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Gender Inequality In Various Religious Personal Laws In India

Family law or personal law consists of family or personal matters like marriage, dowry, dissolution of marriage, guardianship, adoption, maintenance, gifts, wills, inheritance, succession, and so on.

In India, religion and personal law are largely interlinked. So, Hindus, Sikhs, Jains, and Buddhists follow Hindu family law (Sikhs have their marriage law but are covered under Hindu law for other family matters); Muslims, Christians, and Parsis have their laws; and other traditional communities, like the tribal groups, follow their customary practices or customary laws. The Hindu law, the Sikh marriage law, the Parsi law, and the Christian law are codified or passed by the Indian Parliament as acts or laws.

The Muslim law is uncodified and is based on the Sharia, which is the moral and religious law primarily grounded on the principles of the Islamic religious text the holy Quran and examples laid down in the Sunnah by the Islamic prophet Muhammad.

There are various provisions in the Constitution of India that are specified for gender equality. The preamble to the Indian Constitution resolves to secure justice, liberty, equality, and dignity of all. Furthermore, Article 14[1] provides equal treatment before the law for every person; and Article 15[2] prohibits discrimination based on religion, race, caste, sex, or place of birth. With the apparent purpose to effectuate these equality provisions, Article 13 states that all “laws in force” in India at the commencement of the Constitution, “in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”[3]

Thus, the idea of equality is strongly emphasized in the Constitution. However, exceptions exist too, for example, Articles 25[4] and 26[5] of the Constitution provide for freedom of religion that includes freedom of conscience and free profession, practice and propagation of religion as well as freedom to manage religious affairs. The religious communities have used these provisions to argue that modifying their family laws would be interfering with their freedom of religion.

The modern family laws were adopted by reconfiguring the traditional religious laws and further based on modern constitutional values. However, complete gender equity has not been achieved.

The instances of gender inequality existing in the present day include:

Marriage

  1. Age of consent for Marriage:
    Section 5(iii) of the Hindu Marriage Act, 1955[6] prescribes marriageable age for the girl as eighteen and boy as twenty-one.

    The Special Marriage Act, 1954[7] also prescribes eighteen years and twenty-one years as the legal minimum for women and men respectively. However, under sections 11 and 12 of the Act, 1955 marriages where one or more parties do not meet the legal minimum age are neither void nor voidable and merely liable to pay fine.

    Muslim Law in India recognizes the marriage of minor who has attained puberty as valid.

    These differences between the age of consent for marriage simply contributes to the stereotype that wives must be younger than their husbands. If a universal age for the majority is recognized, and that grants all citizens the right to choose their governments, surely, they must then be also considered capable of choosing their spouses. For equality in the true sense, the insistence on recognizing different ages of marriage between consenting adults must be abolished.

    The age of majority must be recognized uniformly as the legal age for marriage for men and women alike as is determined by the Majority Act, 1875[8], i.e. eighteen years of age. The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals.
     
  2. Rights of Differently-Abled Persons in Marriage:

    Leprosy is one in many ways that the laws may intentionally or unintentionally discriminate against persons with disabilities. There have been multiple occasions on which a parent with a disability is unable to negotiate custody of children.

    The Personal Laws (Amendment) Bill, 2018, proposes to amend the Christian Divorce Act, 1869, Section10 (iv); the Dissolution of Muslim Marriages Act, 1939, Section 2 (vi); the Hindu Marriage Act, 1955, Section 13 (iv) the Special Marriage Act, 1954 Section 27 (g) and the Hindu Adoptions and Maintenance Act, 1956, Section 18 (2)(c) to remove leprosy as a ground for seeking a divorce or as a ground to deny maintenance. Not only the disease is now curable but it is also common, and maintaining such a provision amounts to discrimination against individuals suffering from this condition.

Divorce

  1. Adultery:

    Adultery is a ground for divorce under Section 13(1) of the Hindu Marriage Act, 1955.

    Under Christian law before the 2001 amendment in the Divorce Act, 1869[9], for a woman to seek a decree of divorce on grounds of adultery was insufficient until she also included cruelty as a ground for divorce. However, in 2001 this was amended and both men and women were given the right to seek divorce on the ground of adultery alone.
    Under Muslim law, adultery is not recognized as a ground for divorce unless it is committed with women of evil repute or leads an infamous life, which is included under cruelty.

    Under Section 32(d) of the Parsi Marriage and Divorce Act, 1936[10] a person can apply for a divorce if the defendant after the marriage has committed the offense of adultery, fornication bigamy, rape or an unnatural offense. However, this ground of divorce is available only when the other spouse applies within two years of discovery of the fact.
    Thus, while all family laws include adultery as a ground for divorce it is important to ensure that the provision is accessible to both spouses.

