How Muslim Law Is Surprisingly Liberal For Women And Why We Think Otherwise

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.

Khula is an example. It is a woman-initiated divorce wherein she can seek release from the marriage by returning her mehr. The husband’s consent is ideal in this case, but not absolute; courts in India can grant judicial khula.

Then there is faskh, a judicial dissolution, where a woman can approach a Qazi or the courts to terminate the marriage on multiple grounds—cruelty, neglect, failure to provide maintenance, impotence, disappearance, or harm. Qazis act as religious adjudicators in a Muslim marriage or divorce, similar to a judge in court. In a mubara, which is a mutual consent dissolution, both spouses agree to part ways. There is also a delegated talaq/tafweez, where a wife can be granted the unilateral right to divorce in the marriage contract (nikahnama), allowing her to pronounce talaq herself.

In the much-misrepresented triple talaq, such as in movies like Nikaah (1982) we hear of only one aspect, whereas a long process precedes what is the actual talaq. For instance, the man has to demonstrate all efforts at reconciliation, mediation, and clearly arrive at terms of separation, with all financials spelt out, and despite this, each talaq has to have a gap of one month from the previous one.

The system, which was built to protect women, is often misused by men and the system for their benefit. Many families sign a nikahnama without reading or negotiating it. The clause that allows tafweez—a powerful right for women—is rarely activated, simply because people don’t know it exists, or assume it is “not for women”. In practice, this leaves one of the most progressive elements of Muslim law invisible.

While public discourse has been dominated by the 2019 criminalisation of triple talaq, post the Shah Bano case and how it is unfair to women, what is deflected in the process is that popular media tends to present Muslim women as victims with no agency. The more nuanced reality—where Muslim law provides early, structured exit routes for women—doesn’t fit neatly into dominant political narratives, so it is seldom highlighted. The repeal of triple talaq did little to shift the narrative, because the narrative had already taken root. By criminalising triple talaq, the courts have made it look like they are safeguarding Muslim women, while what they are actually doing is targeting Muslim men, and we all know it is just another form of bigotry.

In the Shameem Ara vs State of UP (2002), it was clearly spelt out in a Supreme Court ruling that if the steps are not followed, the divorce is not valid. Similarly, there have been other legal milestones—such as the Dissolution of Muslim Marriages Act (1939) and the Muslim Women (Protection of Rights on Divorce) Act (1986)—post the Shah Bano case, which enabled women to approach the court for maintenance and settlement after a divorce and made the man accountable for it. Under the Daniel Latifi judgement, it was clarified that Muslim women can use both CRPC 125 and this new act, thereby strengthening their legal protections.

“Technically, more Hindu men are in second marriages, because until 1955, when the codification happened, a Hindu man could marry any number of women, have any number of relationships, and they were all valid,” D’Mello reveals. “But post 1955, when monogamy law came in, all these other women they were in a relationship with got cut away from their rights,” she adds.

But patriarchal interpretation, low literacy around marriage contracts, and an overwhelmingly narrow public discourse have kept these provisions from being widely understood or utilised.

“I enjoy working on Muslim women's cases, because I don’t have to waste years in court. If both parties agree to the terms, we can put it on a stamp paper and the divorce (mubara) is done. I always talk about progressive Muslim women’s rights at every lecture and also how it doesn’t translate into practice because something else is at play,” says D’Mello.

Even though the law provides for female-led divorce, social gatekeeping often intervenes. Women may be discouraged from seeking khula or faskh, or not have access to Sharia courts or a Qazi who supports their petition. Also, most Qazis are men, thereby limiting women’s representation and voice in religious legal matters, which further limits visibility.

“In practice, however, it doesn’t happen, because patriarchy is the gatekeeper. Despite their socio-economic class or their education, most men want to get away with not giving the woman anything,” says D’Mello. “Nobody wants to give women their rights,” she concludes.