Marital Status Based Discrimination : A Peep into Personal

Law

Submitted by:

Rakesh Ranjan Kumar,

B.A. L.L.B (Hons.)

Submitted to:

Mr. Ravi Ranjan Kumar

Faculty of Family Law

Chanakya National Law University, Patna

 TABLE OF CONTENTS:
TABLE OF CONTENTS:..................................................................................................2
DECLARATION BY THE CANDIDATE.........................................................................3
ACKNOWLEDGEMENT.................................................................................................4
a. Aims and objective:.........................................................................................................5
b. Hypothesis.......................................................................................................................5
c. Research questions..........................................................................................................5
d. Limitation And Scope...................................................................................................6
1. Research methodology.......................................................................................................6
2. Martial Status Based Discrimanation: An Introduction ............................................7
3. Martial Status Based Discrimanation:Hindu Law .8
4. Martial Status Based Discrimanation: Muslim Law...............................................17
5. Marital Discrimination & Uniform Civil Code.20
5. Conclusion And Suggestion.........................................................................................22
Bibliography.........................................................................................................................

2
 DECLARATION BY THE CANDIDATE

I, hereby, declare that the work reported in the L.L.B (Hons.) Project report entitled

Marital Status Based Discrimination : A Peep into Personal Law

Submitted at CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

is an authentic record of my work carried out under the supervision of Mr. Ravi Ranjan sir ,.

I have not submitted this work elsewhere for any other degree or diploma. I am fully

responsible for the contents of my Project Report.

(Signature of the Candidate)

Rakesh Ranjan Kumar (1361)

B.A. L.L.B., 2nd year

CNLU, Patna

3
 ACKNOWLEDGEMENT

I would like to show my gratitude towards our guide Mr. Ravi Ranjan Kumar, under whose
guidance, I structured my project.

I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldnt have
completed it in the present way.

I would also like to extend my gratitude to my friends and all those unseen hands that helped
me out at every stage of my project.

THANK YOU,

Rakesh Ranjan Kumar

SEMESTER -3rd

CNLU, PATNA

4
Aims and objective:
1. The researcher wants to find out what is marital based discrimination.
2. The researcher wants to find the detailed situation of martial status based
discrimination in India.
3. The researcher wants to find out the initiatives taken by government to counter the
discrimination?

Hypothesis
1. The Researcher presumes that marital status base discrimination is present in society
even today.

Research questions
1. What is Marital Based discrimination?
2. Is it followed still today in India?
3. What are the steps taken by govt & society to stop it?

5
Limitations & scope

Since the researcher is a student of 2nd year in CNLU, he can access a limited area only. The
researcher being a second year student is not able to go through all the details thoroughly. It
lacks the chance of making the project more effective, if the study for it would have been a
comparative one with respect to other provisions listed therein. The researcher having read
the work on this topic could understand the problem clearly but it might have been clearer if
he would have read writings of more writers. The historical need and background is also
necessary for having a birds eye view of the particular topic and it gets developed only by
effective and extended reading over a long period of time. Hence, after facing all the
difficulties the researcher has managed to frame a complete and the clearest picture of the
problem, he could make through his best efforts

1. RESEARCH METHODOLOGY

The researcher will do doctrinal type of research in which he will go through the primary as
well secondary sources. The researcher through this methodology will be able to get an adjact
picture of the problem in question. The doctrinal method helps in doing a comparative study
of the topic. This methodology helps in going through not only the work of one eminent
person but of many other too. This helps in getting the birds eye view of the subject also.

6
 2. MARITAL STATUS BASED DISCRIMINATION:
INTRODUCTION

Discrimination is treating or proposing to treat someone unfavourably just because of some

personal characteristics. This also include bullying someone. Marital status is whether you
are , or are not, single, married, divorced, widowed, separated, a domestic partner or in a
defacto relationship. Marital status based discrimination is common in countries across globe.

MARRIAGE ENTAILS various rights, duties and obligations on the spouses. What
is disconcerting, however, is that while a female in our society has always suffered
subjugation and discrimination, certain disabilities further befall a Hindu woman
upon marriage. She suffers discrimination not only based on gender qua the
males but also discrimination between a female and a female inter se which is
based on her marital status. The males suffer from no marital-status-based
disabilities. This paper seeks to analyze some issues in family relations where, upon
marriage, a Hindu female's rights and position are adversely affected.

