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Family Law

Evolution Of Family Law: Promoting Gender Parity and Equality

Family law as subject tends to follow the societal norms and traditions rather than radically alter them. As the society evolved and concepts became less spiritual and more social, the law advanced with it. These legal changes are a direct result of a massive shift in our social, economic and political constructs in the 1960s, 1970s, and 1980s.[1] The transformation of family law has transformed significantly. In earlier society only male child could be adopted, only men had property rights, absence of concept of divorce. From treating marriage as a sacred union for whole life to allowing divorce, traditional man-woman marriage to same-sex marriage, adoption by single-parent etc. The inequality between men and women has drastically reduced as comparison to the previous regulations. These changes in the law are necessary, as the society evolves, the law binding on them must also evolve for the society to navigate through modern complexities in modern ways.

Historical background

The British colonial legal system gave the regulation of family matters, like marriage, inheritance etc. in the religious communities’ hands. Therefore, the resultant traditions were specific laws for Hindus, Muslims, Christians, and Parsis. Most of the modern family law traces its origins to the colonial period when British administrators tried to codify personal laws for different religious communities.

Despite the limited British legal interventions, the initiatives seemed to provide the necessary impulse for efforts in the post-independence period. “The Hindu Widows’ Remarriage Act of 1856”[2] and “the Age of Consent Act of 1891”[3] can be regarded as attempts of the colonial state to correct gender inequalities within the Hindu community, but larger structures of personal laws remained intact and hence, religious traditions and discriminations continued to govern family relations.

All these early reforms notwithstanding, however, the colonial state’s policy of non-interference in religious personal laws meant that continued and deepening inequalities across different groups-surely women and other marginalized groups-had come into place. These inequalities would later become a central focus of reform efforts in independent India.

Foundational reforms

There are certain reforms introduced in family law which aimed to significantly transform the society, achieve equality and provide individuals with the freedom to choose what they want, who they want to marry. These reforms transitioned the foundational ground of the already existing laws based on backward societal norms. In terms of marriage, divorce and adoption these changes have occurred.

One of the most critical changes were introduction of the concept of divorce and further changes in the already existing idea.

Divorce laws

This reform revolutionized the legal approach to marital breakdowns, promoting a more humane and less adversarial process.[4]

  • Concept of divorce in Hindu law – The concept of marriage in Hindu society shifted from being an indissoluble and sacred union to a union where people can get separated by taking a divorce. Introduction of the concept of divorce in Hindu Marriage Act, 1955[5] marked a significant shift. Historically, Hindu marriage had sacramental nuances, a bond eternal and unbreakable in even after death which yields religion and culture. This view hardly left any scope for the concept of divorce since it was incongruent with the idea of purity in marriage. “The Hindu Marriage Act of 1955”, enacted by the Parliament of India was groundbreaking as it introduced a new concept to the Hindu personal laws. This act provided several grounds for divorce under S 13. of HMA, which included issues like adultery, cruelty, desertion, bigamy, conversion to another religion, mental disorder etc.

Introduction of this idea marked the deflection from traditional view of marriage. This volution acknowledged that, two people cannot be forced to be together even though they have certain differences just because they are Hindus. There are certain circumstances where dissolution of marriage is the only feasible solution and the parties to the union were given an opportunity to dissolve the union by way of applying to the court under required sections.

Further, S13. of HMA provided grounds for divorce where one party was the sufferer who can claim for divorce, this approach was also restrictive. Later, amendments to the Hindu Marriage Act developed divorce laws in Hindu society. The Act was amended in 1976[6] by adding a ground of “irretrievable breakdown of marriage” for divorce. It was applied under the principle that once a marriage has become irreparably broken, there is no utility in continuing such a marriage and only more damage would be inflicted upon individuals involved. The 1976 amendment also introduced mutual consent as a ground for divorce, allowing couples to jointly agree to end their marriage amicably.[7]

  • Muslim law-

In the area of divorce in Muslim law, the female members or wives did not have the right to initiate the divorce or ask for it unilaterally. The concept of divorce in Muslim law was dominated by male members. They even had the right of triple talaq.

