Shouldn’t codified Hindu laws for women be scrutinised too?

Hindu law reforms of the fifties was a long drawn and extremely contentious process which spanned over 15 years and was spearheaded by social reformers. Though the enactments codified the Hindu laws, they did not bring in equality, gender justice or uniformity and provided a statutory recognition for the diverse customs and usages followed by various sects, communities and regions.

The main focus of these reforms was to grant women equal inheritance rights and to transform sacramental Hindu marriages into contractual obligations by introducing divorce and other matrimonial remedies, along the lines of English matrimonial laws.

The reforms were met with severe opposition from conservative leaders who were opposed to granting Hindu women the right of divorce as well as property rights to daughters as they perceived that if women were granted these rights the Hindu society would disintegrate. Since there was a strong political resistance to reforming Hindu laws, the state had to perform several balancing acts. Crucial provisions empowering women had to be diluted to reach a level of minimum consensus. While projecting the reforms as pro-women, male privileges had to be protected. While introducing modernity, archaic Brahminical rituals had to be retained. While claiming uniformity, diverse customary laws had to be validated. While usurping the power exercised by religious heads, the needs of emerging capitalism had to be secured.

The enactments were neither Hindu in character nor based on modern principles of equality, but reflected the worst characteristics of both.

Codified Hindu laws – a model for reform?

The constant projection of the discriminatory provisions of Muslim law by the media tends to project it as archaic and retrograde and in contrast, the codified Hindu Law as progressive and gender-just. This premise needs an in-depth interrogation. Since this law is applicable to around 80% of our population, the question whether it has helped to bring social transformation and changed gender relationships within Hindu society becomes critical.

The continuation of the Hindu Undivided Family (HUF) property is perceived as the only violation of the principle of gender justice. But several discriminatory aspects of the Hindu cultural practices which govern the Hindu law of marriage, divorce and matrimonial life, are seldom held up for scrutiny.

The ritual of kanya daan (sacrificial offering of the bride to the groom), an essential condition of a Hindu marriage, the notion of girls as ‘paraya dhan’, the pious obligation of a Hindu father to marry off his daughter which then gives boost to dowry, the view that Hindu marriages are sacramental and the accompanying pati-parameshwar concept, the premium placed on virgin brides which pressurises parents to perform child marriages, etc. still dominate our Hindu social ethos and judicial discourse.

Despite amendments to the Hindu law, which rendered the Hindu marriage contractual, the sacramental aspect still dominates the social psyche and parents prefer to send the daughter back to her matrimonial home rather than risk having a divorcee on their hands. The age-old dictum still prevails that a girl who enters a bridal home in a wedding procession must leave her home only in a funeral procession. So, despite acute domestic violence, girls are sent back to their homes even at the risk of them being killed or driven to suicide.

In contrast, a Muslim marriage has always been a civil contract, a view later adopted by Continental and English laws. While among the urban, middle and upper classes of Hindus, there is greater likelihood of women opting for divorce when faced with domestic violence, in rural areas, where the conservative view of sacramental marriage dominates, women are less likely to opt for divorce even when faced with cruelty, desertion or their husband’s adultery, as marriage is deemed to offer protection to women.

The concept of permanency of marriage and husband as the ‘Lord and Master’, is visible not just in our public life, but in litigation in family courts where women are constantly advised by judges to return home to save their marriage even at great risk to themselves. Women too believe that even if their husbands are abusive, violent or alcoholic, it is better to remain married, since the symbols of marriage – the mangalsutra and sindhoor, are perceived as marks of respect, status and protection against advances from other men.

Ironically, Muslim law started with the notion of mehr, an amount which must be stipulated in the marriage contract (nikahnama) as a future security to the bride, gradually under the dominant Hindu influence, the community has accepted the anti-women custom of dowry. So, while mehr amounts have been reduced to a mere token rather than a substantial amount which would provide the bride future security, huge amounts are demanded as dowry.

While all religions are patriarchal and exert a strict control over a woman’s sexuality, the hold of Brahminical patriarchy reaches a high pitch when we examine the phenomenon referred to as honour killings. A girl is brutally killed by her own parents for transgressing the caste boundaries, and marrying a man/boy from a lower caste. While the Hindu law provided for marriages across all Hindu denominations, and integrate Hindu society, the rigid caste boundaries still prevail. At times the young couple is killed for contracting sagotra and sapinda marriages within certain communities, concepts unique to Hindus which have been incorporated in the codified Hindu law.

