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WOMEN, MARRIAGE AND FAMILY: A COMPARATIVE ANALYSIS BETWEEN HINDU LAW AND MUSLIM LAW
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WOMEN, MARRIAGE AND FAMILY: A
COMPARATIVE ANALYSIS BETWEEN HINDU LAW AND MUSLIM LAW
Assistant Professor (SG)
Tamil Nadu Dr.Ambedkar Law
University, No.5, M.G.R.Salai, Perungudi, Chennai - 600 113.
MOBILE NO.: 8838038775
EMAIL ID: smanjulaprof@gmail.com
ABSTRACT
The Convention on the Elimination of
All Forms of Discrimination Against Women is commonly referred to as the
international bill of rights for women. It defines what constitutes
discrimination against women and girls and sets out a comprehensive framework
for tackling gender inequality. Article 1 of the Convention defines
discrimination against women in which it has been stated that irrespective of
marital status, both men and women should be treated equally. Article 16 states
about marriage and family life in which it has been stated that States shall
ensure that women have equal rights with men in relation to marriage and as
parents, as well as in respect of other aspects of family life. According to
the United Nations, India ratified CEDAW in July 1993 with two declarations.
But the ratification of CEDAW by India did not reduce violence and
discrimination against women because the international agreement was not
legally implemented and enforced throughout Indian society. The personal laws
of India are very much evident to understand the position of India for not
taking a step forward to remove discrimination against women. Hence, this paper
is an attempt to compare Hindu Law and Muslim Law with special reference to discrimination
against women in the matters relating to marriage and family.
Keywords: Women, Marriage, Family,
CEDAW, Hindu Law and Muslim Law.
INTRODUCTION:
|
“The best thermometer to the progress
of a nation is its treatment of its women. There is no chance for the welfare
of the world unless the condition of women is improved.
Woman has suffered for aeons, and that has given her infinite patience and infinite perseverance. The idea of perfect womanhood is perfect independence. There is no hope of rise for that family or country where there is no estimation of women, where they live in sadness[2].” |
In India,
where religious myths and traditional attitudes define virtues and vices, and
these in turn condition popular imagination to form the social culture, the
ideal and permissible cultural role of a woman becomes a contentious issue that
can barely be assessed in uniform terms. Though care giving services can
empower women if they are trained adequately, the scope of choices for career
is often constrained by societal notions of what is ‘suitable’ for a woman and
what is not. This is what defines the role of women in India, and how limited
their contribution to society will be. The boy on the other hand has no such fetters
tying down his choices. However, a careful observation validates the fact that
patriarchy has had an upper hand in general in most traditional norms across
the country. In this context, India with its sub-continental geographical
expanse and its unique patchwork of regionally diverse cultures becomes a
template for a special kind of gendered discrimination.
Life for the
upper class women, educated women is different but no better. Despite their
qualifications, what acts against them is a threat to their security while
working outside their homes, travelling to universities and
colleges. Right from jilted lovers seeking to teach their beloved a lesson
for rejecting them through extreme means like acid attacks and rape, to men on
the streets treating women with contempt through harassment and molestation for
stepping out and holding equal positions – the story follows a similar
narrative almost everywhere across the length and breadth of the country.
HISTORICAL BACKGROUND OF THE STATUS
OF WOMEN IN INDIA:
The status of Hindu women in India has been fluctuating. It has gone
through several changes during various historical stages. Historically
speaking, women in India have passed through two phases of their life – the
period of subjugation and the period of liberation. At times she has been
suppressed and oppressed and at times she is regarded as the deity of the home.
From the Vedic age till today, her status and position has been changing with the
passing of time.
Therefore, it is necessary to analyse the status of Hindu women in the
various ages to assess her real position today.
Status of Women in Vedic Period:
The Rig-Vedic society was a free society. The Aryans evidently preferred
male child to female child. However, females were as free as their male
counterparts. Education was equally open for boys and girls. Girls studied the
Veda and fine arts. Women never observed purdha in the Vedic period. They
enjoyed freedom in selecting their mates. But divorce was not permissible to
them. In the family, they enjoyed complete freedom and were treated as
Ardhanginis. In domestic life women were considered to be supreme and enjoyed
freedom. Home was the place of production. Spinning and weaving of clothes was
done at home. Women helped their husbands in agricultural pursuits also.
Husband used to consult his wife on financial matters.
