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WOMEN’S RIGHTS UNDER PERSONAL LAWS

AUTHOR
KAJAL.D. MHASAL
2nd year student (semester III)
Maharashtra National Law University Aurangabad

CONTACT
9096979199
kajalmhasal@gmail.com

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WOMEN’S RIGHTS UNDER PERSONAL LAWS

ABSTRACT
In India each religious group is governed by its personal law. The Hindus follow their
dharma Shastras, the Muslims are subject to Islamic law and follow Sharia law, the Christians are
subject to Cannon law, the Parsis to Parsi laws and the Jews to Halakhah. The only common factor
amongst all these laws is that they all discriminate against women in their own way and put them
subordinate to men. In this article we are going to analyse the major personal laws (Hindu, Muslim,
Christian and Parsi) and study the women’s right under these personal laws.

INTRODUCTION
The society in India is a pluralistic one, and has been home to major faith and religious groups
around the world. The ethnicity, the religious brotherhood and the communal harmony has been
observed as a duty by the people here and as a result various personal laws thrived for the
maintenance of their personal lives in accordance with their faith. In sensitive family matters like
marriage, divorce, and succession, the people have been given the freedom to be governed under
their personal laws. Family has been defined as the “the basic unit of society” by the Universal
Declaration of Human Rights 19481. The basic unit is also a site of struggle over decision making,
entitlement of the property and other important matters between the family members and the family
law plays a very eminent role and has a powerful impact on the lives of women and their social
status. The role of women in her family decides her role in the society. Women are being
discriminated in the name of religion. They have to sacrifice their rights and have to face
inequalities at the altar of the family due to the way their role has been manifested and the duties
have been fixed by the society. They are deprived of their Universal Human Rights due to their
Personal laws. A woman is governed or subordinated by different men at different stages of her life,
starting from her father who restricts her right to travel or go outside the premises of the house, he
decides if she will get basic education, he decides if she can practice a profession, in the next stage
she is married to a man and he gets all the rights over her and their children and plays as the head of
the family and further these rights are passed over to her sons. On the basis of Aristotle’s natural
law, Locke as well as Rousseau both argued that it was okay for women to under husband’s
subjection. Also, the law of Manu, obligates the women to obey their father in childhood, their
husband after marriage and their sons after widowhood.

1
G.A. Res. 217A (III), Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter UDHR]

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MARRIAGE UNDER VARIOUS PERSONAL LAWS

Marriage is a ritually or socially recognised union or a legal contract between the spouses
performing the ceremony and the act of marriage establishes some normative or legal rights and
obligations between them, their children and their in-laws. It can be performed in a secular civil
ceremony or by a religious way via wedding ceremony. The right to marry is a component of the
right to life under Art 21 of the constitution of India which states, “No person shall be deprived of
his life or personal liberty expect according to procedure established by law”. This right has also
been recognised under the Universal Declaration of Human Rights, 1948, under Art.16.2

WOMEN’S RIGHTS UNDER HINDU PERSONAL LAW.

The conception of marriage in Hindus is very divine and impose a lot of cruel restrictions on
women, behind the veil of the term ‘marriage’. All their freedom gets snatched away and they
cannot free themselves even after the death of their husband because the notion of marriage is
sacramental and the bond tied is considered an unbreakable bond and is said to be continued till
seven rebirths.

