Report No. 66
9.5. Recommendation to extend section 7 to Hindu and Muslim women.-
We now come to another point concerning section 7. It is obvious that section 7 and also sections 4 and 5-provide for exceptions to the concept of the common law that the personality of the married woman merges with that of her husband on her marriage and that, as such, she cannot sue or be sued without impleading her husband even in respect of her separate property. The latter part of section 2 of the Act, however, provides that these provisions (sections 4, 5 and 7) do not apply to certain married women specified in section 2-e.g., Hindu and Muslim women. We are of the view that a statutory provision to the effect that the disability does not apply to any married woman in India should, in suitable language, be inserted in the Act.
9.5A. Extension of principle of section 7 to Hindus, Muslims etc.-
No doubt, section 2 of the Act of 1874 shows that Hindus and Muslims are, taken as governed by their personal law, which does not recognise the legal unity of the spouses. But, in our view, the principle incorporated in section 7 should be expressly extended to Hindus, Muslims etc. in order to avoid any arguments that women belonging to these communities are subject to the doctrine of unity.
We think that opportunity should be taken of making the section comprehensive in this regard.
(a) so far as women other than Hindu and Muslim women are concerned, the amendments recommended by us will make the provisions more comprehensive than at present;
(b) so far as Hindu and Muslim women are concerned, the amendment recommended will re-state the position which is now accepted, not by virtue of the Act of 1874, but by general law.
The new provisions will, thus, avoid doubts in all respects as to the correct legal position in regard to the liability of married women in matters that could be raised in civil litigation.