Open Access Research Article
GENDER INEQUALITY AND RELIGIOUS PERSONAL LAWS IN INDIA
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Article Details
GENDER INEQUALITY AND RELIGIOUS
PERSONAL LAWS IN INDIA
AUTHORED BY - MYTHRI
RAJ
Abstract
The intersection of gender justice
and religious personal laws in India reveals significant inequalities that
persist despite constitutional guarantees of equality. Various personal laws governing
Hindu, Muslim, Christian, and Parsi communities often reflect patriarchal
norms, adversely impacting women's rights in marriage, divorce, inheritance,
and guardianship. Landmark judicial interventions, such as the Shayara Bano and
Githa Hariharan cases, highlight the judiciary's crucial role in promoting
gender equality within these legal frameworks. The discourse also addresses the
Uniform Civil Code (UCC) as a potential means to unify disparate personal laws
and enhance gender justice. However, the UCC faces considerable opposition from
religious groups concerned about the erosion of cultural identities. A balanced
approach to implementing the UCC is essential, respecting religious pluralism
while advancing gender equality, underscoring the need for continuous legal and
social reforms to uphold constitutional values in India's diverse society.
KEYWORDS: Gender
Justice, Religious Personal Laws, Uniform Civil Code (UCC), Patriarchy,
Equality before Law
I.
Introduction
India is a diverse nation with a rich
tapestry of religious, cultural, and legal traditions. Just as there are many
different faiths, there are also a great deal of personal laws that regulate
the general populace of those different religions. The term 'personal laws'
encompasses the scriptural mandates and customary practices specific to a
religion. Among these, religious personal laws have historically governed key
aspects of family life, including marriage, divorce, inheritance, and
maintenance, often reflecting the unique customs and beliefs of various
communities. However, these laws, which differ across religious lines—Hindu,
Muslim, Christian, and Parsi, have been a focal point of debate, especially in
the context of gender equality.[1]
Despite constitutional guarantees of
equality under Articles 14 and 15, religious personal laws in India have been
criticized for perpetuating gender-based discrimination.[2]
While men often enjoy more rights and privileges, women are disproportionately
impacted by patriarchal norms enshrined in these laws. The actual reality of
women subject to these laws differs from the ideal of gender justice envisioned
in the constitution because these provisions frequently fall short of
safeguarding women's rights to equality and dignity. Depending on their
religious affiliation, women's rights and entitlements under these personal
laws range greatly, resulting in disparate standards of gender justice.
For instance, Muslim women have faced
issues such as unequal inheritance rights and the now-outlawed practice of
triple talaq, while Hindu women have historically been disadvantaged in matters
of property inheritance until recent reforms. Christian and Parsi women, too,
have faced inequities in divorce and succession rights.
This tension between religious
personal laws, and gender justice has led to significant judicial
interventions. Landmark cases, such as Shah Bano[3]
and Shayara Bano,[4] have
ignited debates on the need for reforming personal laws to align them with
constitutional principles of equality. At the same time, the call for a Uniform
Civil Code (UCC), as envisaged by Article 44 of the Indian Constitution, has
resurfaced in public discourse as a potential solution to harmonize personal
laws and ensure gender justice.[5]
Although there have been legislative
revisions in personal laws, especially in Hindu and Muslim laws, these changes
have typically been reactionary in nature, resulting from court rulings or
public outrage, rather than being proactive in promoting gender equality. Moreover,
there is still a great deal of opposition to any change of personal laws in
some religious communities, based on the arguments of religious autonomy and
the constitutional right to religious freedom.[6] The
challenge, therefore, lies in reconciling the principle of secularism with the
right to equality, as religious personal laws continue to serve as a site of
conflict between gender justice and religious tradition.
II.
Constitutional Framework and
Gender Equality
India's Constitutional framework includes
a number of measures, most notably Articles 14 and 15, that aim to protect
gender equality and prohibit discrimination. The "Right to Equality,"
as guaranteed by Article 14, requires that every citizen be treated equally in
front of the law. This fundamental tenet emphasizes that laws, including
personal laws must not discriminate on the basis of gender, caste, religion, or
any other basis unless doing so would be justified by a legitimate
classification.[7] To
strengthen the constitutional foundation for gender justice, Article 15 clearly
forbids discrimination based on religion, ethnicity, caste, sex, or place of
birth.[8]
However, religious personal laws,
which govern critical aspects of marriage, divorce, inheritance, and
maintenance, often perpetuate gender-based discrimination, especially against
women. This has led to calls for legal reforms, most notably through the
Uniform Civil Code (UCC) envisaged in Article 44, a Directive Principle urging
the state to move towards a common legal framework for personal matters across
all religious communities. While Article 44 is not enforceable by law, it
highlights the vision of a secular legal system that guarantees equal rights
for all citizens, regardless of religious affiliation.
