Navigating Religious Diversity Under Various Personal Laws: The Uniform Civil Code and Women Rights in India

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Author(s): Neha Gupta

Paper Details: Volume 3, Issue 1

Citation: IJLSSS 3(1) 04

Page No: 27 – 38

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ABSTRACT

The relationship between Indian women rights and personal laws is highlighted in this article. The legal status and rights of women in relation to marriage, divorce, and inheritance are discussed in this article. In relation to family laws, which are derived from different religious traditions the study examines how various religious communities differ from one another and shows how these regulations all contribute to gender inequity and restrict the autonomy of women. This Article examines women rights under India’s several personal laws. Women have the ability to inherit property and file for divorce under Hindu personal law, and their status has improved recently. Muslim personal law permits divorce and maintenance, but it only gives women half of the male heirs’ fortune, allowing for polygamy. In terms of inheritance and divorce, Christian and Parsi personal laws grant equal rights. A secular law known as the Special Marriage Act guarantees both spouses equal rights even if their religious backgrounds differ.

The Uniform Civil Code (UCC) is a crucial step towards achieving gender equality. The UCC is trying to establish a common set of laws that govern all citizens of India, thereby also trying to remove the biases found in personal laws. By assuring equal rights for women over all religions, the UCC would empower them with compatible legal protections and help to remove discriminatory practices. Additionally, the paper highlights the critical conversations surrounding the reform of personal laws to enhance gender justice. It also states that women rights must be viewed as fundamental human rights. The research promotes the complete approach to reform both legal and cultural factors affecting women rights within the personal laws and Indian legal system.

Keywords: Women, Religious diversity, Religion, Uniform Civil Code, Personal laws.

INTRODUCTION

Gender equality is necessary to improve the condition of women. The necessity of addressing gender inequality and defending women rights within the legal system has come to light more and more in recent years.

UCC will play a major role in gender equality, as reform in personal laws is essential for promoting equality and justice, as many existing laws reflect outdated societal norms that can discriminate, especially against women. Article 44 of the Constitution requires that the state shall endeavour to secure for the citizen a uniform civil code throughout the territory of India. But women still experience inequalities and injustices. The founding fathers of the Constitution were aware of the gender injustice and sexual inequality of women, and they incorporated Article 44 of the Constitution with the aim that it may be exercised in future at an appropriate time. It is really unfortunate that even after 77 years of independence, the state did not find it necessary to make any serious endeavours to fulfill this constitutional obligation.

These days, women are actively involved in all aspects of life, whether it be personal or professional, and they are developing in any field they choose. Our legal system also empowers women in various ways, and the need for reform is ultimately motivated by the desire to create a just and equitable legal system that reflects equality and modern values.

OBJECTIVE

It is very important to explore the problem of gender inequality. The main objective of this article is to explore the overview of various personal laws related to matrimonial rights of women in India, with a focus on identifying gaps and problems in the current legal framework. It is trying to find the recent developments in these laws and their implications for individuals, particularly women. Additionally, the purpose of making this article is to clarify the judiciary’s role in enforcing women rights and why there is a need for reform in gender equality in personal laws in the Indian context. And how can the Uniform Civil Code improve the condition of women?

METHODOLOGY

I have used Doctrinal method to prepare this Article. I have gone through many Books, Articles and various websites to collect findings for this Article.

OVERVIEW OF RELIGIOUS DIVERSITY AND PERSONAL LAWS

Religious diversity means a society where multiple religious beliefs and practices of various communities co-exist together. It consists of a vast variety of faiths and beliefs of different religions like, Hinduism, Islam, Christianity, Buddhism, etc. This diversity helps in developing mutual respect and understanding among different religions that in turn builds a strong societal unity.

Legal provisions under various religious laws govern the various aspects related to marriage, divorce, succession, and adoption according to the religious beliefs of an individual. In India there are different kinds of personal laws, like Hindu law, Muslim law, and Christian law, that regulate a few matters according to the faith of individuals. In short, it can be concluded that personal laws consist of legal provisions that help in governing the life of an individual on the basis of his or her religion from which such a person belongs.

IMPACT OF RELIGIOUS DIVERSITY ON WOMEN STATUS UNDER VARIOUS PERSONAL LAWS

A woman’s status is different in various personal laws. There are different sets of rules or provisions in the personal laws that either empower or limit the role of the women.

The women are given equal rights in the matters of inheritance and divorce under Hindu and Christian laws, whereas, on the other hand, their role is limited in the matters related to divorce and inheritance rights under Mohammedan law. Such as the differentiation of rights in different personal laws gives rise to discrimination between the women of different religions, due to which a large population of women has to remain deprived of their rights. This religious discrimination creates injustice in the society because of different laws. Women fail to acquire uniform rights that become a hindrance in the path of women empowerment.

