Dialogue January-March, 2010, Volume 11 No. 3
Women and the Law*
We examined the legal status of women from all points of view and especially with reference to marriage, divorce, adoption and guardianship of children, maintenance and inheritance, and certain relevant issues such as matrimonial property, family courts, uniform civil code, and reforms in criminal law and law relating to nationality. Our findings and recommendations are given in the paragraphs that follow.
Law as an Instrument of Social Change
During the British period, the general policy of non-intervention in social and religious matters perpetuated multiple systems and, by preventing normal adjustment to socio-economic changes, led to stagnation and hardening of differences between the various religious communities and even within the sub-sections of the communities. The nineteenth century social reformers attempted some marginal adjustment arising form humanitarian considerations and social demands, their most significant achievement being the law against the practice of sati. Such social legislation however was not attempted after 1857. With the strengthening of the national movement and the efforts of Mahatma Gandhi, a demand began to be put forward for bringing about major changes in law and for removing the legal inferiority of women and ending the discrimination against them in matters like marriage, divorce, inheritance, or guardianship of children which affected their life and personality. Reform of Hindu Law was thus initiated even before independence although, because of conservative resistance, it could only be given effect to during the 1950s in a piece-meal fashion.
Over-dependence on legislation to bring about social change is a characteristic, not only of our country, but of several modern societies, particularly those emerging from foreign rule. There is no doubt that law does serve some useful purpose in promoting social change. But it must be emphasized that legislation by itself cannot change society. The judiciary has often failed to give effect to the principles underlying legislation, as for example, in cases of bigamy or cases involving the wife’s right to work. The executive has also failed to implement these laws or to spread awareness about them through the mass media. If legislation reflects the social value of a country, the degree of women’s emancipation is the measure of its general cultural advance.
I. Marriage
The major issues relating to marriage that need careful attention are polygamy, effective enforcement of the provisions against bigamy under the Hindu law, age of marriage, compulsory registration of marriage and dowry.
Polygamy
Full equality of the sexes is hardly possible in a legal system which permits polygamy and a social system which tolerates it. Fortunately, the institution of polygamy which prevailed traditionally in India has been declining in the last few decades. Monogamy has been accepted in the laws for Christians, Hindus, Parsees, and Jews, so that 88% of the Indian population is legally governed by this principle. It is only Muslim law which has remained unaffected by this changing trend towards monogamy.
(1) Muslim Law on Polygamy: Three different sets of views were expressed by Muslim women interviewed by us: (1) the educated middle classes in U.P. were opposed to any change whatsoever; (2) the poorer women of the same State expressed a desire for monogamous marriages and denounced the inequities of polygamy; and (3) there was a uniform and emphatic demand, from women in Kashmir, for banning of polygamy.
Muslim Law regards marriage as a contract. Some jurists have advocated the adoption of a standard contract providing, inter alia, that the wife shall have the power to divorce her husband if he takes a second wife. Although this remedy is advocated for the prevention of polygamy, it will not obviously provide any substantive relief to the wife with children, nor seriously affect the position of the husband because the second marriage would remain valid and the act of bigamy would not be legally wrong. It would also be ineffective to prevent fake conversions to Islam to evade the prohibition of bigamy under other laws.
While the desirability of reform in Muslim Law is generally acknowledged and polygamy has been prohibited in most other Muslim countries, the Government of India has taken no steps in this direction, on the ground that public opinion in the Muslim community does not favour this change. Ignoring the interests of Muslim women is denial of equality and social justice; and therefore there can be no compromise on the basic policy of monogamy being the rule for all communities in India.
(2) Enforcement of Provision against Bigamy under the Hindu Marriage Act: while bigamy has been made an offence for the Hindus and the second marriage is void in law, such marriages are still prevalent, as evidenced by a census study in 19611 and cases brought to the notice of the Committee during its tours in the States of Manipur, Andhra Pradesh, Bihar, Uttar Pradesh, West Bengal, and Madhya Pradesh. Uneducated economically dependent women find it difficult to go to court and are not always supported by their families in lodging prosecutions. Technical interpretation of the word ‘solemnization’ of the marriage also poses difficulties. It is therefore necessary to make the following changes in the law to make its enforcement more effective:
(a) With the permission of the court, the right to initiate prosecution for bigamy should be extended to persons other than the girl’s family to prevent the current widespread violation of the law.
