PROJECT WORK FOR GENDER JUSTICE AND

FAMILY PATRIARCHY

CONCEPT OF PATRIARCHY UNDER PERSONAL LAWS

Under the supervision of DR. GHULAM YAZDANI

Submitted by
LUBNA TANWEER
LLM- 1ST SEMESTER

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ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the
kind support and help of many individuals. I would like to extend my sincere thanks to all
of them.

First of All, I would like to thank Almighty for blessing me with good health throughout
the completion of this project.

I am highly indebted to MR. GHULAM YAZDANI for his guidance and supervision as
well as for providing necessary information regarding the project and also for his support
in completing the project.

I would like to express my gratitude towards my parents for their encouragement which
helped me in completion of this project.

I would like to express my special gratitude and thanks to my classmates and friends who
have willingly helped me out with their abilities.

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CONTENTS
INTRODUCTION----------------------------------------------------------PAGE 4

RELIGIOUS PERSONAL LAWS-------------------------------------- PAGE 5

STATUS OF WOMEN UNDER DIFFERENT PERSONAL LAWS-PAGE 6

POSITION OF WOMEN IN HINDU LAW--------------------------- PAGE 7

1. POSITION OF WOMEN IN A HINDU MARRIAGE

2. RESTITUTION OF CONJUGAL RIGHTS
3. SECTION 15 OF HINDU SUCCESSION ACT- A LAW THAT THWARTS JUSTICE
4. WOMEN’S RIGHT TO PROPERTY UNDER HINDU LAW
5. WOMEN BEING A KARTA OF HER FAMILY

POSITION OF WOMEN UNDER MUSLIM LAW------------------- PAGE 11

1. MARRIAGE
2. TALAQ-UL BIDDAT AS A TYPE OF DIVORCE
3. CONCEPT OF POLYGAMY UNDER MUSLIM LAW
4. MAINTENANCE UNDER MUSLIM LAW
5. DEVIATION FROM ORIGINAL CONCEPT OF DOWER(MAHR) UNDER
MUSLIM LAW
6. INHERITANCE UNDER MUSLIM LAW

POSITION OF WOMEN UNDER CHRISTIAN LAW-------------- PAGE 19

1. WOMEN UNDER CHRISTIAN LAW
2. MARRIAGE IN CHRISTIANITY
3. DISCRIMINATORY PRACTICE IN DIVORCE
4. DISCRIMINATORY PRACTICE IN INHERITANCE

POSITION OF WOMEN UNDER PARSI LAW

CONCLUSION

BIBLIOGRAPHY

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INTRODUCTION

In India, each community has its own personal law. The Hindus, the majority community
have their separate family law, so have the Muslims, the biggest minority community.
Smaller minority communities, the Christian and Parsis whose number, in the context of
the total population of India, is not very significant too, have their own separate family
law. Personal laws in India deal with marriage and divorce, maintenance, guardianship
and succession, joint family and partition, and can broadly be characterized as ‘Family
Law’. The status of women is of great concern as the religious personal laws portray
women in subordinate position to men. Women have to encounter with so many
disparities which lead to so many stumbling blocks in their journey. From the cradle to
the grave, females are the victims of numerous vicious acts such as discrimination,
oppression and violence, within the family, at the workplace and in the society. Laws that
explicitly discriminate are only the tip of the iceberg. The present project is focusing on
the disparities which a woman faces through the religious personal laws. Due to such
disparities there are lots of difficulties to live a life with self-respect and dignity for a
woman. These disparities and inequalities hinder the path of woman in the backward
direction. Women have to fight against these inequalities to attain something. Things
change with the time, but the mind sets of people regarding women is next to impossible
to change. Though enough efforts have been made in the civil laws yet existence
discriminatory provisions in personal laws don’t let the women to come out of that to live
a life with their own terms and conditions.

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 Religious Personal Laws

The term ‘personal laws’ circumscribes the scriptural mandates and customary
practices within it. The first Law which gives sanctity to personal law in India was
Regulating Act of 1773. The Preamble to Regulation III of 1973 declared that the
aim of the government was to preserve the Indian Shastras and the Quran in the
matters to which they have been invariably applied.1 In other words, this act
asserted that Mohammedan law should be applied on the Mohammedan cases and
similarly the Hindu law should be applied to Hindu cases.
The policy of preserving personal law for Hindus and Muslims in family matters
was so strictly adhered to, that the Constitution of India proclaims in Article 372
that the law enforce in the country before the commencement of the
constitution shall continue to remain in force until altered or repealed or
amended by a competent legislature or any other competent authority.2
As a result, different personal laws were enacted and amended from time to time
and continue to thrive in this country to regulate the personal lives of the people in
accordance with their faith. The applicability of personal laws in a country like
India depends solely on faith. Hindus, Muslims, Christians and Parsis are governed
by their own personal laws such as Hindu Law, Muslim Law, Christian Law and
Parsi Law respectively. From the religious point of view, the Personal Law is
defined as “Body of law which applies to a person or to a matter solely on the
ground of his belonging to or its being associated with a particular religion”.
The laws and customs regulating marriage and divorce, matters relating to
adoption and maintenance, wills, inheritance and succession, joint family and
partition were listed under Entry 5 of the concurrent list and were left to be
subjected to their personal laws.3

1
Regulating Act, 1773
2
Article 372, Constitution of India
3
Entry 5 of Concurrent list-Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family
and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of
this Constitution subject to their personal law.