Companies and recruiters in India routinely ask prospective women employees questions
about their marital status and maternity plans, yet the country has no laws or norms governing
such discrimination.

While a small number of firms and recruiters also ask men similar questions, these are
usually general queries about their families. Employers seem to reserve the pointed, and
sometimes downright insensitive, questions for women.

7
 3. MARITAL STATUS BASED DISCRIMINATION: HINDU
LAW

In Hindu law from earlier times the marital based discrimination is present in normal Hindu
discourse of life. MITAKSHARA & DAYABHAG are the two systems available from past
times. Among this Dayabhag is considered to be more progressive because it gives rights to
woman but it was only limited to Bengal & some parts of north-east India while the
Mitakshara which is followed mostly in India does not include any such rights to woman.

Maintenance
Under the old Hindu law, the father was bound to maintain his unmarried
daughter irrespective of her age1. Thus, even if she was a major she had to be
maintained. This has been laid down clearly by a number of high court judgements as
well2.

The Hindu Adoptions and Maintenance Act, 1956 now makes a specific provision
for the maintenance of an unmarried daughter, irrespective of her age. Section 20(3) of
the Act says:

The obligation of a person to maintain his or her ... daughter who is unmarried
extends in so far as ... the unmarried daughter ... is unable to maintain ... herself out
of ... her own earnings or other property.

In Laxmi v. Krishna3 an adult daughter filed a maintenance claim against her

father. The father's plea that she was an adult, healthy and capable of earning was
not accepted.

The court remarked:

1 Gooroodas Banerjee, The Hindu Law of Marriage and Shridhana P174

2 Bai Mangal v. Bai Rukmini, (1899) 23 Bom 291; Tulsha v. GoptaPRai, (1884) 6
All 632; Savitri Bai v. Laxmibai, (1878) 2 Bom 573; Narinjan Singh v. Gurmukh
Singh, AIR 1937 Lah 76; Ram Labhaya v. Niltal Devi, AIR 1931 Lah 127

3 AIR 1968 Mys 288

8
Section 20(3) of the Hindu Adoptions and Maintenance Act does not speak of
the capacity to earn an income but speaks of the existence of a source of income
and the ability to maintain oneself with that income.

Likewise in Wall Ram v. Mukhtiar Kaur 4, a daughter aged 20 and a college student,
filed a maintenance claim against her father. Earlier she and her mother were granted
maintenance under the provisions of the Cr PC but on having attained majority the
daughter became disentitled to maintenance under the Code. Hence she filed an

application under section 20(3) of the HAMA. While the trial court dismissed her
claim, the first appellate court held6 that section 20(3) of the Act "casts an
obligation on a Hindu to maintain his unmarried daughter so long as she remains
unmarried and is unable to maintain herself out of her own income and property."
On father's appeal against this, the high court held that the Act clearly "gives
statutory recognition to the well-established moral obligation of a Hindu male or
female to maintain his or her unmarried daughter."

The same view was taken in Chandra Kishore v. Nanak Chand5 where it was held
that an unmarried daughter is entitled not only to her day-to-day expenses but also
to her marriage expenses even if she is educated and an adult.

Under the Hindu Marriage Act, 1955 there is no provision for separate
maintenance of an adult unmarried daughter. In Kartarchand v, Taravati6, the city
civil court decreed maintenance under section 24 to the wife and also separately to
three adult daughters. On husband's appeal against this, the high court observed:

The learned judge in granting separate maintenance to each of the three adult
daughters had clearly traversed beyond the scope of sections 24 and 26 ... [and] his
order was invalid and contrary to law. It is submitted that while the trial court might
have committed a technical error in providing separate maintenance to each of the
4 AIR 1969 P&H 285.

5 AIR 1975 Del 175.

6 AIR 1982 Bom 15

9
adult daughters, there is nothing to prevent a court to take into consideration the fact
that the mother has to look after and maintain the daughters, while fixing the amount
of maintenance.

Under the Code of Criminal Procedure 7, the position is that a minor son or
daughter whether married or unmarried, is entitled to maintenance. As regards
adult children, the Code provides that any child who has attained majority, not
being a married daughter, but is, by reason of any physical or mental abnormality
or injury unable to maintain itself, has a right to seek maintenance under the
provisions of section 125.

