Women’s Right in other Personal Laws

I. Christian Law

ii. Parsis Law

iii. Jews Law

India is a vast and great country. At present its population is more than
1.2 billion (120 crore) & it stretches from Kashmir in the north to Kanya
Kumari in the south and the Thar Dessert in the west to Arunachal
Pradesh in the east, the snow covered Himalayas in the north and the
shore less oceans of Bay of Bengal and Indian Ocean in the south
surrounds it. It is inhabited by people following different religions,
creeds, faiths & customs, speaking many languages & dialects and
belonging to many races. It is the biggest democracy in the world which
has federal structure. Hence, diversity is in all walks of life, viz
language, religion, faith, life styles, ways of living & traditions. In spite of
this diversity, there is an unbreakable bond of unity; we are all Indians
from south to north and west to east.

India is a constitutional democracy & almost fifty percent are women

acrosss the country. The Constitution of India guarantees equal rights
and privileges to all citizens whether women or men and there can be
no discrimination. Despite this constitutional safeguard women have to
struggle hard to enjoy their rights in every sphere of life. The fact is that
men form the ruling class and are very reluctant to concede rights and
privilege to women because they think that whatever they concede to
women, they lose or whatever women gain, they acquire at their cost.

Another fact which is unique to India is that the followers of most

religions, especially those which came to India from outside, such as
Christianity and Islam are overwhelmingly native Indians. Jews and
Parsis are however minuscule in terms of numbers or share of
population; the numbers of Parsis are decreasing steadily because
conversion to Zoroastrian faith is not permitted and is a matter of great
anxiety. The largest minority in India are Muslims which form around
12~15% of the population.

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Christianity in India:

Christianity is India’s third largest religion following Hinduism and Islam.

Christianity is believed to have come to India during two main periods,
the first century missionary activity of Thomas, the disciple of Jesus,
and the western missionary activities from 1500 to 1975. Before the
arrival of the westerners, the Christians in India were following the
customs and traditions of the local Hindus. Later when the Syrian
Christians came they brought with them Biblical laws but gradually they
too started adopting the local Hindu customs and practices of the native
Christians.

The Indian Christian marriage Act, 1872 defines the term “Christian” as
a person professing the Christian religion. Under the Act the term
‘Indian Christian’ includes Christian descendants of native Indians
converted to Christianity as well as new converts. It extends to the
whole of India except the territories which, immediately before the 1st
November, 1956, were comprised of the states of Travancore, Cochin,
Manipur and Jammu & Kashmir.1 Christians are found all across India
and in all walks of life. Most Christian in India are Catholics of the Latin
Church. The state of Kerala is home to the Saint Thomas Christian
community, an ancient body of Christians who are now divided into
several different churches and traditions.

Christianity and Personal Laws

Christian Personal Law or Family Law consists of Adoption, Divorce,

Guardianship, Marriage and Succession. Christian Personal Law is not
applicable in the state of Goa. From the earliest days of British Imperial
rule in India, the quest to establish a universal body of law conflicted
with other legal principles which upheld differences of religion as well as
race. It was the historical role of Indian Christian to occasion legal
dilemmas regarding the jurisdictions of British and ‘native’ law and
concurrently about the identity of people subject to those different laws.
The Indian Christian Personal law was an unintended by-product of this
process, a finding which throws light, both on the dynamics of colonial
legislation and on the essentially modern nature of Indian Personal
Laws.

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Rights and Privileges of women in Christian Law

So the Lord God caused the man to fall into a deep sleep; while he was
sleeping, he took one of the man’s ribs and closed up the place with
flesh. Then the Lord God made a woman from the rib he had taken out
of the man, and he brought her to the man.

The man said, “This is now bone of my bones and flesh of my flesh; she
shall be called ‘woman’ for she was taken out of man”. For this reason a
man will leave his father and mother and be united to his wife, and they
will become one flesh. (Book of Genesis chap.2:vs.21-24)

The role of women in Church has forever been scrutinized and

misunderstood; although many Churches continue to refuse women
certain rights. Throughout the international growth of Christianity women
have been the majority of followers and participants, in many countries.
It is women that keep the religious communities strong. Only in
twentieth century things started changing in Christianity. With the
Churches loosing much of their clout and power in the twentieth century,
with democratic government firmly established in Europe as well as in
America and with religion getting separated from politics, things started
to change in a dramatic fashion in Christianity. This period saw a
profound change in the status of women in Christianity and women’s
rights came in the forefront.

The period of 1960 and thereafter can be considered as the beginning

of the women’s liberation movement in history which advocated social,
cultural, political and religious equality of the gender. Though the
women’s liberation movement went full throttle during this period the
patriarchal set up did not vanish as such and the concept of sexual
dualism still existed. For instance, men were considered to be more
idealistic, spiritual and psychic than women. On the other hand, women
were thought to be more emotional, instinctive and physical than men.
This was a scenario of absolute gender stereotyping and it existed from
last two thousand years. The emergence of two parallel movements
took place in Christianity as a religion and the society in general. These
two movements were liberal as well as conservative and they exist till
date. It is therefore natural that the religious “Right” hates feminist. They

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fear that women will assert themselves, gradually obtain various rights
and ultimately threaten the position of men.

There is no doubt that the Christian women have been more advanced,
more educated than the Muslim, Hindu or women from other religions
however Christian women had no protection under any specific
Religious Personal Laws like Muslim Personal Law or Hindu Personal
Law. Whatever rights and privileges they have now in India has been
bestowed to them by the laws of the land.

Marriage under Christian Law

According to Christian Law, marriage is considered to be a permanent

union of one man and one woman to the exclusion of others. Marriage,
as is seen in Christian tradition, is neither a civil contract nor is it purely
a religious ceremony. It is seen as a contract according to the Laws of
Nature, antecedents to civil institutions, and by itself an institution.

A Christian marriage in India is also a contract and it is usually

solemnized by a minister of religion licensed under the Christian
Marriage Act, 1872. The object of Act 15 of 1872 is not to prevent
people from marrying as they wish, but to enable them to protect
themselves and their posterity by a lawful and binding marriage if they
wish to be married as Christian. It can also be solemnized by the
Marriage Registrar.2

Catholics, especially during the medieval period considered marriage to

be sacred, divine and was called a holy union. Though Protestants
regard it as a contract, it is considered as a special sacrosanct contract.
Under Christian Law, every marriage shall be solemnised between
hours of six in the morning and seven in the evening. No clergy man
shall solemnise a marriage in any place other than a church where
prayers are generally held.

In Hyde v Hyde, Lord Penzance gave the following definition of

marriage:

“I conceive that marriage as understood in Christiandom may be defined

as the voluntary union for life of one man and one woman to the
exclusion of all others”3

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Under the Indian Christian Marriage Act, 1872, the conditions for
certifications of a marriage of Indian Christians have been provided in
S.60 of the Act these are:4

 The age of a man intending to be married shall not be under

twenty-one years and the age of the woman intending to be
married shall not be under eighteen years;
 Neither of the persons intending to be married shall have a
living wife or husband;
 In the presence of a person licensed under S.9, and of at least
two credible witnesses other than such person, each of the
parties shall say to the other- I call upon these persons here
present to witness that I, AB, in the presence of Almighty God,
to be my lawful wedded wife or husband or words to the like
effect. .

The most important provision of the Christian Marriage Act is that a

marriage must be registered. The Christian Law of Marriage and
Divorce 1872 is only concerned with the form in which the marriage is
solemnised and does not deal with objection to the validity of the
marriage.

Licensing of persons to grant certificates of marriage between Indian

Christian- The licensed person is required to give certificate of marriage
to either party. Registration of such marriages is also required.

The Indian Roman Catholic cannot marry under part VI of the Christian
Marriage Act.

