This article was written by Prachi Kotia, a student of School of Law, Indore.
The modern goal of every individual is to have Uniform Laws for both Men and Women. Gender equality is a moral principle which every individual must follow. In the developing world everyone demands for equality, where most of the people are active supporter of Feminism, which simply means equal opportunities for both men and women without any discrimination. Who wants Equality between Men and Women and gender justice in all aspect. The fight for equal rights of women got ignited long ago. Due to which women have got their rights to an extent. One of the raging fight for equality is now for equality under the Personal Laws. India being a culturally rich nation has various religions, which is governed by their respective personal laws. Like Hindus are governed by Hindu Law, Muslims are governed by Muslim law etc. And hence has differential rights for both men and women. Which in a way diminishes the value of women against men, where Men enjoy the superior post and women faces exploitation. And hence there is urgent need for the call of Uniformity of Rights under Personal Laws.
Constitution of India
The Constitution of India prohibits any kind of discrimination on the basis of caste, sex, religion, race or place of birth. It is the institution which lays down the roots of equality of all. Fundamental Rights under Article 14-24 provide for equality of rights for every individual and on the other hand Article 25-30 advocates for protection of cultural rights, education and religious freedom of minorities. So, basically every individual shall be treated equally and be given equal rights. Now, this constitutional umbrella is given to personal laws also but therewomen are discriminated. Hence there is clear violation of this right.
Even the United Nations Declaration of Human Rights provides each and every individual the right to follow a religion of their choice. To which India is a signatory and hence has to abide to its provision. So the idea of Uniform Civil Code will in a way defy the International Human Rights Convention.
There has been consistent demand for Uniform Civil Code. Which most of us think will bring the uniformity by bringing uniform law. But what we have to understand is that this will hurt the religious sentiment of many individuals and will in a way violate the right to religion. The imposition of this ideology will result in a great opposition by minority groups.
What should be done is to have uniformity of rights within the law, there is no need to bring a new law. Equality can be achieved by havingprovision which gives equal rights to both men and women.
Under every Personal Law there is discrimination of women in different ways, which has to be studied and worked upon individually. Women must be given equal rights as that of men, this will ensure that women are not exploited. Uniformity in rights Like under Muslim Law Muslim marriage is a contract and Mehr is an indispensable part of it. Whereas Hindu marriage is considered as a Holy communion of which dowry is a part, which is banned now but is still in practise.
There was a huge discrimination of women under the Hindu law prior to amendment of Hindu Laws. From sati to no right of inheritance of properties for daughters all of this had to be changed as it was violating the rights provided by the Indian Constitution. When the Indian Constitution was enacted, one of the first steps were taken to reform the laws for Hindu.
Earlier there was huge difference betweenmenand women under the Hindu Law. There was no restriction upon the men regarding polygamy; daughters could not inherit the property of their father; there was no right to divorce for women; the rights of women were very limited. All of this had to be stopped, by bringing uniformity within the Law.
Well, seeing the brighter side, the amendments has been in a way helpful in bringing the uniformity in law. After the amendment of Hindu Law following provision has been made in favour of women:
Rights of a Daughter:
- Like son, daughter also has right to inherit the property of their Father.
- Daughters has share in their mother’s property.
- Daughters has equal right as that of son in coparcenary property.
- Like son, daughter of a coparcener becomes a coparcener by birth.
- Daughter is given same share as that of men.
- A divorced or deserted or a widow daughter has a right of residence in parent’s house.
Rights of a Wife:
- A married woman has an independent right over her property, be it gifted, inherited or earned.
- A wife has exclusive right for maintenance, shelter and support from her husband or from his family.
- She has a right of share equal to all the other member in case of separation of joint family estate between her husband and her sons.
- Similarly, in case of death of her husband she has an equal right over her husband’s share as that of his children and his mother.
Rights of a Mother:
- She is entitled for maintenance from children who are not dependents
- She has equal right of share in her husband’s estate as that of her children.
- She can choose for sale, will or gift for disposal of her property.
It is believed that Muslim women are greatly discriminated under the Muslim law. Which is true in some aspects. One of the aspects is the provision of Triple Talaq, where men enjoy this exclusive right of oral divorce. There has been lot of hue and cry for abolition of Triple Talaq. Where everyone is calling for a ban on triple Talaq. Again here what we have to seek is for proper procedure of Talaq, instead of calling for Uniform Civil Code, which has already been stated inShamimAracase, according to it a Muslim couple can invalidate triple Talaq and get divorced. Uniformity of Rights is what is required here, there are certain provisions under the law which benefits the women. Like the provision of Mehr, which in a way helps the Muslim women than the system of dowry under the Hindu Law. And some of them are listed as follows:
Rights of aDaughter:
- Under the Muslim law it is considered that women are one half of the men and hence the daughters are given one half the share in the son’s keeping. And is entitled to manage it legally.
- They have right of residence in their parent’s residence before the marriage and after the divorce it reverts to them.
- They have right to maintenance before marriage.
Rights of a Wife:
- Even after the marriage a Muslim woman has control over her property as it was like before the marriage.
- Even the second wife is given an equal status as that of first wife.
- She has a right for equal maintenance as he gives to other wives.
- A Muslim husband is legally bound to maintain her divorced wife and to make fair provision for the future of the divorced wife.
- Muslim women enjoy the exclusive right of receiving Mehr from husband.
- A Muslim woman can inherit from husband to an extent of one eighth if there are children and if not then one fourth.
Rights of a mother:
- Property of hers is to be divided according to provision of Muslim law.
- She has a right to be maintained by her children.
Marriage in Christian law is a considered to be a permanent union of one man and one woman. Christian marriages are governed by The Christian Marriage Act. Even the Christian community has come within the ambit of patriarchal thinking. Until 2001 it was difficult to get divorce and mutual consent was not a ground for divorce. The Succession Act gives no right to inherit property of her deceased kids who have left no will behind. But now with the actions of government and on the demand of the gender unjust victims there has been following changes in law:
Rights of a Daughter:
- She has an equal right to inherit from the estate of her mother and father as that of her brother.
- Unmarried daughter is entitled for maintenance from her parents.
Rights of a Wife:
- She is entitled to maintenance from her husband.
- A widow has a right of one third on her husband’s property.
- She must inherit minimum of rupees 5000/- from her husband’s estate
What India actually requires is uniformity within the laws, not a uniform law. The aim should be for gender justice. It is far better to reform personal laws and ensure that all laws are gender-just, rather than enacting a law which is uniformly applicable to everyone across religion. In India all personal laws are gender unjust but they are not gender unjust within the same way. This problem has to be sought to reduce the cases of exploitation of women. If women are given equals status and equal rights then the century long fight for equality will slowly come to an end.
 Article 44,Constitution of India,1950.
 Muslim marriage act, 1939
Shamimara v. state of U.P. 2002