© 2018 IJRAR December 2018, Volume 5, Issue 4 www.ijrar.

org (E-ISSN 2348-1269, P- ISSN 2349-5138)

WOMEN’S MARIGINALIZATION AND PERSONAL

LAWS IN INDIA
Maheema Rai
Research Scholar
Dept of Peace and Conflict Studies and Management
Sikkim University
Gangtok, India

Abstract: Contemporary India is a multicultural society that is pluralistic with regards to religious personal laws. But these variations in
personal laws have delimited the status and position of women in India which our secular state is reluctant to reform. However, these laws
have generated debate about the meaning of gender equality in India, since all personal laws delivers women with fewer rights than men
though Indian women have been promised equality as a Constitutional right which is violated when personal laws are So, this study is
highlighting the insecurity and marginalization of women that existed due to the presence of the personal laws in India.

Key words: Women, personal laws, marginalization, inequalities.

INTRODUCTION
India is a country having different religions with many languages where number of people is governed by their personal laws. The presence of
personal laws have resulted in the treatment meted out to different classes of people specially women. Mostly the position of women has
emerged as a major concern in the modern world. As religion being a powerful source of collective identity, plays a central role in human
civilization. Every religion manifests in the society through its system of beliefs and practices according to which people organize their lives,
individually and collectively. The Indian society has undergone considerable changes in the modern times. However, the position accorded to
women in Indian society is far from the spirit of modern perception of equality. Due to such disparities and inequalities there are lots of
difficulties to live a life with self respect and dignity to a woman. The present paper is focusing on Hindu, Muslim and Christian personal laws
and the disparities that lead to marginalization of women in India.

WOMEN’S MARGINALIZATION IN INDIA

Gender discrimination and marginalization is a global practice that manifests itself in cultural and religion hegemony. In India
women’s marginalization has been one of the core realities in the Indian society. The great thinker and philosopher like Aristotle have
regarded women as inferior to men, who further stated that femininity is an incomplete version of masculinity. He believed that woman lacks
qualities, defective by nature and incomplete in comparison to men. In India women are seen as divine and worshipped as the embodiment of
all virtues on one hand and on the other hand she is discriminated and victimized by the norms traditions and customs created by the male
dominated society. She has not been given her due and legitimate place and status in the society after several social and cultural reformations.
These particular gender roles generated through the system of patriarchy have been the source of female subjugation in India. Due to this
almost every woman in her life has experienced the feeling of marginalization and discriminated against her due to her gender (Walker, 2006).

The status of women in India has many alterations and transition since past millenniums. In the Vedic period position of women and
their status were one of the core pillars of the society but it was for limited period as followed by the medieval period her position detoriated
through more rigid religious laws and customs (Kalaiyarasi, 2015). Since then the position of women and her marginalization is very frequent.
In Indian society the fate of woman is always decided since the time of her birth while they struggle since small fetuses. One of the factors
related to female foeticide in India is the economic factor associated with it. The cultural politics of dowry have lots of answer for this
pernicious act. According to United Nation Population Fund, India ranks fourth in terms of female foeticide and infanticide. Immediately after
birth, gender biases against girls show up in a variety of dimensions from their health to their education (Cesare, 2014). The cultural and social
factors are interlinked with propagation of violence towards women in India with the different socialization between sexes have resulted in
gender stereotype roles. One of the factors that accept this socialization of gender is the family and its member which brings about the
hierarchical relation between two genders. The home is a place where most security is given is also the place where women and exposed to
violence and domestic violence is rising in India since 2001.

