Many gender inequities in personal laws

October 31, 2016 06:36 pm | Updated 07:47 pm IST

NEW DELHI: Even as a debate rages on ‘triple talaq’ being discriminatory towards Muslim women, family laws pertaining to women of other communities also have problems from a gender perspective, despite amendments over the decades. Triple talaq, widely condemned as arbitrary, is just one among these.

Senior lawyer Kirti Singh says there are other problems, too, in personal laws.

Property

The Hindu Succession Act was amended in 2005 to make a daughter an equal partner in the joint family property. However, some problems persist.

“Among Hindus, the rules for inheritance of a woman’s property are different from a man’s property. If a woman dies intestate and has no husband or children her property will go to her husband’s heirs and only if they are not alive, the property will devolve upon her father’s heirs and only lastly to her mother’s heirs,” Ms. Singh told The Hindu . “This method of succession was upheld by the Supreme Court even though it recognised the injustice of this provision.”

Ms. Singh points out inequities among Muslims and Christians too.

“Both in Sunni and Shia law a woman is given half the property share of the man. For instance, if a daughter and son are alive, the daughter inherits one share and the son two,” she says. “The Indian Succession Act governing Christians states that a widow gets one-third of the property while the other lien descendants get two-third. However, the sons and daughters get equal rights to their parents’ property.”

The Parsi law was amended in 1991 to ensure that the daughter inherits equally with sons. But, Ms. Singh adds, “A non-Parsi woman who is either a wife or widow of a Parsi cannot inherit but their children can inherit. Children of a Parsi woman born to her from a non-Parsi man are not considered as Parsis. Thus these two provisions discriminate against a Parsi woman who marries outside her community and a non-Parsi woman who marries a Parsi.”

Guardianship and custody

Under the Hindu Minority and Guardianship Act, Ms. Singh states, Section 6 stipulates that the father and after him the mother is the guardian of the child. An exception is provided in the case of a child up to the age of five years. The law states that this child will ordinarily be with the mother.

Asserting that there is no comprehensive, common adoption law in India due to “opposition from Muslim fundamentalists on the ground that there is no provision for adoption in Islam”, Ms. Singh finds some problems in the Hindu adoption law too. “The Hindu law of adoption only allows for adoption by a married woman with the consent of her husband, even if the wife and the husband are separated,” she says.

Ms. Singh points out that The Prohibition of Child Marriage Act 2005 while providing for punishment to parents/priests and others involved in the child marriage and allowing both the parties to get their marriage declared void “does not invalidate a marriage of even an infant”. She adds that the difference between the minimum legal age of marriage for a girl (18) and a boy (21) itself shows a bias.

As for maintenance, it is provided for under different personal laws, Ms. Singh says. “It can also be asked for under the Domestic Violence Act by all Indian women or under Section 125 Cr.PC by all women except divorced Muslim women,” she says. “The Muslim Women Protection of Rights on Divorce Act 1986 which sought to abrogate the right of Muslim women to maintenance has now been progressively interpreted by the Supreme Court in the Daniel Latifi case to include maintenance to divorced Muslim women also.” However, she says the courts give very small sums as maintenance and getting even these is difficult.

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