(b) In Section 17 of the Hindu Marriage Act, 1955, the words “solemnized’ should be replaced by the words ‘goes through a form of marriage’. Further, an explanation should also be added to the section to the effect that an omission to perform some of the essential ceremonies by parties shall not be construed to mean that the offence of bigamy was not committed, if such a ceremony of marriage gives rise to a de facto relationship of husband and wife.
(c) A provision should be introduced in Section 6 of the Hindu Marriage Act, 1955, to the effect that nothing contained in the Act shall prevent a court from granting an injunction against a proposed bigamous marriage.
(3) Laws in the Former French and Portuguese Territory: Even after the merger of these territories with India, the pre-merger laws have not been abrogated. Hindus in Pondicherry are governed by four systems and Christians by two systems. In Goa, Daman, and Diu, polygamy is permissible among some Hindu communities. The continuation of such laws permitting polygamy is contradictory to our social policy and is totally unjustified. They should therefore be immediately replaced by the Hindu Marriage Act, 1955.
Age of Marriage
The disastrous effects of child marriages persuaded social reformers to restrain them by legislation. The Civil Marriage Act, 1872, fixed the minimum age of marriage at 14, and attempts to prevent early consummation resulted in various measures which gradually raised the age of consent to 13. Finally the Child Marriage Restraint Act, 1929, fixed the minimum age for marriage for males at 18 and for females at 14 (which was later amended to 15). While the practice of child marriage was made a penal offence for parents or those performing, conducting, or directing it and for the adult bridegroom, the validity of such marriages was left untouched. Apart from this general Act which applies to all communities, the various personal laws also have their minimum age for marriage. There is no uniformity either in the minimum age or in the consequences of violation of the law. Only the Special Marriage Act, 1954, fixes the minimum age at 21 and 18 for males and females respectively. In all the personal laws, a lower age is prescribed for girls and it is below 18 in all of them.
It is hardly necessary to argue the case against child marriages. It may be pointed out however that the Suicide Inquiry Committee appointed by the Government of Gujarat2 reported that child marriage is one of the significant factors leading to the high incidence of suicide among young married women. Increasing the age of marriage to 18 is desirable because, until then, a girl is not physically and mentally mature for the responsibilities of parenthood.
While penalizing the performance of child marriages is necessary, the benefit of such legislation is greatly offset by the fact that the marriage itself is held valid. It should be a long-term objective to amend this aspect of the law and to declare child marriages as legally void. Moreover, as immediate measures to deter the practice and to alleviate their consequences, it is necessary to introduce the ‘option of puberty’ on lines similar to that in Muslim law. The right to repudiate a child marriage by a girl on attaining majority is provided under Muslim Law if the following facts are established:
(i) that she was given in marriage by her father or other guardian before she attained the age of 15;
(ii) that she repudiated the marriage before she attained the age of 18; and
(iii) that the marriage was not consummated.
This right to repudiate the marriage on attaining majority should be made available to girls in all communities, irrespective of the fact whether or not the marriage was consummated.
Gujarat has made child marriage a cognizable offence and provided for the appointment of a Child Marriage Prevention Officer. This is a good lead; and to ensure better enforcement, it is necessary that all offences under the Child Marriage Restraint Act, 1929, should be made cognizable and Special Officers appointed to enforce its provisions.
The Parsee Marriage and Divorce Act, 1865, provides that ‘no suit shall be brought in any court to enforce any marriage between Parsees or any contract connected with or arising out of any such marriage, if at the date of the institution of the suit the husband shall not have completed the age of 16 years or the wife shall not have completed the age of 14 years’. It is necessary to include a similar provision in the personal laws of all communities.
Compulsory Registration of Marriages
Compulsory registration of marriages as recommended by the U.N. will be an effective check on child and bigamous marriage, offer reliable proof of marriages and ensure legitimacy and inheritance rights of children. Registration of marriages is compulsory among Parsees and Christians and for all marriages performed under the Special Marriage Act, 1954. Section 16 of this Act which permits registration of marriages celebrated under other laws has failed to evoke much response. It is therefore necessary to introduce a system of compulsory registration for all marriages.