PERSONAL LAWS AND RELIGIOUS RIGHTS OF WOMEN IN INDIA

Different types of peoples are governed by the different types of personal laws, like Hindu law, Muslim law, Christian law, and Parsi law. Personal laws cover various aspects related to marriage, divorce, inheritance, and adoption.

This is the overview of various personal laws:

HINDU PERSONAL LAW

Hindu law is governed by the Hindu Marriage Act, 1955[1], and the Hindu Succession Act, 1956[2]. It applies to Hindus, Jains, Buddhists, and Sikhs who live in India. Hindu law provides different rights to women, which are related to marriage, inheritance, and property.

  • Marriage Rights: According to Hindu law, men and women have the right to choose their partner. and an underage child’s marriage is illegal. The Hindu Marriage Act, 1955, states that the registration of marriage is optional according to Hindu law.
  • Inheritance Rights: Section 6 of The Hindu Succession Act, 1956, grants equal rights of inheritance to the daughters in her ancestral property. This means that both sons and daughters have an equal share in the property of their parents.
  • Property Rights: Women can own their property by themselves, and they can manage it without the interference of their husbands or others. It includes the right to transfer, buy, and sell property. In case of separation or divorce, women have the right to take maintenance and can claim a share in the property of her husband.
  • Maintenance: According to the Hindu Adoption and Maintenance Act[3], women have the right to take maintenance from their husbands after divorce. Sec 18 of the Hindu Adoption and Maintenance Act, 1956,3 states that these people are entitled to get maintenance for his wife, children, and old parents.
  • Protection Against Domestic Violence: The Protection of Women from Domestic Violence Act, 2005[4], provides protection to the female from any kind of violence, like mental violence, physical violence, and sexual violence, which she endures after marriage by the in-laws and husband.
  • Right to Adoption: Hindu Adoption and Maintenance Act, 1956. A woman also has the right to adopt a child with some conditions.
  • Right to Divorce: Under the Hindu Marriage Act, 1955, women have the right to seek divorce on various grounds, such as adultery Section 13, Cruelty Section 13(1)(ia),desertion Section 13(1)(ib).Sec13B tells about Divorce by mutual consent,Sec13(2)provides right to seek divorce only to women.
  • Right to Remarry: According to Section 15 of the Hindu Marriage Act women have right to marry again after taking divorce. This section gives freedom to women to choose their partner. She  also have the right to adopt a child, ensuring they can have a family and fulfill their parental rights.

MUSLIM PERSONAL LAW

All Muslims are Governed by the Muslim Personal Law (Shariat) Application Act, 1937[5]. In Islamic law, women are  also have certain rights which are given in Sharia (Islamic law).

  • Marriage Rights: Women have right to give her consent for marriage under Muslim law, and the consent of both parties are necessary under the contract Muslim marriage. ‘Mahr’ is a fundamental part of Muslim marriage which is given by husband to wife.
  • Property Rights: As per the Muslim Personal law there are no difference between men and women property right they both have equal rights on their ancestors property.
  • Right to Maintenance: Muslim women have right to receive financial support from their husbands for their basic needs, after Talaq it is known as “Nafaqah”. This includes food, clothing, house and other essentials.
  • Divorce Rights: Under Islamic law, a husband and wife may both file for divorce. Women are entitled to divorce through a variety of channels, including Khula, Faskh, or Talaq, depending on the situation. It is significant to remember that different cultures and religions may interpret Islamic law differently, which might result in divorce customs pertaining to women rights.

CHRISTIAN PERSONAL LAW

The Divorce Act of 1869[6]and the Indian Christian Marriage Act of 1872[7] govern all Christians in India. Christian law, which is frequently based on church traditions and biblical teachings, takes into account different perspectives on women rights.

The following are some important factors:

  • Marriage and Family: The concept of marriage and the family is considered a holy bond in many Christian religions. In addition to having the freedom to select their spouses, women are supposed to get respect and affection.
  • Leadership Roles: Leadership Positions: Among Christian faiths, women leadership positions vary greatly. According to their readings of the Bible, some denominations restrict leadership positions to men, while others let women hold positions as pastors, elders, and deacons. Many churches are still debating women ordination.
  • Christian Divorce Act: 1869’s Christian Divorce Act Generally speaking, the Indian Divorce Act of 1869 governs Christians in India. Due to this rule, Christians may seek for divorce on the grounds of cruelty, desertion, adultery, and religious conversion. If you’re pursuing a divorce in India under Christian law, you’ll need to back up your claims with documentation. Affidavits from witnesses, letters, or other records demonstrating your spouse’s infidelity or mistreatment of you may fall under this category. The matter will proceed to trial, where a judge will render a decision, if you and your spouse are unable to reach a settlement out of court[8].

