The Concept of Gender Quality Within The Ambit of Personal Laws in India
THE CONCEPT OF GENDER EQUALITY WITHIN THE AMBIT OF PERSONAL LAWS IN INDIA
- Shrestha Roy, National Law University, Odisha
India is a country well known for its diversity in various factors; especially in terms of religion. With the vast variety of religious believes widely practised by the huge population of India, including both the men and women; special religious personal laws are well recognized paying due respect to each individual’s religious believes and practices. However, this pluralistic, multicultural society comes with its fair shares of disparities generating gender inequality giving fewer rights to women in comparison to men.
The religion that a person decides to follow helps determine the laws and provisions which will be applicable to him be it regarding succession, marriage, adoption or even divorce. Each religion comes with its unique characteristic laws different from another. But irrespective of that a common point among all the diversity is seen, i.e. the dominance of men paving way to a patriarchal society with the backing of all the personal law systems of India.
It is however, to be recognized that amendments to many such provisions are made to these personal laws which are seen to completely outrage a woman’s very basic human rights in the light of modern evolving times. But then again, the same cannot be said for all religions, and even in case of the personal laws where the changes have been made; the changes are just not enough to begin with.
A common example of the above two scenarios can been seen in doing a brief comparative study among the personal laws followed by Hindus and Muslims respectively. While the Hindu personal law has in fact succumbed to modifications in lieu of changing times, there are many more changes that are required to be made in order to build an ideal India granting equality and just procedures to both the men and women. In contrast to that, the Muslim personal laws have so far stayed true to their traditional believes established a long time ago showing quite a strong resistance to any type of change altogether.
India which is not a common law country is a home to quite a large number of religions such as Hindu, Muslims, Christians, Jews, Buddhists, Jains etc who follow various personal and civil laws based as per their chosen believes and practices. Due to the lack of personal laws for the Sikhs, Buddhists, and Jains, they de facto follow the Hindu personal laws. The Hindu Minority and Guardianship Act, 1956; The Hindu Marriage Act, 1995; The Hindu Adoption and Maintenance Act, 1956; and The Hindu Succession Amendment Act, 2005 are few examples recognized by the Hindu personal laws followed by a vast majority of the population of the country.
The Muslim personal laws are based on the proclamations and interpretations from the text of the holy Quran strictly followed by the believers. The Dissolution of Muslim Marriage Act, 1986; The Muslim Women Protection and Rights on Divorce Act; and The Shariat Act are some of the laws falling within the bounds of Muslim personal laws.
I. Women under the Hindu personal laws.
Hindus follow the personal laws codified as per the interpretation of ‘Dharma Shastra’ taking into consideration the analysis of their religious practices and traditions back in the year 1995. However, with the codification the huge differences between the rights available for the men and the women only became more highlighted. The some of the inequalities faced by the women of the societywith respect to the provisions falling within the scope of the Hindu personal law are below as follows:
• Right to adopt a child: Even though Hindu personal laws recognises the right of a women to give birth but with regards to adoption; she had no rights for the same even with the husband’s consent. In fact, even if all the procedures and formal filing was properly done, without any objection from the side of the husband; the adoption was still considered to be invalid.
• Property succession of male and female intestates: In matters concerning coparcenary properties as per the Hindu personal law, it prescribes the right of the property through inheritance to merely the son, a son’s grandson. The right of a female individual in her own family is overlooked, as the property can be transferred to even her husband’s heirs but specifically not to her. This grave gender inequality was however remedied through the 2005 amendment of the Hindu Succession Act allowing at least the daughter to have just the same equal rights over the property as that of a son. The provision was such that the property had to be equally distributed between them making both male and female members of the family, giving them liabilities and disabilities on the same grounds and on the same level.
• Widow’s property rights: Being a widow already comes with the added grief of loss not only of their husband but even the support of her in-laws as they are not always bound by any legal obligations to financially maintain the widow in lieu of the Hindu personal law. If the widow in the worst-case scenario is unable to maintain herself through her own efforts or even going as far as seeking maintenance from her own parents or children, and if she has coparcenary properties only then arises a legal obligation from the side of in-laws. However, this provision falls short since if the widow choses to marry once again or even if the husband before his death transferred his property to the third party, she cannot be expecting any sort of support from them at all.
II. Women under the Muslim personal laws.
The Muslims of India incur their rights and obligations from the Muslim personal laws in the context of the religious believes that they have chosen to follow. In the core of this Islamic law lies the Quran, which the believers believe to be the word of God himself and consider it to be the “Path to be followed” usually connoted by the Arabic word ‘Shari’ah’.
The Muslim personal law is also the law which is the least amendment, it remains true to its transcript since the ancient time and is known to be quite resistant to change as per the constantly changing ideals of the modern world. Among all the inconsistencies that are seen within these personal laws one of the most highlighted portion is the gender inequality, highly promoted through its ideals, some of which are mentioned below:
• The ideals and beliefs followed around the concept of marriage: When it comes to the age of the bride, there is no hard and fast rule since the only bare minimum is that the lady should have hit puberty. The matter that should be taken into consideration is that women hitting puberty does not happen within any specific stipulated time but instead varies as per each individual. Thus, marriage is seen depending on her biological characteristics completely disregarding her very age. The ideals also talk about the compulsory presence of at least one male witness, otherwise considering the very marriage to be invalid.
• The main aim of the marriage: The women as per the Islamic law are treated to be mere objects, with the marriage having the main aim to only provide the men with comfort and pleasure with any whim or fancy is the men so desires. In fact no right of the women is recognised even when it comes to choosing her partner for life, not even being able to show her desire to marry a particular individual since she is considered to be inferior to men altogether.
• Polygamy: Polygamy is a very concept which is followed by the people of Islamic belief in a very disputable manner. The men following this religion are allowed to marry as many women as possible but not exceeding the number four. However, if the women decide to marry more than one individual, she is held liable for bigamy, losing the even the right of the child that is born out of that marriage.
Thus, the very ideals of patriarchy are seen to be woven up within the religion one choses to follow be it the Hindu personal law or even the Islamic personal law.What is even more amusing is the fact that there are strong protections and laws for the sake of gender equality in the Constitution of India, but even still there are such demeaning provisions backed up by the same laws, effecting the very lives of the women of the society.
No matter which religion it is, the one seemingly facing the harsh brunt of a two-edged sword, no matter what the circumstances are, are none other than the women of the society. This scenario is heart wrenching considering that the modern world is seen to be changing and evolving almost every day, however, these matters are completely overlooked and ignored by the same world.
REFERENCES
[1] Parul Chaudhary, “Gender Equality in Hindu and Muslim Personal Laws in India” (2015) 1(1) IJHS <http://www.homesciencejournal.com/vol1issue1/Part%20A/pdf/15.1.pdf> accessed 7 April 2020.
[2] Karishma Assudani, “Gender Equality vis-à-vis Personal Laws” (2016) 3(3) IJLLJS <http://ijlljs.in/wp-content/uploads/2016/07/Gender_Equality_vis_a_vis_personal_laws_to_send-1.pdf> accessed 7 April 2020.
[3] Nishtha Jain, “Gender Inequality in Hindu and Muslim Personal Laws in India” (2018) 1(3) IJLMH <https://www.ijlmh.com/wp-content/uploads/2019/03/Gender-Inequality-in-Hindu-and-Muslim-Personal-Laws-in-India.pdf> accessed 7 April 2020.
