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
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
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 is an alliance or legal contract between partners acknowledged socially
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
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
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.
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.
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 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 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
Maintenance under Hindu Law
Section 24 of Hindu Marriage Act deals with maintenance. This clause also
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
Hindu Adoption and Maintenance Act provides for maintenance. It defines maintenance as
food, clothing, residence, education and medical attendance and treatment
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,
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
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.
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.
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
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).
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.
- Paras Diwan - Family Law, Allahabad Law Agency
- R K Agarwala - Hindu Law, Central Law Agency, Allahabad
- Constitution of India
- Dissolution of Muslim Marriage Act,1939
- The Hindu Succession Act,1956
- Muslim women (protection of right on divorce) Act, 1986
- Criminal Procedure Code, 1973
- The Hindu Succession Act, 1956
- The Indian Succession Act, 1925
- The Hindu Marriage Act, 1955