• PGCL Moot Court Society

PERSONAL LAWS: VIOLATION OF PRINCIPLES OF GENDER EQUALITY

Updated: Dec 15, 2020

- Keval Khona & Rhea Manchanda



India has a rich heritage of law since the ancient era. Indian legal history has faced continuous reform from time to time which consists of the Hindu, Muslim, British Period, and Independent India. The Indian concept of law is based on a welfare state which has become its grand norm after the enactment of the Constitution.

Though history has taught us plausible lessons, we forget to advance those lessons with time and thus enable these mistakes to hover in the future and lead to tyranny among one class and favour another. Even though discrimination is deep-rooted in India, these personal laws provide an extension to the growing evils of discrimination by providing fewer rights to women and encumber policy change. Here are some examples of how personal laws discriminate between the two genders.


Polygamy:


In Islam polygamy is a very contentious issue. It is a manifestation of how Patriarchal interpretation can prevail and dominate[1]. The sanction for polygamy among Muslims is traced to the Quran (iv.3): which states “You marry two, three or four wives, but no more: but if you cannot deal equitably and justly with all you shall marry only one".[2] A Muslim man may marry a number of wives but not exceeding 4 but a Muslim woman can marry only one Husband & if she marries another husband, she is liable for bigamy under section 494 of Indian Penal code & the offspring of such a marriage is illegitimate.

Prophet Mohammad introduced the concept of polygamy to curb the carnal desire of men but with the advancement of time, sexual desire is not the most important element in marriage. Hence, there is no need for polygamy to remain functional in society. It is further submitted that, if the statute allows polygamous relationship then isn’t it violative of the principle of Article 14 of the Indian Constitution which again highlights the very fact that personal laws are biased.


Succession:


Another angle which is similarly convoluted is The Streedhan — Streedhan is the property held by a woman in India and treating the Streedhan on the demise of the spouse is additionally to be reviewed by rolling out appropriate improvements by the Parliament and address these and numerous different issues in the one-sided inheritance law under the Hindu Succession.


The Indian Succession Act, 1925, states that everybody is qualified for an equivalent inheritance, notwithstanding special cases for Hindus, Sikhs, Jains, Buddhists, and Muslims.[3] Under the aforementioned act, the daughter of an individual dying intestate would be qualified for one-fourth of the offer made to the son, or Rs. 5,000/-, whichever is lesser, this sum is additionally named as Streedhan and this privilege prohibits women from any further right in looking for a legitimate division of the properties of the departed.


Gender discrimination is the main factor that the Indian women and daughters are secluded and stay dependent on the male beneficiaries for their share and right in the distribution of the property and offering rise to a disparity in the families and long fights in court.

The idea of Mitakshara coparcenary, in a joint family, is to be evaluated in the light of the current status of a woman who is viewed as equivalent to a man. This is unbelievable and the coordination with respect to the shares in the property under the Hindu Succession Act, 1956 talks all. A daughter will get a little portion of property contrasted with the son.


The father's property is similarly shared among the son and the daughter. Moreover, the son is qualified for a share in the coparcenary from which the daughter is precluded. A great example to clarify this irregularity would be that the daughter can only possess the family-owned house but not own it.

To avoid the long-drawn fights in court and enmity among the beneficiaries of the departed, the law of succession should be revised to give everyone an equal share, regardless of their sexual orientation.


The succession directly by birth should be annulled and the Mitakshara coparcenary should be changed into Dayabhaga,[4] which means equivalent dissemination of not just independent or self-procured properties of the departed male yet additionally of unified interests in coparcenary property.

It ought to likewise consider the daughter of a coparcener in a Hindu Joint Family (HUF) under Mitakshara law to be coparcener by birth just like the son on the benefit to claim in the property in equivalent stakes in the coparcenary property. Likewise, for the Muslims, the law overseeing Muslims and Muslim women in India is under The Muslim Personal Law (Shariat) Application Act, 1937[5].

The Shariat is viewed as the Custom or Usage for the objective of distribution of all properties, barring agricultural land. In the past, Muslims were governed by the regional traditions, laws, and practices where they were domiciled which negated the Shariat in observing the regional customs and laws.

The customary laws were profoundly biased and it rejected daughters and widows, who were at the end of the succession order, this practice negates the Shariat where a daughter and widow can't be prohibited by some other heir and furthermore have shelter from the testamentary limitations. The shares of the daughters and widows are lesser than that of a man.


Divorce:


Under Section 27 of the Hindu Marriage Act, 1955, a family court shall solely determine rights over matters of property in a divorce case if the property is "presented, at or about the time of the marriage, which may be owned mutually"[6] to the couple.

The wife needs to confront serious obstacles while filing the suits for the divorce. To start with, she needs to litigate a divorce petition and then later claim her stridhan which stays in the guardianship of the husband.

In this way, Section 27 of the Hindu Marriage Act, 1955, has again presented another example of discrimination between the two genders.

The provision for maintenance is accessible for both, the husband and the wife, and yet, the court is just responsive towards women as it is found in the case of Radha Kumari v. Nair[7], that the husband can't demand exemption from maintenance regardless of whether the wife was provided for by her parents.


Conclusion:


We have been subjecting ourselves to the anarchism of one-sided. On the bright side, our Legislature has been making an effort to bring gender parity. Some instances of such changes are decriminalization of Adultery and delegalizing triple talaq. Thus, we seem to be on the right path but there are still the aforementioned issues that need to be dealt with to restore the balance of society.

Hence, there is a dire need to regulate the issue relating to gender inequality in family law by implementing the provisions of the Constitution effectively and making a Uniform Civil Code that strengthens the legal structure in society.


Keval Khona & Rhea Manchanda are second year students at Pravin Gandhi College of Law, Mumbai.


(khonakeval911@gmail.com, rheamanchanda1414@gmail.com)

[1] (Mashhour, 2005). [2] (Chawla, 2006). [3] http://www.hellocounsel.com/indian-succession-act-1925-bare-act/. [4] https://www.ijlmh.com/wp-content/uploads/2019/04/Short-Note-on-Hindu-Joint-Family-Under-Mitakshara-and-Dayabhaga.pdf. [5] https://indiankanoon.org/doc/1325952/. [6] https://indiankanoon.org/doc/320503/#:~:text=Section%2027%20in%20The%20Hindu%20Marria ge%20Act%2C%201955&text=27%20Disposal%20of%20property.,the%20husband%20and%20the%20wife. [7] https://www.casemine.com/judgement/in/56b4966e607dba348f018fd0.

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