NATIONAL LAW UNIVERSITY ODISHA SEMESTER VI

NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

(Term paper towards the fulfilment of assessment in the subject of Personal Law I)

WOMAN HARASSMENT AND PERSONAL LAWS?

SUBMITTED BY:

Nishikant kumar (2018/BBA/031)

SUBMITTED TO:

Mr. Owais Hasan Khan

(Assist. Professor of Law)

Ms. Megha Sadhu

(Research Associate cum Teaching Assistant)

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TABLE OF CONTENT
OBJECTIVE OF RESEARCH ....................................................................................................... 3

RESEARCH METHODOLOGY.................................................................................................... 3

RESEARCH QUESTION ............................................................................................................... 4

SCOPE AND LIMITATIONS ........................................................................................................ 4

INTRODUCTION .......................................................................................................................... 5

WOMEN HARASSMENT AND HINDU LAW ........................................................................... 7

GENDER-BASED DISCRIMINATION UNDER MUSLIM LAW ............................................ 11

Marriage and Divorce Laws- ........................................................................................................ 11

CONSTITUTIONAL INVALIDITY OF GENDER DISCRIMINATORY PERSONAL LAW

....................................................................................................................................................... 12

UNIFORM CIVIL CODE: THE SOLUTION .............................................................................. 13

CONCLUSION ............................................................................................................................. 14

BIBLIOGRAPHY ......................................................................................................................... 15

BOOKS REFERRED.................................................................................................................... 15

ARTICLES REFERRED .............................................................................................................. 15

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OBJECTIVE OF RESEARCH

The objective of the research work is to understand, discuss and analyze the Personal Laws and
how they lead to harassment of the Women in the society. The research paper will focus on the
following sub-objectives in order to achieve the main objective:

(a) Women Harassment under Hindu Personal Laws

(b) Invalidity of gender biased Personal Laws under the Constitution of India, 1950.
(c) The solution to such harassment: a path towards Uniform Civil Code.

RESEARCH METHODOLOGY
In order to achieve the above mentioned objectives, the researcher has used the doctrinaire
method of research. Both the deductive as well as inductive method has been approached to study
the issues in a systematic manner and to frame a comprehensive picture of the future of the
Religious Personal Laws in India to protect women from Harassment. The broad facets of the
research work are indicated in terms of proposed topics in the research project. For the purpose of
achieving the objective, the researcher has used both primary as well as secondary sources and
thus has extensively focused upon Statutes, Conventions, case laws, law reports, various books,
articles and e-journals.

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RESEARCH QUESTION
Considering wide area of harassment of Women due to Personal Laws, the research focuses on
the following prime questions:

(a) How is Women being harassed under the Hindu Personal Laws?
(b) How Gender biased personal laws are invalid under the Constitution of India?
(c) What is the Solution of such harassment by which gender justice can be gained in the
society?

SCOPE AND LIMITATIONS

The Scope of the research is to cover the areas where the women are being harassed primarily
due to the Personal Laws. The research is limited to discuss the harassment of women under Hindu
Laws. The paper will further discuss the constitutional invalidity of the gender biased personal
laws. The paper finally aims at drawing a comprehensive picture of the future Indian society where
uniform civil code will be adopted by the people and women will live a life of equality and fairness.

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INTRODUCTION
“The main problem today is that there are many laws in India but women are dominated
not by secular laws, not by uniform civil laws, but by the bigoted personal laws which suffering
from gross sex inequalities. Different groups in India have their personal religious laws which the
Indian society in the name of secularism is reluctant to reform. Even though the Constitution of
India”1 “provides for equality of rights and shuns the discrimination on the basis of gender”2, the
India’s legal arrangement, with regards to the religious personal laws, is counter to women. “The
Personal Laws in India have generated the debate of gender equality in India, since most of the
religious personal laws to the wide extent give fewer rights to women than men”3, even after when
equality has been promised by the constitution.