Dowry
The Dowry Prohibition Act, 1961, has signally failed to achieve its purpose. In spite of the rapid growth of this practice, the cases dealt with under this Act are extremely few. During the debate on the Dowry Bill, it had been claimed that awakening of the social conscience rather than legislation was necessary to solve this problem, and that the evil will be reduced with increasing avenues of employment and other opportunities for women. There is little evidence of either of these developments. Social conscience is still asleep as is evidenced by the many cases of ill-treatment of the girl by her in-laws or her husband for failure to bring adequate dowry which were reported to us and by the fact that none of the persons reporting such cases mentioned the need to call the police or socially censure such families. Education has proved to be ineffective to arrest the evil since the educated youth appear to be unashamedly contributing to its perpetuation. Existing economic conditions also suggest that increasing job opportunities and economic freedom for women will be a long drawn-out process. Under these circumstances, stringent enforcement of the policy and purpose of this law has become absolutely essential. The specific measures suggested are: (1) making the offence cognizable; (2) entrusting its enforcement (as well as of other social laws) to a separate administration which would be associated with social workers and enlightened members of the community in its functioning; (3) including two ancillary provisions in the Act to prohibit gifts made to the bridegroom or his parents in excess of Rs. 500 or which can be so used as to reduce his own financial liability and to penalize display of dowry which helps to perpetuate and encourage this practice; and (4) penalizing the taking and giving of dowry under the government servants conduct rules as done in the past in respect of bigamous marriages. The impact of the amended Act should be evaluated after five years.
It should be a long-term objective to set a ceiling even on gifts to the bride.
II. Divorce
Monogamous marriage without the right of divorce causes great hardship to both parties. The concept of ‘union for life’ or the sacramental nature of marriage which renders it indissoluble has been eroded gradually and the right of divorce has been introduced in all legal systems in India. The laws are however characterized by variations and unequal treatment of sexes. According to the census of 1971, there are 870,000 divorced or separated women of whom 743,200 are in the rural areas and 127,500 in urban areas, the ratio being 1,630 women per 1,000 men. The figures for 1961-71 indicate a distinct drop in the percentage of divorced and separated persons over the decade, although the proportion of women was higher than that of men in both rural and urban areas. A census survey in 1961 indicated wide acceptance of divorce by the village community.3 Its incidence was the highest among Muslims followed by Hindus, Buddhists, Jains, Sikhs, and Christians. Adultery, barrenness, and extreme poverty were the most common grounds for divorce.
(1) Hindu Law: Contrary to the general notion regarding the indissolubility of Hindu marriages, customary forms of divorce, recognized both socially and judicially, have been widely practiced among the lower castes. The most usual forms are: divorce by mutual consent, by the husband, and by deeds. Under customary law, there is no waiting period after divorce for remarriage. The other advantage of these forms is that they save both time and money which is generally lost in litigation; but since some of these forms are against policy or morality, a divorce under customary law may be rejected by a court. It has been suggested that an exhaustive record of these customs should be prepared and scrutinized by a panel of socio-legal experts to determine which forms should be made invalid. Copies of this record should be made available to the people and to the Panchayats.
The Hindu Marriage Act, 1955, permits divorce to both parties for (a) living in adultery; (b) conversion; (c) insanity; (d) communicable leprosy; (e) venereal disease; (f) renunciation; (g) disappearance for seven years or more; (h) failure to resume cohabitation for two years after a decree of judicial separation; and (i) failure to comply with a decree for restitution of conjugal rights. A wife has two additional grounds: (a) if the husband has another living wife; and (b) if he has been guilty of rape, sodomy, or bestiality. It is recommended that cruelty and desertion should be included as grounds for divorce in this Act, to prevent the circuitous route of obtaining a judicial separation first and then seeking divorce after two years.
The interpretation of ‘reasonable cause’ for desertion or restitution of conjugal rights as made by the judiciary is not satisfactory; and, in certain cases, the judiciary’s attitude to the women’s right of equal opportunity in education or employment has been ambiguous. As the court either upheld the authority of the husband to compel his wife to resign her job in a place away from his place of work, or conceded the right to the wife only in cases of genuine economic necessity, it is recommended that difference in the place of work should not be regarded as a ground for desertion or restitution of conjugal rights.
