LAWS OF MARRIAGE AND DIVORCE- GENDER ISSUES AND RESPONSE

 

THIS ARTICLE WAS WRITTEN BY APOORVA MAHESHWARI, A STUDENT OF DES LAW COLLEGE, PUNE. 

Abstract: The land of diversity, India, has a number of religious sects having their customary practices and personal laws governing them. Hindus and Muslims define the majority of the population whereas Christians, Parsis, Jains and Sikhs fall together in the leftover minority. The purview of such laws lasts from marriage to divorce and thereafter to the inheritance and maintenance. . Though the Constitution of India guarantees the Right to Equality to all the citizens, but sadly such personal laws don’t assert the same. These laws are inclined towards a particular gender, mostly men and hence chip in to gender inequality. Such laws especially marriage and divorce laws don’t grant the same power and prestige to the women as to the men. Despite of the efforts made by the Indian law makers, still, today, men and women aren’t on the same table.

This research article highlights the various marriage and divorce laws of different sects which are gender biased, their effects on Indian women and their dignity, and further provides for a comprehensive remedy other than the uniform civil code to eradicate or cut down the biasness.

INTRODUCTION:

Law is defined as the standards depicting the regulations defined by the relevant authority, checked by justice and meant to be followed by people.

The idea behind defining the laws was to install the better of beings and place both the genders on the same pedestal, but the malice filled human hearts interpreted the laws as per their greed stricken minds and the fear of a gender to lose the power led to tyranny of the other.

The initial era of the humans held the highest dignity of the women, where she not only was respected more than the other gender, but men also feared her downcast. The earliest evidence of law in the nation is Manu Smriti which says, “Where women are honored, gods are happy. Where women are not respected, all efforts come to naught”. It was then during the Sutra period that woman lost all her rights and became her husband’s chattel.

As per the theme of this research paper, we will emphasize on the various laws of marriage and divorce in India that are acknowledging the gender issues therein. The personal laws of the various religions with regard to marriage and divorce are inclined more towards the men. Such inequality reverses the order of development for women in the opposite direction.

 Though enough efforts have been made in the civil laws yet existence of personal laws still hinder the women’s true introduction to equality. The position of women as per the current personal laws is subordinate to men.

HINDUS:

The word ‘Hindu’, derived from the Greek word ‘Indoi’, was used to identify the Indus valley inhabitants. People naturally born as Hindus or those converted into Hinduism are constituents of Hindus as per the Indian law. Buddhists, Jains and Sikhs fall under the same law.

 

Marriage:

As per the Hindu religion, marriage is a necessary ‘sanskar’ and a sacramental union which is indissoluble and eternal whereas the Hindu Marriage Act, 1955 treats it not only as a sacrament but also a social contract between a man and a woman for the procreation of children and giving the family a social status.

Prior to the Hindu Marriage Act, 1955-

The marriage law since the very inception of the religion has been biased towards the women. The Shastras’ depicture of the object of marriage signified women as that entity owned by men who was required for the fulfillment of ancient sacraments such as Yagnas, for procurement of son and for fulfillment of sexual needs.

After the Hindu Marriage Act, 1955

The introduction of the Hindu Marriage Act, 1955 aimed at uplifting the status of women but didn’t succeed. The new introduced legal provisions surely brought changes but the law is still biased. Certain provisions are as follows:

  • As per this act, the couple must perform certain rituals for a valid Hindu marriage, most necessary amongst which is ‘Saptapadi’. In absence of ‘Saptapadi’, the marriage is considered to be void. A number of innocent girls fall for the trap of those who by deceit make them believe that they are married to such men, and later, the Act defies justice to these girls by challenging their improper form of marriage.[1]
  • Despite monogamy being a condition to marriage, people practice polygamy. The first wife is mostly illiterate who thinks that challenging her husband’s will is a sin. In other cases, the husband derives the first wife’s consent, in case she is unable to bear a son or a child at all. This notion was once erroneously accepted by the Himachal Pradesh High Court but later reversed.[2]
  • Mental Capacity is another essential for a valid marriage. As per the Mitakshara School of marriage, an insane male is allowed to marry a sane female, whereas the opposite is invalid.[3] In such cases, the wife has to compromise throughout her life and the law also fails to compensate her.
  • Age is the most imperative amongst all the essentials. The Act successfully sets the ages for marriage, i.e., 18 and 21 years for females and males respectively but this differentiation is on the basis of puberty. The development of the physical features and the mental capacity is neglected by law. Law here fails to understand that getting into a commitment of a lifetime or bearing a child is certainly not easy at such a tender age.

