There are many different types of religions in India. India is a secular state with different morals, religions, languages, and beliefs. To provide justice to people with different personal beliefs there are set of laws. One of them is known as personal law. Personal law applies to those people who have the same set of beliefs or religion or tradition. India being a secular state have various communities. For them, there are laws respectively for all those communities. Hindu and Muslim are two communities which have the majority in India, for that also they have their laws which governs their personal affairs. Muslim law governs Muslims and in the case of Hindu law, it includes sick, Buddhist and Jains. There Is one more community which is known as Christians, they have their law as that is not that diverse community like Hindu. All matters related to marriage, maintenance, divorce, etc. are discussed in their laws.
It is important to treat both men and women equally in their respective fields as both play an important role. There must be human rights provided to both men and women. As per the Indian constitution, equality comes first and there is equal protection provided to both men and women. Indian constitutions article 14 says, that no person shall be denied equality before the law and the equal protection of the law. Article 15 of the Indian constitution says that there should be no discrimination based on race, religion, color, sex, language, etc.
The constitution applies to all people of India. The constitution guarantees fundamental rights to all citizens, then also personal laws are kind of biased and there is inequality or as per which men are considered superior and women are considered inferior.
Gender Inequality In Hindu Personal Law
Dharma Shastra and arthshastra are two principles on which Hindu law is based. Hindu law’s principles are based on Manusmiti which talks against women’s independence and equality. People are following these traditions from many years ago but with changing times, some things changed and provided equal status to women, in some areas.
Earlier it was believed that women cannot be the heir of the family, only men can be. Only men can have right over property, women cannot. At that time women were considered secondary; men were the priority over everything and had every right. It was also believed that woman is just the property and liability of men. Men were known as the Karta of the family and used to take every decision. In case, women of the house want to take any decision, she needs to get the consent of the men of the house.
Inheritance works on two systems known as mitakshara and dayabhaga. mitakshara talks about families’ deceased karat’s property rights.
In the case of mitakshara, the son was the Co-owner with his father. From birth, the son has the right to that property. He automatically becomes a member of joint family property. In the case of the dayabhaga, the son does not have the right to property since birth. He can only be the owner when the last owner dies. In this case, the father has absolute power of separation, in the case of mitakshara, the father had limited power of separation. In the case of mitakshara, the son can ask for the partition of joint family property even if his father is not ready. Whereas in the case of the dayabhaga, the son cannot ask for partition of the joint family property. In the case of mitakshara, the interest of corporations is not the same, it increases on the death a lowers on the birth in the family, whereas in the case of the dayabhaga, interests of corporates remain the same, there are no changes in the family by the birth and death. But the unity of possession is the same in both schools.
As we have seen both mitakshara and dayabhaga, both systems do not talk about the property rights of the daughter. It only talks about sons, where either they can have property by the permission of their father or forcefully. After the Hindu succession amendment Act 2005, a daughter often a deceased person is also entitled to rights equally as the son of the deceased. This right of equality is also for women who were born before this act.
2. Windows right in property
Earlier it was believed that a wife does not have any right over her husband’s property. Later when Hindu Woman’s Right to Property Act 1937 came as per which, the family which follows mitakshara school, widow of the deceased person will have the same status as her live husband. But the wife cannot ask for those property or rights if the husband gives all his things and property to any third person through a will. This change was made so that widow’s status can be improved. It was also said that widow mothers can have a share of property from the higher class I. This act’s main motive was to provide safety to widows.
3. Maintenance to the divorced wife
Needful commodities are to be provided to the divorced wife as maintenance. The wife will get maintenance during her lifetime, and it is the duty of Karta of the family. In case of divorce, it is difficult to ask for maintenance, that is why going to court must be preferred so that the court can decide whether the wife should get maintenance or not.
Earlier wives did not have any right or power to adopt a child even after the consent of her husband but the husband could adopt without the consent of the wife. If a widow wanted to adopt, she must have the prior consent of her husband.
Later Hindu Adoption Maintenance Act 1956 was introduced, as per which any person can adopt a child but must be in sound mind and must be competent and must have the consent of his wife. Widows can also adopt a child without the consent of anyone. An unmarried can also adopt but must be of sound mind and must be competent.
Gender Inequality In Muslim Personal Law
Like Hindu law, there are many principles that go against women’s equality and independence. In Muslim law too. There are two schools in Muslim law that talks about personal affairs and guides them. And Muslim personal law works on two major laws known as Sunni law and Shia law. The majority of Muslims follow Sunni law.