(2) Muslim Law: Under Muslim law, a husband has an absolute and unlimited right to repudiate the marriage at his will, but a Muslim wife has no such right. Traditional law permitted her to seek dissolution under three forms: (a) divorce where the husband delegates the right of divorce to the wife in the marriage contract stipulating that she may divorce him on his taking another wife; (b) divorce by agreement on the wife’s giving some consideration to the husband; and (c) divorce by mutual consent. Taking advantage of the law enunciated by the Maliki and Shafi schools the dissolution of Muslim Marriages Act, 1939, recognizes the wife’s right to divorce on the following grounds:
(a) husband’s disappearance for four years;
(b) neglect and failure to provide maintenance for two years;
(c) husband’s imprisonment for seven years or more;
(d) failure to perform marital obligations for three years;
(e) Impotency;
(f) insanity, leprosy, venereal disease;
(g) option of puberty; and
(h) cruelty or any other ground recognized as valid for divorce under Muslim Law.
This Act has benefited many Muslim women. The most frequently used grounds are the option of puberty and failure to provide maintenance. In the latter case, courts have occasionally denied the right to a wife where her conduct was such as to absolve her husband from his duty to provide maintenance. In such cases, however, a more reasonable view is that taken by Justice Krishna Ayyar who has observed that there is no merit in trying to preserve a marriage which has in fact broken down. It is therefore recommended that the right to divorce on the failure of the husband to provide maintenance should be irrespective of the wife’s conduct.
In spite of the rights provided by the Act of 1939 and the customary forms, a Muslim wife continues in a position of legal inferiority and insecurity as long as the husband’s unilateral right to divorce continues to be recognized. Other Muslim countries have already restricted this right. It is recommended that immediate legislation should be undertaken to eliminate this unilateral right of divorce by the husband and to introduce parity of rights for both partners regarding grounds for seeking divorce.
(3) Christian Law: The Indian Divorce Act, 1869, which governs all Christians, discriminates between the husband’s and wife’s right to seek divorce. The husband can do so if the wife has committed adultery. The wife has to prove a second offence along with adultery (incest, bigamy, cruelty, desertion) in order to obtain a divorce. The Law Commission prepared (in 1960) a draft bill to reform this law on the lines of provisions for divorce under the Special Marriage Act, 1954. the failure of government to give effect to this suggestion is much to be regretted and it is recommended that immediate steps should be taken to reform the Indian Divorce Act, 1869, on the lines suggested by the Law Commission.
(4) Parsee Law: The Parsee Marriage and Divorce Act, 1936, provides, in addition to the usual grounds, an additional right to the wife to obtain a divorce if she has been compelled by her husband to prostitution. It is recommended that this provision should be included in all other personal laws.
(5) Jewish Law: The Jews are not governed by statutory law; but divorce can be obtained through the courts on grounds of adultery or cruelty. Monogamy is generally practiced except in certain specified cases. It is necessary to codify and reform the Jewish law on the subject, introducing the principle of monogamy and the normal grounds for divorce provided for in the Special Marriage Act, 1954.
(6) Special Marriage Act, 1954: Divorce under this secular form of marriage can be obtained by either party for adultery, desertion for three years, cruelty, unsound mind, leprosy, venereal, disease, continuous absence for seven years, non-resumption of co-habitation for one year following a decree of judicial separation or restitution of conjugal rights. In addition, the wife can obtain divorce on the grounds of rape, sodomy, or bestiality. A special feature of the Act is the right to divorce by mutual consent. It is recommended that mutual consent should be recognized as a ground for divorce in all the personal laws so that two adults whose marriage has, in fact, broken down can dissolve it honourably.
Two general principles should be adopted for reform of all divorce laws: (1) there should be parity of rights regarding grounds for divorce for both partners; and (2) conversion to another religion should not be recognized as a ground for divorce as it offers an easy way of avoiding matrimonial obligations.
III. Adoption and Guardianship of Children
In India, the only personal law which recognizes adoption in the true sense of the term is Hindu law. It regards adoption as ‘taking of a son as a substitute in case there is no male issue’. The Hindu Adoption and Maintenance Act, 1956, made three clear departures from the previous law on the subject:
(a) it permitted the adoption of either a son or a daughter;
(b) it insisted on the consent of the wife for giving or taking in adoption; and
(c) it gave a woman the right to adopt if she is unmarried, widowed, or divorced.