It would be pertinent to point out here that the old Code, i.e., prior to 1973, was
silent on the position of a married daughter in regard to her right to seek
maintenance from her father. There have been a few cases where the issue came up
for determination. While some courts held that upon marriage it becomes the legal
obligation of the husband to support his wife and hence father's liability ceases,
others were of the opinion that upon marriage, a daughter does not ipso facto lose
her right to claim maintenance from her father. A reference may be made of a few
cases. In Ranchoddas Narottamdas v. Emperor 8, a husband had been ordered to
pay u/s 488 maintenance of Rs. 40 per month for her wife and four children (Rs. 16
for wife and Rs. 6 for each child). After some time the father made an application
praying that the amount be reduced as the eldest daughter had been married. On the
other hand, the wife and daughters prayed for enhancement of the allowance on the
ground that the husband's/father's salary had been raised. The magistrate enhanced the
amount for the wife and three children without disturbing the claim of the married
daughter who was 15. The father, thereupon, filed a revision and argued that once a
daughter is married she gets an enforceable right to be maintained by the husband
and, therefore, she cannot be said to be unable to maintain herself within the
meaning of section 488 and thereby the liability of the father ceases. Chantan v.

7 Sec 125, CrPC

8 AIR 1949 Bom 36

10
Mathu, was relied upon in support of the contention that where a child possesses a
right to be legally maintained from the mother's tavazhi, then he is not entitled to
an order for maintenance under section 488. The following observations of the court
in Chantan are pertinent:

A child which possesses a legally enforceable right to maintenance from its

mother's tarwad stands in the same position as a child which possesses property in its
own right, and that neither can be regarded as 'unable to maintain itself within the
meaning of section 488.

The Bombay High Court in Ranchoddas Narottanu however, did not accept this
argument and held that the right of maintenance under section 488 is a distinct
statutory right irrespective of the personal laws of the parties.

In Rangaiah v. Rumini Bai & Others, the Andhra Pradesh High Court 9 held that
a minor daughter upon marriage does not ipso facto lose her right of maintenance
from the father. A reference may also be made of a few cases where courts held
that upon marriage, a daughter becomes disentitled to claim maintenance from her
father. In Bhajan Lai Banian v. Swarna, a father was paying Rs. 3 per month
as maintenance for her daughter aged 7. He paid the amount for three years,
thereafter she got married and the father made an application for having the award
set aside. It was held by the Calcutta High Court that "the person bound to maintain
her is not her natural father but her husband." Similarly, in Chantan v. Mathu, it
was held that a person who can claim maintenance from another person cannot
apply under section 488. On this analogy, it is at times argued that a married
daughter cannot claim maintenance from her father.

In order to set the controversy at rest and make the law on the point certain, the
Law Commission recommended that section 488(1) Cr PC be amended so as to
ensure that a married daughter can claim maintenance from her father. Although
upon marriage she has a right to be maintained by the husband but there may be
hard cases where the husband either neglects to maintain her or is unable to
maintain her. The 1973 Code consequently made a provision for maintenance for a

9 (1972) 1 Andh WR 361

11
married daughter also but only in respect of a minor married daughter. Thus,
under the proviso to section 125 a magistrate may order the father of a minor married
female child to maintain her until she attains majority if the magistrate is satisfied
that the husband of such married female child is not possessed of sufficient means.
As soon as such daughter attains majority, her right ceases. It is also pertinent to
note that under the provisions of the Code, while a legitimate or illegitimate adult
unmarried son, an adult married son and an adult unmarried daughter -who are
suffering from any physical or mental abnormality or injury so as to be unable to
maintain themselves, are entitled to be maintained by the father, an adult married
daughter is expressly excluded. Thus, even if an adult married daughter is unable to
maintain herself by reason of any physical or mental abnormality or injury she has
no right under the provisions of the Code. Simply because she happens to be married
she is denied the right which her other sisters, if unmarried, and brothers -whether
married or unmarried, have.

