Balancing Faith and Fairness: Examining Gender Inequities in Property Ownership within Indian Personal Laws

Published On: 13th February, 2024

Authored By: Anusha
Campus Law Centre, Delhi University

ABSTRACT

This article delves into the critical issue of gender inequities within the personal laws of India, focusing specifically on marital property rights. The examination spans the historical evolution of personal laws, shedding light on traditional gender roles and subsequent legal reforms. An analysis of existing legal frameworks, including the Hindu Marriage Act, Muslim Personal Law, Christian Marriage and Divorce Act, and the Parsi Law, reveals persistent disparities in marital property rights. Through case studies, the article explores landmark judicial decisions that highlight gender-related challenges in property disputes. Drawing upon a comparative analysis with international legal standards, the article identifies areas where Indian personal laws can be strengthened to align with global norms.

INTRODUCTION

Personal Laws are a set of legal rules and regulations that govern the relations of an individual in a family including marriage, divorce, maintenance, adoption, succession, property rights, etc. These rights deal with one’s personal relationship with his family. Personal laws in India are majorly based on religious traditions as India is a diverse country with separate religious beliefs and customs to accommodate its population. Indian Personal Law is codified into different laws based on the religious customs of the people. These laws can be related to religion like separate laws for Hindus, Muslims, Christians, and Parsis, or inter-religious laws like The Special Marriage Act, of

.81954, or customary laws.

Examining gender-related issues within personal laws is essential for fostering a legal system that upholds principles of equality and social justice. It is crucial to address these issues as they directly impact the lives of all the people, particularly women governed by the law and the rights guaranteed by it.  By ensuring equality in the legal provisions and promoting gender-based reforms, we are contributing to empowering and uplifting women in matters of marriage, divorce, inheritance, and maintenance. The examination and reform of personal laws play a crucial role in building a more inclusive and just society that respects and values the rights and dignity of every individual.

MARITAL PROPERTY RIGHTS AS AN AREA OF CONCERN

Marital property rights emerge as a significant area of concern within the personal laws in India. Traditional personal laws have favored men in matters of property acquired through marriage and divorce leading to historical gender imbalances and complicated dynamics. Evolutions in the legal provisions can of course be sighted but the gender-based disparity still exists. Women face challenges in asserting their rightful claim to marital property, both movable and immovable. The requirement for fair and uniform personal laws is the need of the hour in a growing economy to ensure equality and protection for all individuals, be they men or women. Striking a balance between cultural traditions and religious ideologies is essential to creating a legal framework that safeguards the interest of the spouses and enables a just society.

CURRENT LEGAL LANDSCAPE OF MARITAL PROPERTY RIGHTS IN INDIA

  • Hindu Personal Law

Marital property rights under Hindu law still hold within its pages remnants of a patriarchal past. For example, the concepts of coparceners and stridhan have always kept women at a disadvantage. The family members who could inherit the ancestral property by birth were called coparceners. Historically, only male members of the family were considered to be coparceners who held equal shares in the coparcenary property as females were believed to be part of another family. Females could only acquire property through gifts, wills, or intestate succession. After the amendment in the Hindu Succession Act in 2005, females are now included as coparceners and have equal rights as that of a son in the ancestral property. Section 6 of the Hindu Succession Act gave coparcenary rights and liabilities to females by birth.

Stridhan refers to the property gifted to a woman before, during, or after marriage which is under the sole ownership of the females and the husband has no hand in it. Yet under some interpretations, stridhan remained under the husband’s control during the marriage, limiting the female over her own property.

  • Muslim Personal Law

It is based on Islamic principles as derived from the Quran and the teachings of Prophet Muhammad. There are different schools of thought in Islam therefore there is a lack of codification in the legal framework. Sons and daughters inherit different proportions of the deceased’s property in fixed shares. Another practice that is prevalent in Muslim law is Mehr, i.e. a mandatory payment from the husband to the wife at the time of marriage which acts as a financial security and a symbol of respect towards the wife. There is no specific amount of Mehr payable but its non-payment can be grounds for legal recourse for the wife. Talaq-ul-Bain is a discriminatory practice of an irrevocable form of divorce where the husband just has to utter ‘divorce’ once. This practice is highly prejudiced and leaves women without guaranteed alimony or more to face social stigma. Furthermore, in Muslim Personal Law, the provision for maintenance of the wife is limited to the Iddat period, i.e. period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man, and the husband has no liabilities thereafter.  Educational initiatives and open dialogues should be encouraged within the Muslim community to raise awareness about women’s rights and promote progressive interpretations of religious principles. Codifying certain provisions should be considered to ensure greater clarity and consistency in their application.

  • Other Personal Laws

While Hindu and Muslim personal laws have been extensively debated in India, property rights enumerated under the Christian and Parsi personal laws are also of significant importance.

Christian Personal Law is governed by the Indian Succession Act, of 1925, which ensures equal inheritance rights for sons and daughters by implementing a uniform system of inheritance regardless of religious ideals. There exists customary practices influencing property ownership within marriages but other than that the marital property rights are largely governed by common law principles.

Parsi Personal Law, like Christian law, is also governed by common law principles of separate property in relation to marriage and property rights. Based on the Bombay Parsi Intestate Succession Act, of 1886, Parsi Law grants equal inheritance rights to sons and daughters. However, male agnates are prioritized over daughters.

