Gender Justice Project M.docx

Introduction There are various religious personal laws in India. But the status of women is of great concern as the religious personal laws portray women in subordinate position to men. Women have to encounter with so many disparities which lead to so many stumbling blocks in their journey. The present paper is focusing on the disparities which a woman faces through the religious personal laws. Due to such disparities there are lots of difficulties to live a life with self-respect and dignity to a woman. These disparities and inequalities hinder the path of woman in the backward direction. Women have to fight against these inequalities to attain something. Things change with the time, but the mind sets of people regarding women is next to impossible to change. Though enough efforts have been made in the civil laws yet existence of personal laws don’t let the women to come out of that to live a life with their own terms and conditions. The task of exploring the connections between patriarchy and other structures within a historical context was pioneered by Gerda Lerner. Lerner emphasised that, there is a need to look beyond economic questions and focus on the control over women’s sexuality and the manner in which reproduction was organized and thus to look for the causes and effects of such sexual c o n t r o l. Ge r d a L e r n e r ’ s e x p l o r a t i o n o f t h e r e l a t i o n s h i p b e t we e n c l a s s a n d g e n d e r , a n d t h e importance of recognising the crucial place of control over female sexuality as a central feature of the subordination of women in the case of early Mesopotamia, has been a pioneering and influential work in studies on gender stratification.

Concept of patriarchy Patriarchy is a social system in which males hold primary power and predominate in roles of political leadership, moral authority, social privilege and control of property. Some patriarchal societies are also patrilineal, meaning that property and title are inherited by the male lineage. The word “patriarchy” literally means the rule of father or ‘patriarch’ and originally it was used to describe specific type of ‘male - dominant’ family. Recently it is used more generally to refer to domination of male, to power relationships by which man dominate women and to characterize a system whereby women are kept subordinate in number of ways. The concept of Patriarchy itself is not a contribution of feminist theories. Many social scientists in the nineteenth century wrote about it as a more civilized or complex form of organization compared to the primitive matriarchies1. Engels referred to it as the earliest system of domination establishing that Patriarchy is “the world historical defeat of the female sex.”2 In this sense, it is said that Patriarchy was a form of political organization that distributed power unequally between men and women to the detriment of women. The Royal Academy of the Spanish Language Dictionary defines Patriarchy as “A primitive social organization in which authority is exercised by a male head of the family, extending this power even to distant relatives of the same lineage.” Carole Pateman writes, "The patriarchal construction of the difference between masculinity and femininity is the political difference between freedom and subjection."3 For me, the concept of Patriarchy includes all the socio-political mechanisms, which I call Patriarchal Institutions, which reproduce and exert male dominance over women. Feminist theory typically characterizes Patriarchy as a social construction, which can be overcome by revealing and critically analyzing its manifestations4and institutions. There is now evidence that the matriarchies these scientists were talking about were not “matriarchies” in the strict sense of the word but matrilineal or matrifocal forms of social organization. While recognizing that there is considerable variation in the role that gender plays in human societies, there are no known human examples of strictly matriarchal cultures. There are a number of societies that have been shown to be matrilineal, matrifocal, matrilocal or gynocentric, especially among indigenous tribal groups. Some hunter-gatherer groups have been characterized as largely egalitarian. 2 See Engels, Frederic, The Origin of the Family, Private Property and the State(1884) 3 Pateman, Carole (1988). The Sexual Contract, Stanford: Stanford University Press, p. 207 4 See for example, Tickner, Ann J. (2001). "Patriarchy". Routledge Encyclopedia of International Political Economy: Entries P-Z. Taylor 1

Fixating on real and perceived biological differences between the two recognized sexes5 , men justify their domination on the basis of an alleged biological inferiority of women. Both feminist and non-feminist thinkers recognize that Patriarchy has its historical origins in the family, the leadership (legal and practical) of which is exercised by the father and is projected to the entire social order – an order that is maintained and reinforced by different mechanisms/institutions, among them the Institution of Male Solidarity. Through this institution, men as a social category, individually and collectively oppress all women as a social category, but also oppress women individually in different ways, appropriating women’s reproductive and productive force and controlling their bodies, minds, sexuality and spirituality mainly through "peaceful" means such as the law and religion. However, often these peaceful means are reinforced through the use of physical, sexual, and/or psychological violence. Combining all of these elements of Patriarchy, it may be defined as: "Patriarchy is a form of mental, social, spiritual, economic and political organization/structuring of society produced by the gradual institutionalization of sex based political relations created, maintained and reinforced by different institutions linked closely together to achieve consensus on the lesser value of women and their roles. These institutions interconnect not only with each other to strengthen the structures of domination of men over women, but also with other systems of exclusion, oppression and/or domination based on real or perceived differences between humans, creating States that respond only to the needs and interests of a few powerful men."

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Most models of Patriarchy only recognize the existence of two distinct and dichotomous biological sexes.

