Human Rights and Women Discrimination in Personal Law

Neeraj Singh Manhas

M.Phil. Research Scholar
Political Science Department
Sardar Patel University
Gujarat-388120

ABSTRACT

A woman in India belongs to a class of society which is in a disadvantaged position on

account of several social barriers and deterrents in this 21st century. Also, when we are
talking about equality in men and women, we should think it over again and again. We should ask
the question to ourselves whether it exists or it exists only in words and not in action. In the past,
women were counted with poor people and helpless children. According to Manu, a woman is first
looked after by her father then with time, by her brother, followed by her husband, and finally by
her sons. According to Manu, women don't enjoy the right to freedom.

We have witnessed different personal laws in India. The Hindus, the Buddhists, the Jains and the
Sikhs are led by Hindu law. The Muslim law is enforced to the Muslims. The Christians are driven
by Christian rule, and the Parsi law applies to the Parsis. The Jews have their law. Women's rights
concerning marriage and property are not exercised and protected under these personal laws. It has
resulted in the heavy violation of Human rights of women guaranteed under the Indian Constitution
and also under the International Conventions relating to the protection of human rights. This chapter
will scrutinise the provisions of different personal laws which are biased against women. It
advocates the unification of personal laws in the form of and uniform civil code which comprise of
fair, just and non-discriminatory provisions. The preparation of and uniform civil code would go
and a long way in remodelling the status of women in India.

Keywords:
Constitutional Provisions, Human Rights, International Instruments, Personal Law, Position of
women
INTRODUCTION
The term "Women's human rights" and the set of practices that guide it are the regularly evolving
product of an international movement to upgrade the status of women. In the 1980 and 1998,
women's motion around the world formed networks and allies to give greater visibility both to the
problems that women face every day and to the heart of women's experience in economic. Social,
political, and environmental issues. Human rights are the rights of every individual or the rights of
every human being. These are the rights that every human being must have by his or her being a
human being. The Protection of Human Rights Act, 1993, defines human rights as right relating to
life, liberty, equality, and dignity of the individual. Though the origin of human rights has a long
history, the first positive token of human rights was apparent on 10th December 1948 when the
United Nations Organization adopted the Universal Declaration of the Rights of Man.

The radical reformation of humanity and the corollary insistence that women's rights are human
rights have profound transformative potential. The incorporation of women's perspectives and lives
into human rights standards and practice forces recognition of the dismal failure of countries
worldwide to accord women the human dignity and respect that they deserve simply as human
beings. A women's human rights framework equips women with and ways to define, analyze, and
articulate their experiences of violence, degradation, and marginality. Finally, and very importantly,
the idea of women's human rights provides a common framework for developing a vast array of
visions and concrete strategies for change.

DEFINITION
Human Rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity,
language, religion, or any other status. Human rights include the right to life and liberty, freedom
from slavery and torture, freedom of opinion and expression, the right to work and education, and
many others. Every human being deserves to have these rights without being discriminated upon.
Human Rights were defined first by the UK philosopher John Locke (1632-1704) as absolute moral
claims. Expression of human rights is in the US Declaration of ownership in 1776 which proclaims
that "All men are by nature equally free and independent and have "certain inherent natural rights,
of which they cannot be any compact, deprive or divest their posterity, "called also fundamental
rights,"
Measures Taken by the International Community for Protection of the Human Rights of women
The international community has shown its worry for the human rights of women in several
meetings and forums. The convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), taken up in 1979 by the UN General Assembly, is expressed as an international
bill of rights for women. It prohibits all forms of intolerance on the grounds of gender as adverse of
fundamental freedom and human rights.
The government of India granted convention for riddance of all forms of intolerance against women
in 1979 and repeat that discrimination against women breaks the principles of equality of rights and
respect for the human status of equality. The architect of the Indian Constitution was much
motivated by the Universal Declaration of Human Rights. This is evident from the fact that they
have integrated the same spirit in the Preamble of our Constitution itself. Not only the Preamble but,
other plans of the Constitution also pursue to protect human rights. The right to life is perceived as a
fundamental right under the Indian Constitution. Discrimination among citizens on the evidence of
religion, race, caste or sex is also prescribed under the Constitution. Equal chances to all in matters
of public employment are also admitted. The Constitution provides surety to all people of equality
before the law and equal protection of the law. Although the Constitution guarantees equal
protection of rights of men and women, the bigotry against women continues, and one of the most
important areas where this bigotry is visible is in Personal Law. The various personal laws are
enforced in our country, which denies equality to women. This chapter aims to see those provisions
of law which are bigotry against women and which results in the heavy violation of their human
rights guaranteed under the Indian Constitution and also under international conventions.

