Since ancient times, India has had a rich legal heritage. Hindu Era, Muslim Period, British Period, and Independent India are all times of Indian legal history that have seen the continuous change from time to time. The Indian legal system is based on the welfare state, which has been the country's guiding philosophy since the Constitution was adopted. As a result, today's culture is an obligated/duty-based society, in which the state owes a duty to the individual as much as the individual owes a duty to the state.
The origins of Hindu laws can be traced back to Manusmrities, after which the common law passed many Personal laws, and finally, post-independence, they arrived at their current state. Even after 70 years of independence, nothing has changed in terms of gender equality, despite the fact that the Constitution states that it is a basic human right. As a result, the primary goal of this article is to draw attention to the most serious problem that our country has faced since ancient times: "Inequality." The emphasis of this article is on Gender Inequality in Personal Law, especially in Hindu and Muslim Personal Law.
The problem in our country is that, even though history has taught us valuable lessons, we forget to apply those lessons over time, allowing past mistakes to resurface in the future, resulting in dictatorship by one class and favouritism among another.
Despite the fact that sexism is deeply entrenched in India, these personal laws add to the growing evils of discrimination by limiting women's rights and impeding policy reform. While the main aim of these laws was to protect and shelter the marginalized, it seems that the state has failed to become diligent and is unable to protect them from the proliferations of tenacious Family law. Instead of serving the purpose of justice, vulnerable groups are being outlawed by the structure and legislations.
As a result, urgent family law reform and policy are needed to ensure that the poorer sections of society are not victimized by discriminatory legislation such as marriage, custody, divorce, inheritance, and adoption laws, among others.
The political elite hid behind religious facades and traditions, but other personal laws reflect exceptional reforms in their laws.
Alimony and divorce laws in Muslim countries have been modified to grant women more rights while retaining cultural tolerance. The majority of family laws have improved significantly in recent decades, but these changes are inadequate to bring women into balance with men in terms of personal laws. The Indian women have been marginalized by the plural family structure, multiculturalism, lack of economic freedom, and having a husband/father/son as guardian.
The “political elites” who pretend to be vigilantes of legal, religious, and cultural responsibilities are nothing more than hiding behind the curtain of white hegemony, allowing backwardness to engulf this culture under the oasis of bigotry.
The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.
Discrimination is so pervasive in Indian family law that it has cast a virulent spell on the legislation that was designed to combat the very social evil. The same laws that were enforced to justify prejudice against women and girls, to free them from the shackles of subordination and obedience, and to put them in an equal position. However, on the contrary the present family law isn’t doing a good job in bringing the equality which is the proud possession of the Constitution. Its prolonged rotten and stale state has put us on the pedestal and instead of eliminating our country from the Third world tag made us more slave to the old ravaging customs.
It’s important for any Family law to adopt and go with the international standard and make sure that the rights of all humans must be dealt with. Despite the progress India has made over the last 70 years, the contagious seed of prejudice still exists in our country. For example, in Muslim personal law, dissolution of marriage and divorce, as well as Talaq Provisions, both are discriminatory provisions, with the former available for the wife and the latter available for the husband, thus discriminating against one another.
While family law is personal law and is beyond the reach of any shadow lines that divide one realm from another, the unscathed layers of customs and religion had entrapped the legislations to such an extent that even though the provision for eliminating this discrimination/ inequality is in the hands of legislators/ or parliament, political pressure had entrapped the legislations to such an extent that even though the provision for eliminating this discrimination/ inequality is in the hands of legislators/ or parliament, the political pressure had entrapped Any of the laws are in violation of the constitution.
RESTITUTION OF CONJUGAL RIGHTS
According to Article 13(1), the courts have the power to declare that all "laws in force" before the Constitution are void if they conflict with these fundamental rights. State legislation that abridges fundamental rights is also void. The Indian judiciary, on the other hand, is steadfast in turning a blind eye to gender inequality in personal laws, which has reached the extent of a constitutional breach. The Delhi High Court in Harvider Kaur v. Harminder Singh AIR 1984 Delhi 66 held that "in the privacy of the home and the married life, neither Article 21 nor Article 14 have any place.” And Upon reviewing Saroj Rani v. Sudharshan Kumar AIR 1984 SC 1562, the Supreme Court affirmed the decision and held that the Section 9 of Hindu Marriage Act, 1955 isn’t violating the principle of Constitution of India i.e. Article 14,19 & 21.
