The past few months including the pre UP and post UP elections have revoked an old debate, gender justice for Muslim women due to archaic Mohammedan Personal Law in general and Talaq e Biddat (Triple Talaq) in particular.
In this article, we wish to disclose the saga of State sponsored discrimination whereby the Hindu Personal Law has undergone massive transformation whereas the Muslim Personal Law has remained more or less stagnant in the history of Independent India.
For this purpose we look at every major aspect of personal law and the legislations to regulate that as far as the two most populous communities of India are concerned.
Maintenance Rights of the wife:
Hindu Law: By virtue of the enactment of Section 18 of the Hindu Marriage Act, 1955 and Section 24/ 25 of the Hindu Adoptions and Maintenance Act, 1956 the husband has been made liable to maintain his wife in all plausible situations, viz.
• When the wife lives with her husband,
• When the wife lives separately from her husband (whether under a decree of the Court or not)
• When the wife lives separately in pursuance of the dissolution of marriage.
Therefore, the Hindu Law of maintenance was brought at par with the needs of a modern society where women being the marginalized and discriminated community needed sufficient protection within five to six years of the commencement of the Constitution of India.
Muslim Law: On the other hand, the State lived in a moribund condition as far as recognition of the maintenance claim of the Muslim wife is concerned. Thus, the old Mohammedan law of dower (mehr) prevailed whereby all that the husband needed to do was make a pre fixed one time payment called dower to the wife after arbitrary dissolution of marriage in lieu of maintenance. The barbarity of the law of dower is illustrated with great clarity by the case of Mohd. Ahmed Khan v Shah Bano Begum (1985), where a husband suddenly resorted to arbitrary and capricious powers to divorce his sixty two year old wife and was required to pay only the meager dower money that was determined some four decades ago before their marriage and which at the time of divorce had no significant value given the time value of money. The hon’ble Supreme Court did what the State had failed to do for the last 35 years, i.e. grant maintenance rights to the Muslim wife at par with her Hindu counterpart after the dissolution of marriage. But the Rajiv Gandhi Government made sure that this respite was short lived and enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986 to reverse the effect of the Shah Bano judgement.
Marriage and Divorce Laws:
Hindu Law: The Hindu Marriage Act, 1955 brought about sweeping changes in the ancient Hindu Law and changed the edifice of the Hindu Law on marriages and dissolution of marriage upside down. After the enactment of this Act merely the ceremonial aspect of Hindu law has been retained and the State took it upon itself to determine substantial marital obligations of the parties and the procedure governing its dissolution.
Section 5 (ii) of the Act prohibited bigamy. Polygamy was prevalent in the ancient Hindu Law upto 1955 and was prohibited only in the state of Bombay vide a statute of 1948. Now, bigamy became an offence for a Hindu husband under Section 494 of the IPC.
Another landmark change brought in the Hindu Law on marriages was the introduction of the concept of divorce. Before the introduction of this legislation Hindu marriage was seen as a sacrament which was indissoluble in nature. The Hindu law on marriage was as such alien to the concept of divorce whether consensual or unilateral. Section 13 introduced the concept of divorce for the first time whereby a party can present a petition for divorce and obtain a decree for divorce on default of specified marital obligations by the other party, e.g. acts of cruelty, adultery, etc. Some special rights have also been vested on women under Section 13 (2) of the Act. The Marriage Laws (Amendment) Act, 1976 further liberalized the law on dissolution of Hindu Marriage and introduced the concept of divorce by Mutual Consent under Section 13-B of the Act whereby a petition for divorce could be presented jointly by both the spouses. Therefore, the fault theory has been done away with and marriage which was an indissoluble bond under the ancient law can be dispensed with under the modern law even without default by any of the parties if the parties to the marriage feel that they cannot cohabitate.
Muslim Law: The Muslim law has remained more or less stagnant as compared to Hindu Law. The Muslim husband can still marry upto four wives and the archaic law of polygamy has not been undone even after around 7 decades since the commencement of the Constitution of India.