Void, Voidable, Irregular Marriage:

A Marriage, which is not valid, may be void or voidable. A void marriage

is one which has no legal status. The court regard such marriages as
never having taken place and no rights and obligations ensure. Under
the Indian Divorce Act, 1869, a marriage may be declared null and void
on the following grounds,5

 The respondent was impotent at the time of marriage and at the

time of institution of the suit;

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  The parties are within prohibited degree of consanguinity or
affinity;
 Either parties was a lunatic or idiot at the time of marriage;
 The former husband or wife of either party was living at the time
of the marriage and the earlier marriage was subsisting;

Divorce under Christian Law:

Divorce is not an easy task among Christians. Strict religious restrictions

prevent even the warring couples to break up their marriage. The law
regarding divorce, judicial separation and allied matters is contained in
the Indian Divorce Act, 1869, which has been amended in 2001,
provided for divorce. The Indian Divorce Act, 1869, is one of the oldest
laws passed in India which governed the marriage and divorce in the
Christian community. As India was under the British rule in those days,
the Indian divorce Act, 1869, was modelled on the then British law.
Further, it also reflected the Victorian ideas and sense of morality. But
what amuses one is that such an archaic law continued without many
changes almost for a century.

In the wake of new wave of reforms sweeping over Europe the social
changes became inevitable. The power and authority of the Church over
matrimonial matters was divested in civil courts. Once the concept of
divorce was introduced the British law changed faster than expected.
The position of women was equalised; Cruelty, desertion and insanity
were included as grounds of divorce. In England before 1857, a
marriage could be dissolved only by an Act of Parliament. After
considerable pressure, divorce was recognised under the Matrimonial
Causes Act, 1857, but only on the grounds of adultery. This continues to
be the position in India in respect of the Christian marriage. 6 The Indian
Divorce Act, 1869, which applies to Christian Marriages, was modelled
on the Matrimonial Causes Act, 1857 where the only ground for divorce
is adultery. In the case of husband, simple adultery of the wife entitles
him to divorce, but in the case of wife, husband’s adultery has to be
something more than adultery; i.e. conversion plus marriage, incestuous
adultery, adultery coupled with desertion for two years or upwards,

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adultery plus cruelty etc. She can also sue for divorce on the ground
that the husband is guilty of rape, sodomy or bestiality.

As regard the right of a Christian woman to seek divorce, V.K. Singh

explains, “The wife cannot seek divorce on the ground of adultery by the
husband while the husband is allowed. In her case the husband’s
adultery must be coupled with other factors. The provision provides
double standards of morality man/woman”.

However this anomaly has been removed with the enactment of an

amendment by the Indian Parliament,

Grounds for dissolution of marriage:

Any marriage solemnized whether before or after the commencement of

the Indian Divorce (Amendment) Act, 2001, may, on a petition
presented to the District Court either by the husband or the wife, be
dissolved on the grounds that since the solemnisation of the marriage,
the respondent;7

i. has committed adultery;

ii. has ceased to be Christian by conversion to another
religion; or
iii. has been incurably of unsound mind for a continuous
period of not less than two years immediately preceding
the presentation of the petition; or
iv. has for a period of not less than two years immediately
preceding the presentation of the petition, been suffering
from a virulent and incurable form of leprosy; or
v. has for a period of not less than two years immediately
preceding the presentation of the petition, been suffering
from a real venereal disease in a communicable form; or
vi. has not been heard of as being alive for a period of seven
years or more by those persons who would naturally have
heard of the respondent if the respondent had been alive;
or
vii. has wilfully refused to consummate the marriage and the
marriage has not therefore been consummated; or

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 viii. has failed to comply with a decree for recitation for conjugal
rights for a period of two years or upwards after the passing
of the decree against the respondent; or
ix. has deserted the petitioner for at least two years
immediately preceding the presentation of the petition; or
x. has treated the petitioner with such cruelty as to cause a
reasonable apprehension in the mind of the petitioner to
live the respondent.

From the perusal of the above noted amendment it becomes clear that
the lacunas in the previous Act have not only been removed but the Act
has been made quite comprehensive and some clauses favouring the
women have been added. The Act has now been made to tilt slightly in
favour of Christian women. It was done in 2001 that is only twelve years
back and about fifty five years after the independence of India. Hence
the allegation of V.K. Singh of double standard for man/woman does not
hold water now. The right to divorce or dissolution of Christian marriage
was legally given by the Indian Divorce Act 1869 and the Indian
Christian Marriage Act in 1872, which should be read together as the
former supplements.

The later both were considered out dated and changes were thought
inevitable. But it took about a century and a half to update the Act so
that it can meet the requirements of the present age. It was
discriminatory which also violated the fundamental right enshrined in the
Constitution of India, namely equality between men and women in all
matters.

In a recent case the Hon’ble Supreme Court accepting the

discriminatory nature of the section 10 has observed that:-

“As far as the ground of adultery is concerned, it is the husband who is

in a favourable position as against the wife since it is not enough for the
wife to prove adultery on the part of the husband. To that extent,
undoubtedly it is the wife who is discriminated against.”

The Supreme Court further observed that for the “ground of exchange of
profession of Christianity by husband, the wife can seek dissolution of
the marriage only on the ground of adultery, the husband is not at a

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disadvantage as against the wife because a mere marriage with an
another man whether after exchanging the profession of religion or not,
would give a ground to the husband to seek dissolution of marriage.
Thus even as far as this ground is concerned it is the wife who is at a
disadvantage”.8

Christian women are now on better footing than Christian husbands.

The provision of section 10(2) which gives exclusive grounds to wife for
obtaining divorce was even challenged in the Apex Court as being in
violation of the right to equality under Article 14 of the Constitution. The
court dismissed the petition and held that in view of a women’s
vulnerable physical and social condition in this country, there is nothing
offensive about it.

Divorce by Mutual Consent Now Possible

The requirement that women must prove cruelty or desertion on part of

her spouse in addition to this adultery to obtain divorce has been
removed. Now, divorce is available to women on single ground of
adultery, cruelty, or desertion.

Under the Indian Divorce Act, 1869, prior to the Indian Divorce Act
(Amendment) Act, 2001, there was no provision for divorce by mutual
consent. The present Act, allows divorce by mutual consent to Christian
couples who feel that their marriage had failed due to incompatibility
and cannot not be revived. This was the most important and welcome
change as far as the Christian community is concerned.9

Under the Indian Divorce Act, 1869, as amended in 2001, a wife may,
apart from grounds available to both the spouses, also present a
petition for dissolution of her marriage on the ground that the husband
has, since the solemnisation of the marriage, been guilty of rape,
sodomy or bestiality.10

Judicial Separation under Christian Law

The only statute which has retained some distinction between the
grounds for judicial separation and divorce is in the Indian Divorce Act,
1869. Prior to the amendment of the act in 2001, the grounds for divorce
were very limited. As regards judicial separation, the amendment has

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not made any significant change, expect that ‘the grounds which were
earlier available only for judicial separation are now available for divorce
as well. Under S.22 of the Indian Divorce Act, 1869, a husband and wife
may obtain a decree for judicial separation on the grounds of adultery or
cruelty or desertion for two years or upwards.

Christian Wife Right to Maintenance

The Indian Christians have no personal laws and their domestic

obligations have to be governed by the English Law where a wife has
no right of suing her husband for maintenance. Regarding the common
law of scheme of property which lasted up to 1870, it is substantially
true to say that marriage transferred the property of the wife to her
husband. As such the husband could say, ‘what is yours is mine and
what is mine is mine’. This did not stop here. The ‘unity’ principle
deprived the wife to initiate any legal action against the husband.

