To get daily updates, Join Team Attorneylex’s WhatsApp group.
This article is written by Kritika Soni, a student of National Law Institute University, Bhopal
Since the ancient times, Indian society has been patriarchal, with women always having less rights than men. In personal laws, women face a similar situation. These laws favour men more than women. India is a secular country with people practicing various faiths and religions. There religions govern specific personal rules that apply to distinct sects. In India, different religions such as Hinduism, Sikhism, Islam, Jainism, Buddhism, Jews, and Christians follow different personal laws. Because the Buddhists, Jains and Sikhs don’t have their own personal laws, they follow the Hindu Personal Law.
Both men and women are equal, and both play an important role in the formation and development of their families, as well as society as a whole. Indeed, one of the key issues of the global as well as national women’s movement, has been the fight for equality in the legal sphere. Women have always been regarded an oppressed segment of society in India, and they have been ignored for ages.
Status Of Women Under The Different Personal Laws
There are numerous personal laws in India. The applicability of these rules is generally determined by the religion practised by various cultures. The only common feature of all these different personal laws is that, they are prejudiced towards women and shows favouritism to men.
In every way, ancient Hindu law discriminated against women. The laws governing marriage did not apply equally to men and women. In the Vedas, the nature of Hindu marriage is described. A Hindu marriage, according to the Vedas, is an indissoluble union that lasts for eternity. It is indissoluble in the sense that the woman cannot have another spouse, no matter how harsh, demented or cruel their spouse is. A Hindu has the right to marry under the Hindu Marriage Act of 1955, while a Muslim has the right to marry under Muslim Personal Law. Marriage ceremonies in Hinduism are deemed to be complete only when all of the usual rites and rituals have been done. While Christian, Hindu, and Parsi marriages are considered sacraments, Muslim marriage is considered as a simple civil transaction rather than a sacrament, where there is absolutely no requirement for any sort of religious ceremonies.
Bigamy is illegal under Hindu law, according to Section 494 of the Indian Penal Code, although a man can marry up to 4 wives under the Muslim law. Unlike other religions, Islam promotes marriage strongly. Celibacy, like that of Roman Catholic priests and nuns, has no place in Islam. “There is no celibacy in Islam,” the Prophet remarked. In Muslim law, the wife is entitled to receive a quantity of money or other property equivalent to Mehr from her husband at the moment of marriage or at any time thereafter. Mehr is a duty put on the husband as a symbol of respect to the wife under Muslim Law, whereas the Dahej pratha or the dowry system is one of the most important practises in Indian marriages under Hindu Law, despite being illegal.
The grounds for divorce in Hindu Law are (i) if the husband is found guilty of rape or sodomy (ii) if the husband has married another women while already being married to his first wife, who’s alive (iii) if the girl was not of 15 years when she was married and ends up renouncing the marriage before she turns 18 (iv) if there has been no consummation for a whole year from the date of the order for maintenance under CPC or Hindu Adoption and Maintenance Act has passed against husband.
The grounds for divorce in Muslim Law are (i) failure of husband to provide for wife for at least a period of 2 years (ii) if the husband isn’t meeting the responsibilities of marriage properly (iii) if husband’s been detained for 7 years or more (iv) if the husband has indulged in acts of cruelty.
Polygamy is a sufficient ground for divorce in Hindu law but not in Muslim law, whereby a man can marry any number of wives less than 4 but a woman can only marry one man. Under Muslim law, the position of women is far worse than what it is under the Hindu law as they face more discrimination and more restrictions in seeking divorce.
Christian women could not get a divorce only on their husband’s infidelity; it has to be accompanied with either cruelty, bestiality or sodomy. Christian husbands, on the other hand, might simply declare their wives to be adulteresses and divorce them. These outdated regulations were enacted during the colonial period to protect the interests of British bureaucrats who had lawfully married wives in England but were maintaining relations with a local. It was only last year that the government approved a plan to alter the archaic Christian Divorce Act 1869, owing to pressure from Christian women.
A Hindu woman has more rights than a Muslim woman, according to the provisions of personal laws. The Hindu wife is entitled to give the maintenance amount after divorce from her spouse till she or he dies, according to Sec-18 (1) of the Hindu Adoption and Maintenance Act, 1956. Also, according to Section 125 of the CPC, only a Hindu wife can divorce or be divorced by her husband and the woman is only entitled to receive maintenance on the ground of her not having married another man.
While a divorced woman in Muslim law does not have the ability to seek maintenance after the iddat period and is only entitled to the mehr, the Muslim Women Protection of Rights on Divorce Act of 1986 came into effect, protecting Muslim women’s rights. Women who are unable to support themselves can seek relief from the courts under Section 125 of the CPC.
Because India lacks a uniform civil code, the legislation governing inheritance and property distribution varies depending on one’s religious beliefs. The Hindu Succession Act of 2005 and the Indian Succession Act of 1925 are two key statutes that govern property distribution.
Equal status was granted solely to daughters whose dads were alive when Section 6 of the Hindu Succession Act was amended on September 9, 2005. The Supreme Court, however, declared in Vineeta Sharma vs Rakesh Sharma that daughters whose dad died intestate before the modification date have equal rights to the property. By birth, the daughter enjoys an equal part of the father’s property, according to the Supreme Court. Women from all walks of life applaud the decision, since it removes one of the most significant roadblocks to the gender equality movement.
Directive Principles Of State Policy
In the Indian Constitution’s Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles, the principle of gender equality is incorporated. The Constitution not only guarantees women’s equality, but also authorises the government to take affirmative discrimination measures in their favour. In 1993, India also ratified the CEDAW.
