Status of Women

 

Status of Women under Hindu Law - A Critical Study

Table of Contents

1. Introduction
2. Various Acts containing remedies for Women
3. Restitution of conjugal rights
4. Additional grounds of divorce available to the wife
5. Property Rights for a Hindu female
6. Domestic Violence Protection Laws

Introduction

A century ago there was a clear dominance of patriarchy in society but gradually the mindset of people and laws of the country developed according to the changing situation.
Undoubtedly, some loopholes always exist in the statutes especially when it is related to personal laws but fortunately, Hindu laws’ principles guarantee justice for every woman out there in the country.
From household chores, matrimonial life, inheritance of property to the adoption and guardianship there are proper laws, rules, and regulations that keep the working of the family courts smooth and simple.
Swami Vivekanand was right when he said, "Just as a bird cannot fly with only one wing, a nation cannot march forward if the women are left behind." The two halves of a complete whole are men and women. Their togetherness gives them strength, while their separation gives them frailty. Each possesses something the other does not. Each one complements the other and complements the other. The term 'woman' has an etymological meaning of 'half of a man.'
There is no question that we are in the midst of a major revolution in women's history. The proof is everywhere; women's voices are increasingly being heard in Parliament, courts, and on the streets. While women in the West had to battle for nearly a century to obtain some of their basic rights, such as the ability to vote, India's Constitution granted women equal rights with males from the start. Unfortunately, owing to illiteracy and restrictive tradition, most women in this nation are uninformed of their rights. Names such as Kalpana Chawla, the Indian-born woman who fought her way up to NASA and became the first woman to reach space, and Indira Gandhi, the Iron Woman of India who served as Prime Minister of the Nation, Beauty Queens such as Aishwarya Rai and Susmita Sen, and Mother Teresa are not representative of the condition of Indian women.

These below-mentioned Acts clearly establish such laws that are directly or indirectly related to providing justice to women of the society, which also encourages the concept of women empowerment. For providing rights and remedies to women, Hindu law consists of statutes that enable them to facilitate their justice.

The Hindu Widows’ Remarriage Act, 1856

Prior to the introduction of this Act, a Hindu widow was not allowed to re-marry except where it was permitted by custom. This is an enabling Act and it enables a Hindu widow to re-marry. The Act Legalizes the re-marriage of Hindu widows and declares the issue of such re-marriage to be legitimate.

The Hindu Women's Right to Property Act, 1937 

The Act brought important changes in the Hindu Law of coparcenary partition, alienation, inheritance, and adoption. Prior to this Act, the widow of the deceased Hindu was not entitled to get any share in the property if the deceased left a male issue. The Act conferred upon the widow of a man’s rights of inheritance to his property even when he left male issue. Similar rights were conferred upon the widows of his predeceased son and of his predeceased son of the predeceased son. In a Mitakshara coparcenary, the widow of a deceased coparcener as a result of this Act stands in the shoes of her late husband. Thus, where a coparcener left a widow, the rule of survivorship no longer took effect. This Act has been repealed by the Hindu Succession Act, 1956.

Special Marriage Act, 1954

This Act provides a special form of marriage for all persons in India including Hindus. Two persons of different religions may also marry under this Act. If a Hindu marries under this Act, he shall be deemed to effect his severance from the coparcenary (joint family). To solemnize a marriage under this Act, no ceremony is necessary.

The Hindu Marriage Act, 1955

This Act has revolutionized the conception of the Hindu Marriage. The Act made Hindu marriage monogamous and any violation of it has been made the offence of bigamy punishable under Sections 494 and 495 of the Indian Penal Code. Prior to the enforcement of this Act, the divorce was not known to Hindu Law except where it was allowed by custom. This Act makes provision for divorce on certain grounds. In addition to divorce, various other matrimonial remedies like nullity of marriage, judicial separation, and restitution of conjugal rights have been provided by the Act. The inter-caste marriage has been made legal.

The Hindu Succession Act, 1956

The Act amends and codifies the law relating to succession, both intestate and testamentary, among Hindus. Prior to the passing of this Act, daughters were not entitled to inherit if there was a son. The Act put daughters at par to son. Now daughter and son both will inherit equally simultaneously. The Act converted the limited estate of a Hindu woman into full, and any property possessed by a Hindu female shall now be held by her as full owner thereof. A Hindu has been expressly given the power to make a Will or other testamentary disposition of his or her property. The Dayabhaga School of law has been practically abrogated and the Mitakshara School of law has been much modified.