Even after the Hindu law was enacted in 1955, there were still indifferences between men
and women. Men were allowed to practice Polygamy. Women had no right over the property of her
father or her husband except for her “streedhan”. The enactment of Hindu Marriage Act, 1955
brought some serious changes. Even though the Hindu marriage is known as a ‘Holy sacrament’, its
sacramental character has been eroded by the introduction of matrimonial remedies of Divorce and
nullity of marriage and the amendments brought in the Later years (1956, 1960, 1964, 1975 and
1978). The women were granted these rights and privileges in four different Acts commonly known
as Hindu Code Bill. These Acts brought radical changes and uniformity in the Hindu Law of
Marriage. They are applicable to all Hindus by religion including Jains, Buddhists and Sikhs. Under
the Hindu Marriage Act, 1955, women got the right to seek Judicial Separation and Divorce for the
first time. The consent of both the parties to marriage was held to be essential under this Act.
Bigamy was held as an offence and is punishable and is a sufficient cause to seek divorce. The act
also recognised the women’s right to re-marriage after the period of limitation for appeal. The
marriage can be held voidable and can be annulled by a competent court on some specified grounds
if it is in contravention of the conditions specified in clause (ii) of section 5 of this act. Even though
the sacramental character has been eroded, it still provides it necessary to perform the customary
rituals of anyone of the partners.

2
12. Monica Chawla- Gender Justice, women and Law in India-published by Deep and Deep Publications Pvt. Ltd.,
New Delhi-2006- pg 26-27

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The main reforms under this act are

The act provided the lower age limit of the bride and bridegroom and it is necessary that
they should have completed 18 and 21 years of age respectively. The effect of introducing this
provision has been huge on the lives of women, they were married as soon as they attained puberty
or sometimes much earlier, they were not asked for consent and they were mentally incapable to
make their own decisions. They also have been given the right to choose their own partner as this
right was earlier in the hands of her guardian who used to marry her forcibly to older partner or
anyone without asking the daughters consent.

The Property rights of the Hindus have been given by different schools of Hindus
law before codification. The schools of law provided the right to ownership only to coparceners of
the joint family property. The Hindu women's right to property Act was passed in 1937. The
property rights bestowed to women were not with the full majority right over the property. The
Hindu Succession Act was passed in 1956. It gave property rights to women and the Mother,
Daughter and wife were made class I heirs. But, the concept of coparcener did not change. Only son
could be a coparcener and daughter could not be coparcener. The Hindu Succession Act, 1956, did
not brought any change. Women were not treated equally with their male counterparts. The Hindu
succession (Amendment) Act 2005 has made an unreasonable change. And gave the daughters same
rights in the coparcener property as that of sons. Also, the Hindu succession Amendment Act, 2005
has still not served its right purpose because section 23 disentitles the female heir to claim partition
when the coparceners property includes a dwelling house, the rights of a daughter to claim partition
shall not arise until the male coparceners choose to separate their respective shares therein. The
daughter shall be entitled only to a right of residence therein and keep a check on the testamentary
capacity of Hindu male. We don’t have any law relating to matrimonial property in India as similar
to foreign legal systems, where the interests of the women are protected.

WOMEN’S RIGHTS UNDER MUSLIM PERSONAL LAWS.

A Muslim marriage is not a sacrament but a civil contract made for the purpose of
procreation and is called nikah. The basis of this contract is the consent of the bride and the
bridegroom. The free consent is essential for a valid marriage and if the parties are adults, nobody
else’s consent is required. The marriage cannot be solemnised without free consent. Consent is
given by guardian in case of minor or person of unsound mind. In such cases the minor on attaining
majority has the option to either ratify the marriage or repudiate the marriage and it is called option
of puberty. Thus, a girl cannot be forced into marriage and Even if she is forced into it, she can

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exercise the option of puberty and dissolve the marriage. This provision of Law seems to be in
favour of women giving her right to consent and decide about her marriage. But she can exercise
the option of puberty, only when she can support herself or where somebody is there to support her.

The law of maintenance of women after dissolution of marriage is not in favour of