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Figure 1: Domestic Abuse in India 2001-2012

2012 106527
2011 99135
2010 94041
2009 89546
2008 81344
2007 75930
2006 63128
2005 58319
2004 58121
2003 50703
2002 49237
2001 49107

Source: National Crime Bureau Report, 2001-2012

The domestic abuse is one of the blotches of our social system where patriarchic social system is the prime factor and the present
condition of women in the Indian society (Naidu, 2011). The domestic violence is a scourge that affects not only woman but also her children
which led to poorer mental health in adulthood and greater trauma associated with high levels of mental health syndromes (Jeevitha and
Suman, 2010; Banyard et.al, 2008). In order to safeguard the life of women the Government of India has enacted Domestic Violence
Prevention Act, 2005 but still the violence against women is rising. The social and religious taboos in India are so strong that it restricts the
freedom of women. The so called concepts of pure and impure are very rampant in India and are practiced almost by all religions. In many
parts of India menstruation is still considered to be dirty and impure. Many girls and women are subject to restrictions in their daily lives
simply because they are menstruating. The condition of the women from the lower caste has to face double burden in terms of purity and
impurity are concerned. The social stratification and cultural and religious practices have resulted in a negative development of women in
India (Garg and Anand, 2015). The other arena where women are vulnerable is when they become widow. Becoming a widow is more
hazardous, painful and humiliating to women than to a widower because of the discrimination in rituals and the negative social attitudes
towards them and social restrictions that are placed upon them and their activities. They are subject to patriarchal customs, religious laws and
widespread discrimination in inheritance rights. Many suffer abuse and exploitation at the hands of family members, often in the context of
property disputes (Sahoo, 2014). Remarriage is much less common than among male widowers, and often explicitly or implicitly forbidden by
local communities and prevalent cultural norms. With the result, widows in India not only suffer with social and economic sanctions but also
face many psychological consequences, loneliness and in many cases deprivation causing emotional disturbances and imbalance (Verma,
2016). The social reality of every Indian society has blocked the freedom and space of women economically and culturally. The economic
understanding of this cultural norm is the fact that most of the women are financially dependent upon her husband that has resulted in
women’s subjugation (Abhang, 2015). Women’s subordination within society is also reflected in religious norms and values. In India the
religious practices especially the personal laws are one of the core reasons for the women’s marginalization (Devgan, 2008). The religious
personal law systems of India have not helped Indian women in protecting their rights. Rather, the preservation of these separate laws has
served as deepening factor towards inequalities and subjugation of women (Chibber, 2008).

PERSONAL LAWS IN INDIA

India is considered as a secular country which is home for a host of traditions and customs. Each of these religions managed to retain its
identity within India’s multi-religious spectrum and survived for millennia. There are various religions like Hindu, Muslim, Sikh, Christian,
Parsi, Buddhist, Jews, Jains who follow various religious personal laws which is not uniform in nature. This personal law has resulted in the
making of patriarchal dominance of men and the unequal treatment of women. These personal laws are set of rules that govern and regulate
areas like connecting each and every religious society like Marriage, Divorce, Maintenance, Succession, Minority and Guardianship in Hindu
(including Buddhist, Sikhs and Jains), Muslims, Christians and the Parsi. The personal laws in India are based on scriptural laws which are
divided and based on religions (Sathe, 2002). They provide norms of governing personal relations in the family set up. With the passage of
time, these norms were given statutory recognition with several enactments in the area of Marriage, Divorce, Maintenance, Inheritance and
Succession, Guardianship and Custody matters (Wadje, 2013). The personal laws depicts about the culture, behaviours, beliefs and values that
helped in shaping our understanding about social reality and its surroundings. But according to Ghosh (2007) this laws has dual nature as he
states that just by being in a certain religious community the persons are abiding the rules and regulations not by being just an individual. He
further argues that just by the virtue of being in a religious community the fate of men and women are assigned where women are very
subordinate to men which are unequal in nature. The Indian women have been promised equality as a constitutional right which is still a
distinct dream. And the presence of the personal laws has been used selectively as a tool for governance and often disadvantage towards
women (Parashar, 2008).

