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Women in Hindu and Islam

Communal harmony and religious brotherhood have been observed and sustained as the sacramental duty by the people of India. Being home to many cultures and religious faiths led to different personal laws in the country. Two major branches of personal laws that governs the citizens are Muslim and Hindu law. These laws have been in force in the country long before the commencement of the Constitution and finds its validity till date under Article 372.

The policy of upholding the personal rules of Hindus and Muslims in family matters was so strictly adhered to that it was affirmed by Cornwallis in the Preamble to Regulation III of 1973, which stated that the government's goal was to maintain the Indian Shastras and the Quran in matters to which they were inevitably applied.

In almost every society and history, women have been marginalized for a long time without being governed by any legal framework. Law was initially intended as a method for reforming our social condition, based on the Western philosophy of the Enlightenment. On the basis of Aristotle's natural law, Locke, as well as Rousseau, argued that it was natural for a woman to be subject to her husband.

Therefore, as a naturally free and fair human, she cannot be seen. Similarly, the rule of Manu regulated in the South East Indian customs,' as daughters ought to obey their fathers, as wives obey their husbands, and widows obey their sons

Women in Hinduism

Brahman created woman, according to the Hinduism, in the sense of imaginative duality to provide men's ventures and support procreate, progeny and family relations. If we research ancient history, we find that women held top religious and social roles in the Vedic era.

On the other hand, a woman has minimal independence according to tradition. In a household governed by male members, she is a dependent individual. For those who see women as land, Manu Smriti preaches more restricted norms.

Women in Islam

Islam is the first religion in the world to accept and grant women all the rights that men have enjoyed. Islam has liberated women from slavery and has given them equal treatment and recognized their individuality as human beings. By instituting right of land, possession, inheritance, schooling, marriage and divorce, Islam improved the status of women.

The Quran has issued a radical argument that the rights of men and women are equal to their responsibilities. It made an open declaration of gender equality.

Marriage Laws:

Marriage is an alliance or legal contract between partners acknowledged socially or ritually, typically having social or legal responsibilities between the person concerned and any offspring that he or she may bear. It is often considered as a contract. Constitution of India guarantees Right to Marry as a part of Right to life under Article 21. Right to marry also finds recognition under Article 16 of Universal Declaration of Human Rights,1948.

Marriage in Hinduism

In the year 1955 four separate statutes, generally known as a Hindu Code Bill, gave the right and privileges to Hindu female women. The act brought about fundamental reforms in the Hindus marriage practice. It provides the provisions for Hindu Marriage and its registration. Sec 5 deals with the essentials for a Hindu marriage, Sec 7 deals with the ceremonies and Sec 8 talks about the Registration of the marriages.

The Hindu notion of marriage is completely divine and the matrimonial union is unbreakable and even a husband's death cannot set the wife free from the marriage bond. The Act while retaining the sacred essence of marriage, granted tremendous relief and privileges denied to women historically.

Marriage in Islam

Marriage between Muslims is not a sacrament, but merely a civil arrangement but solemnized by reciting some Qur'anic verses. In India, weddings between both sets of Muslims are usually solemnized by people who know the law and are called Kazis or Mullas.

Islam has granted equal rights to both man and woman. The spouses are equally dependent; they are created for each other to live in harmony and coexistence. As the Holy Quran says,

HE created you from a single soul. (Q3:36)

Women's marriage problems are embedded in her image as a dependent that is passed to her husband from her father's custody, but women enjoy equal rights of option or preference in compliance with Islam. The Muslim woman is free to make marriage decisions and her approval is important to the legitimacy of the contract of marriage.

Islamic law respects and offers women an equal role as autonomous and active members of society. Even after marriage, Muslim wife maintains her distinct personality and she never takes on the name her husband. Islam has treated women with respect and dignity.

Hence marriage as a civil contract invest the wife with more rights under the Shariat law, in addition to those which they already possesses, e.g. right to maintenance in keeping with her status, right to be treated equally and justly if the husband has more than one wife.

