If the legislature is serious about introducing gender parity in personal laws, it should not focus all its energies on one particular religion.
In light of the Supreme Court’s recent decision to abolish instant triple talaq, a number of ostensible protectors of Muslim women in Indian politics came out in open support of the decision, lauding the cleansing of this oppressive religious practice. Of course, the government was the first to praise its ability to rid Muslim women of an evil they had suffered for decades. While the decision is welcome, the selective purging of personal laws of a particular religion does not send out the right message, especially since it is not as if other personal laws in our country are shining beacons. This would perhaps be an apt time to remind the government and the courts of a number of other personal laws that are retrograde, discriminatory and do not apply parity between women and men. That these laws will be noticed and repealed, however, is perhaps a pipe dream, given that they may not all provide the sort of political mileage required to win an election.
Obviously instant triple talaq needed to go – it is nobody’s case that the decision was bad law, in fact the 3:2 majority instead of a unanimous decision was surprising to many, although one can see merit in the logic of the dissenting opinions too (whether one agrees with them or otherwise). However, in a political climate like the current one, it is important for the state to respect personal laws. Choosing one evil in one religion and then parading it so publicly in the time of what some would describe as beef-policing, history-tampering, cow-worshiping majoritarianism sends the wrong message. Perhaps the government could serve women from every community better if it looked at other discriminatory personal laws as well and draft appropriate legislation.
Property devolving upon the heirs of a woman dying intestate
Under the Hindu Succession Act, 1956 (applicable to Hindus, Buddhists, Jains and Sikhs), Section 15, the property of a woman (to whom the Act applies) who dies intestate (or without a will) goes to her children and husband (I use the gender normative word since the Act uses that word). In their absence, it goes to the heirs of the husband. Only in the absence of such heirs can it devolve upon such woman’s mother and father or in their absence upon the heirs of her father and in their absence upon the heirs of her mother. So if a Hindu woman dies intestate leaving no husband or children, the husband’s family has a right over her property before her parents. There is a non-obstante caveat to Section 15 which states that if any property is inherited by the Hindu woman from her father or mother, such property would devolve upon the heirs of her father (notice how property inherited from her mother also devolves upon heirs of the father, thereby not even taking into account a possible situation of a separation or divorce between the parents). Similarly, if it is inherited from her husband or father-in-law, it goes back to the heirs of the husband (in the absence of children or grand children). But all other property (not inherited from her parents, husband or father in law), in the absence of a husband or children, goes to the heirs of the husband.
If I am to contrast this with the devolution of property of an intestate Hindu man, the property first goes to his children, his widow (again, the word used in Class I of the Act), his mother or his grandchildren, much like for women, but in their absence it goes to his father, brother, sister and so on. If these heirs also do not exist, the property devolves upon the “agnates” of the deceased and in the absence of agnates, lastly upon “coagnates”. Agnates under Section 3 (1) (a) of the Act are defined as two persons related through blood or adoption “wholly through males”, whereas coagnates are not “wholly through males”.
There are so many problems with this legislation. The language of the legislation – with the use of “husband” and “widow” depending on the gender of the deceased spouse, and agnates and cognates as being defined using the term ‘wholly through males’ – is insensitive, sexist and leaves a lot to be desired.
This is just the tip of the iceberg. The entire line of Hindu succession for intestate women is discriminatory. The property as received from a father or a husband goes back to that line (in the absence of other heirs mentioned above). This feature is unique to this particular Hindu personal law. At the first instance, in the absence of other heirs, the property goes to the heirs of the husband rather than the woman’s parents or siblings. The Bombay high court had declared Section 15 as discriminatory and ultra vires the constitution in Mamta Dinesh Vakil vs Bansi S. Wadhwa and the matter is pending an appeal before a division bench. In an older decision, the Bombay high court had upheld the constitutional validity of this provision. The legislature has not passed any law yet repealing this provision, despite recommendations from the Law Commission. What, then, is the impact of the Mamta Dinesh decision on this law? Does it apply only within the jurisdiction of the Bombay high court or does it apply to the entire country? Can the provision be treated as struck down in the absence of the decision being overturned? These knotty questions remain unanswered and legislative silence in this regard, though deafening, is also expected.
