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Gender Inequality and Hindu Personal Laws
Prachi Dutta analyses the evolution in the status of Hindu women with regard to the Hindu Personal Laws through the centuries. |
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Introduction
It is often said that the past holds up a mirror to the future; but the past is probably more relevant to explain the present for, only by pausing, looking back and reflecting will we be able to build an ideal future. This rings especially true for the Indian legal structure which is constantly evolving to remain relevant for modern times.
The roots of the Hindu Personal Laws that are used today can be traced back to the Manusmriti1. Several Hindu Personal Laws were codified during the colonial regime and acquired their present form immediately after independence. One of the most pertinent changes that these Personal Laws have witnessed is the change in the status of women right from the roots of the law in the Manusmriti to their codification during the colonial regime and their current form. This essay attempts to analyse these changes. There are four Hindu Personal Laws- Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956 and Hindu Adoption and Maintenance Act, 1956. Their roots can be loosely traced back to pre-colonial times where traditions and scriptures governed daily and personal life. Post-independence, these laws have undergone several amendments and changes that have greatly helped in the evolution and positive change in the status of women.
Manusmriti:
The Manusmriti is regarded as the bed rock of Hindu law and jurisprudence. It is one of eighteen dharmashastras. In pre-colonial India, the Manusmriti was the most authoritarian and important rule book for Hindu laws. It underwent changes over the centuries and the form that is available today was compiled around 200 CE. The Manusmriti lays down rules for social conduct, discipline and duties that were to be followed by various sections of society in general and specially the roles and expected social conduct of women.
Hindu society is typically characterised by divisions amongst various groups of people. Compartmentalisation of society started off for the purpose of division of labour but this division of labour soon became a hierarchical pyramid where people were strictly divided on the basis of their caste which was determined from birth. Each of the 4 main castes or varnas
1. Laws of Manu-Translated by Georg Buehler
had their specific duties and obligations which could not be questioned. Each succeeding generation furthered strict delineations of the boundaries and over a period of time the inequalities inherent in these divisions were considered to be natural conditions. However, in modern times when the Manusmriti is studied, it seems archaic and not in keeping with the sense of equality and natural justice.
The inherent social inequality and injustices towards women has its genesis in the Manusmriti written at a time when the positon of women in society was that of complete subservience and subjugation. Women were considered to be biologically and physically weaker compared to men and were considered to be a ‘distraction’ to men. They were regarded as being completely incapable of tending to themselves and since birth they always needed a male guardian. They were expected to only tend to the house and were discouraged from working outside of the household. Although the Manusmriti directed husbands and other male members of the family to treat women with respect and honour since they were the cog-wheels of the household, in fact it acted as a license to treat women as commodities of the family and society.
Winds of change
It was only when the British came and tried to gain a stronghold in India, that these inequalities were questioned. Abolition of sati and opening up of education for women in the 19th Century are the two most fundamental changes in the status of women from ancient times.
The Anglo-Hindu Law of 1772 was the first step in legal terms towards liberating women and narrowing the gender divide. It went through various changes over the course of time. The Hindu Code Bill or Personal Laws of 1955-56 is an extension of this Anglo-Hindu Law which aims to further bridge the gender divide and provide women with the much needed equality.
Anglo-Hindu Law
The Anglo-Hindu law was the first attempt to transform traditional Hindu principles from the dharmashastras to codified laws. This led to customs and rituals that were earlier governed by scriptures getting a legislative foundation. As people started moving into urban areas, overseas companies were set up and started playing an active role in Indian politics. For effective control and administration, it was essential to have a codification of laws.
The British were aware that their presence had generated a lot of resentment which would have been further aggravated if they had blatantly started interfering in the indigenous rituals and customs. To create an illusion that Hindus were still the supreme rulers of the land and that they were still governed by their rituals which were left unchanged the British created the Anglo-Hindu Law, which combined English law and Hindu traditions. This was created in 1772 and was used till 1947.
