Women, Islamic Law, and the Indian Constitution: A Critical Analysis of Correlation

and Contradictions

Introduction

India’s legal system is a remarkable fusion of modern principles and ancient traditions,
crafting a complex framework that governs its richly diverse populace. The Constitution,
through Articles 14 and 15, lays a robust foundation of fairness, promising equality before
the law and explicitly prohibiting discrimination based on gender—a transformative
commitment designed to elevate the status of all citizens, particularly women.[1] Yet, for
Muslim women, an additional layer of governance often takes precedence: Islamic personal
laws, deeply rooted in the Shariat and formalized by the Muslim Personal Law (Shariat)
Application Act of 1937.[2] These laws regulate pivotal aspects of life—marriage, divorce,
and property inheritance—sometimes harmonizing with the Constitution’s progressive vision,
and at other times standing in stark opposition. A widow, for instance, might secure a
modest inheritance under Shariat, reflecting Article 21’s emphasis on a dignified existence,
yet encounter restrictions that undermine the equality enshrined in Articles 14 and 15.

This paper investigates the intricate relationship between Islamic law and the Indian
Constitution, focusing on their profound impact on Muslim women across the nation. The
issue is both urgent and significant, thrust into the spotlight by recent milestones like the
2019 ban on triple talaq and the persistent, often polarizing debates surrounding a Uniform
Civil Code (UCC) aimed at unifying personal laws across religious communities. “The
tension between personal laws and constitutional guarantees remains a central challenge for
advancing women’s equality in India’s pluralistic society,” writes Engineer (Engineer 33).[3]
By tracing historical developments, analyzing legislative efforts, reviewing judicial
interventions, and drawing on international perspectives, this analysis seeks to illuminate
where these two legal systems converge to support women’s rights and where they diverge,
creating contradictions that hinder progress. The question at the heart of this study is both
simple and profound: can India reconcile its commitment to religious freedom with its pursuit
of gender justice? For the millions of Muslim women navigating this dual legal landscape,
this is not a theoretical debate but a daily reality that shapes their security, autonomy, and
societal role—a reality that demands thorough exploration and thoughtful resolution.

Historical Context

The history of Islamic personal law in India stretches back centuries, beginning with the
arrival of Muslim rulers who introduced Shariat-based governance to the subcontinent. Over
time, these laws intertwined with local customs, resulting in a diverse array of practices that
differed by region and community. By the 19th century, British colonial administrators sought
to impose order on this heterogeneity, applying Shariat uniformly to Muslim personal matters
such as marriage, divorce, and inheritance—a practice cemented with the enactment of the
Muslim Personal Law (Shariat) Application Act of 1937.[4] “This legislation aimed to provide
Muslims with a cohesive legal identity, but it also preserved rules from an earlier, patriarchal
era,” Ahmad explains (Ahmad 67).[5] These rules included provisions like polygamy,
permitting a man to marry up to four wives under specific conditions, and inheritance laws
that allocated larger shares to male heirs, reflecting a societal norm where men were
deemed primary providers and protectors.
The introduction of the Indian Constitution in 1950 marked a pivotal shift toward a more
egalitarian framework. Article 14 guarantees equality before the law, Article 15 prohibits
discrimination on the basis of sex, and Article 44, though a non-enforceable Directive
Principle, urges the state to strive for a UCC to standardize personal laws across all
communities.[6] Yet, Article 25 safeguards the right to practice religion freely, carving out a
legal space for Shariat to coexist alongside constitutional mandates.[7] This duality became
apparent shortly after independence. In 1951, the Hindu Code Bills overhauled Hindu
personal laws, granting women enhanced rights in marriage, divorce, and succession, but
parallel reforms for Muslim laws faced fierce opposition from religious leaders who viewed
them as an assault on their cultural autonomy.[8] “The early years of independence
highlighted a delicate balancing act—pursuing national unity while respecting religious
diversity,” Engineer notes (Engineer 48). The 1985 Shah Bano case later crystallized this
tension: when Shah Bano, a divorced Muslim woman, won maintenance under secular law,
it sparked a nationwide controversy, culminating in the 1986 Muslim Women Act that
partially reversed her victory, bowing to conservative pressure. This historical journey—from
medieval roots to colonial codification to postcolonial debates—explains why Muslim women
today live under two distinct legal regimes: one anchored in religious tradition, the other in
the state’s secular aspirations, setting the stage for both synergy and strife.