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 Status/ Position of Women in Different Personal Laws

There are various religions like Hindu, Muslim, Sikh, Christian, Parsi, Buddhist
and Jain, who follow various religious personal laws and civil laws.
Hindu Law: The present Hindu Law applies to such person who are Hindus
(including Buddhists, Sikhs and Jains) by religion whether by birth, conversion or
otherwise. It does not and cannot apply to person who is not a Hindu (or Buddhist,
Sikh or Jain) by religion or who is a Muslim, Christian, Parsi or Jew by religion.4
There are different laws like Hindu Marriage Act, 1955, The Hindu Succession
Amendment Act, 2005, The Hindu Minority and Guardianship Act, 1956 and the
Hindu Adoption and Maintenance Act, 1956 which govern the personal laws of
the Hindus.
Muslim Law: Muslim law appears from the Muslim Personal Law (Shariat)
Application Act, 1937 applies to persons who are Muslim by religion, whether by
birth or conversion.5
This act defines the scope of Muslim Personal Law including all affairs regarding
succession, marriage, dissolution of marriage, guardianship and property rights.
Muslim personal law is largely un-codified and legal decisions are made by Court
on the basis of Quran, Sunnah and Hadith (traditions/sayings of Prophet
Mohammed, PBUH).
Similarly, the Christian law as appear from the provisions of the Indian Christian
Marriage Act of 1872, the Indian Divorce Act of 1869 that it would apply to a
person on the ground of his or her being Christian by religion.6
The Parsi Law as appear from the section 2(7) of the Parsi Marriage and Divorce
Act 1936 would apply to a person not merely on the ground of his or her belonging
to the Parsi community but on the ground of his or her being a Zoroastrian by
religion.7
As per these laws one can discerns about the non-uniformity of the personal laws.
The status of women is not good in the personal laws as there are so many bigotry
patriarchal practices in our society which have been inserted by various provisions
of different personal laws. The real discrimination against women persists in every
religion. It is ironic that while all women suffer from the same or similar

4
Section 2, Hindu Marriage Act, 1955, the Hindu Succession Amendment Act, 2005, the Hindu Minority and Guardianship
Act, 1956 and the Hindu Adoption and Maintenance Act, 1956.
5
Section 2, The Muslim Personal Law(Shariat) Application Act, 1937
6
Indian Christian Marriage Act, 1872, Indian Divorce Act, 1869
7
Section 2, Parsi marriage and divorce Act, 1936

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 discrimination at home or within their families, the family or personal law
applicable to them to varying degrees of discrimination.

Position of Women in Hindu law

Hindus have considered personal law based on the ‘Dharmashastra’, a part of their
Religious tradition. According to Hinduism, the female was created by Brahman as
part of the duality in creation, to provide company to men and facilitate
procreation, progeny and continuation of family lineage.8
Till the codification of Hindu law in 1995 and 1956 the Hindu women did not
enjoy equal rights along with the Hindu men. Before 1995, Polygamy was
prevalent among the Hindus. The Hindu woman did not used to get the property
from the parents till the Amendment of 2005.
Even though the Hindu law has been codified, certain discriminatory provisions
still exist even today. The Hindu Marriage Act, 1955 brought with it some
significant reforms, but remained far from satisfactory.9

Position of women in a Hindu Marriage

Hindu conception of marriage is totally divine and the marriage bond is

unbreakable and even the death of the husband cannot free the wife of the bond of
marriage. According to the famous Hindu Jurist Manu’s description of
women, while young, she remains under the control of her father, after marriage
under the control of her husband and on his death, under control of her sons. She
does not deserve complete independence at any time. In other words, she remains
under the protection of her father or his representative till her marriage, after
marriage the groom was to be the swami and protector of the wife.

Duteous girl obey her father

And the husband sways the wife
Son controls the widowed mother
Never free is women’s life,
From her father, son or consort
Women never should be free
For her willful separation stains her husband’s family10

8
http://intolegalworld.com/2017/08/07/2position-of-women-under-hindu-law/last visited 06-11-2018
9
Ibid
10
Manu, Volume V, page no.148to150

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 The Hindu Marriage Act, 1955 while maintaining the divine character of the
marriage has given substantial relief and rights, which were previously denied to
them. The Hindu Marriage Act, 1955 provided several matrimonial remedies
including “divorce and nullity of marriage” which was earlier not available to
them. Prior to the enactment of Hindu Marriage Act, 1955, Hindu women could not
even think of all these rights. Though major efforts was done in 1955 to codify the
Hindu law and various Acts were passed to make it a gender neutral law, still the
vision of eradicating the discrimination was not completely achieved even after
1955.

Restitution of Conjugal rights

“Restitution of conjugal right” is one such provision where the women has still not
earned complete freedom and has to live with their husbands without their will and
choice.
Section 9 of Hindu marriage Act, 1955, provides for the restitution of conjugal
right. While hearing the petition of divorce the Bombay High Court even suggested
that “women should be like Sita” and must follow their husbands everywhere.11 In
the current context when a number of women are as educated as men are and are
contributing to their family income, the provision of restitution of conjugal rights
should not be permitted to take away these hard-earned freedoms.
In Suman Kapoor v.Sudhir Kapoor12 the Supreme Court cited women’s focus on
their careers as “neglect” of their household responsibilities. If women are given
equal opportunity to study it should be presumed that they will seek equal
opportunity to advance their careers and as a corollary, men should not just
cooperate but contribute actively towards household activities and responsibilities
such as management of household, childcare and equal partners in marriage, rather
than misusing the provision of restitution of conjugal rights to force their wives to
cohabit. The Delhi High Court also in Swaraj Garg v. RM Garg13 also agreed that
in the modern day, it cannot be presumed that wifely duty is fulfilled by following
their husbands everywhere and it is an unreasonable task.

