I am not free while any woman is unfree, even when her shackles are very different from my own.
-Audre Lorde
Women all throughout the world can connect to the writings of American author, poet, and feminist Audre Lorde. Women in society are frequently marginalised and denied the same rights as men when it comes to their health, education, ability to make decisions, and economic independence in terms of income. With its patriarchal society and discrimination against women, India is hardly an exception. Even though the situation has improved society still harbours implicit biases against women.
The personal laws of several religions illustrate this. Laws governing marriage, dowry, divorce, guardianship, adoption, maintenance, gifts, wills, inheritance, etc. are all examples of personal laws. Different religions in India each have their own private laws that are accepted by the government and enacted as acts. Although our country is secular, we have various personal laws for different religions such as Hindu, Muslim, Christian, Sikh, etc., this is due to our diversity. Having different personal laws ensure that there will continue to be peaceful and satisfied citizens. However, this also had a number of drawbacks, one of which was unequal laws for men and women.
Personal Laws in India
While Muslims, Christians, and Parsis have their own laws, Hindus, Sikhs, Jains, and Buddhists follow Hindu Personal Law. Other communities, such as tribal tribes, follow their customary practices or customary laws. Sikhs have their own laws regarding marriage, although Hindu law applies to other family-related issues. The Indian parliament has legalised and enacted Hindu law, Parsi law, Sikh marriage law, and Christian law as acts. A part of Islamic heritage is the corpus of law known as Sharia. It is based on the Quran and Hadith, two of Islam’s sacred texts, and it is drawn from Islamic theological thought. Muslims are subject to Sharia law which is currently uncodified in the Indian context. While each of these personal laws has its own unique characteristics, they all share a bias against women and a preference for males.
The Condition of Women In Relation To Different Personal Laws[1]
- Marriage age: Hinduism considers marriage ceremonies to be over if all customary rites and rituals have been performed. Muslim marriage is seen as a straightforward civil contract rather than a sacrament, where there is absolutely no obligation for any kind of religious ceremony, Christian, Hindu, and Parsi marriages are considered to be sacrosanct.
According to Section 5(iii) of the Hindu Marriage Act, 1955, a guy must be twenty-one and a girl must be eighteen to be legally wed.
The case is the same under Christian personal law and the Special Marriage Act, that the age of marriage for women is 18 and above, while the age of marriage for males is 21 or above. The situation is worse in Muslim law, which recognises a minor’s marriage as valid when they reach puberty in India.
We can notice that the age at which women can get married is lower than the age at which males can get married. The commonly held belief that the wife must be younger than the husband is only strengthened by this. Not only is this unjust, but it also goes against the ideals of our constitution’s Article 14, which guarantees everyone the right to equality. The insistence on recognising differing ages of marriage between consenting adults must be eradicated for equality in the genuine sense.
Prohibition of Child Marriage Amendment Bill, 2021 is a huge leap forward in his scenario as it amends the Prohibition of Child Marriage Act of 2006 to raise the minimum age for female marriage to 21 years. Furthermore, the Bill supersedes any other law, tradition, or practice.
- Adoption: According to Section 8 of The Hindu Adoptions and Maintenance Act, 1956[14], which mandates that women obtain their live husband’s agreement before adopting a child, this requirement is discriminatory and does not uphold the constitutional ideal of morality and equality. Articles 14, 15, and 21 of the Indian constitution are broken when women are prohibited from adopting without the husband’s permission.
In accordance with Muslim law, the father is the child’s guardian even though the mother may have custody. Granting him the authority to make any choice about the child’s destiny. He gets the last say in all decisions affecting the child’s future, including those involving marriage or schooling.
- Inheritance Rights: According to the Hindu Succession Act, 1956 which regulates the succession and inheritance-related laws for Hindus, along with Jains, Buddhists, and Sikhs, the woman is entitled to a share in property as any other living heir would be. The Hindu woman also has the complete right to inherit the entire estate if there are no other sharers. However, this was not always the case. In 2005, the Hindu Succession Act was revised to allow women to become coparceners, which means members of a Hindu family who have an undivided ownership of the ancestral property through birth. In Vineeta Sharma versus Rakesh Sharma[2], the Supreme Court ruled that daughters whose fathers died intestate before the Hindu Succession Act was amended have equal rights to property. According to the Supreme Court, the daughter is entitled to an equal share of her father’s property by birth.