As far as the law on divorce is concerned, the old law of Talaq including Talaq ul Sunnat and Talaq ul Biddat, i.e. arbitrary power of the husband to bring marriage to an end is still in vogue. It is different from divorce under Hindu Law in the sense that it is a unilateral power vested in the husband who can invoke it even if the wife is not at fault in accordance with the personal law. Talaq ul Biddat (Triple Talaq) is more barbarous and capricious being irrevocable in nature and becomes effective as soon as it is pronounced by the husband without any scope for reconciliation. It is this doctrine which has led to newspaper reports of Muslim husbands divorcing their wives for the most absurd of reasons. The Muslim wife was not given any rights to dissolve the marriage under the ancient law but some rights were vested in her vide the Dissolution of Muslim Marriage Act, 1939 but the rights vested under the Act are sparse and meager as compared to the rights vested in the Hindu wife under the Hindu Marriage Act. Moreover, the invocation of most of such rights can be made only if the marriage has not been consummated.
Succession Laws:
Hindu Law: The Hindu law has come a long way from complete depravation of succession rights for women before the passing of the Hindu Succession Act, 1956 to allowing a Hindu daughter to act as Karta vide a latest Delhi High Court judgment.
The Act brought about a revolutionary change in the Hindu law even as a Hindu mother, wife or daughter got a share equal to that of the son on the death of a Hindu male. In fact, a Hindu mother has been given preference over her male counterpart under the modern law. While a Hindu mother is a Class I heir and entitled to receive a share in the property of her deceased son, a Hindu father is a Class II heir who will be entitled to his son’s property only if none of the Class I heir are alive. The law has been further liberalized after the passing of the 2005 Amendment whereby and now a daughter is also coparcener just like a Hindu son in the Hindu undivided family entitling her to similar rights in the Joint Hindu family property like a Hindu son including the right to ask for a partition of the family and by extension the joint property.
The Muslim law of succession has shockingly not been a subject of criticism unlike Talaq ul Biddat. Even though the old Muslim law vested inheritance rights in the Muslim female the succession law is highly biased in the favour of the Muslim men and prejudiced against the women. Thus, a son gets twice a daughter’s share in the deceased father’s property and the share of a muslim woman is even lower in other cases. This seems archaic and barbarous compared to the Hindu law where the personal law has become egalitarian, even slightly favourable towards women.
Conclusion: Legislation must act as an instrument of social change in order to be effective rather than waiting for the society to change. The proponents for Muslim regression have been arguing that the Muslim community is reluctant to change in the current circumstances and that reform can wait. This was rebutted in an appropriate manner by the former Prime Minister Vajpayee when speaking about Uniform Civil Code on the floor of the Parliament when he said that he accepts that BJP is not popular among the Muslim Community but even those who are closer to the Muslim community are not asking to reform itself according to changing times but are driving it away further.
There is no cogent explanation to the State sponsored discrimination between the two communities. We are not saying that the Hindu community or the Muslim community has been collectively discriminated against. If any community has faced the wrath of this legislative discrimination, it is the Muslim women. The fact remains that Hindu society was also not completely conducive to the wave of reforms that had been introduced in the early years of independence by the Nehru Government. Arbitrary, archaic and unconstitutional customs cannot be allowed to remain in vogue in the guise of freedom of religion or religious sentiments. It is also true that the right to religious freedom does not include the right to determine the personal law of the community, if it was so the State would not have been able to introduce comprehensive changes in the Hindu law. The stagnancy of Muslim personal law is not a sociological or legal issue but a political one. The argument of soothing religious sentiments is also a flawed argument, whose sentiments are we talking about, the sentiments of the Muslim community as such or the All India Muslim Personal Board? The legislators should stop soothing the fringe elements and respond to the grievances of the female victims of the Muslim community.
The legislators are the chief culprits of this chasm between the two communities. They have not only been unable to resolve the issues involved with the Muslim Personal Law but have also been instrumental in blocking every judicial attempt to somehow ensure gender justice for Muslim women.