  1. Before the introduction of “khula”, women by no way could seek divorce in courts even if she were facing hardships. After allowing khula system, women could seek divorce only if they had the consent of their husband. In this system they often faced resistance and lengthy procedures and they also had to forfeit their mahr and other maintenance. But they could initiate if they had the consent.
  2. In the system of triple talaq, the husband had the right to divorce his wife instantly by uttering the word ‘talaq’ three times. This system was absurd as women had no sense of surety because she could be a divorcee any moment. This was abolished in the landmark judgement of Shayara Bano v, Union of India, 2017[8]. It was argued that it infringes the fundamental right Article 14[9] of the Constitution of India, Article 15, 21 and 25. It was a big move towards gender equality as well as a victory for the rights of women, giving both power and legal protection to Muslim women against instant and arbitrary divorce commonly practiced in the country through the triple talaq system.

Marriage laws

The marriage laws, as they have been developing over time in India, have socialized the nation considerably, particularly through the improvement of gender equality and rights to individuals. More progressive amendments and new legislations removed myriad barriers that established patriarchal dominance, providing for greater legal protection and liberty for the feminine gender.

  • The Hindu Marriage Act, 1955[10]
    1955 was perhaps the year of landmarks in reforms to the legal regime governing Hindu marriages. Where a Hindu marriage was hitherto subject to customary practices and religious laws that diverged starkly from region to region and community to community, the Act of 1955 endeavoured to codify and standardize these laws by establishing clear conditions of a valid marriage. It also touched the issue of divorce, which is still not very taken in many Hindu families. Thus, it gave legal basis to the rights of women asking for a divorce when there is maltreatment in marriage or else dissatisfaction. The Act became a milestone towards gender equality within Hindu personal law, since it also had clauses on alimony and maintenance for deserted women or whose husband deserted them without any provision after dissolution of marriage.
  • The Special Marriage Act, 1954[11]
    The Special Marriage Act of 1954 was the secular legal basis of marriages in that country. This was a revolutionary step, which now gave people an option alternative to religious personal laws, thereby promoting civil marriages. The provisions for divorce, maintenance, and even custody of children that were provided in the Hindu Marriage Act are part of the Act. This enabled inter-religious marriages to cross the rigid communal and religious norms that otherwise were class and caste barriers and brought about significant social harmony and equity.
  • The Muslim Personal Law (Shariat) Application Act, 1937[12]
    The enactment of the Muslim Personal Law (Shariat) Application Act in 1937 brought uniformity to the application of Sharia law on matters relating to marriage, divorce, and inheritance among Muslims in India otherwise governed under customary laws-not necessarily Islamic. Although it provided a codified framework within which the Muslim community operated, still the Act was patriarchal in orientation, particularly with regard to marriage and divorce and also of polygamy. Still, it was the first concrete step toward consolidation and codification of the hitherto disparate Muslim personal laws.

Who can be adopted and who can adopt

Hindu Succession Act, 1956 The change in the adoption laws of India may be the most crucial step in furthering the march toward gender equality and inclusion, with the country presenting a progressive nature on issues related to social justice and the welfare of children. History has been seen as a domain where the right to adopt was an exclusive pre-privilege in any family. This was due to religious laws, which were much more in support of the continuity of lineage. Their taking on female children was overshadowed by male heirs.

  • The Hindu Adoption and Maintenance Act of 1956[13] was one of the pioneering legislations that began to challenge these norms. The rights were conferred legal status, where girls were now accepted for adoption too, with Hindus allowed to adopt a child of either sex. At the time, it was a revolutionary act, though the societal preference for male children still lingered with less adoption of girls.

The following step was realized through the Guardians and Wards Act of 1890[14], which provided a more secular framework for adoption but was still not completely free from gender bias. However, it is the introduction of the Juvenile Justice (Care and Protection of Children) Act, 2000[15], followed by its amendment in 2015, that brought a much larger change to the adoption landscape in India. This Act also abrogates all the personal laws on adoption and enunciates a single legislative framework that progresses for the welfare of all children, regardless of gender.

