By Grace Mubashir
The debate over polygamy, divorce, mahr and maintenance should move beyond the assumption that every state intervention represents an attack on Islam. A secular state has a legitimate responsibility to protect individuals from exploitation, ensure financial security and provide equal access to justice. At the same time, this authority must be exercised through constitutional principles, public consultation and respect for religious freedom.
Major Points:
· The relationship between Islamic personal law and the modern secular state has become one of the most important debates in contemporary Muslim societies.
· India faces a similar challenge. Muslim personal law has historically operated through a combination of classical jurisprudence, legislation, judicial decisions and community practices. However, the absence of comprehensive codification has created difficulties in ensuring consistent protection for women and children.
· The experiences of Morocco, Tunisia, Indonesia, Malaysia and Pakistan demonstrate that Muslim-majority countries have developed different methods of regulating family relationships. Some have prohibited polygamy, others have introduced judicial restrictions, and several have strengthened marriage registration, divorce procedures and financial rights.
These experiences show that Islamic family law is not frozen in one historical form. It continues to be interpreted and reformed through institutions, legislation and changing social conditions.
· For India, the most constructive approach may be to develop a comprehensive, consultative and gender-sensitive reform of Muslim family law rather than treating every question as a confrontation between personal law and the Uniform Civil Code. Polygamy should be regulated through clear safeguards; divorce should guarantee fairness and accessible remedies; mahr should be enforceable as a financial right; and maintenance should protect women and children against economic hardship.
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The relationship between Islamic personal law and the modern secular state has become one of the most important debates in contemporary Muslim societies. Questions concerning marriage, divorce, polygamy, mahr and maintenance are no longer discussed exclusively within religious institutions. They have become matters of constitutional rights, gender justice, economic security and individual freedom. Across the Muslim world, governments have increasingly intervened in family law, introducing legislation to regulate marriage, restrict polygamy, establish divorce procedures and protect women’s financial rights. These developments demonstrate that state intervention in Muslim family life is not necessarily a rejection of Islam. It can also be understood as an attempt to translate Islamic legal and ethical principles into institutions capable of addressing contemporary social realities.
India faces a similar challenge. Muslim personal law has historically operated through a combination of classical jurisprudence, legislation, judicial decisions and community practices. However, the absence of comprehensive codification has created difficulties in ensuring consistent protection for women and children. The debate over the Uniform Civil Code has brought these issues into public discussion, but the choice need not be limited to preserving every existing rule or replacing the entire system with a common civil code. There is another possibility: reforming Muslim family law through legislation, consultation, constitutional safeguards and contemporary interpretations of Islamic jurisprudence. Such an approach would allow the state to protect individual rights while recognising the religious identity of Muslim family practices.
The central argument is that a secular state should neither exercise unlimited control over religious life nor remain passive when individuals face injustice within personal-law arrangements. Its responsibility is to establish minimum standards of dignity, consent, equality, financial security and legal protection. The experiences of Morocco, Tunisia, Indonesia, Malaysia and Pakistan show that Muslim-majority countries have adopted different approaches to this question. Their experiences provide useful lessons for India.
Polygamy: From religious permission to public regulation
Polygamy is among the most debated issues in Islamic family law. The Qur’an permits a man to marry up to four wives, but it connects this permission with the responsibility to treat them justly. Surah al-Nisa (4:3) states:
فَإِنْ خِفْتُمْ أَلَّا تَعْدِلُوا۟ فَوَٰحِدَةً
“But if you fear that you will not be just, then marry only one.”
The verse establishes justice as a central condition of polygamous marriage. Classical Islamic jurisprudence generally recognises polygamy as permissible, but permission does not mean that every man has an unrestricted entitlement to marry multiple wives without considering financial capacity, responsibilities or the consequences for existing families. The Qur’an also states in Surah al-Nisa (4:129) that complete equality between wives cannot be achieved, even if a man desires it. These verses have generated extensive discussions among contemporary Muslim scholars about the ethical conditions and practical limitations of polygamy.
The modern state can intervene by regulating the circumstances under which a second marriage is permitted. It need not begin by criminalising every polygamous marriage. It can require judicial approval, financial disclosure, notification of the existing wife, consideration of the welfare of children and an assessment of the husband’s ability to fulfil his responsibilities. This would transform polygamy from an individual decision into a legally accountable arrangement. A man who seeks another marriage would have to demonstrate that he can meet the financial and legal obligations of both households.
