PERSONAL LAW
Lahore Declaration on Family Laws and Rights of Women
The Declaration was adopted by the Workshop on Family Laws and Human Rights of Women, organized by the AGHS Legal Aid Cell, Lahore.
Preamble
Recalling that the constitutions of Bangladesh, India and Pakistan guarantee all citizens equality before the law. Noting that such equality is denied to women and children in the sphere of family laws and which is of crucial significance to them and realizing that family laws of religious minorities have remained even more stagnant and often bear the risk of being influenced by the norms of the religious majority, the participants of the two-day Workshop on Family Laws and Human Rights of Women in Bangladesh, India and Pakistan call upon concerned persons, social action groups, political parties, legislators the government of these countries to campaign for and initiate reforms in family laws in order to make them just and guarantee equal rights to all women and children.
The minimum requirements for such standards are:
Marriage, Separation and Divorce
· The matrimonial courts shall have adequate Representation of judges from religious minorities and women.
· Execution of decrees passed by the matrimonial courts shall be made more effective and efficient.
· Laws shall be enacted to allow for transfer of cases from one jurisdiction to another in family matters.
· Women and men shall have statutory right of free access to information about their rights through all avenues, including legal aid, the media and through curriculum in formal and informal educational centres.
Guardianship, Custody, Adoption and Other Rights of the Child
· All children born in wedlock or out of it shall enjoy equal status and equal rights.
· The law must recognize both parents as the natural guardians of the child.
· In case of separation amongst spouses’ custody of minors should be awarded upon sole consideration of the welfare of the minor.
· In passing orders relating to custody, the court shall also pass appropriate orders for the minor's maintenance and management of his/her property.
· Every adult person shall have the right to adopt children.
· All questions of custody and maintenance of the property and adoption of the minor shall be decided by the Matrimonial Courts.
· All matters of adoption shall be dealt by Matrimonial Courts.
· Children must never be described as 'legitimate" or "illegitimate" by the law.
· Denial of parentage, if found to be untrue, should be made punishable.
Economic Rights of Women Within Marriage
· The economic rights of women on marriage, during the subsistence of marriage and on dissolution of marriage shall be protected by law.
· All endowments pledged to a woman at the time of her marriage, whether by parents, parents-in-law or her husband, and gifts given to her shall be her absolute and separate property.
· Adequate maintenance, including interim maintenance, shall be provided to the dependent spouse during the subsistence of the marriage.
· During the subsistence of the marriage the wife's access to matrimonial assets must be guaranteed including her right to reside in the matrimonial home.
· Laws against domestic violence shall empower the courts to grant injunction restraining a violent spouse.
· from entering the matrimonial home.
· In case of dissolution of a marriage the courts shall decide all related matters e.g. divorce/dissolution, maintenance/alimony or dower/financial settlement and provision of shelter simultaneously except disputes relating to custody of minors. In doing so, separate procedures be laid down in order to provide for expeditious disposal of suits.
· Assets, movable or immovable, accumulated during the subsistence of the marriage shall be distributed equally on the termination of the marriage.
· Inheritance laws shall be changed to ensure that the share of the male and female heirs of same class of kinship shall be equal. Upon the death of the husband, the widow and her children shall inherit in equal proportion half of the immovable and moveable assets accumulated by the couple during the subsistence of the marriage. The widow shall remain the sole owner of the balance half of such assets till her death.
· Children should also inherit the share of property of their pre-deceased parents at the death of the grandparents. Spouses should also inherit from the share of their deceased spouse on the death of a parent-in-law.
(Source: The Seminar, June, 1996)
Geetanjali Gangoli and Gopika Solanki on Woman in World Religions
All religions have historically evolved within social frameworks controlled by men; they have, accordingly, tended to propagate patriarchal ideologies based on the principle that man is fundamental, woman merely instrumental. While acknowledging that religion has been among the most effective and seductive tools used to oppress women in various cultures at various times, some contemporary feminist scholars have argued that texts and principles of religion ought, nevertheless, to be reinterpreted from a women-centred perspective.
Their thesis is that, although religions reflect the dominance of the patriarchy, the situation does admit of space for women to intervene. Religion also plays a very important role in the lives of women: indeed, they are the "carriers" of rites and traditions. Besides, a second look at faith-through a secular and humanistic prism - can help in the battle against communalism.
Riffat Hassan, a scholar of Pakistani origin who now lives in the US, has contributed significantly to a feminist interpretation of the Koran. Though her critique centres on Islam, it is equally relevant to other religious systems. Hassan suggests that egalitarianism, humanism and social justice are at the heart of all religions. It has been the misrepresentation, mostly deliberate, by male scholars and theologians that has led to the degeneration of religions into a series of oppressive and punitive practices, especially where women are concerned.
Hassan uses three tools of analysis in approaching the Koran: the politics of language, philosophical consistency and ethical principles. She proposes that language is central in identifying the vested interests of the patriarchy. She adduces the common practice of collating Allah with Miyan (literally husband) in speech, which equates husbands in general with God. This, Hassan emphasizes, is impermissible and blasphemous in Islam. Besides, the Koran has a logical consistency-that of equality - which is discernible when it is studied in its entirety and not in fragments. Finally, she points out that the central ethical principle of the Koran is justice, as Allah is just. Any interpretation of the text which perpetuates injustice violates the intentions of God.
Religions like Hinduism (with their multiplicity of traditions) do not operate from a single textual tradition, many conflicting interpretations can and do arise. What, then, is the basis for prioritizing one interpretation over the others.
In the Brahmanical tradition - the epics reflect and legitimize an anti-woman, anti-lower caste bias. A selective reading of the past (and the present) can push one into adopting a blinkered view which mythicizes the past while sweeping aside certain negative aspects of it.
The importance of such efforts as a strategy to work in a; pluralistic society like India is obvious. But such a strategy cannot work in isolation: it must be combined with other strategies like legal reform, the creation of alternate social spaces, the raising of consciousness and the establishment of a programme for economic independence. reflection, to become subjects rather than objects of their This will enable women to become, through action and destiny.
(Source: The Times of India, 21 September, 1996)
Supreme Court on Dowry Prohibition
G. Gopal Reddy, Appellant v. State of A.P., Respondent.
DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.
Dowry (Prohibition) Act (28 of 1961), Section 2- Dowry Act prohibits not only actual receiving of dowry but also very demand for dowry made even before marriage.
The Act is a piece of social legislation which aims to check the growing menace of the social evil of dowry and it makes punishable not only the actual receiving of dowry but also the very demand of dowry made before or at the time or after the marriage where such demand is preferable to the consideration of marriage.
(Source: AIR 1996 SC2184)
Patna High Court on Gift in Muslim Law
Bibi Riajan Khatoon and others, Appellants v. Sadrul Alam and others, Respondents.
B.I. YADAV, J.
Muslim Law-Gift-Essentials.
Under the Mohammedan Law for validity of the deed of gift four elements are necessary; (1) declaration of gift by the donor (2) relinquishment by donor of ownership and dominion (3) acceptance of the gift by done, and (4) delivery of possession of the property by donor. The relinquishment of control and ownership by the donor is the necessary to complete the gift. (Source: AIR 1996 Patna 156)
