TOPIC NAME: PERSONAL LAWS AND DISCRIMINATION AGAINST WOMEN IN INDIAN

LEGAL SYSTEM

PROJECT WORK

SUBJECT: WOMEN AND LAW

COURSE: B.A.LL.B.
SEMESTER: VIII SECTION: A
SESSION: 2023-24 (FEB 2024)

SUBMITTED TO SUBMITTED BY
MR. ZAFAR AHMAD KHAN SARIM MINHAJ
FACULTY OF LAW
ENROL. NO.- GM 4705
ROLL NO.- 20BALLB 028

Department of Law
Aligarh Muslim University, Aligarh
SYNOPSIS:

1. Introduction

2.. Historical development of personal laws.

3. Gender discrimination in various personal laws

4. Legal framework and reform efforts

 Hindu succession act (amendment) 2005

 Muslim women (protection of Rights on marriage) Act, 2019

5. Challenges and limitations in implementing reforms.

6. Uniform civil Code and its implications

7. Conclusion

8. References
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 legal landscape of any country is a reflection of its societal values, norms, and historical
evolution. In India, a country known for its rich cultural heritage and diverse population, personal
laws play a significant role in governing various aspects of individuals' lives, including marriage,
inheritance, and succession. However, these laws have often been criticized for perpetuating gender
discrimination and inequality, particularly against women.

Historical Development of Personal Laws

India's legal system has evolved over centuries, drawing influences from religious texts, colonial
legacies, and indigenous customs. Historically, personal laws in India were primarily based on
religious scriptures and customary practices, governing different religious communities separately.
For example, Hindu personal laws were derived from ancient texts such as the Manusmriti and
Dharmashastra, while Muslim personal laws were based on the Quran and Hadith.

Gender Discrimination in Various Personal Laws

Hindu Personal Laws1

Despite several amendments and reform efforts, Hindu personal laws have been criticized for their
discriminatory provisions against women. One of the most contentious issues has been the unequal
rights of women in matters of inheritance and property ownership. Traditionally, Hindu women had
limited or no rights to ancestral property, which often led to their economic dependency on male
relatives. Additionally, practices like dowry and child marriage further exacerbated gender
disparities within Hindu communities.
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".
1
Ministry of Law and Justice, Government of India. (2005). Report on Amendments
to the Hindu Succession Act. New Delhi: Government of India.
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.

Muslim Personal Laws2

Similarly, Muslim personal laws have faced criticism for their treatment of women in matters of
marriage, divorce, and maintenance. The practice of triple talaq, wherein a husband can unilaterally
divorce his wife by uttering "talaq" thrice, has been a subject of intense debate and legal scrutiny.
Critics argue that this practice deprives women of their rights and leaves them vulnerable to
arbitrary divorces without adequate financial or social support.

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

2
Ministry of Women and Child Development, Government of India. (2019). Report on
the Muslim Women (Protection of Rights on Marriage) Act. New Delhi: Government
of India.
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.

Christian Personal Laws

Christian personal laws in India, governed by the Indian Christian Marriage Act and the Indian
Divorce Act, have also been accused of perpetuating gender inequality. These laws often favor men
in matters of divorce, custody, and property rights, leaving women at a disadvantage, particularly in
cases of marital breakdown.

Legal Framework and Reform Efforts

Hindu Succession Act (Amendment) 2005

In a landmark move towards gender equality, the Indian government amended the Hindu
Succession Act in 2005 to grant daughters equal rights as sons in matters of inheritance and
property ownership. This amendment was a significant step towards addressing the longstanding
discrimination against women in Hindu personal laws and ensuring their economic empowerment.
Muslim Women (Protection of Rights on Marriage) Act, 2019

Another significant development in the realm of personal laws was the enactment of the Muslim
Women (Protection of Rights on Marriage) Act in 2019, which criminalized the practice of triple
talaq and provided legal protection to Muslim women against arbitrary divorces. This legislation
was hailed as a victory for gender justice and women's rights in India.

Challenges and Limitations in Implementing Reforms

Despite these legislative reforms, challenges remain in effectively implementing and enforcing
gender-equal personal laws in India. Deep-rooted patriarchal attitudes, social norms, and religious
conservatism pose obstacles to the full realization of women's rights and equality before the law.
Moreover, the lack of awareness and access to legal remedies among marginalized communities
further exacerbates gender disparities within the Indian legal system.