11
https://timesofindia.indiatimes.com/city/mumbai/A-wife-should-be-like-goddess-Sita-Bombay-
HC/articleshow/13054421.cms

12
AIR 2009 SC 589
13
ILR(1979)1 Del 41

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 Women’s right to property under Hindu Law

Under the traditional Mitakshara law of inheritance, the coparcenary could consist
only of males, while Dayabhaga law permitted females to be a part of coparcenary
as well.14
Before Hindu Succession (Amendment) Act, 2005, a daughter was not even
considered as a coparcener and they were not able to claim coparcenery property
under Hindu Law. However after the Amendment in 2005, the Daughters were
made coparceners and they are entitled to the same share as of a son.15

Section 15 of the Hindu Succession Act- A law that thwarts justice

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme
of succession to the property of a female Hindu who dies intestate. There are also
rules set out in Section 16 of the Act which provides for the order of succession
and the manner of distribution among heirs of a female Hindu.
Section 15(1) says that if a Hindu woman dies without leaving a will, her property
will devolve in the following order:
Children, children of a predeceased child and husband.
If none of these persons is available, then it will go to the next in line, the heirs of
the husband. Standing behind them will be the heirs of the father and the mother. 16
In the case of Omprakash and others Vs. Radhacharan and others, Narayani
Devi married Deendayal Sharma, who died within three months. Soon she was
driven out of her matrimonial home. She lived with her parents, earned a living and
died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both
her mother and her husband's family claimed a succession certificate. The Supreme
Court considered the scope of Section 15 of the Hindu Succession Act and held
against the mother.17
The 174th Report of the Law Commission also examined the subject of “Property
Rights of Women; Proposed Reforms under the Hindu Law” and had noted
that the rules of devolution of the property of a female who dies intestate reflects
patriarchal assumptions.
The Hindu Succession Act, 1956 was enacted when, in the structure of the
Hindu society, women hardly went out to work. There has been a vast change in

14
R.K Agarwal, Hindu law, page no 105
15
Section 6, Hindu succession(Amendment) Act, 2005
16
Section 15, Hindu succession Act, 1956
17
( 2009)15 SCC Page 66

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 the social scene in the past few years and women have made progress in all
spheres. The consequence is that women own property earned by their own skill.
These situations were not foreseen by the legislators. However in the present
scenario this law is completely gender bias and it should be modified to ensure that
the general order of succession does not place a woman's husband's heirs above
those who belong to her natal family like her father and mother and thereafter, her
brother and sister.18 It is a high time to examine this discriminatory scheme of
succession of property in an age where gender equality is a cherished ideal.19

Women being a “Karta” of her family

“Karta” can be defined as a Manager. Property belonging to a joint family is

ordinarily managed by the father or other senior member for the time being of the
family: The Manager of a joint family is called Karta.
Although the 2005 amendment provides equal rights to daughters in the
coparcenary as compared to the sons, an important question was still left
unanswered - Can women or daughters be allowed to become managers or karta
of the Hindu Undivided Family?
The landmark Delhi High Court judgment in Mrs. Sujata Sharma v Shri Manu
Gupta has, after the 2005 amendment to Hindu Succession Act, 1956 (the
“HSA”), brought the next step to realizing equality of women in the Hindu
Undivided Family.
The court found that while females have equal rights to HUF property (post HSA),
they also have the right to manage the same property as Karta. Also, the court
found no restrictions regarding a female Karta in Section 6, HSA.20
However, this was a big step towards achieving equality by Delhi High court but
Supreme Court has still not addressed this issue and the decision of Supreme Court
on the issue of women being a Karta is still awaited.

18
https://www.thehindu.com/opinion/open-page/let-us-amend-the-law-it-is-only-fair-to-women/article2288188.ece last
visited 7/11/2018
19
Poonam Pradhan Saxena, ―Reinforcing Patriarchal Dictates Through Judicial Mechanism: Need to Reform Law of
Succession to Hindu Female Intestates (2009) JILI 221
20
2015 SCC DEL 14424

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 POSITION OF WOMEN UNDER MUSLIM LAW

Islam means serenity, and obedience. According to Agnes (2004) Islam also means
peace and submission. Shari’ah is an Arabic word that means the Path to be
followed,” referring to a number of legal injunctions known as Islamic law. The
primary source of Islamic law is the Quran, which Muslims believe to be God’s
words. Though the Quran does contain legal prescriptions, it is mainly concerned
with general ethical principles and guidelines rather than strict instructions.
Therefore, the Quran is supplemented by other sources like Hadith to form the
basis of Sharia. Islam introduced a system in which there would be no
discrimination between male and female and will have the equal rights but in
Indian context the reality is just reverse to this