The suppression of marital harmony by gender inequality, with its pervasive gender-based discrimination, has led to inequality in conjugal rights, as the "Suit for the Restitution of conjugal rights by wife is very unusual in Indian society." We all know that women, as the weaker dependent section, could never think of raising a point of contention unless and until the husband's oppression and downcast act, or circumstances, required it. In a society where the husband is regarded as God-like and the wife's main duty is to serve the husband, the wife's marital life must have been so deplorable that she felt compelled to take such actions; nevertheless, restoring such marital obligations would be barbarous and tenacious against the wife. Also, “protection of life and liberty” is clearly stated in Article 21 of the Indian Constitution. Here, life entails treating others with reverence and integrity, but the restoration of the Conjugal Right obstructs this liberty. This matrimonial solution of Restitution of conjugal Rights is almost exclusively used by the husband in our society, and it is seldom used by the wife. Section 9 of the Hindu Marriage Act, 1955, imposes forcible cohabitation between willing and unwilling parties, as well as forcible sexual relationships between the parties, thus subjecting one partner to another cohabitation and, as a result, infringing their basic human right as well as their constitutional right, namely Article 21, 19 of the Indian Constitution, and thus thinning the shadow. As a result, the act allows for the legalization of coercive sex as well as the restriction of a spouse's liberty within the confines of a marriage. Basically, paving the way for the Ancient Rabid Civilization's barbarous, uncivilized acts to be tolerated in society. As a result, rather than evolving with the advent of science, rudimentary laws and decisions were impeding society's overall progress.
Since the basic essence of marriage in Muslim law is a contract between two persons for the purpose of procreation of children and sexual intercourse, isn't the husband subjecting her to paid sex or surrogating her to satisfy his righteous legal carnal lust and continue his bloodline when he pays the "dower," a kind of consideration or gift?
Throughout the ceremony, the Qazi demanded the price as a dower from the future husband and sanctioned the bride to be's consent for marriage. The marriage is regarded as complete. This entire orthodox Muslim marriage ceremony of giving "dower" raises a glaring red flag in the ongoing discrimination in our country's personal rules, begging for the establishment of a uniform code in our country to suffocate these social evils that subject one human to another under submissiveness to another.
In Hindu Personal Law, when a girl marries, she sacrifices her own identity because traditions force her to use her husband's family name instead of her own, and she is forced to live with her husband's family, alienating her own life and individuality and forcing her to start a new life. Aren't these traditions infringing on her right to life, liberty, and expression?
The idea of equality dates back to the Constitution, but it has been openly ignored by some legislators who have a blind concept of gender inequality, which defeats the Constitution's intent. The practice of dowry began with the “stridhan,” which was for the maintenance of the wife in the form of jewellery, clothes, and other objects from friends and relatives, and has now morphed into the dowry system, which has become the key source of domestic violence against women, despite the fact that the act is punishable by law under various laws and statutes such as the Dowry Prohibition Act, 1961, which forbids the giving or taking of any dowry in connection with marriage.
Section 8 of Dowry Prohibition Act, 1961 states merely demanding dowry is punishable. If a woman dies an unnatural death within seven years of her marriage, any dowry received from her or on her behalf will be transferred to her children, if any, or to her parents.
Further, the Indian Penal Code has categorised the offense of dowry death-a woman dying of unnatural causes due to harassment by her husband, in-laws or other relative within 7 year of marriage would be considered as dowry death. The Indian Evidence Act has also been amended, stating that a person accused of committing a dowry death is presumed guilty if it can be shown that the woman was subjected to abuse and cruelty. However, despite the passage of several reforming legislations, these statutes remain ineffective in combating dowry abuses and the resulting prejudice.