“For example, in India Muslim men may practice polygamy while Muslim women have no
such rights.”4 “Similarly, the practice of triple talaq, which though recently has been banned by
Supreme Court of India, represents the discriminatory idea behind personal laws, according to
which, a Muslim Indian woman may be unilaterally divorced by her husband without cause, while
that same woman may only obtain a divorce on statutorily specified grounds. Likewise, in Hindus,
sons are allowed to inherit greater shares of their parents' estates than their sisters do, which is
again discriminatory against the women”.5

I would vow for the argument that replace these gender biased personal laws with gender
just family laws. My argument might sound exclusionary for in a country like India which is a land
of diverse culture, glorious heritage and rich custom, which embraces a variety of traditions and
languages, a uniform family laws might be a threat to such diversification. But, truth is gender
justice and cultural identity need not to be antithetical. Both can exists simultaneously. One way
to achieve this goal is to keep in fore-front the historical values and gender values while engaging

1
The Constitution of India, 1950.
2
See Article 14, Article 15 & Article 16, Constitution of India, 1950.
3
Archana.Parashar, “Gender Inequality and Religious Personal Laws in India”, 14(2), The Brown Journal of World
Affairs, (2008), p. 103.
4
Shalina A Chibber, “Charting a New Path Toward Gender Equality in India: From Religious Personal Laws to a
Uniform Civil Code”, 83(2), Indian Law Journal, (2008), p. 695.
5
Shalina A Chibber, “Charting a New Path Toward Gender Equality in India: From Religious Personal Laws to a
Uniform Civil Code”, 83(2), Indian Law Journal, (2008), p. 695.

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in any discussion. It is really possible to advocate for the common rights which provide equality
to both men and women, by rethinking the feminist project as one of the constructive for the legal
theory that is not only sensitive to the demands of women empowerment but also those of justice.

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WOMEN HARASSMENT AND HINDU LAW

“Hindus, Sikhs and Jains are governed by the Hindu Marriage Act, 1955”6 and “the Hindu
Succession Act, 1956”. 7 “I would here make a point that both the Acts are highly gender
discriminatory and led to serious repercussions to the women. For example section 7 of the Hindu
Marriage Act, 1956”8 talks about the practice of kanyadan through which the women is
“given away” to men. The quoted phrase needs attention. The words given away represent the idea
that a woman is not a human but a commodity.

“The ancient Hindu Law discriminated women in all respects. The marriage laws were not equal
for men and women. The nature of Hindu marriage is described under the Vedas. According to
Vedas a Hindu marriage is an indissoluble union till eternity. It is defined as a union of “bones
with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one
person.”9 “The Hindu Marriage Act, 1955 has removed these disparities to a large extent. It has
made monogamy the rule for both men and women. Woman can dissolve her marriage and freely
enter into another marriage according to law. The Hindu Marriage Act, 1955 has enumerated the
grounds for divorce. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for a
marriage. It says both the parties to the marriage should have the capacity to give consent to the
marriage. Hindu marriage is a sanskara or a Sacrament. It is indissoluble in the sense, the woman
cannot ask for another husband, even if he is cruel, drunkard, impotent, insane or whatsoever. It is
eternal and continues for lives in the sense that she cannot take another husband even after his
death. Husband and wife become one person in the sense she cannot have any individuality of her
own. But the husband could enter into the sacramental fold of marriage any number of times
because unlimited polygamy was permitted under Hindu law before enactment of the Hindu
Marriage Act, 1955.”10

“The Hindu Marriage Act, 1955 has removed these disparities to a large extent. It has made
monogamy the rule for both men and women. Woman can dissolve her marriage and freely enter

6
Section 2, Hindu Marriage Act, 1955, Act No. 25 of 1955.
7
Act No. 30 of 1956.
8
Act No. 25 of 1955.
9
SHYAMA CHARAN SARKAR, VYAVASTHA CHANDRIKA 480 (1883)
10
The Hindu Marriage Act, 1955, § 5

