India is a pluralistic society which comprises of various human and fundamental rights and duties. Human rights are those which are inherent by the human’s from their birth and they exist during the lifetime of human beings till they survive. It is a right relating to life, liberty, and equality of human beings. India has been home of eight faithful and religious groups since the time of the Aryans. As a result of this division, the personal laws prevail in India which regulates the life of the people in this society according to their faith in different religious groups. India is a secularist country hence there is a personal law for each community.
DIVERSE POPULATION IN INDIA
The Hindus have their own separate family and are in the majority. Whereas, Muslims in India are considered to be minors. There are also other minor communities like Christians, Jews, Parsis, etc who have their own separate family. Personal laws in India deals with marriage and divorce, guardianship and succession, maintenance, etc which can be categorized as Family Law. Personal laws are not public and they deal with individuals privately. A Hindu is subjected to the Dharmashastra, Muslim to the Islamic Sharia, Christian to the Cannon Law, and Jew to the Halakah. These laws are legislated and states necessarily might not be the ultimate source of their authority. A woman’s legal status is affected by these laws. Personal laws discriminate against the right and freedoms of their respective individuals.
Women have fewer rights as compared to men in this patriarchal society and are subjected to patriarchal dominance by the men of society. These laws even deny the right to personal equality for women. These laws definitely have a judicial procedure but women being socially and economically unaware are not able to enforce these rights. Now women are even fighting for their marital property. Women are basically considered as a liability that is dependent and dominated by their household male members and even their husbands in this society.
WOMENS RIGHT UNDER HINDU LAW
Hindu law has an ancient ancestry which is considered to have an inseparable relation between law and dharma. Hindu law is the law of the Smritis. According to Hindu law, women were created to accompany men and give rise to procreation which would result in a progeny, and in such a manner they would continue a family lineage. In the Vedic period, women were holding the top positions in social and religious communities. And now they are considered as a liability which is dependent and dominated by the males in this society. The rights of women under Hindu Law in various stages of her life are as follows:
Marriage under Hindu Law is ruled by the Hindu Marriage Act, 1956 which provides various provisions for the rules of marriage. Section 5 of the Hindu Marriage Act, 1956 lays down provisions for a valid marriage.
Non-performance of Saptapadi and Kanyadan leads to null marriage, and it cannot be considered solemnized. Hindu marriage believes in monogamy where consent of both the parties is essential and the parties should be competent to marriage. The major age in a marriage for a man is 21 years old, and a woman is 18 years old.
Bigamy and polygamy are held offensive and are punishable under the act. Despite strict laws female foeticide, dowry, child marriage of girls, and honor killings are evident in many parts of the society. Most of the women’s positions are not equal to men after marriage in her household, and she is subjected to patriarchy and dominance of the men.
Divorce was introduced in the Hindu law for the protection of weak and ill-treated women by the men of the society. According to section 13 of the Hindu Marriage Act, 1956 it describes ground for the divorce. According to section 13(1) of the Hindu Marriage Act, 1956 aggrieved can approach the court and seek the remedy for the divorce. Various grounds for divorce are as follows:
- Venereal Disease etc
GROUNDS OF DIVORCE
According to section 13(2) of the Hindu Marriage Act, 1956 only the wife can approach the court and seek the remedy for the divorce. Various grounds of divorce are:
- Non-resumption of cohabitation for more than a year
- Cruelty by the husband
According to Hindu Law husband is obligated to maintain his wife’s children and aged parents and wives have an absolute right to claim maintenance. Moreover, maintenance includes all expenses on food, clothing shelter education, and medical aid.
According to section 18 of the Hindu Adoptions and Maintenance Act, 1956 Wife can claim maintenance from their husband irrespective of any self-acquired or ancestral property by her. A wife is entitled to maintenance at the time of divorce according to section 125 of the Code of Criminal Procedure. Daughter whether legitimate or illegitimate can claim maintenance as long as she is unmarried. Mother is even entitled to claim maintenance from her son.
According to section 19 of Hindu Adoption and Maintenance Act, 1956 Widowed Wife will be entitled to maintenance by her father in law if she is not able to maintain herself.