women under Muslim law. A divorced Muslim wife can get maintenance from her husband only
during the period of iddat. Her children, her parents, her other relatives who will inherit her
property on her death has the liability to maintain her if he is not able to maintain herself. The court
may order the State Wakf Board to maintain if no one is in a position to maintain her. A Muslim
divorced wife cannot get maintenance from her husband under the criminal Procedure Code. They
can get relief under the Criminal Procedure Code, 1973 only when she and her husband agree to be
governed by the provisions of Criminal Procedure Code, 1973. A Muslim husband is permitted to
have four wives at a time according to Quran they can Marry of the women, who seem good to
them, two or three or four, and if he fears that he cannot do justice to so many, then unrestricted
powers are given to the Muslim husband to dissolve the marriage. On the contrary Muslim woman
has no such rights and she can have only one husband. Her second marriage becomes void if she
contracts it during the subsistence of the first marriage and she can be punished for the same under
IPC, 1860. According to the provisions of Dissolution of Muslim Marriage Act, 1939 she has the
right to dissolve her marriage only. Hence the grounds available are very limited and the same
constraint follows. A Muslim woman can opt for divorce only when she can support herself or
somebody is there to support her. 1860. A Muslim man can marry a Muslim, a Christian or a Jewish
girl. But a Muslim girl can marry only a Muslim man and if she marries a person of any other
religion, her marriage becomes void.

After the Shariat Act, 1937 Muslims in India came to be governed in their property
rights by Muslim personal law. But this did not result in any major changes in the property rights
of women. Under Muslim law, men and women have the right of inheritance. If a Muslim male die
and his heirs include both male and female, both will inherit the property simultaneously. But in the
same degree of relationship to the deceased a man’s share of the inheritance is double that of a
woman. The quantum of property inherited by a female heir is half of the property given to a male
of equal status. It is just a sample of unequal treatment of women under Muslim law.

WOMEN’S RIGHTS UNDER CHRISTIAN PERSONAL LAWS.

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Divorce is prohibited by Christian church and it also does not permit the annulment of
marriage for any reason as they are commanded by the church to spend their lives together no
matter how miserable their lives be. Therefore, the civil laws have been introduced by Christians
which permits divorce on slightest pretext. The dissolution of Marriage and Judicial separation
allows a Christian wife to file petition for a divorce either in High court or District court on the
several grounds under the Indian Divorce Act, 1869. In 1986 Mary Roy obtained a landmark
judgment from the Supreme Court entitling the Christian women an equal share in their father's
property. The Christian community followed the provisions of the TCSA (Travancore Christian
Succession Act), 1916 and CCSA (Cochin Christian Succession Act), 1921 even while members of
the community in other parts of the country were governed by the provisions of the Indian
Succession Act, 1925. As per both the acts, if the father died intestate daughters were eligible for
only one quarter of the son’s share or 5,000 Indian Rupees moreover it specified “whichever was
less”. The Supreme Court therefore held that the ISA would apply to all Christians, resulting into
equal inheritance rights for male and female heirs.

WOMEN’S RIGHTS UNDER PARSI LAW.

The Parsi’s in India are governed by the Parsi Marriage and Divorce Act 1955.
Accordingly, a marriage can be declared null and void at the instance of either party if
consummation of marriage is imposable because of natural cause. The provision of divorce by
mutual consent is provided by the Parsi marriage and divorce (Amendment) Act 1988. The Parsi
women can claim maintenance from her spouse through criminal proceeding or civil proceeding.
Section 32 (A) of the Parsi marriage and divorce act, enact the provision that either party to the
marriage may present a petition for dissolution of marriage by a decree of divorce on the ground
that there has been no resumption of cohabitation as between the parties to the marriage for a period
of one year or upward after the passage of a decree for judicial separation in a proceeding to which
they were parties or that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upward after the passing of a decree for restitution of conjugal
rights in a proceeding to which they were parties.

CONCLUSION

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There’s no doubt that women face inequality and discrimination under various
personal laws and its high time that we should remove these disparities and stand with women for
their rights. The society’s pre conceived notion about women and their duties has to be changed and
they should be able to enjoy their inherent right to live freely with dignity. They have been treated
as a burden since their childhood and hence they are married at a very young age or are treated
merely as maids in their houses. This ideology of the society is reflected in their Personal Laws
which has to be changed according to the modern society’s demands to let women enjoy their
Fundamental rights.

WOMEN’S RIGHTS UNDER PERSONAL LAWS BY KAJAL MHASAL