The goal of the DPSP is to establish a “Welfare State.” In other words, the inclusion of DPSP is motivated by the goal of developing social and economic democracy in the state, not political democracy. These are some essential ideas, instructions, or directions for the government to follow when drafting and enforcing the country’s laws and regulations.
Article 39 of the Directive Principles of State Policy includes objectives that are to be secured by the State while making its policies and a couple of these relate to gender as well:
- All citizens, whether men or women, should have a right to a means of livelihood.
- Article 39 (d) – No gender discrimination shall exist and there shall be equal pay for women as well as man for equal amount of work done. For all sectors of the economy, India currently lacks a comprehensive and transparent wage strategy. Gender equality is the aim, while gender neutrality and gender equity are practises and ways of thinking that aid in that objective’s achievement.
- Article 39 (e) – The state must ensure that the health and strength of women workers are not abused, and that they are not dragged by economic necessity into occupations that are inappropriate to their strength, as well as that the health and strength of children under the age of 18 are similarly protected. They should not be pushed to work in inhumane and dangerous circumstances.
Article 42 talks about Securing just & humane work, along with maternity relief and how the state should create certain provisions to make sure that along with the citizens getting easy and humane conditions to work in, the women especially shall be provided maternity relief as well.
Article 44 under DPSPs talks about a Uniform Civil Code in India to make sure that equality between all its citizens can be achieved in its truest sense. Gender justice refers to women’s social, political, and economic equality. It alludes to the end of the patriarchal structure that has pervaded the institution. In the Indian socio-legal context, the implementation of a unified civil code and the question of gender justice are inextricably linked. Women’s empowerment is critical in areas such as social standing, gender bias, health, security, and empowerment. Article 44 requires the state to establish a Uniform Civil Code for all Indian nationals. In India, there is no one civil code, although there is a uniform criminal code. Criminal law applies equally to all citizens, regardless of their religious identity. However, there is no uniformity in civil law, notably in the area of personal law. “The state shall not discriminate against any person solely on the basis of religion, race, caste, sex, place of birth, or any of them,” states Article 15(1) of the Indian Constitution.
This concept of DPSP serves as a model for India’s legislators and administrators, who use it to make policies and laws. They indicate India’s leaders the road that would lead the country to the constitution’s ideal of “justice, social, economic, and political” as enshrined in the Preamble.
- Randhir Singh v. Union of India
By executing a clause that comes into the category of D.P.S.P. (which are not enforceable), the court not only enlarged the scope of its powers, but also constitutionalized the right to “equal compensation for equal work” (mentioned under Article 39-d). It was determined that it applied to both males and women. The act of establishing a wage scale was deemed null and void because of being based on an unreasonable classification. In furtherance of Articles 14 and 16 in light of the Preamble and Article 39(d), the court stated that the principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal pay scales based on no classification or irrational classification, even if those drawing the different pay scales do identical work under the same employer. This judgement proved to be a turning point in the history of Indian judiciary.
- Shayara Bano v. Union of India
A five-judge Supreme Court ruled that the inhumane Islamic practise of Talaq-e-biddat, in which husbands could irreversibly divorce their spouses by saying the word “talaq” three times, was unconstitutional. This practise was demeaning to women’s dignity and equality, as it violated our Constitution’s Articles 14, 12, 21, and 25. CJI Khehar believes that no practise can be justified only on the basis of its lengthy history, and that adequate law prohibiting it must be enacted immediately. Because of its subtle suggestion of religious doctrine ubiquitous across numerous religions, this landmark verdict bolstered the push for gender equality.
- Vineeta Sharma v. Rakesh Sharma
In Vineeta v. Rakesh, the Supreme Court made history by ruling that the Hindu Succession (Amendment) Act, 2005 will apply retroactively. The Amendment changed Section 6 of the Act to reflect the Constitution’s gender equality concept. According to the amendment, the coparcener’s daughter, like the boy, becomes a coparcener in her own right at birth. The decision was written by Arun Mishra, J, and stated that because a son’s right to be a coparcener is by birth, so is a daughter’s right to claim her share in the coparcenary property after the 2005 Amendment, and even if the father was not alive on September 9, 2005, it does not prevent a daughter from claiming her share in the coparcenary property. The Supreme Court’s earlier decisions in Prakash v. Phulavati and Mangammal v. T.B. Raju, which had held otherwise, were overruled by this decision. In this way, the Vineeta Sharma decision reaffirmed the law’s equitable treatment of sons and daughters for succession purposes.
For millennia, women have been exploited. They have been denied an equal footing in society. Women in this period desire to be treated equally to males. Women will only be able to exercise their human rights in letter and spirit if personal laws are unified in the shape of a single civil code containing fair, just, and non-discriminatory provisions. The development of a standard civil code would go a long way toward enhancing women’s rights in India.
Women’s rights have been one of the most disregarded ideas throughout history, as seen by world history. In almost every sector of life, nearly half of the world’s population has been denied equality. This comment proves that equality without gender justice isn’t really equality at all. In the courts, individual women from various cultures have challenged the constitutional legality of discriminatory provisions of personal laws. Even though they deal with concerns like adultery, bigamy, polygamy, and divorce, their main worry is the prospect of forced marriage, homicidal attacks in situations of inter-caste, inter-class, and inter-religious marriages, and property disputes. All of this contributes to the reality of how unequal women really are and how their rights are neglected when it comes to personal laws.
 (2020) 9 SCC 1
 AIR 1997 SC 3021
 AIR 1985 SC 945
 (2016) 2 SCC 36
 (2018) 15 SCC 662