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into another marriage according to law. The Hindu Marriage Act, 1955 has enumerated the grounds
for divorce. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for a marriage.
It says both the parties to the marriage should have the capacity to give consent to the marriage.”11

“Section 12”12 of the Act says if the consent was obtained by force or fraud then the marriage is
voidable. If the consent is not obtained at all then it will not affect the validity of the marriage.
“This applies both to the husband and the wife. But practically, what happens in the male dominant
society is that, only the consent of the boy is obtained, and consent of the girl is ignored. The boy
may be much older to her, absolutely not suitable for her but without taking her consent the
marriage takes place. However, on this ground the marriage cannot be dissolved. She has to bring
it under the grounds for dissolution of marriage provided under the Hindu Marriage Act, 1955,
otherwise dissolution of marriage is not possible. If the marriage was solemnized without her
consent or against her wishes, she still continues to be in the marriage fearing society or because
of parental pressure. But under Muslim law, if there is no free consent, then there is no marriage.
If the marriage has taken place against his or her wishes, the marriage will be void.”13

“Section 12 clause 1 part (d) of this act” 14 renders the marriage voidable if at the time of
“marriage the woman was pregnant by some person other than the husband; but there are no such
obligations on men. This again led us to infer that women have fewer rights than their male
counterparts. Similarly, after the amendment in Hindu Succession Act”15 in 2005 Hindu women
are being given an equal right to parental property in the absence of a will; “but in reality, women
sign away their right to their father's property at the time of marriage accepting dowry as a
recompense for a share.”16 “Women are also hesitant to exercise their right in fear of causing a rift
in the relations with their natal family.”17

Property Rights of Women-

11
The Hindu Marriage Act, 1955, § 5
12
Id. § 12(1).
13
TAHIR MAHMOOD, THE MUSLIM LAW OF INDIA 50 (1980)
14
Hindu Marriage Act, 1955, Act No. 25 of 1955.
15
Act No. 30 of 1956.
16
Opinion, Law of Inequality, The Hindu, 10 th August 2003, available on
http://www.thehindu.com/2003/08/10/stories/2003081000131400.htm, (last visited on feb 10, 2020).
17
Opinion, Law of Inequality, The Hindu, 10 th August 2003, available on
http://www.thehindu.com/2003/08/10/stories/2003081000131400.htm, (last visited on feb 7 2020).

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There were different schools of Hindu law prior to codification. Under these schools of law only
coparceners are the owners of the joint family property. Women could not be a coparcener and
hence had no property rights. It was in 1937, the Hindu Women’s Right to Property Act was
passed. “It conferred property rights to women. But it did not give her absolute right over the
property. In 1956, The Hindu Succession Act was passed. It gave property rights to women.
Mother, wife and daughter were made Class-I heirs. The concept of coparcenary that only a son
can be a coparcener and daughter cannot be a coparcener did not change. Even after passing of the
Hindu succession Act, 1956, women were not kept on par with their male counterparts. But the
Hindu Succession (Amendment) Act, 2005 has made a drastic change. Now the daughter has the
same rights in the coparcenary property as that of a son”18, “But even after this amendment, there
is every possibility that the women can be deprived of the property rights. Because in the male
dominated society, it is believed that only sons are entitled to the property. The male coparcener
who has the power to dispose of his property by executing a will Matrimonial Property may dispose
of the property in favor of his sons”19, to avoid the property going to his daughter. Without keeping
a check on the testamentary capacity of Hindu male.

