“There is no chance for the welfare of the world unless the condition of the woman is improved. It is not possible for a bird to fly on only one wing.” – Swami Vivekananda
Law does not only maintain peace in our society or we can say in the human civilization which we have made but also enhances the social order and brings light in the darken life of the people. The door of judiciary is not only open for criminal relief cases or writ petitions but also for the people who are victimized under the civil and different personal laws. According to the Report of United Nations, 2019, the Indian populations extend to 136.64 crores people who are practicing different religions and enormous customs and are bound to the duties. Each religion is governed by their very own personal laws passed by the legislation, for people practicing Hindu religion are governed by Hindu Personal Laws, customs, Dharamshastras, Vedas, Smriti and Shrutis , Muslims are governed by Islamic Sharia’s and Muslim Personal Laws, Christians by the Cannon law and Christian Personal Laws, Jews by Hallukah and their personal laws. Every personal law has different provisions relating to marriage, adoption, succession and divorce by which people are governed and people adopt the procedures and regulations as well.
The term “Marriage” has been seen through different perspective by existing personal laws of our country, India. For two persons to be in wedlock different procedures, clauses and terms must be fulfilled as per the provisions mentioned in their respective personal laws. In olden days, Hindu marriages were divided into two – Approved and Unapproved Marriages. The Approved Marriages includes the following types of marriages- Bratima,Arsha,Cevia and Prajapathya ,on the other hand the category of Unapproved marriages includes Gandharva, Asura, Rakshas and Paishach kinds of marriages. Several legislations and acts also govern marriage between two people following hindu religion like the Special Marriage Act,1954, Widow’s Remarriage Act,1856 and Hindu Marriage Act,1955. Justice Majumdar and Justice Anoop Mohta, Bombay High Court held that “ Married women should be like Goddess Sita who left everything and followed her husband Lord Ram to the forest and stayed for 14 years”. The marriage are considered as irrevocable after the completion of seventh round (Saptapadi) across the sacred fire and in presence of near ones with full customary rites. Every women gets the right to live peacefully in her matrimonial house,with basic care,self-respect,a life free from torture and with full dignity and also to claim maintenance under Section 125 of Code of Criminal Procedure,1973 as well. As per Islam, marriage is thought to be flexible, not a sacrament but purely a contract,after the proposal to marriage comes the acceptance with saying “Kabool Hai” three times in continuation with a consideration and then it binds the parties in presence of a Qazi.The law do binds the womens for maintenance during existence of marriage but comes to an end when the marriage gets dissolved. Triple Talaq gave the very famous case of Shayaro Bano with her husband Rizwan Ahmad which were pure attacks on Muslim Personal Laws.
Marriages as per Hindu Personal Laws-
The Indian Parliament enacted the Hindu Marriage Act,1955 as a part of the Hindu Code Bills. Three other important laws were also enacted during this time, the Hindu Succession Act,1956, the Hindu Minority and Guardianship Act,1956 and the Hindu Adoption and Maintenance Act,1956. All were meant to give modern touch to the customs and duties as a part of the hindu tradition.
According to the Hindu Marriage Act,1955, marriage is considered as a sacrament unlike the Muslim personal laws wherein marriage is considered to be a contract signed by both the parties of a marriage. The provisions of Hindu Marriage Act,1955 applies to a person who is Hindu by religion in any of it’s form or a development including a Virashaiva, Lingayat or a follower of Brahmo,Prarthana or Arya Samaj. It also applies to a person domiciled in territory of India who is not a Muslim, Christian, Parsi, or Jew by religion that means it extends to a person who is a Buddhist, Jaina, or Sikh by religion or a converted person from other religion to Hindu religion.
The validity of marriage as per the law is given in the following heads –
1) VALID MARRIAGE
2) VOID MARRIAGE
3) VOIDABLE MARRIAGE
VALID MARRIAGE- A marriage between two persons is considered to be valid if neither party has a spouse living at the time of marriage, that both the parties must be capable of giving free consent ,that the age of the bridegroom must be 21 and above and that of the bride must be 18 and above, that both the parties must not be within degrees of prohibited relations and lastly must not be sapindas to each other . The marriage must be according to the Hindu customary rites and tradition and they should have taken seven steps (Saptapadi) jointly before the sacred fire, after the completion of seventh step, it is impliedly said that the marriage is completed and is now binding on both the parties of the marriage. The registration of marriage also plays a valuable role while considering the validity of marriage for which the Hindu Marriage Registrar notes the leads as per the rules made by the State Government.
VOID MARRIAGE- A marriage is considered to be void if it comes within the violations as per mentioned in Section 11 of Hindu Marriage Act,1955 which declares marriage to be void if it contravenes the conditions as per mentioned in Section 5 which includes if one amongst the two parties to a marriage has a living spouse at the time of marriage or the parties come within the prohibited degrees or the parties are sapindas to each other. If any of the three conditions get fulfilled then the marriage is declared as null and void and is given status as if it didn’t existed any time in the past.
VOIDABLE MARRIAGE- A marriage is declared to be voidable if for reason of impotency from two of the parties to a marriage or no free consent given by the parties or if the consent is taken by fraud or by concealing the facts or if the female was pregnant by any other person other than the petitioner at the time of marriage. If any of the abovementioned conditions get fulfilled, then the marriage comes at the point where it either has to be proved valid or it becomes null and void.
