HINDU PERSONAL LAWS AND RIGHTS OF WOMEN IN INDIA BY - ADVOCATE SIMRAN VEER & DR. MANJU SINGH VEER
AUTHORED BY -
ADVOCATE SIMRAN VEER
Advocate, Madhya
Pradesh High Court
CO-AUTHOR - DR.
MANJU SINGH VEER
Assistant Professor,
VRG PG Girls College, Morar Gwalior
ABSTRACT
India’s personal laws regulate various aspects of
people’s lives, including marriages, divorces, inheritances, and adoptions.
These laws are often based on religious and cultural beliefs. In the past,
personal laws have been a source of discrimination and inequality between men
and women, with women playing a particularly prominent role in personal laws.
However, reforms have been made over the years to improve gender equality and
empower women in personal laws. The research work provides an overview of the
evolution of personal laws in India, focusing on the rights of women within
Hindu community. It examines the historical context of gender inequality within
personal laws and highlights legislative reforms and judicial interventions
that have sought to address discriminatory practices and promote women’s
rights.
It also explores the impact of discriminatory personal
laws on women’s lives, including their socio-economic status, access to
education, employment opportunities, and overall well-being. It finally
underscores the importance of prioritizing gender equality and justice within
legal framework governing personal laws in India.
I.
INTRODUCTION
India’s culture is rich and diverse, with a wide range
of languages, religious beliefs, customs, and traditions woven into its
tapestry. However, India’s rich cultural heritage has also been marred by a
long history of gender inequality and marginalization. For centuries, India has
been ruled by patriarchal values and practices that held women to a lower
status in society and in the private world. Women in India have been subjected
to discrimination and marginalisation through various forms of exclusion,
exclusion from education, exclusion from the workforce, inequality in property
rights and widespread gender-based violence. These systemic inequalities have
created a vicious cycle of gender inequality that impedes women’s empowerment
and prevents them from fully participating in society, the economy, and
politics. However, with the passage of time, India has made significant
progress in addressing gender inequalities and promoting women’s rights. Many
personal laws and legislative frameworks have been amended over the years to
ensure equality and safety for women.
Personal law reforms have been a key factor in improving
women’s rights in matters such as marriage and divorce, inheritance,
guardianship, etc. For example, legislative changes have been introduced to
prohibit practices like child marriage and instant divorce in Muslim personal
law which have had a disproportionate impact on women. Women’s rights and
protections in the law have been further enhanced by landmark judicial
decisions. The Indian judiciary plays an important role in interpreting and
implementing constitutional provisions that guarantee equality between men and
women and non-discrimination between women and men. Legal frameworks and
mechanisms to fight gender-based violence and harassment have been established
through landmark judicial decisions. For example, Vishakha, a judgment in which
the court in Rajasthan held sexual harassment at the workplace to be a violation
of women’s fundamental rights.[1]
In addition to legislative reforms, various social
movements and government initiatives have promoted women’s empowerment and
gender equality. Programs such as girls’ education, women’s entrepreneurship,
and women’s participation in politics have addressed the underlying causes of
gender inequalities and paved the way for women’s progress. However, challenges
remain, and India’s progress towards gender equality is far from complete.
Deep-rooted patriarchal attitudes, socio-economic disparities, and
implementation gaps continue to impede progress. These challenges need to be
addressed by all actors in society, including policy makers, civil society
organisations, private sector players, and communities.
Personal laws refer to the rules and regulations that
govern various aspects of one’s personal life, such as matrimony, divorce,
succession, and adoption. These personal laws are closely linked to religious
and cultural traditions and vary from one religious’ community to another in
India, including Hindus, Muslims, Christians, and Sikhs. Historically, personal
laws have reflected patriarchal values and practices, which have restricted
women’s rights and autonomy. For example, according to some interpretations of
religious law, women have faced discrimination in matters like marriage,
divorce and inheritance. Such practices, such as child marriage and polygamy,
as well as the lack of equality in inheritances for daughters, have been common
in India and have contributed to gender inequality in families and communities.