Matrimonial Remedies:

The discrimination also expands to the matrimonial remedies which were originally meant to compensate the aggrieved.

As per Section.9 of the Hindu Marriage Act, Restitution of Conjugal Rights, husband’s conjugal rights can be reinstituted, if the wife lives away from the marital home, even if she is employed at such a place. This is because she is meant to bear the pain and pleasures of married life, as per the court’s interpretation.[4]

Besides, in polygamy, the first wife cannot bring injunction against the second wife for cohabitation with the husband.

Also, child marriage is still not illegal. A girl can repudiate her marriage only between 15 to 18 years of her age, and not after attaining majority.

Divorce:

Earlier the marriage under Hindu Dharmashastra was considered a sacred bond and didn’t provide for divorce, until it was codified in 1955. Sec. 13 of the Hindu Marriage Act provides for the grounds of divorce.

The Hindu law provides maintenance to the wife by the husband after the decree of divorce but hinders the wife from getting any share in the marital property. The wife, according to the Hindu scriptures, is obedient towards the husband and the same doesn’t apply to him. The Hindu practices and customs still don’t accept the practice of divorce, especially by the wife.

 

MUSLIMS:

According to the Indian law, a person born as a Muslim, professes Islam or undergoes any formal ceremony of conversion into it is considered a Muslim. Islam considers both men and women as the subjects of the empire ruled by Allah. They shall hold an equal status in the ever changing society but the holy Quran, the paramount source of Muslim law, treats them with discrimination.

Quran says, “Men have authority over women because Allah has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. As for those who fear disobedience, admonish them and send them to beds apart and beat them if they don’t obey you. Take no further action against them if they obey you, Allah is high and supreme.”

The Muslim personal law in India is the adaptation of the Sharia law, which is the derivation of the texts from Koran, texts of the scholars, fatwas and other ancient sources. Such laws are still biased against the female gender.

Marriage:

Marriage/‘Nikah’ according to Muslim Law, is a contract underlying a permanent relationship based on mutual consent. It is not considered as a holy sacrament but a contract which has provisions for breach.

The form of marriage amongst all Muslim schools holds the same ceremony consisting of proposal (ijab) and acceptance (qubul).

 Despite of the Supreme Court’s decision in favor of consent of an adult getting married, both the Muslim schools in India still do not accept this trend. The girl’s consent is over-shadowed by that of her guardian.

As per the Sharia law, a valid Muslim marriage shall have following traits:

  • Wife is under the obligation to be faithful and obedient to her husband and admit him to sexual intercourse.
  • Husband restrains wife’s movement even to the extent of introducing her to public. She cannot go out of the house without his permission even to visit her parents except in case of emergency.
  • Husband acquires the right to reasonable chastisement and correction.
  • The wife must reprove him with respect over any wrongdoing on his part.
  • Moreover, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Hence, it discriminates between the two genders because one male is treated equal to two females.

Moreover, the Sharia law fails to make a clear distinction between the ages of the parties. The girl in most of the cases is married and sent off as soon as she attains puberty. Also, for marriage and fixation of dower (Mahr), social and economic status of the girl’s family is considered.

 

Muta Marriage:

Muta marriage is a contractual marriage in which the period of cohabitation is pre-fixed which might oscillate from an hour to a certain number of years. Under it, the wife is treated as a chattel meant to be used only for the fulfillment of the husband’s lust and desires.  Also, the wife cannot divorce the husband.

