This Blog is written By Miss. Riddhi Chadha Student of Fairfield Institute of Management and Technology, New Delhi & Miss. Nikita Sharma Student of Fairfield Institute of Management and Technology, New Delhi.
“Freedom cannot be achieved unless women have been
emancipated from all form of oppression”
Introduction
The constitution of India provides identical rights
for every person. However, some legal arrangements in India still differentiate the rights of women. Uniform civil code is a necessity in such a situation. Claim for
a uniform civil code has been intensely opposed by Hindu and Muslim religious
frontrunner. All personal laws, beard Muslim Parsi or Hindi, differentiate
against women. In different areas such as maintenance, marriage divorce, or be
it property law, the status and position of women are different from men. The Hindu succession act of 1956 was
established to expand the rights of Hindu women however it also had some gender
disparities in it. Social power also prevented women from challenging these
inequalities in inheritance law.
Gender discrimination in Hindu inheritance
Before 2005 daughters did not have equal rights in the property as compared to son. The right of property is important for the development
of human beings. As per section 23 of the Hindu succession act, a married daughter
was denied the right to residence in the parental home and unless separated from
her husband or widowed. However, after the amendment in 2005,
section 23 of the said act was repealed. Section 8 of the Hindu succession act
deals with the property of male Hindu dying intestate. According to the section, the
principle of representation goes up to two degrees in the case of the male line but it
only goes up to 1 degree in case of the female line. According to section 14 of
Hindu succession act 1956, Hindu women have now complete rights in case if she
acquired the property from her husband earlier to the act, if she acquired the property
from her husband then she can only trade it for the inevitabilities of the
household or use it to execute religious rites for deceased husband. Section 15
of the act deals with the succession of Hindu female assets in case she dies without
a will. Before the commencement of the act, it was governed by regular Hindu
law. However, the current act offers two different schemes to safeguard family
property. Section 16 set
outs guidelines for the transfer of property of a Hindu Women dying without a will.
- Firstly, son and daughters
- Secondary upon the hires of the husband
- Thirdly upon the Mother and Father
- Fourthly upon the hires of father
- Lastly upon the hires of mother
In the above scheme, we cannot that any property
inherited by female Hindu from her father or mother devolve Not upon the hires
to in subsection (1) but upon the father in case of absence of son or daughter.
Apart from this, we can also note that any property inherited by female Hindu
from her father in law or husband shall devolve not upon other hires in
subsection (1) but it devolves upon the hires of the husband in case of absence of
son or daughter. From the above observation, we can conclude that this twofold
scheme of succession is influenced by male dominance.
Furthermore, property innate from the father would
devolve upon the successor of the father if Hindu female dies without dispute.
But property got from mother uh would devolve upon the successor of father and
not mother.
Gender discrimination under Hindu marriage, divorce, and adoption
In the Hindu marriage consent of females is uncommon and
marriage is largely based on the decision of family elders. In tribal and rural
areas, child marriage is the most common females marry at any age. Though illegal
in India, child marriage is still a harsh reality in underdeveloped rural
areas. Despite stringent anti-dowry laws, are countries still have an increased number of Dowry killing, female foeticide, and suicidal deaths. Inheritance and
awards are not easily available to females because of a lack of financial independence.
The force is still considered a social stigma. The contradiction between
religion and reality is very vivid. The dissolution of marriage was not approved by
many other conditions. He said 'let mutual fidelity continue
till death' and the relationship between Hindu husband and wife is the
highest Dharma. At that time disputes between husband and wife were not allowed
for litigation. However, in modern Times several grounds of divorce are given
to Hindu female to end marriage.
These old Dharma Shastras are basic of Hindu law along with Vedas, Smriti,
Shruti etc.
In case of adoption, a woman gives birth to a child but she
is not allowed to adopt a child on her own. She cannot adopt even after the consent
of her husband. In Malti Roy Chowdhury v. Sudhindranath Majumder,
the court held that “adoption has to be taken legally by the male in case of
marriage and not by the wife. Wife has no capacity to adopt even with the
consent of husband”. Apart from this, the female heirs to male Hindu Intestates
property have no right to ask for partition until the male heirs choose to
divide it. Talking about Widows property rights, a widow has the right to inherit
property from her husband but her husband can also transfer property to the
third person with a will. In such a case she cannot oppose the decision of her
husband. In Vimalbeu Ajitbhai Patel v. Vatslabeen Ashokbhai Patel and others, it
was held that after the death of husband, women can be maintained by father in
law. If Widow's parents are financially able to maintain their daughter then she
didn't get any e maintenance from in-laws. In case of maintenance law there is
no specific way to ensure regular payments from the husband in such case, she has
to approach court again. In India majority of women gets no maintenance to live
a better life.
Gender discrimination under Muslim law
The Quran is the primary source of Islamic law.
Muslims believe it to be e god’s word. Islam has laid down no specific age for
marriage. The age of marriage depends upon the one-factor name as puberty. In
Usmanbhai Shaikh v. State of Gujarat,
it was said by justice J.S Padriwala that “according to the personal law of
Muslims, the girl, no sooner she attains puberty a complete 15 years of age,
whichever is earlier, is competent to get married. In the case of witnesses at the
time of marriage, there must be two adult male witnesses or one male and two female
witnesses. In Abdullah v. Beepathu, marriage
was held as invalid as there were only two female witnesses. As per Islamic
law, the sole purpose of marriage is to give comfort and pleasure to a man and to
produce children. Apart from this marriage is regarded as a contract between
both parties. Mahr (gift), was given from the girl’s side at the time of
marriage. Apart from this, polygamy is the most common issue in Islam. A Muslim man can marry the number
of wives (not exceeding 4). In the case of maintenance, a Muslim wife is
not maintained beyond the period of Iddat. A divorced wife is only entitled to
Mahr in accordance with law of Iddat.
Conclusion
“Women have always been suffered in silence. Self-sacrifice and self-denial are there nobility and fortitude and yet they have
been subjected to all enquities indignities, inequality and discrimination”
- Justice K Rama
There are many religious laws which provide
discriminatory provision against women. However, from time to time, these laws were
amended to maintain gender equality but there are still certain provisions
which are favoring discrimination against women. In Muslim laws, the situation
is worst. It is because of the patriarchal set up in society. There should be a
common uniform law for all. With the help of uniform laws, the condition of
women can be improved. The equal status of men and women in personal law is a need
for an hour.
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