WIDOWS RIGHT TO RETENTION IN MUSLIM LAW

This article was written by Surima Singh, a student of the Christ Academy Institute of Law, Bangalore.

Introduction

India could be a various nation, and its residents, no matter their sex, caste, religion, or color, have a chance for huge growth as a result of the fundamental rights granted to people partly of the Constitution. Muslim women’s rights are a subject of discussion since the 1950 Constitution went into force. Despite many constitutional safeguards, the standing of Muslim girls has not improved as a result of spiritual proclamations and also the government’s conservative stance. Muslim girls have very little rights in terms of wedding, polygamy, divorce, and inheritance as a result of the centuries-old beliefs of Islam still being valid. Muslim women’s rights are injured by the patriarchic nature of Muslim personal law, prompting a prolonged battle by Muslim girls for gender equality in wedding, divorce, and property rights. moreover, the dearth of totally outlined Muslim personal laws has created substantial challenges for girls because of uncertainty in various rights interpretations of the sacred text. moreover, unnumerable incorrect “fatwas” are declared against Muslim women’s rights. As a result, Muslim girls square measure systematically the poorest and most marginalized members of the Muslim community. The objective of this document is to educate readers on Muslim women’s rights, particularly their entitlement to receive Dower and to lien the property of a deceased spouse in lieu of Dower.

Historical Background

Islam was the world’s first faith to acknowledge girls as legal people with equal rights to men. Women’s freeing from oppression could be a priority for Islam, that strives to produce them with equal rights and therefore the dissolution of wedding. Women’s identity as men square measure recognised in Muslim personal law. Men and girls square measure equal within the Koran, and women’s rights square measure capable their duties. Women’s commands within the Koran, on the opposite hand, were met with resistance in several communities since they directly challenged male dominance and created girls’ capable men in each side. The absence of correct written legislation in Muslim personal law has been an enormous challenge for Muslim ladies, golf stroke them during a precarious position as a result of the paradox around various rights and sacred writing interpretations.

Muslim students should begin formulating a comprehensive and well-codified legislation that exemplifies the Quranic spirit as shortly as potential. Polygamy, as an example, was at one time authorized within the Quran to assist ladies in distress, like widows and orphans. Similar behaviors, however, have resulted in severe imbalance for girls in today’s globe. thanks to the uncodified Muslim Personal Law, Muslim ladies still battle for elementary rights despite worldwide advancements in women’s rights.

Personal laws in Bharat, significantly Muslim personal laws, are a tough diplomatic topic that has caused impassioned discussion. However, many statutory measures are developed to ensure that Muslim women’s rights are safeguarded, so as to satisfy the fundamental right to equality enshrined in Article fourteen of the Indian Constitution. The Muslim Personal Law (Shariat) Application Act of 1937, The Dissolution of Muslim Marriages Act of 1939, and therefore the Dissolution of Muslim Marriages Act of 1939 make sure the security of married women’s rights beneath Muslim law with reference to Dower on the dissolution of their marriages, also because the rights of Muslim girls United Nations agency are single by, or have obtained a divorce from, their husbands.

The conception of a lady as a dependent UN agency transition from her fathers to her husband’s duty is established within the problems that ladies encounter within the sphere of wedding. wedding could be a contract between two people for the goal of replica and kid raising, in step with Muslim law. below Muslim law, an adult female or widow incorporates a few rights that enable her to compel her husband or in-laws to pay her dower. The woman’s right to refuse inhabitancy, her right to dower, and her right to preserve her deceased husband’s belongings square measure among these rights.

Muslim jurisprudence colleges regard the Dower to be a significant a part of the wedding. though it’s not constant as a civil contract, Mahr (dower) could be a term utilized in Muslim Personal Law to talk to cash or property that the girl is entitled to receive from the husband in exchange for the wedding. Dower is just a mark of respect for the married woman that the husband is needed to pay. the key purpose of imposing the dower condition is to confirm the wife’s support within the event of her husband’s death or divorce. The construct of dower has conjointly received legal authority, since it’s enclosed within the calculation of maintenance underneath Section a 125 CrPC 1973.