MARRIAGE
(Nikah) is defined to be a contract which has for its object the procreation and the
legalizing of children. The institution of marriage in Islam has three aspects: Legal,
Social, and religious. Legally, it is a contract and not a sacrament.
The social aspect of marriage has three important factors: Islamic law gives to the
women a definitely high social status after marriage; Prophet Mohammed (PBUH)
encouraged the status of marriage, He positively enjoined marriage to all those
who could afford it. In fact marriage is a sign of bounty of Allah.
The Qura’nic description of man and woman in marriage:
“They are your apparels and you are their apparels”, implies closeness mutuality
and equality.21
In Islam, The relation between man and woman is of love and kindness. They are
incomplete without each other and are the source of peace and harmony to each
other.
According to the holy Quran: “He created for you help mates from yourselves
that you might find rest in them, and he ordained between you love and mercy”22
The Muslim woman also has the freedom of marital choice, her consent is essential
for the validity of the marriage contract. A grown up girl shall be asked for her
willingness about the marriage and there shall be no compulsion on her.

21
(Surah:Al-Baqarah:187)

22
The holy Quran (30:21)

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 Despite of quranic injunctions elevating the status of woman in Islam, society has
never been open to accept and recognize the rights of woman in true sense. There
is big gap between the scriptural i.e. the Quranic proclamations & Shariah
formulation. The Quranic pronouncements are purely super mundane while the
formulation of Shariah has been greatly influenced by patriarchal thinking of
human beings on related issues of the lives.
Islam isn’t patriarchal, but patriarchy has been heavily involved in the history of
the Middle East and has subsequently seeped into the ways Muslims practice their
faith.

TALAQ UL BIDDAT AS A TYPE OF DIVORCE

Stating the importance of marriage in Islam and how wife should be treated,
Prophet Muhammad (SAW) said which was narrated by Abu Hurraira (R.A), "the
best person amongst you is one who is best to his wife."23
The interpretation to this hadith also means that a marriage bond should be intact.
Therefore, to dissolve marriage, parties have to go through reconciliation and other
means to keep it alive. If all this fails, only then can recourse be taken through
divorce. For divorce under Muslim law, two proper forms of divorce i.e. Talaq-ul-
Ahsan and Talaq-ul-Hasan is provided in the Quran.
Talaq-ul-biddat has its origin in the second century of the Islamic era. After two
years of ruling, second caliph Umar (r.a) enforced triple divorce, as per which no
one will be permitted to take his wife back after pronouncing three divorces in one
go. Author Umar Ahmad Usmani in his book named “Women’s Rights in The
Qur'an, Women and Modern Society" refers to the noted Egyptian historian
Muhammad Husain Haykal's book 'Umar-al-Farouq’ in which the author says that
caliph Umar made such an (interpretation) for avoiding hassle and indeed it was
need of the hour.24
Triple Talaq is a form of Talaq which is itself considered to be something
innovative, namely, that it is not in the Sunnah, being an irregular of form of talaq.
Given the fact that triple talaq is instant and irrevocable, it is obvious that any
attempt at reconciliation between the husband and wife is not possible.
Although Triple Talaq is against the basic tenets of Quran and it was allowed in
a particular situation during caliphate, it was considered valid for all these years

23
(Al Tirmidhi, 628)(3)
24
Women’s rights in islam, women and modern society- umar ahmad usmani

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 all over the world where a Muslim husband can capriciously and whimsically
leave his wife by pronouncing “talaq talaq talaq” thrice.
In India, on the question of triple talaq or talaq-ul-biddat, the Courts have
expressed their disapproval of the practice in multiple observations even before it
was formally set aside in 2017.25
The Supreme Court observed that Biddat by its very definition has been
understood as a practice that evolved as an aberration and it has been held to be a
practice that was against the principles of Sharia, against the Quran and the Hadith.
It has been argued that what has been deemed to be a practice that is bad in
theology, cannot be good in law.26
However, the observation of the Supreme Court in Shamim Ara over Triple talaq
was obiter dicta in a matter that was primarily concerning payment of maintenance
of the divorced wife. It is for this reason that the judgment did not become binding
and the practice continued till August 2017, when it was categorically set aside by
the Supreme Court.
In Shayara bano vs. Union of India, the court held the practice of triple talaq
which finds no anchor in Islamic jurisprudence and is permitted only within a
limited sect of Hanafi school of Sunni Muslims, is not a part of Sharia and
therefore is arbitrary. The section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 through which the power and procedure for dissolution of
marriage by triple talaq is said to be derived, is declared void.27

CONCEPT OF POLYGAMY UNDER MUSLIM LAW

The concept of polygamy is deeply misunderstood in today’s scenario. The

interpretation of the holy Quran related to the particular subject is either corrupted
or misguided by people who use it for their personal gains or pleasure. Polygamy
should be viewed as a component of justice in the treatment of widows, but is
mainly conditioned upon the need to offer fair care to orphans, according to the
literal reading of the verse. It served a functional purpose for that time period, in
allowing widows and orphans to be taken care of in a society in which women
usually did not have independent means of financial support. But the text is clear
that polygamy is only permissible if all wives are treated justly. The Quran then
goes on to say that it will never be possible for a husband to treat all of his wives
fairly. This effectively limits the possibility of polygamy today. A detailed
rendering of the relevant verses in Surah an Nisaa follows:
25
Shayara bano vs. Union of India AIR 2017 SC 4609
26
Shamim ara vs. state of Uttar Pradesh AIR 2002 SC 3551
27
AIR 2017 SC 4609

