Marriage Law in India
Marriage law and Cultural pluralism in India
The laws on the Family Law of India, also known as personal or customary laws, govern the characteristics of family life, such as marriage, separation, divorce and its consequences, child support and other persons dependents, inheritance, adoption and guardianship. Independent India retained many aspects of the family law system, respectful of other traditions, of the British colonial period as a means of cultural adaptation within its multicultural society, especially with regard to the accommodation of The Muslims. The various laws of the family govern the main religious groups of India, Hindus, Muslims, Christians, Parsis and Jews, as well as many tribal peoples. The Hindu family Law also applies to those who follow South Asian religions of origin, such as the Sikhism and the Jainism.
Traditions play a very important role in Indian family life, although sometimes they do not follow the regulations that, over time, have been changing the family law of the country. An important case is the tradition of dowry, which although banned by the Indian legal system, is still applied throughout the country, even in some of the most prosperous areas. The non-legal obligation to deliver a dowry on the part of the bride’s parents is the main reason, in many cases, of the predilection of many families for the boys, to the detriment of the girls, and it is a direct cause of many abortions.
Indian legal pluralism is in tension with the secular commitments of the Indian state and with the constitutional objective of promoting gender equality as the various family law systems defend unequal gender relations. India’s political elite tried to resolve these tensions in the first decade after independence, through partial homogenization and reform of Hindu Law, the introduction of optional matrimonial laws into a special marriage law and a Constitutional commitment to introduce a uniform civil code to govern all Indians.
These policy options restricted the Indian state’s social policy, however, to Hindu law. They seemed to limit efforts to promote gender equality through legislative reforms, particularly through changes in the rules affecting religious minorities, as these changes were left to the initiative of non- Of these groups, which in practice were often religious elites and conservative policies.
The price of this Indian legal pluralism reflects the problems observed in most multicultural agreements, in which laws justified in terms of allowing cultural pluralism do not necessarily reflect group norms or practices. The scope for legal reform in this part of civil law is limited, even if citizens demand changes in gender-related regulations.
The complete legal pluralism implies, fundamentally, the application of different norms to different cultural groups in all the areas of the social life, the adjudication by distinctive community courts and the lack of reference to common principles (as Those recognized by international human rights law or national constitutions. When religious groups are the social units to which distinctive or special rules apply, religious leaders, religious scholars, and priests are the principal or sole agents of the elaboration of such laws.
Under this perspective, legal pluralism is biased in India in many respects. The right that applies to Indian citizens is uniform, apart from those relating to family life. The judicial powers, in particular the court of the last instances, of India, largely trained in the Western legal traditions, are the principal agents of adjudication in all disputes filed before the courts of the country. In addition to the judiciary of the state, different religious and cultural groups have their own community leaders acting as agents in this respect, the Community institutions involved in the application of family law include associations of Hindu castes, Muslim prayer groups ( “Jamaat “) and local Christian churches and Parsi temples. Individual religious figures, caste leaders, and popularly recognized informal judges also resolve family disputes, sometimes as justices of the peace of some western jurisdictions.
The complex nature of Indian legal pluralism offers some leeway for changes in family law, even if it impedes a rapid transformation. During the last twenty years, in the late 1990s, Parliament amended the provisions affecting all Indian citizens in relation to the prohibition of dowry and the maintenance payments to indigent women in the event of separation or divorce . These legislative reforms allowed for an easier divorce for Hindus and Christians, even for reasons or causalities of mutual consent. Some state legislatures also gave the daughters the right to demand the partition of ancestral property so that they could access their assets, on an equal footing as those of the sons, that the law already guarantees them until then.
Driven by the growth of public interest litigation, especially since the “national emergency” of the mid-1970, the judiciary initiated more changes in family law by interpreting some statutes and characteristics of the right not Statutory in the light of the fundamental rights guaranteed by the Indian Constitution. The judiciary, in its application of family law, introduced news more frequently than legislatures, and sometimes provoked a subsequent legislative change. This was the case, for example, of the reforms introduced in the list of motives or causalities by which Hindus and Christians could ask for divorce, and also in the reforms on the nutritional rights of Muslim women.
Comparison of the Hindu and Muslim family law
Many aspects of Indian family law are misunderstood or little understood from other countries. In general, it is believed that the legislative reform of Hindu law in the decade of 1950 made it secular and more conducive to gender equality, rather than what happened to the family laws of other groups, particularly Muslims. Many claim that the secularization and homogenization of family law is the only route to greater gender equality.
