State and Civil Soceity's UNIT 15 WOMEN, RELIGION AND PERSONAL Response to Women's LAW Movements

Contents 15.0 Aims and Purpose 15.1 Introduction 15.2 Personal Law and Women in 15.3 Hindu Personal Law 15.4 Women’s Rights under Customary law 15.5 Islam and the Muslim Personal Law 15.6 Christian Personal Law 15.7 Parsis and Personal Law Reforms 15.8 Present Scenario — Reforms in Personal Laws 15.9 Concluding Remarks 15.10 Clarification of the Terms Used 15.11 Some Useful Readings

15.0 AIMS AND PURPOSE

India is a multi-religious society with every religious group having their own personal law to deal with the civil matters. Women are discriminated against in all of these religious specific laws, though the level of discrimination varies from one community to other. In the pre-independence as well as post independence periods there was a call for uniform civil code, one which provides gender justice and cutting across different communities. But it is yet to be materialized. After reading this unit on Women, Religion and Personal law, you should be able to:

• Explain the relationship between women, religion and personal law; • Describe personal laws of different religions like – Hinduism, Islam, Christianity and Parsi as prevalent in India; and • Discuss the debate between personal law, customary law and the uniform civil code.

15.1 INTRODUCTION

India has been home to many world religions like Hinduism, Islam, Christianity, Zoroastriaism, Buddhism, Jainism and Sikhism for a long time. Hinduism, Buddhism, Jainism and Sikhism, the so-called Indic religions were born here. Christianity, Islam, Judaism, Zoroastrianism, and the Bahai faith arrived here from abroad at different points of time during the last two millennia (Madan, T.N. 2004). Hindus constitute 82 per cent of India’s 1 billion population, the Muslims 12 per cent, Christians 2.32 per cent, the Sikhs 1.99 per cent, Buddhists 0.77 per cent, Jains 0.41 per cent and other account for the remaining nearly 2 per cent of the population (1991 census). Among the ‘others’ are mentioned tribal people who adhere to their own traditional faiths and Zoroastrians and Jews. Constitutionally, the Sikhs, the Buddhists and the Jains are regarded as Hindus and are guided by similar religious laws.

In this unit the focus will be on the personal laws of Hindus, Muslims, Christians and the Parsis while assuming the other Indic religions to be part of Hinduism. India is a secular, democratic republic and its Constitution guarantees equality to all people irrespective of religion, race, caste, creed, sex or place of birth (Article 15). It allows freedom to all to profess, practice and propagate religion (Article 25 [1]). Secularism is defined as equal treatment to all religions and therefore, 31 Women, Social despite the efforts of many people to work towards formulating a Uniform Civil Movements and Change Code (UCC) at the time of framing the Constitution, it could only be made into a Directive Principle. So far, not much effort could be made in the direction of UCC and all major religions in India are allowed to continue with their own ‘personal laws’ to govern civil matters. Most of these laws, which are religion specific, discriminate against women. As it will be made clear in this unit, various attempts were made to bring reforms in these laws and improve the legal rights of women within these. Though some of these efforts were successful, in the process of bringing uniformity within the major religions, customary laws of many communities, which were not women friendly, got curtailed. The unit also highlights the ways in which the tussle between the personal law and the uniform civil code germinated prior to independence of India and still continues to do so.

15.2 PERSONAL LAW AND WOMEN IN INDIA Personal laws refer to a large range of religion-based family laws governing , separation, inheritance, maintenance and adoption. These laws tend to define, control, and in many cases limit the rights of women within and outside families. It has been felt by most Indian feminists that retention of a plurality of personal laws in the name of ‘protecting religion’ was detrimental to the social and legal status of women (Nair, Janaki 1996: 180). By the first decades of the 20th century, the gradual expansion of the legislative process to include wider sections of the Indian elite produced a number of initiatives aimed at modifying personal laws, though not necessarily with the aim of improving women’s rights.

Therefore, what were called ‘personal laws’ at the time of Independence were often seriously modified laws pertaining to various religions. Inherent in these personal laws was the sanctioned discrimination against women. Despite an overall commitment to non-interference in religious matters during the British rule, the spheres of family and personal law were reformed to a certain extent throughout the latter half of the 19th and early 20th centuries. In particular, the members of the major communities, the Hindus and the Muslims, were progressively Hinduised and Islamised respectively. This process brought them closer to the law according to textual authorities and simultaneously reduced the importance of customary laws. Parsis and Christians, the two minority communities were also subjected to reforms of their marriage, divorce, property and inheritance laws, though the Parsis were more successful than the Christians owing to the reform initiatives taken by the community leaders. However, on the one hand, codification and reform of personal law continued and on the other hand, demand for the UCC gained grounds around the time of independence and subsequently while framing the .

Do You Know? 1 Law Enforcement in the pre-colonial and colonial India Till the advent of the colonial rule, civil law was enforced primarily by local and non-state legal entities for applying the norms of customary law and adaptations of the smiriti or quranic injunctions to suit local conditions. The establishment of courts was based on the English rules and procedures. Since scriptures were unequivocally accepted as the source of both Hindu and Muslim laws, the English administrations set the task of translating the ancient texts as an essential precondition to good governance. The process of codifying the Hindu and Mohammedan law initiated by Lord Hastings in the 18th century continued under later Viceroys. The British interpretations of the ancient texts became binding and made the law certain, rigid and uniform. Despite the initial policy of non-interference in ‘personal’ matters, as the British rule gained acceptance and stability, there was a gradual process of tampering with the established local customs through various means, many times on the pretext of getting rid of ‘barbarism’ and entering into an era of ‘civilization’. 32 The much-acclaimed Sati Regulation Act of 1829 was followed by other legislations State and Civil Soceity's such as the Widow Remarriage Act 1856, the Age of Consent Act of 1860, and the Response to Women's Prohibition of Female Infanticide Act of 1972.These legislations conveyed the Movements impression that such interventions in the realm of ‘personal’ laws were for the benefit of women. But it was seen that British interference in many areas of personal laws did more harm than good. For instance, unlike what was prescribed in the Mitakshara school – that stridhana includes property acquired by woman through every source, including inheritance and partition – the judicial decisions laid down that inherited property is not stridhana and therefore to be devolved to the heirs of her husband or father. Similarly, women lost their right to will or gift away their stridhana and upon the widow’s death, the property reverted back to the husband’s male relatives. And while at one level the smiriti law was distorted, at the other end this distorted law was applied to a wide range of communities following diverse customs which either had to plead for a non-Hindu status in order to protect their rights or give up their claims.

