Search

RIGHTS GIVEN TO WOMEN UNDER HINDU AND MUSLIM LAW: DISSOLUTION OF MARRIAGE



INTRODUCTION


Feminism, women’s rights, equality for all gender etc. are few terms which were heard prominently in the last decade. Yet, the same is not accomplished exhaustively. The status of women in society is neither a new issue nor is it a fully settled one till date. Status of women in numerous human societies of the world is different. Whether, it is developed, developing or under developed societies, women inhabit an peerless position. India still lacks behind to present a completely equal platform for both men and women. Equality for all types of gender is asked by everyone but is there equality for all in a single gender? Are women of all religion treated equally with equal rights? India is secular country, which means the right to choose your religion is entirely independent. But with this right there are also personal laws governing each religion, which creates hindrance with respect to different rights and liabilities for the people of that religion. These rights and liabilities are not same in all personal laws. The right to inheritance, marriage, divorce, adoption, maintenance and what not is entirely different for all religions. Marriage forms an essential part in both Hindu and Muslim laws, although there are an assortment of differences between the two laws like its essentials, process of solemnizing the marriage and the basic ideals, like in Hindu law it is considered to be a Sacrament, but in Muslim law, it is of a contractual nature. There must be some similarity amongst them but the dissimilarity between them is more vast. The main reason for contrast is the sources of the two personal laws, which hold equal importance for both the religions. For many decades Muslim women have been struggling for gender equality in the Islamic law that oversee rights related to marriage, divorce, and property rights. This paper is anticipated to provide a brief and genuine exposition of Rights of Muslim and Hindu women and a brief survey of the status of women. This research paper mainly focuses on the rights conferred to women of Hindu and Muslim religion, mainly the rights conferred to them to dissolution of marriage through different modes. Also lays down the gap between the two personal laws which can be diminished if insisted upon.


GROUNDS OF DIVORCE UNDER MUSLIM LAW


Muslim law is founded upon revelation and is blend with religion. The law is the divine communication between Prophet Mohammad and Allah through Angel Gabriel. The Muslim legal system differs from other modern systems, in the sense that it signifies to have its sole source of divine will communication through human channel. In this religion the people are divided into two sects namely shias and sunnis. Under this law the dissolution of marriage can take place through 2 mediums i.e. Death or Divorce.

Looking only onto the aspects of divorce for dissolution of marriage. Muslim women are provided with two procedure of divorce which are uncodified whereas Muslim men are given three such procedures which are also uncodified. These two modes are-

  1. Talaq-e-tafweez: This mode is called as the delegation of power, where in the husband delegates his power of divorce to the wife after the marriage. Such delegation of power is called tafweez. The power for divorce is initially vested with the husband only. The wife can only exercise this, if in case of such delegation. Under this mode, the divorce is not made by the wife but she does this only on the behalf of the husband after being delegated the power to divorce.


Case- Manjila bibi v. Noor Hussain

In this case the petitioner was married with the defendant Noor Hussain. The husband had delegated his power of divorce to his wife and executed in an agreement. Later when the wife was ill, she dissolved the marriage by virtue of the power delegated to her. The husband then refuses to pay her maintenance and dower.

Court held that the delegation of power gave the wife all rights for this divorce and the husband is liable to pay the amount.

  1. Lian- This is the case when the husband charges the wife for adultery and the charges are later proved to be wrong, the wife has right to divorce and can file a petition for the same only on basis of such false charges. Here too, the women are not given absolute right for dissolving the marriage, the right is dependent on the male i.e., only if he accuses for such charge, then the female can obtain divorce.

Case- Nurjahan Bibi v. Mohm. Kazim Ali

In this case court held that the doctrine of lian has not become obsolete.


Apart from these two modes, Muslim women are also given the right to divorce under The Dissolution of Marriage Act, 1939. Section 2 of the act states all the grounds under which divorce can be obtained. Which are as follows:

  1. Absence of husband ( for a period of four year)

  2. Husband has neglected or has failed to provide maintenance ( for two years)

  3. Husband sentenced to imprisonment for seven years or more

  4. Husband has failed to perform marital obligation

  5. Impotency of husband

  6. Insanity

  7. Cruelty

  8. If married before the age of 15 and repudiated before 18 years of age.

  9. Any other reason recognized as valid by Muslim law.


Case- Sharaya Banu. V. Union of India

In this famous case of triple talaq, SC held that talaq-e-biddat or mostly known as triple talaq is a sinful form of talaq. Under this form of talaq, the husband can make three pronouncements of talaq and it becomes irrevocable immediately. It has been declared unconstitutional by the court as it violates article 14, 15 and 21 of the Indian Constitution.


GROUNDS OF DIVORCE UNDER HINDU LAW


The development of Hindu law is based upon the dharmas. Unlike Muslim law, this is not divided into any sects but constitute of many religion coming together including Buddhism, Jainism and Sikhism, meaning Hindu laws not only govern Hindus but also Sikhs, Jains, Buddhists. Sources of Hindu law are Shrutis, Smritis and customs. There are no modes of divorce to any gender outside the legal scope, which means the law is absolutely codified. Grounds for both spouses are enumerated under section 13 of the Hindu Marriage Act, 1955.

Section 13 of the act states eight such grounds for husband and four more for the wife.

The common grounds of divorce available to both under section 13(1) of the Hindu Marriage Act, 1955 are :

  1. Adultery

  2. Cruelty

  3. Desertion ( two years or more)

  4. Ceased to be Hindu

  5. Unsoundness

  6. Suffering from venereal disease

  7. Renounced from the world

  8. Not been heard from 7 years or more.


Apart from these, the four grounds available to wife only under section 13(2) are:

  1. Bigamy

  2. Bestiality and sodomy

  3. No cohabitation after decree of maintenance ( one year or more)

  4. If married before the age of 15 and repudiated before 18 years of age.


Case-

1. Niru Sarmah v. Jatin Ch. Sarmah

In this case, the court observed that if the marriage between parties is completely broken and has become irretrievable for all particular purposes and if they have been living separately for quite a long time and there is no possibility of reunion in future, in that condition the court can grant decree of divorce between the parties.


2. Chandra Prakash v. Sudesh Kumari

In this case court held that the burden of proof of adultery lies