Some aspects, elements or characteristics of Patriarchy are as following: 1. Patriarchy had a beginning and therefore can have an end. Even if we still do not know how exactly it came into being we do know it came about after millenniums of different more egalitarian human organizing. The earliest forms of Patriarchy only began at the most 6 millenniums ago. 2. We also know that there are different models of Patriarchy at different times and in different cultures and places but the lower value given to women and their roles as compared to men and their roles remains constant in all models. In other words, Patriarchy co-exists with very different forms of government and socio religious political organizing such as empires, kingdoms, theocracies, republics, democracies, etc. and can co-exist very well with capitalism, socialism, etc. However, due to the globalization of neoliberal capitalism, almost all existing Patriarchies today can be categorized as capitalist Patriarchies. 3. In all known Patriarchy negative meanings are attributed to women and their activities through symbols and myths (not always explicitly expressed). These symbols and myths are different in different cultures but within each culture they attribute negative meanings to women or the feminine. 4. Patriarchy is made up of structures or institutions that exclude women from participation in, or contact with, spaces of higher power, or what are believed to be the spaces of greatest power economically, politically, culturally and religiously. 5. Despite the above, women are not treated identically in Patriarchy, nor are all women excluded in the same way from spaces of power. In fact this different treatment is a mechanism by which the lack of solidarity and competitiveness among women is promoted. This lack of solidarity and competitiveness among women sometimes escalate to outright contempt for each other, thus ensuring their loyalty to men and male values. 6. Patriarchy is produced by and at the same time promotes, a mindset based on dichotomous, hierarchical and sexualized thinking. This mindset divides reality into two dichotomous categories placing all of perceived reality either into things and acts associated with nature or things and acts produced by culture. Furthermore, everything placed within the category “culture” is overvalued while everything associated with nature is undervalued. By situating men and the masculine under the higher category of culture, and woman and the feminine under

the less valued category of nature, “man” and masculinity become the parameter, model or paradigm of humanity, while the subordination of women is justified based on their alleged inferior "natural roles". 7. In Patriarchy, gender roles and stereotypes may be different in each social class, age and culture but through the mechanisms, structures and institutions mentioned previously, it makes these roles and stereotypes seem natural and universal. 8. In any given Patriarchy all men will not enjoy the same privileges or have the same power. Indeed, the experience of domination of men over women historically served for some men to extend that domination over other groups of men, installing a hierarchy among men that is more or less the same in every culture or region today. The male at the top of the patriarchal hierarchy has great economic power; is an adult and almost always able bodied; possesses a well-defined, masculine gender identity and a well-defined heterosexual identity, adding a few more features by region. For example, in Latin America, for a man to be at the top of the patriarchal hierarchy, that man has to be white and Christian, in addition to the other characteristics shared with Patriarchy’s counterparts across regions. 9. Across Patriarchy’s different models, women are exposed to different degrees and types of violence, some common to all and others specific to each cultural, religious or economic model adopted by the Patriarchy. 10. Patriarchy was the first structure of domination, subordination and exclusion which is recognized as such by History with a capital H (recognized patriarchal history) and still remains a basic system of domination. Ironically, while being the most powerful and enduring system of inequality, it is hardly ever perceived as such even by women themselves. In fact, precisely because the invisibilization of Patriarchy is one of its institutions, even some feminists deny its existence.

An overview of Personal law regime An exploration into gender concerns within family laws in India must begin with the history of personal laws. With its rich and diverse cultural heritage, religious beliefs, and customary practices, India provides a vast, complex, and at times contradictory, field of personal laws where the traditional coexist with the modern. State enacted statutory law and court- evolved case law have reconciled with nonstate ‘people’s law’. The contradictions and confusions which are inevitable in this co-existence make personal laws a challenging field of study, both in terms of legal history as well as contemporary social and legal practices.

Family laws: Customary Usages rather than Scriptural Dictates A popular misconception which shrouds the issue of ‘personal law’ is that these laws are based on religious texts which lay a claim to ‘divine revelation’ and are hence, pre-ordained’ infallible, sanctimonious’ and static. While ‘divine revelations’ can at best be termed as a source of law’ they do not contain ‘law’ as we understand the term today. Divine law-making cannot be termed as a legal system in its own right. It need human interventions by way of interpretation’ application’ and lived-in-experiences of people to transform it into the law of land. Hence it would be accurate to state that the diverse laws regulating family relationships are rooted either in customary practices or in interpretations of divine law by scholars which were later modified through colonial interventions. Some parts of personal laws were subsequently codified into statutes during the colonial and the post-colonial period6. We also need to acknowledge that despite codification, a large segment of Hindu population lives and manages its affairs outside the pale of state laws and regulations. In fact, a Hindu need never interact with state authorities, neither for solemnization of marriage nor for its dissolution, as these can be carried out through customary practices within non-state mediation centers. Similarly, though Islamic law claims its origins to the ‘revealed law’ or the holy Quran, the Islamic Fiqh is based on the knowledge derived from the four sources of Islamic law- the Quran, Sunnah, Ijma, Qiyas. In the Indian context, until the 6

Flavia Agnes, “family law and constitutional claims” P.no 2, (Oxford university press, Delhi,1st edn,2011)

enactment of application of shariat Act in 1937, many Muslim communities continued to follow the pre- conversion community practices and some of these practices were upheld by colonial courts7.

