Gender Inequality in Hindu and Muslim personal laws

Cultural identity in India is diverse and it is preserved because of different religious personal
laws as each religion has its own laws which govern the matters like marriage, divorce, etc.
But, this pluralistic culture gives thrust to the debate over the equality clause in the
Constitution. As it leads to unequal distribution of privileges amongst genders. Furthermore,
It can be seen that women’s status has been sabotaged by personal laws as it gives
disproportionate rights to men. Many times, legislators tried to eradicate this inequality
between genders within and across the religion through uplifting the women’s status as per
constitutional mandate.
Sometimes reforms prove to be anathema to religious freedom vide Art.25-28 which exists to
preserve diversity. But this legal conundrum calls for judicial intervention to harmonize the
conflict between reform and religion. But even after regular amendments and judicial
pronouncements, these personal laws are still in their evolving phase, thus, it is important to
identify the niche areas which should be revisited. 
Inequalities in Hindu personal law:
Hindu laws are mostly codified and many of its provisions are gender-neutral, but, there is
still room left for improvement, thus, one must identify the areas that require intervention,
which can be sub-divided in following categories;
I). Age of consent in marriage: The age of consent for marriage under Hindu Law is 18-
years and 21-years for bride and groom respectively.[1] But, this distinction is non-justiciable
which only promotes the stereotype in the society, that the wife should be younger than her
husband. Furthermore, if the marriage takes place between adults then this differential
treatment is uncalled for, thus, the age of consent should be the same for both genders. 
II). Bigamous marriages: Such marriages are void in case of husband commits bigamy
during the subsistence of first marriage vide s.5(i) of HMA. The child begotten from such
marriage is illegitimate and thus the responsibility of maintenance of that child lies solely on
the mother[2], and only in her absence, the father can be made responsible for rearing. Thus,
it is gravely discriminatory as the only mother is responsible for the rearing of an illegitimate
child in case if the marriage is void.

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III). Restitution of conjugal right: RCR[3] is used as a weapon by the husbands to disdain
maintenance petition. And as per the changes in society, women are getting economically
independent by entering in job sector after completion of education, but more often, it can be
seen that RCR-petitions are used to restrain women from becoming independent and make
them confined to the boundaries of patriarchal women’s household responsibilities.[4] 
However, even SC upheld the constitutional validity of s.9 because of India’s cultural history
and societal structure.[5] 
IV). Natural guardianship: Father is the natural guardian and after him, the mother can be
appointed as natural guardian.[6] The court held this provision violative of the mother’s right
to equality and stated that criteria for deciding custody and guardianship should be the child’s
welfare and not some unjustified preferential treatment to the father. Even the court
interpreted the word “after” under this section as “in the absence” but such interpretation is
fallacious as well because it covertly gives default guardianship to the father instead of
considering the child’s best interest.[7]
Moreover, the burden of an illegitimate boy/unmarried girl is upon the mother under clause-
(b) but in the structure of Indian society, the mother did not earn much. Thus, both the parents
should equally be made responsible under this provision so that potential gender inequality
will be eradicated.
V). Inequality in inheritance and succession rights: Even though Hindu Succession
(Amendment) Act tried to bring gender equality by providing daughters an equal share over
father’s ancestral property. But it ignored the aspect of devolution of deceased female’s
property as per s.15 of the said Act, this provision is grossly discriminatory because it
develops the notion that husband and his class-ii heirs have superior claim over the property
of female who died without a will, in comparison to deceased female’s heirs. And even
amongst heirs of deceased female, the mother comes last under s.15(1)(e). 
Moreover, in s.10 of HSA, we find reverse gender discrimination is happening because two
male descendants from the side of daughters are not included as Class-I heirs but their female
counterparts are included as Class-I heirs from the daughter’s side.[8]

Gender discrimination under Muslim personal law: 

Even though Islam is the second-largest religion in India its laws are quite discriminatory
because of several factors like it is un-codified and slightly not according to the needs of
modern society which calls for gender equality. Inequalities in Muslim law can be divided
into the following categories:
I). Competent Witness: When it comes to witnesses during a marriage ceremony, we see
that Islamic law requires the presence of two male or one male and two female witnesses as
an essential condition for a valid marriage. Here, it can be observed that in any case male
witness is required for a marriage to be valid, and logically the evidentiary value under Islam
of one male witness is equal to two female witnesses. It is in clear contradiction with the
equality clause of the constitution but such practices are still considered as an essential
condition for a valid marriage under Muslim personal law.[9]
II). Polygamy: The Quran permits polygamy that is; Muslim men can marry with four
wives[10], this is grossly discriminatory in many ways; firstly, similar rights are not provided
to women, secondly, it is obvious that if one’s husband marries with another woman then it
not only affects the first wife mentally but financially as well because the husband has limited
earning and if he enters in second/third/fourth marriage, it will lead financial hardship for the
family. And in such a scenario, the status of the first wife in the household automatically gets
diminished.