PARSI LAW

All Parsis are governed under the Parsi Marriage and Divorce Act of 1936[9]under Parsi personal law. Parsi laws, which have their roots in Zoroastrianism, specially protect women rights.

A few essential components are as follows:

  • Marriage: According to Parsi tradition, marriage is a sacred institution. Consent is necessary for the marriage process, and women have the right to select their spouse. The conventional approach promotes mutual respect and cooperation.
  • Right to Inheritance: Women can inherit property in accordance with Parsi law. The Parsi Succession Act guarantees daughters a portion of the family’s fortune and permits them to inherit from their parents. An important part of women rights for the Parsi community is this.
  • Divorce: The Parsi Marriage and Divorce Act, 1936, Section 32, lists the grounds for divorce. Any married person may file for divorce when the defendant’s willful failure to consummate the marriage within a year of its solemnization.
  • Special Marriage Act, 1954: People of various castes, beliefs, or religions, as well as those who would rather not adhere to their own laws, can marry under this legislation. It contains regulations pertaining to inheritance and divorce as well as the registration of weddings. A number of significant rights pertaining to divorce and marriage are granted to women under the Special Marriage Act of 1954[10].

Key points pertaining to women rights under this Act are as follows:

  • Interfaith Marriage: Marriage between people of different religions is permitted by the Special Marriage Act. Because it gives women the ability to select their mates irrespective of their religious background, this is important for women.
  • Mutual Consent: This Act emphasizes the necessity of mutual consent in marriages between two people. Partners must voluntarily choose to marry, ensuring that women are not pushed into a union against their will.
  • Registration: Marriages are registered under the special marriage legislation, granting them legal legitimacy and protection. This enables women to assert their rights in marital conflicts such as inheritance or property claims.
  • Rights of Maintenance and Property: This act is primarily based on the principle of mutual consent, therefore the concepts of maintenance and property rights are comparable to the concept of mutuality. The wife has equal rights in her husband’s property and is entitled to maintenance after divorce to support herself.
  • Divorce Rights: The Act establishes grounds for divorce that can be initiated by either spouse. This statute grants spouses the ability to seek divorce under particular conditions, preserving their autonomy in marital partnerships.

Overall, the purpose of this act is to provide legal rights to couples who belong to different faiths and attempt to live together, but their personal laws differ, and there is a conflict between their personal laws, so this act serves as a remedy for both of them, and they are governed by it.

UNIFORM CIVIL CODE (UCC)

Article 44 of the Indian constitution[11] defines the uniform civil code; it falls under part IV of the Indian constitution, which gives the state power to make laws.

In India, most family laws are determined by the religions of the parties concerned. Like Hindus, Sikhs, Buddhists, and Jains came under Hindu law, whereas Muslims and Christians have their own laws. The purpose of UCC is to replace personal laws of different religions and communities in India and make a common law governing all citizens.

Article 44 of the Constitution of India states as a directive principle of state policy that the “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India.” The main aim of UCC is to treat every person equally under civil laws as well.

How the UCC can provide equal rights to women:

  1. Uniformity in marriage and divorce laws: Currently, different religions have different laws governing marriage and divorce. UCC would standardize these laws, ensuring that women have equal rights and protections in marriage and divorce, irrespective of their religious background. This means that issues like polygamy, which is permissible in some religions, would be addressed uniformly.
  •  Property Rights: There are various inheritance rights mentioned in different personal laws for men and women. These personal laws are leading to unequal treatment among men and women. UCC will also help in eliminating the discrimination against women in property rights as well.
  • Maintenance and Alimony: The right to maintenance is granted to women, children, and the elderly under section 144 of our Bharatiya Nagarik Suraksha Sanhita 2023 for any woman who is unable to support herself after divorce, but in personal laws, there are different criteria for maintaining women after divorce based on religion. Under UCC, the right to maintenance would apply uniformly, regardless of religion.
  •  Adoption Rights: Just like inheritance or other rights, women experience discrimination in adoption rights under various personal laws. UCC would also standardize regulations governing women adoption.

UNIFORM CIVIL CODE IN INDIA

On 7th February, the legislative assembly of Uttarakhand passed the Uniform Civil Code Act 2024. It contains various provisions. It will apply to every religion residing in Uttarakhand except the scheduled tribe (Sec 2 UCC Act 2024).

It aims to replace various personal laws of Hindus and Muslims with a uniform law in cases of marriage, divorce, inheritance, property, etc. It also focuses on the concept of live-in relationships; the UCC Act of Uttarakhand makes various laws regarding live-in relationships that will apply to every couple living in Uttarakhand irrespective of their religion.

It also prohibits polygamy, nikah halala, and iddat, and also makes some new provisions regarding the rights of women in property. It majorly focuses on gender equality in various ways.

