Not just triple talaq: It's time to keep all bizarre personal laws out of our private lives

Damayanti Datta

If a Muslim man wants to divorce his wife, he simply has to say “talaq” three times. The wife has no say in anything, no rights to property, compensation or even her own children. And if he wants her back, she has to go through nikah halala, the demeaning practice of forcing a woman to sleep with another man in a brief marriage.

But triple talaq's days may be numbered. With the Supreme Court now hearing arguments, the countdown has started. Will it bring a new dawn for Indian women?

Not really. The problem confronts us all with the arbitrary restraints and stifling customs of ancient personal laws that govern family, marriage, divorce and inheritance of all communities, under the guise of religious sanction and tradition.

In spite of constitutional and legal equality, ALL personal laws relegate women to inferiority across all communities.

Strange. Funny. Outlandish

Begin with a “Hindu Undivided Family”. What is it? It's actually a “person” enjoying tax exemptions. And by law, no woman can be the chief (or Karta) of the HUF (although the courts are trying to liberalise its definition of late).

Ask yourself: why is the age of marriage 21 for a man and 18 for a woman? Since all Indians can vote at age 18, shouldn't it be 18 for both?

Adultery is a punishable offence, you thought? Not if a husband has sex with an unmarried woman. A Muslim man can marry again and again. Yes, but so can a “gentile Hindu” in Goa (if his first wife does not produce children by age 25).

And, yes, what is “cruelty” (one of the legal grounds for dissolution of marriage)? Err, sorry, it's whatever the judge thinks.

All personal laws relegate women to inferiority across all communities.

Take a hard look

Civil marriage? So what?

The Special Marriage Act, 1954, is a secular Act that provides for a special form of marriage — between two people of any religion or creed — as well as its registration and divorce. But by Section 19 of the Act, a Hindu can get disinherited from his ancestral wealth if he avoids religious rituals or marries outside the community. How secular is that?

Don't deprive, father dear

The Hindu Succession (Amendment) Act, 2005 gives ancestral property equally to sons and daughters. But did you know that the right does not extend to father's self-acquired property? A father can pass on to whoever he pleases by making a will.

In contrast, a Muslim father can bequeath only up to a third of his self-acquired property, the rest to be split among heirs of both genders.

Can't attend parents' funeral

A Parsi women, if they marry out, are not allowed to attend their parents' last rites by some Parsi Panchayats. A Parsi man can marry anyone but remain a Parsi. A non-Parsi woman, who is either a wife or widow of a Parsi, cannot inherit. Their children can, although those born to a Parsi woman married to a non-Parsi man are not considered part of the community.

No checks on marital rape

Section 375 of the Indian Penal Code, 1860, says “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Despite international laws considering marital rape to be a crime and multiple recommendations from the Law Commission and the Justice Verma Committee (2013), it continues.

Bigamy? Prove it

Hindu marriage laws uphold monogamy. Yet national data indicates that a very large number of women are in polygamous marriages. The last Census of India (2011) puts the number of such women at 66 lakh. It is also one of the top ten complaints registered with the National Commission for Women in 2016.

What good are laws, then? The problem is, the onus of proving a second marriage in on the first wife. Bigamy attracts punishment only when the second marriage is conducted legally. If not, there is no bigamy. The first wife can then only go for a divorce.

The anti-bigamy provisions of the Indian Penal Code do not apply to tribal men and women if their customary law does not treat plural marriages as void. Muslim law allows polygamy.

Child marriage valid

The law only prevents the marriages of children, but does not render them illegal if a marriage has already taken place. The married children, however, have the right to declare it void. A woman can call off a marriage until she turns 20, whereas a man has time till age 23.

Hardly a surprise then that Census 2011 returns 30.2 per cent of all married women (10.3 crore) as “married before age 18”. Nearly 12 million Indian children married before the age 10 — 84 per cent of them Hindu and 11 per cent Muslim.

She's a minor, but she's my wife

Sexual intercourse with a girl below age 18 is considered rape. But since child marriages are not illegal, a man can legally have sex with his wife even if she is a minor, as long as she is above the age of 15.

No right to marital property

A separated or divorced woman is entitled to maintenance from her husband, but she has no right to the assets, house or commercial property bought in her husband's name during the marriage. The Indian government does not consider the work done at home by a woman of any economic value.