The Hindu Minority and Guardianship Act, 1956

The Act amends and codifies certain parts of the law relating to minority and guardianship among the Hindus. The Act abolishes the de facto guardianship of a minor's property. The rights of natural guardians and testamentary guardians of a Hindu minor were also curtailed and made subject to the supervision of the Court.

The Hindu Adoptions and Maintenance Act, 1956 

This Act was the fourth and the last installment of the Hindu Code. Prior to the enforcement of this Act, a widow had no right to adopt a son in her own right, but she could adopt on behalf of her late husband. The only male child could be adopted. The Act made drastic changes in the Hindu Law of adoption. After the amendment in the Hindu Adoptions and Maintenance Act by the Personal Laws (Amendment) Act, 2010, male and female Hindus have been made equal jura in the matters of adoptions.
In the law of maintenance also the Act makes some changes. The widowed daughter-in-law now may claim maintenance from her father-in-law in certain circumstances. A childless step-mother may also claim maintenance from her step-son.

The Hindu Succession (Amendment) Act, 2005

The Hindu Succession (Amendment) Act, 2005 has brought about far reaching changes in the concept of Mitakshara Coparcenary. This amendment has now made the daughter of a Mitakshara Coparcener a coparcener in the Mitakshara Joint family. It has deleted Sections 4(2), 23, and 24 of the original Hindu Succession Act and inserted four news heirs in class I of the Schedule. It has substituted Section 6 of the original Hindu Succession Act. The Section 6 of the Hindu Succession Act, as substituted by this Amendment Act, makes the daughter of a coparcener in the Mitakshara joint family and abolishes the principle of survivorship, which was a cardinal principle of the Mitakshara coparcenary till now.

Remedy of restitution of conjugal rights under the Hindu Marriage Act, 1955

Remedy of restitution of conjugal rights. It is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort (consortium) of the other. If one spouse has abandoned or withdrawn from the society of the other without his or her consent or without just cause the other spouse is entitled to get the decree for the restitution of conjugal rights. Section 9 of the Hindu Marriage Act, 1955, incorporates in clear terms the remedy of restitution of conjugal rights. It reads: "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for restitution of conjugal rights and the Court, on being satisfied with the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly."

The petition of restitution under Section 9 of the Act may be granted if the following three conditions are satisfied: 

(i) that the respondent has withdrawn from the society of the petitioner (aggrieved party) without any reasonable excuse;
(ii) that the court is satisfied about the truth of the statements made in such a petition; and
(iii) that there is no legal ground why the application should not be granted.

The Supreme Court in Sureshtha Devi v. Om Prakash, AIR 1992 SC 1904, held that a party to the petition for divorce by mutual consent can unilaterally withdraw his consent at any time till passing of the decree under this section. If subsequent motion seeking divorce decree under Section 13-B (2) is not of both the parties because of the withdrawal of consent by one of the parties, the court gets no jurisdiction to pass the decree. Mutual consent should continue till passing of decree. In this case the wife stated that her consent was obtained under pressure and threat of husband and she was not even allowed to see or consult her relatives before filing the petition for divorce.
The Court observed that the interregnum of 6 to 18 months contemplated under sub-section (2) of Section 13-B was intended to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends. In this transitional period, one of the parties may have a second thought and change its mind not to proceed with the petition. 

Along with all other matrimonial remedies there are additional grounds of divorce available to the wife alone that are mentioned below:

Under Section 13 (2) of the Hindu Marriage Act, four grounds of divorce are given on which only a wife may obtain decree of divorce. These grounds are the following:

(a) Polygamous marriage solemnised before the Hindu Marriage Act [Section 13 (2) (i)].-A wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground "in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband before such commencement was alive at the time of the solemnisation of the marriage of the petitioner.

Provided that in either case the other wife is alive at the time of the presentation of the petition".

(b) Unnatural offence [Section 13(2) (ii)-A wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that "the husband has, since the solemnisation of the marriage been guilty of rape, sodomy or bestiality."

In Navtej Singh Johar v. Union of India, AIR 2018 SC 432 the Supreme Court held that portion of Section 377 is unconstitutional which criminalised consensual sexual acts between adults. The Court pointed out that criminalisation of sexual acts between consenting adults violates the right to equality granted by the Constitution. However, other portion of Section 377 relating to sex with minors, non-consensual sexual acts and bestiality remain in force. The decision of Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, however, does not have any effect on Section 13(2)(iii).