Express exclusion of an adult married daughter from maintenance from her parents
is unfair and discriminatory. As in the case of minor married daughters, there may
be hard cases in case of an adult married daughter as well. It cannot be denied
that a married daughter's primary claim is from her husband but there should not be
an absolute bar qua the parents. If the circumstances of the case are such that the
adult married daughter has no means of her own, nor is being or can be reasonably
provided by her husband then.she should have an equal right along with her other
married or unmarried, minor or adult, brothers and sisters to seek maintenance from
her parents. Viewed from another perspective also, the exclusion of an adult
married female daughter is unjustified. If a married daughter has a liability to
maintain her parents10 just in the same way as the married or unmarried sons or
unmarried daughters, it does not sound to reason that an adult married daughter
should not have a corresponding right to get maintenance if her circumstances so
demand. It is indeed anomalous that while she has a duty, she has no corresponding
right.

10 VM. Arbat v. K.R. Sawai, AIR 1987 SC 1100

12
Adoption
Adoption is another area in family relations where a female suffers discrimination
based on her marital status. The only personal law that statutorily recognizes
adoption is the Hindu Adoptions and Maintenance Act, 1956, which is applicable only
to Hindus. Thus only a Hindu may adopt, or give in adoption. While adoption
amongst the Hindus was known even prior to the Act, only males could adopt or
be adopted. A widow could adopt but not to herself, she adopted to her predeceased
husband. The Act has brought about significant changes in the law and has
considerably improved the position of women in this regard. For instance, females
have been given a right to take and give in adoption under certain conditions; an
unmarried girl and a divorcee can adopt; a widow can adopt in her own right; and a
girl can be adopted too unlike earlier where only boys could be adopted. Besides,
a married male Hindu who wants to adopt a child has to take the consent of his
wife/ wives. Despite all these revolutionary changes and general improvement in the
rights of females in respect of adoption, there is a clear bias which is based
purely on the marital status of a female. Section 8 of the HAMA refers to a females'
capacity to take in adoption.

It says:

Any female Hindu -

(a) who is of sound mind

(b) who is not a minor, and

(c) who is not married, or if married, whose marriage has been dissolved or
whose husband is dead or has completely and finally renounced the world or has

13
ceased to be a Hindu or has been declared by a court of competent jurisdiction to
be of unsound mind, has the capacity to take a son or daughter in adoption.

Thus it is evident that a married female's right to take a child in adoption is

conditional on certain contingencies, viz., her husband is dead, or the marriage is
dissolved or the husband has renounced the world, or ceased to be a Hindu or is
of unsound mind.

The discrimination against a married woman is two-pronged, viz., discrimination

based on gender and discrimination based on her marital status. While a married
male may adopt with the wife's consent, a married female may not even with the
consent of the husband. Secondly, whereas an unmarried, divorced or widowed
female may adopt in her own right without anyone's consent, a married female
cannot adopt even with the consent of the husband. The legal position thus is that
while a male, whether married or unmarried, a spinster, a divorced woman or a
widow has a right to adopt; a married woman does not have that right.

Likewise, in the matter of giving in adoption too, the father if alive, shall alone
have the right to give in adoption though he needs the mother's consent. Thus
while a father may give his child in adoption with mother's consent, a mother cannot
unless the father has renounced the world or has ceased to be a Hindu or has been
declared by a court to be of unsound mind. A widow may give her child in
adoption.

The authority, however, has been gravely diluted by an apex court judgment in
Jaiprakash Khadria v. Shyam Sunder Agarwal.

14
Natal dwelling house and right of residence

Yet another example of marital status based discrimination is a married woman's

right of residence in her natal dwelling house. The. Hindu Succession Act, 1956
was a bold step towards giving better and almost equal property rights to Hindu
women. However, there are still glaring examples of gender discrimination. For
example, vide section 6, membership of coparcenaries is confined only to males
who have a right in the property by birth. Section 23 of the Act puts restrictions
on female heirs' right to partition and daughter's right of residence in the dwelling
house left by a Hindu dying intestate. The section reads as follows:

Section 23. Special provision respecting dwelling houses:

-where a Hindu intestate has left surviving him or her both male and female heirs
specified in Class I of the Schedule and his or her property includes a dwelling-
house wholly occupied by members of his or her family, then, notwithstanding
anything contained in this Act, the right of any such female heir to claim partition
of the dwelling house shall not arise until the male heirs choose to divide their
respective shares therein; but the female heir shall be entitled to a right of
residence therein. Provided that where such female heir is a daughter, she shall be
entitled to a right of residence in the dwelling-house only if she is unmarried or has
been deserted by or has separated from her husband or is a widow.