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 "And if you have reason to fear that you might not act equitably towards
orphans, then marry from among [other] women such as are lawful to you -
[even] two, or three, or four: but if you have reason to fear that you might not be
able to treat them with equal fairness, then [only] one - or [from among] those
whom you rightfully posses. This will make it more likely that you will not
deviate from the right course." 28 The first imperative in this verse is to deal justly
with orphans, and is directed towards their male guardians who would be
managing their property or wealth on their behalf. Marriage to female orphans is
only advocated if and when the guardian fears that he will not be able to carry out
his duty honestly. The assumption is that marriage to the orphan will give the
husband a greater stake in carrying out his financial responsibility towards her. It
does not by any means represent a requirement for all male guardians to marry
their female wards. Second, the verse emphasizes justice towards the wife/wives as
well. In other words, polygamy is only possible if the husband will be able to treat
his wives justly. Otherwise, he is to marry only one wife, or even a female
slave. The key theme is to prevent him from doing injustice towards the woman
(or women) concerned.29 "And it will not be within your power to treat your
wives with equal fairness, however much you may desire it; and so, do not allow
yourselves to incline towards one to the exclusion of the other, leaving her in a
state, as it were, of having and not having a husband. But if you put things to
rights and are conscious of Him-behold, God is indeed much-forgiving, a
dispenser of grace". 30
Polygamy is treated variably in the legal codes of different Muslim countries.
While Tunisian and Moroccan personal status law prohibit polygamy
altogether, Syria, Iraq, Pakistan and Malaysia have made polygamy subject to
court permission, and only granted when certain conditions are fulfilled. These
"include the infertility of the existing wife, attainment of a "lawful benefit", the just
character of the husband and his financial ability to maintain a second wife. Some
countries have also stipulated the consent of the existing wife to the proposed
marriage, which must be given before the court." However, these conditions do not
have any express Quranic sanction, and are determined through social custom and
practice.
In Pakistan law has been successful in preventing bigamous marriages as tough
procedures are in place for its regulation. In 2017 the subordinate Court of Lahore
gave a progressive interpretation to the provision of 2015 family law enactment on
bigamy and held that a second marriage conducted without the permission of the
28
(Surah an Nisaa - Women, 4:3).
29
https://www.islamicity.org/3079/a-quranic-perspective-on-polygamy/
30
(Surah an Nisaa- Women, 4:129).

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 existing wife amounts to breaking the law. Lahore court, orders the man to serve a
six-month jail term and pay a fine of 200,000 Pakistani rupees.31 In Pakistan, the
law prohibits contracting a marriage during the subsistence of an earlier marriage.
If, in exceptional circumstances such a marriage is to be contracted, an application
in writing to the Arbitration Council has to be made. The application so made,
shall also have prior permission of the existing wife/ wives. The Council will
record its decision in writing, whether granting such application or not, and such
decision shall be final. However, if the husband marries without the permission of
the Arbitration Council, he shall be liable to pay the entire amount of dower to his
existing wife/ wives, immediately. And on complaint he can be convicted for the
same.
Although polygamy is permitted within Islam, it is a rare practice among Indian
Muslims, on the other hand it is frequently misused by persons of other religions
who convert as Muslims solely for the purpose of solemnizing another marriage
rather than Muslim themselves. Comparative law suggests that only few Muslim
countries have continued to protect the right to polygamy but with strict measures
of control.
It is therefore suggested that the Nikahnama itself should make it clear that
polygamy is a criminal offence and section 494 of IPC and it will apply to all
communities. This is not recommended owing to merely a moral position on
bigamy, or to glorify monogamy, but emanates from the fact that only a man is
permitted multiple wives which is unfair.

MAINTENANCE UNDER MUSLIM LAW

The Muslim law of Maintenance differs from the law of maintenance in most other
systems of law, expect wife, in most of the cases the obligation of a Muslim to
maintain another arise only if the claimant has no means or property out of which
he or she can maintain herself or himself. Under the Muslim law, this is the duty of
the husband to maintain his wife, irrespective of her debt against the husband and
has priority over the right of all other persons to receive maintenance. Maintenance
is called Nafqah, it includes food, raiment, and lodging and other essential
requirements for livelihood.

31
The 18th Law Commission‘s 18th Report on Covert‘s Marriage Dissolution Act, 1866

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 DIVORCED WIFE’S RIGHT TO MAINTENANCE:

Reasonable and fair provision and maintenance to be made and paid to her within
the iddat period by her former husband. A Muslim has a personal obligation to
maintain his children but it is not an absolute obligation. A father is bound to
maintain his female children until they are married. A Muslim widow has no right
to maintenance out of her husband’s estate in addition to what she got by
inheritance as his wife.32

In 1986, The Muslim women (Protection of right on divorce) Act was passed. The
Act has consolidated and harmonized the different schools of the Muslim law in the
matter of payment of maintenance to the wife on divorce. According to the Sec. 3 of the
Act, Mahr or other properties of Muslim women has to be given to her at the time of
divorce. While the orthodox view of the husband’s liability to pay maintenance only upto
Iddat period finds prominence in this act, the modern trend as reflected in section 125 of
the Cr.P.C has also been included making it optional on the choice of both parties.

