Women’s Rights and Personal Laws

(Hindu, Islamic and Christian)

-TANISHA SOLANKI

BALLB 7TH

ABSTRACT

This Article aims to highlight the gender inequality that women in India have to face in religious
personal laws since time immemorial and effects of such inequalities in the life of women. This
article also highlights the changes and development in various personal laws with the progressive
times. To write this Article extensive research has been done and the analysis has been noted
down carefully. To begin with ,the concept of the personal laws has been explained then further
the discriminatory aspects in marriage, divorce, adoption and inheritance laws of various
religious personal laws has been touched upon along with the effects of it on the lives of the
women. This article mainly deals with the Hindu personal laws, Islamic personal laws and
Christian personal laws. This article not only recognizes the problems in our personal laws but
also provides a solution for the situation in the face of Uniform Civil Code.
 RESEARCH QUESTION

WHAT ARE THE DISCRIMINATORY PROVISIONS AND ISSUES IN PERSONAL LAWS

(HINDU ISLAMIC AND CHRISTIAN), CAN THEY BE ELIMINATED THROUGH A
UNIFORM CIVIL CODE?
INTRODUCTION

India is a pluralistic society. Since the time of the Aryans India has been the home of eight major
faith and religious groups. As there are numerous religions so there are a huge number of
personal laws as well.

The term ‘personal laws' includes the scriptural commands and standard practices of that
particular religion regarding arrangement of marriage and its disintegration; the separate rights,
commitments and limits of marriage, the connection amongst guardians and children, conjugal
property; child custody or guardianship, and inheritance.1

The women have fewer rights than the men under the religious personal laws. The religious
personal laws bring forth numerous taboos; for example man centric society, early marriage,
endowment, aggressive behavior at home and so forth. The general public has obligated
decisions on the women. The status of women is of incredible worry as these laws portray
women in subordinate position to men. As an idea, "gender inequality" alludes to the undeniable
or concealed differences among people in view of the execution of the sexual orientation.
Sociologists characterize gender disparity as the distinction in the status, power and eminence
women and men have in groups, collectivities and social orders. Women need to experience with
such a large number of disparities which prompt such huge numbers of hindrances in their lives.

The ladies feel substandard as well as defenseless in light of the fact that the childhood of the
young ladies has been done so as to not raise their voices against such separations. Despite the
fact that the legislature has attempted to lift the status of women, yet there is need to change the
thinking pattern of people to give sense of credence to women about their potential.2

The present Hindu Act of 1955-56 applies to such person who are Hindus (including Buddhists,
Sikhs & Jains) by religion; whether by birth, conversion or otherwise. It does not and cannot
apply to person who is not a Hindu (or Buddhist, Sikh or Jain) by religion or who is a Muslim,
Christian, Parsi or Jew by religion.

1
Lalita Dhar Parihar - Woman and Law, Published By Eastern Book Company ,2011
2
Monica Chawla- Gender Justice, women and Law in India-published by Deep and Deep Publications Pvt. Ltd.,
New Delhi-2006
 Muslim law appear from the Muslim Personal Law (Shariat) Application Act 1937 and also the
proceeding enactments commonly known as civil code act, applies to persons who are Muslim
by religion, whether by birth, conversion or otherwise. This act defines the scope of Muslim
Personal Law including all affairs regarding succession, marriage, dissolution of marriage,
guardianship and property rights. Muslim personal law is largely un-codified and legal decisions
are made by Court on the basis of Quran, Sunnat and Hadith (traditions / sayings of Prophet
Mohammed, PBUH).

The Christian law would appear from the provisions of the Indian Christian Marriage Act of
1872, the Indian Divorce Act of 1869 and the Concert Marriage Dissolution Act of 1936. It
would apply to a person on the ground of his or her being Christian by religion.

