Divorced From Reality

Unlike popular belief, Muslim law contains some of the most diverse and historically progressive divorce options for women

- Lalita Iyer

NAJMA, 23, was contracted into marriage by her father, but the marriage was performed without her express consent and against her wishes.

She was living with her maternal uncle, away from her father, at the time of the arrangement. The husband later filed for restitution of conjugal rights, which was contested by her on the grounds that the marriage was invalid due to the lack of her free consent.

One of the foremost aspects of a Muslim marriage is consent (the “qubool hai” that you see in films is not mere words) and it is also at the centre of Muslim personal law, which stems from the Quran, and is implemented by the sharia courts.

Muslim law is not codified, unlike, say, the codification of the Hindu Law in 1955. “Codification is not always a great thing because a lot of women’s rights actually get lost,” says advocate Audrey D’Mello of Majlis Law, an NGO founded by Flavia Agnes in 1991, which works extensively to grant women their legal rights, especially for those from marginalised communities.

A Muslim marriage is a contract, not a sacrament, as in the Hindu or Christian community, which makes divorce difficult. This means you can have mutually negotiated and agreed upon terms and conditions in it, which are usually contained in the nikahnama (the marriage contract), in which the mehr (dower) from the groom to his bride is also agreed upon in consideration of a marriage. By any measure, this is progressive, and more so, from 1400 years ago. At the very outset, a girl child in a Muslim community is considered auspicious and so is education for the girl child. If you have three daughters, it is a passport to heaven.

Unlike popular belief, Muslim law contains some of the most diverse and historically progressive divorce options for women of any major religious legal system. First of all, it does not restrict women to a single route for ending a marriage. Instead, it outlines a spectrum of options.