Rights of women in Muslim Personal laws

Our country’s most revolutionary family legislation is that the Muslim Personal Legislation. It acknowledges a woman’s independence and individuation from her father, spouse, and different male members of the family. Despite the very fact that the Book and law grant ladies a range of rights, these rights are entirely notional. several of those rights don’t seem to be afforded to Muslim ladies in practise as a result of their thought of to be communally bond to declare them.

Property Rights of Muslim Women

Property rights for Muslim girls, like all alternative rights, area unit the end result of a protracted battle between conservative and liberal forces. In terms of property rights, Muslim girls in Republic of India have traditionally had fewer rights than their male counterparts. Men area unit entitled to a much bigger share and title within the property and estate since they’re perpetually needed to cater for the wants of women.

Dower, on the opposite hand, is a necessary notion in Islamic law that’s directly tied to the property rights of Muslim ladies. Dower could be a gift given by a Muslim husband to his better half as a gesture of respect at the time of their wedding, indicating his sincerity and love for the wedding and his better half. Dower may be within the type of cash or the other valuable object, however it should be approved by the better half. once associate object or property is obtainable as Dower, the women are given sole possession of it. what is more, the Muslim wife’s complete possession of the Dower property demonstrates Muslim personal law’s extreme approach to imposing property rights on ladies so as to market matrimonial equality.

Dower

Dower is the amount of money or property that a Muslim woman is entitled to receive as a token of her husband’s respect for her and the marriage. In Islam, marriage is regarded as a civil law contract that evolved from the bridegroom’s purchase of the bride. Dower is an unusual Islamic notion that has been divinely commanded and recognized by the law.

In the case of Abdul Kadir v. Salima,[1] it had been explicit that dower wasn’t a financial payment created by a person to a girl reciprocally for wedding, however rather an impression of the contract obligatory by the law on the husband as a mark of respect for the married person. The court determined in Sayed Sabir Hussain v. Farsand Hussain that the dower paid by the husband to the married person planted the husband’s burden. within the case of Anis Begam v. Mohd. Istafa,[2] it had been conjointly explicit that in Muslim law, dower couldn’t be viewed entirely because the wife’s sale of her body in exchange for the payment of dower. The dower is employed as a concrete kind of settlement in favor of the girl, and to confirm that the husband doesn’t have any unequal power within the event of divorce.

WIDOW’S RIGHT TO RETENTION

A Muslim widow’s right to retention allows her to remain in possession of her husband’s property after his death. A widow with a pending dower debt has the right to keep the husband’s properties until her dower is paid. The privilege is known as the right of retention in lieu of unpaid dower and applies when a marriage is dissolved by death or divorce. Unless she has a contractual right of lien or possession, a woman does not have the right of retention during the marriage.

It is argued in Hamira Bibi v. Zubaida Bibi[3] that, because of the character of the rights of retention, no permission is needed, particularly given the well-established presumption that a widow’s possession should be lawful and gained while not force or fraud.

The following area unit the ramifications of the correct of retention:

1. The widow should account for all of her earnings and profits: A Muslim widow World Health Organization retains possession of property underneath her right of retention should account for all rentals and profits to those that area unit entitled to them.
2. She lacks jurisdiction to sell the property: She has the correct to satisfy her dower-debt with the property’s revenue and earnings, however she doesn’t have the correct to transfer the property for profit or for worth.
3. Widows have the proper to sue to regain their dower: Her right of retention doesn’t preclude her from suing to recover her dower obligation. during this state of affairs, she’ll need to provide to present up possession in exchange for payment of her dower debt. She will not be able to maintain possession of the property whereas conjointly getting a dower-debt ruling in her favour

Response of Judiciary

The right of a widow to mortgage her late husband’s property in role of unpaid dower has been debated for a protracted time and is presently being debated.

In the case of Hamira Bibi v Zubaida Bibi,[4] the council outlined the widow’s special power to enforce her claims for unpaid dower. “Dower could be a crucial side in Muslim law to the standing of wedding… the dower ranks as a debt, and therefore the girl is entitled to own it consummated out of the husband’s assets on his death, along with alternative creditors,” remarked Lord Parker. Her rights, however, area unit constant as those of the other unsecured mortal, with the exception that if she lawfully obtains possession of the total or a part of the husband’s estate to satisfy her claim with the rents and problems arising therefrom, she is entitled to stay such possession till her claim is glad. this is often called a widow’s lien for dower, and it’s the only creditor’s claim recognised beneath Musalmman law by British people Indian Courts and this Board.