15
Hence, it is evident that this section discriminates against a female on two counts,
viz.,

(i) her right to claim partition and

(ii) (ii) her right of residence.

Even though she has an equal share in that house being a Class I heir but her
right is kept in abeyance until other Class I male heirs first divide their shares.
Thus, if they choose to indefinitely defer their right to partition, the female
heirs specified in Class I, which includes daughters as well, cannot ask for
their share. As aptly remarked by the Bombay High Court in Anant v. Jankibai 11
, "apparently in such a case the female heir has not ghost of a chance to take a
share". The Supreme Court's remarks in Narasimha Murthy v. Susheelaban
have made the position all the more worse by holding that the restrictions imposed
by section 23 would apply even when there is only one male heir. It is
submitted that if there is only one male heir, who is he to divide his share with?
If he decides to do nothing, the female heirs may never get their share in their
lifetime. This is almost a negation of her right.

It is ironical indeed that the married daughter, who legally has a share in the
property, is debarred not only from seeking her share unless the male heirs decide
to give her share but also a right to reside therein

11 AIR 1984 Bom 319 at 321

16
 4. MARITAL STATUS BASED DISCRIMINATION: MUSLIM
LAW

A careful watch of the Muslim personal laws suggests, unfortunately, that there exist
several provisions which discriminate against women to a considerable extent. There exist
disparities between the rights guaranteed to women in the Constitution of India and the
limited rights that Muslim personal law assigns them. Although in India, the status of
women is not that high as that of men, the situation of Muslim women is comparatively
worse. However there has been a clear distinction between the rights of men and women
in the Quran; Purdah, the provisions for distribution of property, marriage laws legalizing
polygamy, etc. prove to be laws that are substantially discriminatory against women.

In India, the legal status of Muslim women in the society is a topic of controversy and
debate. It is a complex issue that involves not only gender bias, but also issues of
religious freedom, minority rights etc. thus highlighting the difference in personals laws.
Personal law, which is based on religious laws, has been altered by the state authorities
and precedents set by the judiciary in governing family relations. Personal law is the only
law in India that applies to individuals on the basis of their religious identity.

There is an organization which governs the rights of a Muslim woman in India i.e., the
All India Muslim Womans Personal Law Board (AIMWPLB), constituted in 2005 which
adopted strategies for the protection and continued applicability of Muslim personal law
in India focusing on major issues of women like marriage, divorce and other legal rights.

17
 The Muslim law governs two schools of law and they are the Sunni school of law and the
Shia school of law. In every part of Muslim law, there is a distinction among the two
schools with their respective concepts. Muslim women face discrimination in many legal
areas.

Divorce
An act in 1939 was put up, the Dissolution of Muslim Marriage Act. It laid down nine
grounds on which a Muslim woman could seek divorce in the court. Muslim law then
allowed a man to divorce his wife at will but a wife did not have the right either to give
divorce or seek one. The only way out for them was to convert to another religion to
annul their marriage.

After that, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects the
rights of a divorced Muslim woman and supports her living. This is a landmark
legislation brought out by the parliament of India in 1986. In section 3(1) of this Act 12, it
is stated that a fair amount of provision and maintenance should be granted to the Muslim
women who has been divorced within the Iddat period by her former husband and
whereas the court, in the case of Danial Latifi v. Union of India held that this reasonable
maintenance is to be provided to her until she remarries and is not limited to only the
Iddat period.

Generally both parties to marriage have the option of divorce but the husbands right is
much greater than that of wife. Divorce may take place with mutual consent. But wife
cannot divorce herself from her husband without his consent. Husband can immediately
marry on divorce but wife cannot unless the Iddat period expires.