The Code of Gentoo Laws is the first example of codified Hindu personal laws. In 1772, this was formulated by a group of 11 pandits, under guidance of Warren Hastings, to compile a code in Hindu Laws. This helped create an illusion that formulation of laws was still in the hands of Brahmins. The next round of modifications was carried out 20 years later where the final Digest of Hindu Law was compiled by H.T. Colebrooks.
The Anglo-Hindu law gained a legislative foundation in 1864 and is considered to be one of the most crucial legacies of the British rulers. This forms the basis of the current Hindu Personal laws. Anglo-Hindu Law only dealt with laws regarding marriage, caste, inheritance; similar to the aspects dealt with by the current Hindu Personal Laws.
The codification of the Anglo-Hindu Law is seen as the first step towards emancipation of women and giving them a semblance of equality in society. This was not achieved overnight though and the Anglo-Hindu law kept evolving over time. Around sixty to eighty years after the first draft of the Anglo-Hindu law, 3 major acts were introduced that are considered to be landmarks in terms of women’s liberation. These laws are-The Bengal Sati Abolition Act, 1829, Hindu Widow Re-marriage Act, 1856, Child Marriage Restraint Act, 1929 or Sharada Act. With persistent efforts of social reformers such as Raja Ramohan Roy and Vidyasagar, the British codified these reforms into laws.
This marked the beginnings of women’s liberation. Women started seeing themselves as being more than just commodities who were dependent on their husbands and other male members of their family. The idea of women working outside their homes also became popular. This led to several women such as Sucheta Kriplani, Sarojini Naidu and Annie Beasant joining the national movement and pursuing careers in law.
2. The Creation of Anglo-Hindu Law-Rosane Rocher
3. Indian Response to Anglo-Hindu Law-Ludo Rocher
The best example of women’s liberation due to codification of the Anglo-Hindu law is the reforms behind introducing the Child Marriage Restraint Act, 1929 which was a women-based popular movement and was the first social reform issue that was undertaken totally by women. The main organisations were the All India Women’s Conference, Women’s Indian Association and National Council of Women in India whose main demand was to raise the minimum marriage age for girls. Since child marriage was a practise that was extremely widespread for centuries, women saw this evil as an instrument to subjugate women by not allowing them to gain an education, develop their ideas and personalities or join the public policy movement. This movement spearheaded by structured women’s organisations paved the way for liberal feminism as these women could be a part of law-making process and have a say in the collective well-being of women. . Through this Act, the minimum age for girls was set at 14 years and for boys at 18 years; in the context of modern thinking, this still seems archaic but at that time it was path-breaking. (It was later increased to 18 years for girls and 21 years for boys through the Special Marriage Act, 1954.)
Codification of the Anglo-Hindu Law and enactment of the iconic bills referred to above paved the way for women gaining a foothold in society and playing an integral part in public life. However, these laws still did not ensure equality of women in all spheres. Laws such as the Hindu Succession Act gave female members of the family little or no rights over the ancestral property compared to their male counterparts or the Hindu Adoption and Maintenance Act which considered the father to be the natural guardian and gave males who wanted to adopt children far greater leverage than women. Some of these gender biases were subsequently reduced through various amendments and have bridged the gender divide to a great extent. An analysis of the impact that these Hindu personal laws have on the gender divide is provided in the following sections.
The Hindu Marriage Act, 1955
The Hindu Marriage Act, 19551 codifies laws and rules regarding marriage customs amongst Hindus. One of the most important provisions of this Act is regarding divorce. In colonial times, the provision of dissolving a marriage was not properly codified as the concept of divorce was regarded as blasphemous by Hindu orthodoxy. The British did not want to anger the Hindu orthodox sections and as a result did not include provisions for divorce when drafting the Anglo-Hindu law. Hindu Marriage Act, 1955 is thus regarded as landmark as
4. Hindu Marriage Act, 1955-Bare Act
traditional concepts of marriage and divine unity were meticulously codified where for the first time, various provisions for dissolution of marriage were created where women could also initiate divorce proceedings. However, the bare act has never been amended despite several criticisms it has faced due to the irregularities in terms of the unequal rights of women.
