Comparative Status Of Women Under Various Personal Laws

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Table of Contents hide
1) Introduction –
2) Status of women in various personal laws –
2.1) 1. Marriage –
2.2) 2. Divorce –
2.3) 3. Maintenance –
2.4) 4. Inheritance Rights –
3) Conclusion

Introduction –

India is a secular country of people from diverse religions. There are many religions, which governs various personal laws, which are applicable to different sects. There are various religions in India like Hindu, Sikh, Muslim, Jain, Buddhist, Parsi, Jews, Christian who follows various personal laws. Buddhists, Jains, Sikhs, follow Hindu Personal Law because they do not have separate personal laws. In India, there is no application of the Uniform Civil Code except in Goa.

From ancient times, Indian society is considered a patriarchal society, where women have fewer rights than men do. The status of women is not good in personal laws. These laws are more biased towards women.

Status of women in various personal laws –

1. Marriage –

A Hindu is entitled to marriage through the Hindu Marriage Act, 1955; A Muslim is entitled to marriage through the Muslim Personal Law. In Hinduism, marriage ceremonies are said to be completed only when the customary rites and rituals are fully performed. While Christian, Hindu, and Parsi marriages are treated as a sacrament, Marriage in Muslim is not a sacrament but a civil contract not requiring any religious ceremonies.

According to Sec-494 of IPC, bigamy is an offense under Hindu Law, whereas in Muslim Law, a man is allowed for marrying up to four wives.

Unlike other religions, Islam has a strong advocate of marriage. There is no place for celibacy in Islam just like the Roman Catholic Priests and nuns. The Prophet has said, “There is no celibacy in Islam”.[1]

In Muslim Law, a sum of money or other property equivalent to Mehr or Dower is entitled to receive by the wife from her husband at the time of marriage or anytime afterward. Under Muslim Law, dower is an obligation imposed onto the husband as a mark of respect to the wife while under Hindu Law, the Dowry system (Dahej Pratha)  followed by Hindu Law it is one of the most important customs in Indian marriages. Although it is considered illegal.

2. Divorce –

In case of Muslim, the woman can seek divorce on the following grounds in India i.e. –

  • If the husband is failing to provide maintenance to the wife for at least 2 yrs.
  • If the husband’s locality is not known for a period of 4 yrs.
  • If the husband is not able to meet the marital responsibility.
  • If the husband has been detained for seven or more years.
  • If the girl is married before 15 and wants to end the relationship before she turns 18.
  • If the husband indulges in acts of cruelty.

In case of Hindu, the woman can seek divorce on the following grounds in India are –

  • If the husband is found guilty of rape, bestiality, and sodomy.
  • If the marriage is performed before the Hindu marriage act and the husband has again married another woman despite the first wife being alive, the first wife can seek a divorce.
  • If a girl is entitled to file for a divorce and she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
  • If there is no consummation for one year from the date when an order for maintenance under Sec-18 of the Hindu Adoption and Maintenance Act or the Criminal Procedure Code 125 (Criminal Procedure Code 488 in order code) has passed against the husband, the wife can seek divorce.

However, the Christian and Indian Divorce Act has the following grounds for divorce –

  • Adultery
  • Conversion into another religion
  • If one of the couples is suffering from unsound mind, leprosy, or communicable venereal disease for at least two years before the filing of the divorce.
  • If the husband has not been seen or heard alive for a period of seven or more years.
  • If the husband’s failing in observing the restitution of conjugal rights for at least 2 yrs.
  • If a person is indulged in cruelty and giving rise to mental illness which can be injurious to health and life.
  • If the husband is found guilty of rape, sodomy, and bestiality just like the Hindu Marriage Act.[2]

Under Hindu law, the provision for the practice of polygamy can be a ground for Divorce. While under Muslim law, the practice of polygamy has been allowed under the law with some conditions. In Muslim law, a man may marry no. of wives not exceeding four but a Muslim woman can marry only from one husband. Similarly, a Muslim wife divorced by her husband, cannot remarry him, until she married another person and has sexual intercourse with him and thereafter he divorces her then she can remarry her husband. Because of these practices, a Muslim woman faces more discrimination than Hindu women do. Moreover, these practices are disrespectful for a woman. In Muslims, the position of women is not good, as they follow religious personal laws very strictly.

3. Maintenance –

According to the given rights under personal laws, a Hindu woman enjoys more rights than a Muslim woman. According to Sec-18(1) of the Hindu Adoption and Maintenance Act, 1956 the Hindu wife is entitled to give the maintenance amount after divorce from her husband until she or he dies. Also, as per Sec-125 of the Code of Criminal Procedure, only a Hindu wife either takes a divorce or is given divorce by her husband and who has not remarried to another man is entitled to receive maintenance.