In the World Economic Forum's Global
Gender Gap Report, India is ranked 114th out of 142 nations, with a score of
0.6455 (with 0 being the lowest and 1 being the highest).[9] It
has restrictions on resources and assets, son favoritism, restricted civil
liberties, discriminatory family codes, and more. The comprehensive scope of
personal status law necessitates an examination of the systemic consequences
that gender discrimination may have on women's equality, as well as the
influence it has on women's ability to exercise specific rights and their
fundamental and human rights.
This stark gender disparity in India
can be attributed, in large part, to the various personal laws that are
inherently gender-biased. These laws, rooted in religious and cultural
practices, often place women at a disadvantage, particularly in areas such as
marriage, inheritance, and custody.[10]
The unequal treatment codified within these personal laws perpetuates systemic
gender inequality, limiting women's ability to access resources, make
independent choices, and exercise their civil and fundamental rights fully.
III.
Subjugation and
Discrimination in Religious Personal Laws
Religious
personal laws in India reflect a deep-seated patriarchy, often entrenching
gender inequality in matters of marriage, divorce, inheritance, and
guardianship. Despite constitutional guarantees of equality, the legal
frameworks governing Hindu, Muslim, and Christian communities frequently
exhibit biases that disproportionately affect women. These personal laws,
although intended to respect religious customs, have perpetuated gender-based
discrimination, creating a legal environment where women are often subjugated
in the name of tradition.[11]
A. Hindu Personal Law:
Inheritance, Marriage, and Divorce Disparities
Under Hindu personal law, Section 14
of the Hindu Succession Act, 1956, grants women complete ownership of their
stridhan (personal property gifted to her, typically by her parents).[12]
However, this provision does not extend to the assets of her spouse, limiting
her financial security within the marriage to the right to receive maintenance.
This demonstrates a significant shortcoming in providing women with equal
financial rights in the marriage. Moreover, the traditional exclusion of Hindu
women from coparcenary rights (joint family property) continues to reflect a
patriarchal bias, despite amendments in some states such as Andhra Pradesh,
Maharashtra, Karnataka, and Tamil Nadu.[13]
The 2005 amendment to the Hindu Succession Act, which aimed to provide
daughters with equal rights as sons in coparcenary property, has not been
uniformly implemented, particularly in rural regions where patriarchal customs
continue to prevail.
The inequality becomes starker in the
realm of divorce. Husbands seeking divorce often cite trivial reasons, such as
a wife’s refusal to cook or wear traditional symbols like sindoor or
mangalsutra, as grounds for divorce. These allegations frequently paint women
as failing to uphold traditional gender roles.[14]
Men may even invoke Section 498A of the Indian Penal Code—a law meant to
protect women from cruelty in marriage—to file counter-claims during divorce
proceedings, further entrenching a narrative of female non-compliance with
traditional duties.[15]
In contrast, women often file for divorce based on life-threatening
circumstances, including physical and emotional abuse, dowry harassment,
eviction from the matrimonial home, and denial of maintenance or access to
their children. This stark contrast highlights how men can rely on superficial
claims rooted in patriarchal expectations, while women’s pleas for divorce
often reflect fundamental violations of their rights to dignity and safety.
Further, Section 24 of the Hindu Succession
Act, 1956, which denied inheritance rights to widows who remarry, reflects an
egregious gender bias that historically penalized women for remarrying.[16]
Though this section has been repealed, its existence underscores the
deep-seated societal view of women as subordinate, especially in matters of
family wealth and inheritance. The bias extends to guardianship, where Section
6(a) of the Hindu Minority and Guardianship Act, 1956, designates the father as
the primary guardian of a legitimate child. A mother is relegated to a
secondary role, and only in the father's absence is she considered the primary
guardian.[17] Though
both parents now hold equal status as natural guardians under the law, societal
norms continue to view the father as the main authority figure, marginalizing
the mother’s role in the child’s upbringing.
