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Secular Civil Code: Divided we stand

Our different personal laws, and how they are stacked against women


Our different personal laws, and how they are stacked against women

Applies to Buddhists and Jains, and anyone who is not Muslim, Christian, Parsi or Jew or from an exempt scheduled tribe

Inheritance and succession : While it gave inheritance rights to both men and women, the Hindu Succession Act 1956 did not give women a birthright in ancestral property

Under the Mitakshara school of law, when a male member of the family died, the share in the family property went to male survivors (son, grandson), while his daughters and wife got part of his personal share

* But in 2005, that ‘coparcenary’ right was extended to married daughters as well

Marriage : Governed by Hindu Marriage Act (1955, amended later). Marriage is traditionally seen as a sacrament, solemnised by customary ceremonies

* Neither bride nor groom should have a living husband or wife, the bride should be at least 18 and the boy at least 21 years old

* They should not be within ‘prohibited degrees of relationship’ or ‘sapindas’, unless permitted by local custom. For example, one can’t marry one’s niece or stepmother

* Bigamy is criminal, but the complainant wife must prove that both marriages were performed according to appropriate ceremonies

Divorce, alimony and support: It’s a long-drawn procedure, since marriages seen as sacred

Divorce could be sought on specific grounds like adultery, cruelty, religious conversion, mental illness, etc.

* One can’t file for divorce within the first year of marriage

* There is a mandatory cooloff period to reconsider the decision, from six months to 18 months. A bill for easier divorce on grounds of irretrievable breakdown is pending

* Hindu women can claim interim and ongoing maintenance. Men can also claim interim maintenance

* Patriarchal assumptions persist in divorce and alimony. Refusing to live with the husband’s parents has been held as cruelty and grounds for divorce. A Hindu woman has no right to her matrimonial home, unless purchased with her earnings. If she is ‘unchaste’ or converts to another religion, she forfeits her rights to maintenance

Adoption and guardianship: The Hindu Minority and Guardianship Act 1956 allows Hindus to legally adopt. The law favours the father by default after the child is over five years old, in terms of guardianship, but was read down by the Supreme Court


Personal law not codified apart from the Muslim Personal Law Shariat Application Act (1937) and the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act 1986 (MWPRDA). There are four schools of Sunni jurisprudence (Hanafi, Maliki, Shaifii, Hanbali), and two Shia schools (Ja’fari and Zaidiyyah)

Inheritance and succession : There is no distinction between self-owned and ancestral property— individual claims to property are recognised

* There is no birth right, heirs get property only after the death of their ancestor

* Men and women have equal rights, but in practice women are given half their share because they are assumed to get the other half as mehr and maintenance after marriage

Marriage: It is a civil contract with clear obligations and duties

* A mehr (dower) is given by the groom to the bride for her use, either at the time of marriage or deferred for later payment

* The ceremony takes place in the presence of two adult witnesses (but a man is necessary, two women are not deemed enough)

* Polygamy is allowed

Divorce and spousal support: According to the Quran, a husband can pronounce divorce only after four attempts at reconciliation

* He has to also wait for three months (iddat)

* A man has rights of unilateral divorce, but a woman can move for divorce only on certain specified grounds, and this is often used by the husband to deny the mehr

* After the MWRPDA and Danial Latifi judgement, courts have ordered men to pay ongoing maintenance within the three-month iddat period before divorce

* Under the halala practice, a divorced woman must marry another man and consummate the marriage and get divorced again, to remarry her former husband

Adoption and guardianship: Muslims, like Christians and Parsis, had no specific adoption laws and had to approach the court under the Guardians and Wards Act, 1890

* They could only take a child in foster-care, and the child was free to break off the connection after reaching adulthood

* They had no right to inheritance either

* A mother is not seen as a natural guardian of the child


Inheritance and succession : The Indian Succession Act 1925 provides that property be divided equally among the children after deducting one-third, which is the widow’s share

* But testamentary power is absolute, a father can will his property entirely to his sons if he wants, saying that women had been given their share at marriage

Marriage : Governed by the Indian Christian Marriage Act 1872, with the exception of those in Travancore-Cochin area, Manipur and J&K

Divorce and spousal support : Divorce was traditionally much easier for men than women, until discriminatory provisions were reformed in 2001

Adoption and guardianship : Have no specific adoption laws. Can only apply under the Guardians and Wards Act, 1890


Inheritance and succession: Parsis penalise those who marry out of the community. A non-Parsi woman who is either a wife or widow of a Parsi cannot inherit, though their children can. If a Parsi woman marries out of the community, her children are not considered Parsi

Marriage : The Parsi Marriage and Divorce Act, 1936 was amended in 1988. Marriage is a spiritual compact, solemnised by a priest

Divorce and spousal support : Divorce claims can be filed only after two years of marriage

* There are specific, onerous grounds for divorce; mutual consent or irretrievable breakdown are not accepted as such

* Special Parsi marriage matrimonial courts adjudicate disputes

* Wives can claim maintenance under the Act until they remarry or start a relationship with someone else

Adoption and guardianship : The community does not recognise adoption as a means of childbearing


They follow their own customary laws

Source : timesofindia

This post first appeared on Daily Kiran, please read the originial post: here

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Secular Civil Code: Divided we stand


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