Practice Of Polygamy

  1. Hindu Law:

    Under Hindu law, bigamous marriages are void and punishable offense under Section 11 & 17 of the Hindu Marriage Act, 1955 read with Section 494 & 495 of the Indian Penal Code, 1860.[11]
     
  2. Muslim Law:

    Practice of Polygamy is permitted in Islamic law but only to the men and is frequently misused by persons of other religions who convert as Muslims solely to solemnize another marriage rather than Muslims themselves.
Various committees like Law commission, Sachar committee in its reports[12] [13] acknowledged that polygamy should be made as a criminal offense and section 494 of IPC should be applied to all communities. And this was not recommended in a moral position but emanates from the fact that only a man is permitted multiple wives which is unfair.

Custody And Guardianship

  1. Hindu Law:
    In the matter of adoption, according to Section 8 of The Hindu Adoptions and Maintenance Act, 1956[14], which requires women to take consent of their living husband to adopt a child is discriminatory and does not pass the constitutional standard of morality. Disallowing women to adopt without the consent of the husband violates Article 14, Article 15, and Article 21 of the Indian constitution.

    There is an unreasonable classification based on gender because a Hindu male adopts freely and no one’s permission is required. By making women incapable enough to adopt just because of gender also undermines the dignity of an individual.

    Section 6 of the Hindu Minority and Guardianship Act, 1956[15] discusses who can be the natural guardian of a minor’s person as well as their property. The section appoints father and after him the mother as the natural guardian of a boy and unmarried girl.

    In the case of Githa Hariharan v. Reserve Bank of India[16], the court held that:
    Whenever a dispute concerning the guardianship of a minor, between the father and mother of the minor is raised in a court of law, the word ―after in the section would have no significance, as the court is primarily concerned with the best interests of the minor and his welfare in the widest sense while determining the question as regards custody and guardianship of the minor.

    The Law Commission in various reports[17] [18] has already recommended that the sub-clause (a) of the Hindu Minority and Guardianship Act, 1956 should be amended and equal rights should be given.
     
  2. Muslim Law:
    In the Muslim law the mother might have custody of the child but the father has the guardianship. Entitling him for the right to take any decision for the future of the child. He has the ultimate authority to decide matters regarding the future of the child be it his/her education, or contracting marriage.

    If both the spouses are earning then the financial responsibility of the child should also be shared. At the same time, the mother should also have the equal right to decide the matter related to the welfare of the minor. She should not only be there to take physical or emotional care of the child but also have equal say in the matters deciding the future of the minor.

Conclusion
Whether or not personal law are laws under Article 13 of the Constitution of India or if indeed they are protected under Articles 25- 28, has been disputed in various aspects. In the absence of any consensus on a uniform civil code government should think to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the constitution of India.

To achieve this, it is desirable that all personal laws relating to matters of the family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law, these should be remedied by amendment.

A series of cases from Sarla Mudgal[19] to the minority judgment in Shayara Bano[20], have urged the legislature to look into the inequalities within family laws because a fair law would always be far more useful than a case by case delivery of justice.

A united nation need not necessarily have ‘uniformity’ it is making diversity reconcile with certain universal and indisputable arguments on human rights.

End-Notes:
  1. India Const. art. 14
  2. India Const. art. 15.
  3. India Const. art. 13.
  4. India Const. art. 25.
  5. India Const. art. 26.
  6. The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India
  7. The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).
  8. The Majority Act, 1875, No. 09, Acts of Parliament, 1875 (India)
  9. The Indian Divorce Act, 1869, No. 04, Acts of Parliament, 1869 (India)
  10. The Parsi Marriage and Divorce Act, 1936, No. 03, Acts of Parliament, 1936 (India)
  11. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
  12. The 18th Law Commission’s 18th Report on ‘Covert’s Marriage Dissolution Act, 1866 (1961), http://lawcommissionofindia.nic.in/1-50/Report18.pdf
  13. Report No. 227, Law Commission of India, Preventing Bigamy via Conversion to Islam – A Proposal for giving Statutory Effect to Supreme Court Rulings, http://lawcommissionofindia.nic.in/reports/report227.pdf
  14. The Hindu Adoptions and Maintenance Act, 1956, No. 78, Acts of Parliament, 1956 (India)
  15. The Hindu Minority and Guardianship Act, 1956, No. 32, Acts of Parliament, 1956 (India).
  16. Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
  17. The Law Commission of India in its 133rd report: ‘Removal of Discrimination Against Women in Matters Relating to Guardianship and Custody of Minor Children and Elaboration of The Welfare Principle’ (1989), http://lawcommissionofindia.nic.in/101-169/Report133.pdf
  18. The Law Commission of India in its 257th report: ‘Reforms in Guardianship and Custody Laws in India’, (2015), http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf
  19. Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
  20. Shayara Bano v. Union of India, (2017) 9 SCC 1.

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