In India, the states and union territories listed below have adopted the Uniform Civil Code (UCC)[12]:

  1. Goa: Goa, Daman, and Diu Civil Code, 1969 (applicable to all inhabitants, irrespective of faith)
  2. Pondicherry: The 1952 Pondicherry Civil Code. Furthermore, some states have planned or introduced laws to put UCC[13] into effect:
    • The Madhya Pradesh Uniform Civil Code Bill, 2023 is still pending.
    • The 2022 Himachal Pradesh Uniform Civil Code Bill is still pending.
    • Committee for the Karnataka Uniform Civil Code, 2022 (examining implementation)
  3. Assam: In order to repeal the Assam Muslim Marriage and Divorce Registration Act of 1935[14], the Assam government enacted the Assam Repealing Ordinance 2024.

Following the decision, Muslim marriage or divorce registration can happen only through the Special Marriage Act, 1954. Thereafter the state government of Assam will introduce a bill to end polygamy in the state in the new legislative session of the state. The Assam government also asks for public opinion about the law.

A total of 149 suggestions were received from the public, out of which 146 opinions were in favour of the bill; however, 3 opinions were received against the bill.

CONCLUSION

The religious diversity in various personal laws must be dealt with utmost care and due consideration. The Uniform Civil Code is a crucial arrangement to achieve equality for all the citizens of the country irrespective of any religious discrimination. A proper procedure for discussions and collection of suggestions from various stakeholders of different communities, as followed by the Uttarakhand Government, must be established before bringing any unilateral legislation.

The provision of the Uniform Civil Code was introduced by the Constituent Assembly, where the Drafting Committee’s Chairman, Dr. B.R. Ambedkar, supported the Uniform Civil Code for the country by stating an example of North Malabar, where the Marumakkathayam Law applied to all, not only to Hindus but also to Muslims.

Other than citing this example, Dr. Ambedkar also devised a method under which, if the citizens were not ready for immediate implementation of the Uniform Civil Code, the Parliament would then implement it on a voluntary basis after obtaining the consent of individuals who wanted to be governed by it.

Hence, by taking the inspiration from the Father of the Indian Constitution, Dr. B.R. Ambedkar, the Parliament, instead of unilaterally imposing a uniform civil code, must implement it after taking certain communities in trust, which would bring fruitful results for all the citizens of the country.                

SUGGESTIONS

  1. Programs to educate and make the general public aware of the Uniform Civil Code must be run by the Central Government.
  2. An expert committee must be established by the central government, consisting of members from the fields of law and social service, for the preparation of a report regarding the implementation of UCC.
  3. Meetings between the committee members and stakeholders of different communities must be arranged by the central government for discussion related to UCC.
  4. A mechanism must be established by the Central Government for the collection of the suggestions and opinions of the general public about the UCC.
  5. After discussions and collection of suggestions, the final report must be prepared, which shall be handed over by the expert committee to the central government.
  6. After analysing the findings of the Expert Committee, the Central Government shall prepare a draft of the UCC with the help of drafting experts.
  7. The said draft shall be tabled by the Central Government in the Parliament for discussions with the elected members of the Parliament (Lok Sabha).
  8. After a thorough discussion and after taking into account fruitful suggestions of the eminent members of the Parliament, the bill shall be opened for voting in the Parliament.
  9. If the bill receives the required majority in the Lok Sabha, it shall be forwarded to the upper house of the Parliament that is in Rajya Sabha.
  10. The said bill must be discussed by the members of the upper house, which shall be opened for the voting process after discussion.
  11.  If the bill receives the required majority at the Rajya Sabha, it shall be then forwarded to the Hon’ble President of India for assent.
  12. After the assent of the Hon’ble President, the act shall be enforced by the central government in the country.

[1] Hindu Marriage Act, 1955

[2] Hindu Succession Act, 1956

[3] Hindu Adoption and Maintenance Act, 1956

[4] Domestic Violence Act, 2005

[5] Muslim Personal Law (Shariat) Application Act, 1937

[6] Christian Divorce Act,1869

[7] Christian Marriage Act, 1872

[8] https://www.lexsolutions.org/the-grounds-for-divorce-under-christian-law-in-india/

[9] Parsi Marriage and Divorce Act,1936

[10] The Special Marriage Act, 1954

[11] Dr. J.N. Pandey, Constitutional Law of India,54th ed.2022; Central Law Agency.

[12] https://www.loc.gov/item/global-legal-monitor/2024-03-21/india-legislative-assembly-of-uttarakhand-enacts-uniform-civil-

[13]code/#:~:text=On%20February%207%2C%202024%2C%20the,assent%20by%20President%20Droupadi%20Murmu.

[14] https://en.wikipedia.org/wiki/Uniform_Civil_Code

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