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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.

1
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
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."

5
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 non-
state ‘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.

7
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 anti-
women 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.

8
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)

9
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.

10
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.

11
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”.

12
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