B. Muslim Personal Law: Polygamy, Iddat,
and Gender Imbalance
The Muslim Personal Law (Shariat)
Application Act, 1937, reflects patriarchal traditions that subjugate women,
particularly through practices such as polygamy.[18]
Under Muslim law, a man is permitted to marry up to four wives, provided he
meets certain conditions, including treating each wife equally. This practice
inherently places men in a position of power, granting them privileges that are
not extended to women. Polygamy contributes to an unequal familial power
dynamic, where a woman’s autonomy and emotional well-being may be compromised.
This structural inequality affects women not just emotionally, but also
financially and socially, as they often struggle to secure equitable treatment
within polygamous marriages.
Another discriminatory feature of
Muslim personal law is the concept of iddat, the waiting period a woman must
observe following divorce or the death of her husband. During iddat, a woman is
prohibited from remarrying. While the iddat period has religious significance,
it imposes limitations on women’s personal freedom, confining them to social
expectations of mourning or separation. The paternalistic undertone of this
practice assumes women’s dependence on their husbands and reinforces the belief
that women need a prescribed period to “purify” themselves before re-entering
society or a new marital relationship.[19]
Men, on the other hand, face no such restrictions, underscoring the gendered
nature of this provision.
C. Christian Personal Law: Inheritance
Disparities
Christian personal law in India,
governed by the Indian Succession Act, 1910, also reflects significant gender
biases, particularly in matters of inheritance. Christian daughters are
entitled to only one-fourth of the shares that sons receive, and any property
exceeding this limit automatically passes to male heirs. This system of
inheritance reinforces a patrilineal structure in Christian families, devaluing
women’s financial rights and perpetuating economic dependence on male
relatives.[20] The
unequal inheritance laws hinder Christian women from enjoying the same level of
financial security and autonomy as their male counterparts. Moreover, this
disparity is a clear reflection of the paternalistic approach embedded in
Christian family law, where the male members of the family continue to hold
dominant control over property and wealth.
D. Parsi Personal Laws
Parsi personal laws are governed by
the Parsi Marriage and Divorce Act, 1936, and inheritance is covered under the
Indian Succession Act, 1925. While these laws have undergone reforms, gender
disparities still exist. Parsi women have historically faced restrictions,
particularly in matters of divorce and remarriage. For instance, a Parsi woman
who married a non-Parsi would lose her right to inherit her family’s property,
though this has been partially mitigated through legal reforms.[21] While
the Indian Succession Act, 1925, provides for inheritance rights for Parsi
women, there remain some patriarchal biases in practice. A male heir often
enjoys a more prominent role in managing the estate, and women may face
resistance in asserting their legal rights.
These instances of gender
discrimination and subjugation in Hindu, Muslim, Christian and Parise personal
laws demonstrate the entrenchment of patriarchal norms within the legal
frameworks governing personal matters in India.
IV.
Role of the Judiciary
in Addressing Gender Inequality
The
judiciary has often adopted judicial activism to reform personal laws, stepping
in to uphold constitutional principles of equality, especially in the absence
of legislative intervention. However, there have been instances where courts
have exercised judicial restraint, recognizing the sensitive nature of personal
laws rooted in religion, and leaving reforms to the legislature. Despite the
challenges, judicial activism has been crucial in pushing for gender equality
within religious personal laws.
The Shayara
Bano case, also known as the Triple Talaq judgment, stands as a landmark in the
pursuit of gender justice in India.[22]
The five-judge bench of the Supreme Court, by a 3:2 majority, declared triple
talaq unconstitutional. The Court held that the practice was arbitrary, as it
permitted men to divorce their wives without due process or any reasonable
grounds, thereby infringing upon Article 14. The majority opinion emphasized
that such a practice, which provided men with unchecked power to dissolve a
marriage, was inherently unequal and discriminatory towards women. Further in
the case of Githa Hariharan vs. Reserve Bank of India,[23]
the Supreme Court addressed gender bias in guardianship under the Hindu
Minority and Guardianship Act, 1956. The Act gave fathers a superior right to
be the natural guardian of a minor child. The Court held that the mother could
also be considered a natural guardian, challenging the patriarchal assumptions
in the law and upholding the rights of mothers.
Through
these landmark rulings, the judiciary has played a critical role in advancing
gender equality within religious personal laws. The courts have balanced the
need to respect religious customs with the imperative to uphold constitutional
rights, fostering greater protection for women in matters of inheritance,
marriage, divorce, and guardianship.
V.