The period between 1850 and 1930 witnessed the elimination of a wide range of customs, which diverged from, the Anglo-Hindu law, as the standard of proof required was very high. Unless it could be proved that the custom was ancient, certain, obligatory, reasonable and not against public policy, it had very little chance of survival. The only customs which were saved from the crushing effects of the British courts were the customs of the agricultural people in the Punjab and matrilineal practices of the Malabar region, otherwise a legal Hinduism was imposed upon the communities with diverse customs. Many of the customs that were crushed favoured women (Flavia Agnes,1999:52), like provisions of simple rules of divorce and remarriage contrary to the more formal and difficult methods that were introduced later as part of codification of Hindu laws.

With respect to the rights of women to property, the period of the 19th century, was one in which existing communities of matrilines were gradually homogenized and brought into conformity with what was defined as ‘Hindu Law’. By the 20th century, the emergence of an independent women’s movement alongside the national movement, and its growing criticisms of legislative initiatives as the prime mover in social change, raised new challenges for the champions of such strategies. The demands raised by most women’s organizations of that time like the All India Women’s Conference (AIWC), the Women’s India Association (WIA), the National Association of Women (NAW) and all those who took active part in the broader national movement argued and contested for more equitable laws (Nair: 1996 :197-9). In the case of Hindu law reform, a small band of liberals in Parliament, rather than the mainstream Congress nationalists, sowed the seed of change. However, within the Congress there were several who opposed the change. In the Muslim case, it was the Ulema rather than the Muslim League or Congress that took the lead in reforming Muslim Personal Law, for reason to do with its political aspirations.

Do You Know? 2 Efforts for Uniform Civil Code The demand for codification of law began to be articulated by the women’s movement in early nineteenth century. By 1934, the All India Women’s Conference even passed a resolution advocating the establishment of an unofficial committee to investigate and reform Hindu law. Basing themselves on the Karachi Congress Resolution which guaranteed sex equality, the women’s sub-committee called for a Uniform Civil Code to replace the separate personal laws, although this could remain optional for a short transitional period. B.R. Ambedkar as a framer of the constitution protested in vain against the retention of personal laws. Women in Parliament, notably Rajkumari Amrit Kaur and Hansa Mehta protested vociferously against the provisions in Article 25. With M.R. Masani, they 33 Women, Social Movements and Change insisted on a Uniform Civil Code (UCC) saying that ‘one of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided in many aspects of life’ (Quoted in Nair 1996: 219) and also help perpetuate the evils that harm women and girls much more as the custodian and carrier of religious practices. Many of these are carried on in the name of religion like purdah, polygamy, caste disabilities, animal sacrifice, dedication of girls to temples etc. The members of AIWC also continued their efforts for ensuring the inclusion within the Indian Constitution of guarantees relating to women’s rights under personal law. The well-reasoned demands made by these women (Hansa Mehta, Amrit Kaur, Lakshmi Menon) for a Uniform Civil Code as a justiciable right were disregarded when the matter was finally relegated to unenforceable status under the Directive Principles of State Policy. The argument for a clause in the Constitution which guaranteed freedom of religious propagation and practice, most vociferously opposed by women members, was finally included due to the insistence of members of the Minorities Committee (Nair 1996: 200-201). Thus, some of the most glaring discrepancies in the legal position of Hindu women were reformed through the Hindu Marriage Act of 1955 and the Hindu Succession Act of 1956, a few like those related to coparcenary rights, where daughters do not have claims to ancestral property, continued. Similarly, changes were brought about in Muslim personal law through the enactment of the Dissolution of Muslim Act of 1939 and Parsi and Christian laws as well. But several discrepancies, especially regarding women’s rights, continued. These will be discussed in detail under different sections on the personal law of each religion. However, the situation as it stands today is that the codification of personal laws within all religions is continuing with differential successes, but the chapter of Uniform Civil Code, so vociferously supported at the time of Independence, even by women leaders, is more or less closed for the time being.

Think It Over 1 What do you understand by personal law and uniform civil code? Examine why personal laws are discriminatory against women.

15.3 HINDU PERSONAL LAW

Among Hindus in India, during the early period, there was no distinction between religion, law and morality. They were cumulatively referred as dharma. The three sources of dharma were shruti (the divine revelations or utterances, primarily the Vedas), smriti (the memorized word – the dharamshastras) and sadachara (good custom). The codified laws governing Hindu marriage and family relationships derive their roots from the smritis and nibandhas (commentaries and digests). From about 8th century BC to 5th century AD elaborate guidelines governing all aspects of social relations were laid down in the smirits. The smiritikars were philosophers, social thinkers and teachers and preached dharma, a code of conduct through dharamshastra literature which was a complete science covering all aspects of law, ethics and morality.

The rights of most Hindu women were governed by the Mitakshara or Dayabhaga systems of law. While the latter was the leading authority in the former was recognized as an authority in the rest of British India. The Mitakshara system also had several regional sub-schools – Mithila, Benaras, Bombay and the Dravida, and there were considerable variation in the applications of these laws. Adding to such variations were several customary laws, and despite the claim of divine 34 origin, the smiritis were based on local and well-established customs. State and Civil Soceity's Do You Know? 3 Response to Women's Mitakshara and Dayabhaga Systems of Inheritance Movements The Mitakshara system made the distinction between two kinds of property – joint family property and separate property. The first included ancestral property (i.e. property inherited from up to three generations in the paternal line) as well as any property that had become part of the joint family. Only male members of the family, upto four generations, were coparceners of the property, a right to which they were entitled from birth. Despite strict restrictions on its alienation, especially when it was immovable property such as land, every coparcener had the right to demand partition, without affecting the right of the others to stay undivided. On the other hand, under Mitakshara law, a man had absolute rights to sell his self-acquired property, and if he had no male heirs upto the fourth generation, could treat his share of ancestral property as absolute property as well (Nair: 1996: 195-6). As women did not form part of the coparcenary, they did not have even the notional right of joint ownership and therefore they could not demand partition. After partition, a sonless widow had the right to inherit the share of her deceased husband. Women had the right to be maintained from the joint property and this right included the right to residence whether as wives, widows or unmarried daughters, while the expenses of a daughter’s marriage also devolved upon the family. Since divorce was not commonly prevalent, after marriage, women could not easily be deprived of their right of residence and maintenance of their husband’s house (Agnes: 1999: 15). On the condition that she remained chaste, a widow could enjoy a limited (lifetime) interest in her husband’s property but only in the absence of male heirs upto the fourth generation. This meant that the widow could not alienate the property except in times of dire necessity. The daughter figured as an heir only after the widowed mother, and she too enjoyed only a limited estate. In the case of Dayabhaga, the man enjoyed absolute rights over all property, whether ancestral or self-acquired, including the right to gift, sell or mortgage it. Unlike the Mitakshara system, which conferred coparcenary rights at birth on sons, and where the interest in the property varied according to the number of survivors, the Dayabhaga system ensured no birthright, and defined a fixed and non-fluctuating share for each heir. Women as widows, daughters and mothers were conferred a share in the family property. In order to partially set off the disability suffered under the notion of joint ownership by male members, the smiritkars assigned a special category of property to women they termed as stridhana. Under the Dayabhaga system, stridhana was restricted to gifts and movables.