  • The amendment to the Juvenile Justice Act in 2015 introduced several changes. It made the adoption eligibility available to prospective adoptive parents, which were open to single and married people of different sexes. This had set it apart from the previous mainly male rights and recognized the ability of both married and single women to be good providers of a loving home for the adopted child. The Act also brings forth a streamlined adoption process made transparent by the Central Adoption Resource Authority (CARA), which has been bringing about the very best interests of the child.

These legal reforms have had a deeply influencing impact upon society. In addition to promoting gender equality, these laws make it easier to adopt girls and permit women to adopt, thus further reducing the societal stigmas surrounding female children and unmarried women. The very nature of the new legal framework involves a nurturing environment for all children, regardless of their sex, and has sanctioned the diversified forms of contemporary family structures.

Indian adoption laws had to undergo a metamorphosis to become what they are today, that is, more and more a move towards neutrality on the gender aspect and child’s welfare. From the Hindu Adoption and Maintenance Act to the comprehensive provisions of the Juvenile Justice Act, the legal system has progressively dismantled patriarchal barriers by giving both boys and girls equal opportunities to be adopted, with adoption no longer remaining an exclusive right of male members. These reforms underlie the commitment of this nation towards making an equitable society in which there is equal opportunity for every child to develop in a conducive family setup.

Succession and inheritance law

The laws of succession and inheritance in India were based on religion. Different communities followed their applicable personal law in that respect. Personal laws varied with cultures and religious beliefs represented by Hindu, Muslim, Christian, and Parsi communities making the law very diversified and complicated.

  • Hindu Succession Act, 1956[16]

Enactment of the Hindu Succession Act in 1956 marked a very important milestone as it aimed to codify the laws of inheritance applicable to the people belonging to Hindus, Buddhists, Jains, and Sikhs. It is in its developing stages of establishment when the Act conferred it mainly in favour of male heirs with very limited rights being attributed to female heirs. However, in a revolutionary manner, this 2005 amendment granted daughters the same rights as sons regarding property inherited from ancestors. This, therefore encouraged gender parity in inheritance rights and indicated a larger shift in favour of gender equality.

  • Muslim Personal Law (Shariat) Application Act, 1937[17]
    By the Muslim community, inheritance laws are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This act establishes the principle that in personal matters such as marriage and divorce and related to inheritance, Muslims are governed by Sharia law. Sharia usually gives men precedence although women also have the right to claim the estate under separate rules regarding property distribution, but on the entire body of Shia, the application of Sharia law has been criticized for incorrectly providing gender bias in rights of inheritance.
  • The Indian Succession Act, 1925[18]
    This is a comprehensive legislation that governs the rights of inheritance among Christians, Parsis, and those who are not incorporated under any other specified personal laws. In this regard, the Act establishes a unified codified system for partitioning properties under the principle of fairness and equity. It makes equal inheritance rights between male and female heirs in the community of Christians and has elaborate rules dealing with the disposal of property among Parsi heirs, though with distinction in share based on gender.
  • Parsi Inheritance Laws
    Parsi inheritance laws, under the Indian Succession Act, 1925, have certain special provisions that tend to be more in line with the traditions and customs of the Parsi community. They ensure just division of property among male and female heirs, but certain differences between them as traditionally exist are retained.
  • Judicial Interventions
    Judicial interventions, which are essentially aimed at promoting and upholding the cause of equality and justice of genders, have greatly impacted the trends in succession and inheritance laws developed for India. The most landmark judgment, of course, is the 17 March 2020 judgment of the Supreme Court in Vineeta Sharma v. Rakesh Sharma[19], where daughters are considered to have coparcenary rights similar to those of sons in Hindu Undivided Family (HUF) properties, and no distinction is made on the ground that the father is alive or otherwise when the amendment came into effect on 9th September 2005. This judgment further solidified the rights of daughters to inheritance within the Hindu families.