Morocco provides an important example. Its 2004 Family Code, known as the Mudawana, introduced substantial restrictions on polygamy. A husband seeking another marriage must obtain judicial authorisation and demonstrate exceptional and objective justification, together with sufficient financial capacity. The existing wife is informed and has legal options if she does not accept the arrangement. Indonesia also follows a regulated model in which judicial permission is generally required, with conditions relating to financial ability, fairness and other legally recognised circumstances. Malaysia requires men seeking polygamous marriages to obtain approval from the relevant Syariah Court, which assesses financial ability, fairness and the reasons for the proposed marriage.
Tunisia adopted a different approach by prohibiting polygamy through its 1956 Code of Personal Status. This demonstrates that Muslim-majority countries have interpreted the relationship between Islamic family law and state regulation differently. The comparative experience offers two broad models: prohibition and conditional permission. India could examine both approaches while considering its constitutional framework and the social realities of Muslim families.
The advantages of regulation are significant. It can prevent secret marriages, protect the financial rights of existing wives, establish legal responsibility towards children and discourage the misuse of religious permission. It can also give women an opportunity to challenge a proposed marriage that threatens their economic security. However, regulation has limitations. A husband may enter an unregistered religious marriage outside the formal system, leaving women and children without adequate protection. Judicial permission may also become a procedural exercise if courts do not carefully investigate the circumstances. Strict restrictions can sometimes push family arrangements underground rather than eliminate them. Therefore, any reform must combine judicial scrutiny with effective registration, accessible legal remedies and protection for women in existing marriages.
Divorce: Protecting both the right to separation and the dignity of marriage
Divorce is another area in which state intervention can play an important role. Islamic jurisprudence recognises that marriage cannot always continue and provides several mechanisms for ending it. These include talaq, initiated by the husband, khula, sought by the wife, mubara’at, through mutual agreement, and judicial dissolution on recognised grounds. The Qur’an repeatedly emphasises fairness, reconciliation and dignity in the process of separation. Surah al-Baqarah (2:229) states:
فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَـٰنٍ
“Either retain them in a fair manner or release them with kindness.”
This principle offers an important ethical foundation for modern divorce legislation. The state should ensure that neither husband nor wife can use the process of divorce to threaten, abandon or economically punish the other. Religious procedures should be recognised within a legal framework that guarantees notice, documentation, financial settlement and access to judicial remedies.
The Indian experience demonstrates why such safeguards matter. The Supreme Court’s 2017 judgement in Shayara Bano v. Union of India invalidated instant triple talaq, and Parliament subsequently enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. This intervention addressed a particular form of arbitrary divorce. However, reform should not stop at prohibiting instant triple talaq. Women also need accessible procedures for obtaining khula, judicial dissolution, maintenance, custody and enforcement of financial rights.
Morocco’s Family Code provides an example of a more comprehensive approach. Divorce is subject to judicial supervision, and the law establishes procedures for applications, reconciliation and financial consequences. Indonesia also regulates divorce through religious courts, requiring judicial procedures rather than treating a private declaration as sufficient for civil dissolution. These systems demonstrate that religiously informed family law can operate through state institutions without necessarily abandoning its Islamic foundations.
India could introduce a properly codified Muslim family law framework in which both spouses have clear and enforceable routes to divorce. A husband seeking divorce could be required to provide formal notice, participate in an opportunity for reconciliation where appropriate, and fulfil financial obligations. A wife seeking khula or judicial dissolution should have an accessible process that does not depend on the arbitrary approval of a husband or a religious authority. The law should also clarify the consequences of separation for children, property, maintenance and unpaid mahr.
The advantage of this approach is that it protects the dignity of both spouses and reduces uncertainty. It also makes divorce records legally reliable, preventing disputes over whether a marriage has actually ended. However, excessive procedural requirements can delay separation in cases involving domestic violence, coercion or abandonment. Reconciliation should never be compulsory where it exposes a woman to further harm. The law must therefore distinguish between ordinary marital disagreements and situations requiring immediate protection. A fair divorce system should facilitate separation where necessary, not make it more difficult.
Mahr: Protecting a religious entitlement through civil legislation
Mahr, commonly translated as dower, is one of the most important financial institutions in Islamic marriage. It is a right belonging to the wife and an obligation upon the husband. It should not be confused with dowry, which generally refers to wealth or gifts demanded from the bride or her family. The Qur’an clearly establishes the wife’s entitlement to mahr. Surah al-Nisa (4:4) states:
وَآتُوا النِّسَاءَ صَدُقَاتِهِنَّ نِحْلَةً
“Give women their bridal gifts graciously.”
