewed reading of the Islamic legal system- particularly the inheritance laws related to women, may give rise to the argument of Islam placing its women on an inferior pedestal- however, such skewed readings miss the spirit of fairness, equity, and logic that emerges from a holistic analysis of the Islamic system. This article attempts to outline a few such anomalies, which may hopefully stimulate a deeper scrutiny of the proposition.
Discrimination against women was not something attributed exclusively to the history of Islam. In fact, it was an evil prevalent at the level of society as a whole. What Islam did was liberate women and elevate their status in the family and society by conferring upon them the respect and dignity they deserved. The Prophet (PBUH) quoted several ahadith (single hadith) describing the exalted status of women as mothers, wives, and daughters. The customs and practices dishonorable to women were abolished and declared forbidden. A new era of woman emancipation began, marked by the advent of the Prophet (PBUH) where women were not seen as a lesser gender.
Let us look at a few instances of Islamic inheritance provisions. Popular notion has it that Islam gives woman half the share of man. The rule however is as under:
In Islam, there are 12 Quranic sharers, relatives who shall inherit mandatorily and cannot be excluded. Of these 8 happen to be women. Again, there are primary and secondary sharers and women form the larger part of the former. As regards the half share is concerned, woman has an undisputed right to inherit in capacity of wife, a larger share which is balanced with a reduced share from her paternal side. As a daughter even, she is the Quranic heir and cannot be excluded, while a son maybe, being agnatic. There are vast possibilities of cases, depending upon the surviving relatives that may arise in deciding the question of inheritance, and in the vast majority, it’s only a few cases where woman’s share is reduced to half because of the existence of a male collateral, who takes double the share, such cases are few and cannot be used to generalize the nature of the whole body of Islamic law of inheritance.
Apart from inheritance, another issue that makes Islamic Law prone to criticism is the matter of Talaq. There have been heated debates on the point that Islam by giving the men the right to pronounce divorce, with immediate effect is against the rights of women. In many discourses, this practice has been portrayed as the mainstay of the practice of talaq. Again, this has been the result of superficial understanding and lack of profound research on the subject. Islam itself declares instant triple talaq (talaq-i-biddat) as the least preferred mode of divorce. It has the approval of none but only one school of Islamic Jurisprudence. It had a context for evolution, a circumstantial origin after which it continued as a custom. It is the least used and least approved mode of divorce.
Prof. Tahir Mahmood, a noted Islamic jurist opines that “this divorce is described as ‘bad in theology but good in law’ — a funny proposition, indeed. A constitutionally secular country is not bound to protect by law even what is ‘good in theology’ — of course, theology of any community, let alone ‘bad in theology’. The Muslim Women (Rights on Marriage) Act 2019 has declared illegal talaq-i-biddat. The Act uses the word talaq throughout its provisions but restricts its meaning by defining the word as “talaq-e-bidat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce”. Under Islamic law, the actual, preferred, approved mode of divorce in Islam is not only pro-women but also upholds the marital sanctity and family values. It aims, as far as possible, to avoid the divorce and save the marriage while also eliminating the probability of divorce pronounced in a fit of anger or rage. Talaq-i-sunnat provides for three pronouncements of divorce at stretched intervals, which grants considerable time and space to the partners for reconciliation in the marriage. Other than that, there are provisions under Islamic system conferring on woman the right to annul a marriage.
Thus, these instances highlight the need to caution against fragmentary conclusions based on selective readings. Read holistically- in letter and spirit, Islamic jurisprudence resonates the ideas and principles of the Prophet by according respect and dignity to women.
The writer is persuing LLM from the Aligarh Muslim University. Views are personal.
