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Report No. 66

X. Muslim Women

3.35. Muslim women.-

We have so far dealt with the position of Hindu women. As regards, the legal position of Muslim women, it is well recognised that a Muslim married woman has generally the same power to do all juristic acts (i.e. acts recognised by law as affecting rights and liabilities), as if she were not married-except, of course, in respect of matters in regard to which the contract of marriage itself alters her rights or liabilities.

3.36. Islam recognised no equivalent of the "manus" of Roman law1, nor did it have any theory of merger of the personality of wife and husband.

1. Para. 3.5, supra.

3.37. The Muslim wife has, accordingly, power to dispose of her own property by gift, sale; or lease without the consent of her husband1-to cite one example of her independent status. Because of the non-recognition of the theory of unity in Muslim law, the wife may be convicted of theft of her husband's property2.

1. Nichhabhai v. Isse Khan Abdula Khan, (1866) 2 Bora HCR 297; Tyaleji Muslim (1968), p. 57 footnote 23.

2. (a) Cf. Lala Kundal Lal v. Musharrafi, (1936) 40 CWN 1903 (PC);

(b) Luteefoonissa v. Shed Rajoor Rahman, (1867) 8 WR 84 (Cal).

(c) R. v. Khato Bai, (1869) 6 Born HCR (Cr Cas) 9.

37A. Exalted position of women.- Ameer Ali, in his Spirit of Islam1, notes that in the early centuries of Islam, women continued to occupy as exalted a position as in modern society. He mentions the example of Zubaida, the wife of Harun, who played a conspicuous part in the history of the age. According to him, Humaida, wife of Faruk, a citizen of Maedina who was the sole guardian of her minor son Rabya-R-Ray, educated her son to become one of the most distinguished Jurisconsults of the day.

Ameer Ali also mentions the improvement effected in the position of women by the Prophet which has been acknowledged by all unprejudiced writers. He says: " .the Teacher who in an age when no country, no system, no community gave any right to woman, maiden or married, mother or wife, who, in a country where the birth of a daughter was considered a calamity, secured to the sex rights which are only unwillingly and under pressure being conceded to them by the civilised nations in the twentieth century, deserves the gratitude of humanity. If Mahomamed had done nothing more, his claim to be a benefactor of mankind would have been indisputable. Even under the laws as they stand at present in the pages of the legists, the legal position of Moslem females may be said to compare favourably with that of European women."

1. Ameer Ali Spirit of Islam (Christophers, London) (1953 Reprint), pp. 254-255.<



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