Classical Islamic jurisprudence recognises both immediate and deferred mahr. An immediate amount may be payable at the time of marriage, while a deferred amount becomes payable according to the marriage contract or specified circumstances, often including divorce or the husband’s death. In principle, this provides women with a financial entitlement that is independent of the husband’s generosity. In practice, however, the value of mahr is sometimes fixed at a nominal amount, its payment is postponed indefinitely, or women lack the information and resources necessary to claim it.
The state can strengthen this institution without changing its religious character. It can require that the amount, payment schedule and form of mahr be clearly recorded in the marriage registration document. Deferred mahr should be legally recoverable as a contractual debt. Courts should be able to enforce payment, and women should receive clear information about their rights before marriage. Where the amount is disputed, the law should provide an accessible mechanism for determining the outstanding obligation.
International experience offers useful examples. Morocco’s Family Code recognises sadaq as an element of marriage and provides rules concerning its payment. Pakistan’s Muslim Family Laws Ordinance, 1961, requires the marriage registration document to record the amount of mahr and establishes a default rule concerning payment when the contract does not specify when it becomes due. Iranian civil law also provides detailed rules governing mahr, including an inflation-related adjustment mechanism introduced for certain monetary claims.
A stronger legal framework for mahr could improve women’s financial security and prevent the practice from becoming merely symbolic. It could also reduce disputes during divorce and inheritance proceedings. However, excessive state standardisation may create problems if it imposes fixed amounts without considering the financial circumstances and contractual choices of couples. A high compulsory mahr may discourage marriage or encourage informal arrangements, while a nominal statutory amount could weaken the wife’s bargaining position. The better approach is to protect freedom of agreement while ensuring that whatever amount is promised becomes legally enforceable. The state should also prevent the use of mahr as a tool of coercion, including attempts to make women surrender their deferred entitlement in exchange for obtaining a divorce.
Maintenance: From temporary assistance to economic justice
Maintenance is perhaps the most important issue because it directly affects women’s economic survival after separation. Islamic jurisprudence recognises the husband’s responsibility to provide maintenance during marriage, subject to the applicable legal conditions. It also provides financial rights in relation to divorce and the waiting period, or iddah. However, questions arise when a divorced woman has no independent income, has spent years outside paid employment or is responsible for raising children.
The Qur’an emphasises that financial arrangements after divorce should take account of the husband’s means. Surah al-Talaq (65:7) states:
لِيُنفِقْ ذُو سَعَةٍ مِّن سَعَتِهِۦ وَمَن قُدِرَ عَلَيْهِ رِزْقُهُۥ فَلْيُنفِقْ مِمَّآ ءَاتَىٰهُ ٱللَّهُ
“Let the person of wealth spend according to his means, and the one whose provision is restricted should spend from what Allah has given him.”
The contemporary challenge is how to ensure that divorced women do not fall into poverty after the formal termination of marriage. The issue is particularly important in India, where many women have limited property ownership, low levels of financial independence and substantial responsibilities for children and elderly relatives.
The Shah Bano case of 1985 brought this issue into national debate. The Supreme Court recognised her right to maintenance under Section 125 of the Code of Criminal Procedure, a secular provision intended to prevent destitution. Parliament subsequently enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. In Danial Latifi v. Union of India (2001), the Supreme Court interpreted the Act to require a former husband to make a reasonable and fair provision for the divorced woman’s future, to be made within the iddah period. The later legal framework must also be read alongside the replacement of the Code of Criminal Procedure by the Bharatiya Nagarik Suraksha Sanhita, 2023, whose Section 144 provides for maintenance.
The important lesson is that religiously specific obligations and secular protections need not be mutually exclusive. The state can establish a minimum standard of protection against destitution while recognising mahr, iddah and other rights arising from Islamic marriage. The purpose of maintenance legislation should be to ensure that women do not become financially vulnerable simply because their marriage has ended.
Morocco’s family legislation provides for financial consequences of divorce, including provisions concerning maintenance and housing during the waiting period. In many Muslim-majority jurisdictions, family courts assess the financial circumstances of the spouses and make orders concerning support, children’s expenses and other obligations. Such arrangements demonstrate the possibility of combining religiously informed family law with enforceable civil remedies.
India should consider a comprehensive system that assesses maintenance according to income, earning capacity, marital duration, childcare responsibilities, health, living standards and the economic disadvantages experienced during marriage. Child maintenance should be treated as a separate obligation that cannot be avoided through the religious or civil form of divorce. Where a woman has sacrificed employment opportunities to care for children or manage a household, courts should consider those contributions when determining financial relief.
