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Women’s Rights in India: Changing Facets: 


“However, intervention by courts in singular instances cannot change the society. The women can achieve legal equality by changes in social thinking itself. This can be achieved only through proper education. Legislative measures which are wholly divorced from social reality, cannot bring about drastic changes by use of concepts alien to the people”

Sitting on the crossroads of so many religions, cultures and ideologies, India is quite unique. Hindus, Muslims, Christians, Parsis etc. all have their personal laws, which are duly recognised and enforced by law. In the case of Hindus, Christians and Parsis some of the personal law is even codified. However, there is no uniform civil code to deal with private rights of persons in personal and family matters. Partly a legacy of the British, the system works fairly well inasmuch as various people within the nation are granted autonomy to the extent of their inter-personal rights within their own community, group or sub-group. The said rights are further reinforced by the recognition by law of many local customs, usages and practices. This method is presently suitable since there is no fear of imposition of values, beliefs and practices  of the majority upon the minority, especially in a country where "community" factor plays a major role in election of legislative representatives. It may be added that Article 44 of the Constitution of India, however, prescribes that we should have a uniform civil code for all the citizens of the country.

In this situation, where does the Indian woman stand. When personal rights are determined by the laws of respective communities, the economic and cultural rights of women would also depend partly, but importantly, upon this factor. Women from different communities are bound to have different rights-whether they are rights to property, succession rights, matrimonial rights, rights in respect of children etc. 

This dynamics of various unequal rights among equal persons (women) on ideologically firm ground - in the present context - can be confounding for any system of government. Women find themselves suffering inequality not only vis a vis men but also as against women from other communities. In cases where the personal law is codified the legislature can suitably amend or modify the law to meet new exigencies – at least in theory.  However, much of personal law is not codified. 

Under the classical Hindu law women did not have many rights vis-a-vis men. However, codification of Hindu law in 1955-56 by enactment of Hindu Marriage Act, Hindu Adoptions & Maintenance Act, Hindu Minority & Guardianship Act and Hindu Succession Act ameliorated the legal position of Hindu women to some extent. Still inequalities remained. A daughter has only limited rights in the ancestral property. Father is the preferential natural guardian. Since most land in the country is agricultural in nature, the gain in property rights for rural women is also negligible, as most of the agricultural land related law does not grant women rights to succession.

As the legislature has avoided too much interference with the personal laws of the various groups or communities, it is the judiciary which has tried to resolve the inequalities. In "Shahbano case" (AIR 1985 S.C. 945) the Supreme Court upheld the application of a Muslim woman for lifelong maintenance from her ex-husband. However, this verdict became a rallying point for many Muslims who felt that the court had violated Islamic law. In order to meet the controversy the Government of that time enacted the Muslim Women (Protection Of Rights On Divorce) Act, 1986 which nullified the gain to the Muslim women. Justice Krishna Iyer in his recent book has strongly criticised this controversial new Act. He has suggested a reform of the Muslim Personal Law and the adoption of a 'Uniform Civil Code for Indians as a means of unifying the Nation against the divisive potential of religious fundamentalism and competitive communal pluralism. Then, in the judgment of V. Tulasamma (1977) 3 SCR 261, the Supreme Court interpreted section 14 of the Hindu Succession Act, 1956 in a manner which expanded the property rights of Hindu Women. Again in two recent judgments (Ms. Githa Hariharan v. Reserve Bank of India AIR 1999 SC 1149 and  Sarita Sharma v. Sushil Sharma JT 2000 (2) 258), the Supreme Court has interpreted the law in a manner favourable to women in the context of gender equality.

In Githa Hariharan’s case Supreme Court held that a Hindu woman is the natural guardian of her children as much as the father. Till this judgment, the position was that under the Hindu Minority & Guardianship Act, 1956, it was the father who is the natural guardian first. The mother is the natural guardian only after the father. The effect of this, was that educational institutions, banks, municipal authorities or such similar bodies always insisted on identification through only the father. After passing of this judgement, the children can now be identified directly through their mother. Touching upon the same Act, the Supreme Court in Sarita Sharma’s case, granted the mother, custody of her children despite a foreign court decree which had granted the custody  of the children to the father. The Court held that the welfare of the children was paramount. These judgments of the Supreme Court help raise the social status of women in a big way. These judgments reflect the judicial perception of what is just and proper under the Constitution.

However, intervention by courts in singular instances cannot change the society. The women can achieve legal equality by changes in social thinking itself. This can be achieved only through proper education. Legislative measures which are wholly divorced from the social reality, cannot bring about drastic changes by use of concepts alien to the people. It will be a struggle, where women themselves will have to assert and demand equality within their respective communities. Legal intervention can only assist, but cannot change the society in a direction not seen and tested by it.

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