12 Muslim Women (Protection of Rights on Divorce) Act, 1986

18
In the case Shah Bano v. Imran Khan, the Supreme Court held that if a Muslim divorced
woman is unable to maintain herself after she gets divorced, so she can claim maintain
maintenance from her former husband and the same can be claimed under section 125 of
Criminal Code Procedure

Inheritance

While inheriting the property of deceased, woman are least benefitted. New Islamic
principals included woman in inheritance but females share is always half of males
share. Muslim woman is entitled to inherit property only as a daughter, widow,
grandmother, mother, or sons daughter. A widow is entitled to one-fourth share of her
husbands property when there are no children and one-eighth of the share when they
have issues. A daughter gets half the share of what her brother gets. If she has no brother,
she is entitled to a share of half of the property. A mother will get one-third share of her
sons property when there are no children and one-sixth when there are children.The
maternal grandmother will get one-sixth the share of the total property, only if there is no
mother or grandfather. The paternal grandmother gets a share only if there is no father or
grandfather.

19
 5. MARITAL STATUS BASED DISCRIMINATION &
UNIFORM CIVIL CODE

Under International law, a state that ratifies an international instrument becomes legally
bound to implement its provisions. Accordingly India having ratified the International
Covenanton Civil and Political Rights, 1966, and International Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), 1979, is bound
to enforce the relevant provisions and ensure gender equality under its national laws.
However, women in India under Hindu, Muslim and Christian laws continue to suffer
discrimination and inequalities in the matter of marriage, succession, divorce and
inheritance. So as a step towards a gender just code, the personal laws of various
communities in India need a closer look and reform, not only in compliance with the Indian
Constitution but also as per the provisions of the International law.

Indian constitution Article 15 lays down a guarantee to every citizen that no discrimination
shall be made on any ground and also empowers state government to make special
provisions for women and children. Article 44 provide for uniform civil code for the
citizens throughout the territory of India. Uniform Civil Code (UCC)is a term referring
to the concept of an overarching civil code in India. India already has uniform
criminal code and civil laws which includes Contract law, Civil Procedure Code,

20
Transfer of property Act etc. Thus UCC really referred to personal laws in India. All
the Indian personal laws all find their origin in ancient religious texts. All of them in
varying forms and degrees discriminate against woman vis-a-vis the men within each
community. UCC has been wrongly posited as an assault on religion and religious
identities and larger but quitter voice of gender justice is dispelled resulting in
uncertainties and continues discrimination. UCC administers the same set of secular
civil laws to govern all people irrespective of their religion, caste and tribe. Such codes are
well in place in most of the countries. The demand of change in personal laws is
essential as it would directly affect the status of woman in family broadly in the
sphere of marriage, divorce, maintenance, inheritance, succession, guardianship and
adoption. The spine of controversy revolving around UCC has been secularism and the
freedom of religion enumerated in constitution but in fact it is conceived as part of
secularization of personal laws without shedding religious identities.

There is a reason why a uniform civil code is needed i.e. for gender justice or rather I say
gender equality. The rights of women are usually limited under religious law, be it Hindu or
Muslim. The practice of triple talaq is a classic example. In Farooq Khan case, the Armed
Forces Tribunal, Lucknow Bench held this practice of triple talaq unconstitutional. Though at
present it is subject to adjudication by the Apex Court in Shayara Bano v. Union of India &
Ors. It is important to note that Dr. B.R. Ambedkar fought hard for the passage of the Hindu
Code Bill because he saw it as an opportunity to empower women. The great Muslim social
reformer Hamid Dalwai also made the rights of women a central part of his campaign for a
uniform civil code. The move towards a common civil code cannot be a hasty one. There is
the obvious political challenge on assuaging the fears of the Muslim community. The
government will have to work hard to build trust, but more importantly, make common cause
with social reformers rather than religious conservatives, as has been the wont of previous
governments.One strategic option is to follow the path taken after the fiery debates over the
reform of Hindu civil law in the 1950s. Rather than an omnibus approach, the government of
the day could bring separate aspects such as marriage, adoption, succession and maintenance
into a uniform civil code in stage.

