Family law is an area of law that deals with family related issues and domestic relations including – the nature of marriage, domestic partnerships, spousal abuse, adoption, child custody, surrogacy, divorce, property rights, alimony and others. In the past, family law was largely concentrated around issues of marriage, divorce, property rights and succession. In certain societies such as India, the modern family law continues to be subjected to customary law – the customs, conventions, and practices that are part of the social fabric.Analysis of customary laws across cultures will bring forth the fact that it is women who were/are most affected by customary family laws.
Below a discussion of the customary family laws as followed by Islam, Hinduism and Christianity (Roman and English Law) is taken up. Customary Family Laws in India Women’s status within family and law, their rights to property and other rights varied significantly, depending upon the three phases of their lives – maidenhood, coverture and widowhood.While at every stage of their life women were confined within an inferior status, the worst was coverture. Under the Roman (continental) and English (common law1) legal systems, during coverture women were placed under the tutelage or guardianship of their husbands and deprived of all control over property. Since divorce was not recognized, only widowhood could end a period of coverture (Agnes 2000, 107-108).
Of the three ancient legal system – the Islamic, the Hindu and the Roman – the Islamic system appears the most progressive, followed by the Hindu system, with the Roman system exercising the most stringent control of all, over women and their property (Agnes 2000, 108). Islamic Law Islam was the first legal system to release women from the concept of coverture and recognized women’s right to property during marriage.Right from its inception in the seventh century, Islam redeemed marriage from the trappings of sacramental indissolubility and elevated it to the level of consensual, contractual unions. A thousand years later, this concept was adopted by the Continental legal system, from where it spread to England, and through this route was subsequently incorporated into Hindu law (Agnes 2000, 108). The custom of bride price in tribal Arabia – an amount paid to the father of the bride – was converted into mehr, which formed an essential ingredient of a marriage contract.
Mehr could take the form of money, gold coins, or movable and immovable property. Once stipulated, the woman’s power over it was absolute. This stipulation was meant to balance the husband’s power of arbitrary oral divorce (Agnes 2000, 109). If the husband died without paying his mehr dues the woman was deemed a creditor, and if she was in possession of her husband’s property she could retain it till her mehr dues were paid and sometimes even alienate it if her mehr dues are not paid (Agnes 2000, 111).Since the Islamic system did not subscribe to the notion of coverture, the legal status of a married woman was not suspended during coverture.
The position of a married woman in respect of her separate property was no different that of a single woman. A woman had the right to own her separate property during the subsistence of the marriage and the husband could not access it without her consent (Agnes 2000, 109).The contractual aspect also helped women to stipulate conditions in the marriage contract (nikahnama) or enter into pre-marriage agreements (kabin nama) regarding their individual property; access to the husband’s income and property; location of matrimonial home; the right to exclusive use of a house or at least a room; housekeeping allowance; the right not to do housework or breast-feed the children, the right of separate residence upon a husband’s subsequent remarriage; etc (Agnes 2000, 109-110). Ancient Hindu Law Under both the Christian and the Hindu systems women lost their rights to acquire and control property upon marriage.Indissolubility of marriage under these systems and the notion of monogamy under Christian law proved further detriments to women’s rights (Agnes 2000, 111).
Property rights under the various schools of Hindu law, originating from the Mitakshara (eleventh century) were based on the notion of coparcenary2 of joint family property, with ownership devolving jointly on four generations of male members. Collective membership was more notional than actual, as the property was inalienable and was controlled by the head of the family, the karta, for the benefit of the entire household.Even the karta did not have the power to alienate the property, except at times of distress or for religious purposes (the technical terms used in legal texts were legal necessities and pious obligation). The men could demand partition of the property, but until it was partitioned their right was limited only to maintenance. Since women did not own the property even notionally, they did not have the right to demand partition (Agnes 2000, 111). However, all women had a right to be maintained from the property.
Women’s right to maintenance also included the right to demand marriage expenses out of the earnings of the joint family property and the right to be maintained for life (Agnes 2000, 112). After marriage, within a patriarchal family structure, the bride was physically transferred from her natal family into her matrimonial family and she lost her right of residence and maintenance within her natal home. The husband and her family were entrusted with the legal obligation of maintaining the woman during coverture and widowhood (Agnes 2000, 112). Along with this there was a recognized concept of woman’s property called stridhan.Stridhan could be both movable and immovable property which the woman received at marriage and the marriage fee on the occasion of husband’s subsequent marriage.
The woman had absolute power of ownership over stridhan and could alienate it by way of sale, gift or will. A woman’s husband, father, brothers or sons have no control over this property. The husband could use it only in time of legal distress. Succession of the stridhan went from mother to daughter.
