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UNIT 15 WOMEN, RELIGION and PERSONAL Response to Women's LAW Movements

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UNIT 15 WOMEN, RELIGION and PERSONAL Response to Women's LAW Movements 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 India 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 marriage, 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 Constitution of India. 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).
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