A married woman can adopt only if her husband has renounced the world, become insane, or has ceased to be a Hindu. While this Act has certainly improved the status of women, it is necessary to improve it further and to provide that both husband and wife shall have an equal right to adopt with the consent of the other spouse. From this point of view, we welcome the Adoption of Children Bill 1972, as a uniform and secular law which would benefit the entire community and recommend its early enactment. While contemporary thought regarding guardianship draws a distinction between parental (earlier seen as synonymous with paternal) rights and the interest and welfare of the child, and subordinates the former to the latter. Our laws do not clearly reflect this trend.
(1) Hindu Law: The Hindu Minority and Guardianship Act, 1956, upholds the superior right of the father and makes him the first (the mother being the second) natural guardian for boys and unmarried girls. The father has however lost his previous right to deprive the mother by appointing a testamentary guardian. The prior right of the mother is ‘ordinarily’ recognized only to custody of children below five years of age. She has also a better claim than the father in the case of illegitimate children. The Act also directs that, in deciding guardianship, courts must take the ‘welfare of the child’ as a paramount consideration. A recent decision of the Supreme Court observed that, in special circumstances, the mother could be the natural guardian even when the father was alive. It is hoped that this decision will guide lower courts and prevent them from invariably upholding the father’s right even against the child’s interest.
(2) Muslim Law: A Muslim father’s position is dominant and his rights with regard to guardianship are very wide indeed. The mother is not recognized as a natural guardian even after the father’s death, though she may be appointed as such under the father’s will (Shias do not recognize this where the mother is a non-Muslim). Muslim Law, however, recognizes her prime right to custody of minor children which cannot be deprived even by the father except for misconduct. There is a difference between the Shia and the Hanafi schools regarding the age when the mother’s right of custody terminates. In case of a minor son, the Shia school holds that the mother’s right is only during the weaning period, i.e., till the child reaches the age of two years. The Hanafi school extends this period to seven years of age. In case of minor girls, the Shia law upholds the mother’s right till the girl reaches the age of seven, and the Hanafi law till she attains puberty. Both schools agree that only the mothers should have custody of a minor married girl till she attains puberty.
(3) Guardians and wards Act, 1890: Under this law which governs all communities other than Hindus and Muslims, the father’s right with regard to guardianship is primary and no other person can be appointed unless the father’s unfit.
Supporting the recommendations of the U.N. Commission on the Status of Women regarding equality of rights and duties between men and women in respect of guardianship of minor children, the exercise of parental authority over them, and non-discrimination between father and mother regarding custody of children in the event of divorce or separation, we recommend:
(1) that the control over the person and property of a minor cannot be separated and should vest in the same person;
(2) that the question of guardianship should be determined entirely from the point of view of the child’s interest and not on the basis of prior right of either parent;
(3) that the parent who does not have guardianship should have access to the child; and
(4) that whatever the decision taken earlier, the child’s choice of guardian should be obtained when he reaches the age of 12.
IV. Maintenance
(1) Criminal Law: The new Criminal Procedure Code, 1974, continues to reflect the old attitude to women and provides the right to demand maintenance to divorced wives and indigent parents. The obligation has been placed on men only: this is irrational in the changing social situation when many women are economically independent. With a view to achieving equality of status between husband and wife and son and daughter, we recommend an amendment of the law to oblige the economically independent woman to maintain her dependent husband; to share with him the duty to maintain their children; and, with her brothers, the duty to maintain their indigent parents. We also recommend removal of the ceiling of Rs. 500 p.m. which has now been placed on maintenance. The present exception in the law which denies maintenance to those divorced wives who have received ‘some money payable under customary or personal law’ excludes Muslim women who are divorced. This unjust exception should be done away with.
(2) Hindu Law: Unlike criminal law where the wife’s claim for maintenance depends on the husband’s having sufficient means, under Hindu law, this right is absolute but is lost if the wife becomes unchaste. In assessing the amount of maintenance the Court takes into account the position and the status of the parties, the reasonable wants of the claimant and the obligations of the husband. It also judges the justification of the wife’s living separately. This Act does not also limit the obligations of maintenance to the man only.
