Human Rights and Women Discrimination in Personal Law

NFA Blog Contest 2019 Blog by Neeraj Singh Manhas rated as the best blog by Col Nehru.

Preface

A woman in India, belongs to a class of society which is in a disadvantaged position on account of several social barriers and deterrents in this 21st century. Also when we are talking about equality in men and women, we should think over it again and again. We should ask the question to ourselves whether it really exists or it exists only in words and not in action. In the past, women were counted with poor people and helpless children. According to Manu, a woman is first looked after by her father than with the passage of time, by her brother, followed by her husband, and finally by her sons. According to Manu, women don’t enjoy the right to freedom.

We have witnessed different personal laws in India. The Hindus, the Buddhists, the Jains and the Sikhs are led by Hindu law. The Muslim law is enforced to the Muslims. The Christians are driven by Christian law and the Parsi law applies to the Parsis. The Jews have their own personal law. Women’s rights in relation to marriage and property are not exercised and protected under these personal laws. It has resulted in heavy violation of Human rights of women guaranteed under the Indian Constitution and also under the International Conventions relating to protection of human rights.

Introduction

The term “Women’s human rights” and the set of practices that guide it are the regularly evolving product of an international movement to upgrade the status of women. In the 1980 and 1998, women’s motion around the world formed networks and allies to give greater visibility both to the problems that women face every day and to the heart of women’s experience in economic. social, political, and environmental issues. Human rights are the rights of every individual or the rights of every human being. These are the rights that every human being must have by virtue of his or her being a human being. The Protection of Human Rights Act, 1993, defines human rights as right relating to life, liberty, equality, and dignity of the individual. Though the origin of human rights has a long history, the first positive token of human rights was apparent on 10th December, 1948 when the United Nations Organization adopted the Universal Declaration of the Rights of Man.

Definition

Human Rights are rights inherent to all human beings, regardless of race, sex, nationality, ethinicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many others. Every human being deserves to have these rights without being discriminated upon.

Human Rights were defined first by the UK philosopher John Locke (1632-1704) as absolute moral claims. Expression of human rights is in the US Declaration of rights in 1776 which proclaims that “All men are by nature equally free and independent and have “certain inherent natural rights, of which they cannot be any compact, deprive or divest their posterity, “called also fundamental rights,”

Measures Taken by the International Community for Protection of the Human Rights of women

The international community has shown its worry for the human rights of women in a number of meetings and forums. The convention on the Elimination of All Forms of Discrimination against Women (CEDAW), taken up in 1979 by the UN General Assembly, is expressed as an international bill of rights for women. It prohibits all forms of intolerance on grounds of gender as adverse of fundamental freedom and human rights.

The government of India granted convention for riddance of all forms of intolerance against women in 1979 and repeatedly that discrimination against women breaks the principles of equality of rights and respect for the human status of equality. The architect of the Indian constitution was much motivated by the Universal Declaration of Human Rights. This is evident from the fact that they have integrated the same spirit in the Preamble of our Constitution itself. Not only the Preamble but, other plans of the Constitution also pursue to protect human rights. The right to life, is perceived as a fundamental right under the Indian Constitution. Discrimination among citizens on the evidence of religion, race, caste or sex is also prescribed under the Constitution. Equal chances to all in matters of public employment are also admitted. The Constitution provides surety to all people of  equality before the law and equal protection of the law.

Discrimination Against Women under Personal Laws

We have witnessed in India a bundle of Personal Laws are existing. Generally, the relevancy of these laws is based on the religion pledged by different communities. The Hindus, Buddhists, Jain, and Sikhs are directed by Hindu law. Muslim laws are enforced to Muslims. The Christian are governed by Christian law and Parsi laws are exercised to the Parsi community. Jews have their own Personal law. The only natural trait of all these different Personal laws is that they are opinionated towards women and show favoritism to all men.

Gender – Based Discrimination under Hindu Law

Marriage and Divorce Laws

 In the ancient Hindu law, women are segregated in all forms. The different marriage laws were not equal for men and women. If we see the nature of Hindu marriage it is very well described under the Vedas. In a Hindu marriage it was totally indissoluble union till eternity. It is specified as a union of “bones with bones, flesh with flesh and skin with skin, the husband and wife become one person. As far as Hindu woman are concerned even after enactment of Hindu law in1955 and 1956 they did not enjoy equal rights to Hindu men. Before 1955 polygamy was prevalent among the Hindus, the Hindus woman could not hold any property as its absolute owner except in the case of “stridhan”.

The Hindu Marriage Act, 1955 has removed these disparities to a large extent. The monogamy rule for both men and women was enacted. The woman can take divorce and end her married life and enter into another marriage according to law. The Hindu Marriage Act, 1955 has given the grounds for divorce. The Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for marriage. It indicates both the parties to the marriage should have the scope to give permission to the marriage.