While, under the Muslim Law, the divorced woman does not have the right to claim maintenance after the iddat period and she is entitled to get the meher only, but after the (Muslim Women Protection of Rights on Divorce) Act, 1986 came into force, which protects the rights of Muslim women. Sec-125 of the Code of Criminal Procedure[3], the court provides relief to people who are unable to maintain themselves.

In Mohd. Ahmed Khan v. Shah Bano Begum Case[4], the court held that a Muslim divorced wife is entitled to maintenance even after the period of iddat if the wife is unable to maintain herself. The court also announces that Sec-125 of the Criminal Procedure Code is applicable to all citizens regardless of their religion, and just in case of a clash between Personal Laws and provisions of Sec-125, the Criminal Procedure Code would be given dominance. [5]

Under Sec-37 of the Indian Divorce Act, a Christian woman can claim maintenance from her spouse through civil court or High court, this act only applicable to the person who follows Christianity religion. The provisions are the same as those under Parsi law.

Parsi women can claim maintenance from the spouse through the civil and criminal proceeding, if the husband refuses to pay maintenance, the wife can inform the court that the husband is denying to pay maintenance even after the court order. Then court will sentence the husband to imprisonment or he agrees to pay. The husband can detain in jail as long as he does not pay.

Whereas, under the Hindu and Parsi Marriage Act, there is a provision for both husband and wife who can claim for the interim maintenance. In other personal laws, the only wife can claim for interim maintenance.

4. Inheritance Rights –

Under Hindu law, The Hindu Succession Act, 1956, regulate the succession and inheritance laws for Hindus, along with Jains, Buddhists, and Sikhs. The Hindu woman is entitled to an equal share of his husband’s property like other living heirs. According to Sec-10 of the Hindu Succession Act, the distribution of property takes place among all heirs, which includes the deceased widow. If there are not any other sharers, she has full right to inherit all the property.

Also, a married Hindu woman has exclusive rights over her individual property. She is that the sole owner and manager of her assets. She is also entitled to shelter, maintenance, and support from her husband and her joint family if she was living with them.

In the case of Muslims, personal law regulates inheritance laws. The Muslim woman’s identity, consider inferior to that of men, though they are not ignored entirely. She is entitled for maintaining and has power over her property and goods. In case of discrimination among wives by her husband, if any, she may take action against him. She is entitled to be paid equal amount as his other wives. A wife without children is entitled to receive one-fourth share within the property, but those with children are entitled to one-eighth share in the property.

In case of Christians, the Indian Succession Act, 1925 regulates the inheritance rights of Christians, under this both the heirs inherit equally, these provisions are gender-neutral. If the husband leaves behind both a widow and lineal descendants, she is going to get one-third share of his property, while the remaining two-thirds will go to the descendants. If there are no lineal descendants, but other relatives are alive, one-half of the property will go to the widow and the rest will devolve to other relatives. If there are no relatives, the widow will get the whole property.[6]

Conclusion

“Half of the Indian population belongs to women. Women have always been discriminated against and have suffered, and are suffering discrimination in silence. Self-scarifies and self-denial are their nobility and fortitude and yet they have been subjected to all equities, indignities, inequality, and discrimination” was said by Justice K. Rama Swami (Chawla, 2006)[7].

In India, the woman belongs to a class of society, which is in a disadvantaged position because of several social barriers and exclusion even in this 21st Century. As we have seen different personal laws in India. These laws have also been shown discrimination against women. Religious Personal Laws suppress women. So, women can improve their status by being an educated woman and if there will be an educated society then it will think about the rights of everyone.

References –

[1]Pandey Abhishek Kumar, Concept of Marriage in Muslim Law, Legalservicesindia.com http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html

[2] Malik Neha, Muslim women right for dissolution of marriage, Legalservicesindia.com,

http://www.legalserviceindia.com/article/l338-Muslim-womens-right-for-dissolution-of-marriage.html

[3] Sec-125 of Code of Criminal Procedure,1973

[4] AIR 1985 SC 945

[5] Parishkriti Atri, case summary: Mohd. Ahmed Khan v. Shah Bano Begum, http://docs.manupatra.in/newsline/articles/Upload/06EF3D18-696B-4E5F-A61E-80646EC0E664.pdf

[6] https://blog.ipleaders.in/property-rights-of-married-women/

[7] Chawla M. Gender justice: Women and law in India, Deep and Deep publications, New Delhi, 2006, 33-67.

This article has been written by Chetna Gupta, B.A. L.L.B. – 3rd-year student at Department of Law, PIMR, Indore.

Also Read – The Hindu Succession Act: A Milestone In Women’s Right To Property

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