Polygamy:

The Sharia provides a Muslim man to practice polygamy which can extend his cohabitation with four wives. It fails to establish equality among the genders here and sadly the status of women is still no less than an object, meant for use by men. Besides, no court in India has ever passed an injunction against the Muslim who is about to marry a second wife in existence of the first one.

Divorce:

“If a woman seeks talaaq from her husband without a pressing need then the fragrance of Jannat becomes haraam upon her.”[5]

Pre-Islamic:

Divorce is recognized as a legal act in Islam but is least appreciated. Divorcing women at any time, without any valid reason was quite common among the pre-Islamic Arabs where the woman had neither security nor any right to maintenance from the husband.

Modern Muslim law:

Talaaq, as per the Sharia, has still not undergone the needed changes. Talaaq is still entirely male dominated and depends on his will.

With the grounds of divorce being similar to that under the Hindu Marriage Act, the types and procedure of the Muslim divorce is different and biased. Following are the types:

  1. The power of pronouncement of Talaaq, under the category of Talaaq-ul-Sunnat, is only held by the husband. He does so as per his will.
  2. The most sinful Talaaq, that is, Talaaq-ul-Biddat, as per which the pronouncement of talaaq thrice dissolves the marriage, is also empowered to the husband only. This may take place as per his desire. This Talaaq is in practice though its constitutional validity has been challenged several times but no judgement to end it has been delivered.
  3. Also, under Talaaq-e-Tafweez, the husband can delegate the right to divorce the wife to any third person which is absolute injustice as it keeps the woman at mercy of that person.
  4. Divorce at the instance of wife is recognized by the Muslim law in India which is partly regulated by the Dissolution of Muslim Marriages Act 1939 but the procedure is too complicated.

CHRISTIANS

Christians in India belong to three different traditions, i.e., (i) Roman Catholics, (ii) Protestants who are the followers of Church of South India (CSI) and Church of North India (CNI), and (iii) Syrian Christians, who are the followers of Greek Orthodox Churches.

Christianity was introduced by the Britishers in India. The Indian Christian Marriage Act of 1872 even after being repealed in 1938, through its various chapters, lays down the essentials of the Christian marriage.

Marriage:

Christians get married as per the tradition of their own church. Currently in presence of no concrete law administering the Christian marriages, the rights of the parties to marriage, especially the women, are in the dark.

Divorce:

According to the Holy Bible, “Wives submit yourself into your own husbands as unto the Lord.”

The Indian Divorce (Amendment) Act, 2001 finally found its place in the statute book of India on the 3rd Oct, 2001. Before the amendment the grounds for dissolution of marriage, which were available to a wife, were entirely different and more stringent than the grounds available to a husband. Christian female was required to prove adultery along with additional grounds of cruelty or desertion etc. for obtaining divorce. The representatives of Churches said that the scriptures stated ‘what God has divided, let no man divide’ and therefore scriptures don’t accept divorce.

The new Act has now removed the discriminatory provisions but there is a humongous confusion because of absence of a specific statute when it comes to the marriage and divorce of the Christians. There is lack of an amalgamated and a comprehensive legislation for the same. The existence of The Indian Christian Marriage Act, 1872, The Indian Divorce Act, 1869, The Marriage Validation Act, 1892, etc. make the process difficult and bewildered for the Christian community.

Though the grounds for attainment of divorce available to a Hindu, Muslim or Parsi are similar to that made available to the Christians but the confusion arises between The Indian divorce Act 1869 and The Special Marriage, 1954.

One such confusion arises in the case of judicial separation. As per the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 the separation must be of two years, but in view of The Indian Divorce (Amendment) Act, the same should be of a single year. Following both the terms is impossible, so it creates perplexity for the Christians and moreover there is no concrete judgment regarding the same.

The approval of the Catholic Church for the divorce is also imperative.

PARSIS:

Parsis, the original habitants of Persia, while facing the atrocities of the harsh rule in their own nation, attained refuge in India. The Parsis, in order to seek the succession of their own kind, marry only the people of their own religion.