RIGHTS OF A MARRIED WOMEN-
A women is not only a daughter, a mother or a sister but also becomes a wife when she gets married. Even though the tradition considers a female a weaker sex and does not expands the rights to the women’s of the country but the law of the country has never discriminated between both the sexes and have always tried not to be biased. The following below mentioned are some of the rights given to a married women.
1)RIGHT TO SEEK MAINTENANCE-
The women is entitled to be maintained by the husband during the existence of marriage and even after both the parties to a marriage has separated and undergone mutual divorce. As per Section 3(b) of Hindu Adoption and Maintenance Act,1956, the term “Maintenance” includes in all cases provision for food, clothing, residence, education and medical attendance and treatment. It includes fulfillment of all the basic amenties for a sustainable livelihood. She also has the right to live separately from her husband and her matrimonial house if the husband is guilty of cruelty, desertion or has any other wife living or he resides with a concubine or has converted to any other religion from Hinduism. To claim maintenance, she has to submit an application for maintenance in Civil Court which has jurisdiction and is competent to start proceedings of the case. She can also file an application for maintenance in Criminal Courts under Section 125 of the Code of Criminal Procedure,1973. As per the work of the Indian judiciary, there is a clear scenario that criminal court’s proceeding takes place faster and gives speedy relief in comparison to the civil court’s proceedings. There are Family Courts which are competent to deal with the cases of claiming Maintenance.
2) HINDU WIFE’S RIGHT TO PROPERTY-
In the Hindu Law, there is a concept of Streedhan which in easy word means women’s property. According to Manu, seven kinds of gifts are considered to fall in the category of Streedhan and which solely belong to women only. These seven kinds are as follows-
Gifts given before the nuptial fire (Adhyayagni)
Gifts given during bridal procession to her husband’s house (Adhyavahanika)
Gifts of love given from father-in-law and mother-in-law (Pritidatta)
Gifts made at the time of obesenve at feet of elders (Padavandanika)
Gifts made by her father,mother and brother.
These are protected under Section 14 of Hindu Succession Act, 1956. The women herself is the sole authority and has responsibility over the property and Streedhan includes all movable, immovable, gifted and money kind of property.
3) RIGHTS AS PER HINDU SUCCESSION ACT,1956-
The passing of the Bill titled “Hindu Succession Act,1956” had totally changed the scenario. It had given equal rights to women’s in comparison to man and has withholded the concept of equality over the rights in property. The Act is applicable to both male and female practicising Hinduism and the converted ones as well. It governs only intestate succession and not the testamentary succession.
In the leading case of B.P. Achala Anand Vs. S. Appi Reddy, it was held that wife is entitled to reside in her matrimonial home under the personal laws. She is entitled to be maintained by her husband and live under the same roof. Right to Residence is a part of her right to claim maintenance.
As per Section 10 of the Act, distribution of property takes place amongst all the living heir in which the wife of the deceased gets an equal share as the share provided to the other heirs of the deceased. If in case of no existing heirs then the whole property is given to the wife of the deceased.
The Agricultural Land is still biased against the women’s as per the provisions of Schedule IX of the Constitution of India deals with the Zamindari Abolition and Land Reform Acts according to which women are not allowed to inherit the lands.
4) RIGHT TO PARENTAL PROPERTY-
After amendment in Hindu Succession Act in 2005, every daughter whether married or unmarried has the right to inherit the property of her father after the death.
5) RIGHT TO LIVE WITH DIGNITY AND RESPECT-
Every person has the right to live with full dignity and to get respect not only from elders of the society but also from the younger ones. The women after marriage also deserves to be living in a dignified manner. She should not be tortured mentally nor physically by her husband and in laws. The increasing cases of domestic violence is seen in the country which are basically of the reason to force the women to bring dowry from her home. In all the lower judiciary courts, more than thousands of cases are administered in this field on a daily basis.
The Supreme Court said “A daughter-in-law is to be treated as a member of the family with warmth and affection and not as a stranger with respectable and ignoble difference. She should not be treated as a house maid”.
A uniform law for all the people practicising different religion is the need of the hour. Despite of several legislations, women’s are denied their rights over property in reality, social evils like pointing women’s “weak” and “Haq Tyag” should be abolished.States like Jharkhand,Punjab and Madhya Pradesh must be focused on to increase the knowledge of Act’s and rights amongst the women’s. Women having equal citizenship of the country should also fight for their equal rights as that given to the men of the nation. The judiciary do plays an equivalent role in the course, from the various landmark judgements to astonishing statements made in due course of time, it had led to a path of courage and built confidence amongst the women. On one hand wherein Hindu Personal aw are leading as an example, the other personal laws should also alternate the clauses. Women shall be given priority while distributing the property and strong rules must be made in order to protect the Streedhan and various rights as given to the women of the country.
Keywords- Marriage, Succession, Divorce, Women, Property, Rights
Agrawal, K.B Family Law in India, Kluwer Law International,2010
Basanth Kumar Sharma, Hindu Law, Central Law Publications,2011
Report Number 247, Law Commission of India, Government of India
Shayaro Bano vs. Union of India; A Watershed Moment in the Battle for Women’s Rights in India, Feminist Law Proffessor, 2017
Supinder Kaur, Law of Succession in India, Lexis Nexis, 2015
Vibhuti Patel, “Al Personal Laws in India are discriminatory.” Livermint,2017
-Ms. Pooja Singh
Department of Post Graduate Studies
and Research in Law, R.D.V.V, Jabalpur