The Marriage Amendment Bill, 20101 was a bill proposing certain amendments to the current Hindu Marriage Act. It was introduced in 2010, was passed in the Rajya Sabha (Upper House) in 2013 but not in the Lok Sabha. Since then it has not been re-introduced in either house of the Parliament. However, the Supreme Court has often given rulings and recommendations to the government regarding the problems that persist in this Act, which forms the basis for guidance to other courts also.
The most important aspect of the Amendment bill was the insertion of new sections regarding divorce proceedings. Section 13 C(1) allows the petition for dissolution of marriage on grounds that the marriage had broken down irretrievably. Further, sub-section 13(D) of the bill ensured that if the wife was a respondent of the divorce petition, she could oppose the divorce on the grounds of financial hardship. Sub-section 13(E) of the amendment bill ensures adequate provisions for maintenance of minor children, unmarried daughters who are financially dependent on the parents. These are considered to be landmark changes as the impact on women’s empowerment is significant as women can now walk out of unhappy marriages and do not have to suffer merely for financially maintaining minor children and unmarried daughters.
Another important amendment provision is to do away with jointly filing the motion for a divorce petition. At present, grounds of mutual consent can be presented only by both parties together or move a motion jointly not earlier than 6 months after date of presentation and not later than 18 months after date of purpose. Since the motion to file the divorce petition has to be done jointly, it is highly problematic as several times one party would not turn up to file the motion for divorce which would impede the other party from filing the petition.
Unfortunately, these amendments that were regarded as a relief for women across the country have not yet been incorporated in law as the bill has not been passed.
5. The Marriage Laws Amendment Bill, 2013
The Hindu Adoptions and Maintenance Act, 1956
This Act was enacted in 1956 as part of the Hindu Code Bills. The Hindu Adoptions and Maintenance Act1 codifies the rules regarding adoption of children by Hindu adults and maintenance of spouse and parents by a Hindu male. The Personal Laws (Amendment) Bill, 2010 was passed where a new section for section 8 was substituted and section 9 was amended in the Hindu Adoption and Maintenance Act, 1956 to make adoption more gender neutral. The passing of this amendment was a major boost for gender equality in matters of adoption.
The gender bias was amended in 2010 in the Personal Laws (Amendment) Act, 20102 where chapter 1 that dealt with amendments to the Guardians and Wards Act, 1890 and chapter 2 that dealt with amendments to the Hindu Adoption and Maintenance Act, 1956 ensured that both a Hindu male and female are on equal footing as far as adoption of a child was concerned.
Another amendment that helped in reducing the gender discrimination in adoption policy was the Amendment of section 9 in the same Hindu Adoption and Maintenance (Amendment) Act, 2010. The amendment of this section is a step towards eradicating gender discrimination, as women and men have equal rights in giving a child up for adoption.
These changes in adoption policies have led to lesser dependency on men which are steps towards reducing the constraints of patriarchy and moving towards greater emancipation of women and freedom of choice.
The Hindu Succession Act, 1956
The Hindu Succession Act, 1956 1codifies laws related to intestate or unwilled succession (when a person dies without a will). There are 2 systems of inheritance-Dayabhaga and Mitaksara. In the Manusmriti and Vedas, no provisions exist relating to inheritance of property by women. The only absolute property they had was ‘streedhan’ and gifts received from family (parents, husband, in-laws, relatives, siblings). Women could not claim share in ancestral or family property upon the death of her father or husband. In the earlier Indian Succession Act, 1925, daughters were entitled to 1/4th of the son’s share in the property or
6. Hindu Adoptions and Maintenance Act, 1956
7. Personal Laws (Amendment) Act, 2010
8. Hindu Succession Act, 1956: Bare Act
Rs.5,000; this amount was regarded as ‘streedhan’ and excludes women from further right in seeking a proper division of property of deceased.1 These regulations exacerbated the gender gap. However with the codification of the Hindu Succession Act, 1956, these restrictions were eliminated. Women can claim an equal share with the male members in the property of their father or husband and the property they possessed upon inheritance is their absolute property.