The unmarried daughter being the first in succession, then the married daughter who has not been provided for, followed by the married daughter who has been provided for.In the absence of this the daughter’s daughter and the daughter’s son were the next heirs. The woman’s own son was sixth in line (Agnes 2000). However, the notion of stridhan underwent a change during coverture.
While all gifts received by the woman during maidenhood and widowhood were termed as stridhan, gifts from strangers during coverture were excluded. The woman’s earnings from her own labour and skills during coverture were also excluded from the category of stridhan and deemed the property of her husband.This meant subscribing to the notion that a woman’s person and labour power belonged to the husband (Agnes 2000, 113). Under the various schools of Hindu law it was the local customs which gave women better rights to property. Customs were an important source of Hindu law and there were wide regional variations of local customs as well as variations among different castes in the same region.
In several regions there were local customs giving the daughter a plot of land, the earnings from which could be used by her for her won personal expenses.This was known as manjal kani in Tamil Nadu, katnam in Andhra Pradesh and haldi, kumkum or bangdi choli in Maharastra (Agnes 2000, 114). Women of the lower castes were out of the varna system and hence the code of sexual morality did not apply to them. They enjoyed greater freedom in matrimonial relationships. The custom of bride price prevailed in most communities and wives could obtain their freedom by returning the bride price. Divorce by mutual consent was accepted and negotiated through local caste panchayats (Agnes 2000, 114).
There were also matrilineal societies where property was inherited in the female line. Such practices prevailed among the Nairs of Kerala, in Tulunad of coastal Karnataka and the various tribes of North-east (Agnes 2000, 115). Continental and Common Law The Roman law of marriage and property, which derived its roots from Judaic law, was based on the notion of a patriarchal family consisting of wives, sons and slaves (Agnes 2000, 115). The head of the family acquired total control over the person, property and labour of all members of his household.The wife was treated as the ward of the husband and she had no independent identity (Agnes 2000, 115-116).
Divorce was not recognized in Europe (including England) until the advent of the industrial era. In pre-industrial Europe economic wealth and power were regulated through the concepts of status. Marriage became a crucial link in determining the status of both spouses and their children. This system facilitated the accumulation of property and power within recognized groups and enabled the landed families of England, Europe and colonial America to retain and increase their possessions.The Christian concept of holy wedlock gave a sacramental character to these unions. Divorce would have disrupted production, undermined security of land tenure, brought families into conflict and created acute problems over the succession of land (Agnes 2000, 116).
The merging of the husband and wife into a single legal personality was an appropriate legal form for a feudal society in which the home and the land around it formed the centre of production3. Under such principle, upon marriage the woman lost her legal existence. Marriage meant legal death. The woman could not contract, sue or be sued.All her individual property belonged to her husband and he could not only use it but even alienate it without her consent.
The woman held no corresponding interest in her husband’s freeholds, copyholds or leaseholds during coverture but it reverted to her upon the husband’s death. During widowhood she was entitled to dower (one third of the interest of all his property even after it was alienated) if she has produced a male heir for the husband. Under common law, property or pure personality or choses in action developed upon the husband’s heirs and she lost all access to it.Only the woman’s clothing and jewellery reverted to her, but if the husband was insolvent his creditors could claim these (Bromley 1976, 107). The husband’s right to his property was held in such high esteem that, even after betrothal, if the woman alienated her property without the consent of the groom, he could sue her for fraud of his marital rights (Agnes 2000, 118).
From the seventeenth century onwards the demands of the emerging capitalism rendered it necessary to redeem the land of its inalienable characteristics.Legislations were passed to facilitate alienation of land for the construction of factories, mines and townships. It is only during this period that women in England could stake their claim to hold and alienate their individual property (Burn 1972, 73-75). The Continental legal system changed its character after 1800 under the French Code Civilii (the code of Napolean). Under this, marriage assumed the characteristics of a civil and dissoluble contract.
Both spouses could make agreements in respect of their separate property at the time of marriage, and in default the concept of community of property prevailed.Under this concept, women acquired a right to the husband’s property. Property which belonged to the spouses was deemed to be the joint matrimonial property of both spouses, and upon divorce or separation they could claim a division of this property. In England the change was more gradual. In 1857 matrimonial jurisdiction in England shifted from the Ecclesiastical (Canon Law) courts to civil courts, and the Matrimonial Causes Act of 1857 secured English Women the right to a judicial separation.
Legally separated women could also hold separate property under a legal fiction, femme sole, and could apply to the court for a protective order against the husband and his creditors. In 1882 the Married Women’s Property Act empowered married women the right to hold separate property acquired after 1883. From this period on, married women’s right to hold property was consolidated gradually through a series of legislations enacted along with land-reform legislations. In 1935 the Married Women’s Tortfeasors Act finally abolished the notion of married women and alleviated their status to that of single women (Bromley 1976, 432-433).