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The court held polygamy as not an essential practice of Islam but such practice continues
without any reasonable justification which not only violates the equality clause but also
fosters discrimination at its root.[11]
III). Marriage: Kitabi refers to those religions which are the revelation of the book.
Marriage between Muslim men and Kitabi women is valid as per Muslim law, but Muslim
women are not allowed to marry kitabi/non-kitabi men and their marriage is declared as
“fasid (irregular)” marriage.[12] This prima facie shows patriarchal notion in which woman
is not allowed to marry non-Muslim freely and the only way they have is to renounce their
religion to marry someone they want. Even when it comes to Muta/temporary marriage under
Shia law, only Muslim men are allowed to enter into muta marriage, this is a clear depiction
of gender inequality amongst Muslims where men have disproportionately higher rights than
women.
IV). Divorce: Divorce laws are highly discriminatory; it gives almost no right to Muslim
wife to divorce her husband. But, Muslim Husband can give talaq to his wife without
assigning any reason for the same and such divorce becomes irrevocable, while a woman can
give divorce only when such right has been delegated by her husband under talaq-i-
tafweez[13] form of divorce or in “lian”. 
Moreover, Muslim law allows any Mohammedan of sound mind and attended the age of
puberty can divorce his wife at his own will without assigning any reason,[14] this means that
even a minor husband can marry and divorce his wife. 
V). Custody and guardianship: Muslim mother has the custodial right of minor son until he
attains the age of 7 and daughter till she attains puberty. Mother has only custodial rights but
the father is the natural guardian of son and daughter[15], and even he dies, guardianship
rights are not given to mother it goes to executors of a father according to Sunni school. 
Even mother remarries or is engrossed in immorality/sinfulness according to religious tenets,
then the father can apply to get back custodial rights from the mother.[16] Thus, the limited
custodial rights of Muslim mothers vanish upon her remarriage. Moreover, the mother is not
allowed at all to receive gifts for the child if the father is alive,[17] thus, the father has
primacy over the mother in cases of custody and guardianship under Muslim law.
Conclusion:
Hindu personal law is comparatively more gender-neutral than Muslim law because for
several reasons like former is highly codified and amended many times as per societal needs
but Muslim personal law in terms of evolution is still in its terminal phase. But we cannot say
that Hindu laws are flawless, they still need quite maneuvering to meet the demand for
changing societal scenarios, however, several flaws are removed through legislation in recent
times. On the other hand; there are certain areas like adoption which is completely out of the
purview of Muslim personal law because the Quran does not recognize adoption at all.
The binary conundrum between religious freedom and fundamental right always acted as a
barrier in progressive judicial pronouncements. Law continuously evolves and when it
becomes stagnant, it results in discrimination. Muslim personal law still derives most of its
authority from age-old customs and Quranic laws which needs revamping according to the
present scenario. Thus, no personal law is flawless and it is important to preserve diversity
which should not extend to such a threshold where it violates constitutional mandates. 

  [1] The Hindu Marriage Act, 1955, (Act 25 of 1955), s.5(iii).

[2] The Hindu Minority and Guardianship Act, 1956, (Act 32 of 1956), ss.6(c).
[3] Ibid. s.9.
[4] Suman Kapur v Sudhir Kapur, AIR 2009 SC 589.
[5] Saroj Rani v Sudarshan Kumar, AIR 1984 SC 1562.

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[6] Supra note 2 at 1. s.6(a).
[7] Githa Hariharan v Reserve Bank of India, AIR 1999 SC 1149.
[8] Law Commission of India, 204th Report on “Proposal to Amend Hindu Succession
(Amendment) Act, 2005”, (February 2008).
[9] Supra note 10 at 3.
[10] The Holy Quran, (Surah-An-Nisa [4:3]).
[11] Khursheed Ahmad Khan v State of U.P., SLP (C) No.5097 of 2012.
[12] Supra note 10 at 3. Ch. XIV.
[13] Md. Khan v Shahmai, AIR 1972 J&K 8.
[14] Ibid. Ch. XVI.
[15] Imambandi v Mustaddi, 45 Cal. 878.
[16] Law Commission of India, Consultation Paper on Reform of Family Law, (August
2018).
[17] Gulamhussain Kutubuddin Maner v Abdulrashid Abdulrajak Maner, (2000) 8 SCC 507.

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