Way Forward
The Uniform
Civil Code (UCC) has been a long-standing subject of debate in India,
particularly as a means of ensuring gender equality. Proponents argue that a
UCC, which would replace the diverse personal laws governing different
religious communities with a single, unified legal framework, is essential for
upholding constitutional principles like equality before the law and protection
against discrimination.[24]
Under the current system, personal laws often perpetuate gender inequality,
especially in areas like marriage, divorce, inheritance, and maintenance, where
religious practices discriminate against women. A UCC would create uniform
legal standards that provide equal rights to men and women, regardless of
religious affiliation, thereby promoting gender justice. However, the
implementation of the UCC faces significant challenges, particularly from
religious groups that see it as an infringement on their freedom of religion
(Article 25). Many religious communities fear that a uniform code could dilute
their cultural and religious identity, as personal laws are often intertwined
with religious practices. The opposition is strongest among minority groups,
particularly Muslims, who view the UCC as a threat to their autonomy and a
potential imposition of majoritarian Hindu norms.[25]
The
feasibility of the UCC in a pluralistic society like India is a complex issue.
India’s diversity, with its multitude of religions, customs, and traditions,
makes the task of crafting a common legal framework challenging. Any move
towards a UCC must be carefully balanced, ensuring that it promotes gender
justice while also respecting religious pluralism.[26]
A gradual and consultative approach, which builds consensus among various
communities, may be more effective in implementing the UCC, ensuring that it
does not become a tool of alienation but rather one of empowerment and
equality.
Ultimately,
gender equality should not be compromised, and the state must continuously
strive to uphold constitutional values in both legal and societal domains.
[1] Nishtha Jain, ‘Gender Inequality
in Hindu and Muslim Personal Laws in India’, (2018), Volume 1, Issue 3,
International Journal of Law Management & Humanities, 1.
[2] Ibid
[3] Mohd. Ahmed Khan v. Shah Bano
Begum & Ors. (1985) AIR 945
[4] Shayara Bano v. Union of India
& Ors. (2017) 9 SCC 1
[5] INDIA CONST. art. 44
[6] INDIA CONST. art. 25
[7] INDIA CONST. art. 14
[8] INDIA CONST. art. 15
[9] 2024 Gender Equality Report, https://www.unwomen.org/ accessed 20
September 2024.
[10] Tanja Herklotz, ‘Religion
Personal Laws in India from a Women’s Rights Perspective’, (2015), South Asia
Chronicle 5/2015, Südasien-Seminar der Humboldt-Universität zu Berlin.
[11] Juneja, D. (2024) Paternalistic
approach of family law towards woman, Live Law, https://www.livelaw.in/articles/paternalistic-approach-of-family-law-towards-woman-249601 accessed 21 September 2024.
[12] Hindu Succession Act, 1956, §
14.
[13] Professor Kusum, Family Law
Lectures, Family Law I, (Third Edition, Lexis Nexis, Butterworths Wadhwa,
Nagpur 2011) 356
[14] Archana Parashar, ‘Gender
Inequality and Religious Personal laws in India’, (2008), Vol. XIV, The Brown
Journal
of World Affairs, Issue 2, Spring/Summer,103.
[15] Indian Penal Code, § 498A.
[16] Hindu Succession Act, 1956, §
24.
[17] Hindu Minority and Guardianship
Act, 1956, § 6(a).
[18] Lal Mohd., ‘Marriage and Divorce
in Islam and Religious Tolerance’, (30 Jul 2007), Ontario Consultants on
Religious Tolerance.
[19] Supra at note 14
[20] Supra at note 1
[21] Goolrokh M. Gupta v. Burjor Pardiwala
& Ors. SLP(C) 18889/2012
[22] Shayara Bano v. Union of India
& Ors. (2017) 9 SCC 1
[23] Githa Hariharan vs. Reserve Bank of India, 2001 7 SCC 740.
[24] Madhushala, Need for
Uniform Civil Code in India: A human rights perspective, http://centreright.in/2011/10/need-for-uniform-civil-code-in-india-a-human-rights-perspective
accessed 21 September 2024
[25] Ibid.
[26] Donna. J. Sullivan, ‘Gender
Equality and Religious Freedom: Toward a Framework for Conflict Resolution,’
23 New York University Journal of International Law
and Politics 795.
Article Information
GENDER INEQUALITY AND RELIGIOUS PERSONAL LAWS IN INDIA
Authors: MYTHRI RAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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