The woman was regarded as having an equally important share in the
social and religious life because a man without woman was considered as an
inadequate person. She regularly participated in religious ceremonies with her
husband. There were many scholars who composed hymns of Rig Veda[3].
Women had equal rights in social and religious fields but had limited rights in
economic field.
Status
of Women in the Epics:
Epic age, in the history of female freedom, may be regarded as a golden
age. Women had been accorded an honourable status in the society. Most of the
female characters of Ramayana and Mahabharata were well educated. The Ramayana
illustrates the Hindu ideal women of India. In Mahabharata we find instances
where women gave counsel and advice to men on social and religious issues.
Women had an effective role in social and political life of the then society.
In Ramayana, the wife was considered to be the soul of her husband and in
Mahabharat, she was considered to be half part of her husband. A general survey
of the Puranas reveals that the position of women declined in the corresponding
age.
Status
of Women in the Smritis:
The status of women in this period was declining drastically. We find a
number of provisions in the Manu Smriti, which certainly go against her
interests. Women are deprived of the Upanayana ceremony and thereby of
education. Manu relegates her to an entirely subservient position. He preaches
self-negation as the highest ideal of a wife. She is asked to serve and worship
her husband even if he is not a person of all virtue and character. Since
service and worship of the husband are the primary duties of a wife, by so
performing she can hope to attain heaven.
Status
of Women in Medieval Period:
In fact, the status of women started degenerating in the post-Vedic age
because of the conception of purity and pollution and restrictions of
inter-caste marriages. Child marriage had started in the Smriti age. During
this period, a woman’s husband was regarded as God. During the middle ages, the
position of women in Hindu society further degenerated. A number of problems
arose for Hindu women in the Mughal period.
The first Muslim invasion took place in India in the eighth century.
During this period the position of women was on par with the Vedic period.
India experienced a second Muslim invasion in the eleventh century when
Mohammad Ghazni conquered India. From this period till the middle of the
eighteenth century, when the British rule was established in the country the
breakdown of social institutions, the vast migration of people and the economic
depression in the country contributed to a general decline of social life,
particularly among women.The ‘Purdah’ system was followed which resulted in
seclusion of women. Education of women in whatever form came to be stopped.
Child marriage was started. During this period the inhuman practice of ‘Sati
Pratha was in vogue. Purdah Pratha, Sati Pratha, child marriage, girl killing,
polygamy etc. were the main social evils of this period.
However, during the fifteenth century, the situation underwent some
change. The Bhakti movement organised by Ramanujacharya during this period
introduced new trends in the social and religious life of Indian women[4].
The saints encouraged women to read religious books and to educate themselves.
Although the Bhakti movement gave a new life to women, this movement did not
bring any substantial change in economic status of women. Hence, women
continued to hold low status in the society.
ROLE OF THE INDIAN FAMILY:
Family system in India was wholly
governed by customary practice before codified laws. The customary practices
prevailing at that time was entirely based on male dominance and the female members
of that family were fully discriminated in almost all the walks of life. The
women were treated inferior in all her positions as a mother, daughter, wife
with the father, son, husband and the like. Even the changing situations and
the enacted laws are not able to develop the position of women in India. The
question that comes to mind naturally at this point is “why”? Despite all the
progressive ideals defining the concept of the nation, why do women still
suffer from such social attitudes? The answer surprisingly lies within the unit
of an Indian family. In an Indian family in general, where there is a girl
child and a boy child, it is interesting to note the different set of values
that they are taught from their very childhood.
The girl is
taught to be more homely, timid, submissive, obedient and in certain cases even
taught to dream only of being a good wife, mother and homemaker (the ideal
being one who does not raise her voice). Even in cases where she is given the
chance to study further than school and complete college or university, she is
taught to prefer gendered stereotypes for careers like “teacher”, “nurse”, etc.,
So, the change will have to be started from the family. The women should be
respected and treated equally inside the family and that will be reflected
positively outside also.
MARRIAGE UNDER HINDU LAW AND MUSLIM LAW:
Marriage
is a sacred institution; it is the very foundation of a stable family and
civilized society. There are, however, certain prerequisites and conditions for
a valid marriage. All personal laws lay down certain conditions which need to
be complied with to enter into or solemnize a legal marriage.
Under Hindu Law:
There are some conditions to be satisfied
by the parties for entering into a valid Hindu Marriage[5].