Areas of Agreement

Despite their apparent disparities, Islamic law and the Constitution share several objectives,
particularly in safeguarding women’s fundamental needs and rights. A key example lies in
the provision for maintenance. Under Shariat, a husband is obligated to financially support
his wife and children during marriage and, in the event of divorce, for a brief period known as
iddat—typically three months following the separation.[9] “This obligation ensures a woman
isn’t left entirely without means,” Mulla observes (Mulla 189). The Constitution bolsters this
through secular mechanisms like Section 125 of the Criminal Procedure Code, which entitles
any woman—irrespective of religion—to seek maintenance from her husband if she cannot
sustain herself.[10] In the landmark *Daniel Latifi v. Union of India* case of 2001, the
Supreme Court interpreted the 1986 Muslim Women Act to extend maintenance rights for
Muslim women beyond iddat, aligning Shariat’s protective intent with constitutional principles
of equality and dignity.[11] “This ruling effectively bridged religious and secular law,
prioritizing women’s welfare over strict tradition,” Fyzee argues (Fyzee 123).

Marriage consent provides another point of convergence. Shariat mandates that a bride
must freely consent to her marriage—forced unions are deemed invalid under Islamic
principles, a rule rooted in the Prophet’s teachings.[12] “The requirement of consent is a
critical safeguard, ensuring a woman’s voice is heard in one of life’s most significant
decisions,” Fyzee emphasizes (Fyzee 92). This aligns seamlessly with Article 21 of the
Constitution, which protects personal liberty and the right to make autonomous choices,
including in matrimonial matters. The practice of mehr—a compulsory gift from the groom to
the bride, payable either at the time of marriage or deferred—further supports this alignment,
offering a financial safety net that echoes Article 21’s emphasis on a dignified life. While
enforcement of mehr varies, with some families treating it as a token gesture rather than a
substantial sum, its underlying purpose mirrors the Constitution’s aim to secure women’s
well-being. These overlapping goals—maintenance and consent—demonstrate a shared
commitment to protecting women, though their full realization often depends on judicial
efforts to reconcile discrepancies and strengthen enforcement.

Points of Conflict

The harmony between Islamic law and the Constitution unravels in several critical areas,
where their principles and practices diverge dramatically. Divorce was a glaring example
until recent reforms. Triple talaq allowed a husband to unilaterally dissolve a marriage by
pronouncing “talaq” three times, often without notice, leaving the wife with minimal support
beyond the iddat period.[13] “This practice blatantly undermined the fairness guaranteed by
Article 14,” the Supreme Court ruled in *Shayara Bano v. Union of India* (2017), declaring it
unconstitutional and banning it outright.[14] Even post-ban, women seeking divorce through
khula—a process initiated by the wife—face additional hurdles, such as returning the mehr
or proving specific grounds like cruelty, whereas men’s divorce options remain less
restrictive, clashing with Article 15’s mandate for equal treatment across genders. This
imbalance persists despite the 2019 law, as khula’s procedural demands contrast with the
Constitution’s push for parity.

Inheritance laws reveal another deep-seated conflict. Under Shariat, a widow inherits a fixed
portion of her husband’s estate—one-eighth if there are children, one-fourth if not—while
sons receive significantly larger shares, often double that of daughters.[15] “This inherent
inequality stands in direct opposition to Article 15’s prohibition on gender-based
discrimination,” Engineer contends (Engineer 89). Take a practical case: a father dies
leaving an estate worth 10 lakh rupees; a son might inherit 6 lakhs while a daughter receives
3 lakhs, solely due to their gender—a disparity the Constitution’s equality framework
explicitly rejects. Polygamy exacerbates this divide. Rooted in Quran 4:3, Shariat permits a
man to marry up to four wives if he can treat them equitably—a condition rarely enforced or
monitored in practice.[16] Women have no equivalent right, and the arrangement frequently
results in unequal resource distribution among wives, challenging Article 14’s equality before
the law and Article 21’s promise of dignity. These contradictions translate into real-world
disadvantages, limiting women’s financial security, social standing, and personal agency in
ways that the Constitution aims to rectify, yet struggles to fully address within the current
legal coexistence.

