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Family law protecting the rights of women

Updated: Feb 20, 2022

Written by: Aparna Nair



Introduction

India is a secular country practicing different laws for different religions. We have separate laws as per the needs of the religions in accordance with customs and traditions. These laws also provide a space for protecting women from malicious practices or violence and providing opportunities to the women. Apart from these laws, ARTICLE 14 of the Indian Constitution protects and uplifts women, assisting them so they can be equalized in society. Family laws and personal laws are rife with provisions of women’s rights, safety, and economic opportunity. But the saddest part about this is we have many laws protecting the rights of women and we have many women unaware of these laws.

Women’s Rights under Different Laws

Marriage


As India is a cosmopolitan country where people follow their own personal laws. Both spouses are equal; they have equal opportunities as well as equal obligations towards each other. The practice of polygamy is prohibited and the concept of monogamy was introduced.


According to the Hindu Marriage Act, 1955 matrimonial rights of women are as follows:


1.Restitution of conjugal rights: The term “conjugal rights” connotes the idea that it is the right of the couple to have each other’s society and marital intercourse. The fundamental rule under this right is that if one spouse has abandoned or withdrawn from the society of the other without any reasonable excuse then the other spouse can approach for restitution of conjugal rights.

2.Judicial Separation: Section 10 of the Hindu Marriage Act gives a right to one party that if he/she has difficulty in living in the society of the other party, the law allows separation.


3.Right to live in a matrimonial house: The Hindu law gives the right to a woman married to live in her Matrimonial house whether her husband owns his house or not. Even after the death of her husband she can live there, if someone tries to throw her out of the house she can approach the court under the Domestic Violence Act.


4.Protection against Dowry: Dowry is a very unethical practice being carried out in India but under the Dowry Prohibition Act taking, giving, advertising, or demanding dowry is a criminal offense.


5.Right to StreeDhan: Under Hindu Succession Law, all the gifts received to women during marriage and childbirth are her own property.

Divorce

Divorce is the most radical custom carried out in Indian society. Every personal law has separate provisions for the divorce and special protection for women. In the Hindu marriage act, there are separate grounds for divorce for both women and men. But additional grounds are given to woman under section 13 of the Hindu Marriage Act[1], this special provision Specifies:


1.Extra Marital Relationship

2.Cruelty

3.Desertion (if the husband leaves his wife without any fault of her then she can give divorce)

4.Conversion to a different religion

5.Insanity

6.Renunciation from the world

7.Presumption of Death

8.Venereal Disease

9.Leprosy


There are special grounds for women to seek divorce:


● husband’s pre-act polygamous marriage;

● husband’s acts of bestiality, sodomy or rape against the wife;

● after a decree/ order regarding maintenance, husband’s non-resumption of cohabitation with the wife;

● Woman/Girl (married) decided to repudiate the marriage before she was 15 years old but before attaining the age of 18 years.[2]


In Muslim Law, there various types of divorces, Talaq-i-Tafweez, Talaw-ul-Sunnat, Zihar and Lian, Khula, etc. The triple talaq has been declared as void by the Indian Parliament under the case of Mohd. Ahmed Khan v. Shah Bano Case[3]. A Muslim woman can get divorce under the following ground: Cruelty, Husband unheard for at least four years, husband sentenced to a term of imprisonment for a period of seven years or more, failure to provide maintenance to the wife for a period of two years or more, failure to perform matrimonial obligations, insanity and impotency of the husband, leprosy, venereal disease, option of puberty.


Christians under Section 10 of the Indian Divorce Act 1869 has grounds for divorce[4]:-


Not being heard for seven years; Venereal disease in communicable form for two years; Conversion to another religion; Adultery; Failure to obey the order for restitution of conjugal rights; Cruelty; Desertion for at least two years; Wilful refusal to consummate the marriage; Incurable Insanity for more than two years; Incurable and virulent form of leprosy for more than two years; Wife’s additional grounds if the husband is guilty of Rape, Sodomy, and Bestiality.

Under the Indian personal laws, divorce by mutual consent is recognized under the Hindu Marriage Act 1955, the Special Marriage Act 1954, the Parsi Marriage and Divorce Act 1939, the Dissolution of Muslim Marriage Act 1939, and now also under the Divorce Act 1869. The only requirement for divorce by mutual consent is that the parties should have been living separately for a period of one year or more.


Property


In the earlier period of India, women were not considered to have a right on the property of her husband. As the time passed, the Scenario changed and the mentality of the people changed and women were considered equal to men as well as their property rights.

According to the Hindu law, the woman has the sole right to whatever gift she receives at the time of marriage which is commonly known as StreeDhan. After the new amendment i.e. Hindu Succession Act, 2005 the women are given equal rights as male members of the family on the family’s property after the death of the owner of the property, in the case Vineeta Sharma v. Rakesh Sharma[5].


In Muslim law, the women have also been given rights on the property the same as that of men and some other exclusive right depending on the Muslim School she belongs to- Shia or Sunni. Some of the Islamic Principles of succession which were propounded by the Prophet are:


1. The husband and the wife are equal and they are entitled to inherit from each other.

2. Some near cognates and women are also enumerated as heirs.

3. The share of the daughter is half of the share of the son.


Under Muslim law, the wife is entitled to get some amount of money or property as dower or Mahr. If Mahr is not given to women then she can go to the Court or refuse Conjugal rights. The Muslim Women are entitled with Right to Mehr.[6]


As far as the Christian law, women can claim for father’s property under the Section 37 of the Indian Succession Act, 1925. Daughter and son have the same rights; a Christian widow can claim one- third property of her husband.


Conclusion


India has always been a patriarchal society but as the modernization of the society is happening women have been given various rights and positions in the society which were previously missing. Even now in some areas, women are still a victim of the patriarchal society, they are not even provided the right to live their life as per their wish or with a minimum dignity. The manner in which they are treated creates feelings of emotional numbness in the society. The social stigma attached to the second marriage and not being accepted legally and emotionally by the society, a feeling of being cheated is quite depressing and tormenting for a woman. Her chances of claiming her rights are largely dependent and are under the discretion of the judge, maybe she is entitled to some maintenance. Even in criminal laws, it is difficult to prove bigamy. As, the marriage must be legally conducted to prove the offence of bigamy. Usually, the men knowing about the loopholes in the law escape from the offence of bigamy leaving the women helpless. Therefore, strict rules should be made against bigamy to protect the rights and privileges of the women in a second marriage as well as strict protection against those men who try to cheat these women No women should silently face the act of injustice happening to her, raising a voice is the only alternative to make a space for you and the coming generation.


[1] The Hindu Marriage Act,1955(Act No. 25 of 1955), S.13

[2] Dissolution of Muslim Marriages Act, 1939(Act 2 of 1939)

[3] AIR 1985 SC 945

[4] The Indian Divorce Act,1869(Act 10 of 1869)

[5] (2020) AIR 3717 (SC)

[6]The Muslim Women (Protection of Right


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