The Common Law court though gave the destitute wife an effective
remedy, yet they never made a decree to compel a husband to pay
separate maintenance to his wife. In the post world war period not only
new concept were put a float but, emphasis was placed on
reconstruction of the society as well. Provisions for maintenance under
the Christian Law are contained in the Indian Divorce Act, 1869 as
amended in 2001. Under sec.36 of the Indian Divorce Act, 1869, which
is only applicable to those persons who practice the Christian religion,
governs maintenance right of a Christian wife.11

The relevant sections are:12

S.36. Alimony pendent life - In any suit under this Act, whether it be
instituted by a husband or a wife, and whether or not she has obtained
an order of protection, {the wife may present a petition for expenses of
the proceeding and alimony pending the suit. As a general rule half of
the husband’s income is allotted only in those cases where the wife has
on marriage brought to the husband a considerable sum of money or
other property. The courts usually take into consideration the income of
both the parties along with what is accruable to them from other
sources, their style and station in life, habit, age and their liabilities.12

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Provided that the petition for the expenses of the proceedings and
alimony pending the suit shall, as far as possible, be disposed of within
sixty days of service of such petition on the husband.

S.37- Power to order Permanent Alimony:

Where a decree of dissolution of the marriage or a decree of judicial

separation is obtained by the wife, the District Court may order that the
husband shall, to the satisfaction of the court, secure to the wife such
gross sum of money, or such annual sum of money for any term not
exceeding her own life, as having regard to her fortune (if any), to the
ability of the husband, to the conduct of the parties, it thinks reasonable,
and for that purpose may cause a proper instrument to be executed by
all necessary parties.

Power to order monthly or weekly payments:

S.37.In every such case the court may make an order on the husband
for payment to the wife of such money or weekly sums for her
maintenance and support as the court may think reasonable.

S.38. Court may direct payment of alimony to wife or to her trustees:

In all cases in which the court make any degree or order for alimony it
may direct the same to be paid either to the wife herself or to any
trustee on her behalf to be approved by the court and may impose any
terms or restrictions which to the court seen expedient and may from
time to time appoint a new trustee if it appears to the court expedient so
to do.

Daughter’s right to maintenance:

Under the Christian and Parsi Personal Law in India the primary
obligations to maintain the daughter is that of the father but if the father
has no means or insufficient means and the mother has means, than
the mother has obligation to provide maintenance. Ordinarily, an order
for maintenance comes to an end when daughter attains the age of
majority but for welfare of the daughter it can be continued till her
marriage.13

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In fixing the quantum as permanent maintenance, the court will
determine what is just, bearing in mind the ability of husband to pay,
wife’s own assets and conduct of the parties.

A husband cannot claim maintenance under The Indian Divorce Act.

Christian Law of Inheritance and Succession:

The Christians in India are governed by the Indian Succession Act,

1925 with regard to the matters of intestate and testamentary
succession. But the Travancore Christian Succession Act and the
Cochin Christian Succession Act, being the law for the time being in
force, in the respective localities are saved by section 29(z) of the Indian
Succession Act.14

Since the early Christians were converts from Hinduism they followed
the Hindu customary usages and practices. As per the customary
usage, daughters were excluded from inheritance even in the absence
of brothers and the property was given to other male relatives.

The Synod while declaring that the daughters are entitled to inherit
properties in the absence of sons was relying on a precept in the Old
Testament. It says that if a man dies and leaves no son, turn his
inheritance over to his daughters. Christian women were relegated to a
subordinate status under the customary law and they were excluded
from inheritance; they were given Stridhanam which is equal to half the
share of a son. The enactment of Travancore Wills Act, 1899 in fact
denied Christian women the right to equal share. Instead the 1865 Act
was made applicable to them. The 1865 Act was amended in 1925 and
the Malabar Christians was governed by the Indian Succession Act
1925 in matters of testamentary and intestate succession.

Every law of succession defines the rules of distribution of property in

case a person dies without making a will. The law on succession in
India is governed by the provisions of the Indian Succession Act, 1925
which recognises three types of heirs; the spouse, the lineal
descendants, and the kindred. The list of the relatives who fall into the
category of ‘kindred’ is very large. The Indian Succession Act, 1925,
especially under S.31 to 49 of the act is applicable to Christian and

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Jews community. Christian of Travancore and Cochin are governed by
their own succession laws.

S.33A. The widow of a Christian male takes a specified share, which

depends on who the other succeeding relative of the deceased male
are. For instance, if a Christian male dies, leaving behind a widow and
children, the widow takes one third and two third goes to the children. If
the heirs of the deceased are the widow and the kindred, then the
widow receives a one-half share while the balance goes to the kindred.
If there are neither lineal descendants nor kindred, then, the entire
property goes to the widow.15

Rules of distribution: The rules for the distribution of the intestate’s

property (after deducting the widow’s share, if he has left a widow)
amongst his lineal descendants shall be those contained in section 37
to 40.

Where intestate has left child or children only; the property shall belong
to his surviving child, if there is only one, or shall be equally divided
among all his surviving children.

Where intestate’s father is dead, but his mother, brother and sisters
living; the mother and each brother or sister succeed to the property in
equal shares.

Where intestate’s father dead, but his mother living and no brother,
sister, nephew or niece; the property shall belong to the mother.

By the time the Indian Succession Act 1865 was repealed and a
comprehensive legislation on the subject, the Indian Succession Act
1925 was enacted by the legislature in India. Since the British had no
power over Travancore and Cochin, therefore the Indian Succession Act
1925 was not applicable to Travancore and Cochin. While so, when the
Indian Independence Act 1947 was enacted, Section 18 of the Act
provided for the continuance of existing laws in Travancore, Cochin and
Malabar. Therefore even after the enactment of interim constitution the
inequitable law relating to marriage and succession continued in force in
Travancore.

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As far as succession is concerned Christian women stand on an inferior
footing than her Hindu or Muslim sisters. Anjani Kant writes:- “An
important aspect to be considered while dealing with the legal status of
Christian women is, no doubt, the laws of succession applicable to the
Indian Christians. The Christians in India are governed by the Indian
Succession Act, 1925 with regard to the matters of intestate and
testamentary succession. But the Travancore Christian Succession Act
and the Cochin Christian Succession Act, being the law for the time
being in force, in the respective localities are by section 29(z) of the
Indian Succession Act. Therefore in the matter of intestate succession
the Christians of Travancore and Cochin are governed by their own
succession laws.”

This shows that Christians in India are governed by three Acts relating
to succession to intestate or testamentary property in three different
parts of India, namely in Travancore state by the Travancore Christian
Succession Act 1916, which governs the majority in the state but it is
not applicable to Christians in Neyyattinkara and some other Christians.
Cochin Christian Succession Act, 1921 is applicable to the Christians in
the former Cochin state except in the cases of the Tamil Christians in
Chittor who follow the Hindu Law. In other parts of Kerala, the Indian
Succession Act 1925 governs the Christians. But all the above
described laws are not the same. They have different provisions for
succession.

The Christian women in Travancore had been undergoing discrimination

and subjugation for centuries. The Church and the Christian community
were highly patriarchal and demanded dependent and subjugated
status of Christian women. The succession laws enacted for the Syrian
Christian excluded women from inheritance. The 1916 Act contained
provision for Streedhanam which is limited to Rs. 5000/- or 1/4th share
of the son’s property whoever is lesser. Women inherit intestate
property only in the absence of male members in the family. The
anomaly is that these discriminatory successions laws continued to be
in force even after the commencement of the constitution. For example,
the Cochin Law gives the daughter only one-third of that of a son while
the Travancore Act gave only one-fourth and the Indian Succession Act
1925 gives equal to the share of the son and makes no discrimination.