Uniform Civil Code and Its Implications

The concept of a Uniform Civil Code (UCC) has been a subject of debate and contention in Indian
politics and society. Proponents argue that a UCC, which would replace personal laws with a
common set of civil laws applicable to all citizens regardless of religion, caste, or creed, is essential
for promoting gender equality and national integration. However, opponents raise concerns about
cultural diversity, minority rights, and the potential erosion of religious autonomy.

Mohammad Ahmed Khan v. Shah Bano Begum 3: This was a Case that stated for the maintenance
for the wife after Divorce. Shah Bano a 62-year-old woman from Madhya Pradesh was divorced by
her husband in the year 1978. Hence Shah Bano filed a Case in Supreme Court under Section 125
of the Criminal Procedure Code for maintenance. This Section provides to give maintenance to
wife, children, parents who are dependent, and unable to maintain themselves.

Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and
took up the defense that since Shah Bano had ceased to be his wife and therefore he was under no
obligation to provide maintenance for her as except prescribed under the Islamic law which was in

3
1975
total Rs.5400.

The issue was finally taken up by Supreme Court and it decided it in favour of Shah Bano using
secular Criminal Procedure Code regardless of religion. Shah Bano won the Case and got the Right
to get Alimony from her Husband.

Shah Bano's Case was one of the important Judgments in the Muslim Personnel Law It showed the
aspirational and progressive character of Muslim women and other sections of Muslim society, who
were ready to challenge the religious orthodoxy.

It brought into focus the plight of the Muslim women, the discrimination they has to face in matters
related to marriage.

It showed that the laws of the land which are secular in character will take precedence over the
religiously ordained customs and personal laws.

Most important of all it raised a debate about the rights of women, application of principle of
equality. The debate engulfed civil society, religious groups, legislature and common man and
nothing can be more fruitful in a democracy than a debate.

The Shah Bano judgment was seen as a blow to Muslim personal law and, under pressure from the
religious orthodoxy, the government was forced to pass the Muslim Woman (Protection of Rights
on Divorce) Act, 1986. The Act specifies that a reasonable amount of maintenance is to be paid to a
divorced wife within the iddat period by her former husband. The validity of this Act was
challenged before the Supreme Court in Danial Latifi.

Danial Latifi v. Union of India

In the case of Danial Latifi v. Union of India the constitutional validity of Muslim Women (Right to
Protection on Divorce) Act 1986 was challenged by the advocate of Shah Bano .This is a leading
case because, it established for the first time that Muslim husband is also liable to provide
maintenance to his divorced wife beyond the iddat period and this interpretation balances between
the Muslim law and section 125 of Criminal Procedure Code.

It extends for the entire life of the divorced wife until she remarries. Muslim Women (Right to
Protection on Divorce) Act 1986 was challenged on grounds that law was discriminatory and
violation of equality under article 14 of the Constitution of India as it deprived Muslim women
maintenance benefit equivalents to those provided to other women under section 125 of Criminal
Procedure Code. Further, it was argued that it also violates the right to life guaranteed under article
21 of the Constitution of India.

Conclusion

In conclusion, the issue of discrimination against women in Indian personal laws is a complex and
multifaceted challenge that requires concerted efforts from policymakers, civil society, and
religious leaders to address effectively. While legislative reforms have made significant strides
towards gender equality, much remains to be done to ensure the full realization of women's rights
within the Indian legal system. By promoting awareness, fostering dialogue, and advocating for
inclusive legal reforms, India can move closer to its vision of a just and egalitarian society where
every individual, regardless of gender, enjoys equal rights and opportunities under the law.

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!
References:
1. Books:
 Choudhary, S. R. (2016). Hindu law and usage. Allahabad: Central Law Agency.
 Alam, A., & Bhala, R. (Eds.). (2016). Muslim law in India and abroad. Oxford
University Press.
2. Academic Articles:
 Basu, S. (2007). Reforming Personal Laws in India: Hindu Succession Act
(Amendment), 2005. The Indian Journal of Political Science, 68(1), 85-99.
 Dhanda, M. (2012). Muslim Women’s Right to Property in India: A Contradiction in
Theory and Practice. The Modern Law Review, 75(1), 33-57.
3. Government Reports:
 Ministry of Law and Justice, Government of India. (2005). Report on Amendments
to the Hindu Succession Act. New Delhi: Government of India.
 Ministry of Women and Child Development, Government of India. (2019). Report
on the Muslim Women (Protection of Rights on Marriage) Act. New Delhi:
Government of India.
4. Websites:
 National Commission for Women. (n.d.). Retrieved from https://ncw.nic.in/
 India Code. (n.d.). Retrieved from https://indiacode.nic.in/