Next to the rights of daughters in their parents’ home, I take up the rights of wives in Islam. Here, the tragedy is that the very concept of marriage in Islam-which has its unique features-has been grotesquely distorted.
Many celebrated non-Muslim authors on Islamic law whose books are heavily relied upon in our courts have defined Muslim marriage as “a contract which has for its object procreation and legalization of children”.
To regard marriage in Islam as an object-bound “contract” in the English jurisprudential sense of that word is indeed a slur on the Qur’an which proclaims marriage to be a mithaq- haled-a “sacred covenant”.
Once a marriage comes into existence, it is to be treated with all the essential attributes of a sacred covenant. The contractual element attaches to it only at the formative stage; and there it is meant for the mutual benefit of the parties.
ADVERTISEMENTS:
A man and woman intending to become life-partners can, at the very inception, mutually settle their own terms for the entire duration of the intended partnership and in respect of all its aspects and phases.
Law itself does not bind them with any rigid and monotonous terms partnership. It only tells them that ‘you may become husband and wife on condition that you yourselves may jointly agree to’.
Can there be a wider freedom for man and a greater boon for the woman? In exercise of this contractual freedom in marriage a woman may stipulate that her husband will never impose a co-wife on her, may restrict his capacity to dissolve the marriage, and may reserve for her the right to work or the freedom to live in a particular place.
In other words, the rights that other legal systems are now giving to women by imposing legislative or judicial regulations were decreed to them by Islam fifteen hundred years ago under the umbrella of its doctrine of contractual freedom in marriage.
ADVERTISEMENTS:
Every married woman must, in Islamic law, receive from her husband, as a token of respect and a social security, some money or property or another valuable thing. This is called mahr.
When and what-these questions in respect of mahr are, again, left to be settled by the spouses mutually. Failing their agreement, law provides definite answers to these questions.
It is a great folly to regard mahr either as a ‘contractual consideration’ or ‘marital dowry’. It is different from both and it belongs absolutely and exclusively to the wife and wife alone.
On marriage a Muslim woman loses nothing that she had before that. She retains her maiden name and does not become “Mrs. or Shrimati so and so”.
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She retains her independent personality and does not become either the “ardhangani” (half part) or the “better half” of her husband. She retains all the property that might have vested in her and does not lose her right either to earn or to inherit.
She retains her legal capacity to enter into transactions in her own right. There is no merger of her personality into that of her husband in any degree or in any sense of the term.