Under the Mitakshara School, various Smritikars starting from Gautam Dharamasutra to Manu and Vishnu provided for the woman’s separate property and distinct and separate rules for its succession. The later sages like Yagnavalkya, Katayayana, Narada etc. (around 2nd century) expanded the scope of stridhana which also included immovable property obtained by both a married woman or a maiden in the house of her husband or the father (saudayika). Steadily almost every category of property (adhya) was brought under the scope of stridhana and the woman was granted exclusive ownership over it (11th century A.D.). The most distinguishing feature of stridhana property was its line of descent under Mitakshara School. After the woman’s death, stridhana property devolved firstly on the unmarried daughter, then on the married daughter who is not provided for, followed by the married daughter who is provided for. Next in line was the daughter’s daughter followed by the daughter’s son. The woman’s own son could inherit it only in the absence of heirs in the female line (Agnes 1999: 18).

35 Women, Social The earliest effort to effect changes in the Hindu Mitakshara law was made Movements and Change through the Hindu Law of Inheritance (Removal of Disabilities) Act of 1928 and the Hindu Law of Inheritance (Amendment) Act which further extended the right to property granted by the Caste Disabilities Removal Act of 1850 and put women in the line of succession (Nair 1196: 198). Further advancing the claim of women to property was the Hindu Women’s Right to Property Act of 1937, a very important piece of legislation known as the Deshmukh Act after the liberal author of the Bill. The Act did substantially improve the inheritance rights of Hindu widows and introduced as heirs a man’s widowed daughter-in-law and widowed grand-daughter-in-law, even if the more radical aspects of the Deshmukh Act were not included, and daughters were completely excluded from its purview. The demand by women’s organizations in this matter as well as the response of nationalist women to the Deshmukh Bill put pressure on the Government to appoint the B.N. Rau Committee to enquire into the need for a Hindu Civil Code.

In 1941 the B.N. Rau Committee, appointed to recommend changes in the Hindu Women’s Right to Property Act of 1937, affirmed that the time had arrived for a uniform code, which guaranteed more equal rights to women in keeping with the modernizing trends in Indian society. Although the Bill received overwhelming support from women, after considerable debate and discussion as well as dilution, the Bill was dropped in 1951.

The Hindu Code Bill was introduced in the first Indian Parliament severally (not as one single Bill) and with many modifications in 1955-56. The changes in the Hindu Personal Law were encompassed in four Acts. The Hindu Marriage Act of 1955 laid down conditions for a Hindu marriage, specifically making bigamy punishable, and fixing the age of marriage at 18 and 15 for men and women respectively (In 1978, the Child marriage Restraint Act was amended raising the minimum marriage age of men and women to 21 and 18 respectively). The Hindu Marriage Act also spelled out the conditions under which divorce was permissible. It was still difficult to prove desertion, cruelty and adultery and only in 1976 was the law further amended to make divorce by mutual consent possible. Among communities where divorce had been practiced without cumbersome procedures and long waiting periods, often to the advantage of women, the law succeeded in making divorce expensive and difficult for the poorer classes. Although customary divorce was accepted in the final form of the bill, it could not be ‘immoral’ or ‘opposed to public policy’, thereby leaving a wide scope for individual judges to interpret these phrases (Nair 1996: 225).

The Hindu Succession Act of 1956 codified the multiplicity of laws concerning the property rights of women and considerably broadened them. It permitted Hindu females to hold any property possessed by her as her absolute property with full power to deal with it or dispose of it. It also entitled the widow to succeed to the property of her husband. Daughters, including adopted daughters, could claim a share in the father’s property. But unlike the son ‘the daughter did not get an immediate interest in the joint family property….She was only entitled to inherit the part of the property that constituted the share of the father once he died’ (Nair 1996 : 225).

Therefore, despite considerably broadening the spectrum of women’s rights, the Succession Act ‘codified a power structure which continued to exclude women from having a direct control over assets’, and although all female heirs of the first degree were given a right to demand partition of the estate, ‘the retention of the concept of coparceners or the nucleus of a Hindu undivided family gave a better deal to the son’ (Ibid: 225-26). The Hindu Adoption and Maintenance Act of 1956 entitled a female Hindu who is single to adopt a child herself and in her own right. It also made provisions for the maintenance of an estranged wife and for an illegitimate child to claim support from the father during his lifetime. But, the Act recognized the father as the natural guardian of legitimate children in respect of their person and property while the mother the natural guardian of the 36 illegitimate child. However, even though the codification of Hindu Personal Law did bring about State and Civil Soceity's drastic changes in making the legal position of women better, these were more Response to Women's closely related to the Anglo-Hindu law of Mitakshara and Dayabhaga and in many Movements cases undermined the privileges women enjoyed under various customary laws.

Learn From Your Experience 1 Talk to ten women of Hindu community about the system of inheritance in their families. What system of inheritance is followed in most of the families, whether it is customary or as per the personal law?

15.4 WOMEN’S RIGHTS UNDER CUSTOMARY LAW

It is extremely important to understand the prevalence of customary laws in India, as they were a part of the formal legal systems as well as of the practices of several communities, irrespective of religion. To what extend the codification and at times reforms of various personal laws undermined the rights of women in customary law can be understood only if we have knowledge about the customary law of the people.

