Gender Inequality And The Various Personal Laws In India

1. INTRODUCTION-

Personal laws in India have been raised as a question in the name of gender inequality. India is a secular state where the moral, cultural, regional and religious beliefs of the people changes from person to person and territories to territories. To impart the justice to these people we have different sets of law. Personal laws are one of them. The term personal law means the law which is applicable to a certain group of people or communities which follow the same religion and tradition.

These laws are in force since the colonial time or British era. Being a secular state and a home to the various and diverse communities, the laws are enacted in regard to their personal and cultural aspects. Hindu and Muslims are one of these communities which are in majority in India so their personal affairs are also governed by their respective personal laws. Hindu law governs Hindus including Sikhs, Buddhists and jains and Muslim law was enacted for the Muslims. Christians are in minority and are governed by the Christian personal law but their personal laws are not diverse as Hindu and Muslim laws in India. These personal laws guide with respect to marriage, divorce, maintenance, succession and inherited property, etc.

Men and women both have an equal status in India and play an important role in their respective fields. A human being whether a man or a woman must be provided with their basic human rights. The constitution of India provides equality before the law and equal protection of law despite of the fact that the person to whom it grants the equality is a man or woman. [1]According to article 14 of the Indian constitution, it is given that no person shall be denied equality before the law or the equal protection of law within the territory of India. It is also being provided under article 15 of the Indian constitution that no person shall be discriminated on the basis of sex, caste, religion, race and place of birth.

The constitution of India is the superior law applicable to all citizens. It provides equality without any discrimination through these articles in the name of fundamental rights, which cannot be denied at any cost, though gender inequality has been a part of these personal laws. Several provisions denote the superiority of the men and inferiority of women in the modern Indian society.

2. GENDER INEQUALITY IN HINDU PERSONAL LAW-

Hindu law is based on the principles of the Dharmashashtra and [2]comparatively heterodox Arthashashtra. Its basic principles and nature has been taken from the Manusmriti which has many rules provided against women’s independence and gender equality. These provisions are followed from ages and some provisions contradict the changing modern society where women have an equal status to men.

2.1 Succession and inheritance rights- Prior, the women were not considered the heir of the family. Only a male could be a coparcener and have right over the property by birth. In ancient era, men were given priority over every right and women were considered as secondary person. Women were subjected to be the property and the liability of men. The Man was the Karta of the family and every decision related to the family especially the women were taken by him with his consent only.

There are two systems of inheritance namely, Mitakshara and Dayabhaga. Mitakshara determined the property rights by the family relatives of the deceased Karta. Mitakshara School lays down its principles on the basis of doctrine of representation which states that the share of the property, after the death of the father or grandfather or both, goes to the son, son’s son and son’ s grandson. It clearly states the characteristics of the male dominated society.

In Dayabhaga School, the principle of religious efficacy prevails which states that the one who is competent to offer obligations to the deceased head member of the family shall be given the shares of the property. Again according to the Hindu law only a male heir of the family is supposed to do this religious offerings and not a female. Then the Succession Act of 1956 was enacted which broadened the concept to order of succession where women’s right were also recognized.

But after the [3]Hindu Succession Amendment Act, 2005, the daughter of the deceased was entitled to be a coparcener by birth and have equal share and liability as a son or other male coparceners. Women born before or after the Succession Act, have also right to the equal share in the property. [4]In the case of Danamma vs. Amar, it was held by the court that the daughters have equal rights to the successorship and in the inherited property same as the son. The court had interpreted the objective behind the Amendment Act of 2005, which is to eliminate the gender biasness and discrepancy between the genders.

2.2. Widow’s right in property- before the Hindu Women’s Right to Property Act of 1937, was enacted, the women were not entitled to her husband’s property.[5] According to this Act, a widow of a deceased person of a Mitakshara undivided family will be given the same status as her live husband would have. The husband’s interests vests into the widow. [6]But if the husband gifts his property to a third person through a will then the wife cannot oppose him. This change was bought to make the widow’s situation and status better. After this rule the Hindu Succession Act, 1956 was enacted which provided that the widow mother is entitled to take one share of the property with other heirs of class I. It provided for the more improvised situation and After the Hindu Succession Act, 2005 was passed, the widow of a pre-deceased son or of a pre-deceased son of a pre-deceased son or of a brother can inherit the property even after remarrying. This Act has provided a safer environment to a widow.

2.3. Maintenance to a deserted wife under Hindu law – maintenance can be provided to the wife in the form of all the needful commodities. It is the duty of the Karta to fulfill and maintain the family and a wife could only get her maintenance during her lifetime.

Maintenance in Hindu law is a controversial thing. The only way to get maintenance after divorce from the husband or being deserted by the husband is to go to the court and then the court decides the case. In a society like India, the courts have several cases to impart justice and the process is sometimes very long.

2.4. Adoptions- under the Hindu law prior to the Hindu Adoption and Maintenance Act, 1956; women had no right to adopt a child even if her husband consents. Only the father had the right to adoption without the consent of her wife. A widow could also adopt a child but must have had obtained the prior consent of the husband. Only the male could be adopted. But after the Act, [7]any sound and major person who is competent can adopt a male or a female child with the consent of his wife. Widows can also adopt a child without obtaining the prior consent of the husband. Even an unmarried is eligible for the adoption of a child with some conditions to be fulfilled like, she must be a major, sound mind, not married and if married the marriage must be dissolved, widow or her husband become a convert etc.

3. GENDER INEQUALITIES IN MUSLIM PERSONAL LAW

Just like the Hindu law, Muslim law is also subjected to some principles which are against women’s equal status and gender equality.