Historically, personal laws have been interpreted in
ways that deny women agency and control over their lives and reinforce their
status as second-class citizens within society. Women’s rights activists and
reformists have long called for changes in these laws to tackle gender
inequality and empower women. Over the past decades, several legislative
initiatives have been undertaken to amend and modernize personal laws to bring
them in line with constitutional values of equality and fairness. These reforms
have focused on strengthening women’s rights and safeguards in matters such as
matrimonial and divorce laws, inheritance laws, guardianship laws, and more.
The Hindu Succession Law of 1956[2] was revised in 2005[3] to give daughters equal inheritance rights to ancestral
property, ending centuries of discriminatory practices that favoured sons.
Similarly, the Protection of Muslim Women on Divorce Act of 1986[4] offered Muslim women protection from arbitrary divorce
and financial security through maintenance.
The Hindu Marriage Act, introduced in 1955[5], was another significant development in India’s
personal laws for women. This law introduced women’s right to get a divorce on
certain grounds of cruelty or desertion, adultery, etc. Previously, women had
little or no choice in the event of a bad marriage and were forced to remain in
abusive or unsatisfactory relationships. The Hindu Marriage Act introduced the
idea of ‘stridhan’, which is a woman’s claim on property or money that was
given to her before or after she got married.
Muslims have their own personal laws, known as the
Muslim Personal Law (Shariat) Application Act of 1937.[6] This law governs the personal law of Muslim women.
However, it has been accused of being discriminatory, particularly in matters
of marriage and inheritance. There have been calls for a uniform civil code in
recent years, which would unify all personal laws and remove discrimination
based on sex. However, no such law has yet been enacted.
The Dowry Prohibition Act 1986[7] was introduced by the Government of India to put an end
to the practices of dowry. The practice of dowry is still practised in many
areas of the country. Dowry is one of the social evils that has led to the
exploitation and maltreatment of women. In some cases, dowry has even resulted
in the death of the woman. The Act prohibits any person from giving or
receiving a dowry. Violations of the law are punishable by imprisonment and
fine.
In addition, several other reforms and initiatives have
been taken in recent years to empower and safeguard women's rights. For
instance, in 2005, the Protection of Women against Domestic Violence Act[8] was introduced to provide legal protection against
domestic violence which is a prevalent problem in India. Similarly, in 2013,
the Prevention, Prohibition & Redressal of Sexual Harassment at Workplace
Act[9] was introduced to prevent and safeguard women against
sexual harassment in the workplace. However, despite the progress made in the
field of personal laws and women's rights, there are still many challenges that
women face in India. These include gender-based violence, discrimination and
lack of equal opportunities in education and employment. In order to truly
achieve India's progressive and developed status, it is essential that the
government and society work together to build a more equal and inclusive
society where women can live in dignity, respect and equality. It is also
essential that these laws are properly implemented and enforced to have a real
impact on women's lives.
II.
EVOLUTION OF PERSONAL
LAWS IN INDIA
Personal laws in India have a long and complicated
history, influenced by social, cultural, religious and political factors over
thousands of years. From ancient times to modern times, personal laws have gone
through many changes, reflecting the various legal traditions and practices
that were prevalent in various eras of Indian history. In ancient times,
personal laws were largely based on religious texts like the Vedas, the
Dharmashastra and the Smritis. These texts laid down rules and regulations that
governed many aspects of personal life such as marriage, inheritance and social
conduct. Personal laws in ancient India were often linked to religious beliefs
and rituals and played a major role in social norms and customs.
In ancient India, personal laws were integral to the
social, cultural, and religious structure of the society. They governed the
individual lives of the people, their rights and obligations within the family
and society. These laws were deeply embedded in the religious faith and
practices of the people, and played an essential role in the formation of
social norms and social values. In ancient India, there were four social
classes: Brahmins, Kshatriya, Vaishyas, and Shudras. Each of these social
classes had its own personal laws, which were based on the principle of dharma
(meaning duty, justice, and moral order).
Public and personal laws were not clearly separated in
the early Hindu world, as they were intertwined and often treated as if they
were the same. Only later texts began to treat personal laws as distinct from
public laws. Manu is credited with the origin of the first legal code, the Manu
Smriti, which is composed of chapters on various legal subjects, such as civil
law, criminal law, moral law, and religious law.