Do You Know? 4 Inscriptions in Tamil Nadu which can be traced back to the 13th and the 14th centuries A.D. during the reign of the Cholas, Pandyas and Pallavas indicate that the ownership rights of women included the power of alienation through gifts and sales. Some recent studies indicate the prevalence of such a custom in various parts of southern India. A custom of handing over a piece of land to the daughter at the time of her marriage as her stridhana was meant for her exclusive use and passed on to the female heirs. This was known as manjal kani (turmeric/ kumkum or vermilion) in Madras Presidency and bangdi choli (bangles and blouse) in the Maratha region of Bombay presidency. A woman’s right to one-third of the property upon her husband’s remarriage was also recognized within certain lower castes of Madras Presidency and was termed as patnibhagam (Leela Dube 1997: 39-40). Carol Upadhya in her study of the coastal Andhra region has recorded a practice of giving land to the daughter at the time of marriage, which was known as katnam. Even after marriage traditionally, women continued to exercise control over this land (‘Dowry and women’s property in coastal Andhra Pradesh’ in Contributions to Indian Sociology, 1990. Vol 24 [1]0. In the study of Virasaiva women from the Karnataka region, it was observed that twelve per cent women inherited property in the form of land from their mother and customarily passed on only to daughters. The Lingayat women of Dharwas region, who were categorized as shudra in various judicial pronouncements, also had rights to divorce, remarriage and property ownership (Agnes: 1999: 19).

Therefore compared with the women of the higher castes, particularly of north India who are under strict control to maintain caste purity, women belonging to the lower castes had more freedom in choices of marriage, divorce, remarriage and work. Customs of various communities allowed simpler methods of divorce and re-marriage. In the Deccan (Maratha) and Gujarat regions, such practices were termed as kadi mod (breaking of a twig) or chor chittee (deed of divorce drawn by the community after breaking wife’ ornaments) symbolizing the termination of the relationship. If the process is initiated by the woman, either she or her father would have to return the bride price and also a part of the marriage expenses. Normally, the mother is given the custody of her younger children, while the father retains the custody of older children and is under obligation to bear their marriage expenses. The practice of maintenance after 37 Women, Social divorce is not prevalent among these communities as women are gainfully employed Movements and Change and remarriage is not stigmatized nor their stay at the natal place (Ibid: 21)

The custom of divorce and remarriage was also prevalent among Lingayats of Karnataka, Kapus of Telangana, the Jats of Punjab and Ajmer, certain castes among the Marvars, Namosudras of Bengal and the Banias of Bihar. In northern parts of Bihar, Orissa, Chota Nagpur and Assam all castes and tribes except the Brahmins, Kayasthas, Banias and Rajputs permitted remarriage. Among various castes and tribes along the Malabar Coast, there were female-headed joint family households and matrilineal inheritance patterns. Of these the Marumakkathayam and Aliyasanthana received judicial recognition during the British period. The female- headed joint families were called Tarwad and Tavazi and the line of descendants was traced through the female line. These systems were in existence until recently and were brought to an end through specific state intervention in the form of legislations in the post –independence period. Thus the customs of the lower classes indicate an absence of a strict sexual code and correspondingly, a wide scope for negotiating women’s rights of divorce, remarriage and property ownership among them.

Local customs were held in high esteem and were acknowledged as an important source of law under the smritis. Gautam, Manu, Brihaspati and Narada granted special recognition to custom. The local customs varied from region to region with the southern states granting women greater rights. In the pre-colonial era, diverse local customs were administered by family or caste councils or village panchayats, which were termed as kula (family or tribe), shreni (artisan’s guilds) and puga or gana (assembly or association). These local councils, which regulated civil life and family relationships, co-existed along with the royal courts sabhas and samitis. During Mughal rule, although the Muslim rulers introduced Islamic criminal courts, they did not interfere with the local customs and civil laws, which continued to be regulated by local customs and usages. Even with conversions to different religions, faiths and sects, people continued to follow the local customs and usages regarding property devolution. Laws and customs applied to people locally, regionally and along family, tribe (or caste) and trade divisions irrespective of their religious faiths and affiliations. On the Malabar Coast, not only the Hindu Nairs (K. Saradamoni 1999) but also the Muslim population of Lakshadweep followed the matrilineal system of Marumakkathayam (As noted by Leela Dube in her study Matriliny and Islam: Religion and Society in the Laccadive, 1969 and many subsequent articles later). The Khasi, Jaintia and Garo tribes of north-east region who converted to Christianity continue to follow the matrilineal inheritance. The Khojas, Cutchi Memons, the Bohras and the Halai Memons, converts from the trading communities of Gujarat, followed the Hindu customs of joint family property, based on male coparcenary.

The system of dividing the communities on the basis of their religion and applying to them their own ‘divine law’ disregarding their caste, tribe and race differences was created during British rule, ignoring also the fact that throughout the 2000 years of history there have been reform movements like Buddhism, Jainism, Sikhism, Veershaivism, the Bhakti movement against the Brahmanical supremacy and Sanskrit orthodoxy. The new colonial structure reversed the trend and subjected communities to the dominance of the smiriti rules sealing their fate as Hindus. However, although the ground for the construction of a Hindu community was laid during the colonial rule, the final seal of statutory recognition was given only in the recent past, when the ‘Hindu Law’ was codified in the post- independence period. The Hindu became the person who was not a Muslim, Christian, Parsi or Jew.

The ‘Hindu’ community governed by ‘Hindu laws’ with Brahmanical tilt and Anglo- Saxon base is more a legal fiction than a religious entity or a social reality. In effect, it was an attempt to impose an alien and higher caste system of law upon a pluralistic society (Agnes 1999: 26). 38 State and Civil Soceity's Think It Over 2 Response to Women's The status of women in terms of inheritance of property was better as Movements per customary law rather than the codified law. Do you agree with this statement? Explain.

15.5 ISLAM AND THE MUSLIM PERSONAL LAW

The Koran is believed by Muslims the world over to be the last revelation of God given to Prophet Muhammad and is the highest source of jurisprudence. The Koran was unique for its time in specifically delineating basic rights, as well as duties for women, and in stressing that women are the spiritual equals of men. In addition to the Koran, further interpretation and guidance is given by the hadith, or saying made by or about Mohammad and written down by his followers. The Koran and hadith form the basis of Islamic law, guiding all aspects of life. Yet, no set of laws could fit all the changes that were occurring even in the time of Muhammad and subsequently.

According to the Islamic law of marriage and succession, marriage is a civil and dissoluble contract and there is a right to stipulated mehr, which is exclusively women’s property and constitutes an essential part of any Muslim marriage. However, though the Muslim law contained several positive provisions for safeguarding women’s rights, these provisions have deteriorated due to socio- cultural reasons and patriarchal subversions of a later period. Practices like seclusion (purdah) and child marriage have rendered women vulnerable and dependent on their male relatives. Poverty and illiteracy have further contributed to the subordination of women. The amount of mehr, which is fixed at the time of marriage, has been reduced to a mere token and has ceased to be a safeguard against arbitrary divorce. In India the Brahmanical custom of dowry has crept into most lower castes and Muslim communities.

