Women rights under personal laws
Introduction:
Personal laws like Hindu laws and Mahomedan laws were comprehensive in nature. Both of them deals with various branches of law. For example criminal justice, family related laws, property laws etc., on the advent of Europeans especially when India became colony of England, we also adopted their Justice system along with their legislation like Indian contract act, Indian penal code etc., In the realm of personal laws, the English jurist were so confused of Indian culture and the women status in it. For a long time, English judges were assisted by native pundits1 in understanding ancient dharma sastra laws. Sir William Jones, a linguist and judge of Calcutta supreme court have made the translation of sacred laws of Hindus2. By interpreting and translating both Hindus and mahomedan laws , Europeans came to the conclusion that Indian culture is not a civilized one , so British must colonize India for its betterment3. But they failed to read their own history where women chasity was considered as a previleged one by showing the blood of virgin to the world , their practice of witnessing the union of a man and women to determine their chasity4 is way more disgusting. The bitter truth is all religion in the world in its early period failed to ensure women rights.
Portrayal of women in religion:
Indian society is patriarchal in nature where Senior most male is the head of family and his decision is final. Wife after marriage leaves her home and considers husband home as her matrimonial home. Though women was considered valuable and respected in early vedic period, in later vedic period the status of women was degraded gradually. Some side claims aryan invasion was the reason which is not yet confirmed. On the other hand, Islam literally means peace, greeting, safety, salvation , also not recognizing women right. Along with regular form of marriage, various forms of marriage was recognised by islam. Such as Bafil marriage (void) , Fasid marriage ( irregular), muta marriage ( temporary). the religion which allows polygamy clearly prohibits polyandry and divorce was a matter of a few words. Women was never a free agent in marriage. It was her father or other male guardian who gave her in marriage, in law of inheritance the cardinal rule was followed where no female could take the inheritance only the male heirs can took the ancestral property. Cognates were exclusively excluded. In hindus also, the Mitakshara recognises only male lineal decent as the rightful owner of property. All the relations other than sons only hold obstructed heritage.
Post Independence status:
The major cause for the great revolt of 1857 was touching the religious emotion of Indians. From this hard learned lesson, British never wanted to touch the personal law of the land. However, there are some reformative legislation to satisfy the growing public opinion was passed such as Hindu widow remarriage Act, 1856, Child marriage restraint act, 1929, Hindu women’s right to property Act, 1937. the root of codifying the hindu laws were taken in the 1941 in the matters of intestate succession. After Independence , especially during 1955 to 1956 major hindu legislation was passed. They are
- The Hindu Marriage Act, 1955
- The Hindu Adoptions and Maintenance Act, 1956
- The Special Marriage Act, 1954
- The Hindu Succession Act, 1956
These legislation plays crucial role in the legal status of women. Because it tried to break the taboos that India carried since ancient. For instance, Hindu widows are allowed to have second marriage instead of ablaze, Inter caste marriages were encouraged, girl child held books instead of babies, daughters were given equal status as to sons in the matter of inheritance, female heirs are allowed to have absolute property. Though it provides worthiness in women rights, it too contains many flaws which was amended in the later period.
On the other hand, the personal law of Mahomedans has been preserved both for shia and sunnis in respect of the manner specified in section 2 of the Shariat Act,1937. there are many legislation for muslims like the Kazis Act 1880, the Musalman waqf validating Act 1930, the dissolution of Muslim marriage act 1939. but there is a big vaccum in recognising the status of women. There is no codifying law of property for muslim women. The hanafi school recognised only male inheritance while the shia school don’t have any such discrimination.there is no age bar to determine the majority age to get married in muslims. The girl who attains puberty can marry is the law. But the fact is girls attain puberty even from age 10 which is nothing but a child marriage. Muslim marriage is purely civil contract where hindu marriage is considered as sacramental in nature. Since the hindu marriage is not a contract, the question arises whether an impotent person can validly marry and whether the marriage ceremony can sanctify the marriage of lunatic. These questions were answered by many verdicts from time to time. As a result it was held that hindu marriage is neither a contract nor a sacrament.
Latest Amendments:
One such important verdict delivered by A three-judge bench of Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah confirmed the Hindu succession (Amendment) Act,2005 was retrospective and the daughters will have equal rights over their parental property irrespective of when she born or the living status of her father when partition made. Section 497 of Indian penal code which based on the presumption of wife being the property of husband is no longer criminal act. The cabinet discussing in further increasing the marriage age of women from 18 to 21 years. India’s landmark judgement on gay rights strike down Section 377 of IPC which criminalize LGBT as unnatural offences. The muslim women (protection of rights on marriage ) Act, 2019 makes triple talaq a cognizable offence. Women and family laws with respect to marriage, divorce, inheritance , the 14 member panel has suggested reforms to undo the implicit gender biases in the personel laws for Hindus, Muslims, Christians as also in the legislation on the issues. The panel also suggest that judiciary to avoid the words concubine, illegitimate child in its judgments and removing 30 days notice of marriage for special marriage couples which may put them at high risk. Women entry in sabarimala temple slams the stereotype which still prevails in Indian society and confirms the place of fundamental rights that is above religion. In the constitutional history, the last five years judgments will play a crucial role in the development women rights.
Conclusion:
“There are two powers in the world; one is the sword and the other is the pen. There is a great competition and rivalry between the two. There is a third power stronger than both, that of the women.”
― Muhammad Ali Jinnah
Women rights must defined in the standard of human rights. In the name of religion, we are refusing to give basic right to women. I don’t blame men for this. Because most of women right violations are done by the fellow women. The society has not given women the right to decide her own life. Since childhood she depends on her father, then husband and later on her son. A women life is not a circle but a triangle of these three who determines her life, who take decisions for her, who think its the best for her. But their ability to control decisions in the reproductive right of women means they control their own destiny. Most of men even don’t have knowledge about such rights of women. This reproductive rights of women includes the right to decide whether to reproduce or having reproductive health, to use contraceptive, to learn about sex education in public school, gaining access to reproductive health, right to plan family, right to terminate pregnancy (according to MTP Act). It also included death and disability related to pregnancy, abortion, sexually transmitted disease like HIV or cancer in reproductive organs. One in five Indian women suffers from PCOD, 70 percent of breast cancer women are coming from south east especially from India and also our country has 20 percent of maternal death between 1992 and 2006, Indian women represents almost 40 percent of HIV cases. All these fact are showing that we are far behind in women’s health. They are deprived of their basic right to live a healthy life. Then, How can we expect them to think about women right.
Women has nowhere to go except the courtroom for her rights. Indian courts in last decade made many significant verdicts in the development of women. Only through legal status we can make the society to hear women. Such litigation should be encouraged by budding lawyers as pro bono cases. No one gives these rights to women, to take away.
Endnotes:
- C.V Subha rao, Family law in India, 10thedition
- Ibid
- A History of British India, James Mill
- https://www.sbs.com.au/topics/voices/relationships/article/2018/01/10/ historic-tradition-wedding-night-virginity-testing
- C.V Subha rao, family law in India, 10thedition
- AIR 1983 AP 356
- AIR 1984 Del. 66
Other resources:
- The Hindu
- The Indian Express
- Dritshi monthly magazine
Author: K Sangeetha,
Government law college, chengalpattu