HINDU PERSONAL LAWS AND WOMEN

WOMAN, MARRIAGE AND DIVORCE

Dharamshastra’ is the basis of Hindu law along with other sources like Vedas, Smritis, Shrutis,
etc. Codification of Hindu law started in 1995, but still the women were not considered at par
with the men. The ancient Hindu Law discriminated women in all respects. The marriage laws
were not equal for men and women. The nature of Hindu marriage is described under the Vedas.
According to Vedas a Hindu marriage is an indissoluble union till eternity. It is defined as a
union of “bones with bones, flesh with flesh and skin with skin, the husband and wife become as
if they were one person. It is eternal and continues for lives in the sense that she cannot take
another husband even after his death.3 Husband and wife become one person in the sense she
cannot have any individuality of her own. But the husband could enter into the sacramental fold
of marriage any number of times because unlimited polygamy was permitted under Hindu law
before enactment of the Hindu Marriage Act, 1955.

According to the famous Hindu Jurist Manu’s description of women, ‘While young, she remains
under the control of her father, after marriage under the control of her husband and on his death,
under control of her sons. She does not deserve complete independence at any time.’ . She

3
Manu Smriti
remains under the protection of her father or his representative till her marriage, after marriage
the groom was to be the swami and protector of the wife.4

In earlier times Consent of girls was not very common and marriage was largely agreed between
elders of the family /clan and considerations varied from class, caste, dowry, horoscope and
other social parameters than suitability and compatibility.5

Consent of girls is not very common and marriage is largely agreed between elders of the
family /clan and considerations vary from class, caste, dowry, horoscope and other social
parameters than suitability and compatibility

Section 12(c)6 of the Act says if the consent was obtained by force or fraud then the marriage is
voidable. If the consent is not obtained at all then it will not affect the validity of the marriage.

This applies both to the husband and the wife. But practically, what happens in the male
dominant society is that, only the consent of the boy is obtained, and consent of the girl is
ignored. The boy may be much older to her, absolutely not suitable for her but without taking her
consent the marriage takes place. However, on this ground the marriage cannot be dissolved. She
has to bring it under the grounds for dissolution of marriage provided under the Hindu Marriage
Act, 1955, otherwise dissolution of marriage is not possible. If the marriage was solemnized
without her consent or against her wishes, she still continues to be in the marriage fearing society
or because of parental pressure. But under Muslim law, if there is no free consent, then there is
no marriage. If the marriage has taken place against his or her wishes, the marriage will be void.
Property Rights of Women This provision is not available to Hindu women. Though divorce is
recognized under all the personal laws only a woman who has her own income or who has
wealthy parents to support can opt for it. The laws relating to maintenance of a divorced woman
and her children are not strong enough to give protection for her.

WOMAN AND PROPERTY

4
Manu Smriti
5
Anjani Kant - Woman and Law, published by APH Publishing Corporation, New Delhi
6
Hindu Marriage Act 1955
There were different schools of Hindu law prior to codification. Under these schools of law only
coparceners are the owners of the joint family property. Women could not be a coparcener and
hence had no property rights. It was in 1937, the Hindu Women’s Right to Property Act was
passed. It conferred property rights to women. But it did not give her absolute right over the
property. In 1956, The Hindu Succession Act was passed. It gave property rights to women.
Mother, wife and daughter were made Class-I heirs. The concept of coparcenary that only a son
can be a coparcener and daughter cannot be a coparcener did not change. Even after passing of
the Hindu succession Act, 1956, women were not kept on par with their male counterparts. But
the Hindu Succession (Amendment) Act, 2005 has made a drastic change. Now the daughter has
the same rights in the coparcenary property as that of a son. But even after this amendment, there
is every possibility that the women can be deprived of the property rights. Because in the male
dominated society, it is believed that only sons are entitled to the property. The male coparcener
who has the power to dispose of his property by executing a will may dispose of the property in
favor of his sons, to avoid the property going to his daughter.

It is an unwritten rule in the Indian society that taking care of the household and children is the
duty of women. A man is able to earn money only with the support given by his wife. Only when
she takes care of the household and children he is able to concentrate on economic growth. But
this contribution of the wife is never taken into consideration. Whatever property is purchased by
the couple, by their common effort, is generally purchased in the name of the husband. Then the
property belongs only to the husband. If for some reason, the marriage breaks, then she has to
ask her husband for maintenance. In India we don’t have any law relating to matrimonial
property as it exists in foreign legal systems, where the interests of the women are protected.