Judicial interpretations as a tool of reform

If it is accepted that all personal laws, customs and practices are patriarchal, where does the process of change to bring in gender-just laws begin? Here we must accept two premises. Firstly, that our laws are not uniformly gender unjust. They contain various forms of gender injustice specific to each and must be addressed within its own specificity. Secondly, law is not static, it is dynamic and gets formulated within the contested terrain of litigation and our Constitution provides us the yardstick for testing its gender discrimination. A Supreme Court verdict is the law of the land and a High Court is binding on all lower courts under its jurisdiction. This provides the scope to challenge the specific oppressive provision.

For instance, the discriminatory provision of unequal and stringent grounds for divorce under the Christian law was struck down by several High Courts and finally the statute itself was amended, to secure gender justice. When a uniform adoption law was introduced in the seventies, it was opposed by all minorities. However this right was secured for Muslims and Christians through progressive interpretations of the Juvenile Justice Act.

Maintenance to divorced Muslim women granted through the Shah Bano ruling in 1985 was opposed by the community who then brought about a legislation, the Muslim Women’s Act of 1986. Through a progressive interpretation of this Act in Daniel Latifi (2001), the Supreme court (as well as various High Courts) upheld the right of divorced Muslim women to a fair and reasonable settlement for life.

In 2002, the Supreme Court in a far-reaching judgement Shamim Ara, invalidated instant and arbitrary triple talaq and stipulated that talaq must be pronounced only as per the Quranic injunction, after first holding arbitration between the concerned parties. Today this judgement is used by thousands of Muslim women across all trial courts. This issue is now being litigated before a Constitutional bench headed by Chief Justice of India Justice JS Khehar which is sure to bring further reforms within the law applicable to Muslims.

The way forward – gradual reforms and piecemeal legislations

Another strategy to break the stalemate is to enact specific legislations which will apply to women uniformly across communities. The Protection of Women from Domestic Violence Act, 2005 (PWDVA), is an example. This legislation has reframed women’s rights within the family by introducing the statutory right to shelter and to a violence-free life. Women in various situations, married women, divorcees, widows, and daughters are entitled to access its provisions.

The Prohibition of Child Marriage Act, 2006 is another statute which prescribes a uniform age of marriage across communities. It does not invalidate marriages but provides for its dissolution within two years of its solemnisation and protects the rights of women and children.

While these have been important statutes, yet another way out appears to be an optional code. However, the Special Marriage Act, 1954, suffers from disuse due to its stringent procedure for registering the marriage. No efforts seem to have been made to make this law relevant to those venturing into inter-religious marriages, which have now acquired a communally-tinted term – ‘love-jihad’. So despite the prevalence of this Act, conversion and hasty marriage seems to be the only option for those venturing into marriages of choice against the wishes of their parents since within a communally-charged atmosphere, the one month notice period stipulated under the Act may pose a threat to life to the couple. There is an urgent need to modernise and popularise this statute.

Addressing Hindu and Muslim Polygamy

One major area of disgruntlement is the perceived ‘appeasement’ of Muslim men by privileging them with the option of bigamy/polygamy and the resulting disentitlement caused to Hindus through the imposition of monogamy. This discontentment gets projected in public discourse as a concern for the pitiable plight of Muslim women, who need to be liberated from their barbaric laws through the enforcement of a UCC.

However, outlawing polygamy by enacting a UCC or codifying the Muslim law does not appear to be an effective solution to the problem at hand, going by the evidence at the ground level as well as hard statistics regarding prevalence of bigamy among Hindus. Official reports reveal that despite the statutory restraint, incidents of bigamy are more among Hindus than Muslims.

Ironically the worst sufferers of this trend have been Hindu women, who are denied their basic right of maintenance and sustenance, when the husband pleads that the woman is his second wife. In comparison, the Muslim woman in a bigamous marriage, fares better than her Hindu counterpart, since she is entitled to rights of maintenance, shelter, dignity and equal status. She cannot be discarded as a used doormat.

On the other hand, the Hindu second wife, is not only disentitled of her rights, but is also divested from her status as ‘wife’ and humiliated as ‘mistress’, ‘keep’ or ‘concubine’ in judicial discourse. The adverse comments made by Justice Katju in 2001 in D Valusamy vs D Patchaiammal is an example.

Contrary to the feeling of perceived disentitlement, it is the Hindu husband who enjoys the privileged position of denying maintenance to a woman with whom he has cohabited, and may even have given birth to children, merely by pleading during court proceedings that he has violated the mandate of monogamy without any criminal consequences visiting him.

The reported cases in law journals bear testimony to the frequency with which Hindu men adopt this tactic, while sympathetic and sensitive judges are constantly trying to find ways to secure the rights of women entrapped in such marriages and provide them dignity.

The author is a feminist legal scholar and a Women’s Rights Lawyer. She is the Director of Majlis a legal resource centre which provides access to justice to women