Equality, Not Uniformity

The point made by Flavia Agnes that the Indian media wrongly projects Muslim women in India as devoid of rights with the only recourse open to them being to challenge their personal laws is well taken (“Muslim Women’s Rights and Media Coverage,” EPW, 14 May 2016). To this, it may be added that it is also wrongly perceived by many that Hindu laws offer equal rights to men and women. Lack of media coverage of important judgments plays a role in perpetuating this myth. The judgment in Prakash and Ors v Phulvati and Ors, AIR (2016) SC 769, wherein the Supreme Court held the Hindu Succession (Amendment) Act of 2005 applies prospectively and not retrospectively did not receive much attention from the media. However, denial of discrimination perpetuated by personal laws, or the mistaken belief that the Protection of Women from Domestic Violence Act, 2005 (PWDVA) can resolve all inequalities should not trump attempts at reform of personal laws.

Hindu laws do not offer full equality to women. For example, the Hindu Succession (Amendment) Act, 2005 gave daughters coparcenary rights but it did not give equal rights of inheritance to the natal family of a woman (that is, primacy is given to agnates over cognates). As per Section 15 (1) of the act, the heirs of the husband have primacy over the heirs of a wife. So let us say a Hindu woman leaves her Hindu husband due to his acts of cruelty. She does not formally divorce him as obtaining a divorce on fault grounds is tedious. Should she die without making a will, her entire earnings will devolve upon the heirs of her former husband. Another example is that of a daughter of a divorced/separated mother. Should the daughter inherit her mother’s property and then die without making a will, the property goes to the heirs of her father, and not to the heirs of her divorced/separated mother. This is ludicrous, particularly if the property was inherited by the mother from her own natal family.