As per Muslim law, marriage is a contract that legalizes the reproduction of a child and to have sexual intercourse. As per which it is important for wives to fulfill all the needs and wants of her husband. The age of majority for marriage is 15 years, the minimum age is 9 years old in case of the girls, 12-year-old of age for boys. Age of girl and boy is not same for marriage. A girl’s consent for marriage is not necessary to consent of the guardian is important.
In the case named Yunusbhai Usmanbhai Shaikh v. State of Gujarat, the court held that a girl should not be getting married before the age of eighteen as it would not be in her welfare hers.
In Muslim law wife can marry one man only if she marries any other man then she will be held liable for bigamy and her Childs would be considered illegitimate in short, a Muslim woman cannot have two husbands at the same time. but Muslim men can marry four wives at the same time then also it will not be wrong in the eyes of Muslim law.
In the case named State of Bombay v. Narasu Appa Mali, the Bombay court said that polygamy among Muslims who live in Bombay is permissible. But Hindus must practice monogamy. Then the legislature took place saying that Bombay High Court was discriminating and polygamy must be prohibited in all the personal laws.
In Muslim law, in the case of subsistence of the marriage, a Muslim woman is entitled to maintenance by her husband. She has the right to ask for all these things which are necessary for her daily life. When a Muslim woman is divorced, she can have maintenance only in the form of iddah and the things which were decided before marriage in the name of Maher, In the way of a fixed amount. Muslim widow can have maintenance neither in the name of iddah nor in the name of Maher. Sometimes Muslim wives do not get sufficient maintenance. Like when teaching Quran is promised as Maher before marriage by the husband this will not help her financially and by this, she would not be able to help her and her children to live a proper life.
In the case named Abdullah v. Beepathu, the appellant was the mother and the respondent was the father where respondent denied providing maintenance to the appellant as she was already pregnant at the time of marriage that she already knew. This court held that the respondent is liable to provide maintenance to the appellant as the child belongs to him, he is the father of that child.
Muslim women get a share but in Muslim law, men get twice of share of women in case of properties shared. The woman is and limited owner in comparison to men. Even if they get a share of the property, they are not known as the heirs of property or family, but men are.
In Muslim law, and marriage can be dissolved either by the death of the spouse or by divorce. When the husband dies, the wife cannot marry any other man unless the period of iddah is over. Which is of three to four months. But if the wife dies, men can marry any other woman immediately, there are no restrictions on him like restrictions on Muslim women. Men can divorce on many grounds but those many grounds are not provided to women. Husbands can divorce his wife anytime without giving the reason, but the wife cannot do so, she needs to give a valid reason and must have consent and agreement of husband and can only divorce if her husband agrees to do so. Men and women both are an important part of society. Earlier woman’s position and status were much better than in the modern world.
“Women make up half of the Indian population as well. Prejudice against women has always existed, and women have endured and continue to suffer discrimination in silence. Their dignity and fortitude are self-sacrifice and self-denial, but they must be exposed to all or any such indignities, inequity, and discrimination,” Justice K. Rama Swamy said. There are several faiths and privacy laws that were created to meet the needs of certain religions. Women have been discriminated against by religious personal laws.
There are references to the several discriminatory jurisprudences for women. Civil laws do not allow for such discrimination. In comparison to spiritual personal laws, civil laws place ladies in a considerably better situation. It might be owing to the patriarchal system and culture of women’s reliance on males that existed in India before to the twenty-first century. Religion is a matter of belief; belief is a matter of conscience, and conscience freedom is the cornerstone of modern society. Women’s position is now equal to that of males, and women are capable of becoming self-sufficient in many aspects of modern Indian culture.
As a result, including such ancient concepts in personal legislation for today’s women may be incompatible with their dignity and fundamental rights. Many of the concepts in these personal rules continue to ignore and oppress women. However, India’s legal system has taken several measures to eliminate these inconsistencies. The changes to these principles are a step in the right direction for women.
The judiciary’s interpretations and judgments in favour of women against these impugn provisions are appreciative and play an important role in ensuring that women have the same status and position as men in Indian society, allowing them to participate and enjoy their basic human rights without discrimination. In a multi-religious nation like India, where the state has chosen to be secular, each individual has the right to choose to be governed by secular laws in personal affairs, and it is the state’s responsibility to provide an optional secular code of family laws. However, due to political pressures, the Indian Parliament is taking an ambiguous stance.
Allow the ladies to fly into the skies by eliminating the tyranny they face and instilling new ambitions, goals, and aspirations in their hearts.
This article has been written by Daksha Varshney, 3rd Year Law Student at Bennett University, Greater Noida.