Take, for example, the economic individuality of women in family law. In the case of 'stridhan' whether the husband takes it away or misappropriates it, the meek wife cannot sue for criminal breach of trust because husband and wife are considered "one" and, as held in the case of Vinod Kumar v. State, 1982 A.I.R. 372 (P&H)., any property acquired during the marriage is equally owned by both parties. In certain cases, this theory seems arbitrary, but when applied in reverse, as if a husband can obtain his wife's land, so can a wife. However, this decision was reversed in the Pratibha Rani v. Suraj Kumar 1985 A.I.R. 628 (S.C.). in which it was held that the stridhan' is a woman's absolute right. Thus, highlighting the plight of person who has to bear this prejudiced face of these personal laws.
The same thing is happening in Muslim Shariat Law, which only provides maintenance for divorced-wives until the time of Iddat, allowing the husband to avoid providing for his wife by giving her meher as maintenance, while the wife is left to fend for herself without any economic independence, particularly among the illiterate. However, Section 125 of Criminal Procedure Code puts a restrains on the abovementioned act of Muslim husband and further provides that the husband should provide the maintenance to ex-wife as also held in the case of Mohammad Ahmed khan v. Shah Bano AIR 1985 SC 945. The five-judge bench ruled that any woman who is unable to provide for herself with adequate means is entitled to maintenance under Section 125 of the Cr.P.C., regardless of religion. However, Section 125 of the Cr.P.C. does not apply to women since the Muslim Women (Protection of Right of Divorce) Act, 1986 governs maintenance laws. The law seems to have limited Muslim men's duty to care for their wives. This clearly demonstrates the varying need for a uniform code, as provided by Article 44 of the Indian constitution, to combat the evils of inequity in personal laws.
In another instance court has legitimized the spousal abuse in the case Shobha v. Manohar, 2 DIVORCE AND MATRIMONIAL CASES 169, 170 (1989) by applying liberal interpretation by holding that if the husband beats his own wife once or twice in the span of 3 year then it’s not considered as domestic abuse.
No access to economic resources, improper property rights in Succession, provide privilege male member in the society and also the statue provide validity to it. Women's economic interdependence stems from unequal property rights in successions; with the exception of a few enabling amendments, the legislations themselves show how patriarchal norms imposed by some legislations limit women's access to economic resources outside the family, resulting in a biased distribution of property within the family.
According to the Hindu Succession Act, a girl's right to her father's property is relinquished after she marries, once again preventing a woman from claiming her rightful claim due to certain evasive unequal statutes. Behind the curtain of tradition, these personal laws continue to echo the colonial mindset toward women, repeating the same narrative of subjugation, prohibiting women from demanding their property rights, and failing to provide women with equitable access to economic opportunities.
According to study conducted by an NGO, for many women in India, family property through inheritance is the only source of economic power. Hence, legal reforms will not be complete unless such archaic provisions are eliminated.
Under Hindu Law, families are governed by the principle of the joint family, or "coparcenary" where three generations of patrilineal kinship live in the same household and in such families, son is the natural and legal successor and male member i.e. coparcener control the property in Hindu Joint Family who gains the property right from birth, whereas a women cannot be coparcener as held in a case law viz. “daughter does not have right to joint property upon birth” was held in the case of Raghunath Tiwary v. Rikhiya, 1985 A.I.R. 29, 30 (Pat.)
The Hindu Succession Act, however, does not significantly alter the inequitable distribution of joint family property to women. The Hindu Succession Act addresses only the Mitakshara system.
Under Section 6 of the Hindu Succession Act the legislation only modifies customary property laws by enabling a coparcener's interest to devolve to a surviving female member of a family listed in Class 1 or to a male relative in Class I who claims through such female relative through a will or the Hindu Succession Act.