Contemporary issues

 Growth of western influence the growth in globalisation and the growth in Indian mindset along with the breaking of traditional cultural norms.

It has been several years of rapid growth in the acceptance as well as the rights of same-sex relationships in India. These have been changes both in Indian society and the country’s laws. A watershed moment was the Supreme Court judgment in Navtej Singh Johar v. Union of India[20] in 2018, declaring that Section 377 of the Indian Penal Code[21] is unconstitutional, thereby decriminalizing consensual same-sex relations. The judgment was a historic affirmation of the rights and dignity of LGBTQ+ people.
Social attitudes towards homosexuality are also becoming more liberal and allow same-sex relations, especially among the urban population. Increased media, literature, and discourse among people have made a difference in changing attitudes. Pride parades and other forms of events organized among LGBTQ+ have become more common and include greater numbers of people with diversified backgrounds, reflecting a greater openness.

Support has also increased from the various quarters, including corporate India. Policy initiatives regarding equal opportunities and diversity at the workplace have been effective for quite a few decades. Corporations have realized that supporting LGBTQ+ employees and availing benefits to same-sex partners are part of their responsibility. Such an environment has become inevitable to promote an inclusive workforce.

Nongovernmental organizations and educational institutions have stood at the centre of shifting sensibilities and sharing information about LGBTQ+ issues. Education and advocacy concerning public enlightenment for LGBTQ+ rights-holding campaigns have reduced stigma. Legal advocacy has been pushing for more overhauls, such as acceptance of same-sex marriages and extending to same-sex couples the same rights in adopting a child. All these are issues that are still subject to legal scrutiny but the strong efforts tell a positive trajectory towards full equality.

Overall, it can be said that the legal, social, and corporate progress related to same-sex relations in India are quite evident. Consistent advocacy further goes to strengthen the body’s commitment towards striving for the living condition of LGBT persons with dignity and equality in the Indian society.

Way forward; being secular

The evolution of family law in India is seen as a diversified set of personal laws based on religious traditions, that is, Hindu, Muslim, Christian, and Parsi laws dealing with marriage, divorce, inheritance, and adoption. In order to achieve uniformity and to avoid any sort of inequality, the Indian Constitution, Article 44, proposes a Uniform Civil Code so that no citizen is oppressed irrespective of religion.

Personal laws continue to hold sway, though there have been several major reforms that aim towards gender equality and protection of individual rights. Examples include the Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937, and the Christian Marriage Act of 1872. Judicial interventions make us think of court rulings like Shayara Bano case declared by the Supreme Court in 2017 by which the triple talaq issue was declared unconstitutional.

There is discussion about a UCC, where proponents are advocating a single uniform code of laws to supplant the incoherent personal laws and bring about national integration and greater gender equality. A UCC would abolish the inequalities prevalent among the personal laws of gender and would ensure equal rights and protection for women under the law. Its acceptance, however, is beset by various difficulties and controversies, such as resistance from religious communities or balancing equality with religious freedoms. An incremental approach, starting with broad consensus areas like the age of marriage and procedures surrounding divorce, would be much more practical.

  • UCC and secularism

The Indian Constitution’s Preamble makes the decision to create a “Secular” Democratic Republic. This means that there is no official state religion and that religious discrimination cannot be permitted by the state. The Indian Constitution’s enforceable fundamental rights, Articles 25 and 26, provide freedom of religion and the right to administer religious affairs. Apart from this, the state also needs to pursue a uniform civil code in India, as contemplated by Article 44, even though it is not enforceable in a court of law. How they ought to be made right. What components will a unified civil code comprise? Since personal laws of every religion have different constituents, the uniform civil code would have to amalgamate the protection of fundamental rights and religious principles of different communities. Marriage, divorce, Succession, inheritance, and maintenance can be matters of secular nature and law can regulate them. India needs a codified law that will cover all religions in relation to the personal laws of different communities.