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Similarly in the case of widow there is no uniformity among the three
Acts regarding the share of the widow in intestate property. Indian
Succession Act 1925 governs the Christians in India but the Travancore
Christian Succession Act and Cochin Christian Succession Act, being
the law for the time being in force, in the respective localities are served
by section 29(z) of the Indian Succession Act. Hence succession laws
are different for different localities inhabited by the Christians. It may be
concluded that uniformity or one law is desirable. It is for the
government of India to see what it thinks is proper for the Christians
after taking them to confidence.

It has been argued by several prominent Christian lawyers and legal

writers that ‘laws with regard to touchy issues like succession, etc.
should reflect customs and practices for their acceptance and
sustenance’. While the improvement introduced by the Indian
Succession Act, 1925, with regard to women’s property rights have
been welcomed, since the majority of Christian do not seems to be
opposed to giving equal share to women in the matter of intestate
succession. It was with Supreme Court’s verdict in Mary Roy case, the
Syrian Christian women were relieved from their discriminatory personal
laws. However this long gap of over 70 years had done irreparable harm
and injury to the Christian women because the concept of Stridhanam
which had taken deep roots in the community. As a result even the Mary
Roy verdict could not bring about any substantial change in the status of
Christian women. So long as the influence of the Church continues, the
denial of property rights of women will also continue despite legislative
efforts. The community is also reluctant to give property rights to women
due to the influence of the patriarchal traditions. Hence the status of
women remains unchanged.

Whatever be the reasons, Christian women appear to be better off in

respect of divorce, inheritance, property rights, succession etc as
women compared to women professing other religions such as Islam,
Hinduism etc. It may be due to many reasons. The Christian
missionaries in their zeal to show their religion more modern and
progressive focused all attention on abolition of Sati, Child Marriages,
Polygamy, Purdah and Segregation of Women. They paid little attention
or rather ignored other most important aspects of women’s lives such as

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marriage, adoption, inheritance, divorce, maintenance etc. V.K. Singh
writes - “The English missionaries were socially more liberal and they
applied themselves to social reforms. They were active in putting a stop
to customs like Sati and Female Infanticide. Christians emphasised
importance of education and opportunities of education and progress
are equally shared by women also. Christians stood against Polygamy,
Purdah, Sati and Child Marriage from which both communities in India
have suffered and which have a damaging effect on the status of
women. No doubt, the Christian women have been more advanced,
more educated than Muslim, Hindu or other women. Christian women
had no personal law like Muslim Personal Law or Hindu Personal Law.
Whatever rights and privileges they have has been bestowed to them by
the laws of the land.

Parsis:

The word Parsi is derived from Old Persian. The term ‘Parsi’ is defined
as follows - “The term ‘Parsi’ is not the name of the religious community,
though it carries some territorial or racial significance. In order to be a
Parsi he or she has to be a Zoroastrian but all Zoroastrians are not
Parsis”. Zoroastrianism is an ancient religion that was founded
sometime in 6th century BC in Persia (present Iran). At one time it had
among the largest followers in the world. Zoroastrians follows the
teachings of the prophet Zoroaster.

The original Persian emigrants are their descendents professing

Zoroastrianism were considered to be Parsi. Subsequently, the Iranians
professing Zoroastrianism came from Persia to India either temporarily
or permanently. They came largely from Persian Province ‘Pers or
‘Pars’ from which the word ‘Parsi is derived. It seems that the word
‘Parsi’ has both a religious connotation and a racial significance. The
words ‘Parsi’ and ‘Zorastrian’ are synonyms16. While conversion is
enjoined by the original Zoroastrian religion, but in its Indian version it is
a non–proselytizing faith, and it has been judicially accepted that
conversion to the Zoroastrian religion is against the usage and customs
of the Parsis of India. The children of the Parsi fathers and alien
mothers were also properly admitted to the father’s religion before they
are considered ‘Parsi’. They traditionally lived together as extended

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families but owing to space constraints in the cities, nuclear families
became common and with declining population many elderly Parsis
today live alone.

Zoroastrianism is founded on the belief in one God and on the basis

tenets of good thoughts, good words and good deeds. After their
immigration to India, Parsis were greatly influenced by Hindu custom. In
modern India, Parsi law applies to:17

 Persons who are descendants of the original Persian

emigrants, who are born of Zoroastrian parents, and who
profess Zoroastrian faith,
 Persons whose Father is (or was) a Parsi and Mother an alien
but admitted to Zoroastrian faith, and
 Zoroastrian from Iran, who are either temporarily or
permanently residing in India.

Parsi Personal Law

Unlike Hindus and Muslims who were exempted by the British from the
purview of English law because their laws were rooted in religion, the
rule was not applied uniformly to Parsis whose many laws and customs
were connected with their religion and religious belief. In the beginning,
the courts were finally being regulated by the English law. The Parsi
community has personal law of its own. It is mostly governed be English
Law since the Supreme Court of Judicature had ruled in 1773 that
Muslims during the British regime had ruled that Muslims should be
governed by Muslim Law, Hindus by the Shastras and smaller
communities like the Parsi should be governed by the English Civil Law
as it was assumed that the latter’s laws had no religious identity.

The position remained unchanged until 1865, when Parsis came to

have a separate law to regulate their intestate succession under a
separate legislation – the Parsis Marriage and Divorce Act, 1865. The
same Act was later incorporated in sections 50 to 56 of the Indian
Succession Act, 1925. The elders of the community, namely, Parsis
Central Association in 1923, did not find the Parsis Marriage and
Divorce Act, 1865 to be reflective of the sentiments and views of the
community. After much discussion, a Parsi Law Association was

205
created to make a thorough study of Parsis custom and put forward the
legislative proposals. It was, therefore, changed and was finally floated
in the form of Parsi Marriage and Dissolution Act, 1936, and finally
modified by an Amendment Act in 1939. The Act has since remained
under institutionalised marriage in the sense that it requires registration
and any failure by the officiating priest or registry is liable for
punishment and penalty. These rules conferred better rights to women
than existing Hindu and Muslim law & with the passage of time they
have moved ahead along with progressive social trends.

Women in Zoroastrianism:

It was observed that – “Parsi women are discriminated against by laws

which have no basis in the community’s religious beliefs. It has been
seen how the ownership and inheritance rights of Hindu and Muslim
women are affected by their respective laws. The Parsis, are a small
community with 90% literacy with a firm hold of the Indian industry and
trade. This community is decreasing with the passage of time as no new
persons are admitted in the community. A Zoroastrian woman who
marries a non-Zoroastrian man is expelled from the community even
though she may continue to be Zoroastrian. In spite of the “Progressive
Education” Parsi women are discriminated, they have among the most
unjust inheritance laws in the country today which only goes to prove
the discrimination and gender biases do not disappear with ‘progressive
education’.18

Why an educated, out worldly emancipated Parsi women tolerate such

inequality is hard to comprehend? Many of course were ignorant of the
law until it actually applied to them. In the smaller towns of Gujarat, for
instance, even today there have been recorded instances of Parsi
women being deprived of their legitimate share in the estate of their
fathers and husbands. They have accepted simply because they are
ignorant of the fact that the laws have changed now.