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See the decision in Hirbae v. Sonbae, POC (1853) pp.110.

Personal law and their gender discrimination an overview Women have been treated like Chattel, where the institution exercised sexual and economic control over the woman by denying the right to divorce, denying the right to own property, confining them to perpetual tutelage bypassing the dominant over them from father to husband to son. Manu in his Manusmriti said that, “woman must be dependent upon her father in childhood, her husband in youth and upon her sons in old age. She should never be free.” A woman in a marriage could dissolve the marriage in exceptional situations where her husband has 1) perished 2) died naturally 3) gone abroad 4) impotent or 5) lost caste. Whereas her husband could take on multiple wives, concubines, mistresses etc for the purpose of progeny.

Although the British intervention lead to banning Sati, widow remarriage, prohibition of female infanticide, etc they were also crucial in making women lose their rights over their stridhana. Ever since the Britishers were interpreting Indian scriptures and formulating laws for the Indian society, their interpretations were tainted by the sexual biases propagated by their own religion which lead to antiwomen laws, flaws of Hindu and Muslim laws were highlighted and went on to become infallible principles of family law, for example the Hindu women's right to Stridhana and the Muslim women's right to Mehr which included immovable property were framed and interpreted according to the English principle of limited right of a woman on her estate and of reversioner i.e. reversion of property on death of widow were both incorporated into Hindu and Muslim family laws.

An attempt to restore gender equality was made by drafting The Hindu women's right to Property Act 1937, Dr G.V. Deshmukh was the draftsman of the bill and he aimed at equality between Hindu men and women in respect of property where one

of the provisions ensured that no person would be left out from partition and inheritance on the basis of sex, another clause ensured that devolution of property could also be devolved upon the wife, mother, daughter and wife of a predeceased son along with sons and all would have equal share in the property, another clause women the status of men with regard to property. However this bill was struck down and very withered version of this was passed where the drafted provision of the bill no longer granted women absolute right to property and a limit was imposed on Inheritance of widows which was called the widows estate, drafted provision of daughter's share of her parents property was removed, complete right of married women to Stridhana which the bill originally wanted to restore was overturned and was restricted to the confined extent of widows inheritance rights. The dilution of women’s rights was done under the unsaid motive of consolidation of state powers and developing an integrated nation as the only way there would be consensus and approval for legislation regarding women’s right was by granting them bare minimum rights. Plus when provisions were made to give women the right to monogamous relationship, right to seek divorce, right to non-coparcenary laws and inheritance rights of women they faced opposition from a huge number of people, the list of which included President Rajendra Prasad and Sardar Vallabhai Patel and more, as it was believed that giving women the right to divorce and the right to inherit property would harm the morals of the society and there was nothing women could do about this.

As the integration of British India, the states under Kings rules and the tribals was sought, a lot of the intended party’s pro-woman laws were left behind in the attempt as it was thought to cause problems in integration for example lower caste women had a right to divorce and remarriage before it was denied via legislation. Scriptural

law gave more control to women and her family over Stridhana than men and his family, however the Hindu Succession Act placed the woman’s family on a lower pedestal than the man’s family. These were some of the numerous blows dealt to woman empowerment initially by the government itself under the garb of gender equality.

Not to mention that now since legislations are being passed for women empowerment, men have had to suffer from bias as the law and court’s sympathies now lie with the women and that since these laws being passed men have been discriminated against in court and by laws. There is no provision for a man to seek recourse from domestic violence by his wife, the maximum he can do is levy charges of assault and battery against her. A man cannot seek recourse for rape as the society and law believes that men don’t get raped, only women do which is on its face not a sign of ‘Gender Equality’. Men are assumed to not get molested, eve-teased and harassed as women are traditionally the ones who have had to face these.