During the time of the sages, the king did not interfere
in the personal affairs of the people. However, he was subject to the laws laid
down by the sages and these laws were considered as self-enforcers and part of
the Hindu religion. While the religion governed the behavior of the people, the
local customs and the approved usages also had legal meaning.
The concept of marriage was one of the most important
personal laws of ancient India. Marriage was a sacred bond between a man and
woman and was considered a lifelong commitment. There are eight types of
marriage mentioned in the Vedas. The most common type of marriage in ancient
India was an arranged marriage. The bride and groom did not have to agree to
get married. Their families made the decision. Monogamy is the most common form
of marriage. Polygamy is only allowed for the king and members of the high
varnas.
Inheritance laws also played an important role in
personal law in ancient India. Inheritance laws were based on the patrilineal system
of inheritance where the eldest son inherits the father’s property. Daughters
did not inherit any property except the gifts that the father gave during his
lifetime. If there were no male heirs, then the nearest male relative inherited
the property. However, due to the influence of Buddhist and Jain beliefs,
daughters got equal inheritance rights in some areas of ancient India.
Another important factor that affected
personal laws in the ancient India was the caste system. Caste determines an individual’s
social position and the rights and privileges they enjoy in society. A man’s
caste determines his profession, who he marries, and even his diet. In ancient
India, purity and pollution laws were strictly adhered to, and inter-caste
marriage was prohibited. Caste was so deeply embedded in the society that it
played an important role in personal laws.
The medieval period in India was a time of political,
social and cultural upheaval. It was also a time when different dynastic and
imperial powers ruled over different parts of India. The 12th century rise of
Islam also had a major impact on personal laws of people living in those areas.
Personal laws, also referred to as family law, are the rules and practices that
shape a person’s personal and family life. In medieval India, personal laws
were largely determined by religious belief and practice. Hinduism, the
dominant religious faith in India, played a major role in shaping personal laws
in Hindu communities. The main sources of Hindu personal laws in medieval India
were the Manusmriti, a compilation of ancient Hindu legal texts that defined
the rules for matrimony, inheritance and succession. Personal laws were also
shaped by local custom and tradition.
The British ruled India for nearly two centuries, from
the middle of the 18th century to the middle of the 20th century.[10] During that time, the British introduced various laws
and regulations in order to regulate the Indian society. These laws did not
stop at administrative and economic matters; they also included personal laws
that governed people's lives. These personal laws are based on religious and
customary principles, and they were often controversial. The Hindu Law was one
of the most important personal laws that the British introduced. It was based
on the tenets of Hinduism and applied to Hindus, Sikh, Jain, and Buddhist
individuals. It governed matters such as matrimony, inheritances, adoptions,
and succession. The British codified and standardised Hindu Law, which
previously followed religious texts and customary practices. This resulted in
uniform application of the law in different parts of India.
The Hindu Law also introduced significant changes to
women’s rights. Before the British Raj, women had limited rights. They were
under the control of their father, husband or other male relative. The Hindu
Law gave women the right to property and inheritance. Women were also allowed
to get a divorce in certain cases. However, the rights of women were limited
and they were still discriminated against when it came to inheritance and
divorce.
The Muslim Law was another important personal right
introduced under British rule. It was based on Shariah law and applied to
Muslims throughout India. It governed matters such as matrimonial and divorce
laws, inheritance laws, and adoption laws. The British codified and
standardised Muslim law, which had previously been governed by various schools
of Islamic law. This allowed the law to be applied uniformly across the Indian
subcontinent. Women had even less rights under the Muslim law than under the
Hindu law. They could not inherit property and were limited in their divorce
rights. The British made some attempts to reform the laws and give more rights
to women, but these were resisted by conservative Muslim leaders.
