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A CRITIQUE ON PERSONAL LAWS WITH RESPECT TO WOMEN IN MARRIAGES

INTRODUCTION

India: a country with so much population at the same time with so many diversities of religion, caste, culture and faith under which they belong to. People practice their traditions and customs in marriages. As per their religion. This is so because people have come here from different backgrounds and different ethnicity. And all the laws which have been made so far is in consideration of all the cultures and tradition we follow so that no one gets disrespected and the sanctity of cultures remains intact with the people. That’s why in India, we have personal laws such as Hindu Personal law, Muslim Personal law, Christian Personal law, Parsi law. Under these personal laws, there are other subcategories such as marriage, adoption, succession, guardianship, inheritance, maintenance, religious and charitable donations, etc. Personal laws are broadly based on religion. But if see section 2 of the Hindu Marriage Act[1] applies not only to Hindus but also to Buddhists, Sikhs, Vira Shaiva, Lingayat or a follower of Brahma, Parthana or Arya Samaj. Though they are not Hindu still they follow Hindu personal law.

Considering marriages and respective personal laws. Laws are codified into different acts under which a person can marry his/her partner. These are the Hindu Marriage Act[2], The dissolution of Muslim Marriages Act[3], The Converts’ Marriage Dissolution Act[4], The Indian Christian Marriage Act[5], The Anand Marriage Act[6], The Parsi Marriage and Divorce Act[7], The Special Marriage Act[8], The Foreign Marriage Act[9], etc. Earlier there were not so many inter-religious or inter-caste marriages because of the prevailing social differences in the society. But now in the post-modern era, people have started coming out of all the orthodox mentalities and differences which were prevailing in the society and the society is also now accepting this as a new normal. That’s why we have a special law called The Special Marriage Act of 1954[10] under which no one can marry into different religion without converting into another religion.

PERSONAL LAWS AND THEIR LACUNAS

Personal laws have been made decades ago and the laws which have been written there have been followed by the people even before the existence of these laws. But one thing which everybody knows is that laws are not static but dynamic else they will lose their importance in the contemporary world.  The old and the conservative laws which are discriminatory and are bias should be reformed and removed to eliminate all the prevailing injustices in society. Instances from the past can also be taken as how personal laws have been discriminatory in the past also. Cases like if we see marriages under Muslim Law, the triple talaq has been a major issue as it has been seen that how triple talaq was discriminatory towards Muslim women.[11]Another instance can also be taken if we see the succession laws of The Hindu Succession Act, where after a lot of efforts, the daughter has been made an equal partner in the joint family after the 2005 amendment. A bill has also been introduced in the Lok Sabha to raise the age of marriage from 18 yrs to 21 yrs. According to the proposer, the earlier competent age was discriminatory and should be reformed. Likewise, people are continuously keeping a watch on these sorts of reforms that will bring equality and are inconsistent and unjust in today’s scenario.

WOMEN AND PERSONAL LAWS

 If we see in today’s scenario there are still some laws that are discriminatory towards women in marriages. Like if we see both the Shia and the Sunni law related to property laws, the wife is given half of the property share of the man. If they had their children like one daughter and the son then the daughter will inherit one-third of the property whereas the male child i.e., the son will inherit the two-thirds share of the property. Again, if we see in the case of the Christian law under the Indian Succession Act[12], a widow usually receives 1/3rd of the property while the other lien descendants get 2/3rd of the property. In Parsi law, when a non-Parsi woman marries a Parsi family, the non-Parsi woman who must be the wife or the widow of the Parsi cannot inherit under Parsi law. But their children can inherit. Another instance can also be taken in the Parsi law which is the children born out from a Parsi woman cannot be considered as Parsi because the woman has now married to a non-Parsi man which shows clear-cut discrimination against the woman under Parsi law.  Under Hindu Minority and Guardianship Act, Section 6[13] of this act says that after the death of the father, the mother will be the guardian which shows gender inequality as to why they don’t have an equal guardianship opportunity at the very first instance.

In case of the triple talaq decision, which has now made the practice illegal among Muslims, it is necessary to study the politics that influence the practice and reformation of personal laws in India. If we see the Muslim Personal law, it was often said that the laws under this legislation is biased towards women and are disempowering to them. An introduction of a Uniform Civil Code (UCC) has been demanded for these reasons. The Hindu Succession Act (HSA) of 1956[14] governs Hindu succession which is unique because it distinguishes between males and women when it comes to intestate succession. The source from which the deceased female obtained the property determines the female intestate succession. While there is no doubting that personal laws oppress women, political parties frequently hijack gender equity discourse in the name of vote-bank politics. They argue that addressing the issue of women’s legal enslavement necessitates a complete rethinking of personal laws based on democratic principles[15].

CONCLUSION

The desire for a UCC arose in response to the triple talaq ruling, with certain groups contending that the continuation of Muslim Personal Law is unconstitutional. According to the argument, personal laws have disproportionately benefited India’s Muslim minority, necessitating the creation of a UCC. Further, as per my opinion, I would say that the personal laws are biased towards women in marriages and secondly, I think that the personal laws have been made earlier to give equal respect to the tradition and cultures of any community. It is still fair but there are certain laws under the personal laws which have no role to play in today’s world and they should be reformed or removed. Another solution to these problems can be UCC which is the Uniform Civil Code can also be implemented everywhere by abolishing all the personal laws.

Author(s) Name: Anupama Minz (National University of Study and Research in Law, Ranchi)

References:

[1] Hindu Marriage Act 1955, s 2

[2] ibid

[3] The Dissolution of Muslim Marriage Act 1939

[4] The Converts’ Marriage Dissolution Act 1866

[5] The Indian Christian Marriage Act 1872

[6] The Anand Marriage Act 1909

[7] The Parsi Marriage and Divorce Act 1936

[8] The Special Marriage Act 1954

[9] The Foreign Marriage Act 1969

[10] Supra 8

[11] ‘Personal Laws versus Gender Justice: Will a Uniform Civil Code Solve the Problem?’<https://www.epw.in/engage/article/personal-laws-versus-gender-justice-uniform-civil-code-solution> accessed 20 January 2022

[12] Indian Succession Act 1925

[13] Hindu Minority and Guardianship Act 1956, s 6

[14] Supra 12

[15] Supra 11

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