The case of Raj Rani v. The Chief Settlement Commissioner1984 A.I.R. 1234 (S.C.),provides an example of property succession:
“In the event that a Hindu died after the Act was passed, leaving behind his widow, three sons, and three daughters, the devolution of his Mitakshara coparcenary property would be as follows: He would have received one-fifth interest on division between himself, his wife, and his three sons. Since his interest was calculated to be one-fifth before his death, it would devolve equally to his wife, three sons, and three daughters, with each of them receiving one fifth multiplied by one-seventh, or one thirty-fifth each, and since the widow inherited her husband's interest after his death, her share would be augmented by one-fifth that is one thirty-fifth plus one-fifth which equals eight thirty-fifths”.
The above findings demonstrate that, while a Hindu male inherits property by birth, a female member must inherit it. However, in a few nations, a woman is guaranteed greater equality in the joint family structure. The states of Andhra Pradesh and Tamil Nadu, for example, have strengthened the status of women in the family by allowing them to become coparceners. Kerala has also done away with the joint family arrangement entirely. Hopefully, other states will follow suit and understand the importance of women's social and economic contributions.
A family court can only adjudicate property rights in a divorce case if the property was "presented, at or around the time of the marriage, which may belong jointly" to the couple, according to Section 27 of the Hindu Marriage Act, 1955. The wife must first appeal the divorce petition before claiming her stridhan, which is still in her husband's custody. As a result, a woman is subjected to two types of hardship, both of which deter her from attempting to reclaim her land. As a result, Section 27 of the Hindu Marriage Act, 1955, has exposed yet another instance of gender discrimination.
The provisions for maintenance is available for both men and women but still the court is only sympathetic towards women as it is seen in the case of Radhakumari v. Nair 1983 A.I.R. 139 (Ker.), that the husband cannot claim immunity from maintenance even if the wife was supported by her parents.
Why is there such injustice in the case of divorce if the court recognizes the principle of triple talaq through unilateral consent of the husband in Muslim Shriyat Law, forgetting the basic notion that the consent "qubalhai" is the sole prerequisite for a marriage? A woman must go through a variety of legal processes in order to obtain a divorce decree, while a husband may obtain a divorce simply by making an oral declaration. The whole object of equality has been failed once again, despite the fact that it is the most important condition for any law to remain legally legitimate.
A woman cannot assert maintenance based on confirmed unchastity in Hindu Personal Law, and she should be left to her own resources. The principle of chastity is an antiquated provision that prevents women from pursuing their right to maintenance because they must first fulfill their chastity. While the principle of joint marital property, which the wife has amassed over the course of her marriage, suggests that the legitimate heir to that property is she herself and no one else, the fact is very different. Hence, the question arises as to why the un-chaste condition is added to the law to provide a window for the husband to refuse maintenance to his wife, thus amplifying the provisions in the law.
Although the other court has held that while a claim regarding a wife's chastity is relevant to determine the quantum of maintenance, it cannot be the basis to refuse maintenance. Existing maintenance orders may be modified or cancelled if the woman can be characterized later as "unchaste."
While the Indian Penal Code makes bigamy a crime, Muslim Personal Laws allow for polygamy with up to four wives. The idea of polygamy was introduced by Prophet Mohammad to curb men's carnal desires, but as time has passed, sexual attraction has become less relevant in marriage. As a result, polygamy is no longer needed for society to work. It is also argued that if the legislation permits polygamous relationships, isn't this a violation of Article 14 of the Indian Constitution, which emphasizes the fact that personal laws are only for one part of society while the other is held in the dark.
Gender study of women's family law shows a trend in which, no matter how many reforms have occurred or how evolved this country has become, we continue to be subjected to the anarchism of one-sided rules. If the legislation removes these inequalities, the central force of social stability would be expanded, since family is the fundamental seed of society, and if we are to preserve democracy in family law, we must abolish these inequalities; otherwise, these inequalities would cause more and more family conflicts, resulting in societal disorder.
As a result, there is a pressing need to address the problem of gender discrimination in family law by fully applying the Constitution's provisions and developing a Uniform Civil Code to improve society's legal framework.
- Sarthak Dutta
3rd Year BBA- LLB
Xavier Law School
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