Following the reforms of the Hindu Law of the Decade of 1950, the statutes ruled more areas of Hindu law than the Muslim legal corpus. But during the legislative process, religious texts and beliefs influenced these reforms; For example, in the introduction of divorce rights. Moreover, these reforms sometimes weakened the rights of some women. For example, widows ‘ rights to share the property of their ex-husbands if they decide to re-marry. In addition, they weakened the divorce rights of some Hindu women, who previously were able to obtain divorces more easily based on the recognized customs of their castes, and the property rights of others that were governed, previously, by the laws of Matri-Lineal inheritance.
While the legislation of the 1950 decade partly homogenizeded the main features of Hindu law, the Shariat Act of 1937 had the same effect, before, in Muslim law. It made the “Muslim law” apply to most areas of family life among Indian Muslims (leaving the content of the Muslim law unspecified) and, in the process, as a result of legislative reform, annulled the customs of some Muslim subgroups who had enjoyed legal recognition until then. Partial homogenization was carried out in a way that increased the rights of Muslim women more often than the rights of Hindu women. This is true, for example, in the case of the inheritance rights of Muslim women. The daughters obtained the rights of half of the actions that the children enjoyed on the property of their parents, in contrast to the fact that they previously had no right to inherit the ownership of the parents. Although no statute or rule specified these rights, they were recognized in the founding texts of Islam as well as in subsequent Islamic jurisprudence, and the Indian judiciary followed these prescriptions in law enforcement.
Muslim law is much less codified than the Hindu. Only three law-grade rules, which are also short, refer to Muslim law in India: Two describing the rights of divorce and alimony of women, and Shariat law, which in effect leaves the content of Indian Muslim law to the Discretion of the judiciary. On the contrary, four laws, much more elaborate, define the main characteristics of the Hindu standard. Judges refer much more frequently to religious sources to judge cases involving Muslims than those who affect Hindus.
While the Muslim standard is less codified and more closely linked to religious sources than the Hindu, the rights of Muslim women are superior to those of Hindu women in some respects. This is the case concerning the inheritance rights of a daughter. The Hindu daughters have the right to share equally with the children in succession untested to the property that their own parents have acquired, in contrast to the Muslim daughters, who only have the right to half of the assets that the Muslim children Enjoy. However, the rights of succession of the Hindu daughters are restricted to the unsuccessful cases, i.e. the cases in which the father did not leave a will. Hindu parents are free to want to self-proclaim property as they wish, usually leaving all or most of such properties to their children, or perhaps other male relatives. In addition, men “Coparcenarios ” control ancestral Hindu properties in much of India, and daughters, in much of India’s geography, have no right to demand the partition of such properties so that they can control their assets. They won this right since the mid-1980 only in five states. This gives Hindu women little effective access to most forms of family ownership.
Muslim daughters are entitled to half of the assets left to their children in all forms of parental property. Muslim parents cannot deny their daughters the rights to inherit assets from their property by willful self-determination of property to male relatives alone, or by effectively presenting more of the property they possess as of ancestral origin. While many do, their daughters can effectively defy such disinheritance in court. Hindu daughters have no legal resources under such circumstances in much of India.
Muslim women, however, had fewer rights in other respects than Hindu women at different points in family law. For example, until the end of the twentieth century, most Indian courts recognized the unconditional right of Muslim men to unilaterally divorce their wives, without giving Muslim women similar rights. In contrast, Hindu law allows divorce based solely on mutual consent, or if a spouse is convicted of a “foul” such as cruelty, desertion, or adultery.
From 1973, indigent Hindu women were entitled to alimony until their new marriage or death. Many courts did not recognize the right of divorced Muslim women to the maintenance of their ex-husbands beyond a three-month period after the divorce.
The courts allow Muslim men to marry up to four wives (though they do not allow polyandry), while Hindu law prohibits bigamy. The prohibition of Hindu bigamy, however, is not very effective, as the courts set high standards for recognizing the validity of bígamos Hindu marriages. The public debate has highlighted the ways in which Muslim women have fewer rights than Hindus, but not the other way around, reflecting the recent growth of Hindu nationalism, the widespread view that Muslims are marginal for citizenship India and the limited understanding of the Muslim standard.
The limited codification of Muslim law gave judges greater autonomy to initiate legal reforms, and the judiciary used this autonomy to address some of the gender inequalities in Muslim law since the late twentieth century. The Supreme Court recognized the nutritional rights of Muslim women and established the conditions for the validity of the unilateral Muslim male divorce in two historical sentences in 2001 and 2002. He decided earlier, moreover, that bigamy was a cause or reason for Muslim women to establish an application for divorce, without criminalizing, at the same time, Muslim bigamy, which was accepted.