She has a right to claim dissolution of marriage on the specified grounds, she is entitled to dower and can refuse co – habitation if it is not paid. Right to be provided with a separate sleeping apartment, right to visit and be visited by her parents or children by a former husband with reasonable frequency and right of inheritance are acquired.

Mahr:
It is the obligation, in the form of money or possessions paid by the groom, to the bride at the time of Islamic marriage .While the mahr is often money, it can also be anything agreed upon by the bride such as jewellery, home goods, furniture, a dwelling or some land. Mahr is typically specified in the marriage contract signed during a marriage.

Divorce Laws:

Divorce is a legal process in which the married couples determine that all vows exchanged during the religious celebration of a marriage will be divided and dissolved. The divorce in India remains a bit of a taboo, and particularly for women who take the move towards divorce is considered a social stigma.

Divorce in Hinduism

The laws of Dharma Shastra did not include divorce because marriage was seen as an indissoluble relationship of husband and wife. Divorce was introduced into Hindu Law for the protection of helpless women when they were ill-treated. In the present act the Hindu marriage and divorce law are modified vitally and dynamically. Under section 13 of the Act, it is set forth specific rules for divorce. Sec.14 makes it very difficult to grant divorce because it provides that no appeal for divorce can be made within one year of marriage where the situation is an exceptional problems for the applicant or exceptional depravity for the respondent.. Section 15 carries down limits on the freedom to marry again to divorced persons.

Divorce in Islam

Islam gives unilateral rights to a husband to pronounce divorce on a wife without justification or cause. The right to divorce (talaq) enjoyed by husband in Muslim law, had come under much hammering and criticism in the case of Mohd. Ahmed Khan v. Shah Bano Begum,1985 (3) SCR 844 (Shah Bano case). Under the Muslim law, matrimonial union is a civil contract and can be terminated like other contracts by mutual agreement of the parties, but man, in Shariat, has some superiority over women to divorce her under certain formalities even against her will.

If the marriage was consummated, wife may marry another person after the completion of iddat, if the marriage was not consummated; she is free to marry immediately.

If the marriage was consummated, the wife entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred. If the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half that amount. If the marriage was consummated, the wife entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred. If the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half that amount.

The divorced wife is entitled to maintenance and lodging till her period of iddat expires.

Khula and Mubarat are two forms of divorce by mutual consent. Khula means redemption and Mubarat means mutual separation, are two forms of divorces by the wife with the consent of her husband.

The divorced wife is entitled to get maintenance from her former husband till she observes iddat which varies to different period in different cases as has already been stated previously.

It is evident that there is no provision for the maintenance of a divorced wife in Muslim law after the period of iddat or the period after delivery and suckling of the child.

Maintenance

Maintenance rights are contained in personal law. According to the Criminal Procedure Code, 1973 maintenance provisions are not only given to women and minor children but also to parents who are homeless or separated wives. In compliance with respective personal legislation maintenance may be asserted.

Maintenance under Hindu Law

Section 24 of Hindu Marriage Act deals with maintenance. This clause also stipulates that the submission shall be disposed of in favor of the wife or husband, where appropriate, within 60 days of the date on which the notice is served, as applicable. Also, section 25 of The Hindu Adoption and Maintenance Act provides for maintenance. It defines maintenance as provision for food, clothing, residence, education and medical attendance and treatment" and in case of an un married daughter, the provision provides for reasonable expenses for her marriage. According to Hindu Law, the man has personal obligation to maintain his wife, children and parents. Section 18 of Hindu Adoption and Maintenance Act extends two main rights to the woman i.e., separate residence and maintenance. A widow is also empowered under section 19 of the said Act to be maintained by her father-in- law after her husband’s demise.

Maintenance under Muslim Law

Muslim women’s right to maintenance is governed by two statutes, namely, Dissolution of Muslim Marriage Act,1939 and the Muslim women (protection of right on divorce) Act, 1986. In compliance with the Muslim rule, it is the responsibility of the husband to maintain his wife regardless of her debt to husband and the wife’s right to maintenance is a priority above all other people.