Parsi women also share the fear of extinction of community and most of
them have resisted changes in their Personal Law. Those who have not
too preoccupied with the trauma of ‘expulsion’ from the community
which is the fate of all those woman who marry people of other religious
denominations. The fear of expulsion from the community keeps them

206
away from protests and agitations. They submit to the dictat of the
community Panchayat. All those women who marry outside the
community, i.e. with people professing other religion are always
expelled. But there is a mistake when a protest was organised for the
first time in 1981 and it also succeeded-

“But the first time they did, they were successful. This was in 1981,
when practising Zoroastrian women married to non-Parsis were denied
the right to vote in their community’s local elections unless they
submitted a different affidavit stating that they practised the Parsi faith.
They appealed to the courts to prevent such humiliation and won. As
more Parsi women join the mainstream of dissent and protest they will
find the support needed to stir their community from its present
stagnancy.”19

Thus we see how Parsi women are discriminated against. The Parsi
Marriage and Divorce Act was passed in 1936. It is a comprehensive
act which covers almost all aspects of Parsi men’s and women’s lives.
This Act is reproduced in Appendix XIII of Family Law Lectures. Family
Law I, II, Edition by Professor Kusum at ( Page 589). One surprising
thing which strikes the reader is section 43 of this Act which is
reproduced below: -

* * “Section 43 suits to be heard in camera may not be printed or

published- Every suit filed under this Act shall be tried in camera and it
shall not be lawful for any person to print or publish any matter in
relation to any such case except when the judgement of the court is
printed or published with previous permission of the Court.

* * If any person prints or publishes any matter in co prevention of the

provisions contained in sub-s (1) he shall be punishable with fine which
may extend to one thousand rupees.

Marriage under Parsi Law:

The Parsi Marriage and Divorce Act, 1936 (Act 3 of 1936) governs the
matrimonial relations of Parsis in India. Every marriage as well as
divorce under this act is required to be registered in accordance with the
procedure prescribed in the Act.

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  The Parsi marriage is also regarded as a contract though the
religious ceremony of “Ashirvad”, literally meaning ‘blessing’.
Ashirvad is essential for its validity. The ceremony is
conducted by the priest in the presence of two witnesses
which is necessary according to the rules regarding
consanguinity and affinity in this regard.20 According to Sec.3
of the Parsi Marriage and Divorce Act, 1936, a Parsi marriage
in essence is a contractual marriage, but the sacramental
element has not been eliminated altogether.

According to Umesh Raghuvanshi, “The Zoroastrians popularly known

as Parsis when they come to India are said to have promised to mix
with Indians as readily as sugar mixes with milk, and they have kept
their promice”. Many ‘shlokas’ recited at Hindu ceremonies are also
recited at the Parsi marriage ceremony. The community pays its tribute
to the object of nature, and so do the Hindus. Agni (fire), Surya (sun)
and Chand (moon) all are held in esteem by the Parsis.

As per Section 2(7) of the Act a ‘Parsi’ means a Parsi Zoroastrian

According to section 3 of the Act:21

 In the case of any Parsi (whether such Parsi has changed his
religion or her religion or domicile or not) who, if a male, has
not completed twenty-one years of age, and if a female, has
completed eighteen years of age.
 The contracting parties are related to each other in any of the
degrees of consanguinity or affinity set forth in schedule 1.
 Such marriage is not solemnised according to the Parsis form
of ceremony called ‘Ashirvad’ by a priest in the presence of
two Parsi witnesses other than such priest;
 Notwithstanding, that a marriage is invalid under any of the
provisions of sub- Sec. (1), any child of such marriage who
would have been legitimate if the marriage had been valid,
shall be legitimate.

Since the marriage revolves around the principle of contract so it is a

dissoluble union if there is breakdown, fault, or common consent. But
the most unfavourable clause that generally operates harshly against
female is the restitution of conjugal rights. This relic of masculine

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sensibility is exhibited in the Act though the law as a hole operates at
parity both for the husband and wife.

Remarriage When Unlawful

Marriage is monogamous and unless it is lawfully dissolved or declared

null and void, any subsequent marriage would be bigamy that is liable
for prosecution under Indian Penal Code (sections 494 and 495). No
Parsi whether he has changed his religion or domicile can marry unless
his first marriage is lawfully dissolved or annulled by the court. Marriage
is not allowed between blood relatives. The Act list 33 relatives that
neither a Parsi man nor woman can marry.

Since there are no sects, caste or other denominations in Parsis,

therefore the question of inter-caste marriages does not arise.

The Parsi Marriage and Divorce Act, 1936, does not recognise the inter
religion marriage. A valid Parsi marriage under this Act means a
marriage in accordance with the Act between a Parsi man and a Parsi
woman.

Certificate and registry of marriage

Under Sec.6 of the Act every marriage contracted under this Act shall,
immediately on the solemnization thereof, be certified by the officiating
priest in the form contained in schedule II. The certificate shall be
signed by the said priest, the contracting parties and two witnesses
present at the marriage. Failure to register a marriage does not affect its
validity.

Bar to Re-Marriage after Divorce

As under most of the Indian Personal laws, there is a period of wait after
which a decree dissolving the marriage is passed and the spouses are
not free to marry before that. The provision is identical in the Hindu
Marriage Act & Special Marriage Act. It is because a preliminary decree
precedes the final decree of Divorce.

Parsi Marriage and Divorce (amendment) Act, 1988

Under the Parsi Marriage and Divorce (Amendment) Act, 1988, scope of
certain provisions of the Parsi Marriage and Divorce Act, 1936, have

209
been enlarged so as to bring them in line with the Hindu Marriage Act,
1955. Since the Parsi Marriage and Divorce Act, 1936-88 did not
recognize the concept of voidable marriage, some of the grounds of
voidable marriage have been made grounds for divorce.

Divorce under Parsi Law:

Earlier the Parsi marriage and Divorce act was passed in 1936, which
replaced the earlier statute of 1865. It has been amended by the
Amending Act of 1988, and in most matters its provisions have been put
at par with Hindu Marriage Act. These statutes introduced monogamy
and reformed the law of divorce of Parsis. Under sec.32 of the act, any
married person may obtain divorce on any one or more of the following
grounds,23

 The marriage has not been consummated within one year

after its solemnisation owing to the wilful refusal of the
defendant to consummate.
 The defendant has been incurable or of unsound mind for a
period of two years or upwards and continuous to be so till the
filing of the suit which would be filed within three years of
marriage.
 The defendant was pregnant at the time of marriage by some
person other than the plaintiff:
 The defendant has committed adultery or fornication or bigamy
or rape or an unnatural sexual offence since the marriage:
 The defendant has voluntarily caused grievous hurt to the
plaintiff or has infected the plaintiff with venereal disease or,
where the defendant is the husband, has compelled the wife to
submit herself to prostitution.
 The defendant has undergone a sentence of imprisonment for
seven years or more
 The defendant has deserted the plaintiff for at least two years;
 An order has been passed against the defendant by a
Magistrate awarding separate maintenance to the plaintiff, and
the parties have not had marital intercourse for one year or
more since such decree or order;

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  The defendant has failed to comply with a decree for
restitution of conjugal rights for a year or more;

The defendant has ceased to be a Parsi by conversion to other religion;

“According to Section 32.A (1) either partly to a marriage, whether
solemnised before or after the commencement of the Parsi Marriage
and Divorce (Amendment) Act, 1988, may sue for divorce also on the
following grounds:24

1. That there has been no resumption of cohabitation as between

the parties to the marriage for a period of one year or upwards
after the passing of a decree for judicial separation in a
proceeding of which they were parties; or
2. That there has been no restitution of conjugal rights as
between the parties to the marriage for a period of one year or
upwards after the passing of a decree for restitution of
conjugal rights in a proceeding to which they were parties.

According to subsection (2) of Section 32A decree of divorce shall not

be granted under subsection (1) of Section 32A if the plaintiff has failed
or neglected to comply with an order of maintenance passed against
him under section 40 of this Act or under section 488 of the Code of
Criminal Procedure, 1898, or section 125 of the Code of Criminal
Procedure, 1973.