Women Rights under Different Personal Laws One can find supremely beautiful words in the scriptures of all religions but at the same time one can also find extremely oppressive, even horrifying words about women in their scriptures. However, our purpose is only to find out what are women friendly in all religious scriptures and also to know whether tenets of various religions create any obstacles in the empowerment of women in all walks of life and spheres of activity. It is not a subjective exercise to prove superiority or precedence of one religion over the other; it is an objective effort to show that religion (by and large) has not been a factor responsible for the overall backwardness of women8. One marked feature of most Religious Personal Laws is that women have fewer rights than men. A common thread woven through all of India’s religious personal law system is the Patriarchal dominance of men and the unequal treatment of women. The history of legislative reforms of Religious Personal Laws in the independent Indian state shows that the goal of gender equality is frequently subordinated to the other political considerations. The so called religious personal laws deny women even formal legal equality in personal relations. Though the law provide for a judicial procedure to enforce the law by way of courts as well as the penalty for violating the law; women being socially and economically subservient are either unaware or enable to enforce these legal rights through courts. Apart from the ongoing struggle for a uniform Civil Code in accordance with the constitutional framework, today the Indian women are fighting for rights in marital property, denied uniformly to them across all religious boundaries. In a country where women continue to be property themselves social acceptance of women’s rights and an equal social status, is difficult to achieve and the road ahead promises to be long and bumpy.

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Gour’s- Empowerment of women and Gender Justice in India- Law Publishers India Pvt. Ltd. –Allahabad- pg 57

Muslim law DIVORCE UNDER ISLAMIC LAW: It is a unique aspect of Muslim law that husband has the unilateral power of pronouncing divorce on his wife without assigning any reason, without any cause, literally at his whim, even in a jest, or in a state of intoxication, and without resource to the court or any other judicial, administrative or familial authority, when no one is present (though Shia law requires two witness), and even in her absence, by just uttering the formula of Talak. What is sad is that it has survived in modern India where we proclaim equality of sexes and enjoin the states to make special provisions for ameliorating the lot of women. There are three main modes of Talaq :Talaq-e-ahsan i.e. a single pronouncement of divorce during a “tuhr”. Talaq-e-hasan i.e. three pronouncements made during successive tuhrs . Talaq-e-bidat i.e. three pronouncement made during a single tuhr either in one sentences or in separate sentence thrice or a single pronouncement made during a tuhr indicating the intention to irrevocable dissolve the marriage. The first two modes of talaq namely talaq-e-ahsan and talaq-hasan gives an opportunity to the husband to reconsider his decision for divorce. In both these cases, divorce becomes absolute after a certain period has elapsed. Talaq-e-bidat or Triple divorce in one sitting was prohibited during Prophet Mohammed’s life time. Divorce given through triple talaq is nothing but sinful form of divorce and has been condemned by the Prophet himself but unfortunately some Muslim men follow this form of divorce.

Gender Discrimination and Social ills in Muslim Divorce:  Islam does recognize the right of both partners to end their matrimonial relationship. Islam, grants the wife the right to dissolve the marriage through “Khula”, if the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the marriage gift he has given her, in the case of the

wife choosing to end the marriage she may return the marriage gifts to her husband.  The divorced wife is entitled to get maintenance from her former husband till she observes iddat. The question now arises as to who will maintain her if she has no supporter and is of old age. A leading case, which kicked up a fierce controversy not only among the legal luminaries but among the people belonging to all walks of life and professing different religions, is that of Mohammed Ahmed Khan Vs Shah Bano. Such cases should be looked at from a humanitarian point of view and such divorced wives, especially old should be treated as destitute women.  Muslim women lay behind in education, hence they mostly ignorant of their rights, they neither know their rights under the shariat law nor the rights confessed by the constitution of India. A vast majority of women were ignorant of neither Muslim women rights of divorce act 1986, nor they anything about section 125 of Cr.P.C.  Consent a marriage was more a kind of ritual than exercising a choice. She does not even have the right to reject the partner of her parent’s choice.

Maintenance under Muslim Law; The personal law statutes governing a Muslim woman’s right to maintenance are the Dissolution of Muslim Marriage act, 1939, and the Muslim women (protection of right on Divorce) Act, 1986. The Muslim law of Maintenance differs from the law of maintenance in most other systems of law, expect wife, in most of the cases the obligation of a Muslim to maintain another arise only if the claimant has no means or property out of which he or she can maintain herself or himself. Under the Muslim law, this is the duty of the husband to maintain his wife, irrespective of her debt against the husband and has priority over the right of all other persons to receive maintenance. Maintenance is called Nafqah, it includes food, raiment, and lodging and other essential requirements for livelihood. Divorced wife right to maintenance: Reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.