In the case of Maina Bibi v Chaudhri Vakil Ahmed,[5] it absolutely was dominated that a widow has the proper to carry a property once it’s been lawfully nonheritable till her dower obligation has been paid underneath Muslim law. The widow’s right of retention doesn’t confer possession of the property on her. she will merely hold possession and take the legal right till her dower debt is paid. She has no right to sell, mortgage, gift, or otherwise alienate the property, and if she makes an attempt, she’s going to lose her right to stay it. in step with the Supreme Court, the widow doesn’t fancy precedence over her husband’s different unsecured creditors.

In the case of Sikandar Ara vs. Hussan Ara,[6] the law declared that the wife’s custody of the husband’s property may continue when the husband died till the Dower was regained. in keeping with the council, the Muslim Law provides the widow the proper to stay the property she has peacefully and properly noninheritable till her dower due is happy. They went on to feature that it is not a lien, a mortgage, or a usufructuary, that could be a right to use and have the benefit of somebody else’s property as long because the property is not broken in any means.

The issue of whether or not a widow’s right to lien her deceased husband’s property in function of unpaid dower is transferable and patrimonial was reviewed within the case of a widow’s right to lien her deceased husband’s property in function of unpaid dower. there’re heaps of conflicting judicial opinion on this matter.

The right to stay the property is patrimonial, in step with the Bombay tribunal in Mir Vaheed Ali v Rashid Beg.[7] The Mysore tribunal determined in Hussain v Rahim Khan[8] that the correct to carry the property in function of unpaid dower is each patrimonial and transferable. The province tribunal command in Ghouse Yar khan v Fatim Begham[9] that the property maintained by the widow in position of unpaid dower beneath Muslim personal law may be alienated and hereditary. The Patna tribunal set that the privilege isn’t transferable within the case of Zobair Ahmad v Jainandan Prasad.[10] in keeping with the Supreme Court in Kapore Chand v Kedar Unnissa,[11] the proper to possession of property isn’t a transferable right.

Conclusion

Islam has raised the position of girls in society by making a slew of rules designed to safeguard them and make sure that they live respectable and dignified lives. several privileges, like wedding preference, inheritance, and so on, are granted to Muslim girls beneath Muslim personal norms. Muslim personal law additionally aims to ensure that girls have an appropriate social position once wedding. The Muslim girl has the correct to select her married person, and also the contract should have her agreement so as to be legal. it’s affordable to conclude that Muslim girls have lower property rights than men and girls of different religions. The lack of written Muslim laws is one reason for this prejudice. However, in Islam, there’s Associate in Nursing inherent thought of Dower, that grants Muslim girls some property rights. The notion of dower rights is alleged to possess been developed by God and his prophet Muhammad. Dower is needed in Islam, no matter whether or not the wedding document specifies it or not. A dower may be specific or specific and appropriate. If dower rights don’t seem to be paid now when wedding, they become due once the wedding ends, whether or not through divorce or the husband’s death. Any Muslim wedding should embrace dower rights as a condition.

Different Courts round the country have issued varied opinions on this matter. What must be seen is however the jurisprudence on this subject can evolve. Islamic law is sufficiently forward-thinking that it’d function the muse for an identical Civil Code. Conservative Muslim cultures have elevated the Quran’s statements to their own level and enforced a slew of restrictions on women’s right.

[1] (1886) ILR 8 All 149

[2] AIR 1933 All 634

[3] (1916) ILR 38 All 581

[4] (1916) ILR 38 All 581

[5] (1925) 27 BOMLR 796

[6] Sikandar Ara vs. Hussan Ara. AIR 1916 Oudh 136

[7] Mir Vaheed Ali v. Rashid Beg, AIR 1951 BOM 22

[8] AIR 1954 MYS 24.

[9] AIR 1988 AP 354.

[10] AIR 1960 Pat 147

[11] Kapore Chand v. Kedar Unnissa, [1950] SCR 747