Effect Of Marriage On Women’s Rights And Status - A Comparative Study Of Indian

Laws

Duteous girls obeys her father

And the husband sways the wife

Son controls the widowed mother

Never free is women’s life

It is particularly the personal laws of each religion that influence and largely governs the
lives of women. Her virtues, vices, strengths and her weaknesses are assumed on religious
practices and traditional norms. In all personal laws, the one common feature is that they do
not provide, in full measure, equal rights to women. These personal laws perpetuate the
secondary status of women within the family as well as continued social and economic
dependence of the women upon the male members of the family, i.e. fathers, husbands, or
sons. They are under the influence of their parents before marriage and their husband after
marriage. The women in Indian society never got a fair share. Discrimination against the girl
child starts from the mother’s womb and continues thereafter. Under each set of personal
laws, male privilege is strongly entrenched under the rationale of ‘traditions’ and ‘scriptural
sanction.

Introduction: Women’s Rights

Women’s rights are the rights and entitlements claimed for women and girls of many societies
worldwide. In some places, these rights are institutionalized or supported by law, local
customs, and behaviour, whereas in others they may be ignored or suppressed. The subject of
dissimilarity between man and woman is not a new question, which might have cropped up
during our time. It is at least 2,400 years old. Aristotle, himself a male said that, “male is by
nature superior and the female inferior and while one rules and the other is ruled”.

“Thank Heaven for Little Girls”- The lyrics to Maurice Chevalier’s most enduring song
describe an idyllic view of little girls and the women they become. There is much in our art
and literature that romanticizes girls and women and the role they play in our culture. But
sadly, in our world today, being female often means being sentenced to a life of poverty,
abuse, exploitation, and deprivation.

What Rights Are Included under the Umbrella of Women’s Rights?

Mary Wollstonecraft, Judith Saigent Murray and Margaret Fuller were early writers who
maintained that Women should have equal rights and be considered as equals of men. Mary
Wollstonecraft has been called the first ‘Feminist’ or the ‘Mother of Feminism’.

Women’s rights movements are primarily concerned with making the political, social and
economic status of women equal to men and establishing legislative safeguard against
discrimination on the basis of sex. Women’s rights movement have worked in support of
these aims for at least two centuries from the feminist publication in 1792, titled ‘A
Vindication of the Right of Women’ by Mary Wollstonecraft in Britain. This book is regarded
as the foundation texts of liberal feminism. As the twentieth century approached, the ideology
of women’s rights movement began to change course. Charlotte Perking Gilman noted that
the ‘political equality demanded by the suffragist was not enough to give real freedom.
Women whose industrial position is that of a house-servant or who do not work at all, who
are fed, clothed and given pocket money by men, do not reach freedom and equality by the
use of the ballot’.

Women’s Rights in Hindu Laws

Hinduism is the oldest religion in the world and its laws have the oldest ancestry but unlike
other religions it does not claim any prophet. The Hindu seers and sages regarded the law as
revelations of God and therefore it were given the highest respect in the society. Hinduism,
because of its extreme diversity throughout the ages, has encompassed manifold systems of
complex thoughts and customs. There are two views as regards the origin of Hindu Law.
According to the first view it is of ‘divine origin’ while the other states that Hindu law is
based upon ‘immemorial customs and usages’. Law was regarded a dynamic force in the
society. It was believed to feed the needs of time and to keep pace with the growing
complexities of society. It was flexible and was subject to changes, amendments, repeals,
conforming to the requirements of the age. As widely believed and accepted law changes
with time. Hindu Law in its current usage refers to the systems of personal laws; Marriage,
Divorce, Adoption, Maintenance and Inheritance.

According to Hinduism, the female was created by Brahma as part of the duality in creation,
to provide company to men and facilitate procreation, progeny and continuation of family
lineage. Women in Vedic period enjoyed great respect and dignity. The Vedas suggested that a
woman’s primary obligatory duty is to help her husband in performing obligatory duties and
enable him to continue his family tradition. She was considered as two aspects of one person.
But women in the form of wife occupied pre-eminence in ancient Hindu traditions. The
Hindus believed in dual worship such as Radha and Lord Krishna and Sita and Rama etc.
which is the vogue even during present days. During the age of the Dharma Shastras,
patriarchal system gained strength which marginalised the role of women. The social customs
and traditions which were reinforced by the law givers gradually degraded women. These
laws deprived women of her equal status with men & there was no sense of justice or equality
in these laws with regard to marriage, divorce, property rights and right to inheritance. This
gave birth to greatness of son ship. Kautilya’s Arthashastra records a number of restrictions
that were imposed on women. The other great law maker is Manu, according to whom
women by nature is wicked, susceptible to passion and infirmities. Marriage became
compulsory and unbreakable, without divorce. According to Manu: her father protects (her)
in childhood, her husband protects (her) in youth, and her sons protect (her) in old age; a
woman is never fit for independence.

Discrimination against women during the Buddhist period continued & women’s position in
society further deteriorated during the medieval period when sati, child marriage and ban on
widow remarriage became part of unbreakable accepted social order. She became the
dependent entity, in a household dominated by males.

Bhakti Movement tried to restore women’s status and raised its voice against various forms of
oppressions.

Under the British Rule in India, position of women underwent radical change such as
Widows’ remarriage, Abolition of Sati etc. In 1917, the first delegation of women met the
Secretary of State of the British Government and demanded political rights for women &
proposed for reforming the Hindu Law, particularly relating to property. The Parliament of
independent India enacted a number of statutes, designed laws to improve the social and legal
status of Hindu women in the society. The Constitution which came into force in 1950,
guaranteed certain basic human rights, called fundamental rights, to all citizens of India.
Article 14 of the Constitution recognizes women as a class conferring on women equality of
status and protecting her against violation of this principle. Article 15 protects from
discrimination. The constitution of India guarantees equality of status, equality of
opportunities in all respects. It prohibits discrimination on the basis of religion, race, caste,
sex, descent, place of birth and residence.