(3) Muslim Law: While maintenance of the wife is the highest obligation of the husband in Muslim law, the wife must be accessible to the husband and obey his reasonable commands. A divorced Muslim wife has no right to maintenance beyond three months. There is no justification for such a discriminations and we recommended that the right to maintenance should be extended to divorced Muslim wives.
(4) Parsees and Christians: The rights of maintenance for Parsees and Christians are very similar: both concede the right only to women. In fixing the quantum of maintenance, the courts bear in mind the husband’s ability, the wife’s own assets and the conduct of the parties. The Indian Divorce Act, 1869, which governs Christians gives discretion to the court to order the settlement of the wife’s property for the benefit of the husband or the children if divorce has been obtained by the husband because of the wife’s adultery. If the court has decreed damages to the husband against the adulterer, it may order the settlement of the whole or part of this amount for the benefit of the children or maintenance of the wife.
In order to minimize the hardship caused by non-payment of maintenance and to ensure certainty of payment, we recommend that all maintenance amounts should be deducted at the source by the employer as in the case of income-tax. Where this is not possible, arrears of maintenance should be recovered as arrears of land revenue or by distress as in the case of fines under the Criminal Procedure Code. The best solution lies in entrusting the entire question of maintenance to specialized courts like family courts which could take into consideration the incomes and degrees of financial dependence of both spouses in settling such matters.
V. Inheritance
The Indian Succession Act, 1925, which governs Christians, Jews, Parsees, and those married under the Special Marriage Act confers no restriction on the power of a person to will away his property; and the protection enjoyed by a Muslim widow to a share of the estate and by the Hindu widow for maintenance is denied to other widows under this law. It is desirable to place some restriction on the right of testation similar to that prevailing under Muslim law to prevent a widow from being left completely destitute.
The amended law provides that, in cases of intestate succession, the widow with no lineal descendant is entitled to the whole property if its value does not exceed Rs. 5,000 or to a charge of Rs. 5,000 in cases where it exceeds this amount. This provision is not extended to Indian Christians and Hindus, Buddhists, or Jains, succession to whose property is also governed by this Act. Since this provision gives rights to childless widows, its denial to these groups cannot be justified.
(2) Christians in Kerala: Christians in Kerala are governed by the Travancore Christian Succession Act, 1916, and the Cochin Christian Succession Act, 1921. Apart from multiplicity, these laws give only a life interest terminable on death or remarriage to a widow or mother inheriting immovable property. A daughter’s right is limited to Stridhanam. Even in cases where she is entitled, she takes a much smaller share. We recommend immediate legislation to bring the Christian women of Kerala under the Indian Succession Act, 1925.
(3) Christians of Goa and Pondicherry: In Goa, the widow is relegated to the fourth position and is entitled to only fruits and agricultural commodities. In Pondicherry, the laws relegate a women to an inferior position and do not regard her as full owner even in few cases where she can inherit property. We recommend the extension of the Indian Succession Act, 1925, to these territories.
(4) Parsee Law: For intestate succession among Parsees, the rules of devolution of property of male and female intestates differ, resulting in discrimination against daughters and mothers. The son is entitled to an equal share in the mother’s property along with a daughter but the daughter is not entitled to the same right to the father’s properly. There is no justification for such discrimination.
(5) Hindu Law: Pre-independence India had several systems of succession among Hindus, in most of which the position of women was one of dependence with barely any proprietory rights. Even where they enjoyed some rights, they had only a life interest and not full ownership. The Hindu Succession Act, 1956, made some radical changes, the most important being equal rights of succession between male and female heirs in the same category (brother and sister, son and daughter). It also simplified the law by abolishing the different system prevailing under the Mitakshara and Dayabhaga schools and extended the reformed law to persons in South India previously governed by the Marummakkattayam. Its greatest progressive feature is the recognition of the right of women to inherit and the abolition of the life estate of female heirs. The Class I heirs of a man who take the property in equal shares as absolute owners are the widows the mother, son, daughter, widows of a predeceased son, and sons and daughters of predeceased sons or daughters.