3.1. Marriages– Under Muslim law, marriage is a contract to legalize sexual intercourse and reproduce children. It is necessary to fulfill all the domestic needs of men and women. Marriage is a pious act for the Muslims. The age of the marriage is the age of majority or puberty which is generally fifteen years which may vary from twelve years in case of a boy and nine years in case of a girl. The age of a girl and a boy for the marriage is not the same. The consent of a girl is also not necessary when she is under the age of majority or puberty. She can be married by her guardian’s consent.

3.2. polygamy– In Muslim law, a man can marry four women but not more than that but a woman should have only one husband. Even if she marries another husband she will be liable for the bigamy and the children will be illegitimate.

3.3- Maintenance– in Muslim law, a woman is entitled to the maintenance during the subsistence of the marriage by the husband. She is entitled to all the goods and commodities she needs in her daily life. A divorced wife gets her maintenance by the husband only for her iddat period and gets a fixed amount of mehr which is generally decided at the time of the marriage. A widow doesn’t get her maintenance neither as a mehr nor for the iddat period by the husband as her right of the inheritance prevails. A wife doesn’t get sufficient maintenance sometimes, because a mehr could be promise to teach her to read Quran which may not help her financially after she gets divorced and the maintenance may not be sufficient enough to fulfill her needs and to raise her children. Here the Muslim law is a bit not beneficial to the female.

3.4. Inheritance– in Muslim law the women are entitled to the share in the property but the men get twice the women’s share. A woman is the sole and limited owner of her and shares there is no provision excluding women from the right to inherit the property but the men get more and women get less. For example, if a man is entitled to the 1/4^th of the property share then the woman will get 1/8^th share only.

3.5. Divorce- the marriage can be dissolved either on the death of a spouse or by the divorce. When husband dies, wife cannot remarry without observing an iddat period while when the wife dies, the husband can remarry immediately. The grounds of the divorce available to the man are more than women under Muslim law. A husband can divorce his wife at his will without any reasoning given to the wife. But the woman cannot divorce her husband without his consent or an agreement in which a husband delegates his right to divorce to the wife.

4. GENDER INEQUALITY IN INDIAN CHRISTIAN PERSONAL LAW-

The divorce of an Indian Christian is governed by [8]the Indian Divorce Act, 1869. The Act applies to the Christian party to the marriage or if either party to the marriage is a Christian. The husband needs to prove only the ground of adultery to obtain the divorce and the wife has to prove many grounds like bigamy, cruelty, desertion, sodomy, adultery and etc. but after the [9] Act was amended in 2001, it inserted reasonable grounds for the divorce by any of the spouse whether man or woman, like adultery, bigamy, refusing to consume the marriage, cruelty and etc.

5. CONCLUSION–

Man and woman both are the vital part of this dynamic society. In older times, the position of women was more drastic than in the modern days. Religion plays an important role in gender inequality. We could say that Personal laws might be enacted during the colonial period according to the needs of the British rulers and even if it was enacted in the favor of Indian communities the time then was quite different from the time now.

Today the status of women is as equal as of men and women are independent enough in every aspect of the changing modern Indian society. Hence having those old principles in the personal laws for the women of today’s society could be contradictory to their dignity and fundamental rights. These personal laws still have many principles which totally disregard and dominate women. But the judicial system in India has taken many steps to eradicate these contradictory provisions. The amendments in these principles are a step towards justice to women. The interpretations and judgments in favor of the women against these impugn provisions by the judiciary are appreciative and playing an important role to provide equal status and position to the women as men so that they can equally participate and enjoy their basic human rights in the Indian society without any discrimination.

REFERENCES-

1. MP JAIN, INDIAN CONSTITUTIONAL LAW 907,968(8^TH2018).
2. UPD KESARI,MODERN HINDU LAW 6(11^TH ED.2018)
3. The Hindu women’s right to property act, 1937
4. The Hindu adoption and maintenance act, 1956
5. Hindu succession amendment act, 2005
6. The Indian divorce (amendment) bill, 2001
7. Danamma vs. amar Singh, AIR 2018,3SCC 343
8. Nishitha jain, gender inequality in Hindu and Muslim personal laws in India, VOL.1, ISSUE 3, 4, (2018),(https://www.ijlmh.com/wp-content/uploads/2019/03/gender-inequality-in-hindu-and-muslim-personal-laws-in-india.pdf.)
9. Anchit bhandari and urvashi jaswani, a critical analysis of gender equality in the existing legislation relating to property rights in India: a comparative study of Hindu and Muslim law, (docs.manupatra.in/newsline/articles/uploads/06EF3D18-696B-4E5F-80646EC0E664.pdf.

[1]  MP JAIN, INDIAN CONSTITUTIONAL LAW 907,968(8^TH ED.2018).

[2] DR. UPD KESARI,MODERN HINDU LAW 6(11^TH ED.2018)

[3] Hindu succession amendment act, 2005, NO.39, acts of parliament, 2005(INDIA).

[4] Danamma vs. amar Singh,(2018)3scc 343

[5] The Hindu women’s right to property act, 1937, S.3, acts of parliament, 1937(INDIA).

[6]Nishitha jain, gender inequality in Hindu and Muslim personal laws in India, VOL.1, ISSUE 3, 4, (2018),https://www.ijlmh.com/wp-content/uploads/2019/03/gender-inequality-in-hindu-and-muslim-personal-laws-in-india.pdf

[7]The Hindu adoption and maintenance act, 1956, s.7, s.8, acts of parliament, 1956(India).

[8]The Indian divorce act, 1869, s.10, acts of parliament, 1869(India).

[9]The Indian divorce (amendment) bill, 2001, no.51, s.5, acts of parliament, 2001(India).