In addition to Hindu and Muslim law, the British
introduced laws for the Parsis, Christians, etc. These laws are based on their
religious texts and practices. Some of the important laws that were introduced
during this period include the Parsis Marriage and Divorcing Act 1865[11] and the Christian Marriage Act 1872.[12]
The British also introduced civil and criminal law in
India. Civil law addresses disputes between individuals and is based on
principles of justice, fairness, and conscience. On the other hand, criminal
law addresses crimes against the state and is based on English common law. The
introduction of civil law in India brought order and fairness to the society.
However, it was also accused of being prejudicial to the British and the upper
castes.
One of the biggest criticisms of the British personal
laws is that they imposed them on the Indian people without taking into account
their cultural and religious background. They were seen as a tool for the
British to control and exploit the Indian society, rather than for the benefit
of the Indian people.
III.
HINDU
PERSONAL LAWS AND WOMEN’s RIGHTS
The policy of maintaining personal law for Hindus and
Muslims in matters of family life was so strict that Article 372 of the
Constitution of India[13] states that the law enforced in the country prior to
the entry into force of the Constitution shall remain in force until such time
as it is amended, revoked or modified by a competent legislative or other
competent authority.
In India, each community has a distinct personal law.
Hindus, the majority community, have their personal law; so, do the Muslims,
the largest minority community. The Christian, Parsi and Jewish communities,
whose numbers are not very large in comparison to India’s total population,
also have their personal law. Personal law in India deals with marriage and
divorce, maintenance and guardianship, succession and joint family and
partition, and can be broadly described as Family Law. India has two systems of
law: the territorial and the personal. Because personal law concerns the
relationship between individuals, it can’t be public. A Muslim is governed by
Islamic Sharia. A Jew is governed by Halakhah. A Christian is governed by
Cannon Law. A Hindu is governed by Dharmashastra.
Personal laws are legislative. The state may not be the
ultimate source of their power, but it makes them legally and socially
authoritative and confers its authority on them. Just as family is not personal
in the sense, it does not need to be governed by law. If the authority of the
personal laws is other than legal, there is no need to regulate them. Women
have always been marginalized in almost every society and context without any
legal protection. Law was originally created as a tool to improve our social
condition. It has its roots in the western philosophy of enlightenment. Locke,
Rousseau, and Aristotle based their natural law on the idea that it is natural
for a woman to be subject to her husband. Therefore, she cannot be considered
as a naturally liberated and equal individual. Similarly, in the south eastern
Indian tradition, Manu ruled that as daughter women should obey their father,
as wives their husband, and as widows their sons.
III.I WOMEN IN HINDU MARRIAGE
A marriage is a social or religious contract or legal
agreement between a husband and wife that creates rights and obligations among
them, their children, and their relatives. The Act of Marriage typically
creates a legal obligation between the parties and their descendants. Marriage
is often considered a contract. A marriage can take place in a civil ceremony
or a religious ceremony. The right to marry is one of the fundamental rights of
a person. Article 21 of the Constitution of India[14] provides that no person shall be ‘deprived of his right
to marry or to enjoy his personal liberty according to the procedure laid down
by law.’ This right has been recognised by the United Nations Convention on the
Rights of the Child under Article 16.
In today’s Hindu society, women’s rights in the context
of marriage are safeguarded by various provisions under the Hindu Marriage Act,
1955 (hereinafter ‘HMA’). One of the basic principles under this act is that
both partners must give their consent voluntarily before entering into the
marriage. The section 5 of the HMA[15] defines the conditions under which a Hindu marriage is
valid. One of those conditions is that both parties must give their consent
freely before entering the marriage. Section 5 states that a marriage between
two Hindu individuals may be solemnized if neither of them has a spouse at the
time of marriage, both of them are able to give valid consent and neither of
them is unfit for marriage according to the provisions of the law.
The HMA also states in Section 7[16] that the marriage can be performed by the Hindu
marriage registry if both parties consented to the marriage. This strengthens
the notion that consent is necessary for the marriage to be valid under Hindu
law.
In addition, the act prohibits forced marriages and
provides for the annulment of marriages concluded without free consent. The
section 12[17] of HMA states that a marriage can be annulled “if
either party was unable to give valid consent by reason of ill health, mental
illness, or repeated attacks of madness.” This provision safeguards people from
being forced to marry against their will or when they are not mentally well enough
to make such a choice.