A Muslim has a personal obligation to maintain his children but it is not an absolute obligation. A father is bound to maintain his female children until they are married. A Muslim widow has no right to maintenance out of her husband’s estate in addition to what she got by inheritance as his wife. In 1986, The Muslim women (Protection of right on divorce) Act was passed. The Act has consolidated and harmonized the different schools of the Muslim law in the matter of payment of maintenance to the wife on divorce. The preamble of the Act spells out the objectives of the act as ‘the protection of the right of Muslim women who have been divorced by, or have obtained divorce from, their husband’. Sec. 3 of the Act speaks of ‘provision and maintenance’ while Sec. 4 talks only of maintenance. This means that at the time of giving divorce the Muslim husband is required to visualize the extent of the future needs of the wife and make it preparatory arrangements in advance for meeting the same. According to the Sec. 3 of the Act, Mahr or other properties of Muslim women has to be given to her at the time of divorce. While the orthodox view of the husband’s liability to pay maintenance only upto Iddat period finds prominence in this act, the modern trend as reflected in section 125 of the Cr.P.C has also been included making it optional on the choice of both parties. Gender Discrimination and Social ills in maintenance under Muslim law In the matter of maintenance the divorced Muslim wife is not required to be maintained beyond the ‘Iddat’ period. A divorced woman is legally entitled only to her mehr and maintenance for the duration of idaat period settlement. In 1985 the famous Shah Bano judgment on the right of a divorced Muslim woman to get maintenance was pronounced by the Supreme Court. The case was filed by Shah Bano, who had been thrown out of her house by her husband after thirty years of marriage. When she asked for maintenance in the court of the judicial magistrate, she was divorced by her lawyer husband who maintained that he had already given her mehar and maintenance and was not liable to pay any further amounts. The magistrate awarded a princely sum of Rs. 25 per month to Shah Bano and this sum was enhanced to Rs. 179.20 per month by the high court. Not willing to pay even that amount, the husband appealed to the Supreme Court, saying that he was not liable to pay any maintenance beyond the iddat period according to his personal law. The court held that the provision regarding the maintenance will applicable to all communities, that section 125 of criminal procedure code had been enacted in

order to provide a quick and summary remedy to a class of person unable to maintain themselves and further that the religion professed by the party cannot have any repercussion on the applicability on such laws (Bindra, 2007)9

Inheritance and Succession rights of Muslim Women: The body of Islamic law is referred to as Shari’a or “The Clear Path”. This body of law emanates primarily from four sources: The Qur’an, Sunna, Qiyas, and Ijma. The Qur’an is the word of God as recited by Mohammed, his messenger (PBUH). The Qur’an consists of 6219 verses. About five hundred of these are legalistic in tone and some eighty verses deal exclusively with legal topics. The Muslim Law of succession and inheritance has been derived from Qura’nic verses. The tradition of the Prophet and some of the preIslamic customs which were approved by the prophet are also taken into consideration. The prophet was indeed a great social reformer much ahead of his time in his thoughts and in a span of about twenty three years he had introduced monumental reforms in all aspect of private and public life. There is no text in the Quran, no saying of our prophet, which can possibly be held to justify the practice of depriving women of the natural benefits which Allah has decreed for all mankind. The Quran reminds them that they are all one race, one preceding from the other, the man from the women and the women from the man. Before the coming of Islam, women themselves were objects of inheritance; part of the estate to be divided. Women had neither any right of inheritance nor any right to posses’ property since they themselves were considered movable property. Hamid Khan writes in his book, “The Islamic Law of Inheritance”, “Females and Cognates were excluded from inheritance. In certain cases women constituted part of the estate. A step son or brother took possession of a dead man’s widow or widows along with his goods and chattels. The Qur’an abolished this practice. “From what is left by parents and dear relatives, there is a share for men and a share for women- whether the property be small or large –a determinate share.” (Qur’an 4:7)

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Bindra A. Women and human rights. Manglam Publishers and Distributors, Delhi, 2007, 31.

Muslim law of succession is based on Qur’an and therefore, it is a divine law. The law is, therefore, completely different from Hindu Law where a person will acquire right of inheritance even though he may be in the mother’s womb. The law of inheritance provides for fixed shares which take precedence over the succession of the next of kin to the residue. The Verses IV: 1-14 and 176 of the Holy Qur’an deals with the matters of inheritance. Islam is the first religion to give women right of inheritance. In the Holy Quran daughters are given rights of inheritance from their parents, wives have a right of inheritance on husband & mothers have right of inheritance on their children (if they happen to die before her). The holy prophet by instituting rights of property, ownership & inheritance gave women certain safeguard. Islam, by giving woman the right to inherit, changed the status of women in an unprecedented fashion. Sir William Jones observes, “I am strongly disposed to believe that no possible question could occur on the Muslim law of succession which might not be rapidly and correctly answered”. It is an excellent system of formal inheritance. Macnaghten’s remarks are also relevant and deserve consideration. He says, “In these provisions we find ample attention paid to the inheritance of all those whom nature places in the first rank of our affections and indeed it is difficult to conceive any system containing rules more strict, just and equitable.” The Muslim law is uncompromising in the scheme of succession and inheritance unlike other laws. 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 will get 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). Mahr is a sum of money or some other property which the wife is entitled to get from the husband on marriage. It can be fixed at any time before marriage or at the time of marriage. In Islamic law, Mahr belongs absolutely to the wife. It may be either prompt (mu’ajjal) or differed Mahr, in Islamic law, as stated by Mulla, “is a