WOMAN AND ADOPTION

The Shastric Hindu Law of adoption differed from one school to another. But the Hindu
Adoption and Maintenance Act, 1956 introduced uniformity in the law of adoption among
Hindus. Under the Shastric Hindu Law, a Hindu woman was permitted to adopt a child only
under rare circumstances. Her right to adopt a child was very limited. Though under the Hindu
Adoption and Maintenance Act, 1956 the right of a woman to adopt a child is recognized,
discrimination against woman continues. According to the Hindu Adoption and Maintenance
Act, 1956, a married man can adopt but a married woman cannot adopt during the subsistence of
the marriage. Now this disparity has been removed by the Personal Laws Amendment Act, 2010.

MUSLIM PERSONAL LAWS AND WOMEN

WOMAN AND MARRIAGE

A Muslim marriage called nikah is not a sacrament but a civil contract made for the purpose of
procreation. Consent of the bride and the bridegroom is the basis of this contract. So, if the
parties are adults, then their free consent is essential for a valid marriage and nobody else’s
consent is required. If there is no free consent, then there is no marriage. In case of minor or
person of unsound mind consent can be given by guardian. In such cases the minor on attaining
majority can either ratify the marriage or repudiate the marriage. It is called option of puberty.
So, a girl cannot be forced into marriage. Even if she is forced into it, it is not valid marriage.
She can exercise the option of puberty and dissolve the marriage. This legal provision seems to
be in favour of women giving her right to decide about her marriage. Consent a marriage was
more a kind of ritual than exercising a choice. She does not even have the right to reject the
partner of her parent’s choice.

WOMAN AND MAINTENANCE

Under Muslim Law, the law of maintenance of women after dissolution of marriage is not in
favour of women. A Muslim divorced wife can get maintenance from her husband only during
the period of idaat. The question now arises as to who will maintain her if she has no supporter
and is of old age

WOMAN AND AGE LIMIT

Islam has laid down no age limit for marriage. Age of marriage depends on
puberty, which may vary. In Yunusbhai Usmanbhai Shaikh v. State of Gujarat7,
Justice J.B. Padriwala said, “According to the personal law of Muslims, the girl, no
sooner she attains puberty or completes 15 years of age, whichever is earlier, is
competent to get married.” 20 So marriage depends on the biological
characteristics of the girls rather than the age which is very astounding.

WITNESS

Among the Sunnis, the proposal and acceptance should be made in presence and
hearing of two adult male witnesses or one male and two female witnesses. In
Abdullah v. Beepathu8 “…the marriage invalid as there were two female witnesses
only. That means as per the above law a single man has an equal status to two
women. A woman is half to a man which nothing but sheer discrimination is.”

WOMAN AND DIVORCE

The right to divorce (talaq) enjoyed by husband in Muslim law, had come under much
hammering and criticism in the Shah Bano case9. Under the Muslim law, matrimonial union is a
civil contract and can be terminated like other contracts by mutual agreement of the parties, but
man, in shariat, has some superiority over women to divorce her under certain formalities even
against her will. The women cannot divorce her husband of her own accord and against his will
unless she obtained this power by contract with him before marriage or after marriage. She can,
for certain reasons, obtain judicial divorce without foregoing her dower or her right to
inheritance and maintenance for some specified period under the dissolution of Muslim Marriage
Act, 1939, which applies to all Muslim women. She can, by means of khula induce her husband
to free her of the marriage tie.Islam does recognize the right of both partners to end their
matrimonial relationship. Islam, grants the wife the right to dissolve the marriage through
“Khula”, if the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of

7
2016 CriLJ 717
8
ILR 1967 Vol.1 Kerala 361
9
AIR 1985 SC 945
the marriage gift he has given her, in the case of the wife choosing to end the marriage she may
return the marriage gifts to her husband.

POLYGAMY

In Islam, polygamy is a very contentious issue. A Muslim man may marry no. of wives but not
exceeding 4 but a Muslim woman can marry only one husband & if she marries another husband,
she is liable for bigamy under Section 494 of IPC23 & the offspring of such a marriage is
illegitimate.

The logic behind the polygamy is that during pregnancy or menstruation it is better that man
have other legally married wife rather than going to other women. Monogamy results in
promoting the institution of prostitution. This mentality is extremely shameful and disrespectful
for women and an individual in general as well.