The HMA and its subsequent amendments have played a
crucial role in ensuring equal rights of men and women in Hindu matrimonial
life. The Hindu Marriage Act guarantees equal rights of women and men in the
matrimonial life, including property rights, education and career
opportunities.
While the HMA doesn’t directly address women’s right to
pursue career, it indirectly promotes women’s autonomy and agency by levelling
the playing field between spouses and improving women’s access to education,
and property rights. Women are now more empowered to work, contribute to the
household budget, and pursue rewarding careers along with their marital duties.
While the HMA primarily addresses the legal aspects of
marriage, it intersects with other laws that protect women’s rights, including
the Protection of Women from Domestic Violence Act, 2005. The DV act recognizes that violence can take various forms including
physical, emotional, sexual, and economic abuse. This broad definition ensures that
women are protected from different types of abusive behavior within the
domestic sphere.
One of the most important provisions of DV Act is that
women have the right to apply for a protection order from the court. A
protection order prohibits the abuser from engaging in acts of domestic
violence, from communicating with the victim or from entering the joint
household. The Act also allows women who have been the victim of domestic
violence to apply for a residence order. A residence order grants the woman the
right to live in the joint household, even if she has no legal rights over the
property. This means that women do not have to face homelessness or
displacement as a result of domestic violence. Another important provision is
that women who have been victims of domestic violence have the right to
financial relief. The court can order the abuser to pay the victim for their
maintenance and support as well as any medical expenses incurred as a result of
the violence.
Overall, the author concludes that the DV Act of 2005 is
an important law that supplements the HMA by providing additional protection
and remedies to women who face domestic violence in the context of marriage. By
recognising the various forms of domestic violence and enabling women to avail
of legal redress and support services the Act seeks to address the widespread
problem of domestic violence and to ensure the safety and prosperity of women
in India.
III.II MAINTENANCE
RIGHTS OF WOMEN
HMA recognizes the right of Hindu women to maintenance or financial
support from their husbands during the subsistence of the marriage and in the
event of divorce or separation. This provision is essential for ensuring that
women are economically provided for, especially if they are financially
dependent on their spouses. It provides for maintenance to be paid while the
proceedings are pending or after the completion of the proceedings under HMA.
In Section 24[18], it states that either spouse may file an application
for maintenance before the court. The court has jurisdiction to grant interim
maintenance orders taking into account the financial situation and resources of
both spouses.
The section 25[19] also deals with maintenance and alimony after the
dissolution of the marriage. In this section, the court orders the husband to
pay maintenance and support to the wife, whether in the form of a lump sum or
in the form of regular payments. The amount of maintenance and alimony is
determined by various factors, including the income and assets of both spouses,
their financial requirements, their standard of living during the marriage and
any other factors.
This provision guarantees that women who have sacrificed
their careers or prospects for the marriage will not be financially
disadvantaged in the event of a divorce or separation. The HMA recognises the
economic contribution of the spouses to the marriage and seeks to provide equal
relief to the wife in order to ensure her financial well-being.
All in all, the Hindu Marriage Act ensures that Hindu
women have the right to maintenance and that they will not be left destitute or
deprived of financial support in the event of marital disagreement or
dissolution. This law reflects India's commitment to the economic rights and
well-being of women in the institution of marriage.
III.III WOMEN’S
RIGHT TO PROPERTY
The Hindu Succession Act, 1956 (hereinafter ‘HSA’) as
amended in 2005 has been one of the most important pieces of legislation in
terms of gender equality in Hindu inheritance matters. Hindu women had limited
inheritance rights in ancestral property and were often discriminated against
in inheritance matters before the amendment. However, with the 2005 amendment,
women got equal inheritance rights both in ancestral property and self-acquired
property. Prior to the amendment in the HSA, Hindu daughters did not enjoy the
same inheritance rights as sons. Son was considered coparcener by birth in HUF
and had preferential inheritance rights. Daughters only got limited shares and
were often subject to complicated rules and conditions.