sum of money or other property which the wife is entitled to receive from her husband in consideration of marriage”. It is not in consideration of proceeding from the contract of marriage but it is an obligation imposed by the law on the husband as a mark of respect for the wife. The amount of the Mahr is decided by the parents or elders of either side, taking into consideration the status of the family and the earnings of the man concerned. Islam has not decided lowest or highest amounts as Mehr. It may range from 100s to 1000s or it could be in kind from a little ring to a heap of gold. If Mahr is not paid, the wife can claim it through court of law. Similarly, widow’s share is fixed i.e. one fourth if he dies issueless and one eight in case husband leaves behind children and it gets precedence over all the inheritance she gets neither less nor more. Whether there are numerous inheritors or none at all. If there are more wives than one, they divide the one fourth or one eight as the case may be, among themselves. A childless widow does not take her share from immovable property of her husband; but she is entitled to her proper share in the valuables of the household effects, trees, buildings and movable property, including debts to the deceased. Among the descendants, daughter finds the first place as a share in the absence of son and inherits one half of the estate on the death of her parents and if they are more than one, they jointly take two third of the estate. According to K.P. Saksena, “A daughter is just as much a co-sharer in the property left by her father as her brothers, only with the difference that her share is half of her brothers”. It would have became evident by now that Muslim women enjoy all rights under the Muslim law and are better placed than their sisters, governed by other laws, either worldly or religious. She suffers no disability because of her sex and enjoys legal and social status. The Holy Quran and the prophet have ordained to treat women with kindness and generosity. These rights were granted to her under religious guarantees more than fourteen hundred years ago when her condition was pathetic, pitiable, and worse than domestic animals.

Gender Discrimination / Social ills in Muslim Inheritance –  Under both the schools, the male generally gets a share twice of what his female counterpart gets. When the son and the daughter inherit together the son gets twice of what the daughter gets. The husband gets 1/4th share and the wife 1/8th share when there is a child and when there is no child 1/2th and 1/4th respectively.  The present practice is that the women as mothers, wives, daughters and widows do not have equal rights, while Qur’an gives equality to them. The customary practices are highly discriminatory and it excluded daughters and others, like widows in the bottom line of the succession order. This practice runs contrary to the Shariat, where a daughter and a widow cannot be excluded by any other heir and also have the protection from the testamentary restrictions.  While most Muslim women (75 percent) were well informed about the share of daughters in inheritance, but when asked about whether (especially married) they had claimed their share (in case not given), most of them had relinquished their share of property to their brothers in the name of emotional attachment. Secondly, they felt the Gift at the time of marriage given to them as well as expenses incurred on their marriage is another form of giving the daughters share.  In most of the cases, Mehr was not given to women not even after divorce had taken place, neither in Khula nor in Fasakah. No divorced women were given maintenance either for themselves or for their children in spite of their persistent approach of Shariat Courts.

Hindu law Inheritance and Succession rights under Hindu Law: The Hindu Succession Act, 1956 marks a new era in the history of social legislation in India. This Act has been passed to meet the needs of a progressive society. STRIDHAN – The word Stridhan is derived from Stri (woman) and dhana (property). The concept of stridhan is as old as the Rigveda. The principal definition contained in Manusmriti is “what was given before the nuptial fire (adhyagni), what was given at the bridal procession (adhyavanamika), what was given in token of love (dattam pritikarmain) and what was received from a brother, a mother or a father are considered as the six fold property of a women”.The Hindu Succession Act, 1956 does not permit to abolish custom in the abstract. Sec. 14,The absolute property belonging to a women was called Stridhana10. According to Apasthamba “the share of the wife consists of her ornaments and wealth which she might have received from her relations”. The references of Rigveda indicate that the woman did hold separate property and had dominion over it. In marriage hymns of the Atharva veda, evidence of giving dowry to bride by brothers or parents is also clear. The Hindu woman of Vedic society did hold her property independently and effectively. Further, she had a right to dispose it off according to her own choice. A Hindu woman, whether a maiden, a wife or a widow has never been denied the use of her property. Even in Manusmriti one can see that right to hold property had been respected. Since ancient times Stridhana was treated as women’s property. There are two systems of inheritance among the Hindus in India, namely, the “Mitakshara System” and the “Dayabhag System”. The Mitakshara System prevails in whole of India except in Bengal and its adjoining parts, whereas the Dayabhag System prevails across the country. According to Mitakashara, the preferential right to inherit is determined by family relationship, while in the Dayabhag it is determined by the capacity of a person to perform funeral rites.

