Women and Personal laws in India
Indian society is a combination of several societies which have different religions. Due to this, there are so many personal laws of different religions through which people are supervised. Personal law is defined as the customs and practices of a religion to which people of that religion comply and it includes marriage and as well as separation, commitments and restrictions to marriage, the relationship between guardians and the children, conjugal rights, custody of the child. These laws narrate the sketch about life’s practices, customs and conventions. In India, every religion i.e Hindus, Christians, Jains, Parsis and Muslims have their own personal laws. Till now, there is no uniform civil code in India. In religious personal laws, the position of women is weak because they are given fewer rights as compared to men. Religious personal law has encouraged several taboos such as patriarchal society, child marriage basically these decisions are played on women by the general public. It is a matter of great concern because it depicts a lot of discrimination happening to women through these personal laws.
The legal system of India follows the common law system which is an antique of the British legal system. During colonization, laws were framed through common law only and as a result of which the public of those colonies was very not happy about those laws. Indian lawmakers while framing the legislation kept this in mind and framed law according to the demands of an altogether society and adopted the idea of individual religious laws. Although legislative changes have been made from time to time the belief that the religious personal law cannot be replaced still exists. It is regarded as a saving of religious beliefs of that particular community whenever a matter is judged according to the religious personal law.
One basic component of most personal laws is that women don't have equivalent rights when contrasted with men. Although the nation had made some steps towards eradicating the discrimination against women, for example, Hindu Succession (Amendment) Act 2005 was passed to make women coparcener as equally as a son Yet as far as rights are concerned women have lesser rights than men on account of these strict personal laws. Gender inequality in India can only be achieved in only one condition if the legislation of common family comes into existence which emphasis on gender equality as its highlighted priority.
DISCRIMINATION AGAINST WOMEN UNDER HINDU LAW
Adoption of a child- In Hindu law, a married woman does not have a right to adopt a child even if she has the consent of her husband. The responsibility of adopting a child is only given on the shoulders of the Husband. In the matter of Malti Ray Chowdhury v. Sudhindranath, a married woman had adopted a female child and the consent of the husband was also taken before adoption but still, the court declared the adoption not valid and stated that adoption in the cases of marriage can only be done by the husbands and women does not have this authority. It is so ironic that a child is born out of a woman but when it comes to adoption she has no right.
Property Rights of Women – Before the formation of Hindu law, various Hindu law schools existed. As indicated by these schools of law, just coparceners were considered as proprietors of joint family property. Women at that time were not considered as coparceners and therefore they did not have the rights to claim that property. In 1937, property rights to women were given with the passing of the Hindu Women’s Right to Property Act but the right over the property was not absolute in nature. Although with the passage of The Hindu Succession Act, women were made Class-I heirs in the property but still there were not considered as a coparcener. It was after the Hindu Succession (Amendment) Act, 2005 daughters were on the same page as of sons but still, there is some loophole through which discrimination happens to women. In our society, it is seen as those only men are entitled to their family’s property to continue this practice a male coparcener that is basically the father or grandfather can transfer his property to his sons or grandsons through a will so that his property does not go into the hands of the daughter. One big reason behind this practice is that women are considered an outsider after their marriage.
Rights in a dwelling house- In a Hindu family, the daughter have a right over the residential house only if she is unmarried or had taken divorce from her husband. A daughter’s right over her dwelling house is taken away after her marriage. They cannot ask for the partition of their house till the family member are living in it. In the case of Hira Dei v. Bodhi Sahu And Ors, Hira Devi’s right to the residence was taken away after her remarriage. This indicates the discrimination against women in Hindu personal law.
Property rights of Widow- After the demise of husband, a woman is qualified for her husband's property yet in the event that her better half has transferred his property through will then a woman cannot oppose this.
Lawson Maintenance- In India, no one comes to help the abandoned wife, No authority no police interfere in the matter. There is no ensured way that can make the husband pay maintenance from time to time. In these circumstances, the wife has to reach court to seek help which is certifiably not a simple task for a woman in India and due to this women usually live without maintenance after divorce.
DISCRIMINATION AGAINST WOMEN UNDER MUSLIM LAW
In Islamic law, Quran is considered as a primary source which according to Muslims are the words of God. Although there is nothing mentioned about the law in Quran it mainly includes ethical principles, guidelines and instructions which are needed to be strictly followed by Muslims. Due to this, there are other forms of sources to supplement the Quran to form the core of Shariah.
Age for Marriage- In Islam, there is no limit to marriage. It is up to puberty that is if a girl has attained puberty she is eligible for marriage. In the case of Yunusbhai Usmanbhai Shaikh v. the State of Gujrat, it was held that as per the Muslim personal law as soon as the girl has attained puberty or she has achieved the age of 15 years, she is eligible for marriage. So it is clear that for marriage consent and maturity of a girl are not a parameters to decide but biological characteristics are.
For marriage between the Sunnis, two male observers or one male and two female observers are needed for the proposition and acknowledgement.It indicates the unequal status of man and woman in Muslim personal because the status of one male is equal to two females which is very discriminative. In the case of Abdullah v. Beepathu, the court declared a marriage invalid because there were only two female witnesses present during the marriage.
Purpose of Marriage- After seeing the provisions of Muslim personal law, it can be said that they are very biased towards the woman. They are framed as if to intercept rapes and childbirths. Woman in Islam does not have a right to choose their husband. She cannot get married because of her own choice. Family members decide her husband.
Divorce- In Muslim law for the dissolution of marriage, a Muslim husband is given unrestricted powers as compared to the wife and a muslim woman can only ask for divorce through the provisions of the Dissolution of marriage act, 1939 in which incorporates exceptionally restricted and inaccessible justification for woman.