The main sources of Hindu Law which includes marriage, adoption, and inheritance were
srutis, smritis, commentaries and digest, judicial decisions and legislations and customs. The
principal commentaries are Dayabhaga and Mitakshira, the former is regarded as commentary
but the latter is a school of law. Dayabhag is a digest on the leading smritis.

According to age old concept, marriage is an essential instrument for achieving the aim of
life. Marriage is among the oldest institutions of Hindus & ‘Kanyadan’ a pious and religious
ceremony to performed. There are eight forms of marriage, four prehensile and four
reprehensible. The Hindu Marriage Act of 18th May 1955 made many changes in the Hindu
Law of marriage and brought uniformity. It prohibited bigamy and recognised inter caste
marriages and made monogamy compulsory. It recognised all forms of marriages even
without any formalities and made registration essential. It gave the right to divorce for the
first time which was not known to Hindu society. The Amendment Act of 1976 introduced
divorce by mutual consent, more grounds were added for obtaining divorce and the wife was
granted additional grounds for divorce.
Remarriage of divorcee and widows have been legalised and validated which was
unthinkable prior to the passing of this Act. Monogamy has been imposed in all personal
statutes except Islam. Although bigamy has been made punishable under Hindu Law, it is
neither a cognisable offence nor liable for any heavy punishment.

Under a Hindu Law a person has personal obligation to maintain his wife, children and aged
and infirm parents. The object of maintenance is to prevent immortality and destitution and
ameliorate the condition of women and children. The Hindu Adoption and Maintenance Act
of 1956 gives a long list of those entitled to maintenance. This includes separate residence
under certain circumstances. Even a daughter whether legitimate or illegitimate can claim
maintenance under certain circumstances. The law of adoption for Hindus is also very
comprehensive and covers almost all aspects. A Hindu female can adopt under certain
condition and male or female both can be adopted.

The Hindu Succession Act, 1956 marks a new era in the history of social legislation in India.
A vigorous attempt has been made to bring some reforms of far reaching consequences in the
system of inheritance and succession. The law in these areas needed complete overhaul as
some of the legal provisions under the old textual law had become obsolete, eg. non-inclusion
of female heirs to inherit the property and giving preference to the male heirs. The law in this
respect needed some revolutionary changes so as to recognize the long felt right of
inheritance of Hindu female. The Hindu Succession (Amendment) Act of 2005 has brought
radical changes in the existing law of succession. According to section 6 of the Succession
Act of 2005, daughters have also become coparceners in the Mitakshara joint family. A
daughter has been given the same rights as that of the son. Proviso to the section 6, gives a
list of women which includes widows and even mothers. According to section 14 of this Act,
property of a female Hindu remains as her absolute property acquired by her in any manner.
Mitakshara system prevails in whole of India except Bengal and its adjoining parts and where
Dayabhaga system prevails. Today property rights of Hindus are governed by Hindu
Succession Act of 1956. The Hindu Succession Amendment of 2005 lays down a uniform and
comprehensive system of inheritance and applies to all, irrespective of the school they belong
to. All these Acts and Amendments have put the daughters on the same position as that of the
son.

Fundamental changes brought by The Hindu Succession Act, 1956

In old law there was a distinction between male heirs and female heirs, but the Hindu
Succession Act, 1956 makes no such distinction between male and female heirs and brings all
the schools into a uniform legal ecosystem. This Act combined stridhan and women’s estate
and devised a simplified system. Under the old law, there was no right to certain female heirs
to succeed to the interest of a Mitakshara Coparsenary, but the H. S. Act, 1956 has given the
right to a certain female heirs to succeed to the interest of a Mitakshara Coparcener. Stridhan:
- Stridhan means properties of women over which he has absolute power of disposal. This
right is being enjoyed by women since Vedic age but all the property acquired by her is not
stridhan. According to Mitakshara School, stridhan has been divided into Saudiyika over
which she has absolute power and asaudiyika, which can be alienated with the consent of the
husband only. Section 14 of the Hindu Succession Act 1956 provides that every property
which is in her possession is her absolute property over which she has rights to alienate.
Even, though this Act is so progressive and puts a daughter on footing with the son, yet
section 6 of the Succession Act of 1956 has been under criticism for discrimination. This
section relates to the devolution of interest in coparcener property as it violates of the Indian
Constitution which guarantees equal rights to own property. In section 6 of this Act, there are
only four primary heirs namely son, daughter, widow and mother. For the remaining eight the
principle of representation goes up to two degrees in the male line of descent but in the
female line of descent it goes up by one degree only. Some states have amended this section
to remove the deficiencies in this Act.

The various sections of this Succession Act of 1956 and various other amendments become
operative only when the property owner, father or husband dies intestate that is without
executing a will. In case the will has been executed, the property of the deceased shall be
divided according to the provisions of the will unlike the Muslim Law where the share
holders get their shares as fixed by the Shariat Law. The testator can give only a portion of
the property to anyone, even to a stranger but the rest of the property devolves on the rightful
claimants according to the Shariat Law.

Secondly, law against bigamy should be made stricter and cognisable since in mostwof the
cases wives, for fear of estrangement or economic dependence or for manywother
considerations usually do not report the matter to the police. Consequently most of the
bigamous husbands go scot free. Besides this, keeping another woman is not an offense if
both are willing partners. There were several reforms in Hindu law which attacked wrong
customs and improved the status of women; but not to the extent it was desired. The
influence of patriarchy and casteism in the Hindu society were the stumbling blocks.