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Hindu Personal Law: The Hindu law is based on the Dharmasastras as their religious tradition and customs. Till the codification of Hindu
law the Hindu women did not enjoy equal rights along with the Hindu men. Before Hindu succession Act 1956 polygamy was prevalent
among the Hindus and women did not used to get the property from her parents (Chaudhary, 2015). Though the codification has made certain
adjustment for the women but discriminatory provisions still exist. The Hindu Succession Act, 1956 section 14 Suraj Mal v. Babu Ram, 1985,
states that women who had possessed stridhan from her parents will be her property which will be fully vested upon her but it also states that
she doesn’t have any right over her husband’s property except right to maintainace (The Hindu Succession Act, 1956). For example a Hindu
woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu.
Consequently she is not entitled to claim a share in the coparcenary. Succession to a female intestate's property depends on the type of
property. In the absence of children, property inherited from the female intestate's parents devolves upon her father's heirs. If a woman doesn’t
have children then the property inherited from her husband or father-in-law would go to the husband's heirs and also Section 23 of the Hindu
Succession Act, 1956 states that a female heir don’t have any right to possess or ask for the partition of the joint family dwelling house (Rout,
2013; Hindu Succession Act, 1956). A Hindu woman could be the owner of this property under certain basic limitation like she could not
alienate the property and she could devolve the property to the next heir when she is on her death bed (Hindu Succession Act, 1956). The only
property ownership of women is Stridhan which was given to the women during their marriage by her parents but this Stridhan now
commonly known as dowry has become one of the reasons for dowry deaths in India.

Figure 2: Dowry Deaths in India from 2011-2015

8618
8455
8233
8083

7634 7621

2011 2012 2013 2014 2015 2016

Source: National Crime Bureau Report, 2015
Dowry deaths are very rampant in India and which was highest in the year 2011 and lowest in 2016. Though the incidence of dowry is being
decreasing but still there are many cases of unreported cases that have not been registered. There is a derogatory law where section 24 of the
Hindu Succession Act, 1956 stated that widows re-marrying may not inherit. The other issue of Guardianship where according to Section 6(a)
of the Hindu Minority and Guardianship Act, 1956 considers the father as the natural guardian in the case of a legitimate child and in the case
of illegimate the mother is considered as the natural guardian. But there are certain circumstances where mother as the guardian have been
stated under certain condition like in the Hindu Minority and Guardianship Act, 1956 states that if the father is absent then only mother is
regarded as the natural guardian after the father. Here the word after has been interpreted as secondary role in the life of the minor child. The
mother is the only considered as natural guardian in the case of illegimate case. Though the law has deliver equal status to both mother and
father as the natural guardian of the child which in certain cases undervalued by our society (Morarka, 2017).

Muslim Personal Law: The primary source of Islamic law is the Quran, which is believed 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, Quran is
supplemented by other sources to form the basis of Shariah (Mashbour, 2005). There is a big gap between the scriptural formulation i.e.
quaranic proclamation and Shariah which has created a ground for women’s subjugation. In Islamic personal law the property rights of women
is not considered (Jaising and S, 2007). Like the Hindu’s tradition of Stridhan, in Muslim law too they deliver women with certain Stridhan to
which they call as mehr. The Quran, sanctions mehr to married women, which is a sum of money or other property given to a woman by her
husband at the time of marriage, and she has full right over it. It is meant to protect the wife against the arbitrary exercise of the husband’s
power to divorce, as well as it also stipulated at the time of marriage, future security (Agnes, 2011). Women’s limitations in inheritance rights
are compensated by maintenance this shows the concept of dependency. The Muslim social structure, which is basically rooted on male
dominance, is considered as the diminishing women’s access to property rights. Under Sunnis if the husband is dead if his wife and children
are alive then the wife is entitled to 1/8th shares of the property and if the wife dies and husband is alive then the husband gets 1/4 th of the
shares of property . In case the son and the daughter inherit the property together the son gets twice then the daughter. The husband gets 1/4th
share and the wife 1/8th share when there is a child and when there is no child 1/2th and 1/4 th respectively (Muslim Personal Sharait Law
Application Act, 1937). The above mentioned property sanction of women is very vague in nature. According to Islamic law there are three
types of marriage valid, void and irregular marriage. In this context the valid or Sahih marriage is commonly called is the only marriage where
they get rights of inheritance. In the other two from of marriages they are not allowed for right to inheritance (Chawla, 2013).