Even under the Indian Succession Act, 1925 (applicable to Christians and certain provisions to Parsis) the property of a man who dies intestate and without lineal descendants passes only in half to his widow, while the other half passes to relatives kindred to him.
Distribution of property to Hindu women at the time of divorce
The language of Section 27 of the Hindu Marriage Act, 1955 requires that when the court is distributing any property during a divorce, such property must be present “at or about the time of marriage” and such property must “belong jointly” to the husband and wife. There have been conflicting decisions of various high courts in the country on what properties a woman is entitled to a share of, given that property in the name of one party (such as the husband) would not fall within the narrow definition of Section 27. Several of these decisions, including some decisions of the Supreme Court, have attempted to read this provision widely in order to benefit women, but the success of such case law-based effort is limited. This problem is typical to India, where the house or other property acquired after marriage may be in name of the husband regardless of whether the wife contributed to its purchase. Such contribution may not always be economic or monetary (given that many women play an active role in household work and sacrifice a career) and other jurisdictions around the world recognise such contribution. There is no legislation currently in sight that focuses on amending this discriminatory provision and sporadic attempts in the past have not yet fructified.
Divorce (or the impossibility of it) under the Indian Divorce Act, 1869
The provisions of this archaic relic of a law governed divorces of Christian marriages till 2001. Under Section 10 of this Act, a woman could petition for divorce under this Act based only on limited, Victorian grounds – such as the husband leaving Christianity to profess another religion, “incestuous adultery”, “bigamy with adultery”, “marriage with another woman with adultery”, “rape, sodomy or bestiality”, “adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro” or adultery with desertion for two years or more for no reasonable excuse. These grounds seem laughable in today’s day and age. If this was not enough, under Section 17 of this Act, a decree of dissolution granted by a district court had to be confirmed by a full bench (at least a three-judge bench) of the high court. The idea perhaps was to have people continue in marriage regardless of how unworkable it may have become over the years. This was also professed as a part of the applicable personal law.
The Supreme Court in Reynold Rajamani vs Union of India observed that while the court can give as liberal an interpretation as possible to this provision, it is limited by the words of the provision and it is for the legislature to enact any required changes. There were several decisions of various high courts that lamented the provisions of the then Indian Divorce Act, 1869, and the Supreme Court in Jorden Deindeh vs S.S. Chopra suggested a complete overhaul of the law.
It was only in 2001 that the Indian Divorce (Amendment) Act, 2001 was promulgated which amended the erstwhile Act and introduced a new Section 10 which introduced new and relatively more reasonable grounds of divorce equal for men and women, and also introduced a new, Section 10A, which allowed for divorce by mutual consent (albeit with the requirement of a two-year period of separation, though several other personal laws require a one-year period). Among other changes, the requirement of confirmation of a district court decree by a high court full bench was also removed.
Even under the amended Act, the bizarre provision of making the “adulterer” or the “adulteress” a co-respondent in a petition for dissolution of marriage continues (unless the petitioner can make out grounds under Section 11 of the Act, which involves showing that the wife is living a life of prostitution or that the husband is immoral and that the spouse does not know the person with whom such adultery has been committed or that the name is not known despite making due efforts etc). Prior to its amendment, there used to be a provision which allowed a party to even claim damages from the alleged “adulterer”. Thankfully this was repealed by the 2001 amendment. Such antiquated provisions offer little dignity to legal proceedings. The legislature could take a look at this law too, if it is planning to take steps towards reworking personal laws.
The above provisions are just a few examples of the many discriminatory personal laws in India. Whether it is the issue of the marriage of a Parsi woman to a non-Parsi, adoption amongst various communities, inheritance or marriage, there are countless provisions that do not belong to the 21st century.
The focus needs to change from a religion-based discourse to an equality and dignity based one. The legislature would do well in taking a long and hard look at some of these personal laws, if it is genuinely interested in moving towards gender parity.
Shalaka Patil is a lawyer who works in dispute resolution in a large law firm in Mumbai. She takes a keen interest in matters of public policy and constitutional law. Views expressed are personal.