Maintenance from other Relations and Wakf Board:

Sec.4, lays down a divorced woman is entitled to file an application for maintenance from
her relatives or Wakf Board, if she is not in a position to maintain herself and from her
husband.33

THE DEVIATION FROM THE CONCEPT OF ORIGINAL CONCEPT

OF DOWER (MAHR) UNDER MUSLIM LAW

Dower is a right of any woman taken by a man in marriage. She cannot be

forced to forgo or forgive it. However, if she willingly desires to give it back
to her husband she is allowed to do so. The dower should be given to woman
directly and not to her guardians.

In Arabic the term “Nihlah” means what is necessary. According to Islam it is the
command of Allah that men to not marry unless they give their wife something that is her
32
Dr. Paras Diwan- Muslim Law in Modern India-- Allahabad Law Agency, Allahabad
33
Professor Kusum- Family Law- Lexis Nexis’, Butterworths Wadhwa, Nagpur

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right. No person after the Prophet (PBUH) is allowed to marry a woman except with the
required dowry, nor by giving false promises about the dowry (intended).”And give the
women (upon marriage) their (bridal) gifts graciously. But if they give up willingly to
you anything of it, then take it in satisfaction and ease.34

Therefore, the man is required to pay a dowry to his wife with a good heart, just as he
gives a gift with a good heart. If the wife gives him part or all of that dowry with a good
heart, her husband is allowed to take it, as it is lawful for him in this case.
The recent trends in today’s scenario however do not seem to comply with the above
commandments of the Islamic faith and the commandments of Allah which can be shown
as follows:

The dower, which is the right of the girl being given in marriage, is not given to her:

Instead, the dower is taken by the guardians directly from the husband. To get rid of this
injustice, the Qur’an said, “And give the women [upon marriage] their [bridal] gifts
graciously.” The husbands are addressed here so that they directly give their wives their
dowers and not to their guardians. Also addressed here are the guardians of the girls with
the instruction that they should, in case, they receive the dower meant for the girls, give it
to the girls and make sure that they themselves do nothing to put the money in personal
use without the permission of the girls.35

Another injustice related to the attitude of the giver of the dower:

If someone had to pay it and realized that there was no way out, he would be sour and
unhappy and do it unwillingly as if he was paying a penalty. This injustice was removed
through the use of the word nihlah which in the Arabic means “giving something
cheerfully.”
The dower of women is their right, which must be fulfilled as an obligation. Since, all
obligatory rights must be discharged cheerfully, so the dower too should be given with
pleasure and graciously.

Pressurizing women to forgo their legal right of dowry:

Another injustice regarding the payment of dower was that many husbands, taking
advantage of the powerlessness of the wife, would use pressure and make them forgo and
forgive their dower. This act of theirs did not absolve them from paying the dower,

34
An-Nisa 4:4
35
www.legalbites.in/dower-mahr-muslim-law/

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however, they, on their part, went about free of the concern for dower pretending the
dower has been forgiven.

INHERITANCE UNDER MUSLIM LAW

A vast area under Muslim law is governed by the holy Quran which is the commandment
of Allah, and the same implies on the laws of inheritance. The Quran gives equality to
all however in the present practice is that the women as mothers, wives, daughters and
widows do not have equal rights. This practice runs contrary to the Shariat, where a
daughter and a widow cannot be excluded by any other heir and also have the protection
from the testamentary restrictions.
The ground reality is that most of the Muslim women are not well versed with their right
of inheritance .some of the common examples which proves the former statements are as
follows:
1. Most of the married women when asked about claiming their share have agreed
upon relinquishing it for their brothers in the name of emotional attachments.
2. In many cases it has been a common attitude of the families treating the gift of
marriage and the expenses incurred at the time of marriage as the share of the
daughters
In most of the cases, Mehr was not given to women not even after divorce had
taken place, neither in Khula nor in Fasakah. No divorced women were given
maintenance either for themselves or for their children in spite of their persistent
approach of Shariat Courts. A few of them got back their dowry. The practice of
Islamic principles and laws are far behind the gender justice for which Islam stood
and advocated 1400 years ago. 36
Most of her rights are confined within the pages of the rule book. The rights
granted to women by Islam have given her desirable rights, exalted status and a
constructive role in society.

36
Hamid Khan- Islamic Law of Inheritance-Oxford University

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POSITION OF WOMEN UNDER CHRISTIAN LAW
The Christian law would appear from the provisions of the Indian Christian Marriage Act
of 1872, the Indian Divorce Act of 1869 and the Concert Marriage Dissolution Act of
1936. It would apply to a person on the ground of his or her being Christian by religion.

The Indian Christian marriage Act, 1872 defines the term “Christian” as a person
professing the Christian religion. Under the Act the term Indian Christian including
Christian descendants of native Indians converted to Christianity.37 A person professing
Christian religion, even, if not baptized is a Christian. The expression person who
professes the Christian religion also includes children of such person. The Indian
Christians have no personal law and their domestic obligations have to be governed by
the English law.

WOMEN IN CHRISTIANITY

“So, caused the man to fall into a deep sleep; while he was sleeping, he took one of the
man’s ribs and closed up the place with flesh. Then the Lord God made a woman from
the rib he had taken out of the man, and he brought her to the man.”

This verse has been misinterpreted again and again and women have been subjugated
under Christian Law. Under Christianity, men were considered to be more idealistic,
spiritual and psychic than women. On the other hand, women were thought to be more
emotional, instinctive and physical than men. This was a scenario of absolute gender
stereotyping and it existed from last two thousand years.

