Date:10/08/2003 URL: http://www.thehindu.com/2003/08/10/stories/2003081000131400.htm

Opinion - News Analysis

Laws of inequality

PERSONAL LAWS govern marriages, divorce, inheritance, succession, custody and maintenance. They govern a woman's rights to equality at home. In varying degrees, the personal laws of different religions subvert women's constitutionally guaranteed right to equality.

Hindus, Sikhs and Jains are governed by the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. Although the law prohibits bigamy, the practice continues among Hindu men. A Hindu woman who seeks divorce or demands maintenance on grounds that her husband has contracted a bigamous marriage must prove that he has married again. Since marriages under the Hindu Marriage Act are not automatically registered, it is hard to prove.

The Hindu Succession Act gives Hindu women an equal right to parental property (while providing separately for inheritance rights of matrilineal communities and joint families) in the absence of a will; but lawyers say that despite this, women sign away their right to their father's property at the time of marriage accepting dowry as a recompense for a share. Women are also reluctant to exercise their right for fear of causing a breakdown in the relations with their natal family.

The Hindu Succession Act makes provision for a Hindu Undivided Family to ensure that property remains with the male line of descent. A son gets a share equal to that of his father; a daughter gets only a share in her father's share. She cannot reside in the family home unless she is single or divorced, and cannot claim her share of property as long as the men of the family continue to live in it. A woman's right to agricultural property is also similarly restricted to "prevent fragmentation of landholdings." And a Hindu woman has no right to her matrimonial home, unless she can prove that it was purchased with her earnings.

Some Muslim laws have been nominally codified in the Shariat Act, 1937, the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of rights on Divorce) Act, 1986.

The Shariat Act states that Muslim Personal Law will govern Muslims and that law has priority over custom. In practice, personal law is based mostly on the interpretations of the Quran. There are four schools of jurisprudence and many more legal traditions, which produce different interpretations.

The 1939 Act restricts Muslim women's right to seek divorce, by placing conditions that did not exist in Islamic law and are difficult to prove, such as cruelty and impotence. But a Muslim man has the right to unilateral divorce of triple talaq. Women's right to property under Muslim law does have Quranic sanction but is limited to half of what their brothers get. However, the 1937 Act categorically denies women any right to agricultural land. This has been accepted in secular laws such as the Zamindari Abolition Act. Polygamy among Muslims remains an issue. Muslim personal law makes the man the sole guardian of a child.

Personal laws applicable to Christians — the Indian Christian Marriage Act, 1872 and the Indian Divorce Act, 1969 — were the earliest to be codified. Amendments to them in the last few years have made them the least discriminatory. The Indian Divorce Act was amended to give women and men equality in seeking divorce. However, where couples divorce with mutual consent, they have to wait out a two-year separation, while people of other faiths seeking divorce by mutual consent have only a one-year requirement.

Although there was an all-church consensus on the changes, the Roman Catholic Church does not accept divorce under the Indian Divorce Act. Couples seeking to remain within the church — wishing to receive the Holy Communion or remarry in the church — have to seek an annulment which can take years.

There is one area of uniformity in inequality among Indian women, with the exception of those governed by the Goan laws. They have no right to their matrimonial home. Many of the problems arising from a breakdown of marriage are compounded by the fact that a woman is either left without a roof over her head or is forced to depend on relatives.

A.M.