The BJP, among others, has frequently promoted an understanding, through its well oiled propaganda machine (RSS) that Hindu personal law, post the 1950s, has already been codified and amended and is therefore no longer in need of further reform. The presumption that follows is that  in putting in place a uniform civil code, the personal laws of different communities should be altered so as to more closely resemble the already reformed structure of Hindu personal law.

This presumption does not, however, hold up under closer scrutiny. Dr BR Ambedkar famously resigned as Law Minister on this issue and it was only in 1955-56 that parts of it were pushed through by India’s first Prime Minister, Jawaharlal Nehru as the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act. Arguably many of the more egalitarian and liberal customary provisions available for women were lost when this codification took place.

Besides, there are features of Muslim Personal Law that are more equitous for women than Hindu Personal Law – the Muslim marriage as contract protects women better in case of divorce than the Hindu marriage as sacrament; the Muslim law of inheritance protects women’s rights better than Hindu law, and the right of mehr, which gives Muslim marriage the status of a civil contract, is the exclusive property of the wife. The provision that a third of a Muslim man’s property needs by right to be available for his first wife, is not a right available to Hindu women. Hindu men continue to refuse to surrender their ‘inalienable’ right to make a will over their entire property.
 

 

• Under the Hindu Succession Act, 1956, the female heirs (of Class 1) do have a right to reside in a portion of the family home. But the right to claim partition is given exclusively to male heirs.
• For men, class I heirs are defined as the mother, wife and children of the deceased, or representatives of the same.
• A Hindu mother cannot, under the act, claim guardianship unless the father is dead or otherwise disqualified.
• In 2005, the act was amended to allow women the right to inherit ancestral property. Subsequent succession remains, however, an unequal proposition.
• For women, however, property is inherited by the heirs of the husband, if the property is inherited from the husband and by the heirs of the father if it is inherited from the father.
• In the case of self—acquired property, property is inherited by the husband’s heirs in the absence of the husband or children and goes to the woman’s parents only in the absence of heirs.

 

• Under the Hindu Marriage Act, 1955, the post-marriage conversion by either spouse furnishes to the other a ground for divorce. In other words, change of religion is treated under this Act as an unpardonable matrimonial offence. But this right to divorce is given only to the spouse who continues to remain a Hindu.
• Under the Hindu Succession Act, 1956, children born to a Hindu after she/he has adopted another religion and the descendents of such children are disqualified from inheriting the property of a Hindu relative.
• The Hindu Succession Act of 1956 disallows a non-Hindu wife from claiming maintenance from a Hindu husband post separation and grants the right to demand a separation of property exclusively to males.
• Under the Hindu Minority and Guardianship Act, 1956, if either parent renounced Hinduism, the person who has committed this “offence” is automatically deprived of the right to remain the natural guardian of a minor child. There exists a gender bias too: the Hindu mother cannot act as guardian of her child unless the father is dead or otherwise disqualified.
• Presently, adoption is a legal right available only to Hindus. This leads to extremely discriminatory conditions to the non-Hindu partner. Under the same Act, the natural father of a Hindu child can give or take in adoption without, in law, caring how his non-Hindu wife reacts to it. But the wife can veto his action only if she is a Hindu. Most significantly, only a Hindu child can be adopted and the right to adopt a son is denied to any person who has a Hindu son, grandson or great-grandson.
• In the case of maintenance too, similar gender and communal biases exist: a non-Hindu wife cannot claim maintenance from her Hindu husband (either while living with him or separately). But a Hindu wife enjoys the right to live separately from her husband on grounds of his conversion without forsaking the right to be maintained by him.