The advantages are substantial. Such legislation can reduce women’s dependence on relatives, prevent post-divorce poverty and recognise unpaid domestic labour. However, poorly designed maintenance laws can also create delays, excessive litigation and financial uncertainty for both parties. Courts must distinguish genuine claims from fraudulent ones, but they should not allow procedural complexity to prevent women from receiving support. Interim maintenance, time-bound hearings and affordable legal assistance are essential.
How can a secular state intervene without interfering unnecessarily in religion?
The experiences of Muslim-majority countries demonstrate that state intervention does not have to mean the complete replacement of Islamic family law. Governments have used different methods, including codification, judicial supervision, compulsory registration, financial disclosure and contractual protection. The important distinction is between regulating the civil consequences of family relationships and attempting to control religious belief itself.
India could consider a comprehensive Muslim Family Law Reform Act developed through consultation with Muslim scholars, constitutional lawyers, women’s organisations, social scientists and community representatives. Such legislation could codify the rights and obligations arising from marriage, divorce, mahr and maintenance while retaining the possibility of religious marriage ceremonies and Islamic contractual arrangements. It would provide greater clarity than relying on scattered judicial decisions and inconsistent administrative practices.
The first step should be compulsory and accessible marriage registration. Every Muslim marriage should have a properly documented contract recording the identities and consent of the spouses, mahr, agreed financial conditions and any permissible contractual stipulations. Women should receive a copy of the contract and information about their legal rights. Registration should be inexpensive, available through digital and physical systems, and should not become a barrier that invalidates otherwise established marriages without appropriate transitional safeguards.
The second step should be the establishment of accessible family courts or specialised family-law divisions with judges trained in constitutional law, Islamic jurisprudence and gender-sensitive adjudication. These institutions should deal with divorce, maintenance, mahr, custody and disputes involving polygamous marriages. Religious scholars could provide expert opinions on questions of Islamic jurisprudence, but final civil decisions must remain within the constitutional judicial framework. This would allow religious expertise to contribute without giving any religious institution unchecked legal authority over individuals.
The third step should be a system of enforceable contractual protections. Muslim couples should be able to include conditions in their marriage contracts concerning residence, employment, financial arrangements and delegated divorce rights, subject to constitutional law. The concept of tafwid al-talaq, through which a husband delegates the power of divorce to his wife under recognised legal conditions, deserves greater public awareness. Such contractual arrangements can provide women with protection without requiring the state to impose identical personal circumstances on every family.
The fourth step should be the creation of effective financial safeguards. Unpaid mahr should be recoverable as a debt, maintenance orders should be enforceable, and child-related financial obligations should be clearly separated from disputes between former spouses. Courts should also consider domestic violence, economic abuse and abandonment when deciding financial relief.
Finally, the government should establish a process of periodic review. Family law cannot remain effective if it is disconnected from changing economic conditions, women’s employment, migration, education and family structures. A review commission could examine the implementation of the law every five years, collect data and recommend amendments after consultation with affected communities.
What can India learn from global experiences?
The international experience demonstrates that there is no single model of Muslim family-law reform. Countries have adopted different approaches according to their constitutional systems, religious traditions and political histories. |
These examples should not be treated as perfect models. Judicial systems differ in their independence, accessibility and enforcement capacity. A law that appears protective on paper may fail when women cannot approach courts or when judges lack the resources to enforce their orders. Research on Indonesia and Malaysia, for instance, shows that judicial permission procedures do not automatically eliminate the social and economic vulnerabilities experienced by women in polygamous marriages.
India should therefore study not only the wording of foreign legislation but also its implementation, social consequences and institutional limitations.
The strongest argument for state intervention is the protection of individual rights. Religious and customary arrangements operate within societies marked by unequal economic power, gender hierarchies and differences in access to education. A woman may formally possess the right to mahr, maintenance or divorce, but may be unable to enforce those rights because of financial dependence, family pressure or lack of legal awareness. State legislation can convert these rights into enforceable legal entitlements.
Another advantage is legal certainty. When marriage registration, divorce documentation, maintenance and inheritance procedures are clearly established, individuals know where to seek remedies. This reduces disputes and makes it easier to protect children and spouses. A common minimum standard of protection can also ensure that vulnerable individuals are not left without remedies simply because their family relationships were established through religious procedures.
State intervention can also encourage internal reform within Muslim legal institutions. When family-law questions are openly discussed, religious scholars may be encouraged to reconsider inherited practices, examine the objectives of Islamic law and distinguish between essential religious principles and historical social arrangements. This can strengthen the relationship between Islamic jurisprudence and contemporary constitutional values.