WOMAN AND SHARE OF INHERITANCE

The male generally gets a share twice of what his female counterpart gets. When the son and the
daughter inherit together the son gets twice of what the daughter gets. The husband gets 1/4th
share and the wife 1/8th share when there is a child and when there is no child 1/2th and 1/4th
respectively.

CHRISTIAN PERSONAL LAWS AND WOMAN

WOMAN AND DIVORCE

The Christian marriage personal laws is governed by Christian Marriage Act,1872.

The Christian church prohibits divorce and does not permit the annulment of marriage for any
reason as they are commanded by the church to spend their lives together however miserable
their lives may be. Therefore, Christians have introduced the civil laws which permits divorce on
slightest pretext.

The dissolution of Marriage and Judicial separation (under the Indian Divorce Act, 1869) allows
a Christian wife to file petition for a divorce either in High court or District court on the grounds:
. That her husband has exchanged his profession of Christianity and gone through a form of
marriage with another woman

. Has been guilty of incestuous adultery

. Has been guilty of bigamy and adultery

. Has been guilty of rape, sodomy or bestiality

. Is guilty of adultery coupled with desertion without reasonable excuse for two years or more

The Government of India declared the year of 2001 as the year of Women empowerment and
aptly so, in the context of three important bills placed before the parliament dealing with rights
of women. The Indian Divorce Amendment Act 2001, which was an endeavour to bring about
gender justice among the Christian community in India in matters of divorce and matrimonial
causes. The procedural aspect under the act of 1869 has been substantially altered to reduce the
miseries of parties in divorce proceeding. Now a family court can grant a decree of nullity of
marriage or divorce at the first instance and the same would final if no appeal is preferred within
the period prescribes for the same. In addition, with the enactment of the marriage laws
(Amendment) Act 2001, the provision for alimony has been made more beneficial to women; the
quantum of alimony is left to be decided by the court in the circumstance of each case. Gender
discrimination writ large on various provisions in the act has been amended and gender equality
has been made almost a certainty.

Earlier there was no concept of divorce by mutual consent but by Dissolution of Marriage by
Mutual Consent: Under Sec. 10-A of the Divorce Act, 1869

According to The Indian Divorce (Amendment) act, 2001, on the ground that they have been
living separately for a period of two years or more, that they have not been able to live together
and they have mutually agreed that the marriage should be dissolved.

Section 10, 17 and 20 of the Indian divorce act, 1869 are most antiquated and discriminatory
contrary to the provisions of the constitution. Section 10 of the Act provides for the grounds on
which spouses belonging to Christian community can file a suit for dissolution of marriage. In
accordance with the provisions contained in the section, the male spouse is entitled to dissolution
of marriage on the grounds of adultery on the part of female spouse but the female spouse is not
Section 39 provides that in case the wife has an allegation of adultery against her, she loses her
property in favour of the husband or children. There is no corresponding provision that the
husband would lose it. This is again gender discrimination so entitled unless some other
matrimonial fault to be superadded to the adultery.

WOMAN AND MAINTENANCE

Christians do not have personal laws relating to maintenance but Section 36 Indian Divorce Act,
1869 of provided that an amount not exceeding one-fifth of the property is to be given to the
divorced Indian Divorce Act, 1869woman as a maintenance this is ridiculous in the present day
context when soar towards the sky with each passing day but it was amended in 2001 where the
right of only wife to maintenance was recognized both alimony pendent lite and permanent
alimony.

Permanent alimony can be granted only in case of dissolution of a marriage or judicial

separation: As per Sec.37 of the Act.

The District Court may order that the husband shall, to the satisfaction of the court, secure to the
wife such gross sum of money, or such annual sum of money for any term not exceeding her
own life, as having regard to her own fortune, to the ability of the husband and so the conduct of
the parties

INHERITANCE AND SUCCESSION

The general law to the inheritance and succession can easily be Christian is entitled to equal
shares on inheriting the property on the death of a person. The Indian Succession Act 1925,
especially under section 31 to 49 of the act is applicable to Christian and Jews community.