Sec.32B has been inserted by the 1988 Amendment of the Act. It may
be recalled that by the Marriage Laws (Amendment) Act, 1976, the
provision for mutual consent were inserted to the Hindu Marriage Act
(sec.13B), where as they already existed in the Special Marriage Act
(sec.28) but in 1976, it was further streamlined. The Act of 1988 has
added the following two grounds:

 Post-marriage unsoundness of mind

 Cruelty

Section 50 of the Parsi Marriage and Divorce Act, 1936 provide that in
any case in which the court shall pronounce a decree of divorce or
judicial separation for adultery of the wife, if it shall be made to appear
to the court that the wife is entitled to any property either in possession

211
or reversion, the court may order such settlement as it shall think
reasonable to be made of any part of such property, not exceeding one
half thereof, for the benefit of the children of the marriage or any of
them.

Any married person may sue for judicial separation under sec.34 of the
Act on the grounds for which such person could have filed a suit for
divorce.

Section 32B was inserted to bring in uniformity with the Hindu Marriage
Act (Section 13B) which added the provision for divorce by mutual
consent. Section 32B (1) does not provide for immediate dissolution of
marriage on the presentation of the petition. It is reproduced below from
“Women and the Law”: -

“Section 32B(1) provides that a suit for divorce may be filed by both the
parties a marriage together, whether such marriage was solemnised
before or after the commencement of the Parsi Marriage and Divorce
(Amendment) Act, 1988, on the ground that they have been living
seperately for a period of one year or more, that they have not been
able to live together and that they have agreed mutually that the
marriage be dissolved.

Provided that no suit under this subsection shall be filed unless that at
the date of the filing the suit one year has lapsed since the date of the
marriage.

Sub section (2) of section 32B provides that the court shall, on being
satisfied that the consent of either party to the suit was not obtained by
force or fraud, pass a decree with effect from the date of the decree.

Irretrievable Breakdown of Marriage:

Irretrievable Breakdown of Marriage as a basis of divorce is recognised

under the Hindu Marriage Act, The Parsi Marriage and Divorce Act, and
the Special Marriage Act. It has been judicially legislated upon in Muslim
Law also. No other Personal law recognize it.

Under Section 13(1A), Hindu marriage Act, Section 32-A, Parsi

Marriage and Divorce Act and Section 26(2), Special Marriage Act enact
the provision in identical language.

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Fault Theory of Divorce

Marriage being an exclusive union, adultery destroys this very

foundation. Cruelty undermines the basic assumption of marriage that
parties will live together in harmony and mutual confidence. Desertion
undermines the basic assumption that the parties will cohabit with each
other. These are regarded as offence against marriage.

The Fault theory is also the basis for divorce under the Parsi Marriage
and Divorce Acts 1936-88. As many as eleven grounds for divorce are
recognised, and practically all the matrimonial bars have been
enacted.25

Consent theory of Divorce:

Under the Hindu Marriage Act and the Parsi Marriage and Divorce Act,
the provision for divorce by mutual consent can be presented to the
district court by the spouses only if it shows that they have been living
separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the
marriage should be dissolved.26

Suit for restitution of conjugal rights:

Where a husband shall have deserted or without lawful cause ceased to

cohabit with his wife, or where a wife shall have deserted or without
lawful cause ceased to cohabit with her husband, the party so deserted
or with whom cohabitation shall have so ceased may sue for the
restitution of his or her conjugal right.

Under the Parsi Marriage and Divorce Act, 1936, a wife has no
additional grounds. The grounds of adultery, rape, fornication, bigamy or
unnatural offence is available equally to both the husband and the wife.
The period of limitation for filing a suit on this ground is two years after
the plaintiff comes to know the fact.

Maintenance under Parsi Law:

The Paris Marriage and Divorce Act, 1936 provides for maintenance
pendent life and for permanent alimony and maintenance. The Parsi
Law was updated through an amendment in 1988, bringing it almost on

213
a par with the Special Marriage Act, 1954; prior to amendment act 5 of
1988 only a wife was entitled to maintenance under the provisions of the
Act. After the amendment the provisions has been brought at par with
the Hindu Marriage Act, 1955 and even a husband can seek
maintenance. The relevant sections as follows:27

S.39. Alimony pendent life: When in any suit under this Act, it appears
to the Court that either the wife or the husband, as the case may be,
has no independent income sufficient for her or his support and the
necessary expenses of the suit, it may, on the application of the wife or
the husband, order the defendant to pay to the plaintiff, the expenses
of the suit, and such weekly or monthly sum, during suit, as having
regard to the plaintiff’s own income and the income of the defendant, it
may seem to the court to be reasonable.

S.40. Permanent alimony and maintenance: Any Court exercising

jurisdiction under this Act may, at the time of passing decree or at any
time subsequent there to, on application made to it for the purpose by
either the wife or the husband, order that the defendant shall pay to the
plaintiff for her or his maintenance or support, such gross sum or such
monthly or periodical sum, for a term exceeding the life of the plaintiff as
having regard to the defendant’s own income and other property, if any,
the income and other may seem to the court to be just, and any such
payment may be secured, if necessary, by a charge on the movable or
immovable property of the defendant.28

Inheritance under Parsi Personal Law:

S.50.General principles relating to intestate succession among Parsis;

1. there is no distinction between those who were actually born in

the lifetime of a person deceased and those who at the date of his
death were only conceived in the womb, but who have been
subsequently born alive;
2. a lineal descendant of an intestate who has died in the lifetime of
the intestate without leaving a widow or widower or any lineal
descendent shall not be taken into account in determining the
manner in which the property of which the intestate has died
intestate divided;

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 3. where a widow or widower of any relative of an interstate has
married again in the lifetime of the intestate, such widow or
widower shall not be entitled to receive any share of the property
of which the intestate has died intestate, and such widow or
widower shall be deemed not to be existing at the intestate’s
death.

S.53. Division of share of predeceased child of intestate leaving lineal

descendants; if such deceased child was a son, his widow and children
shall take share in accordance with the provision of this chapter as if he
has died immediately after the intestate death. 29

 If such deceased child was a daughter, her share shall be divided

equally among her children.

S.54. Division of property where intestate leaves no lineal descendant

and leaves a widow or widower or a widow or widower of any lineal
descendant;

* the widow or widower shall take half the said property;

* if the intestate leaves a widow or widower and also a widow or

widower of any lineal descendent, his widow or her widower shall
receive one-third of the said property.

* like Hindus and unlike Muslims Law, there are separate rules for
distribution of the assets of a male and female. The son’s share of his
father’s property is twice that of a daughter. The widow gets only as
much as anyone of her son.

* if the intestate’s parents survive being then the father gets half the
share of the son that is equal to the share of the daughter. But the
mother gets only half the share of the daughter. The Parsi mother is in a
worse position than the Hindu mother who under the 1936 Hindu
Succession Acts gets a share equal to that of the widow and the
children.

* When a Parsi woman dies intestate, leaving her husband and children,
the property is divided equally among the widower and the children.
Male is not bound by any such restriction.

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 * While the son is entitled to an equal share of the mother’s property
along with the daughter, the daughter is not entitled to the same right
when she inherits the property of her father. Mothers and daughters
then are the worst suffers.

* A Parsi woman is accorded no protection against arbitrary decision

either - for where as in Muslim law a father cannot disinherit his wife or
daughter; he can only will away one eighth of his property according to
his wishes. A Parsi male is not bound by any such restriction.

* If a Parsi woman marries a non Parsi she would have to follow her
husband’s faith and bring up her children according to his wishes.
Children of Parsi woman married to non-Parsi have no right, as under
Parsi law, they are not considered Parsi.

After the enactment of Parsi Marriage and Divorce Act and the Parsi
Intestate Succession Act 1936, the condition of Parsi women has much
improved. According to Anjani kant;

“Where as in 1939 these rules conferred better rights to women than

existing Hindu and Muslims Law, with the passage of time they have
gone out of step with progressive social trends. Why the educated,
outwardly enancipated Parsi women tolerate such inequality is hard to
comprehend. Many of course are ignorant of the law until it actually
applies to them. The smaller town of Gujarat, for instance, even today
there have been recorded instances of Parsi women being deprived of
their legitimate share in the estate of their fathers and husband. They
have accepted all simply because they do not know that the laws have
been changed.”