DISCRIMINATION AGAINST WOMEN UNDER PERSONAL LAWS

We have witnessed in India, a bundle of Personal Laws are existing. Generally, the relevancy of
these laws is based on the religion pledged by different communities. The Hindus, Buddhists, Jain,
and Sikhs are directed by Hindu law. Muslims enforce Muslim laws. The Christian is governed by
Christian law, and Parsi laws are exercised to the Parsi community. Jews have their rule. The only
natural trait of all these different Personal laws is that they are opinionated towards women and
show favouritism to all men.

GENDER-BASED DISCRIMINATION UNDER HINDU LAW

MARRIAGE AND DIVORCE LAWS

In the ancient Hindu law, women are segregated in all forms. The different marriage laws were not
equal for men and women. If we see the nature of Hindu marriage, it is very well described under
the Vedas. In a Hindu wedding, it was indissoluble union till eternity. It is specified as a union of
"bones with bones, flesh with flesh and skin with skin, the husband and wife become one person.
As far as Hindu woman is concerned even after enactment of Hindu law in1955 and 1956 they did
not enjoy equal rights to Hindu men. Before 1955 polygamy was prevalent among the Hindus, the
Hindus woman could not hold any property as its absolute owner except in the case of “stridhan".

The Hindu Marriage Act, 1955 has removed these disparities to a large extent. The monogamy rule
for both men and women was enacted. The woman can take divorce and end her married life and
enter into another marriage according to law. The Hindu Marriage Act, 1955 has given the grounds
for divorce. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for marriage. It
indicates both the parties to the union should have the scope to permit the marriage. Section12(c) of
the Act says if the permission was obtained by force or fraud, then the marriage is void. If the
consent is not obtained at all, then it will not affect the cogency of the wedding. But, in the
dominant male society, the permission of the boy is received, and consent of the girl is ignored. The
boy may be older to her, doubtfully not suitable for her, but without taking her permission, the
marriage takes place. Nevertheless, on this ground, the wedding cannot dwindle. She has to bring it
under the beds for dissolution of marriage provided under the Hindu Marriage Act, 1955, otherwise
parting of marriage is not possible.

Even though the Hindu law has been codified, the certain discriminatory provision still exists even
today, for example, a Hindu woman is not a coparcener except in a few states like Andhra Pradesh,
Maharashtra, Karnataka and Tamil Nadu; consequently, she is not entitled to claim a share in the
coparceners. Similarly, she has no right to partition of a dwelling house even though she is a legal
heir. Thus, it is obvious that the codification of personal law of Hindu has not succeeded completely
in the eradication of gender inequality.

PROPERTY RIGHTS OF WOMEN

The Property rights of the Hindu women are highly disunited based on several reasons apart from
those like religion and the geographical region which have been already mentioned. The different
schools of Hindus law are before codification. The schools of law where only coparceners are the
owners of the joint family property.

In 1937, the Hindus women's right to property Act was passed. It bestowed property rights to
women. But, not with the full majority right over the property. In 1956, the Hindu Succession Act
was passed. It gave property rights and power to women. Mother, Daughter and wife were made
class I heirs. But, the concept of coparcener that only son can be a coparcener and daughter cannot
be coparcener did not change. The Hindu Succession Act, 1956, did not change anything. Women
were not kept at par with their male counterparts. The recent Hindu succession (Amendment) Act
2005 has made an unreasonable change. Now, if the daughter has the same rights in the coparcener
property as that of a son, also, section 23 which says that when the coparceners property includes a
dwelling house, the rights of a daughter to claim partition of the living house shall not arise until the
male coparceners choose to separate their respective sons. The daughter shall be entitled to a right
of residence therein. With keeping a check on the testamentary capacity of Hindu male, the Hindus
succession Amendment Act, 2005 may not serve its right purpose.
MATRIMONIAL PROPERTY
It's not written anywhere in the Indian society that taking care of the household chores and children
is the duty of women. A man who is living source of the family will earn money and supported by
his wife. Only when there is a chance that she takes care of the household work and children and
she can focus on economic growth. But, this attribution of the wife is never taken into attention.
Whatsoever, the 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,
marriage breaks, then she has to ask her husband for maintenance. In India, we don't have any law
relating to marital property as it exists in foreign legal systems, where the interests of the women
are protected and empowered.

