Asghar Ali Engineer is a rights activist and heads the two organisations, Institute of Islamic Studies and Centre for Study of Society and Secularism. He has authored or edited 44 books on such  issues  as  Islam and communal and ethnic problems in India and South Asia in general.  For links to his other articles, please go to the top page of this site.

Muslim women, like other women, have been suffering for long for lack of empowerment in the male dominated society. Pakistan and Bangla Desh, once part of India, have been no different in this respect. The women there suffered as much as in India for lack of rights. However, some changes were enacted in the Muslim personal law in Pakistan in 1961 during Ayub Khan's regime under intense pressure from women's organisations.  

           Triple divorce in one sitting was abolished and the Qur'anic concept of arbitration as indicated in the verse 4:35 which is quite fair to woman as she too has right to appoint an arbitrator to take care of her interests in the matter of divorce. Also, for polygamy the Muslim family ordinance promulgated by Ayub Khan in 1961 made it obligatory on the husband taking second wife to notify the first wife, obtain her approval and also to convince the court of law as to why second wife is needed. This was a great relief for Muslim women of Pakistan. That time Bangla Desh was an integral part of Pakistan and had not seceded from it. 

           This amended law continued in Bangla Desh even after it seceded from Pakistan. Even in Pakistan during hey day of Islamisation during Zia-ul-Haq's regime, despite pressures from the orthodox, these amendments to the Muslim personal law in Pakistan could not be withdrawn. They are still valid in both the countries. 

           The case of Bangla Desh is quite interesting. It is, for many reasons not to be discussed in detail here, bundle of contradictions. There are strong secular and progressive trends as well as ultra-orthodox ones. Both have strong presence. The Bangla Desh culture is a strong influence in contending orthodoxy but the semi-literate imams on the one hand, and ideologically oriented Jamat-e-Islami elements, on the other, dominate the orthodox trends. The secular and liberal elements strongly contend with the orthodoxy. A couple of months ago the Dacca High Court gave a ruling against triple divorce and also said in its judgement that any imam of the mosque giving fatwa in favour of triple divorce is liable to be prosecuted. 

           This ruling by the Court caused a great stir in the orthodox circles and a call for strike was given by the Jamat-e-Islami and other orthodox elements which virtually turned into a battle between the secular and progressive elements and the orthodox elements resulting in loss of several lives. Similarly the Dacca High Court had ruled in 1999 that a divorcee is entitled for maintenance for life or until she remarries and this ruling was based on interpretation of the Qur'anic verse 2:241. The judges ruled interestingly that since maintenance is meant for a divorcee, she shall be entitled to it as long as she remains divorcee. This progressive judgement was unfortunately overturned by the Supreme Court of Bangla Desh. 

           Thus we see that the progressive and orthodox forces keep strongly contending against each other in Bnagla Desh. The secular forces in that country have been demanding further changes in the Muslim personal law. It is, however, interesting to note that like the Muslim minority in India the Hindu minority in Bangla Desh resists any change in their personal law. Thus the Hindu women in Bangla Desh are still governed by their age-old traditions and laws. 

           Now the Government of Bangla Desh have prepared draft laws for enactment which go much further than the Muslim family ordinance of 1961. This draft has been approved by the opposition leaders like Khalida Ziya also. Khalida has an alliance with the conservative Jamat-e-Islami. Hasina Wajed, of course, has full support of the liberals and progressive elements. The proposed laws are going to be uniform in nature and will apply to all. This uniform family code to be enacted will offer women greater control over their lives. Divorce, according to the sources, may no longer be a traumatic experience for women in Bangla Desh. 

           The main purpose of enacting the Uniform Family Code seems to reform existing family laws to make them more humane and beneficial for women. These laws will end discrimination against women and will give them equal status in the society whatever religion they belong to. This uniform family code (UFC), under active consideration of the Government has been prepared by the Bangla Desh Mahila Parishad. This women's organisation has been pressing for women's rights for last thirty years.  

           According to Ayesha Khan, General Secretary of Bangla Desh Mahila Parishad (BMP), we realised that women are subject to oppression and discrimination in matters relating to personal rights. They are also denied access to opportunities for development, despite the Constitution guaranteeing equality to men and women." Ayesha Khan also said that though certain laws for women do exist like Cruelty to Women Ordinance, Dowry Prohibition Act and the Family Court Ordinance, structurally. Ayesha Khan also maintained that though 85% population in the country was of Muslims UFC cuts across all religions. 