In past centuries as in the present, there have been differences among Muslim communities to the extent to which they believe Islamic law should be applied strictly or interpreted to meet the needs of Muslims in their particular social and cultural circumstances. There are two broad sects of Islam, the Sunnis and the Shias. The four recognized schools of Sunni law, to which 85 per cent of the world’s Muslims belong, are Hanbali, Hanafi, Maliki and Shafii. In Sunni Islam, it is an accepted tenet that there will be some differences among schools in how to apply religious laws in particular situations. This factor has allowed, if not encouraged, Muslim communities in different areas and of diverse ethnic identities to develop their own variations in applying Islamic law. Among the various schools, the Maliki School is the most favourable to women and the Shafi School comes next. North Africa follows mainly the Maliki law and women enjoy greater rights. The most important among the Shia schools of law are Ithana Ashari and Ismaili. The latter is the dominant majority in Persia. In India, the Bohras and Khojas are Shias belonging to the Ismaili sect.

Do You Know? 5 Islam in India Islam came to India through the trade routes of the Arabs via the Arabian Sea. Some of these traders settled down along the Malabar coast in the 8th century and adopted the local customs and practices like the Mopillas of and did not follow the Shariat law. The Shariat was first introduced to the Sultanates of Afghan and Turkish rulers and entered India around the 12th to the 13th century AD. The Muslim Sultans who invaded India were Hanafis and relied upon the Ulemas to be the religious and legal arbitrators. The Moghul emperors too were Hanafis and the Qazi appointed by them administered the Hanafi law. It is through this channel that the Shariat was established in India. 39 Women, Social Movements and Change The Muslim society as it evolved in India fell into three broad categories, the nobility, the peasantry and the artisans. Among the peasantry in the villages and the artisans mainly in the towns, there was great assimilation between Hindu and Muslim rituals, ceremonies and customs. At the advent of colonial rule there were several amphibious communities which could not clearly be distinguished as either wholly Hindu or wholly Muslim due to intermingling of their laws and customs (Agnes 1999: 32). The Khojas and Cutchi Memons of western India retained essentially Hindu laws of succession long after their conversion as an Ismali (Shiite) sect. The practices of Muslim Jats of the Punjab, which included polyandry and female infanticide, bore closer resemblance to their Hindu and Sikh counterparts in their anxiety to prevent the partition of property. Similarly, the Mopillas of the west coast region had followed the customary Marumakkathayam or Aliyasanthana matrilineal systems. There were several other communities like the Meos of Rajasthan and the Satpanthis of Madhya Pradesh whose legal identity raised difficult questions of law as they practiced many customary laws very close to the Hindus. Such resemblances can also be seen in communities like the Naayitas of Malwa, the Kuvachandas of Sind, the Hussaini Brahmins and the Malkanas of Uttar Pradesh (Fyzee, A.A. A. 1974).

Despite this, throughout the 19th century, British Courts played an important role in settling disputes involving land or inheritance on the basis of the scriptures. They had an option of asserting women’s rights and several women recognized the advantage of taking complaints to them. Similarly British courts were able to enforce payment of amounts guaranteed to women at the time of marriage as mehr. Since attention was also paid to customary practices as in the cases of Memons, Jats and Mapillas, courts often upheld customary practices even when they went against Islamic scriptural law. Thus, the Khojahs and Muslim Jats usually excluded female heirs altogether (Nair 1999 :191).

Therefore, attempts were made in different parts of India for the application of Islamic law uniformly. The Cutchi Memons Act of 1938 established that ‘all Cutchi Memons shall in matters of Succession and inheritance be governed by the Muhammedan law’. Several princely states such as Cochin, Travancore and Mysore passed similar Acts shortly thereafter. There was a gradual absorption of the Marumakkathayam and Aliyasanthanamapillas into a classical Islamic form of law, transforming their matrilineal traditions.

The dramatic political alliance and cleavages of the early 20th century and the gathering force of the Congress and the women’s movement, produced new pressures for reforms of Muslim Personal Law as well. The two important reforms of this period, the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriage Act, 1939 succeeded in Islamising Indian Muslim law, as well as defining and limiting some of the rights women had enjoyed under customary law, without a commensurate change that would make them equal to Muslim men (Ibid: 192).

Do you know? 6 The Muslim Personal Law and Status of Women Muslim Personal Law (Shariat) Application Act: The colonial period was a period of gradual Islamisation for the Muslims of India. Following the rift that developed between Muslim and Hindu political leaders after the high point of Khilafat politics in 1920-21, the Ulema, clerics of the Jamiat-al- Ulema-i-Hind, increasingly occupied center stage as the sole interpreters of Koran. It was they who initiated the move to give centrality to the Shariat and reduce the applicability of customary law among Muslims, rather than the Muslim League, despite the fact that the latter was 40 represented in the provincial assemblies. State and Civil Soceity's The movement was launched by the Jamiat-al-Ulema-i-Hind in the 1930s, Response to Women's which eventually led to the passage of the North West Frontier Province Movements (NWFP) Shariat Act of 1935, which superseded custom as a source of law. The NWFP Act was a significant legislation – it clearly laid down all the areas in which Muslims were subject to the Shariat and provide for the possibility of reform through legislative intervention. It used the words ‘Muslim Personal Law’ and ‘shariat’ interchangeably thereby irrevocably linking religion to personal law. The bill purported to improve the status of women as it was regarded in the customary law ‘disgraceful’. As the bill was opposed by a certain section of society, especially by the landed elite who resorted to the practice of bequeathing property to adopted sons and others through wills and testaments, a modification in the Act was made as it became the ‘Muslim Personal Law (Shariat) application Act of 1937’. Section 3 of the Act permitted individuals to choose between Shariat or customary law with regard to matters of adoption, wills and legacies. However, in all other matters, Muslims were to be governed by the Shariat. Even within this enforced uniformity, women stood to gain very little and the gains largely remained symbolic. The Bill was a compromise between the interests of the Ulemas, who were anxious to enlarge their roles in an Islamized Muslim community, those of the Muslim League, anxious to protect its rich constituents and finally, the Government of India, anxious to use the rural elite to counter the strength of the nationalist movement. Between these three contending interests, the cause of women was suppressed. The Dissolution of Muslim Marriage Act of 1939: Muslim women traditionally enjoyed the right of divorce, which permitted them to seek the dissolution of their marriage by apostasising (abandoning of faith) from Islam. Since Hanafi followed by most Indian Muslims was more conservative than the Maliki law on the issue of divorce, apostasy was the route that many Muslim women took to dissolve failed marriages. The Ulema were upset by this trend and decided to suggest a law, which would empower Muslim judges to dissolve a marriage on the initiative of women in certain circumstances. The legal and religious scholars in the 1920s and 30s concluded that the adoption of specific of the Maliki law on the subject would solve the problem of apostasy. The objective of the Bill was the concern for the ‘unspeakable misery (caused by apostasy) to innumerable Muslim women in British India’ (Nair 1996: 195). Ironically, the new arguments against dissolving a marriage by apostasy were applied only to women; Muslim men continued to enjoy this right unhindered. This pertinent bias undermined the advances made by women under this Act in getting a marriage judicially dissolved. Thus, legislative initiatives authored by the Ulema in the 1930s set the tone for an enduring use of Islam by religious leaders to legitimize their quest for political power, through conceding a certain degree of personal law reform. Though the law has included new definitions of cruelty and irrevocable breakdown of marriage, other decisions declared clearly that the rights previously enjoyed by Muslims seeking dissolution of marriage privately from a Kazi have been struck down.

