Culture, norms and laws of a region are often interlinked. Cultural influences, the daily state of society and social norms and the direction of their development, while laws determine the nature and form of culture and has the function of transforming it. Laws may change this foundation, but the culture reflects its reality and internality. Harrison, an expert on cultural models, believes: “Culture is the values, beliefs, and concepts shared by members of a society”.
Historically speaking, culture and societal norms were not very favourable towards women. The simple fact remains that women are biologically less strong than men and during primitive times when biological strength was the only basis of survival, men were considered superior and women took a backfoot. This precedence was set and thereafter the culture and social norms were developed in such a manner, which favoured the people playing a formative role in them, ie. the men. This was coupled by the fact women themselves believed men to be superior and happily obliged with and complied with the social norms which favoured the superior gender. This was the global thinking and went on till much beyond the 20th century. Women in many progressive and developed countries such as in USA didn’t even have the basic right to vote till the year 1920. However, as seen in the beginning of the article, laws have the power of shaping cultures and norms. From the mid 20th century onwards, people have realized the gross discrimination against women and through laws have started to shape and define the established social norms in a women friendly manner.
India, being a land of many religions, cultures and communities faces a complicated situation. Here, various religions give rise to their own cultures and norms which becomes a trying task for the laws to control and direct. For this reason, there exist a lot of laws in India which are enacted on a personal basis and are applicable to select religions. Due to this we can observe enactments and progressive attitude adopted though not for all the citizens and as a result there are certain sections of the society which are more severely discriminated against than others.
A comparative look at the 2 major religions of India and how their personal law governs women, along with the measures taken to impart equality:
- Hindu marriage is a sacred relationship and the marriage is solemnized after completion of the seven steps. The conditions of the marriage are the same for both, the husband and the wife.
- Under Muslim law, marriage is a civil contract between the husband and the wife and requires the testimony of 2 witnesses. However, one important clarification to note herein is that in place of 1 male witness, 2 women witnesses are required, automatically implying women are incapable of being on the same footing as that of a man.
- Even though monogamy has been considered the ideal form of marriage in the Hindu Vedas and in the Manu Smriti traditionally, prior to the enactment of the Hindu Marriage Act in 1955 (HMA), a Hindu male could marry multiple women at a time. This practice was not favored by the society and was mostly prevalent in the kings, zamindars and headmen of the villagers. After the HMA, this practice was legally abolished.
- Muslim personal law hasn’t been codified in this regard. The customary law has been prevalent which allows for the marriage of a male of up to four wives at one time. This is a widely prevalent practice which is highly derogatory to women. Ironically, the practice isn’t vice versa and the women can have only one husband irrespective of the kind of emotional treatment they suffer.
- Nullity of marriage is concept that became a part of the Hindu law after 1955. Divorce earlier was a frowned upon as it is something which is anathema to the Hindu religion. However, the act brought about this introduction and introduces several grounds of divorce, including special grounds for the women in case the husband marries again after the commencement of his first marriage or if the husband has been guilty of rape, sodomy, or bestiality. Moreover, the amendment to the act in 1976 introduced divorce on mutual consent.
- In the Muslim personal law, nullity of marriage is a much debated topic, perhaps the most regressive of all the laws. There exists grounds for women to apply for divorce but nevertheless, the men have the power to call out the word “talaq” thrice and nullify the marriage. Moreover, they do not have to cite any reason for the divorce. Therefore, the married women are entirely dependent on the whims and fancies of her husband, living in a constant state of insecurity and fear. Even though Supreme Court has declared this form of divorce as unconstitutional, it is yet to be criminalized by the parliament.
- The right of maintenance under Hindu law provides for maintenance to the wife during her lifetime when she is married and on divorce as well. However, a woman entitles her right to maintenance if she ceases to remain Hindu. This is a classic example of involving religion in legal matters. Upon her divorce, the right to maintenance has been given under the CRPC. Herein the woman is entitled to maintenance for herself as well as the children if she is unable to maintain herself; as long as she doesn’t remarry.
- Muslim Law passively considers male to be superior to the woman, therefore, a woman cannot be self reliant. Hence, the wife has been bestowed with an absolute right to be maintained and the husband is bound to maintain her regardless of the fact whether she’s poor or not. However, this obligation exists as long as the wife obeys all her husband’s reasonable orders. Moreover, prior to the landmark judgment of Supreme Court in Shah Bano case, Divorced Muslim women did not have right to maintenance. In this case, the apex court awarded the Muslim women rights to seek maintenance after her iddat period was over, under CRPC which is a secular act. However, there was much protest from Muslims all over the country. The Indian government which was the congress party at that time was under pressure from the Muslim community to bring a law which would overrule this judgment. So the government under the pressure and in order to save its Muslim vote bank brought the law The Muslim Women (Protection of Rights on Divorce) Act, 1986. According to this act a Muslim women is to be awarded maintenance by her husband only during the iddat period and not after that.
- Traditionally, Hindu society has always been a patriarchal society. So property rights of male members of the family were always supreme and were considered to be more appropriate than women family members. According to the Vedic texts, women could hold property but in actual the property given to women was meagre to the property given to a man. Also, the women didn’t have absolute right to dispose of the property unrestrictedly. The restrictions were considered to be necessary by our traditionally patriarchal setup and it was thought that if women were given absolute freedom then they will neglect their marital obligations and management of household affairs. The Hindu Succession Act, 1955 was enacted which gave rights to women to retain and inherit property. However, this wasn’t absolute. As late as in the year 2005, the act was amended which stated that the daughter will have the same rights, the same liabilities and the same share in the coparcenary property as that of a son. However, if a person ceases to be a Hindu, Then only they will be entitled for inheritance, and not their heirs. Another example of religion interfering unnecessarily.
- Not surprisingly, Muslim law on inheritance varies according to the gender. A son gets double the share of the daughter wherever they inherit together. The wife gets one-eighth of the share if there are children and one-fourth of the share if there are no children. In case the husband has more than one wife, the one-eighth share will be divided equally among all wives. Meanwhile, the husband gets one fourth of the share of his dead wife’s property if there are children and one-half if there are no children.
- This has perhaps been the latest amendment in Hindu law. Adultery was recognized as a punishable offence under the IPC. The Supreme Court in as late as 2018 called the law unconstitutional because it “treats a husband as the master.” It sought to punish the person who had sexual intercourse with a woman, without the consent of her husband, terming him as guilty. The sheer language and the crux behind the section was derogatory. Now, adultery has only been recognized as a ground for divorce on under the HMU and can be sought by either party.
- In Muslim Personal Laws, the husband has the right to divorce his wife if she has been caught having illicit sexual relations outside of her marriage. However, like most Muslim laws, this isn’t reciprocal and the wives do not have the right to seek divorce from her husband on this ground.
As is clearly visible, women rights in India have come a long way. The penal and common laws aren’t gender specific but the problem arises when the personal laws come into the picture. There are other aspects that need to be penalized, such as the recognition and criminalization of marital rape, but gradually we can see the changes. Legally, a lot of amendments have been made which have a direct influence on the culture and the societal norms, as is visible. Though the patriarchal society exists, the difference between a man and a woman are being abolished, at least where the rights are concerned with. The derogatory mentality of the people can only change with time, nurture and education. However, there are a lot more legal changes required, especially when observing form the point of view of the Muslim women. The politicisation of issues is a major hindrance in adoption of women friendly rights. Political Parties need to be careful so as not to let the vote bank affect equality in our country. India is a developing country and more than economic development, it’s the social development that needs to be focused on. The need of the hour is uniformity among the citizens and laws must be amended in order to facilitate that, promoting equality all along.