Legislative Reforms and Impact

Legislative efforts over the decades have sought to mitigate these tensions, though their
outcomes have been inconsistent. The Dissolution of Muslim Marriages Act of 1939 was an
early milestone, granting women the right to seek divorce on grounds such as cruelty,
desertion, or a husband’s failure to provide maintenance—a significant step toward
empowering women within the Shariat framework.[17] “This law provided a vital escape
route for women trapped in unbearable marriages,” Ahmad writes (Ahmad 112). However, its
impact was curtailed by social stigma, lack of awareness, and limited legal access, which
deterred many from invoking it. The 1986 Muslim Women (Protection of Rights on Divorce)
Act followed the *Shah Bano* case, where a divorced Muslim woman’s victory under secular
law for ongoing maintenance sparked a fierce backlash from conservative groups.[18] The
Act restricted maintenance to the iddat period, a compromise that critics argue dodged the
broader equality demanded by the Constitution. “It prioritized political appeasement over
substantive justice,” Engineer critiques (Engineer 101).

The most transformative reform arrived with the Muslim Women (Protection of Rights on
Marriage) Act of 2019, which criminalized triple talaq in response to the *Shayara Bano*
ruling.[19] “This legislation marked a turning point, compelling Shariat to align with
constitutional standards of fairness,” Fyzee notes (Fyzee 145). Its effects are tangible—
government data suggest a decline in triple talaq incidents, with men now facing up to three
years in prison for violating the law, deterring its casual use. Yet, polygamy remains legally
permissible, and inheritance laws have seen no parallel overhaul, leaving substantial
inequalities unaddressed. These reforms illustrate Shariat’s capacity to evolve under
constitutional pressure, but their fragmented nature highlights the challenge of achieving
comprehensive change in a system deeply tied to religious identity and community
sentiment.

Comparative Perspective

Examining how other nations navigate similar issues offers valuable lessons.
Tunisia, a Muslim-majority country, outlawed polygamy in 1956, arguing that
genuine equality between spouses was unattainable under such a system and
reinterpreting Islamic teachings to support this progressive shift.[20] Turkey
pursued a more drastic path in the 1920s, abolishing Shariat entirely in favor of a
secular civil code—a move that mirrors India’s UCC aspiration and prioritizes
uniformity over religious specificity.[21] “Both Tunisia and Turkey modernized
their legal systems while preserving their Muslim identity,” Engineer observes
(Engineer 120). Malaysia, by contrast, retains polygamy but subjects it to
rigorous oversight—men must secure court approval and demonstrate financial
and emotional capacity to support multiple wives, reducing its 随意性 (arbitrariness)
and mitigating some of its harsher effects.[22] India’s dual system—maintaining
Shariat alongside constitutional law—stands out as a unique experiment in
pluralism, prioritizing cultural diversity over rapid reform. “Our approach reflects
a deep commitment to coexistence, but it often delays progress on gender
equity,” Ahmad reflects (Ahmad 165). These international models suggest a
spectrum of possibilities for India: internal reform within Shariat, a shift to a fully
secular code, or stricter regulation of traditional practices—each offering distinct
pathways to balance faith and fairness.

Analysis and Relevance

For Muslim women in India, the interplay between Islamic law and the Constitution is a lived
reality with profound and far-reaching consequences. The 2019 triple talaq ban has
alleviated one significant source of insecurity, offering women protection from abrupt and
unilateral divorce—a change that has empowered many to challenge such practices without
fear of immediate abandonment.[23] Yet, polygamy persists as a legal option, compelling
numerous women to share husbands and resources in arrangements that often erode their
autonomy, emotional well-being, and financial stability. Inheritance laws further compound
these challenges, leaving daughters and widows with smaller shares than male relatives,
frequently consigning them to economic dependence or hardship.[24] “These aren’t mere
legal quirks—they dictate how women survive and thrive,” Ahmad writes (Ahmad 134). With
India’s Muslim population exceeding 200 million, these dynamics affect millions of lives,
rendering this a national issue of immense scale, urgency, and social significance.