Unfortunately, traditional resistance led to some compromises in the original intentions. For instance, the one major factor responsible for continuing the inequality between sons and daughters is the retention of the Mitakshara coparcenary, whose membership is confined only to males. A number of decisions and laws like the Hindu Women’s right to property Act and the Hindu succession Act have made inroads in the concept of the coparcenary. The Hindu Code Bill, 1948, as amended by the Select Committee, had in fact suggested abolition of the coparcenary, i.e., the male right by birth, but traditional resistance was too strong. The compromise which the law now incorporates ensures that the female heirs of a male member of the coparcenary get a share of his property which is demarcated by a notional partition. In consequence, the sons get a share of the father’s property in addition to their own interest as coparceners. Under the Dayabhaga system, the daughters get equal shares with the brothers as there is no right by birth for sons. The right of a coparcener to renounce his share in the coparcenary and to transform his self-acquired property into joint family property is frequently used to negate or to reduce the share of a female heir. We therefore recommend the abolition of the male right by birth and the conversion of the Mitakshara coparcenary into a Dayabhaga one.
Section 4(2) of the Hindu Succession Act, 1956, excludes the devolution of tenancy rights on agricultural holdings under State laws from the scope of the Act. This has led to the elimination of the beneficial effects of the Hindu Succession Act under the land legislation in many States. Some States do not have special provisions for succession to tenurial interest. The dominant conservative groups in some States have, however, successfully excluded widows and daughters without giving any particular economic justification for such laws. A typical example is the Uttar Pradesh Zamindari Abolition and land Reforms Act, 1950, which is likely to apply to all agricultural land in that State in course of time. Similar discriminatory features are seen in some of the recent land ceiling laws adopted in different States, e.g., Karnataka, Punjab, or Madhya Pradesh. In order to achieve the social equality of women as also in the interests of uniformity, we recommend the abolition of Section 4(2) of the Hindu Succession Act, 1956.
Section 23 of the Hindu Succession Act, 1956, relating to the right of inheritance to a dwelling house has also resulted in some discrimination between unmarried, widowed, and married daughters. While supporting the main object of the section which asserts the primacy of the rights of the family against that of an individual and restricts partition, we are not happy about the invidious distinction between married and other daughters since the right of residence is restricted only to those daughters who are unmarried or widowed and are deserted by or separated from their husbands. We therefore recommend the removal of this discrimination so that all daughters enjoy the same right.
The unrestricted right of testation often results in depriving female heirs of their rights of inheritance. We therefore recommend the restriction of this right under the Hindu Succession Act, 1956.
(6) Muslim Law: Muslim law, while recognizing the rights of women to inherit, discriminates between male and female heirs of the same degree, the share of the latter being half that of the former. We recommend legislation to give an equal share to the widow and the daughter along with sons as has been done in Turkey.
(7) General: We find that the medley of laws governing rights of inheritance of female heirs, not only of different communities, but even of female heirs of the same community, require immediate reform based on broad principles like equal rights of sons and daughters and widows, and restriction on the right of testation. We came across large numbers of women who were ignorant about their rights of inheritance and so conditioned that they opposed the idea of sisters depriving brothers of the property. The purpose of the consolidated and general law would therefore be defeated unless adequate publicity is given to its provisions and women are educated about their rights. In the absence of social security, and adequate opportunities for employment, rights of inheritance in property provide financial security and prevent destitution to women. While it is true that property rights will benefit only a limited section, there is no doubt that they will make women independent and help them to improve their status, effectively checking the feeling that women are a burden to the family.
VI. Matrimonial Property
In the socio-economic situation prevailing in the country, the contribution of the wife to the family’s economy is not recognized. A large number of them participate in the family’s effort to earn a livelihood; and even when they do not do so, the economic value of their effort in running the house, assuming all domestic responsibilities, and thus freeing the husband for his avocation is not accepted in law, either directly or indirectly. Married women who do not have an independent source of income or give up employment after marriage to devote all their time to family obligations are economically dependent on their husbands. In the majority of cases, movable and immovable property acquired during marriage is legally owned by the husband, since it is paid for out of his earnings. In case of divorce or separation, women without any earnings or savings of their own are deprived of all property which they acquire jointly. Even property received by them at the time of marriage from the husband or his family is denied to the women in some communities. The principle of determining ownership on the basis of financial contribution thus works inequitably against women; and the fear of financial and social insecurity prevents them from resorting to separation or divorce even when the marriage are unhappy. It is therefore necessary to give legal recognition to the economic value of the contribution made by the wife through house work for purposes of determining ownership of matrimonial property, instead of continuing the archaic test of actual financial contribution. We, therefore, recommend that, on divorce or separation, the wife should be entitled to at least one-third of the assets acquired at the time of and during the marriage.