The Muslim Women (Protection of Rights on Divorce) Bill, 1986 – the Shah Bano Controversy: The Muslim Women (Protection of Rights on Divorce) Bill, 1986 regarded as the retrogressive step, in effect replaced the legal right of a Muslim woman to maintenance from her husband with total dependence on her family. This is related to what became famous as the ‘Shah Bano Case’ and generated a lot of controversy that still persists in some form even today.

On April 23rd 1985, the Supreme Court of India confirmed the judgment of the Bhopal High Court, which awarded Shah Bano, a 75-year-old divorced Muslim woman, a sum of Rs. 179.10 per month as maintenance from her husband 41 Women, Social Mohammed Ahmed Khan. The latter’s appeal against the high Court award of Movements and Change maintenance under Section 125 of the Criminal Procedure Code (CrPC) was therefore struck down. CrPC is ‘an order for maintenance for wives, children and parents’. According to it ‘if any person having sufficient means neglects or refuses to maintain his wife, children and parents in need, a magistrate may upon proof of such neglect or refusal order such a person to make a monthly rate not exceeding five hundred rupees on the whole’. This was not a big amount, especially since as a prosperous lawyer Mohammed Ahmed Khan earned Rs. 5000 a month, but it was a remarkable improvement over the humiliating Rs. 25 awarded as maintenance in 1979 by the Judicial Magistrate of Indore. The Judgment, however, opened up the floodgates of controversy throughout India. The first official response was from the Muslim Personal Law Board, which interpreted the Judgment as a blow to the religious freedoms of Muslims, especially since the Supreme Court had attempted to interpret the Koran. With other fundamentalist leaders of the Muslim community, the Muslim Personal Law Board pressurized the government to exempt Muslims from the application of Section 125 of the Cr PC. It is a clear indication of the dire consequences with which she was threatened that on 2 November 1985, Shah Bano withdrew her threat for maintenance and demanded that the Indian Government withdrew the Supreme Court Judgment, exempt Muslims from Section 125 of the CrPC and allow Muslims to be kept out of the directive of a Uniform Civil Code (Nair 1996: 230-31).

Political considerations relating to electoral complications urged the Government of India led by the Congress to pass a Bill in 1986 virtually conceding all the demands that had been made by Muslim fundamentalists. Though many Muslims saw it as a retrograde step, the Muslim Personal Law Board sought to project itself as the sole and authentic voice of the Muslim people of India. Despite repeated promises no referendum was held on the issue within the Muslim community and at no point was the opinion of women systematically sought. This shows that the entire process of law making in the post–independence period served to protect some privileges at the expense of others. The Shah Bano Case was cast in terms of whether or not ‘religion was in danger’, but the Case was to do with religion as well as with patriarchy. The opposition to the government’s moves and calls for uniformity in civil laws by various individuals and organizations further increased anxiety among the Muslims compelling them to remain closer to their personal laws. The issue of Uniform Civil Code was further marginalized.

Learn From Your Experience 2 Talk to ten Muslim women and ask them about the personal laws related to marriage, divorce and succession. Now examine how far they are aware of the different laws and the provisions and thereof and also how far their information is correct. Based on your findings write a note on ‘legal knowledge of women’.

15.6 CHRISTIAN PERSONAL LAW

The Christians who constitute 2.32 per cent of the total Indian population (1991 Census) belong to three different traditions — the Orthodox churches of west Asian traditions, the Roman Catholic Church, and the various reformist churches of Protestant traditions. The laws governing the Christian communities have three distinct sources, i.e. the statuses enacted by the British in the 19th century, the Civil Code introduced by the Portuguese and the French within their colonies and the local customary laws.

Until the 19th century, the converted Christians followed the local customary practices of pre-conversion traditions in respect of property, inheritance and marriage rituals. The concept of a distinct Christian Personal Law evolved only during the later half of the 19th century with statutory enactments introduced by 42 the British and the Portuguese. The two initial statutes enacted by the British State and Civil Soceity's were meant only to aid the process of proselytization. The Caste Disabilities Response to Women's Removal Act (or the Freedom of Religion Act) of 1850 was aimed at protecting the Movements Christian converts from disinheritance from their respective families. The Native Converts Marriage Dissolution Act of 1866 provided for the dissolution of the converts marriages contracted prior to conversion. Later, two more statutes were enacted to regulate Christian marriages. The Indian Divorce Act (IDA) of 1869 was modeled on the British matrimonial statute, the Matrimonial Causes Act of 1857 and provided for adultery as the sole matrimonial offence (which, as far as the wife was concerned, had to be coupled with either cruelty, desertion, incest or bestiality). The later enactment, the Indian Christian Marriage Act (ICMA) of 1872, provided for the solemnization and regulation of Christian marriages. The primary aim was to extend to the British and other Europeans the beneficial provisions of the English statue (Agnes 1999: 144).

The subsequent British enactments liberalized divorce and by 1937, adultery, cruelty, desertion and insanity were made into independent grounds of divorce in England. But in India there were no corresponding attempts to modernize the Christian family laws. Thus, there have been unequal grounds for men and women regarding divorce among Christians. A landmark judgment by the Kerala High Court was given in mid 1995, making it possible for a Christian woman in Kerala to seek divorce on any one of the grounds of cruelty, desertion or adultery. This judgment brings the Kerala Christian woman at par with the women of other communities and showed the way for an amendment at the central level that would be applicable to all Indian Christian women.