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Jews

The Jews are among the smallest minorities in India. The Jewish Law,
referred to as a whole as the Halakhah, is based on the Torah, their
Holy Book. The structure of the law of Judaism and of Islam is similar in
that the basic written source of each is believed to have been revealed
to mankind by God. The divine revelations in both of these religions
were made exclusively to one man – Moses, in the case of Jews, and
Mohammed, the Prophet in the case of Islamic Law. The written
component of the Torah is the five books of Moses, Genesis, Exodus,
Lemticus, Numbers and Deuteronomy. The text of these books was
conveyed to Moses on Mount Sinai, along with a large body of oral law
that was not reduced to writing for several centuries.

Judaism is one of the oldest monotheistic religions and was founded

over 3500 years ago in the Middle East. A Jew is a person of the
Hebrew race. The subjugation of Judea in the reign of the Emperor
Vespasian brought about the political annihilation of the Jewish nation.
The Jews widely dispersed; some of them migrated to India, largely
Bombay, Cochin and suburbs. No Jewish state existed until the Second
Great (World) War ended, when Israel was created & recognised as the
homeland of the Jews. In the absence of any state of government for
centuries there were no Jewish state law or enactment. Of course they
had their personal law based on “Rabbinical Code”. In India also, there
is no statutory law on marriage and divorce for the Jewish community.

Women Rights in Judaism:

Dissonant attitudes about the status of women in Judaism appear as

early as the creation account in the book of Genesis. In Genesis I:27,
God created human, ‘in his own image, in the image of God he created
them. This passage would seem to give equal dignity to the two
genders. Yet later in the same book, God is said to have created man
first, from the dust of the ground and then later created woman from
Adam’s rib because “It is not good that the man should be alone; I will
make him a help mate for him”. Thus woman appears in the creation
story both as man’s equal and as secondary to him.

217
The story of Jewish woman in modern times varies in reform,
conservatives and orthodox Judaism. For example, orthodox Jews
continue to restrict women from participating in religious rituals whereas
Reformist Jews now admit women to the Rabbinate. Jewish feminist
continue to fight for the equalization of women’s status in the religion
against the traditional view that this equalization is contrary to Talmudic
legislation. Jewish fundamentalist in the name of guard[ing] women’s
chastity and preventing women from men into adultery, segregate the
sex, relegate women to the home, and restrict women’s public dress.

Women are not obliged by Jewish Law to attend formal religious

services, and cannot participate in many aspects of the services.
Women’s obligations are in the home, which are the reason why women
are exempt from time-based formal prayer services & keep away from
Synagogue. Until the twentieth Century, women were often discouraged
from learning Talmud and other advanced Jewish texts. Judaism
emerged from the monotheistic traditions of Moses that were
exemplified by the prohibitions of adultery, idol worship and other
behaviours laid down in the Ten Commandments. Patriarchal traditions
became paramount in the moral and social codes of the time. Women
came to be considered as mere property with no legal rights to
ownership of any material assets. Wives and daughters could be sold
into slavery for payment of debts. The roles of women were legally
restricted to child bearing, household management and serving the
sexual desires of their husbands.

The Rabbis were determined to exclude women from significant

participation in most of their community service and power conferring
public activities, not only by customs but as a result of detailed
legislation. The rabbis believed that to be female was less desirable
than to be male and several times listed the physical and social
disadvantages to which a woman was subjected. One of the most
trenchant statements of the difference in the status of man and woman
in rabbinic Judaism is found in a discussion of the various ritual
obligations incumbent on the adult male Jew. According to this text, one
of the blessings a man is obligated to say daily thanks, “God, who has
not made me a woman”[b.Menahot.43b]. This blessing ultimately
became part of the daily liturgy for morning prayers. It remains part of

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the traditional liturgy to the present day. In its place, women thank God
“for making me according to Your will’.

Marriage under Jews Personal Law:

Marriage is considered a cornerstone of both Judaism and Islam. In

both culture, marriage was a business transaction between the family of
the groom and the family of the bride. As for the matrimonial laws of
Jews, there is no codified law in India. Jews do not regard marriage as a
civil contract, but as a relation between two persons involved in very
sacred duties.

In the sixteenth century ‘ Mosaic’ and ‘Talmudic’ Law was compiled and
was styled as “Shulchan Aruch”. Its third part was known as “Eben-Ha-
Ezer” which contains the matrimonial law. This was the basis of Rev. Dr.
Mielziner for his work- “Jewish Law of Marriage and Divorce”. This work
is accepted as an accurate and authoritative account of Jewish Law.30

The act of marriage creates certain rights and duties between husband
and wife. In performing them, both parties have to conduct themselves
according to the following rules comprising the fundamental principles
for the relationship between husband and wife in Jewish Law; Thus the
sages laid down that a man shall honour his wife more than his own self
and shall love her as he loves himself, and shall constantly seek to
benefit her according to his means; that he shall not unduly impose his
authority on her and shall speak gently with her; that he shall neither
sadden nor irritate. Similarly they laid down that a wife shall honour her
husband and shall accept his authority and abide by his wishes in all her
activities (Maim.Yad,Ishut 15:19-20)

The customs of marriage are almost the same in Jews; as in Muslims,

Christians or Hindus. The main difference is that a Jew bridegroom has
to write a deed known as Kethuba or Ketuba. In Jewish law, the
marriage contract is called the Ketubah. It is the main document which
entitles the wife to receive the specified amount of money in the event of
his death or divorce. Kathuba is a very important document of
marriage..31 A bound volume of Kathuba is kept at the synagogue
containing printed forms in Hebrew and English with blank spaces for
the amount and the names of the parties. The history of the Kethuba is

219
given by Mielziner in his book “Jewish Law of Marriage and Divorce”.
Mielziner concluded “As the wife in our days, is sufficiently protected by
the civil laws of the country, and in many cases also by special marriage
settlements made in more legal form, the Kethuba is generally regarded
as an unnecessary, useless formality and is almost entirely dispensed
with”.

Both the High Courts of Calcutta and Bombay observed that Kethuba
no longer represented any real promise regarding payment of any sum
of money, but was a mere formality and nothing more.

The Jews in India practice monogamy. A Jew cannot lawfully contract a

second marriage during continuance of the first.

The marriage consists of two parts – Betrothment and wedding. There

are two forms of betrothment – Kaseph Kiddeshim and Sh’tar which is
followed by the actual wedding or nuptial.

Prohibited Degree of marriages:

There are 39 relations falling within the prohibited degree. Such

prohibitions were based on levirate, intermarriage and incest; no
marriage among such relations could take place;

 A divorced wife having married to another man cannot re-marry

her former husband.
 A castrated male is prohibited to marry a Jewish woman.

Divorce under Jews Personal Law:

In the event of death of either party, the marriage stands dissolved

Void Marriages and Non-Fulfilment of Conditions: If the marriage was

between prohibited degrees, it was void ab initio. No formal divorce is
necessary in such a case.32

Mutual agreement:

The same law, which applies to Christians and Hindus, also applies to
Jews. A Jew bridegroom can claim dissolution of marriage under the
Marriage and Divorce Act, 1869, which has been substantially amended

220
in 2001. The Jewish Law provides that the court should not interfere
where both parties declare that their marriage has failed and that they
would like to dissolve their marriage. It means the marriage stands
dissolved if so facts if both parties declare that the marriage has failed
while under the Marriage and Divorce Act 1936, if one partly comes to
the court during a period of one year, it stands as dissolved on the
expiry of this period but it has been amended. But the courts have a role
to play in such cases, while in Jewish Law the courts have no role at all.
It appears reasonable that when both parties to the marriage agree to
dissolve the marriage and agrees to separation, there should be no
obstacle in doing so because both the bride and the bridegroom may re-
marry some other persons and lead a settled life. In Islam, the divorced
wife is free to marry after the period of iddat has expired but under this
Act both husband and wife are free to marry any person they like under
the Mutual Agreement to Divorce, the suit cannot be brought before the
court before the expiry of one year from the date of marriage.