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R.K Agarwala- Hindu Law- Central Law Agency, Allahabad- pg 250

Hindu Law of Inheritance Act 1929 -: This was the earliest piece of legislation bringing woman into the scheme of inheritance. This Act conferred inheritance rights of three female heirs; son’s daughter, daughter’s daughter and sister. The Hindu Women Right to Property Act 1937 The Hindu Woman Right to Property Act 1937 was hailed as opening of a fresh chapter in the history of woman’s right to property. This was the landmark piece of legislation conferring ownership rights of women. The act introduced important changes in the law of succession. This act brought about revolutionary changes in the Hindu law of all schools and brought changes not only in the law of ‘Coparceners’ but also in the law of partition, alienation of property, inheritance and adoption. The act conferred new rights to widows without the right to enforce partition, in the property. . In case of separate property, the widow along with sons are entitled to equal share with that of the son, but the widow did not became a coparcener. . A daughter had virtually no inheritance rights. After passing of the Hindu Women’s Rights to Property Act 1937, this legislative reform was brought out by the British to improve the status of widow. She no longer had to depend on the husband’s family for her inheritance. It was found that the 1937 Act was inadequate to protect the interest of Hindu women and a committee was appointed to prepare a comprehensive Hindu Code. The government had set up Rau Committee to suggest reforms also on this aspect of law. On the basis of the suggestion and recommendations of the Rau Committee several legislations were adopted and the most outstanding of which is Hindu Succession Act 1956, which represented the biggest reformative outlook of modern Indian society. The Hindu Succession Act 1956 has been passed to meet the needs of a progressive society. Inheritance and Succession Rights of Hindu Women-: The Hindu Succession Act 1956 came into force on June 17, 1956. Section 14 c (i) of the act states as follows; “Any property possessed by a female Hindu, whether acquired before or after the commencement of this act, shall be held by her as full owner thereof and not as a limited owner”. The limited interest of Hindu female is converted into absolute rights. The Hindu Succession Act, 1956 bases its rule of

succession on the principle of propinquity, i.e. preference of heirs on the basis of proximity of relationship11. It applies to all the Hindus including Buddhists, Jains, and Sikhs. It lays down a uniform and comprehensive system of inheritance and applies to those governed both by Mitakshara and the Dayabahaga schools of Hindu Law. Despite the passage of The Succession Act 1956, which gave women equal inheritance rights with men, the “Mitakshara Coparcenary” system was retained and the government refused to abolish the system of joint family. According to this system, in the case of a joint family, the daughter gets a smaller share than the son. While dividing the father’s property between the wife, son and daughter, the share is equal. The aim was to end gender discrimination in Mitakshara Coparcenary by including daughter in the system. No female is a member of the Coparcenary in Mitakshara law. The female were allowed to stand on the same podium and to be recognised on equal footing. The Hindu woman could not suppress her feeling anymore and she was responsible to give a new beginning to her subdued feelings. She now wanted property and its enjoyment as full owner at par with men because whatever she enjoyed before 1956 was short of absolute ownership in property. The Hindu succession act reformed the Hindu personal law and gave a woman greater property rights, allowing her full ownership instead of limited rights in the property she inherited under section 14 with a fresh stock of heirs under section 15 and 16 of the act Gender Discrimination & Social ills in Hindu Inheritance: The right of property is important for the freedom and development of a human being. Prior to the act of 1956, Hindus were governed by Shastric and Customary laws which varied from religion to religion, and sometimes it varied in the same religion on the basis of caste. A woman was humiliated, neglected in her own natal family as well as in the family she married into because of blatant disregard and unjustified violation of these provisions by some of the personal laws.  According to the Hindu Succession Act, section 23, denied a married daughter the right to residence in the parental home unless widow, deserted or separated from her husband and further denying her right to demand her share in the house if occupied by male family member.

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S.C Tripathi and Vibha Arora- Law relating to women and children- Central Law Publications, Allahabad- pg 200

 A similar instance of inequality created by law was the establishment of new right to will away property. The act gave a weapon to a man to deny a woman of the rights she earlier had under certain schools of Hindu law. The legal right of Hindus to bequeath property by way of will was conferred by the Indian Succession Act 1925 Section 30. It can also defeat a widow’s rights as well as a daughter right. The right to will away property was traditionally unknown to Hindus.  The provision under section 6 of HSA also contains gender bias. The property of a male Hindu dying intestate devolves according to section 8 of the HSA. The principle of representation goes up to two degrees in the male line of descent; but in the female line of descent it goes only up to one degree. Accordingly, the sons-son and sons-son daughter get a share but a daughters-daughter- son and daughters daughter-daughter do not get anything.

Right to adopt a child under Hindu law: A woman gives a birth to a child but in the matter of adoption Hindu woman had no right to adopt a child on her own. She could not be the natural guardian of her children during the life of her husband. This is something unacceptable to a woman but this is the reality and giving a sense of inferior status of women in the society.