The
conditions which are prescribed under the Act of 1955, to some extent protect a
Hindu woman from child marriage, bigamy, and consenting mind, even though there
is a discrimination in the condition relating to age by fixing the differential
age for bride and bridegroom. The Hindu Marriage Act, 1955 is also prescribing
some matrimonial reliefs commonly for both the husband and wife. Hindu wives
are given some exclusive grounds for divorce[6].
Apart from that, equal rights for claiming maintenance[7]
and custody of children[8]
is also provided by the Act of 1955. In spite of all these protections the
position of women inside or outside the family is still inferior and pathetic.
The reason behind this might be the influence of customary practices which are
prevailing over the enacted personal laws. There rights are suppressed within
the family by giving them some roles like mother, wife and daughter etc.,
Marriage under Muslim Law:
Marriage
or Nikah, according to Muslim Law, is ‘defined to be a contract which has for
its object the procreation and legalizing of children’. Thus a Muslim marriage
is a contract and its object is (a) procreation, and (b) legalizing children.
There is no formality nor any religious ceremony required for a marriage.
Since, marriage in Islam is a contract, the usual conditions necessary to
constitute a valid contract are to be fulfilled.
Conditions for Valid Marriage:
The essential requirements for a
valid Muslim marriage are capacity to contract marriage, proposal and
acceptance, and absence of any impediment to the marriage.
Capacity for Marriage:
Every
Muslim who is of sound mind and who has attained puberty has the capacity to
marry. Marriage of such person without his/her consent is void. Persons who not
of sound mind or have not attained puberty can be contracted in marriage by
their guardians. Further, a Muslim woman cannot marry any man who is not a
Muslim. As to a man marrying a non-Muslim woman, while a Sunni Mohammedan if
she is a Kitabia but a Shia Mohammedan cannot marry even a Kitabia. If the
parties have become Muslim by conversion before the marriage, then there is no
bar.
Proposal and Acceptance:
There
should be a proposal ijab, and an acceptance qubul of the proposal. The
proposal and acceptance has to be made either by or on behalf of the parties.
This has to be done in the presence and hearing of two male, or one male and
two female, witnesses who must be sane and adult Mohammedans. It is significant
to note that the proposal and acceptance must both be expressed at one meeting;
a proposal at one meeting and its acceptance at another does not constitute a
valid marriage. There are some impediments for a valid marriage under Muslim
law[9]. These impediments would render a
marriage void, certain prohibitions are only relative in nature, and would
render a marriage only as irregular. These are marriage with a fifth wife,
marriage without proper witnesses, marriage when there is a difference of
religion, unlawful conjunction, or marriage with a woman undergoing iddat.
The
conditions for a valid marriage under Muslim Law is more discriminatory towards
women. The conditions are not strict enough to make the parties responsible
from one another. Because the condition like, capacity to marry with relaxation
of guardian presence for entering into the valid marriage even without
fulfilling the condition will give a wide scope of discrimination against
women. Because she has no scope for deciding about the marriage as she has to
be under the control of the family which is headed by a male. So, her role for
decision-making in the family is zero.
The
matrimonial reliefs available for a Muslim women is also more discriminatory
when compared to Hindu law. The husbands under Muslim law are having ample
opportunities to divorce the wives without assigning any reasons and even
without the intervention of the court. Polygamy permitted for the husband under
Muslim law is causing faithlessness in marriage for the wife. Even after the
marriage, she could not expect complete protection from the husband. Somehow,
she will be getting protection because of the provision for ‘Dower’ under
Muslim law.
Dower
is the amount payable by the husband to the wife in consideration of the
marriage. It may be prompt or deferred. Prompt dower is payable on demand
unless otherwise stated at time of marriage, the entire dower is presumed to be
prompt dower. This is so under the Shia Law. But under the Sunni Law it is
usual to regard half as prompt dower and half as deferred dower but there is no
hard and fast rule and the courts may treat a reasonable part of the entire
dower as Prompt Dower. But dower in my opinion is degrading the women to some
extent[10].
This plight of Muslim women is continuing even after the death of the husband
and on the dissolution of marriage by way of observing the period of ‘Iddat’
CONCLUSION:
Male and Female, the two basic components of our human society, depend
upon each other and each one of them constitutes about half of the population.
Over years sociologists and other scholars have tried to assess the problems
faced by women and to study changes in their status around the globe in general
and in Indian society in particular. We find that man and woman have been
established as the two wheels of a chariot. The status represents the position
of individual in the group. The status of women refers to her position in the
network of social role structure, privileges, rights and duties. It refers to
her rights and duties in family and social life. The status of a woman is
generally measured in the comparative amount of prestige and respect accorded
to her with that of man. But in the Indian society where the customary practice
is given more preference than the individual values. That is the reason why, we
are having personal laws for various religious groups which in turn leads to
discrimination.