21
 6. CONCLUSIONS & SUGGESTIONS

This research clearly establishes that female all along suffers discrimination. She is
damned initially by her gender and further more by her marital status. While certain
logical and practical consequences do ensue marriage, especially in a patrilineal and
patrilocal set-up, but that is no justification to strip her of certain rights and privileges
which she would have had in her maiden state. For instance, in the context of
maintenance, an absolute bar in case of an adult married female from claiming
maintenance from her parents is not fair. It should be left to the court to determine
in a given case the circumstances of the female, and then decide whether or not and
to what extent, she needs to be supported by the parents. Denying a married female a
right to adopt or to give a child in adoption, even with the consent of her husband,
is unfair. As to rights in the natal dwelling house, the condition that a female cannot
seek her share until the male heirs - even if there is only one male heir - have
divided their share is almost rendering her right nugatory. So also as regards her
right to reside in the dwelling house. True, after marriage, a woman's matrimonial
home is considered to be her legal residence and no woman would leave that home
to come and reside in the natal dwelling home - more so after parents are no more
-simply to assert her legal share therein. There could be exceptional cases where
extraneous factors might play politics in the family and ruin family peace and

22
harmony (and this is truer in case of male sharers), but as a matter of general rule a
married daughter would leave her matrimonial home to reside in the natal dwelling
house only when there are pressing circumstances and she has no alternative. Though
the section (section 23) does make provision for a married daughter who is separated,
deserted, divorced but even apart from these contingencies, there could be difficult
situations where she might need to reside in her natal dwelling house.

In the context of discrimination between a married daughter and unmarried daughter

and sons (whether married or not) the apex court judgment in Savita Samvedi v.
Union of India13, is significant. To state the facts in brief- A father with two sons and
a married daughter was employed in the Indian Railways and was allotted an official
quarter. The daughter was also employed with the railways and on the father's
request to the railway authorities, she was allowed to share that accommodation
with the father. After her father's retirement, she laid a claim for regularization of the
quarter on the plea that her brothers were not in a position to look after the parents
whereas she was and would look after them in future too. The request was
turned down on the ground that a married daughter was not entitled for
regularization of a railway quarter. Her representation to the higher authorities as well
as to the Central Administrative Tribunal at Delhi was turned down. Hence the appeal
to the apex court voicing "a cry for gender justice."

It is significant to note that under an earlier railway circular of 1982 a married

daughter was completely out for out of turn allotment. It said:

[W]hen a railway servant who is an allottee of a railway accommodation

retires from service, his/her son, unmarried daughter, wife, husband or father, as
the case may be, may be allotted railway accommodation on out of turn basis subject
to fulfillment of prescribed conditions.

13 (1996) 2 SCC 380

23
After about a decade, in 1992, some concessions were made by the department and
the married daughter of the retiring official was included too, provided the retiring
official does not have any son or in case where the married daughter is the only
person who is prepared to maintain the parents and the sons are not in a position to
do so, e.g., minor sons. Thus, under this circular, though a married daughter was
included but only in the absence of a son or sons who could take care of the
parents. In other words, if there are sons who are in a position to take care, then the
married daughter cannot claim regularization. The court struck down this circular,
which suffered from the twin vices of discrimination based on gender and on
marital status. The court also showed immense sensitivity to the wishes of the
retiring official.

It observed:

The retiring officials expectations in old age for care and attention and its
measure from one of the children cannot be faulted, or his hopes dampened, by
limiting his choice. That would be unfair and unreasonable. We see no reason why
the choice be not left with the retiring official's judgment on the point and be not
respected by the railway authorities, irrespective of the gender of the child.

With the striking down of the circular, a married daughter has been placed at par
with the unmarried daughter, as also with the sons in respect of claims for
regularization of official quarters in the railway department.

It is hoped that marital status based discrimination in other aspects also, as discussed
above, will be taken note of and the authorities & governments across countries will do
the needful to eliminate the marital based discrimination that is present in or society.

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 7. BIBILIOGRAPHY

BOOKS
Mulla, Sir Dinshaw Fardunji. Principals of Mahomedian Law, LexisNexis, 20th
Edition
Diwan, Paras . Family Law, Allahabad Law Agency; 9th edition (2012)
Mulla, Sir Dinshaw Fardunji. Hindu Law, LexisNexis, 21th Edition

WEBSITES
Nadler, Joel T. https://www.apa.org/pubs/journals/features/sgd-0000050.pdf 18th Oct
2016
http://www.ebc-india.com/lawyer/articles/2005_5_19.htm
http://blog.ipleaders.in/
http://bangaloremirror.indiatimes.com/bangalore/cover-story/cv-resume-india-foreign-
marital-status-religion/heroesshow/23739671.cms

NewsPaper Articles

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 Johari Aarefa, Marriage, pregnancy, children? The unfair questions asked of women
job seekers in India Scroll.in(Jul 11, 2014)

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