True principles of Muslim law have always been misconstrued over the years. According to Tahir Mahmood, “an Indian Code of Muslim Law, evolved from a selective amalgamation of various Shariat schools, would remove all the cobwebs pervading contemporary issues in Muslim law”. “Muslim Personal Law: Clearing the Cobwebs” (The Hindu, July 30, 2006). In this context, The Hindu reports that on May 11, 2006, the Supreme Court of India dismissed a public interest litigation filed challenging the customs of polygamy, talaq, and divorce under Muslim personal laws; here the Supreme Court stated that it is Parliament’s role to amend the law and not the judiciary’s. In the name of secularism, a uniform code would go a long way in bringing national unity and solidarity to all citizens of diverse religious faiths. Various religious traditions have to converge toward common principles. A uniform family law code is required for India as a whole. Whether it will be state action, judicial mandate, or the will of the people remains to be seen.

Conclusion

The family law of India depicts a passage of time from religiously guided personal laws to more codified and fair law. A couple of major legislations such as the Hindu Code Bills of the 1950s and the Hindu Succession (Amendment) Act of 2005 have provided for gender equality- one such reform gave women equal rights in marriage and inheritance. Besides, under the Shariat Act of 1937, personal laws of Muslims and, for the Christians and Parsis, the Indian Succession Act 1925, allow progressive judicial interpretations to carry forward the cause of justice and equity. Judicial interventions, especially landmark decisions, have underscored the continued need for reform in the interest of safeguarding women’s rights. While it would not be out of place to recall the acrimonious debate on the Uniform Civil Code it has been yet another challenge – that is, finding a way to unify diverse personal laws into one and the same framework that ensures equality for all, irrespective of religion or gender.

The evolution of family law in India truly reflects the country’s utmost commitment to justice and equality. Continuous legal reforms and advocacy efforts are necessary to make the law seem equal and equitable-an achievement that should reciprocate to notions assigned constitutionally to India and its societal needs.

Article contributed by Muskaan Goyal from Hidayatullah National Law University


[1]Victoria Mi Mather, Evolution and Revolution in Family Law, https://core.ac.uk/download/pdf/228920516.pdf

[2] The Hindu Widows’ Remarriage Act,1856

[3] The Age of Consent Act, 1891

[4]Stetson, Dorothy McBride. Women’s Rights in the U.S.A.: Policy Debates and Gender Roles. Greenwood Press, 1982”

[5]Hindu Marriage Act, 1955, https://www.indiacode.nic.in/handle/123456789/1560?locale=en”

[6] Amendment 68 of 1976, https://main.sci.gov.in/jonew/judis/16039.pdf

[7]Premchand Dommaraju, Divorce and Separation in India, https://www.researchgate.net/publication/301284623_Divorce_and_Separation_in_India

[8] Shayara Bano vs. Union of India, [(2017) 9 SCC 1]

[9] Article 14, Part 3, Constitution of India, https://www.constitutionofindia.net/articles/article-14-equality-before-law/

[10] Hindu Marriage Act, 1955, https://www.indiacode.nic.in/handle/123456789/1560?locale=en

[11] Special Marriage Act, 1954

[12] The Muslim Personal Law (Shariat) Application Act, 1937

[13] The Hindu Adoption and Maintenance Act of 1956

[14] The Guardians and Wards Act of 1890

[15] The Juvenile Justice (Care and Protection of Children) Act, 2000

[16] Hindu Succession Act, 1956

[17] Muslim Personal Law (Shariat) Application Act, 1937

[18] The Indian Succession Act, 1925

[19] Vineeta Sharma v. Rakesh Sharma, AIR 2020 SC 641

[20] Navtej Singh Johar vs UNION OF INDIA THR. SECRETARY MINISTRY OF LAW AND JUSTICE, AIR 2018 SUPREME COURT 4321

[21] Section 377, Indian Penal Code, 1860

By Muskaan Goyal

Muskaan Goyal is from Hidayatullah National Law University.

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