Maintenance also known as Nafkah, encompasses food, raiment and lodging as well as other important livelihood necessities. Though it is mandatory for husband to maintain his wife during the iddat period, maintaining his children is only a personal obligation and not legal. A widow is not entitled to any maintenance from her husband’s estate apart from what she inherited when her husband was alive.

Inheritance And Succession

Religion plays an important role in the inheritance of women's land, since religious personal rules are largely governed by the scriptures of certain faiths. Separately codified to numerous faiths, the succession laws disregarded and granted women an inferior status. In India, the succession to property is based on religion of Hindus and Muslims according to The Hindu Succession Act, 1956, The Indian Succession Act, 1925, and The Personal Law of Muslims.

Inheritance and Succession under Hindu Law
The Hindu Succession Act,1956 converted a woman’s right of inheritance and succession into an absolute right. The 1956 Act of Hindu Succession establishes its law of succession on the principle of propinquity, that is heirs' choice on the basis of relationship proximity. The 2005 Hindu Succession (Amendment) Act aims to make two substantial changes to the 1956 Hindu Succession Act.

Firstly, as presented in section 6 of the original statute, it proposed the abolition of gender inequality. Secondly, it suggested the omission of section 23 of the original act that did not let a female heir, who is entirely occupied by a joint family, to seek a division in respect thereof, before such time as the male heir chooses to split its respective share. The narrower and limited connotations of "stridhan" were replaced by a larger and expansive definition by integrating Section 14 into the Act in order to recognize their full property rights.

Inheritance and Succession under Muslim Law

The Muslim Law of inheritance and succession originated from the verses of Qur’anic, therefore had divine origin. It also takes into account the Prophet's tradition, and some of the pre-Islamic traditions accepted by the Prophet. In fact, the prophet was a great social reformer well before his time and he had instituted monumental changes in all facets of the private and public life over the course of about 23 years. Islam is the first religion that grants women heritage rights.

In the Holy Qur'an, children are granted inheritance rights by their parents, women have a right to inheritance to husbands & mothers have right of inheritance from children. The holy prophet provided women protections through the creation of property rights, ownership and inheritance. Islam modified women's status in an unforeseen manner by granting women the right to inheritance.

The daughter is a primary heir; she always inherits in one of two capacities. A single daughter or two or more daughters, without a son (or sons) she inherits as an agnatic heir. The daughter’s share is equal to one half of the son’s; she however always has full control over this property. It is legally hers to manage, control, and to dispose off as she wishes in life or death.

Mother is entitled to 1/3 share of her son’s property (when there are no children) will get 1/6 share of her son’s property (when there are children), maternal grandmother will get 1/6 share (only if there is no mother or grandfather), paternal grandmother gets a share of the total property (only if there is no mother or grandfather).

Conclusion
Although women in India obtained the necessary constitutional right to equality between men and women and their right to life and independence, that ensured a dignified and fair status with a male under the Indian constitution. In fact, yet they are considered to be in violation rather than in conformity. In India, the personal laws regulate women's lives in particular. Men's male supremacy and women's unequal representation are influential topics that interlink with much of India's personal religious rule. While in society all women experience the same sexism or similar discrimination, their personal laws differ ironically.

Bibliography
  1. https://shodhganga.inflibnet.ac.in/bitstream/10603/148573/11/11_chapter%206.pdf
  2. Paras Diwan - Family Law, Allahabad Law Agency
  3. R K Agarwala - Hindu Law, Central Law Agency, Allahabad
  4. Constitution of India
  5. Dissolution of Muslim Marriage Act,1939
  6. The Hindu Succession Act,1956
  7. Muslim women (protection of right on divorce) Act, 1986
  8. Criminal Procedure Code, 1973
  9. The Hindu Succession Act, 1956
  10. The Indian Succession Act, 1925
  11. The Hindu Marriage Act, 1955

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