Islam permits up to four wives, hence in accordance with Muslim Personal Law, a woman’s husband may be held accountable if he ever treats his wives unfairly. She is entitled to get the same payment as his previous marriages. Wives without children are entitled to one-fourth of the property, whereas those with children are entitled to one-eighth.
The Indian Succession Act governs the Christians. As the provisions under this act are gender-neutral it is ensured that both heirs inherit equally.
- Divorce:
A Hindu woman can seek divorce on the following grounds:-
- If the husband has been proven to have committed rape, bestiality, and sodomy.
- If the marriage takes place before the Hindu marriage act and the husband marries again while the first wife is still living, the first wife has the right to divorce.
- If a girl is eligible for divorce and was married before the age of fifteen and renounces the marriage before the age of majority which is 18.
- If there has been no consummation for one year after an order for maintenance under Section 18 of the Hindu Adoption and Maintenance Act or the Criminal Procedure Code 125 (Criminal Procedure Code 488 in order code) has been issued against the husband, the wife may seek divorce.
A Muslim woman can ask for a divorce on the grounds given below:-
- If the husband has not paid his wife’s maintenance for at least two years.
- If the husband has not been located for four years.
- If the husband has been imprisoned for seven years or more.
- If the girl marries before the age of 15 and wishes to divorce before the age of 18, she may do so.
- If the husband engages in cruel acts.
- if the husband fails to fulfil his marriage commitments
A Christian woman can seek divorce on the following grounds:-
- Adultery
- Conversion to a different religion
- If one of the spouses has been suffering from insanity, leprosy, or a communicable venereal illness for at least two years prior to the divorce petition.
- If the husband has not been seen or heard from in seven years or longer.
- If the husband fails to comply with the restitution of conjugal rights for at least two years.
- If a person engages in cruelty
- If a husband is held to be guilty of bestiality, sodomy, or rape.
Adultery/Polygamy can be a reason for divorce in both Christian and Hindu personal law, but not in Muslim personal. This represents a substantially worse situation for women in Muslim households. Talaq-e-biddat is a religious practice in which a man can divorce his wife by repeating the word ‘talaq’ three times. The practice can be carried out without the wife’s consent. Not only is this unjust, but it also denigrates women in a way that oppresses them. Talaq-e-biddat was rightfully held unlawful in the case of Shayara Bano vs Union of India[3], often known as the Triple Talaq Case. It was clearly seen as an infringement of the fundamental rights guaranteed to women in Articles 14, 15, 21, and 25 of the Constitution.
Directive Principles of State Policy
To put it simply, DPSPs are the guidelines for the government that tell them how to govern properly. The end goal of DPSPs is to establish a welfare state. Article 44 of DPSP talks about UCC or uniform civil code which essentially means that all religions will follow the same laws. Women, who make up about half of the population of India, continue to call for a gender-just law so that they can experience justice and equality regardless of the religion to which they belong. It can only be accomplished by creating a single civil code that places a positive focus on gender equality and human rights. However, UCC is yet to be achieved in India.
Efforts that are made to slowly inch towards a Uniform Civil Code:-
- The Special Marriage Act of 1954 allows any citizen, regardless of religion, to get married in a civil ceremony, allowing any Indian to wed outside the purview of any personal religious law.
- In the 1995 Sarla Mudgal[4] decision and the 2019 Paulo Coutinho v. Maria Luiza Valentina Pereira[5] case, the Supreme Court likewise urged the government to apply the UCC.
CONCLUSION
There can be no true equality without gender justice. Women who nearly make up half the Indian population are treated as second-class citizens, having to face various disadvantages, discrimination, and inequality. Women in this century are calling for treatment on par with their male counterparts. Individual women from diverse cultures have brought legal claims against the constitutionality of personal laws’ discriminatory elements.
The suggestion -The government should consider preserving the variety of personal laws as religion and Personal Laws are closely interlinked, while also making sure that they do not conflict with the basic rights protected by the Indian constitution in the absence of an agreement of UCC.
[1] C.Kumar, Gender Inequality In Various Religious Personal Laws In India, https://www.legalserviceindia.com/legal/article-5423-gender-inequality-in-various-religious-personal-laws-in-india.html , Last seen on 23/04/2023
[2] Vineeta Sharma versus Rakesh Sharma ,(2020) AIR 3717 (SC)
[3] Shayara Bano vs Union of India ,AIR 2017 9 SCC 1 (SC)
[4] Sarla Mudgal v/s Union of India AIR 1995 SC 1531
[5] Paulo Coutinho v. Maria Luiza Valentina Pereira,AIR 2010 SC 7378