Divorced Through Court:

i. The husband can claim divorce on the following grounds:

 Adultery of the wife

 Loss of wife’s moral decency
 Apostasy of disrespect to the rituals
 Refusal of co-habitation
 Refusal to follow the husband’s domicile
 Insult to husband or father in law
 Incurable disease

ii. The wife can claim divorce on the following grounds:

 Gross immoral living by the husband

 Loathsome disease which the husband contracted after marriage
but not from wife
 Impotency of the husband
 Refusal by the husband to matrimonial intercourse
 Apostasy i.e. change of religion by the husband
 Distasteful or immoral trade

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  If the husband squanders away his property and refuse to maintain
the wife, she may claim divorce
 Cruelty
 If the husband, having committed a crime, flees away from the
country, the wife may claim divorce

Maintenance rights under Jews Law:

Regarding a woman who has income from her own work and who sued
for maintenance from her husband, the Supreme Court ruled, in
accordance with Jewish law and the decisions of the Rabbinical courts,
that her income should be deducted from the amount her husband owes
her for her maintenance, and the husband must pay the balance
between the wife’s earnings and the amount of the maintenance
payments, to the extent that the amount of maintenance is greater than
the amount of the wife’s earnings. In principle the husband cannot force
his wife to work in order to support herself and, accordingly, the
Supreme Court ruled that, insofar as the wife does not earn her own
living, the husband is obligated to pay the full amount of her
maintenance, even if the wife worked in the past and has stopped
working.

While this rule does provide an important means of exercising pressure

on the recalcitrant husbands who refuse to give a ‘get’ to their wives, it
is argued that the resultant damage to the woman is grave, and that
other solutions to the problem of refusal to grant a ‘get’ should be found
and implemented.

Rights of Inheritance under Jewish Law

In some systems of ancient law, daughters and sisters were excluded

from all rights of inheritance, while in other systems they were put on an
equality with sons or brothers, the Mosaic law gave the inheritance to
the daughter or daughters when there were no sons, and, by analogy, to
sisters or paternal aunts when there were no brothers.

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Wife’s Rights to Husband’s Estate

Jewish law decrees that the husband is the sole heir of his wife – to the
absolute exclusion of everyone else, including her children – as regard
all property of whatever kind in her estate, including the part in respect
whereof he had no usufruct during her lifetime. Under the Jewish Law of
marriage, the wife is entitled to receive her ketubah amount from the
husband’s estate. Until the Ketubah amount is paid to her, the wife is
entitled to maintenance and support from her husband’s heirs to pay out
the wife’s Ketubah amount and thus terminate their obligation to support
her.

Daughter’s Rights to inheritance: Under Jewish Law, the daughter of a

deceased male is entitled to get support from her father’s estate until
the earlier of her marriage or her attainment of the age of majority.
Direct Biblical references to inheritance by daughters indicate that a
daughter may inherit from her father’s estate, but only if the father is not
survived by any son(s). Thus, if a decedent is survived by a daughter
and by a son’s daughter, the son’s daughter will take the entire estate to
the exclusion of the daughter. The sons who inherit their father’s estate
are also obliged to give their sister a dowry from the estate.

Mother Right’s to Inheritance: Under Jewish Law neither the mother nor
the mother’s family are heirs of her deceased child. Thus, if a decedent
dies survived by both parents and not by issue, the father inherits the
decedent’s entire estate. Inheritance by children of their mother’s estate
is not directly addressed in the Torah. A Mishnah, clearly states that
daughters receive maintenance from the fathers property but not from
the mothers property.

Other Female Relatives: Jewish Law does not provide specific

succession right’s for most female relative of the descendent. Under
parental system of inheritance, son’s issue are primary heirs.

In Israel, modern laws and customs have changed the all –

encompassing role that religion plays in the inheritance rights of women.
In Israel, the secular Succession Law of 1965 governs the distribution of
property at death. Even for orthodox Jews who remain faithful to the
restrictions of the book of numbers rather than to secular law, the

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unfairness to women that is inherent in these Biblical restrictions have
been recognized in modern times, and mechanisms for mitigating this
inequality have been devised.

Advancement in technology over the centuries has profoundly affected

many aspect of human society, including the laws on women. Over the
past two hundred years, the domestic, religious and communal roles of
Jewish women in the western world have undergone significant
expansion as a result of the technological transformations associated
with modernity. As middle- class women found that they could care for
their families and also play a role beyond their domestic responsibilities.
Just as the invention of the telephone transformed human interactions
one hundred years ago and the inventions of the typewriter opened
office employment to women in the first decade of the 20th Century, so,
too, the development of computer technology, particularly the internet,
has also given Jewish women unimagined new options for learning,
organizing and communicating with each other in every sector of the
Jewish female community.

However, many of the battles for female’s integrity and equality within
Judaism remain to be fought within traditional forms of Judaism. Jewish
world, and Israel, where Jewish women rights in marriage and divorce
remain circumscribed by Halakhic regulation.

References
1. Jewish Virtual Library (jewishvintva library. Org)
2. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, p26
3. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, p27
4. Professor Kusum – Family Law I – Lexis Nexis Butterworth Wadhwa, Nagpur, p11
5. Proffesor Kusum – Family Law I – Lexis Nexis Butterworth Wadhwa, Nagpur, p14
6. Dr Paras Diwan – Family Law –allahabad Law Agency, Faridabad, p27
7. Professar Kusum – Family law – Lexis Nexis Butterworth Wadhwa, Nagpur, p30
8. Anjani Kant – Women and the Law – A.P.H Publishing Corporation, New Delhi, 242-
243
9. Paras Diwan – Family Law – Allahabad Law Agency – Faridabad, p30-31
10. Dr S.R.Myneni - Women & Law – Asia Law House, Hyderabad, p115-116
11. Lalita Dhar Parihar – Women & Law – Eastern Book Company, Lucknow, p218
12. Professor Kusum – Family Law I – Lexis Nexis Butterworth wadha, Nagpur, p219-220
13. Dr S.R,Myneni – Women & Law – Asia Law house, Hyderabad, p136-137
14. Anjani Kant – Women and the Law – A.P.H.Publishing corporation, New Delhi, p374
15. Dr S.R.Myneni – Women & Law – Asia Law House, Hyderabad, p173-74
16. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, p8

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17. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, p8
18. Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi, p91
19. Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi, p92-93
20. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, Haryana, p26
21. Dr S.R.Myneni – Women & Law – Asia Law House, Hyderabad, p97
22. Dr S.R.Myneni – Women & Law – Asia Law House, Hyderabad,p 98
23. Dr S.R.Myneni – Women & Law – Asia Law House, Hyderabad, p119
24. Professor Kusum – Family Law I – Lexis Nexis Butterworth wadha, Nagpur, p28-29
25. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, Haryana, p29
26. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, Haryana,30-31
27. Lalita Dhar Parihar – Women & Law – Eastern Book Company, Lucknow, 222
28. Professor Kusum – Family Law I – Lexis Nexis Butterworth wadha, Nagpur, p218-219
29. Dr Paras Diwan – Family Law – Allahabad Law Agency, Faridabad, Haryana,p377
30. Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi, p94
31. Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi, p94
32. Anjani Kant – Women and the Law – A.P.H.Publishing Corporation, New Delhi , 98

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