Christianity emerged from Patriarchal societies that place men in position of authority in
marriage, societies and government. For early centuries, women were not ordained to the
priesthood but Christianity developed a monastic tradition which included the institution
of convent, through which women as religious sisters and nuns, played an important role
in Church life and have continued through history to be active; particularly in the
establishment of schools, hospitals, nursing homes and monastic settlement. Both
complementarian and egalitarians see Jesus as treating women with compassion, grace
and dignity. The historian Geoffrey Blainey wrote that women were influential during the
period of Jesus brief ministry than they were in the next thousand years of Christianity.

37
Paras Diwan - Family Law , Allahabad Law Agency, (Page 8)

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MARRIAGE UNDER CHRISTIAN LAW

Marriage, according to Christian tradition, is not merely a civil contract nor is it purely a
religious contract. It is seen as a contract according to the law of nature, antecedent to
civil institutions and by itself an institution. Christian views on marriage typically regard
marriage as instituted and ordained by God for the lifelong relationship between one man
as husband and one woman as wife. The common law tradition of monogamy, free
consent, marriage age, and mental competence, prohibited degrees of consanguinity and
licence to do it, were all incorporated in the Christian Marriage Act 1872.38

The Christian church prohibits divorce and does not permit the annulment of marriage for
any reason as they are commanded by the church to spend their lives together however
miserable their lives may be. Therefore, Christians have introduced the civil laws which
permits divorce on slightest pretext.

DISCRIMINATORY PRACTICE IN DIVORCE UNDER CHRISTIAN LAW

As regard the right of a Christian woman to seek divorce. The wife cannot seek divorce
on the ground of adultery by the husband while the husband is allowed. In her case the
husband’s adultery must be coupled with other factors. The provision provides double
standards of morality man/woman. In the case of wife, husband’s adultery has to be
something more than adultery; i.e. conversion plus marriage, incestuous adultery;
adultery coupled with desertion for two years or upwards adultery plus cruelty etc. She
can also sue for divorce on the ground that the husband is guilty of rape, sodomy or
bestiality.39

As far as the ground of adultery is concerned, it is the husband who is in a favourable

position as against the wife since it is not enough for the wife to prove adultery on the
part of the husband. To that extent, undoubtedly it is the wife who is discriminated
against.

However this anomaly has been removed with the enactment of the amendment of 2001
by the Indian Parliament.
38
Professor Kusum- Family Law- Lexis Nexis’, Butterworths Wadhwa, Nagpur- page 11

39
Sec 10, Indian Divorce Act,1869

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DISCRIMINATORY PRACTICES IN INHERITANCE
As far as succession is concerned Christian women stand on an inferior footing than her
Hindu or Muslim sisters. Anjani Kant writes: - “An important aspect to be considered
while dealing with the legal status of Christian women is, no doubt, the laws of
succession applicable to the Indian Christians. The Christians in India are governed by
the Indian Succession Act, 1925 with regard to the matters of intestate and testamentary
succession. But the Travancore Christian Succession Act and the Cochin Christian
Succession Act, being the law for the time being in force, in the respective localities are
by section 29(z) of the Indian Succession Act. Therefore in the matter of intestate
succession the Christians of Travancore and Cochin are governed by their own
succession laws.”

This shows that Christians in India are governed by three Acts relating to succession to
intestate or testamentary property in three different parts of India, namely in Travancore
state by the Travancore Christian Succession Act 1916, which governs the majority in the
state but it is not applicable to Christians in Neyyattinkara and some other Christians.
Cochin Christian Succession Act, 1921 is applicable to the Christians in the former
Cochin state except in the cases of the Tamil Christians in Chittor who follow the Hindu
Law. In other parts of Kerala, the Indian Succession Act 1925 governs the Christians. But
all the above described laws are not the same. They have different provisions for
succession. 40

The Christian women in Travancore had been undergoing discrimination and subjugation
for centuries. The Church and the Christian community were highly patriarchal and
demanded dependent and subjugated status of Christian women. The succession laws
enacted for the Syrian Christian excluded women from inheritance. The 1916 Act
contained provision for Streedhanam which is limited to Rs. 5000/- or 1/4th share of the
son’s property whoever is lesser. Women inherit intestate property only in the absence of
male members in the family. The anomaly is that these discriminatory successions laws
continued to be in force even after the commencement of the constitution.41 For example

40
Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi
41
Ibid

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the Cochin Law gives the daughter only one-third of that of a son while the Travancore
Act gave only one-fourth and the Indian Succession Act 1925 gives equal to the share of
the son and makes no discrimination.

Similarly in the case of widow there is no uniformity among the three Acts regarding the
share of the widow in intestate property. Indian Succession Act 1925 governs the
Christians in India but the Travancore Christian Succession Act and Cochin Christian
Succession Act, being the law for the time being in force, in the respective localities are
served by section 29(z) of the Indian Succession Act. Hence succession laws are different
for different localities inhabited by the Christians. It may be concluded that uniformity or
one law is desirable. It is for the government of India to see what it thinks is proper for
the Christians after taking them to confidence.42

42
Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi

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POSITION OF WOMEN UNDER PARSI LAW
The Parsi community‘s personal law has remained largely untouched so much so that it
continues to preserve the jury system for hearing divorce cases. Parsi women are
discriminated against by laws which have no basis in the community’s religious beliefs.43
It has been seen how the ownership and inheritance rights of Hindu and Muslim women
are affected by their respective laws. The Parsis, are a small community with 90%
literacy with a firm hold of the Indian industry and trade. This community is decreasing
with the passage of time as no new persons are admitted in the community.