           The first part of UFC deals with marriage and divorce. According to this new Code it will be obligatory to register marriage and divorce. This part also lays down that the age of marriage for the boys shall be 22 and that of girls 18. In Bangla Desh many girls, especially in rural areas, are married off as soon as they reach age of puberty and sometimes even earlier. These marriages, needless to say, are hardly ever registered.

           These girls, married at an early age suffer greatly when either they are abandoned or divorced by pronouncing triple divorce. If marriages and divorces are registered, it will give women legal grounds to get what is rightfully theirs, points out Tania Amir, a prominent lawyer. In India too the National Women's Commission had recommended compulsory registration of marriages but the orthodox religious persons opposed it vehemently and this recommendation was never considered by the Government. In India too. It will do great service to women's cause if compulsory registration of marriages is made into a law. But such a measure will be strongly resisted by the orthodox elements of all the communities. 

           The proposed UFC also outlines grounds for divorce both for men as well as women. While there are eight grounds on which men can obtain divorce, women have ten. Besides the usual grounds like immorality, impotency, and physical and mental torture for which women can claim divorce, the UFC also puts down dowry demands as a valid ground. Of course dowry has no Islamic sanction but to make it a ground for divorce would be a new concept. Dowry is not practised in other Islamic countries but is unfortunately quite common among Muslims of the Indian sub-continent. In the recent seminar of Muslim women held in Delhi on 7-8 April 2001 the Ulama themselves agreed that dowry is an anti-Islamic practice and a campaign should be launched against it. 

           Desertion and impotency have clear sanction for divorce in Islamic shari`ah. The Dissolution of Muslim Marriage Act of 1939 gives a Muslim women right to divorce if husband deserts her for more than 4 years. The UFC, however, lays down that if husband does not pay maintenance for two years or is unheard of for the same period, a woman shall be entitled to demand divorce. In fact, even if the husband is addicted to drugs of any sort, divorce claim would be valid. A husband also could demand divorce if the wife is a drug addict. 

           It is, however, interesting to note that a husband, according to the draft UFC of Bangla Desh, will be entitled to divorce if wife is lesbian, a wife cannot claim divorce if husband is gay. These are also new grounds for divorce which do not exist in the traditional Islamic shari`ah. As impotency entitles a woman for divorce since she is deprived of her right to sex within marital frame-work, one can argue, through analogical reasoning (called qiyas in shari`ah terminology) a woman is deprived of sex if husband is gay (of course if he neglects her sexually) she could be entitled to divorce on that ground. 

           In the second part of the UFC            , maintenance is to be made compulsory and uniform transcending religious customs and traditional laws. While laying down the grounds for maintenance, it also lays down the course of action that should be taken if maintenance is not paid. Farida Arif, a woman activist from Bangla Desh says that the number of abandoned women is on the rise. Some trusts and NGOs look after the distressed women. Hence a clear line of action for maintenance is very necessary. 

           The other parts of UFC provide for appointment of guardians for minors, adoption etc. The UFC provides for uniform law of adoption. It simplifies procedure for adoption for married couples but does not make provision for adoption for single man or woman. One of the aspects of UFC is provision for uniform law of inheritance. Property rights are most contentious. According to UFC women, married or un-married, shall have equal rights to property. And for children born out of wedlock it gives them right in the maternal property. This will of course be most contentious part of UFC as in shari`ah law equal rights in property to women does not exist.  

           Of course the draft UFC will be opposed by the orthodox section but women organisations will put pressure for its enactment. The Muslim women in India are also now  pressing for change if one goes by the proceedings of the April seminar in Delhi where a  number of women critiqued the legality of triple divorce and polygamy and wanted the Muslim personal law board to de-legislate triple divorce and regulate polygamy. One woman from West Bengal even pointed out that 75% prostitutes in Calcutta from amongst Muslims are those who have been divorced by their husbands arbitrarily. It is high time for Muslim personal law board to approve the Nikahnama prepared by some Muslim women. It will give great relief to thousands of Muslim women in India. The Board cannot resist certain legitimate changes within the Shari`ah framework for long.