VII. Family Courts
The statutory law in all matrimonial matters follows the adversary principle for giving relief, i.e. the petitioner seeking relief alleges certain facts and the respondent refutes them. In addition, most of the grounds in these statutes are based on the ‘fault principle’ instead of on the breakdown theory. As a result, strong advocacy rather than family welfare is often the determining factor in these cases. The absence of distinction between matrimonial cases and other civil suits leads to inordinate delay which stands in the way of conciliation and further embitters the relationship of the parties. Conciliation, which ought to be the main consideration in all family matters, is not the guiding principle in the statutes dealing with them. We therefore strongly recommend the abandonment of the established adversary system for settlement of family problems, and the establishment of family courts which will adopt conciliatory methods and informal procedure in order to achieve socially desirable results.
VII. Uniform Civil Code
The absence of a uniform civil code even 27 years after independence is an incongruity which cannot be justified, especially in view of all the emphasis that is placed on secularism, science, and modernization. The continuance of various personal laws which discriminate between men and women violates the Fundamental Rights and the Preamble to the Constitution which promises equality of status to all citizens. It is also against the spirit of national integration and secularism.
Our recommendations regarding amendments of existing laws are only indicators of the direction in which uniformity has to be achieved. We also recommend expeditious implementation of the constitutional directive of Article 44 by the adoption of a uniform Civil Code.
IX. Reform in Criminal Law
(1) Consent to Sexual Intercourse: Consent to sexual intercourse is strictly interpreted and excludes consent given by the woman under duress or fraud. It should also exclude consent obtained by threatening someone else in the presence of the woman, as recommended by the Law Commission. In our view, consent to have sexual intercourse requires more maturity than to have an abortion. The same age limit should therefore be applied in both cases. We recommend that the age of consent (below which a girl’s consent to sexual intercourse is not legal) should be 18, permitting some degree of flexibility to the court in border-line cases to decide whether or not the girl is mature enough.
(2) Bigamy: the present law restricts jurisdiction of the court to the place where the bigamous marriage was performed or where the husband and wife last resided. This causes difficulties to the wife who may have to move away after being abandoned by her husband. We recommend that, in addition to the two jurisdictions under the Criminal procedure Code, provision should be made for inquiry and trail for bigamy in a court within whose jurisdiction the wife is residing.
(3) Adultery: Adultery, in our opinion, should be regarded only as a matrimonial offence, the remedy for which may be sought in divorce or separation. Retention of this as a criminal offence brings out clearly the values of the last century which regarded the wife as the husband’s property. It also prevents lawyers and others from giving necessary help to an oppressed wife. We recommend that continuing to regard adultery as a criminal offence is against the dignity of an individual and should be removed from the Penal Code.
X. Nationality
In the absence of any provision in the Citizenship Act, 1955, for dealing with the case of Indian women marrying foreigners, many of them have become stateless. We recommend that the Act be amended to provide a special rule for Indian women marrying aliens to the effect that she will in no case lose her Indian nationality as a result of her marriage to a foreigner.
The present rule prevents the children of Indian women who have married aliens from being considered as Indian citizens. Where the father and mother are separated and the mother is the guardian, there is no justification for the rule that the child’s nationality will be transmitted through the father. We, therefore, recommend the amendment of section 4(1) of the Citizenship Act, 1955, to read as follows: ‘A person born outside India on or after the 26th of January, 1950, shall be a citizen of India by descent if his father or mother is a citizen of India at the time of his birth.’
Reference:
1. Incidence of Polyganous Marriages in India – Census of India, 1961 (mimeographed).
2. Report of the Suicide Enquiry (Pushpaben) Committee, Government of Gujarat, 1964.
3. Position of Divorce in India – Census of India, 1961 (mimeographed). Also Village Surveys conducted by the same Census.