Property Rights of Women

Gone are the days when women in India faced discrimination in matters of property ownership. In the past, married women have had limited rights to their parental property, and the widows were invariably at the mercy of their sons. This is changing now. The government has been taking a number of progressive steps to promote property holding among women in recent times. Offering home loans at concessional rates and keeping stamp duty charges lower for women are some such steps. In fact, the Centre has been trying to empower women’s property rights through various amendments to legislation.

The Property rights of the Hindu women are highly disunited on the basis of several reasons apart from those like religion and the geographical region which have been already mentioned. The different schools of Hindus law are prior to codification. The schools of law where only coparceners are the owners of the joint family property.

Matrimonial Property

The concept of matrimonial property is not that straightforward a concept as it might appear at once. In fact, it is the area where lies the major differentiation in exercising property rights between men and women. The exercise and ownership of rights depends on the type of marital property regime. Marital property regime refers to the set of rules that govern the management and rights over the property during the marital relationship and the distribution of the property when the relationship is terminated.

It’s not written anywhere in the Indian society that taking care of the household chores and children is the duty of women. A man who is living source of the family will earn the money and supported by his wife.Only when there is a chance that she takes care of the household work and children and she is able to focus on economic growth. But, this attribution of the wife is never taken into attention. Whatsoever, the property is purchased by the couple, by their common effort is generally purchased in the name of the husband. Then the property belongs only to the husband. If for some reason marriage breaks, then she has to ask her husband for maintenance. In India we don’t have any law relating to matrimonial property as it exists in foreign legal systems, where the interests of the women are protected and empowered.

Law of Adoption

The shastric Hindu law looked at adoption more as a mystical than secular act. The adoption differed from one school to another. The Hindu adoption and maintenance Act, 1956, introduced conformity in the law of adoption among Hindus. The Hindu adoption and maintenance Act 1956 extend to only the Hindus which are defined under section 2 of the Act and include any person who is Hindu by religion, including a Buddhist, Jains, and Sikhs and to any other person who is not a Muslim. Christians, Parsi or Jews by Religion. The adoption of a child was very limited in shastras. But, in the Hindu maintenance Act 1956, it was recognized but the discrimination against women continues. According to the Hindu Adoption and Maintenance Act 1956, a married man can adopt but, a married woman cannot adopt. Now, this disparity has been removed by the personal laws Amendment Act, 2010.

Marriage and Divorce Laws   In Muslim community the condition of women is more pathetic than Hindu community. In the pre-Islamic Arabia, the women enjoyed a secondary status in all respects compared to men. The genesis of Islam has contributed much for the amelioration of Muslim women and uplift of their problems. The holy Quran gives equal rights to men and women and places women in a respectable position. However, there are certain aspects is Islam that render the position of Muslim women especially the wives insecure and inferior. A Muslim male is permitted conditionally to marry as many as four wives at a time. It is important to note that the polygamy among Muslim men is only permission but a compulsion. The shia Muslim male can enter in to contract marriages for an agreed period of time. There is no ceiling on the number of mute marriages that may be contracted by a Muslim male. In the matter of divorce, the position of the Muslim women is the most inferior and insecure compared to others, particularly the method of divorcing the wife by the husband by pronouncing triple “Talak” is highly discriminatory. This is in spite of the clear mileage of holy Quran which discourages “Talalc-UI-Sunnat” and “Talac-ul-Biddat” because the right of the husband to divorce his wife is unilateral and unfettered.

Property Rights of Muslim Women

The Shariat Act, 1937 the Muslims in India were governed by Customary laws which were highly unjust and were against women. After the Shariat Act, 1937 Muslims in India came to be governed in their personal matters, including property laws, by Muslim personal law. But this did not make any major changes in the property rights of women. Under Muslim law, men and women have equal right of inheritance. If a Muslim male die, and his heirs include both male and female, both will inherit the property simultaneously. But a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased. The quantum of property inherited by a female heir is half of the property given to a male of equal status. It is a manifest sample of unequal treatment of woman under Muslim law.

Conclusion

It’s high time that we as a society think seriously about the disparity in the rights of the women as a matter of fact women are no less than men in any way so they should be treated equally. The change starts from home itself one needs to treat the girl and boy equally. Parents in ignorance themselves many a times make their daughters feel that they are inferior to the sons; statement, like it’s not safe to be out sundown is applicable only to women and not men. It’s grilled into their mind early on that their existence without a man in the society is highly challenging and to quite an extent not acceptable in society. Hence, they are given away in marriage when they are really young and are unaware of the consequence of the wedlock that might or might not work in their favor. The need of the hour is to work from both within and without, within here would imply to educating and empowering the women at the family level and without would imply to the laws that would go in favor of women so that there arises no such question of discrimination. Rather equality in every sense of the word should be enjoyed by every human being!

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on whatsapp
WhatsApp

1 Comment

  1. A brief explanation on women and Human rights.
    History showcased a point to point Notch context, the writing is tremendous and super skill to develop
    Kindly share me the blog I’d so that I can these kind of blog regularly
    Regards
    Basavakumar kote

Leave a Reply

Your email address will not be published. Required fields are marked *

Post comment