One of the most draconic acts of Muslim personal laws is the existence of the Triple talaq. The husband has more power than the
women when it comes for dissolution of marriage in Muslim community. As just by pronouncing triple talaq is enough to get divorce from

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their wives by the Muslim men which are not the case with the Muslim women. The dissolution of marriage in Muslim law varies within
different schools as Muslims are divided into two schools that are shia and sunni. The sunni is divided into four sub schools i.e. Hanafi,
maliki, Shaifi and hanbali. The Shia school is divided into various sub schools but most important are Ithna Ashari and Ismailia Schools. Out
of these sub school only Maliki sub school is favourable towards women (Asaf, 1999). The other issue in Muslim law is polygamy which is
very contentious issue. It is a manifestation of how patriarchal interpretation can prevail and dominate. A Muslim man may marry up to four
wives but a Muslim woman can marry only one husband and if she marries another husband, she is liable for bigamy under section 494 of
Indian Penal code and the offspring of such a marriage are illegitimate (Saharay, 2007). The practice of Nikah Halala on the other side
determines that a Muslim woman is not allowed to remarry the husband who has divorced her unless she first marries another man and
consummates that marriage (Vatuk, 2008).

Christian Personal Law: the bible is the prime authority for Christians. There are several passages that are found in the New Testament which
announce equal nature of woman and man one of such practices is the baptism which is a step to abolish the difference between both the
genders. In Christianity religion is one of the most important factors in the institution of marriage. The priest in Christianity holds a very high
position where as women don’t hold very high position in the church organization. This clearly shows the patriarchal tradition that compels
women to remain subjugated. Most of the Indian Christians are governed by their own customary law where property inherited by the female
member is very less. Though having covered by the Indian Succession Act women are still discriminated in terms of the property rights are
concerned. When we look into the Travancore Succession Act of 1910 the rights of the daughters were limited to one fourth of the shares as
compared with the some and if the property appeared to be excess then it was automatically inherited by the son and in the absence of the son
it would be followed down to the other male relatives (Agnes, 2011). Christian women, whether married or unmarried were excluded from
inheritance of property and parental property was passed on to male’s line. Both the laws followed the Hindu law in matters of succession.
They severely restricted the property rights of women belonging to the Indian Christian community.

These kinds of laws and practices are in a very clear tone violates women’s rights as a human being. As the matter of fact in all
religious personal law is concern the status of women and their rights are not taken into consideration.

CONCLUSION
Gender discrimination and marginalization is one of the most pertinent forms of institutional deprivation that is backed by the patriarchic
system. Indian women face several obstacles for securing justice where religious tradition and cultural values plays an important role.
Contemporary Indian society is still refusing to give away its traditional values and customs which have resulted in woman’s subjugation.
Religions and their laws have controlled our thoughts that have distorted reality and obstructed women from questioning. Though Indian
constitution has guaranteed equal rights irrespective of religion, caste, race, sex etc in the Article 14 and Article 15 but these rights are not
compatible when dealing with the issues of personal laws. In India discrimination starts when the girl is in her mother’s womb and since then
she is victim of discrimination in the form of sex discrimination test leading to foeticide and female infanticide. The home which supposes to
be safe for her security is where women are mostly exposed to violence. The socialisation processes in the family itself have created diverse
understanding about the gender role where the role of girl/woman and boy/man are different. As the source of discrimination and
marginalization have resulted women to internalize patriarchy within their lives which is the reason most of the women are silence towards
their marginalization. The patriarchal set up did not let women to permit her to own property which further the rights of inheritance were
granted to the male collaterals. The inability to be economically independent was due to her denial of rights due to presence of personal laws
that operates in our stratified society. The personal law denies women a formal equality in personal relations where marginalization of women
is a real problem in India. The women are deprived of their basic rights so in order to bring a change in women’s life their empowerment
should be put forward in the matters like social, economic, cultural etc. Thus in these circumstances the gender justice and gender equality can
be achieved through Uniform Civil Code which will be entrusted with the task of correcting the imbalance perpetrated on the disadvantageous
section of our society especially woman by the rigid and outdated laws.

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