A Zoroastrian woman who marries a non-Zoroastrian man is expelled from the

community even though she may continue to be Zoroastrian. In spite of the “Progressive
Education” Parsi women are discriminated, they have among the most unjust inheritance
laws in the country today which only goes to prove the discrimination and gender biases
do not disappear with ‘progressive education.44

INHERITANCE IN PARSI LAW

While the son is entitled to an equal share of the mother’s property along with the
daughter, the daughter is not entitled to the same right when she inherits the property of
her father. Mothers and daughters then are the worst suffers.

1. A Parsi woman is accorded no protection against arbitrary decision either - for where
as in Muslim law a father cannot disinherit his wife or daughter; he can only will away
one eighth of his property according to his wishes. A Parsi male is not bound by any such
restriction.

2. If a Parsi woman marries a non Parsi she would have to follow her husband’s faith and
bring up her children according to his wishes. Children of Parsi woman married to non-
Parsi have no right, as under Parsi law, they are not considered Parsi.

After the enactment of Parsi Marriage and Divorce Act and the Parsi Intestate
Succession Act 1936, the condition of Parsi women has much improved. According to
Anjani kant;

43
https://timesofindia.indiatimes.com/india/sc-seeks-centres-response-onquashing-jury-system-for-divorce-in-parsi-
community/articleshow /61882239.cms

44
Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi, p91

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“Where as in 1939 these rules conferred better rights to women than existing Hindu and
Muslims Law, with the passage of time they have gone out of step with progressive social
trends. Why the educated, outwardly emancipated Parsi women tolerate such inequality is
hard to comprehend. Many of course are ignorant of the law until it actually applies to
them. The smaller town of Gujarat, for instance, even today there have been recorded
instances of Parsi women being deprived of their legitimate share in the estate of their
fathers and husband. They have accepted all simply because they do not know that the
laws have been changed.45

45
Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi

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CONCLUSION

There is an inherent discrimination against women in the Indian social structure. This
prejudice is widespread even among the educated and enlightened people. Education is
the most powerful instrument for changing women’s position in society. Education for
women plays an important role in women’s empowerment. Education boots a women’s
self esteem, her self confidence, her employment opportunities and her ability to deal
with the problem of the world around. One cannot teach self confidence and self esteem;
one must provide the conditions in which these can develop. Education helps girls and
women’s to know their rights and to gain confidence to claim them. Education is
important for everyone, but it is a critical area of empowerment for girls and women’s.
This is not only because education is an entry point to opportunity but also because a
woman’s educational achievements have positive ripple effect within the family and
across generation.

The thrust also lies in understanding the fact that merely educating a girl child will not
suffice rather the vital role is to be played by the families by changing the age old
concept of discriminating between the sexes. We cannot deny the fact that we live in a
male dominating patriarchal society but at the same time we cannot also forget that it is
God who has created both the sexes and has not discriminated between the two and made
it evident that survival of one without the other is impossible.

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BIBLIOGRAPHY

PRIMARY SOURCE:

1. THE HOLY QURAN; SURAH AL NISA

2. PROF TAHIR MAHMOOD, LAWS OF INDIA ON RELIGION AND
RELIGIOUS AFFAIRS, UNIVERSAL LAW PUBLISHING CO.

3. SYED RIAZ AL-HASSAN,THE RECONSTRUCTION OF LEGAL THOUGHT

IN ISLAM

4. PROF.TAHIR MAHMOOD AND SAIF MAHMOOD, INTRODUCTION TO

MUSLIM LAW, UNIVERSAL LAW PUBLISHING CO.

5. POONAM PRADHAN SAXENA –REINFORCING PATRIARCHAL

DICTATES THROUGH JUDICIAL MECHANISM

6. LALITA DHAR PARIHAR- WOMAN AND LAW, PUBLISHED BY

EASTERN BOOK COMPANY, 2011

7. DR. PARAS DIWAN- FAMILY LAW, ALLAHABAD LAW AGENCY

8. ANJANI KANT- WOMAN AND LAW PUBLISHED BY APH PUBLISHING

CORPORATION, NEW DELHI

9. PROFESSOR KUSUM FAMILY LAW- LEXIS NEXIS BUTTERWORTHS,

NAGPUR

SECONDARY SOURCE

1. http://intolegalworld.com/2017/08/07/2position-of-women-under-hindu-law/last
visited 06-11-2018
2. https://www.thehindu.com/opinion/open-page/let-us-amend-the-law-it-is-only-fair-
to-women/article2288188.ece last visited 7/11/2018
3. www.legalbites.in/dower-mahr-muslim-law/last visited 24/11/18

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 4. https://timesofindia.indiatimes.com/india/sc-seeks-centres-response-onquashing-
jury-system-for-divorce-in-parsi-community/articleshow /61882239.cmslast visited
30/11/18
5. https://versebyversequranstudycircle.wordpress.com/2018/04/17/giving-the-
dowry-is-obligatory/last visited 1/12/18
6. www.shodhganga.com
7. www.legalservices.com

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