After it was codified in the period after Independence, Hindu personal law has been gradually maturing and evolving. The Hindu Marriage Act was passed in 1955. Civil laws related to adoption, succession, and maintenance were also passed in the following years.The definition of `Hindus’ under the Act included Sikhs, Buddhist, Jains, and all those who were not Christians, Muslims, Jews or Parsis.
There have been several improvements in the decades since, the most recent being the amendment of the Hindu Succession Act in 2005, which gave daughters the right to demand partition of parental homes, like their brothers, and made them equal coparceners in property owned by a Hindu undivided family. A coparcenary comprises the eldest member and three generations of a family. This used to mean, for instance, a son, a father, a grandfather, and a great-grandfather. The amendment allowing the women of the family to be coparceners was welcome. However, a daughter can avail of these benefits only if her father had passed away after September 9, 2005.
The laws still have a long way to go towards gender justice. One recurring issue is the excessive stress on ceremonies. Under Hindu law, it is through solemnization with the requisite rites that the status of husband and wife can be conferred, and if these are not performed, the marriage is null and void (unless custom permits it). If you are Hindu, ask yourself if you are aware of what counts as an essential ceremony for your community -is it the saptapadi, the kanyadana, homa, thali-tying, putting vermillion, exchanging garlands or rings, pad-puja, panigrahanika, or marriage with the sword? These customs and ceremonies vary from place to place and community to community. According to the Hindu Marriage Act, 1955, either the party concerned has to plead customary rites and ceremonies or that the two essentials of the marriage ceremony marriage have been completed, namely, the invocation before the sacred fire and the saptapadi (seven steps around the sacred fire). The burden of proving a custom rests with the party using it.
This is confusing and complex. Many women are not aware of the ceremonies applicable to them. She may happily exchange garlands, put vermillion and have her husband declared her wife with God as a witness, without realizing that this is not a valid marriage under law since these are only `mock ceremonies’. This undue stress on ceremonies has let many persons accused of bigamy go scot-free.
Many cases of prosecution for bigamy fail because of the lack of proof that the second marriage was solemnised with requisite rites and ceremonies.To maintain the charge under section 494 IPC, there must be evidence of this, which first wives find hard to produce.These loopholes in the law are exploited by men to defend themselves, in cases where they have duped women into second marriages. The very requirement of monogamy in a Hindu marriage is defeated.
While Hindu marriage is indeed a sacrament and ceremonies may be essential, a single, simple ceremony understood by all might be desirable, to avoid such mishaps. Additional ceremonies, of course, can be optionally followed.
Another patently unfair law is the provision on restitution of conjugal rights under Hindu law, which violates the fundamental right to life, privacy, and equality. When the petitioner asks the unwilling respondent to cohabit, it tends to harm the relationship rather than repair it.
Discrimination in property is still a problem, under Section 15(1) of the Hindu Succession Act. In the event of a woman’s death, her husband’s heirs get a preference above her own parents. But when a man dies, his relatives get to inherit the property. This is clearly a violation of the equality guaranteed under Article 15(1) of the Constitution of India. In one case, a wife was thrown out of her matrimonial home by her in-laws after the unfortunate death of her husband. She took up a job and acquired some wealth, living with her parents. Later, she died without making a will.Her mother and her in-laws both filed for the grant of a succession certificate under Section 372 of Indian Succession Act. The Supreme Court upheld that in case if the intestate women die issueless, the heirs of her husband are given preference over her parents. May over her parents. May be the outdated notion of daughters as `paraya dhan’ was lurking behind this. This anomaly needs to be removed. The 174th Report of the Law Commission also not ed that the rules of devolution of the prop erty of a female who dies intestate reflect patriarchal assumptions.
In many states, laws that govern agricultural land holdings do not grant the same rights to women in inheritance. The land goes to the sons and leaves the daughters with practically nothing.
Another area of disadvantage is the sharing of assets acquired after and during the marriage. In Vedic times, there appeared to be a notion of joint ownership. Marriage must be recognised as an equal economic partnership between husband and wife, and due weight must be given to the wife’s contribution to the home and assets after marriage.
Maintenance is not a charity but a right. Yet, maintenance laws are conditional on norms of behavior. The wife should be chaste and not remarry. Her `character’ is invariably brought in during maintenance cases, and the amount is left to the discretion of the judge.
Another area that needs urgent attention is the criminalising of marital rape. The legal definition of rape excludes sexual intercourse by a man with a minor girl above the age of 15 if she happens to be his wife. Laws must protect married girls between the ages of 15-18, from forced sexual acts by their spouses.
According to Hindu law, irretrievable breakdown of marriage is not considered a valid ground for divorce. The Law Commission, in its reports in 1978 and 2009, recommended that it should be introduced as a reason. If the marriage has broken down and the two parties cannot live together as husband and wife, it is better to bring closure.
Many laws have a clear patriarchal character -the section on adultery in the IPC, for instance, treats the woman as mere property. Law reform must keep pace with social progress, and promote the constitutional rights of equality.Despite codification and several reforms of Hindu law, there is still a long way to go.Perhaps a UCC that focuses on rights and gender justice will iron out the discrimination, patriarchal biases, and some of the rituals that persist. Accompanied by mass legal awareness, this would be a victory for women.