Women’s Identity and Religious Personal Laws

“I am no bird; and no net ensnares me: I am a free human being with an independent will.” 

         -Charlotte Bronte

In India women can be seen as a bird, not free but tied with the threads of various personal laws which call it a practice of their values, tradition and customs.

It is said that past acts like a mirror, a mirror which reflects some parts of it to build an ideal future. This whole process of reflection is very well observed in Indian cultural and legal structure. India is country with diversity. The various religious personal laws for marriage, maintenance, divorce etc. which govern people are a reflection of the customary practice and scriptural mandates. These personal laws form social identities and divide rights, responsibilities and power between men and women and create disparity in their social status. But the status of women has remained the biggest concern as the religion as well as the laws give birth to gender injustice and inequality. Indian legal system is a relic of British imperialism but at the same time very different from the original common law. Where England with time ease or modified its concept of laws, India maintained the ‘tradition’ of common law. Before colonization Hindu and Muslim communities had their own respective governing laws. But after British took over India, they decided that the religious laws will govern the ‘personal matters’ of these communities. And so a number of religious personal laws were introduced for different communities. These laws were made in order to ‘save’ the religious cultures.

The personal laws that the English administrators had decided to save were also in turn understood as religious, although in practice they could be community customs rather than scriptural rules. Thus religious laws and personal laws became interchangeable. Even after India got freedom, these laws continued to exist. The Indian judiciary with time made many changes within the legal system but resists making change in these religious personal laws. Where the constitution grants equal rights to every citizen irrespective of their gender, caste, religion etc. the law itself follows the tradition of keeping women in a subordinate position. In present times neutrality of law keep privileging man while portraying the legal laws as gender neutral. The problem is that laws don’t see woman as a unified category which don’t have similar interest, therefore it is hard to make any equal legal reforms. The idea of cultural pluralism at the cost of gender equality and argues that considering differences isn’t a merit. In the independent India the history of legislative reform of religious personal laws shows that the objective of gender equality is always affected by other political considerations. National Commission for Women reiterated that women’s group needed a law for domestic violence. And later the parliament enacted Domestic Violence [Prevention] Act 2005, which raises a lot of relevant issues. How the ‘wrong’ under this act required different remedies for women from northern to southern parts.

The important point to be noted is that the differences ought to recognize by the State but the outcomes should be fair. The question that should be asked is to what prompted these women to demand for domestic violence act. Domestic Violence is a common problem faced by most women in the country. This act shows an effort that certain social realities are suffered by most of the women as a gender specific harm. Women are considered as dependents under the cultural context because of the lack of economic independency. The presence of religious personal laws that deny fairness to women is generally talked about as a sample of contention in privileges of balance and the privilege to culture, particularly by the minorities.The religious self-rule the different groups claim thus summons an oversimplified thought of decision. Constantly there is no dialogue of who is settling on the decision and whether the basic way of obstacles in practicing decision makes it a purposeless idea for generally women. With respect to individual matters it could be envisioned that law, as opposed to upholding religious power, can encourage correspondence by making all family laws non-discriminatory upon gender. Such a family law would not meddle with anybody’s religious self-rule but rather neither will it authorize religiously endorsed inequalities. The Divorce Act of 1869 represents the dissolution of marriage for two Christians. The British frontier directors initially authorized this act to represent Indian Christian subjects. The act was changed in 2001, after extended group counsels and constant requests by women’s associations. There are doubtlessly the alterations to the act which are a noteworthy increase for Indian Christian women. By and by, it is exasperating that in 2001 the Indian assembly, in counsel with women’s associations, could embrace thoughts regarding flaw based separation laws, the idea of matrimonial home, and the idea of compensation of matrimonial rights. As to right get maintenance, a separated Muslim woman is qualified for support from her spouse just for the length of time of the ‘iddat’ period (three menstrual cycles or months) tailing her separation, though no such time limit applies to non-Muslim women who can get maintenance under Section 125 of the Criminal Procedure Code. Then again, Hindu and Parsi women can be requested to pay support to their spouses, though Muslim and Christian women have no such commitment. With respect to legal rights, the Hindu Succession Act of 1956 gives that girls and children will similarly acquire their guardians’ intestate non-hereditary property-i.e., property that was independently obtained or self-gained by either parent. The Hindu Mitakshara law gave privileges of co-possession to male relatives upon their birth[1] in this manner keeping Hindu females from succeeding to their intestate fathers’ familial property. Under Islamic laws of legacy, the general standard is that ladies are qualified for a large portion of the offer of a male partner. By differentiation, Christian females and other females subject to the Indian Succession Act of 1925 have since quite a while ago got the same offer as their male partners, with no refinement made in the middle of tribal and non-familial property. Prejudicial separation and conjugal property laws can for instance lead to impoverishment with genuine financial, social and even life-undermining results for women and kids.

The laws should be made keeping in mind the end goal to eliminate unequal procurements and embrace particular laws or present particular gender uniformity procurements in existing laws as required and to make positive changes accomplished through the authorization of such an act in the lives of women and men and in the whole society, and in doing so even portraying it as giving privilege to women is no wrong because anything done will be seen as a privilege. The differences between the conditions of women in different societies ought to be recognized but always with the proviso that such recognition leads to a just or fair outcome because the legal concept needs to be changed because gender equality demands more than just gender specific laws. Religious autonomy and gender can co-exist but the question is how far a law should or can go in upholding the individual identities. Personal laws that are discriminatory reflect and fortify the social and financial drawbacks of women and their relative political frailty. The annulment of discriminatory parts of personal law would along these lines be a stage in propelling the social, financial, and political advancement of women and, at last, of their nations.

“Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance.”

-Kofi Annan

By: Harsha Uikey

[1] Archana Sridhar, The Conflict Between Communal Religious Freedom and Women’s Equality: A Proposal for Reform of the Hindu Succession Act of1956, 20 BerkeleyJ. Int’l L.

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