Family law refers to the broad set of rules that govern family matters such as marriage, divorce, and inheritance. When the status of interpersonal relationships is legally validated, some legally enforceable rights and duties emerge. In India, the laws governing such matters are governed by a separate set of personal laws, namely, the Hindu Law (including Jains, Buddhists, and Sikhs), Muslim law (including Sunni and Shia), Christian law, Parsi law and Special Marriage Act which governs inter-caste and inter-religious marriages. The Indian constitution is the supreme legislation that applies to all citizens. Article 14 is the embodiment of equality as stated in the Preamble, and Article 15 states that no person shall be discriminated against based on sex, caste, religion, race, or place of birth. It not only imposes a duty on the State to refrain from discriminating against people but it also imposes a positive duty to take action to bridge inequalities between people. All such laws that are contrary to the constitution are declared null and void. Regardless, gender discrimination has been a part of personal laws. Several stipulations in modern Indian society denote men’s superiority and women’s inferiority.
THE PORTRAYAL OF WOMEN IN INDIAN SOCIETY
In Indian society, the senior most man is the head of the household, and his decision is definitive. In marriage, women were never free agents. Her father or another male guardian gave her in marriage; in inheritance law, the cardinal rule was followed, which stated that no female may inherit; only male heirs could inherit. Cognates were specifically excluded. Therefore since ancient times, the nation has allowed men to prevail in society, with women often being victims of male domination. In India, there have been numerous incidences of rapes, murders, dowry, marital rape, discrimination, and other forms of violence against women. This portrays the nation’s women as victims of humiliation, torture, and exploitation, among other things. In today’s world, women are trying hard to break out from the crust of their subordinate status by shattering stereotypes, speaking up for themselves, and fighting for equal rights. They have attained their position via centuries of struggle, as well as numerous waves of feminism.
GENDER INEQUALITY IN VARIOUS PERSONAL LAWS
Following are some examples of gender discrimination prevalent in some of the religions practised in India:
- Even if her husband consents, a married woman in Hindu law does not have the right to adopt a child. The obligation of adopting a child is only placed on the husband’s shoulders. In the case of Malti Ray Chowdhury v. Sudhindranath, a married woman adopted a female child with the agreement of her husband, but the court found the adoption invalid, stating that adoption in marriage may only be done by husbands and that women do not have this authority.
- The rules for inheriting a woman’s property differ from those for inheriting a man’s property among Hindus. If a woman dies intestate without a husband or children, her property will pass to her spouse’s heirs, and if they are not alive, it will pass to her father’s descendants, and finally to her mother’s heirs.
- Section 6(a) of the Hindu Minority and Guardianship Act bestows the designation of natural guardian on the father. The requirement for both parents to have equal natural guardianship rights is disregarded.
- Former Portuguese colonial rulers of Goa referred to as “Gentile Hindu men”, “under specific conditions stipulated in the Gentile Hindus of Goa Codes of Usages and Customs, have the right to bigamy” (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). What’s more, the BJP stated in its election platform that it would implement a Uniform Civil Code that would apply to all citizens. Since 1997, the party has cited Goa’s Civil Code as a model for the rest of the country to emulate.
Muslim Personal Law:
- Islam does not specify an age limit for marriage, either for men or for women. However, Islam only encourages young people to marry. If a girl reaches puberty, she is eligible for marriage. In the case of Yunusbhai Usmanbhai Shaikh v. the State of Gujarat, it was determined that under Muslim personal law, a girl is eligible for marriage once she reaches puberty or the age of 15 years. As a result, it is apparent that consent and maturity of a girl are not criteria for marriage, but biological traits are.
- A husband is permitted to have four wives under Muslim law. According to the Quran, you should marry a woman who you believe is good for you twice, three times, or four times, but if you believe you cannot treat her well, you should marry only once. However, it is not permissible for a Muslim woman to have more than one husband, and if she has more than one marriage, her second marriage would be regarded void and will be penalized by the requirements of the Indian penal code.
- The father is acknowledged as the guardian in all Shia and Sunni schools, which in context is equivalent to the natural guardian, while the mother is not considered a guardian, natural or otherwise, even after the father’s demise.
- If a Parsi woman marries a non-Parsi, their children are not deemed Parsi. This does not apply to a Parsi man who marries someone who is not from the Parsi community.
- A non-Parsi woman married to or widowed by a Parsi man is not entitled to inherit upon his death, but their children are.
The Indian judiciary has always been fairly progressive when it comes to women’s rights. They also acknowledged the negative impact of personal laws on women and gender equality in some of their judgments. The Supreme Court found in favour of a divorced Muslim woman claiming support in the 1985 case of Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. It also raised media awareness about the need for a Uniform Civil Code to avoid conflict in personal and civil laws while also promoting national integration and gender equality. Similar decisions about the need for a Uniform Civil Code have been made over the years. The Supreme Court ruled in Shayara Bano v. Union of India & Others that the practice of immediate triple talaq was unconstitutional. In Prakash & Ors. vs. Phulavati & Ors., it was determined that gender discrimination as a result of personal laws is a violation of fundamental rights guaranteed by the Constitution in Articles 14, 15, and 21, which deal with the right to life with dignity and equality. The Supreme Court has recognized that women’s empowerment is the most critical path to a country’s development and cannot be neglected unless the country’s progress is jeopardized. While various rulings have knocked down several discriminatory practices in personal laws over the years, there is still a need to codify them in order to make the law unambiguous on such topics and the legal process easier for women to access. It is critical to ensure that the enjoyment of each woman’s fundamental human rights does not become a legal battle.
Gender inequality is a major issue in Indian society. Despite a constitution that guarantees equal rights to men and women, as well as decades of legal precedent, some deep-seated gender discrimination in India has had a catastrophic impact on women’s lives. Despite legislative restrictions, regressive customs such as dowry and child marriage are still common in rural India today. The Parsis have the most unjust inheritance rules in the country, and Muslim customary traditions are highly discriminatory, with daughters and others, such as widows, being at the bottom of the succession order. Furthermore, gender inequality is not exclusive to women; it also affects men and transgender persons. Domestic abuse against men is frequently neglected in India. It gives a false idea that men can only be perpetrators, not victims. Domestic violence, which is still prevalent in our culture, necessitates certain laws and regulations to protect both spouses. We need to construct a new social conditioning and thought process for both sexes regarding the rights and duties they must follow, as well as follow up on existing laws and formulate new legislation. It can only be accomplished through the creation of a universal civil code that places a strong focus on gender equality and human rights.
Author(s) Name: Sreeya Sengupta (Institute of Law, Nirma University)