INTRODUCTION
India: a country with so much population at the same time with so many diversities of religion, caste, culture and faith. People have their traditions and customs in marriages as per their religion. This is so because people have come here from different backgrounds and ethnicities. And all the laws which have been made so far are in consideration of all the cultures and traditions that we are following from ages, so that everyone gets respected and the sanctity of cultures remains intact with the people. That’s why in India, we have personal laws such as Hindu Personal law, Muslim Personal law, Christian Personal law, Parsi law. Under these personal laws, there are other subcategories such as marriage, adoption, succession, guardianship, inheritance, maintenance, religious and charitable donations, etc. Personal laws are broadly based on religion. But if see section 2 of the Hindu Marriage Act[1] applies not only to Hindus but also to Buddhists, Sikhs, Vira Shaiva, Lingayat or a follower of Brahma, Prarthana or Arya Samaj. Though they are not Hindu still they follow Hindu personal law.
Considering marriages and respective personal laws. Laws are codified into different acts under which a person can marry his/her partner. These are the Hindu Marriage Act (1955)[2], The dissolution of Muslim Marriages Act (1939)[3], The Converts’ Marriage Dissolution Act[4] (1866), The Indian Christian Marriage Act[5] (1872), The Anand Marriage Act[6] (1909), The Parsi Marriage and Divorce Act[7] (1936), The Special Marriage Act[8] (1954), The Foreign Marriage Act[9] (1969), etc. Earlier there were not so many inter-religious or inter-caste marriages because of the prevailing social differences in the society. But now in the postmodern era, people have started coming out of all the orthodox mentalities and differences which were prevailing in the society and the society is also now accepting this as a new normal. That’s why we have a special law called The Special Marriage Act[10] of 1954 under which one can marry into a different religion without converting into another religion.
PERSONAL LAWS AND THEIR LACUNAS
Personal laws are decades old and the laws which have been written there have been followed by the people even before the existence of these laws. But one thing which everybody knows is that laws are not static but dynamic in nature otherwise they will lose their importance in the contemporary world. The old and the conservative laws which are discriminatory and are bias should be reformed and removed to eliminate all the prevailing injustices in society. Instances can also be taken as how personal laws have been discriminatory in the past also . Cases like if we see marriages under Muslim Law, the triple talaq was a major issue as it can been seen that how triple talaq specifically Talaq ul biddat was discriminatory towards Muslim women.[11]Another instance can also be taken if we see the succession laws of The Hindu Succession Act[12], where after a lot of efforts, the daughter has been made an equal partner in the joint family after the 2005 amendment[13]. A bill[14] has also been introduced in the Lok Sabha to raise the age of marriage from 18 to 21 yrs. according to the proposer, the earlier competent age is discriminatory and should be reformed. Likewise, people are continuously keeping a watch on this as to how they are inconsistent in today’s scenario.
WOMEN AND PERSONAL LAWS
If we see in today’s scenario there are still some laws that are discriminatory towards women in marriages. Like if we see both the Shia and the Sunni law related to property laws, the wife is given half of the property share of the man[15]. Again, if we see in the case of the Christian law under the Indian Succession Act[16], a widow usually receives 1/3rd of the property while the other lien descendants get 2/3rd of the property[17]. In Parsi law, when a non-Parsi woman marries a Parsi family, the non-Parsi woman who must be the wife or the widow of the Parsi cannot inherit[18] under Parsi law. But their children can inherit. Another instance can also be taken in the Parsi law which is the children born out from a Parsi woman cannot be considered as Parsi because the woman has now married to a non-Parsi man which shows clear-cut discrimination against the woman under Parsi law. Under Hindu Minority and Guardianship Act, Section 6[19] of this act says that after the death of the father, the mother will be the guardian which shows gender inequality as to why they don’t have an equal guardianship opportunity at the very first instance.
In light of the triple talaq decision, which is now illegal among Muslims, it is necessary to study the politics that influence the practice and reformation of personal laws in India.If we see the Muslim Personal law, it was often said that the laws under this legislation is biased towards women and are disempowering to them. An introduction of a Uniform Civil Code (UCC) has been demanded for these reasons only. It is so because there is no doubt that personal laws oppress women, political parties frequently hijack gender equity discourse in the name of vote-bank politics. They argue that addressing the issue of women’s legal enslavement necessitates a complete rethinking of personal laws based on democratic principles.
CONCLUSION
As per my opinion, I would say that the personal laws are biased towards women in marriages to a very large extent, none of the personal laws are there which do not contain anomalies. Secondly, I think that the concept behind personal laws was to pay equal respect to every religion of our society, it can also be said that it has been made to preserve the various cultures of Indian society but the anomalies which are there in the laws which have no role to play in today’s world should be reformed or removed. Thirdly, another angle to this can be politics, political parties often take advantage of these anomalies which are present in the personal laws in order to gain vote banks by reforming them on an installment basis. They pick each anomaly according to their need. They use it to create a hero effect when there is some election. this is so because why can’t a step towards uniform law can be made regarding this, which will be non-discriminatory as well as uniform to everyone. Reforming personal laws is still a choice but there is a huge amount of anomalies present in our personal laws which have not been updated with the contemporary world. so, in my opinion introduction of UCC will be the best option to this issue.
Author(s) Name: Anupama Minz (National University of Study and Research in Law, Ranchi)
References:
[1] Hindu Marriage Act 1955, s 2
[2] ibid
[3] The Dissolution of Muslim Marriage Act 1939
[4] The Converts’ Marriage Dissolution Act 1866
[5] The Indian Christian Marriage Act 1872
[6] The Anand Marriage Act 1909
[7] The Parsi Marriage and Divorce Act 1936
[8] The Special Marriage Act 1954
[9] The Foreign Marriage Act 1969
[10] The Special Marriage Act, 1954
[11]‘Personal Laws versus Gender Justice: Will a Uniform Civil Code Solve the Problem?’ <https://www.epw.in/engage/article/personal-laws-versus-gender-justice-uniform-civil-code-solution > accessed 20January 2022
[12] Hindu Succession Act, 1956
[13] Kajal Bind, ‘Summary of Hindu Amendment Act, 2005’ <https://www.lawcolumn.in/summary-of-hindu-succession-amendment-act-2005/#:~:text=The%20Hindu%20succession%20Amendment%20Act%202005%20was%20came,property%2C%20daughters%20have%20equal%20rights%20as%20male%20hires.> accessed 20 January 2022
[14] ‘Bill to raise age of marriage for girls to 21 introduced in Lok Sabha’ <https://indianexpress.com/article/india/bill-to-raise-age-of-marriage-for-girls-introduced-in-lok-sabha-7683455/> accessed 20January 2022
[15] ‘Gender Inequality and the various personal laws in India’ <https://lawcorner.in/gender-inequality-and-the-various-personal-laws-in-india/ > accessed 21January 2022
[16] Indian Succession Act, 1925
[17] ‘Why property succession laws for women in india need reform’ <https://www.thenewsminute.com/article/why-property-succession-laws-women-india-need-reform-124851 > accessed 21January 2022
[18] Diksha Madhok, ‘These nine laws make indian women less equal than men’ <https://scroll.in/article/668709/These-nine-laws-make-Indian-women-less-equal-than-men> accessed 21 January 2022
[19] Hindu Minority and Guardianship Act 1956, s 6