(c) Non-resumption of cohabitation after a decree or order of maintenance [Section 13 (2) (iii)].-Section 13 (2) (iii) of the Hindu Marriage Act lays down that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground "that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of Criminal Procedure,1898). a decree or order, as the case may be has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order cohabitation between the parties has not been resumed for one year or upwards".

(d) Option of Puberty |Section 13 (2) (iv)].-Section 13 (2) (iv) of the Hindu Marriage Act lays down that a wife may present a petition for the dissolution of her marriage by a decree of divorce on the ground that "her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years".

Property Rights for a Hindu female

Section 14 of the Hindu Succession Act, 1956 has brought about a revolutionary change by enlarging the proprietary rights of a female Hindu.
Proprietary rights of a female Hindu (Section 14, Hindu Succession Act).-Prior Hindu Law. Before the commencement of the Hindu Succession Act, 1956, the property received by a Hindu female by inheritance and share allotted on partition was to be held by her as a limited owner. This limited ownership in Hindu law was known as "Hindu woman's estate." The holder of "woman's estate" was limited owner in the sense that after her death the property could not devolve on her own heirs, but would devolve on the heirs of the last full owner, and that the owner could not transfer the property except under three circumstances. 

These circumstances were: 

(i) Legal necessity
(ii) Benefit of estate
(iii) Religious purposes
Section 14, Hindu Succession Act.-Section 14 of the Hindu Succession Act, 1956, abolishes the Hindu "woman's estate and confers on Hindu females the absolute ownership of all property, except those which are expressly provided by sub-section (2), Section 14 (1) runs thus:
"Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner."
"Any Property".-All property possessed by a Hindu female irrespective of school she belonged, shall be held by her as full and absolute owner. The word "property" includes both movable and immovable acquired by her:
(i) by inheritance
(ii) by purchase
(iii) by partition
(iv) by adverse possession
(v) by finding
(vi) in lieu of maintenance or arrears of maintenance 
(vii) by gift from relations or strangers, whether before or after the marriage;
(viii) by her own skill or exertion; or
(ix) in other manner whatsoever, or 
(x) property held by her as stridhan immediately before the commencement of this Act. Our Parliament by providing Section 14 (1) and Explanation attached to this sub-section, has overruled the various decisions of the Privy Council Thakur Deyee v. Rai Baluk Ram, Bhagwan Din v. Mayna Bayee, Sheo Shanker v. Devi Sahai, and accepted the Mitakshara extension of the term 'stridhan'. Had the Privy Council allowed the Mitakshara interpretation of stridhan to prevail in the domain of Hindu law, there would have been no need for enacting Section 14 of the Hindu Succession Act, 1956.

In V. Muthusami v. Angammal, (2002 (47) ALR 363 (SC) the Supreme Court opined that the words 'any property under Section 14 (1) of the Hindu Succession Act, 1956 are large enough to cover both movable and immovable property acquired by a female Hindu'. Before any property can be said to be "possessed by a Hindu woman, two things are necessary (a) she must have a right to the possession of the property and (b) she must have been in possession of that property either actually or constructively [Balvant Kaur v. Chanan Singh, AIR 2000 SC 1908].
In G.T.M. Kotturuswamy v. Setra Veeravva, AIR 1959 SC 577 the Supreme Court said that : "The property must be possessed by a female Hindu at the time the Act came into force in order to make the provisons of the section applicable."
Of course the possession referred to in need not be actual, physical possession or personal occupation of the property by the Hindu female but may be possession in law. [IV. Muthuswami v. Angammal. (2002) 47 ALR]

Domestic Violence Protection Laws
Protection of Women from Domestic Violence Act of 2005, as well as Sections 498A and 406, 323, and 354 of the Indian Penal Code, provide several laws to protect women from domestic violence.
Protection of Women from Domestic Violence Act of 2005 also allows women in live-in relationships to seek relief.
In India, the Prevention of Women Against Domestic Violence Act, 2005 is a special act that protects women from domestic violence. Physical, emotional, financial, and sexual assault are all covered by the Acts, which also apply to women in live-in relationships. Even if a woman desires to be separated from her family due to domestic abuse, the Act provides her rights. Furthermore, under Section 498 A of the Indian Penal Code, any act of physically or mentally harassing the lady of the house for dowry is prohibited. The regulations in the context of domestic violence include nearly every element of mental and physical health.

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