Widows' property rights: A widow has the right to inherit property from her husband's estate, but her husband can transfer the property to a third person through a will and she cannot oppose him. After the death of the husband a woman can be maintain by father in law due to legal obligation if she has coparcenary property and if the woman cannot maintain herself through her parents, children, or their estates. If the woman remarries to someone in that case she cannot get the maintenance from the in laws. If the widow's parents are financially unable to maintain their daughter only then she gets maintenance from the in laws. To get a brief idea about all these obligations and rules we can take an example like if a woman gets marry to a man and she is fully dependent on him for money. If the man died and transferred his property to third party by will. The woman can neither ask for the property nor expect the maintenance from in laws as now she does not have coparcenary

property. Her parents are not legally bound to maintain her because she is not a minor and is married. The law casts an obligation on the husband's heirs (the third party) to maintain the widow. A better resolution would be to restrict the husband's testamentary powers so that he would be obligated to leave a specific percentage of his property for his dependents (Gopal, 1993)12

Guardianship S.6 (a) of the Hindu Minority and Guardianship Act, 1956 clearly states that the mother, after the father would be the minor‟s guardian. Though it was established in Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228) that it would be interpreted as the mother being the guardian in the absence of the father, the discrimination still remains as the mother and the father don‟t have equal status as guardians and the provision should be amended deleting the very use of the word “after”.

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Gopal G. Gender and economic inequality in India: the legal connection. Boston College Third World Law Journal 1993; 13(1):63-86

Changing dimension of personal law and decline of patriarchy



Equal Pay for Equal Work:- In Randhir Singh vs Union of India,[2] while considering the case of drivers in the Delhi Police Force with other drivers in the service of the Delhi Administration and the Central Government, the court expounded the paramount principle of equal pay for equal work holding that:“It is true that the principle of equal pay for equal work is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal Art. 39(d) of the Constitution proclaims ‘equal pay for equal work for both men and women” as a Directive Principle of State Policy. ‘Equal pay for equal work for both men and women’ means equal pay for equal work for everyone and as between the sex Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation”.

Striking Down Condition of Service Of Termination Of Service On First Pregnancy-In Air India vs NergeshMeerza, while considering the service condition which provided for termination of services of air hostesses on first pregnancy, amounts to compelling the air hostess not to have any children and thus interfering with and diverting the ordinary course of human nature. The apex court termed it not only a “callous and cruel act”, but an open insult to Indian womanhood, the most.  Right of Hindu Female over Property Given In Lieu Of Maintenance under an Instrument- The apex court in V. Tulasamma & Ors vs V. Sesha Reddi (Dead) By L. Rs[12] observed that the Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. It also declared that

where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- S. (2) and would be governed by S. 14(1) of the Hindu Succession Act, despite any restrictions placed on the powers of the transferee. 

Recognizing the Right of Hindu Women as Natural Guardian-While interpreting S.6 of the Hindu Minority and Guardianship Act of 1956 in Ms. GithaHariharan vs Reserve Bank Of India, which uses the word ‘after’, plainly meaning thereby the mother’s right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor, the Supreme Court of India held that word ‘after’ shall have to be given a meaning which would sub-serve the intent of legislature towards the cause of welfare of minor and as such the word ‘after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as ‘in the absence of’—be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.  Property Rights of Indian Christian Females: - In Mrs. Mary Roy Etc. vs State Of Kerala, the apex court, while dealing with the property rights of women belonging to the Indian Christian Community in the territories of the former State of Travancore, held that they would now be governed by the Indian Succession Act, thereby giving them right to seek an equal share in their father’s property.  Right of Hapless Muslim Divorced Women to be Maintained beyond Iddat:- In Danial Latifi&Anr vs Union of India, the apex court recognized that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well and which extends beyond the Iddat period and same must be made by the husband within the Iddat period. Further a divorced Muslim woman who has not remarried and who is not able to maintain herself after Iddat period can proceed under the Muslim Women (Protection of Rights on Divorce) Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the

relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the said Act to pay such maintenance.  Scrapping of Triple Talaq:- The apex court recognized the manifest arbitrary nature of Triple Talaq or Talaq-i-Biddat in Shayara Bano vs. Union of India[19] and held that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it and as such same was declared to be violative of the fundamental right contained under Article 14 of the Constitution of India.

References: PRIMARY SOURCES-: 1. Flavia Agnes, “family law and constitutional claims” P.no 2, (Oxford university press, Delhi,1st edn,2011) 2. Bindra A. Women and human rights. Manglam Publishers and Distributors, Delhi, 2007, 31 3. Lalita Dhar Parihar- Woman and Law, Published By Eastern Book Company, 2011, p 13-14 4. Gour’s- Empowerment of women and Gender Justice in India Law Publishers India Pvt. Ltd. Allahabad pg 73 5. Dr Paras Diwan- Family Law Allahabad Law Agency pg 39 6. Mayne- Treatise on Hindu Law And Usage (1996), 14th Edition 7. Anjani Kant- Woman and Law, published by APH Publishing Corporation, New Delhi

SECONDARY SOURCES-: 1. Academica.edu 2. Shodhganga.edu 3. SSConline.com