According to the Indian succession Act of 1925, the Christian widow right is not exclusive and
gets curtailed as the other heirs step in. Only if the intestate has left none who are of kindred to
him, the whole of his property would belong to his widow. If there are any lineal decedent, than
only one third devolves to his widow.
Another anomaly is a peculiar feature that the widow of a pre-deceased son gets no share, but the
children whether born or in the womb at the time of death would be entitled to equal share.

The Cochin Christian Succession Act, gives the daughter a share along with the sons, subject to
the limitation that her share shall be one –third in value of that of a son [section20(b)] and gives
one third to the widow, with complete right over it. The Travancore Christian Act (1916) gave
widows one third of the property for maintenance until death or re-marriage, and daughters’ one
fourth of the sons share.

UNIFORM CIVIL CODE AND PERSONAL LAWS

Now since we have seen how different personal laws discriminate woman in the name of religion
and how the different and discriminatory laws worsens the status of woman, therefore it can be
concluded that a Uniform Civil Code can strengthen the women of India and provide upliftment
in their status by ensuring provisions which do gender justice to women belonging to any
religion or any sphere in our country.

India is a welfare state. The preamble of the Indian Constitution states that the people of India
have given themselves the Constitution which promises to provide for liberty, equality,
fraternity, and justice. To ensure this in a society, it becomes a necessity that the government
endeavors to mitigate social and economic inequality and to take steps towards a social order
based on justice social, economic and political – as enshrined in our Constitution. The term
‘social justice’ includes gender justice. The idea of gender justice prohibits discrimination on the
ground of sex, be it social, political or economic. Thus, the Uniform Civil Code becomes a
necessity to offer identical repute to all citizens irrespective of their religion, class, and caste,
thus ensuring a true sense of equality. By doing this we shall be promoting gender equality and
accommodates the ambitions of the juvenile population to use their complete ability for nation-
building and integration on principles of secularism.

Thus, speaking in a nutshell UCC is the need of the hour to safeguard the rights of citizens of the
nation, without any discrimination. The implementation of UCC shall be ‘progressive
legislation’. Reformation with an aim to modernize and codification of law may pave the way for
practical realization of the values of gender justice and equality. Changing times strongly
necessitates the need for having a Common Civil Code and then only a fully tolerant India of our
dreams with its religious working side-by-side with one another, could be realized.

Article 4410 talks about the role of the state to strive and secure for the citizens of India a
Uniform Civil Code (UCC) throughout the country. However, ambiguity surrounds the UCC as
it’s nowhere clarified whether there shall be one single codified law to be applicable to different
communities, or any other alternate arrangement. The Constitution continues its hush as the word
“uniform” is nowhere defined and there exists a perplexity in the application of a single codified
law to the large diverse population of the Indian subcontinent. However, after much deliberation,
it is now been accepted that the word “Uniform” in Art 44 means that all communities must be
governed by the uniform principles of gender justice and human justice. UCC may not
necessarily mean a common law but different personal law based on the uniform principles of
equality and individual liberty. Bringing in such uniformity can sustain the diversity in law or
interfere with the religious beliefs and practices.

The SUPREME COURT on UCC

As no UCC exists of now, The Supreme Court of India in reliance on Art.44 of the Constitution
of India liberally interpreted many provisions of the personal laws of Hindu as well as Muslim to
protect the rights of women in matrimonial cases, where gross injustice was being afflicted.
Speaking on the desirability of UCC, the Apex Court for the first time in 1985 upheld the need
for the introduction of such a civil code. This came as a reaction to the case of Md. Ahmed Khan
Vs Shah Bano Begum11. It was held in this case that a Muslim divorcee was entitled to get
maintenance from the former husband beyond the period of Iddat under Section 125 of the code
of criminal procedure if she had not married and could not maintain herself from the dower
received at the time of divorce. On one hand, it came as a welcome move for Muslim women,
who had a great relief but on the other, it irked Muslim fundamentalist which led to the
enactment of Muslim women (Protection of Rights on Divorce) Act,1986 which excluded
10
CONSTITUTION OF INDIA
11
AIR 1985 SC 945
divorced women from the purview of Sec.125 of Criminal Procedure Code. The Act was
severely criticized as it was prima facie aimed at exploiting women. The Muslim fundamentalist
criticized the supreme court of India as the court had unnecessarily interfered with their personal
laws, which according to them should not be done.