REFORMS MADE THROUGH LEGISLATIONS AND CASES

There have been some instances where these gender inequalities have been addressed and these reforms have played a pivotal role in promoting equality and condoning gender disparity in the Indian personal laws. Some of the key amendments include the revision to the Hindu Succession Act in 2005 which granted daughters equal rights as sons in ancestral property thereby ensuring a more equitable distribution of inheritance. The criminalization of instant Triple Talaq in 2019 brought about a revolutionary change in Muslim personal law, promoting justice among the individuals in a community and protecting the rights of Muslim women. The ongoing discussion regarding the Uniform Civil Code (UCC) seeks to provide a common set of rules and regulations for all the citizens of India, irrespective of their religious ideals would eliminate gender inequalities across various religious laws. Some other legislation that encourages cultivating a more gender-sensitive and safe environment include the Domestic Violence Act, the Maternity Benefit (Amendment) Act, and the Sexual Harassment of Women at Workplace Act. This legislation addresses various aspects of gender-based challenges, emphasizing women’s rights in different societal spheres.

Several landmark cases have shaped the legal landscape concerning gender-related issues in marital property disputes, reflecting the evolution of laws and judicial perspectives

  • Ahmed Khan v. Shah Bano Begum And Ors[1] This landmark case highlighted the rights of Muslim women to maintenance after divorce under Section 125 of the Code of Criminal Procedure, notwithstanding the Muslim personal laws. Furthermore, it was held that mehr is not an amount payable to the wife after divorce but rather should be treated as a consideration for marriage. The judgment in this case aimed at ensuring gender equality and financial security for Muslim women after divorce.
  • Danial Latifi v Union of India[2]– This case also focused on the issue of maintenance for Muslim women after divorce. The Court held that when a state makes a provision for a particular community that is equally or more beneficial than general law, then there is no discrimination. This case emphasized the right of Muslim women to reasonable and fair maintenance, similar to that of women of other religions and communities.
  • Satya v. Teja Singh[3]– This case is related to the daughter’s right to maintenance under the Hindu Adoption and Maintenance Act, 1956. This judgment ruled against the social idea that a daughter is not a permanent member of her birth home and affirmed the right to claim maintenance even after she is married, stressing the obligation of the parents to provide for their daughter’s well-being.
  • Vijaykumar Bhate v. Neela Bhate[4]– The Bombay High Court ruled that the husband is under obligation to maintain his wife and children without using financial constraint as an excuse to evade responsibility.
  • Shabana Raza v. Abdul Majid– This case challenged the validity of Talaq-ul-Bain as a discriminatory practice in Muslim Law. The Supreme Court held that Muslim women divorced through this practice are entitled to maintenance from their husbands. This landmark judgment favored the economic security of divorced Muslim women.
  • Hiralaxmi Narayanrao Deshmukh v. Shankar Narayanrao Deshmukh – This judgment was ruled in 1970 where the Court upheld the autonomy of women with regards to stridhan. It gave independent ownership and disposal rights to women empowering them to be economically independent.

COMPARISON OF INDIAN LEGAL STANDARDS WITH THE WORLD

There are several reforms that can be brought into our legal framework by comparing it to the dynamic economies of the world. This will benefit our gender-impaired economy and promote gender equality. The United States follows a ‘Community Property System’ which believes in the joint ownership of the asset acquired after marriage. India should consider adopting this system to foster the equitable distribution of assets and uniformity among spouses. The concept of prenuptial agreements is not welcomed with open hands in India but can be an excellent way to restore the independent nature of the spouses while also ensuring financial stability. Awareness among women regarding their property rights and strengthening of legal aid services will improve the access to legal recourse for women in marital property disputes. Furthermore, there is an urgent need for legal reforms in the existing laws of India so as to encourage continuous legislative reforms and for the introduction of gender-sensitive legal provisions. In light of these reforms, India should also mandatorily implement monitoring and evaluation mechanisms to evaluate the impact of these legislative changes so that there is progress in the scheme of gender equality and social justice. India will be able to align with an evolving global standard and promote gender equality by striving towards a more equitable and uniform system of marital property rights where there is no discrimination in the rights of spouses.

ROLE OF JUDICIARY

The Judiciary plays a vital role in interpreting and applying personal laws through a gender-neutral lens. The Judges can challenge the widespread discriminatory practices by going beyond the strict interpretation of the provisions of law and welcoming a more societal and impartial approach when interpreting these provisions. The underlying objective of the introduction of personal laws is to promote familial harmony and individual well-being which can only be achieved by promoting women’s rights to property and addressing the gender bias inherent in the law.

CONCLUSION

In conclusion, addressing gender inequities in Indian personal laws regarding marital property rights requires a nuanced approach that navigates religious sensitivities, legal complexities, and societal realities. Judicial activism in interpreting existing laws through a gender-neutral lens becomes crucial. While respecting religious freedom, courts must ensure that personal laws do not violate fundamental rights; particularly the right to equality and non-discrimination. Attempts have been made to bring about change through amendments, but significant disparities still persist in legal provisions of inheritance and ownership of marital property. Several cases have been passed favoring positive systematic change in the legal framework but continuous monitoring is required by the judiciary to ensure equitable access to property for all spouses.

Reference(s):

[1] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556

[2] Danial Latifi & Anr vs Union Of India (2001) 7 SCC 740

[3] Satya v. Teja Singh (1971) CriLJ 399

[4] Vijaykumar Ramchandra Bhate vs Neela Vijaykumar Bhate II (2001) DMC 64

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