Maintenance- In Muslim law after the divorce, a husband is simply obligated to pay for the support of his significant other upto the period of iddat and after that the wife is liable for maintenance from those people who will get her property after her death. This shows that laws for maintenance in Muslim are not so much in favour of women. If a situation comes that no one will be able to pay for her maintenance then the responsibility falls on the Wakf Board. So, like every personal law in India, Muslim divorced women also cannot claim their right of maintenance under the Criminal Procedure Code.
Multiple marriages- In Muslim law, It is allowed for a husband to have 4 wives. In Quran it is said that, marry a woman who you think is good for you twice, thrice or four at a time but if you think you cannot treat them well then marry to only one woman. But in case of Muslim woman, it is not allowed to have more than one husband and if she does more than one marriage then her second marriage will be considered void and will be punished as per the provisions of the Indian penal code.
Reforms proposed by the Law commission regardless of religion
Commission has demanded for the registration of marriages to be made mandatory. It can be made possible by introducing an amendment in the registration of births and deaths act. It was proposed earlier also by the Law Commission in its 270th reports and In tha compulsory registration of marriages bill.
Indian society there is a stereotype that it is expected that wives have to be younger than their husband then only it is a suitable match. Two and a decayed this notion Law commission has recommended a uniform age of consent and marriages. As of now, as per the Indian majority act legal age for men is 21 and woman is 18 year
It’s been seen that there are many false cases of gravity are being filed just to attend divorce. To eradicate this the law commission has recommended a provision when there is no possibility of reconciliation between the couple there has to be a retrievable breakdown of the marriage for divorce with this there will be less number of false cases of cruelty which were only filed to attain divorce.
And has recommended there should be equal distribution of property The husband and the wife after the divorce which they have acquired during their marriage. But it does not mean it has to be split equally in every case that decision of the court is still retained. Report the provision of ‘no-fault divorce should be added with self-acquired property distribution.
Commended by the Law commission that our legislations should be disabled-friendly. Among other things, the report suggested that leprosy is a ground for divorce. In order to create a society of inclusive nature, it is recommended by the commission that diseases which can be cured or controlled should not be made grounds for divorce.
Commended by the report that second marriages happened what’s up has been possible by conversion should be made void. When the children born out of such marriages should be considered as legitimate children and they should be given all the privileges of what a legend had children will enjoy. And it was also suggested that there is a need for legislation which can address the matter related to the issue of alleged by children Bala Dafa level live-in relationships that did not end up in marriages. Law should be made of such kind that it will enable these children to be liable for their parent's property.
Recommended that section 29 subclause a of the car Jain and wards act have to be removed because it makes minor husband as a guardian of their voice it was also suggested that there is a need for amendment in section 21 of this act.
Law Commission recommended that there is a need for amendment in adoption laws which are governed under juvenile Justice care and protection of children act so that adoption is possible for all the gender identities and the children of intersex would not be denied adoption. It was suggested that the adoption of a girl child by a male father should be allowed to maintain uniformity in granting the adoption.
Reforms Propose in specific religious law
Hindu law -in Hindu law, it was suggested by the Law commission that goes Paris entry at the central level needs to be abolished. It was noted by the Law commission that women throughout their life remains under the guardianship of a man with her father and after her marriage her husband. To eradicate such things The Law Commission in their report have endorsed the idea of considering both men and women equally while granting guardianship under the Hindu minority and guardianship act.
In Muslim law, the law commission demanded completely new legislation or inheritance which will govern both Shias and Sunnis and it will also make things clear. And after after the introduction of this legislation, the Muslim Personal Law Shariat application act will be about abolished automatically. It was asked by the Law Commission that adultery should be made as a ground for divorce and it can happen by amending the dissolution of the Muslim marriage act.
Christian law-, The time period for the divorce is longer as compared to other religious laws. For attaining divorce a Christian couple has to come with two years of separation period. They get their marriage dissolved.
In our Indian society, it is expected from our women to self-sacrifice and to adjust for her family, for her husband. And if any women do not do so she is considered selfish. The reality is different which can be seen through the provisions of these different personal laws as most provisions of these laws are made for the comfort of men which shows disparity towards woman. In Muslim, the status of woman is not go good because Muslims follow their personal laws very strictly. The provisions are the reflection of the patriarchal culture of our society. It has rooted so deep into the minds of women also that they have no option but to depend on men. In our society, our religious personal laws encourage the dowry system which is in itself indicates discrimination towards the woman. It also many social issues such as domestic violence towards the wife by her inlaws because of dowry demand. Women of this century are demanding to be treated equally as men. It can only be done with the formation of a uniform civil code that will emphasise on gender equality and human rights in good spirit.
Hira Dei v. Bodhi Sahu And Ors A.I.R. 1954 Ori. 172
Yunusbhai Usmanbhai Shaikh v. the State of Gujrat 2015 S.C.C. Guj. 6211
Law Commission of India, 270th Report on Compulsory Registration of Marriag, 2017
THE DISSOLUTION OF MUSLIM MARRIAGESACT, 1939
Personal Laws and the Rights of Women - P Lakshmi, ISSN 2278-4322 Christ University Law Journal, 1, 1(2012), 91-99
Gender Inequality In Various Religious Personal Laws In India – Chandan Kumar - https://www.legalserviceindia.com/legal/article-5423-gender-inequality-in-various-religious-personal-laws-in-india.html
Name- Manpreet Singh Dhillon
Course- BA LLB (Hons)
Year- 3rd Year (5th Semester)
College- Bennett University, School of Law