Property Rights of Women Under Personal Laws: A Comparative Study

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Property Rights of Women Under Personal Laws: A Comparative Study

Written By: Nikita Mandal

Introduction:

At present no one can deny the fact that women are equal to men in law, not only in the enjoyment of property rights but also in all spheres of life.  Women’s property rights are still a long-standing one in Indian society.  Whether or not inheritance laws discriminate against women in India is a crucial aspect of the ongoing debate with people over their economic equality.

Inheritance matters are governed by personal law and India is known for the multiplicity of personal laws, so inheritance laws are diverse in their nature due to different sources. Personal law is the law that applies to a particular religion and the laws that govern a particular religion.  Such laws may be based on laws or customary law that have existed for a long time.

Hindu personal law is one of the most primitive and ancient laws that is prevalent in today’s age and is also known to the world. Muslims in India are governed by the Muslim Personal Law (Sharia) Application Act, 1937.  This special law deals with various aspects of marriage, inheritance, inheritance, and charity among the Muslim people.

Moreover, the Muslim Divorce Act enacted in 1939 relates to the relevant circumstances under which a Muslim woman can get for divorce.  Moreover, these laws do not apply to Muslims who are married under the Special Marriage Act, 1955. Women’s rights refer to the freedom and rights of women and girls of all ages.

These rights are institutionalized by law, local customs, and behaviour in a particular society.  These freedoms are combined and separated from the larger concept of human rights because they are often the spontaneous rights of men and boys.

Status of women in various personal laws –

1. Marriage:

A Hindu is entitled to Marriage through the Hindu Marriage Act, 1955; A Muslim is entitled to marriage through the Muslim Personal Law. In Hinduism, marriage ceremonies are said to be completed only when the customary rites and rituals are fully performed. While Christian, Hindu, and Parsi marriages are treated as a sacrament, Marriage in Muslim is not a sacrament but a civil contract not requiring any religious ceremonies.

According to Sec-494 of IPC, bigamy is an offence under Hindu Law, whereas in Muslim Law, a man is allowed for marrying up to four wives.

In Muslim Law, a sum of money or other property equivalent to Mehr or Dower is entitled to receive by the wife from her husband at the time of marriage or anytime afterwards. Under Muslim Law, dower is an obligation imposed onto the husband as a mark of respect to the wife while under Hindu Law, the Dowry system (Dahej Pratha)  followed by Hindu Law it is one of the most important customs in Indian marriages. Although it is considered illegal.

2. Divorce:

In the case of Muslims, the woman can seek divorce on the following grounds in India i.e. –

  • If the husband is failing to provide maintenance to the wife for at least 2 yrs.
  • If the husband’s locality is not known for a period of 4 yrs.
  • If the husband is not able to meet the marital responsibility.
  • If the husband has been detained for seven or more years.
  • If the girl is married before 15 and wants to end the relationship before she turns 18.
  • If the husband indulges in acts of cruelty.
  • In the case of Hindu, the woman can seek divorce on the following grounds in India are –
  • If the husband is found guilty of rape, bestiality, and sodomy.
  • If the marriage is performed before the Hindu marriage act and the husband has again married another woman despite the first wife being alive, the first wife can seek a divorce.
  • If a girl is entitled to file for a divorce and she was married before the age of fifteen and renounces the marriage before she attains eighteen years of age.
  • If there is no consummation for one year from the date when an order for maintenance under Sec-18 of the Hindu Adoption and Maintenance Act or the Criminal Procedure Code 125 (Criminal Procedure Code 488 in order code) has passed against the husband, the wife can seek divorce.

Under Hindu law, the provision for the practice of polygamy can be a ground for Divorce. While under Muslim law, the practice of polygamy has been allowed under the law with some conditions. In Muslim law, a man may marry no. of wives not exceeding four but a Muslim woman can marry only from one husband.

Similarly, a Muslim wife divorced by her husband, cannot remarry him, until she married another person and has sexual intercourse with him and thereafter he divorces her then she can remarry her husband. Because of these practices, a Muslim woman faces more discrimination than Hindu women do. Moreover, these practices are disrespectful to a woman. In Muslims, the position of women is not good, as they follow religious personal laws very strictly.

3. Maintenance:

According to the given rights under personal laws, a Hindu woman enjoys more rights than a Muslim woman. According to Sec-18(1) of the Hindu Adoption and Maintenance Act, 1956 the Hindu wife is entitled to give the maintenance amount after divorce from her husband until she or he dies. Also, as per Sec-125 of the Code of Criminal Procedure, only a Hindu wife either takes a divorce or is given divorce by her husband and who has not remarried to another man is entitled to receive maintenance.

While, under the Muslim Law, the divorced woman does not have the right to claim maintenance after the iddat period and she is entitled to get the meter only, but after the (Muslim Women Protection of Rights on Divorce) Act, 1986 came into force, which protects the rights of Muslim women. Sec-125 of the Code of Criminal Procedure[3], the court provides relief to people who are unable to maintain themselves.

5. Adoption:                                                                                             

Adoption is the transplantation of a son from the family in which he is born to another family where he is given by the natural parents by way of gift. The power of a Hindu female to adopt a son is very much restricted in Bangladesh. She can’t adopt by herself but only with the consent of her husband. She has no right herself, she is deemed to act merely as an agent, or representative of her husband. A wife can but no other female can adopt. However, in India, a woman enjoys a lot of rights conferred by the Hindu Adoption & Maintenance Act 1956. The Act has made the following changes in the law relating to adoption:

  • A female may also be adopted (Sec:7&8)
  • A virgin, divorcee, or widow is entitled to adopt and wife can also adopt in certain circumstances. (Sec:8)
  • A male can adopt only with the consent of wife or wives, if any. (Sec:7)
  • The father without the consent of mother can’t give a child in adoption except in certain circumstances. (Sec:9)
  •  The ceremony of “Datta Homam” is not essential. (Sec:11)

5. Inheritance rights:

Under Hindu law, the Hindu Inheritance Act, 1956, regulates the inheritance and inheritance law of Hindus, including Jains, Buddhists, and Sikhs.  A Hindu woman is entitled to an equal share of her husband’s property with other living heirs.  According to Section 10 of the Hindu Inheritance Act, the distribution of property takes place among all the heirs, including the deceased widow.

If there is no other partner, he has the full right to inherit all the property. Also, a married Hindu woman has exclusive rights over her personal property.  He is the sole owner of his property.  She is entitled to the shelter, maintenance, and support of her husband and his joint family if he stays with them.

 In the case of Muslims, personal law governs the law of inheritance.  Consider the identity of Muslim women, inferior to men, even though they are not completely ignored.  He is entitled to maintain and has power over his property and products.  In case of discrimination between wives by the husband, if any, he can take action against her.  He deserves to be paid the same as his other wives.  The childless wife is entitled to one-fourth of the property, but those who have children are entitled to one-eighth of the property.

Conclusion

Women make up half of India’s population.  Women have always been and have been discriminated against.  In India, women belong to a class of society, which is still in a disadvantaged position due to a number of social barriers and exclusions in this twenty-first century.  We have seen various personal laws in India as such.  These laws also discriminate against women.  Religious personal law oppresses women.  So, by becoming educated women, women can improve their status and if there is an educated society, it will think of the rights of all.

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