LAW OF ADOPTION
The shastras Hindu law looked at adoption more like a mystical than secular Act. The adoption
differed from one school to another. The Hindu adoption and maintenance Act, 1956, introduced
conformity in the law of adoption among Hindus. The Hindu adoption and maintenance Act 1956
extend to only the Hindus which are defined under section 2 of the Act and include any person who
is Hindu by religion, including a Buddhist, Jains, and Sikhs and to any other person who is not a
Muslim. Christians, Parsi or Jews by Religion. The adoption of a child was very limited in shastras.
But, in the Hindu maintenance Act 1956, it was recognized, but the discrimination against women
continues. According to the Hindu Adoption and Maintenance Act 1956, a married man can adopt,
but, a married woman cannot adopt. Now, this disparity has been removed by the personal laws
Amendment Act, 2010.

GENDER-BASED DISCRIMINATION UNDER MUSLIM LAW

MARRIAGE AND DIVORCE LAWS

In the Muslim community, the condition of women is more pathetic than the Hindu community. In
pre-Islamic Arabia, the women enjoyed a secondary status in all respects compared to men. The
genesis of Islam has contributed much for the amelioration of Muslim women and uplift of their
problems. The holy Quran gives equal rights to men and women and places women in a respectable
position. However, certain aspects are Islam that renders the status of Muslim women, especially
the wives insecure and inferior. A Muslim male is permitted conditionally to marry as many as four
wives at a time. It is important to note that the polygamy among Muslim men is only permission but
a compulsion. The Shia Muslim male can enter into contract marriages for an agreed period. There
is no ceiling on the number of mute marriages that may be contracted by a Muslim male. In the
matter of divorce, the position of the Muslim women is the most inferior and insecure compared to
others, particularly the method of divorcing the wife by the husband by pronouncing triple "Talak"
is highly discriminatory. This is despite the clear mileage of holy Quran which discourages "Talalc-
UI-Sunnat" and "Talac-ul-Biddat" because the right of the husband to divorce his wife is unilateral
and unfettered.

Recently, the Allahabad high court held that the practice of the triple tasks is unlawful and void. In
the matter of succession. A Muslim woman is discriminated against, despite the assertion of certain
scholars that Islam in this regard is more progressive and liberal. The legal position is that when two
sharers or reliquaries of the opposite sex but the same degree inherit the property of the deceased,
the Muslim male gets twice the share of the female. For example, if brother and sister inherit the
property as successors, the brother receives two shares, whereas the sister gets only one claim.

PROPERTY RIGHTS OF MUSLIM WOMEN

The Shariat Act, 1937 the Muslims in India were governed by Customary laws which were highly
unjust and were against women. After the Shariat Act, 1937 Muslims in India came to be handled in
their matters, including property laws, by Muslim personal law. But this did not make any major
changes in the property rights of women. Under Muslim rule, men and women have equal
ownership of inheritance. If a Muslim male die and his heirs include both male and female, both
will inherit the property simultaneously. But a man's share of the inheritance is double that of a
woman in the same degree of relationship to the deceased. The quantum of property inherited by a
female heir is half of the property given to a male of equal status. It is a manifest sample of unequal
treatment of woman under Muslim law.

CONCLUSION
It's high time that we as a society think seriously about the disparity in the rights of the women are
no less than men in any way so they should be treated equally. The change starts from home itself,
and one needs to treat the girl and boy equally. Parents in ignorance themselves many times make
their daughters feel that they are inferior to the sons; statement, like it's not safe to be out sundown
applies only to women and not men. It's grilled into their mind early on that their existence without
a man in the society is highly challenging and to quite an extent not acceptable in society. Hence,
they are given away in marriage when they are young and are unaware of the consequence of the
wedlock that might or might not work in their favour. The need of the hour is to use from both
within and without, within here would imply to educating and empowering the women at the family
level and without would mean to the laws that would go in favour of women so that there arises no
such question of discrimination. Rather equality in every sense of the word should be enjoyed by
every human being!