Law of Adoption -The Shastric Hindu Law of adoption differed from one school to another. “But
the Hindu Adoption and Maintenance Act, 1956 introduced uniformity in the law of adoption
among Hindus. Under the Shastric Hindu Law, a Hindu woman was permitted to adopt a child
only under rare circumstances. Her right to adopt a child was very limited. Though under the Hindu
Adoption and Maintenance Act, 1956 the right of a woman to adopt a child is recognized,
discrimination against woman continues. According to the Hindu Adoption and Maintenance Act,
1956, a married man may not serve its true purpose.

can adopt but a married woman cannot adopt”20 during the subsistence of the marriage. “Now this
disparity has been removed by the Personal Laws Amendment Act, 2010.”21

18
The Hindu Succession (Amendment) Act, 2005, § 6.
19
The Hindu Succession Act, 1956, § 6
20
The Hindu Adoption and Maintenance Act, 1956, § 8
21
The Personal Laws Amendment Act, 2010, § 8

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GENDER-BASED DISCRIMINATION UNDER MUSLIM LAW

Marriage and Divorce Laws-

“A Muslim marriage called nikah is not a sacrament but a civil contract made for the purpose of
procreation. Consent of the bride and the bridegroom is the basis of this contract.”22 “So, a girl
cannot be forced into marriage. Even if she is forced into it, it is not valid marriage. She can
exercise the option of puberty and dissolve the marriage.”23

“This legal provision seems to be in favour of women giving her right to decide about her
marriage. But she can exercise the option of puberty, only when she can support herself or where
somebody is there to support her. Under Muslim Law, the law of maintenance of women after
dissolution of marriage is not in favour of women. A Muslim divorced wife can get maintenance
from her husband only during the period of idaat.”24

“After that, if she is not able to maintain her then her children, her parents, her other relatives who
will inherit her property on her death has the liability to maintain her. If no one is in a position to
maintain her then the court may order the State Wakf Board to maintain her” 25 “Like other
divorced wives who are governed by other personal laws a Muslim divorced wife cannot get
maintenance from her husband under the criminal Procedure Code. Only when she and her
husband agree to be governed by the provisions of Criminal Procedure Code, 1973 relating to
maintenance they can get relief under the Criminal Procedure Code, 1973.”26

Property Rights of Muslim Women-Till the passing of 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 rights, by Muslim personal law. But this did not make any major changes.

22
The Fatwai Alamgiri, I 405; The Hedaya, 95
23
The Dissolution of Muslim Marriage Act, 1939, § 2
24
The Muslim Women (Protection of Rights on Divorce) Act, 1986, § 2(b).
25
Id. § 4
26
Id. § 5

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CONSTITUTIONAL INVALIDITY OF GENDER DISCRIMINATORY

PERSONAL LAWS

“The leaders of the various personal boards are arguing that Article 25, Article 26 and
Article 29 of the Constitution of India”27 guarantees them to profess and practice the religion and
in want of upholding the cultural identity and the rights of minority. “But, the ignorance of the
limitation as sanctioned in Article 25 which says that the right to religion is subject to public order,
morality health and to the other provisions of this Part. The state is further able to regulate or
restrict any economic, financial, political, or other secular activity which may be associated with
religious practice.”28

“These constitutional provisions which are protecting religious and minority groups are to
be read along with Articles 14 and 15. The promotion of gender equality begins with Article 14
which provides that "the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.” 29 “Article 15 reinforces this, providing that
"the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.”30 With “the apparent purpose to effectuate these equality provisions,
Article 13 states that all laws in force in India at the commencement of the Constitution, in so far
as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency,
be void.”31

27
The Constitution of India, 1950.
28
Article 25(2)(a), The Constitution of India, 1950.
29
Article 14, The Constitution of India, 1950.
30
Article 15, The Constitution of India, 1950.
31
Article 13, The Constitution of India, 1950.

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UNIFORM CIVIL CODE: THE SOLUTION

All women today in the India Society are discriminated against by Personal Laws of all
Religions. Gender equality and gender justice has not remained only a religious issue; it has
become a socio-political and legal issue of the country as a whole. The question arises, what is the
solution to stop harassment against women due to personal laws? The answer to this lies in the part
IV of the Constitution of India.32 Article 44 of the Indian Constitution says that “The State shall
endeavour to secure for citizens a uniform civil code throughout the territory of India.” The
government, in the name of gender justice, should enforce this article and replace the personal laws
based on the scriptures and customs of each major religious community in India with a common
set of rules governing every citizen.