The 2005 amendment introduced the concept of ‘coparcener
in their own right’, which allows daughters to inherit ancestral property along
with sons. In other words, daughters have the same right to inherit ancestral
property as sons, regardless of whether the property is inherited from their
parents before or after the law was enacted. The 2005 amendment also abolished
‘limited estate’ for Hindu women, which ensures that they have full ownership
rights over their portion of inherited property. This has empowered Hindu women
in both economic and legal terms, enabling them to take control of inherited
assets and utilize them for their benefit and financial security.
CONCLUSION &
SUGGESTIONS
To conclude, Hindu Personal Laws have been a thorn in
the side of women’s rights in India for a long time. The Hindu Personal Laws,
which regulate family matters like marriage, divorce, inheritance, etc., have
often been accused of being discriminatory against women. Over the years,
several attempts have been made to reform and modernise these laws in order to
better safeguard the rights of women in India. In 2005, one of the most
important reforms was introduced in the Hindu Succession Act (Amendment) which
granted equal inheritance rights to daughters. In other words, daughters got
the same inheritance rights as sons. Women’s rights activists hailed this as an
important step towards gender equality.
One of the most important aspects of Hindu Personal Laws
is marriage and divorce. The law allows for divorce under certain conditions,
but it also creates hurdles for women who want to get out of their marriage.
For instance, the concept of ‘irretrievably breakdown of marriage’ is not
recognised, and a woman has to show cruelty, desertion or adultery in order to
get out of her marriage. This burden is placed on the woman and leads to long
and costly legal proceedings. Polygamy is a common practice among Hindus,
particularly in rural areas. Not only does it discriminate against women, but
it also limits their property rights and inheritance rights. The law prohibits
polygamy, but it is not enforced and many women suffer because of this outdated
practice.
The lack of uniformity of Hindu Personal Laws is another
pressing issue. This leads to confusion and inconsistency when it comes to
legal matters. This is especially true for women, especially when it comes to
marriage and divorce, as the laws may differ depending on the religion or sect
of the woman. In order to address these issues, calls have been made for the
introduction of a Uniform Civil Code in India. This law would provide a uniform
set of laws to all citizens, irrespective of their religion. Not only would it
promote gender equality, but it would also make legal matters easier for
everyone. Besides legal reforms, there are also social and cultural changes
that need to be made in order to ensure women’s rights in the Hindu Personal
Laws.
To sum up, while some progress has been made in the area
of women’s rights under Hindu Personal Law, there is a long way ahead of us. We
need to work together with the government and society to bring about real
change in laws and practices to protect and empower women. The battle for
gender equality will continue and it is everyone’s duty to contribute to a
better and equal society.
[1] Vishaka and Ors v State of
Rajasthan AIR 1997 SC 3011.
[2] Hindu Succession Act, 1956 (38 of
1956).
[3] The Hindu Succession (Amendment)
Act, 2005 (39 of 2005).
[4] The Muslim Women (Protection of
Rights on Divorce) Act, 1986 (25 of 1986).
[5] Hindu Marriage Act, 1955 (25 of
1955).
[6] The Muslim Personal Law (Shariat)
Application Act, 1937 (26 of 1937).
[7] The Dowry Prohibition Act, 1961
(28 of 1961).
[8] The Protection of Women from
Domestic Violence Act, 2005 (43 of 2005).
[9] Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 (14 of 2013).
[10] Aditya Mukherjee, ‘Empire: How
Colonial India Made Modern Britain’ (2010) 45(50) Economic and Political Weekly
11-17 accessed 7 April 2024.
[11] The Parsi Marriage and Divorce
Act, 1936 (3 of 1936).
[12] The Indian Christian Marriage Act,
1872 (15 of 1872).
[13] The Constitution of India, art
372.
[14] The Constitution of India, art 21.
[15] The Hindu Marriage Act, 1955 (25
of 1955) s 5.
[16] The Hindu Marriage Act, 1955 (25
of 1955) s 7.
[17] The Hindu Marriage Act, 1955 (25
of 1955) s 12.
[18] The Hindu Marriage Act, 1955 (25
of 1955) s 24.
[19] The Hindu Marriage Act, 1955 (25
of 1955) s 25.