Like the High Court, as in almost all of the world’s jurisdictions, but with much more emphasis in the case of countries with common law’s legal systems, it establishes the application of the law to be carried out by the lower courts, the Court rulings described and others had as a consequence that the alimony rights of Muslim women were the same as those of non-Muslim women.
It also meant that there was some equating between the unilateral male divorce between Hindus and Muslims. Although the Hindu standard does not explicitly recognize unilateral divorce, it allows divorce if a couple did not live together for one year after a decree of judicial separation or restitution of conjugal rights, this being a provision used by Many Hindu men but, by contrast, by very few Hindu women.
The judicial reforms carried out since the beginning of the 21st century in Muslim law indicate or mark some routes that can be followed in the reforms in the Indian family law that would give the women greater rights. The judges introduced these reforms in reference to the earliest and most recent Islamic religious and jurisprudential traditions, the statutory Islamic norms and the characteristics of the Indian Constitution (Fundamental rights to life, Equality and dignity). It should be noted that its reference to constitutional principles did not lead to the secularization or homogenization of family law, but allowed for greater gender equality. Other judicial and legislative changes in Hindu and Christian law followed this pattern. For example, divorce was possible for Christian women who argued for reasons other than adultery, because the Protestants had accepted the divorce for that reason, and even the leaders of the Catholic Church supported the right of Christian women to Apply for divorce in cases of marital cruelty or desertion of the family home. The legal changes of this century affected the convergence in some characteristics of the different family regimes in India, and some of the gender inequalities in family law were effectively restricted.
Uniform Civil Code
While numerous Hindus (especially Hindu nationalists) demand a uniform Civil Code (UCC), no consensus has yet been reached on the content of such a uniform Civil Code. Many Hindus are likely to resist a uniform civil code that favors greater gender equality, and others tend to resist a uniform civil code that is based on the different existing family regulations and traditions associated with them.
If the change in family law occurs within a framework of legal pluralism, this is partly due to changing patterns of mobilization with regard to family law policy. The introduction of a uniform Civil Code was a great demand from women’s organizations and other civic associations with the aim of promoting gender justice until the decade of 1980. However, this goal seemed increasingly unrealistic over time. Hindu nationalists particularly embraced the demand for a uniform Civil Code when the Congress party government, under Rajiv Gandhi, seemed to yield to the Muslim conservative pressure to revoke in 1986 the previous judicial reforms that Muslim women were granted permanent alimony rights (the Shah Bano case). Many women’s organizations changed their focus on issues such as the request or demand for a uniform Civil code or the promotion of gender equality reform within the context of legal pluralism, owing to their desire to avoid an association With the Hindu nationalists.
While some key legislators are committed to the fact that the family law policy remains linked, on this issue, to parties demanding a uniform civil Code, for belonging to such parties, their legislative initiatives have been Focused, however, on unsystematic reforms, which do not clearly move family law towards homogenization or, in the opposite direction, against a pluralistic treatment of this discipline. Together with the resistance of religious minorities and tribal peoples to a uniform civil Code, and the resistance among many people of all religious and ethnic groups to the promotion of gender equality, the guidelines of the main actors of Formulation of policies that affect this part of civil law, since the beginning of this century, suggest the probability of a gradual interruption, a slow progress, in the reform of the gender equality, in the context of the legal pluralism, in the future.
- Human Rights
Agarwal, Bina. A Field of One’s Own: Gender and Land Rights in South Asia. Cambridge, U.K. and New York: Cambridge University Press, 1994.
Agnes, Flavia. Law and Gender Inequality: The Politics of Women’s Rights in India. New Delhi and New York: Oxford University Press, 1999.
Basu, Srimati. She Comes to Take Her Rights: Indian Women, Property and Propriety. Albany: State University of New York Press, 1999.
Derrett, J. D. M. Religion, Law and the State in India. New York: Free Press, 1968.
Larson, Gerald, ed. Religion and Personal Law in Secular India: A Call to Judgment. Bloomington: Indiana University Press, 2001.
Mansfield, John H. “The Personal Laws or a Uniform Civil Code?” In Religion and Law in Independent India, edited by Robert D. Baird. New Delhi: Manohar, 1993.
Menski, Werner F. Modern Indian Family Law. Richmond, U.K.: Curzon Press, 2001.
Menski, Werner F. Hindu Law: Beyond Tradition and Modernity. New Delhi and New York: Oxford University Press, 2003.
Mukhopadhyay, Maitrayee. Legally Dispossessed: Gender, Identity, and the Process of Law. Mumbai: Stree Press, 1998.