The court has time and again tried to solve this issue, like in Sarla Mudgal Case the court
emphasized that there is no relation between personal law and religion in a civilized society.
Issues like succession, marriage and like matters are secular and cannot be brought within the
guarantee enshrined in Art. 25,26 and 27. The reformation of Hindu personal law was quoted as
an example and it was urged as to how Muslim personal law is yet to reform to divest it from
religion. Thus, the Supreme Court has done what it could have done, now its legislature’s turn.

Goa: A Shining Example of UCC

It’s nothing less than a paradox that we have within our own territory a state which has
successfully implemented a sustainable model of UCC, however, we are so engrossed in finding
solutions from the west that we overlook it. However, this hasn’t gone unnoticed as the SC also
noted that Goa is a "shining example" as it has a UCC related to all, irrespective of religion
“except while protecting certain limited rights.” The Portuguese Civil Code, 1867 that is being
followed is a glowing example of striking balance so as to ensure a progressive Uniform Civil
Code that could ensure gender justice and equality, without trespassing the boundaries of
guarantees.12

The civil code in Goa is a set of regulations to administrate personal matters of all people
regardless of religion and assuring that their fundamental, elemental and Constitutional rights are
shielded from any harm. The main function of these regulations is to govern marriage, adoption,
divorce, maintenance, and inheritance. Goa is the only state which has common family law and a
Special Marriage Act which permits any citizen to marry outside the area of any special religious
personal law, thus freeing them from clutches of personal law dilemma.

12
Times Of India
CAN UNIFORM CIVIL CODE ELIMINATE GENDER DISCRIMATION DONE THROUGH
PERSONAL LAW?

The following survey was conducted in view to get an answer to the above question. The survey
and its result is as follows:

Question title: Are you aware of the Personal Laws you fall under?. Number of responses:

33 responses.

Do you think Personal Laws of different religions are somewhere Discriminatory to women ?

33 responses

Do you think Uniform Civil Code (one law for everyone regardless of religion) can eliminate
gender discrimination form our country done in the name of religion?

Any comments you would like to give or share about this topic.

When in our constitution have law of equality then why not we have uniform civi code

There should be one law for everyone

Religion is something personal, uniformity in the same would be a big challenge for the same,
gender discrimination would always be there.

The discrimination is even present from the traditional family to the modern family people
always enhance the boys so I think we should empower women of our country by educating each
and every girl child, by giving them their rights by teaching them to raise their voice against any
abuse, by stopping the child marriage customs here so that she is independent and set example
for other girls who are facing problems based on customs and religion.
Show your respect towards humans and remember to leave anything that leads to
depersonalisation!

UCC should be there as it will reduces discrimination and riots will not take place.

ANALYSIS OF SURVEY

CONCLUSION

Women have been exploited for centuries. They have been denied just place in the society.
Renowned poet Rabindranath Tagore has expressed his views on the plight of women as – “O
lord why have you not given women the right to conquer her destiny? Why does she have to wait
head bowed? By the roadside, waiting with tired, patience, hoping for miracle in the morrow?”
The women of this era want equal rights with men. It is only with the unification of personal
laws in the form of a uniform civil code consisting of fair, just and non-discriminatory provisions
that the women will enjoy their human rights in letter and spirit. The formulation of a uniform
civil code would go a long way in improving the status of women in India.

Status of women in a religion depends on regional factors; a region that has better economy and
education, the status of women improves. It is evident in the present western society and the
developed countries the freedom of women, irrespective of religion, is better than that from
under developed or developing countries. The status of women in the country is interconnected
with the social and economic development in the country. If we empower them economically
and socially, it would automatically raise their status in the society.

From the cradle to the grave, females are the victims of numerous vicious acts such as
discrimination, oppression and violence, within the family, at the workplace and in the society.
Laws that explicitly discriminate are only the tip of the iceberg. The denial of equal opportunity
in education and employment, exclusion from political representation, deprivation of sexual and
reproductive rights, plus the use of social forces and physical violence to intimidate and
subordinate women – all these violations are of the rights to equality.