The Hindu Succession (Amendment) Act, 20053 was a further boost to granting equal rights to men and women in a Hindu joint family governed by Mitakshara law and having an equal line of female and male descent. One of the primary amendments was substitution of a new section for section 6 which concerns the devolution of interest of coparcenary property. With the Act of 2005, daughter of a coparcener shall become a coparcener by birth in the same manner as the son, have the same rights and be subjected to the same liabilities in respect of the coparcenary property as the son. Any property that a female is entitled to shall be held as property capable of being disposed of by her as testamentary disposition (a gift of any property by a testator under a will).
Significant Omissions
Omission of Section 23 is also an important provision of the amendment. Before this amendment, a female heir could not ask for partition of dwelling house wholly occupied by a joint family until male heirs chose to divide their respective shares (unless she was the daughter who was unmarried, divorced, separated or abandoned by her husband). However, with the removal of this provision, a female heir can now ask for partition in respect of a dwelling house occupied by a joint family, irrespective of whether male heirs choose to divide their respective shares. Omission section 24, dealing with status of remarried widows, is another step towards providing gender equality in inheritance. By this omission, widow of a pre-deceased son or brother of a deceased person will not lose their entitlement to the intestate property merely because she is remarried on the date the succession opens.
Thus, Hindu Succession Act, 1956 and the Hindu Succession (Amendment) Act, 2005 provide impetus towards emancipation of women by treating men and women at par in terms of inheritance of coparcenary or intestate property and ancestral property. This is regarded to
9. Inheritance and Succession, Rights of Women and Daughters under Hindu Personal Laws
10. Mapping Women’s Gains in Inheritance and Property Rights Under Hindu Succession Act, 1956
11. Hindu Succession (Amendment) Act, 2005
be an extremely important amendment from a sociological perspective. Property rights for women pre-1956 were governed by customs and these differed from one region to another. Essentially the only property a woman owned were those she received as ‘streedhan’(gifts from her family at the time of her marriage) or gifts that she received from her husband or brother. These gifts were usually in the form of jewellery. If the husband died and there was no immediate heir to the property (her children), the wife could not claim the property for herself and it was given to a close family member. Hence, the enactment of the Hindu Succession Act 1956 and the Amendment Act 2005 is one of the most important landmarks regarding women’s liberation till date.
Continuing Reforms
The beliefs of gender equality and women’s emancipation were carried forward by the makers of the Constitution, particularly its chief architect, Dr.BR Ambedkar . It would have been very easy for the newly de-colonised country to lapse back into its traditional beliefs and go back to using scriptures and customs as an instrument of governance. But firm beliefs about gender rights were held in very high regard by the framers of the Constitution of independent India. The current Hindu Personal laws and amendments reflect these beliefs.
By illegalising pologamy, equating rights of women and men, allowing inter-caste marriages and giving women an equal opportunity at divorce, adoption, property ownership and appointment of heir as compared to men, the Hindu Code Bills are in consonance with the essence of the Constitution for providing justice, equality and liberty to all and have greatly helped in providing a level playing field to women.
From an exalted status of women in ancient India to its nadir in medieval India, the wheels of women’s emancipation are constantly turning, seeking to find an equilibrium between tradition and modernity. Complete and real gender equality is a work-in-progress which will realistically take several more years and many amendments to various laws.
A keen sense of history gives valuable insights into the genesis of discriminatory practices which creep into codified laws. Contemporary society can acknowledge such discordance and
12. Personal Law, Reforms and Gender Empowerment: A Debate on Uniform Civil Code-Nandini Chavan and Qutub Jehan Kidwai
13. Postcolonial Politics and Personal Laws: Colonial Legal Legacies and The Indian State-Rina Verma Williams
make suitable structural amendments. But even where discriminatory structures are removed by law, bridging the gap between the de jure and de facto positions requires an appreciation of subtle discrimination being practiced which then become central to creating appropriate strategies of change. It is here that vigilant civil society, finely attuned to adopting the best of past and present values, can help to craft a truly egalitarian society. |
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| PRACHI DUTTA is a third year History student at Hindu College, Delhi University. She hopes to pursue a career in law. Her interests include legal history, international relations and medico-legal issues. |
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