Marriage & Divorce:

Parsi marriages hold their holy sacramental called ‘Ashirwad’, which is administered by the priest in front of Parsi witnesses.

The preferred system of marriage is next-of-kin or cousin marriage. Parsis insist more on marriage within one’s own religious group. The problem that has emerged is the excess of inbreeding. Parsi community is strictly patriarchal and the household is dominated by the male gender. His honor and reputation is highly protected by the family members.

Though The Parsi Marriage and Divorce Act, 1936 holds a marriage invalid if it is in the degrees of consanguinity or affinity, but unfortunately the majority of Parsis in India openly disapproves and discourages interfaith marriages. The restrictions on the Parsis to marry within their community only results in incest and inbreeding. The Parsi youth is left with the choice of either marrying within the community or remaining single.

The Parsi community is biased when it comes to interfaith marriages. In this case, a home in a Parsi community can never be inherited by the daughter; she can never enter an agiary. Neither she nor her children can avail benefits of Parsi trust funds whereas children of Parsi men who marry non-Parsis aren’t denied any of these rights. There is no as such discrimination in the Parsi divorce laws.

CONCLUSION

A Comprehensive Legislation- In view of the above loopholes in the Indian Personal laws, it is high time for the legislature of the country to take some immediate actions to trim down and then end the gender biasness from the country which is being practiced in the name of traditions and personal laws. Since, it is almost impossible to apply Uniform Civil Code keeping in view the diversity of India, the only way left is to amend the present laws and frame a comprehensive legislation. The following points are to be considered for the same:

  • Under Section 375 IPC, a consensual sex under 16 years of age is considered rape. But when it comes to child marriages, this consensual sex becomes a matrimonial obligation. This practice results in nothing but objectification of women and fulfillment of man’s lust.
  • Also, it is necessary that ‘Irretrievable breakdown of marriage’ shall be added as a ground for divorce in all the divorce statutes so that marriage doesn’t become a forceful obligation on the couple.
  • The Hindu Marriage Act, 1955 has never been amended in spite of several criticisms regarding unequal rights of women. The Marriage Amendment Bill, 2010 was introduced for the same in Parliament but wasn’t passed in the lower house. The bill holds certain provisions in light of the gender equality.
  • Among Muslims, some important changes are essential. The first being the abolition of Muta Marriage which is nothing but materialization of women and the next is framing of a uniform statute for women with provision for grounds of divorce and getting away with different types of Talaaq.
  • Christians require a comprehensive legislation that shall lay down the rules regarding the marriage and divorce of their community specifically.
  • Among Parsis, the restrictions on not being part of the Parsi community after marrying a non-Parsi should be removed and the children of both Parsi women and men should be given equal rights and legitimacy.
  • Further, the wife after divorce should get inheritance in husband’s property. It has been reported that due to lack of this provision and less amount of alimony, the women in India do not file a divorce petition even when they want to. Also, wife’s non-economic duties like handling the household chores, taking care of children, etc. should be recognized and compensation should be given for same at the time of dissolution of marriage.

Changes in the personal laws are need of the hour. The legislation should initiate rules in light of the same and the judiciary should complement it by passing the necessary orders. Also, it can be advised to remove all the different divorce laws and the divorce be governed by the Special Marriage Act, 1954 for all the sects, with provision of all the required grounds.

Justice and equality are the two wheels of the same wagon, if one ceases the other curbs its motion. Hence, for the attainment of the utmost justice, absolute equality amongst the genders is a must.

[1] Deivanai Achi vs. Chidambram Chettiar, AIR 1954 Mad 657

[2] Santosh Kumari vs. Surjit Singh, AIR 1990 HP 70

[3] Bhagwatisaran Singh vs. Parmeshwari Nanden Singh, ILR 1942

[4] Kailashwati vs. Ayodhya Prakash, 79 PLR 216 (1977)

[5] Ahmad, Haakim, http://www.intisaarul.netfirms.com/divorce.htm

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