“The constitutional framers had expressed a hope in the Directive Principles of State Policy
that the State would endeavour to have a Uniform Civil Law and on more than one occasion, the
Supreme Court has enquired from the government its stand on the issue. For example, it started in
1952 when in State of Bombay v. Narasuoppa Mali” 33 “the validity of Hindu Law had been
challenged, Justice Gajendra Gadkar suggested in his judgment the legislature to adopt the Uniform
Civil Code.3435 Again, in 1986, in Shah Bano case”23, the then “Chief Justice of India, Justice
Chandrachud delivered the judgement on behalf of five judges Bench. The learned judge made
certain observations for Muslim Personal Law and suggested the Uniform Civil Code in the
country; the court also criticized the Government of India for its sheer inability in enacting Uniform
Civil Code. In another landmark case, Sarla Mudgal v. Union of India”24 the personal laws of
Hindus, Muslims and Uniform Civil Code were touched and the Court even in this case favored
the enactment of Uniform Civil Code.

32
Part IV, Diretive Policy of State Policy, The Constitution of India, 1950.
33
AIR 1952 Bom 84.
34
Dr Manoj Tripathi & Shalini Shukla, “Personal Laws vis-a-vis Uniform Civil Code”, available on
http://joner.in/pdf/ISSUE_V/manoj%20Meerut%202.pdf, (last visited on October 7 2017). 23 Ahmed Khan v. Shah
Bano Begum (1985 SCR (3) 844.
35
AIR 1531.

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CONCLUSION
We are all Human beings, we are all Indians, we have almost similar rights but we all are
governed by personal laws, particularly when we are trying to empower women and large number
of women belonging to a particular community is still living in petty conditions with very little
rights. Thus, on the one hand, we are trying to empower the women and on the other hand we are
restricting their freedom to live; their freedom to express and their freedom to enforce equality.

In addition to a Uniform Civil Code, I believe, that a Uniform Civil Code alone won’t stop the
harassment of women in the society. I believe that in order to give in the full justice and equality
to women, the society needs to change their thinking. These are same individuals who think that
women are inferior to men.

These are the same individual who expects women to be obedient and submissive all the times.
There is no guarantee that reforming the personal laws or bringing in the Uniform Civil Code alone
will stop such ferocities against the women. The only primary solution to such repercussions is the
rehabilitation of the mindset of such individuals in the society. Only then we can achieve our aim
for a Land of God where all its children live happily and prosperously.

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BIBLIOGRAPHY

BOOKS REFERRED

• Dinshaw Fardunji Mulla, Mulla Hindu Law, (21st ed. 2013). Published by Lexis Nexis India
http://14.139.60.114:8080/jspui/bitstream/123456789/17361/1/048_Mulla's%20Principle
s%20of%20Mahomedan%20Law%20(19th%20ed.%201990)%20(294-299).pdf last seen
on 3/2/2020.
• S.A. Kader, The Hindu Succession Act, 1956, (2nd ed. 2014). Published by Eastern Law
House Private Ltd.

ARTICLES REFERRED

• Archana.Parashar, “Gender Inequality and Religious Personal Laws in India”, 14(2), The
Brown Journal of World Affairs, (2008).
• Dr Manoj Tripathi & Shalini Shukla, “Personal Laws vis-a-vis Uniform Civil Code”,
available on http://joner.in/pdf/ISSUE_V/manoj%20Meerut%202.pdf, (last visited on feb
7, 2020).
• Opinion, Law of Inequality, The Hindu, 10th August 2003,
available on http://www.thehindu.com/2003/08/10/stories/2003081000131400.htm, (last
visited on feb 10 2020).
• Shalina A Chibber, Charting a New Path Toward Gender Equality in India: From
Religious Personal Laws to a Uniform Civil Code, 83(2), Indian Law Journal, (2008).

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