The points of conflict between Shariat and the Constitution overshadow their areas of
agreement. While maintenance and consent reflect shared protective aims, these alignments
often require judicial intervention to hold—Shariat alone falls short of constitutional
benchmarks without external push.[25] Inheritance, polygamy, and pre-2019 divorce
practices expose a deeper rift: Shariat’s traditional roots struggle to adapt to Article 15’s
insistence on gender equality and Article 21’s vision of dignity for all. “The Constitution sets
an ambitious standard that personal laws haven’t fully embraced,” Fyzee argues (Fyzee
178). Tunisia’s example—reforming within an Islamic framework—offers a compelling model:
equalizing inheritance shares or imposing stricter controls on polygamy could bring Shariat
closer to constitutional ideals without alienating its adherents. “Change doesn’t need to be
abrupt—small, steady steps can build momentum,” Engineer proposes (Engineer 140). Yet,
resistance remains formidable—religious communities often perceive reforms as threats to
their identity, and fostering trust in such changes is a slow, delicate process. India’s
challenge lies in navigating this complex terrain, ensuring progress toward gender equity
without fracturing its pluralistic fabric—a task that demands both patience and resolve.

Conclusion

Islamic law and the Indian Constitution converge on essential protections like maintenance
and consent, providing Muslim women with some common ground between tradition and
modernity. However, they diverge sharply on divorce, inheritance, and polygamy, where
Shariat’s historical norms clash with constitutional guarantees of equality and dignity.[26]
Legislative reforms—from the 1939 Dissolution Act to the 2019 triple talaq ban—
demonstrate that Shariat can evolve under constitutional pressure, yet significant disparities
persist, leaving women caught between two legal worlds with differing priorities. “India faces
a pivotal choice,” Ahmad urges (Ahmad 189). A gradual approach—adjusting inheritance
laws to ensure gender-neutral shares or imposing tighter regulations on polygamy—could
align Shariat with constitutional values without dismantling its cultural role entirely. For the
millions of Muslim women affected, this isn’t merely a legal question but a matter of fairness,
opportunity, and empowerment. Finding a balanced path forward—honoring both faith and
justice—remains one of India’s most pressing and intricate challenges, requiring careful
deliberation and sustained effort.

Works Cited

Ahmad, Furqan. Understanding Muslim Personal Law. Oxford UP, 2010.

Constitution of India, Articles 14, 15, 21, 25, 44.
Engineer, Asghar Ali. The Rights of Women in Islam. Sterling Publishers, 2008.
Fyzee, Asaf A. A. Outlines of Muhammadan Law. Oxford UP, 2008.
Mulla, Dinshah Fardunji. Principles of Mahomedan Law. LexisNexis, 2015.
Muslim Personal Law (Shariat) Application Act, 1937, Government of India.
Daniel Latifi v. Union of India, (2001) 7 SCC 740.
Shayara Bano v. Union of India, (2017) 9 SCC 1.
The Dissolution of Muslim Marriages Act, 1939, Government of India.

Footnotes.

[1] Constitution ensures equality and non-discrimination (Articles 14, 15).

[2] 1937 Shariat Act governs Muslim personal laws.
[3] Engineer highlights personal law tensions (33).
[4] British codified Shariat for family matters.
[5] Ahmad critiques the Act’s rigidity (67).
[6] Articles 14, 15, and 44 aim for equality and uniformity.
[7] Article 25 protects religious practices.
[8] Hindu Code Bills reformed Hindu laws, not Muslim ones.
[9] Shariat mandates support during iddat.
[10] Section 125 CrPC offers secular maintenance.
[11] Daniel Latifi extended maintenance rights (2001).
[12] Consent is key in Islamic marriage.
[13] Triple talaq allowed quick divorce until 2017.
[14] Shayara Bano banned triple talaq (para 56).
[15] Shariat favors male heirs in inheritance.
[16] Polygamy permitted under Quran 4:3.
[17] 1939 Act gave women divorce options.
[18] 1986 Act limited maintenance post-Shah Bano.
[19] 2019 Act criminalized triple talaq.
[20] Tunisia banned polygamy in 1956.
[21] Turkey adopted a secular code in the 1920s.
[22] Malaysia regulates polygamy strictly.
[23] Triple talaq ban protects women from sudden divorce.
[24] Inheritance rules disadvantage women financially.
[25] Shariat needs judicial push to meet constitutional goals.
[26] Divorce and polygamy highlight legal divides.