The dangers and limitations of excessive intervention
Despite these advantages, state intervention also carries serious risks. The first is the politicisation of Muslim personal law. When governments introduce family-law reforms without adequate consultation, affected communities may perceive them as instruments of political control rather than genuine social justice. This can weaken public trust and make even necessary reforms difficult to implement.
The second danger is selective reform. If governments focus primarily on Muslim polygamy, divorce or religious practices while paying insufficient attention to domestic violence, unequal property ownership, child marriage and women’s economic insecurity across all communities, the claim of gender justice becomes difficult to sustain. Reform should be based on consistent constitutional principles rather than the political identity of the community affected.
The third concern is the loss of legitimate religious autonomy. For many Muslims, marriage and family relationships are not merely civil arrangements but also religious commitments. Legislation that unnecessarily interferes with religious ceremonies, contractual freedom or theological beliefs may generate resistance. The state should regulate civil rights and obligations without assuming that it must determine every aspect of religious life.
There is also the danger of excessive legalisation. Making every family disagreement a court matter can increase litigation, create financial burdens and delay justice. Many family disputes can be resolved through voluntary mediation and counselling, provided that participation is not forced and that women are protected against coercion. A balanced system should combine judicial remedies with accessible community-based support.
Reconstructing Islamic legal thought through justice and public welfare
Muslim scholars also have an important responsibility in this process. The debate should not be presented as a simple confrontation between Islam and modernity. Islamic jurisprudence has historically developed through interpretation, disagreement and engagement with changing social conditions. Concepts such as maslaha (public welfare), maqasid al-sharia (the objectives of Islamic law), adl (justice), darura (necessity) and fiqh al-taysir (jurisprudence of facilitation) provide resources for examining contemporary family-law problems.
The objectives of Islamic law include the protection of life, religion, intellect, family and property. Contemporary scholars have also explored human dignity, equality and social justice as important dimensions of the higher objectives of Sharia. These principles can guide discussions about polygamy, financial obligations and divorce. They do not automatically settle every legal disagreement, but they encourage scholars to examine the consequences of legal rules rather than relying exclusively on inherited formulations.
For instance, the regulation of polygamy can be discussed through the Qur’anic requirement of justice and the prevention of harm. The enforcement of mahr can be understood through the protection of property and contractual obligations. Maintenance can be examined through the principles of responsibility, dignity and the prevention of economic hardship. Divorce procedures can be assessed through the Qur’anic emphasis on fairness and the prohibition of unjust treatment.
This approach does not require Muslims to abandon their religious traditions. It requires them to engage seriously with the ethical objectives of those traditions and the conditions in which family law operates today.
Conclusion: From religious defensiveness to constitutional reform
The debate over polygamy, divorce, mahr and maintenance should move beyond the assumption that every state intervention represents an attack on Islam. A secular state has a legitimate responsibility to protect individuals from exploitation, ensure financial security and provide equal access to justice. At the same time, this authority must be exercised through constitutional principles, public consultation and respect for religious freedom.
The experiences of Morocco, Tunisia, Indonesia, Malaysia and Pakistan demonstrate that Muslim-majority countries have developed different methods of regulating family relationships. Some have prohibited polygamy, others have introduced judicial restrictions, and several have strengthened marriage registration, divorce procedures and financial rights. These experiences show that Islamic family law is not frozen in one historical form. It continues to be interpreted and reformed through institutions, legislation and changing social conditions.
For India, the most constructive approach may be to develop a comprehensive, consultative and gender-sensitive reform of Muslim family law rather than treating every question as a confrontation between personal law and the Uniform Civil Code. Polygamy should be regulated through clear safeguards; divorce should guarantee fairness and accessible remedies; mahr should be enforceable as a financial right; and maintenance should protect women and children against economic hardship.
The purpose of reform should not be to make Muslim family life less Islamic or to make religious identity irrelevant. It should be to ensure that religious freedom does not become a justification for injustice and that state authority does not become an instrument for unnecessary interference. Ultimately, the success of family-law reform must be measured by whether women and children enjoy greater security, whether marital responsibilities are enforced, and whether every individual can access justice with dignity.
A secular state should not be indifferent to injustice within religious communities, just as it should not use the language of equality to undermine legitimate religious freedom. The challenge is to build a legal framework in which constitutional rights, Islamic ethical principles and individual dignity can coexist.
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(To Be Concluded)
(CREDIT: NEW AGE ISLAM)