INHERITANCE AND SUCCESSION
A wife has the right to inherit full share on the property of the deceased husband in case there are no other sharers. The rule of succession based on the proximity of the relationships. Before the Hindu Succession Act, no woman was a coparcener in the Mitakshara School. An act was introduced in 1956 later with an amendment to remove inequalities in a share of the property for women which were Hindu Succession Act, 2005. Moreover, the amendment gives the same right of coparcenary to daughters as that of a son in ancestral property. This amendment also amended section 23 of the Hindu Succession Act, 2005 which omitted women’s permission to ask for a share in the property and section 24 of the Act which allowed the right of widowed women to inherit the property of her deceased husband in case of remarriage also.
A mother comes under class 1 heir category and hence entitled to an equal share in the property of her deceased son.
WOMENS RIGHT UNDER MUSLIM LAW
Islam was the first religion to believe in gender equality and in granting equal rights to women as that of men. Quran the holy book of Islam has verses of gender equality and everyone preaching Islamic law obeys them as their sacrament. The rights of women under Hindu Law in various stages of her life are as follows:
A marriage that is termed as Nikah is performed in order to procreate and legalize their children. In Islamic law, it is a contract and not a sacrament as in Hindu law. Also, in contracting marriage the consent and competency of both parties are essential. Muslim wives have the right to Mahr or dowry to Muslim wives under Islamic Law. Mahr is not a gift. It is a mandatory possession that a Muslim wife gets from her husband. Also, it may be in the form of money or property at the time of her marriage. In Islamic law bigamy and polygamy are not considered offensive. Muslim women not entitled to proper education lead to an incompatible marriage.
Muslim women can divorce the men if he has been not known for a period of more than 4 years when the husband has been sentenced to imprisonment for 7 years or more, when the husband was impotent at the time of marriage or if he suffers from any venereal disease. Women have been granted many rights after divorce under Islamic law which is as follows:
- Firstly, in the case of the consummation of a marriage, the wife can marry after a period of iddat which is 3 months. And, if not consummated she can marry whenever she wishes to.
- Secondly, the wife is entitled to immediate payment of unpaid dower. If not consummated she is entitled to half amount of payment of unpaid dower.
- Thirdly, there are 2 forms of divorce by wife: (a)With the consent of her husband which is Khula. And, (b) Mubarat. These 2 forms are divorce by mutual consent.
- Finally, the divorced Muslim wife is entitled to get maintenance from her husband until the period of iddat has not been expired.
Under Islamic law, maintenance is known as Nafqah. A Muslim husband grants maintenance to her divorced wife for all essential livelihood requirements. According to section 3 of the Muslim Women Protection of Right on Divorce Act, 1986 the husband has to pay the amount of maintenance during the period of iddat. Muslim men have to pay back mahr to the wife at the time of divorce. Moreover, under section 4 of the Muslim Women Protection of Right on Divorce Act, 1986 a Muslim woman can file an application to Wakf Board if she is unable to maintain herself after the period of iddat expires.
INHERITANCE AND SUCCESSION
The inheritance and succession under Islamic law have been derived from the verses of the Quran. A Wife without any children is entitled to 1/4th share of her deceased husband’s property. In the case of more than one wife, the shares would vary. In case of divorce, he will maintain her till the period of iddat.
Daughter in absence of son is entitled to half of the share in the property. In the case of more than one daughter, she would be entitled to a 2/3rd share of the property.
Mother is entitled to 1/3rd of share in the property of deceased son. And, in case of a son living, she would get 1/6th share in his property.
Women after various amendments in the personal laws have been granted rights and some status as of the men. She is entitled to rights on the basis of her own personal law which differs. Some laws recognize women as equal to men some grant very few rights. Still, women are facing discrimination and gender inequality in every aspect of this patriarchal society. Therefore, illiteracy leads her to be unaware and uninformed about the rights as granted by the court. Women still have to struggle when getting a divorce. This is seen even in acquiring property. And, at the time of maintenance by her former husband and his family members.
Snigdha Singhi | Amity Law School, Noida