The women in marriage and family life are suffering a lot and their
plights are not addressed properly in spite of the existence of various laws
for protecting them. The common reason for this might be that she has been tied
traditionally and culturally with the complete responsibility of the family.
When compared the position of women in Hindu law and Muslim law particularly
the matters relating to marriage and family, the Hindu women are in a better
position than the Muslim women. Enormous fundamental rights are guaranteed by
the Indian Constitution to its citizens for leading their life with dignity.
Even though, those rights are available for a woman as a citizen of this
country, it has become quite impossible for a woman to lead a dignified life
because of societal pressure. The Uniform Civil Code, which is given as one of
the directives of the Indian Constitution, could have been a remedy for curbing
the discrimination prevailing in all the personal laws in India.
[1]Assistant Professor (SG), Tamil
Nadu Dr. Ambedkar Law University, Chennai, email id. smanjulaprof@gmail.com, Mobile No.88380 38775.
[2]The above quoted lines, famously uttered by a 19th century Indian monk Swami
Vivekananda way before India woke up to its present status of being an
independent and recognised nation-state, addresses an insight which informs the
development discourse all over the world today.
[3] Lopamudra,
Gargi and Maitreye were the pioneers among them. Lopamudra, the wife of Agasti rishi, composed two verses of Rig
Veda.
[4]The saints like Chaitanya, Nanak, Kabir, Meera,
Ramdas and Tulsi stood for the right of women to religious worship.
[5]Sec 5 of the Hindu Marriage Act, 1955. A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely: i. Neither party has
a living spouse at the time of the marriage;
ii.At the time of the marriage, neither party-
a. Is
incapable of giving a valid consent to it in consequence of unsoundness of
mind; or
b. Though
capable of giving a valid consent, has been suffering from mental disorder of
such a kind or to
such
an extent as to be unfit for marriage and the procreation of children; or
c. Has been subject to recurrent attacks of
insanity;
iii. The bridegroom has completed the age of
twenty-one years and the bride, the age of eighteen years at the time of marriage;
iv. The parties are not within the degrees of
prohibited relationship unless the custom or usage governing each of them
permits of a marriage between the two;
v. The parties are not sapindas of each other, unless
the custom or usage governing each of them permits of a marriage between the
two;
[6]Sec 13(2) of the Hindu Marriage
Act, 1955.
[7]Secs.24 & 25 of the Hindu
Marriage Act, 1955.
[8]Sec. 26 of the Hindu Marriage Act,
1955.
[9] The following are the impediments or prohibitions to a
valid Muslim marriage, viz.:
i.
A married woman
cannot contract another marriage while her husband is alive and the marriage is
subsisting. Such marriage is void.
ii.
The bar of
consanguinity renders a marriage void. The following are the prohibited
relationships of consanguinity, viz., a man cannot marry his:
a) Ascendants, for e.g., mother or grandmother, how
highsoever;
b) Descendants, for e.g., daughter or grand-daughter, how
lowsoever;
c) His sister, whether full, consanguine or uterine;
d) His niece or great niece, how lowsoever;
e) His aunt or great aunt, how highsoever, whether
paternal or maternal.
Such marriage if contracted is void.
iii. Marriage is also prohibited on ground of
affinity. Thus, a man cannot marry:
a) His wife’s mother, or grandmother, how highsoever;
b) His wife’s daughter or grand-daughter, how lowsoever,
if his marriage with his wife is consummated;
c) His father’s wife or any other ascendant’s wife; and
d) His son’s or any other lineal descendant’s wife.
Such marriage if contracted would be void.
iv. Fosterage is another impediment to a valid
Muslim marriage.
[10] Masthan Sahib v. Assan Bibi, 23
Mad.371 (FB). The wife may refuse to consummate the marriage, until prompt
dower is paid. Even after consummation, if prompt dower is not paid on demand,
the wife may refuse further sexual intercourse. A suit by the husband for
restitution of conjugal rights in such a case would be decreed conditionally,
i.e., subject to the payment of the prompt dower within a time fixed by the
court.
Article Information
WOMEN, MARRIAGE AND FAMILY: A COMPARATIVE ANALYSIS BETWEEN HINDU LAW AND MUSLIM LAW
Authors: Dr. S. Manjula
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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