In matters of succession, the Christain subjects of British India were governed by the provisions of the Indian Succession Act of 1865. The rights of Christians (and Parsi) women to separate property were further expanded by the Indian Succession Act of 1925, which gave equal property rights to daughters and sons and the same rights over property to the surviving spouse. In 1929, the Indian Succession Act was further amended to stress the separation of interest in property acquired before marriage and each single partner’s full powers of disposal after marriage. Altogether the Act did not apply if one of the partners was non-Christian (Non- Parsi or Non-Jew) at the time of wedding.

The Indian Succession Act of 1925 was a progressive piece of legislation, which granted equal rights to daughters and sons in the parental property. The concept of co-parcenary was also recognized by this Act. But this legislation seemed to apply mainly to Europeans and other foreigners than to Indian Christians, as large sections of the Christian community governed by customary laws were excluded from the application of this Act. Even after conversion, communities continued to follow the pre-conversion laws regarding succession. Most Christian communities followed the rule of coparcenary or joint Hindu family property.

The Syrian Christians of Kerala, even at Independence remained under the purview of the Travancore Succession Act of 1916 and the Cochin Succession Act of 1921, governed by their distinct set of personal laws. Under both Travancore and Cochin Succession Acts, the woman was disadvantaged. For example, under Section 17 of the Travancore Act, the widow got half the estate if there were no lineal descendants of the intestate. Under section 11 of the Cochin Succession Act, a widow got a share equal to the two thirds of the share of a son, if there were only daughters, then the widow got the equivalent of the daughter’s share. However, the most controversial aspect of the two Acts refer to the rights of the daughter. Under the Travancore Act, the daughter’s share in an intestate’s property was only her stridhanam, which was one-fourth of the value of the son’s share or Rs. 5000, whichever was less. Section 20 (6) of the Cochin Act similarly gives the daughter a share limited to one-third of the sons share.

Thus Christians continued to be governed by the discriminatory provisions of the uncodified Hindu law, which denied daughters a share in the parental property. 43 Women, Social These persistent inequalities have been challenged, especially in the landmark Movements and Change Mary Roy Case in 1986. Mary Roy was denied her share in the family property worth lakhs of rupees and decided to go to the Supreme Court to challenge the Travancore Act as a violation of her constitutional right to equality. She won a significant victory when the Supreme Court declared that the Travancore Act was struck down with the effect from 1951, i.e. the date when the princely State of Travancore and Cochin joined the Indian Union. Though, those who stood to lose from the inevitable changes opposed it (Nair: 1996: 229), many women like several nuns in Kerala gained from this decision as they could state their claim for a share in the ancestral property.

Among the several discriminatory provisions of their personal laws, the narrow and constrained ground of divorce has caused the greatest hardships to Christian women. Under Section 10 of the Indian Divorce Act, the husband can obtain a divorce on the ground of adultery, whereas the wife has to prove an additional ground either of cruelty or desertion. Since adultery is difficult to prove and not all husbands who treat their wives with cruelty or desert them also commit adultery, Christian women face great hardships and are discriminated against. Though various steps have been taken since the time of independence and the matter referred to the Law Commission, the necessary amendment could not be made due to the factors like – the resentment expressed by the catholic church hierarchy, lack of leadership among Christians or change of government at the Centre and the government’s reluctance to interfere in the personal matters of the minority community. Thus the efforts to bring about Christian reforms have been largely thwarted.

Think It Over 3 Compare the legal provisions related to the succession and inheritance of Hindu, Muslim and Christian religious communities. Which one do you find more discriminatory against women? Why?

15.7 PARSIS AND PERSONAL LAW REFORMS

The Parsis are a small and well-knit community with a population of around 1,00,000 and figure only under the ‘other’ in the religious category in census enumeration. The Parsis originated in Iran and left that place in 636 AD to escape persecution when the Arabs invaded Persia. After settling down in India, the Parsis adopted the local language and customs, while maintaining their distinct identity. The adaptation of the institution of local Panchayat for administration of their affairs is an important indicator of this adaptation. In 1778, the Bombay Parsi Panchayat was granted recognition and a lawfully constructed Panchayat came into effect in January 1787.

By 1885, the Parsis wanted to have their own law and wanted their laws to be protected. After following various steps, two Bills were finally enacted. These were the Parsi Intestate Succession Act, 1865 and the Parsi Marriage and Divorce Act of 1865. Thus Parsis finally succeeded in securing a separate law for themselves. The Parsi marriage and divorce law incorporated the provisions of the English matrimonial statute, which transformed the Christian marriage status to a dissoluble contract. Following the Christian model, the Parsi marriages were made monogamous and adultery was made into a ground of divorce. Through these statutes, the Parsis also secured legal recognition for their customary arbitration forum of the panchayat and the community obtained a hold over matters of marriage and divorce within the Anglo-Saxon court structure. In the process of emulating the English statues, certain biases against women crept into the matrimonial laws. Despite the enactments, in matters not covered by the statute, either the English common law or principles of justice, equity and good conscience continued to be applied to Parsis. 44 In 1925, when the Indian Succession Act was enacted, the Parsi Intestate Succession State and Civil Soceity's Act was incorporated in this Act. However, though the Indian Succession Act did Response to Women's not discriminate between male and female heirs, the Parsi inheritance laws, Movements continued to do so and females continued to inherit half of the share of their male counterparts. When reforms were initiated in the family laws of Hindus and Muslims, the Parsis also initiated a process of reform. The changes suggested by a Draft Bill of the ‘Council of the Parsi Central Association’ to improve the position of the widow and daughter the statute and allotment of share to parents, were incorporated into the Indian Succession Act in 1939. The Parsi Marriage and Divorce Act became redundant in the course of time in the context of the changes coming about in English family laws between 1865 and 1930 and Parsis started their efforts to reform their own laws. The Parsi Panchayats, Parsi Associations, Parsi Anjuman, the Parsi jurists all over India played important roles in the process of introducing the Bill which was passed in March 1936.The reforms expanded the scope of dissolving the marriage by introducing several new grounds – non-consummation of marriage, insanity, pre-marriage pregnancy, grievous hurt and desertion. The Nineteen seventies and eighties witnessed the emergence of a new women’s movement in India and reform in personal laws. Among Parsis, the process was initiated by the Board of Trustees of the Bombay Parsi Panchayat. Amendment to marriage laws in the form of Parsi Marriage and Divorce (Amendment) Bill came into force in 1988 through which grounds for divorce were liberalized and divorce by mutual consent was introduced. The amendment to succession laws could be enacted only in 1991, by which the discrimination between female and male descendants was abolished. This way the Parsis through the process of reforms that are initiated within the community could bring about separate law for themselves thereby maintaining their own identity and ensuring that the laws do not lag far behind the dominant ideology. Though not completely reflecting gender equality, these laws brought about significant changes in the rights of women.

