Tanay Akash, B.A. LL.B. Central University of South Bihar
India, a country of different culture, different practices, different languages, different religion, different faith and as the basic structure of the Indian Constitution i.e. preamble contains secularism and protection of belief, faith and worship it guarantees the protection of the right of each individual. And as they have different cultural views they also need some different laws to be governed and these set of laws are known as personal laws. These personal laws are mostly uncodified and based upon traditions as well as religious texts. The rules given under these laws are mostly of family matters such as marriage, divorce,maintenance, succession etc. Different personal laws provide different ways and methods for all such social activities and it is also said that it is kept away from fundamental rights.
Fundamental rights are such rights which are kept in the part 3rd of the Constitution and are enforceable in the Apex Court of India. These rights are the basic rights which a human being must have certain limitations but the contradictions between the fundamental rights and some provisions given under personal laws make a vague sphere of judicature. Ultimately it is seen in the present scenario that all those provisions directly or indirectly are male dominated and favours the patriarchal society. Women suffer and even their fundamental rights get harmed. None of the personal laws ensure equal rights and treatment whether it may be the matter of marriage, divorce or succession.
Malpractices in the personal laws
Women, better known as the best creation of the world and which constitute half of the population of the society but still gets ill-treated at every age. They seem to be dependent from centuries over men for sources and independence but today when we are living in the 21st century where women are allowed to enjoy equal rights as of men, they have the right to live their life with full liberty and dignity, then there are certain malpractices in the name of provisions of some personal laws. These malpractices are a result of the archaic customs which are needed to be modified.
- a) Malpractices regarding marriage – Marriage is something which is said to be as an indissoluble union, Holy union, Inseparable Union and the meeting of the sole to sole and flesh to flesh in Hindu Personal laws. As it is codified under The Hindu Marriage Act 1955, it has less ambiguity but malpractices are still there which are needed to be regulated. Sec 7 of this act describes ceremonies needed for the celebration of Hindu marriage and in several cases, it is seen that in the case of bigamy husband got acquitted just because the 1st or the 2nd marriage was not properly celebrated. Also, the process of registration of the marriage is not binding practically as the fine is nominal. The worst condition of women is in Muslim personal law as being mostly uncodified it just becomes a mere contract. Practices such as polygamy make it even worse. It is said in Shariyat that you can only marry with 4 women if you can treat them equally but practically it is impossible for anyone to treat them equally with same love and emotion. In Christian and Parsi personal laws the problems of adultery and bigamy are seen.
- b) Malpractices regarding divorce and maintenance – Divorce means a permanent separation from conjugal duties and maintenance is the amount which is given after such divorce. These two things are made compulsorily in all the personal laws but the malpractices regarding these two things are also high. As Hindu Marriage Act puts some useless criteria under Sec 13 for divorce, Muslim personal law contains some vague provisions such as Triple Talak, Khula etc. which are completely harming the dignity of Muslim women. It is also seen that nominally they are given very less right in Islamic Laws even then they are mostly unenforceable. Recently Justice Pasha said that if a Muslim male is allowed for polygamy why not they provide such right to females too. Recently in the famous ‘Shayra Bano’ case, it was seen that the Shariyat Application Act of 1937 and the dissolution of Muslim Marriages act, 1939 is incomplete and need to be amended.
- c) Other practices – Other than these even after some codes and acts in the matter of succession, rights and benefits it is seen that the personal laws favour males over female which is a complete biasness. There are also some traditions which are done as per religious faith but against the human values.
Conflict with fundamental rights
Recently in the Apex Court while hearing the ‘Jamiyat Ulema E Hind’ said that ‘Supreme Court cannot check Marriage, Maintenance and Divorce constitutionally because personal laws cannot be challenged with respect to fundamental rights’. This statement is completely meaningless as each and every law in India is below the Constitution of India and Article 21 of Indian Constitution provides everyone to live life with full personal liberty, dignity and privacy. Also, Article 14- 15 guarantees equality as well as no discrimination. It is also said that in all other civil and criminal matters everyone is governed by codes such as Indian Penal Code 1860, Code of Criminal Procedure 1973, Civil Procedure code 1908, Indian Contract Act 1872 but when it comes in the matter of family and women., the patriarchal society stares towards personal laws and exploitations in the name of tradition and religion begins.
None of the law is above the basic human rights and fundamental right tries to secure such rights through enforceability, thus it must cover the purview of every personal law and if any provision in the personal law is violative of fundamental right them it must be rectified.
From a passive housewife to an active member to bring social change women showed a huge potential throughout the world. In leadership qualities they are nowhere less in any manner then men even they are more capable of performing it whether it is of social, economic, religious or political. It’s time for the society to change its mind set and to work accordingly and for complying with such equalised society it is mandatory for personal laws to be amended and the ambiguities which are present in them must be rectified.
It is not such, that if something exploitive is running from time immemorial then it must go on just because it proves the dominance of a gender over other. Now it’s time to make a change. Nothing is above the basic human rights and every personal law in the clash with it must be struck off.