15.8 PRESENT SCENARIO — REFORMS IN PERSONAL LAWS

Although there was a demand for uniform civil code from diverse corners of the society before and after independence from diverse corners of the society, it could never be materialized. Respective religious communities, to a certain extend, did try to bring changes in their personal laws, however on a whole all of them especially the minority communities resisted attempts towards uniform civil code.

In the present context, it can thus be stated that talking about the Uniform Civil Code has almost become taboo. However, what is being undertaken now by all major religious communities is the codification of their personal laws so as to make them more gender –equal and gender-just. For instance, the Hindu Succession Act of 1956 that deprived women the right in ancestral property is being challenged in different states. In 1984, women in Andhra Pradesh were granted the right of coparcenary through a state amendment. The states of Tamil Nadu and Karnataka introduced the provisions of Andhra Pradsh amendments in 1990 and 1994 respectively. Under a women’s policy introduced in Maharashtra in 1994, women in Maharashtra were granted the rights to be recognized as coparcenars.

Regarding the Islamic law, religious community leaders, jurists and women’s organizations are making several efforts. In this context it is suggested to formulate a standard nikahnama and the setting up of arbitration councils to regulate marriages and divorces. The standard nikahnama which is being widely discussed and debated could contain, it is said, provisions of monogamy, curtailing of power of arbitrary and unilateral divorce, granting the wife delegated power of divorce and provision for future security of the wife by stipulating securities, conceding valuable or immovable property as mehr in lieu of token cash amounts, in accordance with the economic status of the parties. In January 2005, the ‘Muslim 45 Women, Social Women Personal Law Board has been created which is dealing with several issues Movements and Change concerning the rights of women in Islam. Similarly, the efforts towards reforms in personal laws are being made from within the community by non-Muslim minorities. The Parsi community has been able to preserve its specific cultural identity while modernizing the family laws. The attempts by the Christian community have been more laborious and are marked by tensions between liberal Catholic clergy and the conservative Catholics at one end and the Catholic clergy and the laity at the other, with government maintaining balance and supporting status-quo. Thus the need of the hour is to bring about reforms within the personal laws of different religions and that too mainly through the efforts from within the community. Besides this, it is also possible to enact uniform legislations in specific areas of family law without invoking the controversy of majority-minority politics. The Dowry Prohibition Act, 1961, the Medical Termination of Pregnancy Act, 1971, introduction of new offence of cruelty to wives under section 498 (A) IPC in 1983 and the Family Courts Act, 1984 are indicative of this possibility. The reforms can be done in phased out manner. The suggestions for widening the base of women’s economic rights which are at the centre of matrimonial reforms would have to be backed by campaigns and movements as was done in the dowry and cases in the eighties. The enactment of Domestic Violence Act recently in 2005, after a long struggle, is another example of such an effort. Therefore, the reforms of the personal laws and simultaneous initiatives in the specific realm of family law would go a long way in improving the condition of women in India within different religions.

15.9 CONCLUDING REMARKS

Religion in India is intrinsically related to the personal laws of various major religions in the country. An attempt was made in this Unit to understand the growth of personal laws as understood today. In the ancient time the Hindu laws were guided by the scriptures, which in turn gave space to the customary practices of the people. The intervention however, by the legal courts was limited and caste panchayats and sangh continued to play important roles. Mughal rule also did not interfere in the local customs, though Islamic law became the part of Mughal court proceedings. During the colonial rule interventions were made by the State in the realm of family law, primarily at the pretext of doing away with the barbaric customs of the indigenous people and in the process established Anglo-Saxon jurisprudence. Through translation of religious scriptures of both Hinduism and Islam and introducing laws in the courts accordingly, it subverted the traditional legal systems and with it some of the rights of women. In the process of streamlining the pluralistic society several customary rights of women were crushed, as they could not meet the legal requirement set by the British courts to prove a custom. The colonial interventions also facilitated the construction of distinct and mutually hostile religious communities of Hindus and Muslims, to be governed by their respective personal laws.

During the nationalist struggle, there were attempts to restore women’s rights. The primary aim of the two legislations enacted in 1937, The Hindu Married Women’s Right to Property and the Application of Shariat Act was to restore the property rights subverted through the legal precedents set by the British courts. But within a changed socio-economic and political context these legislations brought in only marginal respite. It is seen that efforts were made before and after independence on two fronts almost simultaneously. One, to reform the personal laws and the other, to introduce uniform civil code that would do away with the inequalities perpetrated in the name of religion. The Constitution with its mandate of equality brought visions of gender justice. Although attempts for reforming personal laws favouring women did happen to some extend when the provisions were challenged in the court, the idea of uniform civil code as envisaged in the Indian constitution do not seem to materialize in the near future. All these aspects are discussed and elaborated in 46 this unit. State and Civil Soceity's 15.10 CLARIFICATION OF THE TERMS USED Response to Women's Movements Uniform Civil Code : By uniform civil code we essentially understand that of unifying all the personal laws to have one set of secular laws dealing with the aspects dealt in personal laws. Uniform Civil Code shall apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not definitely been spelt out yet, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.

Inheritance : It denotes the procedures, which apply to the transmission of property, either material or immaterial, from person to person at death. These procedures may be matrilineal, patrilineal or bilateral.

Customary law : it is the written and/or unwritten rules developed from the customs and traditions of the communities. For customs and traditions to become laws they must be a) known to the community b) followed by the community and c) enforceable among the members of the community.

15.11 SOME USEFUL READINGS

Agnes, Flavia. 1999. Law and Gender Inequality: The Politics of Women’s Rights in India. Oxford University Press: New Delhi

Dube, Leela 1997. Women and Kinship: Comparative Perspectives on Gender in South and South-East Asia. Vistaar Publications: New Delhi

Madan, T.N. 2004. ‘Religions of India’ In Veena Das (ed). Handbook of Indian Sociology. Oxford University Press: New Delhi

Nair, Janaki 1996. Women and Law in Colonial India: A Social History. Kali for Women: New Delhi

47