Saniya Dogra

Abstract

India’s personal laws, steeped in religious traditions, often enshrine systemic gender inequalities that conflict with constitutional guarantees of equality under Articles 14  and 15. Despite its mandate to uphold justice, the higher judiciary has frequently evaded directly addressing the patriarchal biases within these laws, citing cultural sensitivity or legislative prerogative. This article critically examines the judiciary’s role in perpetuating or challenging these inequities through landmark cases and explores pathways for reform, including a Uniform Civil Code (“UCC”) or gradual legal amendments. It calls for bold judicial interventions to reconcile secularism with gender justice, emphasizing that true equality cannot coexist with laws that subjugate half the population in the name of tradition.

Introduction

In a society that aspires to uphold secularism and balance the principles of constitutional equality with religious freedom, the role of its judiciary, especially the higher judiciary which establishes precedents for others to follow, becomes pivotal. However, when the very legal structures fail to address these concerns and the patriarchal traditionalist society perpetuates systemic gender inequality, the judiciary’s responsibility to uphold justice becomes both complex and critical. 

At the heart of this tension lies the judiciary’s dual role as a protector of the constitutional values and as a guardian of both, equality and religious freedoms. This article delves into the challenges posed by religious personal laws, critiques the higher judiciary’ role in failing to call out the internalised patriarchal ideas in personal laws that perpetuate inequalities into our society, and lastly explores some potential pathways for reform.

Personal Laws and Gender Inequality

In India, matters such as Marriage, Divorce, Adoption, Inheritance and succession etc. are governed by personal laws derived from ancient customs and scriptures. Hindus, Muslims, Christians, and Parsis follow distinct practices which are derived from their customary and religious practices. The various scriptures from which personal laws are developed, however, promote a patriarchal structure, giving women a subordinate position than men. “A woman cannot be herself in the society of the present day which is an exclusively masculine society, with laws framed by men…” All religious personal laws manage to treat women less favourably than men. 

Religious communities and clerical positions within them historically have been male-dominated, who boycott and discourage any change to the status quo of their respective personal laws. For instance, Vrinda Narain in Reclaiming the Nation observes that gender bias in Muslim personal law persists because the male-dominated leadership of the Muslim community demands women prioritize religious affiliation over their gender identity and the State has abandoned Muslim women to patriarchal interpretations of personal law and has legitimized their continued subordination. The Shariat Courts or the Darul Qazas, are courts which adjudicate based on Islamic law. In the Darul Qaza, “only obedient, moral, battered and materially neglected women are deemed worthy of the qazi’s support.” While holding such a patriarchal mindset, these clerics have a perception of themselves as being “extremely sympathetic to and solicitous of the welfare of women… they sincerely believe, that their religion is exceptional and superior to other faiths to the degree that it accords women respect and care ” There is not only a problem with the laws themselves but also the system that governs the personal laws, which suffers from shortcomings- particularly the higher judiciary in India. 

Catherine MacKinnon observes that while Indian Jurisprudence has been progressive strides in some areas with regards to the rights of women, this progress has not extended to personal laws. It can be seen that, even though courts might ultimately decide in the favour of women, they usually do so not on the grounds of gender equality. Courts have regularly avoided an in-depth analysis with regard to personal laws and have circumvented the questions of such discrimination. The courts have either done this by holding that personal laws are not “Laws” under the purview of Article 13, by drawing on the argument of separation of power and passing the burden back to the legislator, or by arguing that the discrimination was not solely passed on “only on the grounds of sex” as required under Article 15(1).

Even in the cases where women claimants have won, the judiciary has avoided subjecting personal laws against the test of equality. To illustrate, in the case of Mary Roy v State of Kerala, the Supreme Court ruled that Syrian Christian Women were entitled to equal share in their father’s property but the problematic provision of the Travancore Christian Succession Act, under which women only received a quarter of their male siblings or Rs 5,000 whichever was less, was struck down on a ‘Technical ground’ rather than addressing its inherent inequality. Similarly, in the case of Madhu Kishwar & Ors v State of Bihar, the court in its majority judgement refused to strike down certain provisions of the  Chota Nagpur Act, 1908,  as violative of the right to equality, stating that this would bring about chaos in the existing law rather they opted to “read down” the discriminatory provision. A similar approach was taken in Githa Hariharan where the Court “read down” Section 6  of the Hindu Minority And Guardianship Act, 1956,  which designated the father as the natural guardian of a child, with the mother as secondary, rather than declaring it  unconstitutional. The courts have been reluctant to engage with the constitutionality of personal laws. This reluctance reflects a broader institutional struggle to reconcile the principles of secularism and gender justice, leaving many women trapped in a web of patriarchal interpretations legitimized as “personal laws.” This could be because of various reasons, MacKinnon states that “in cases challenging sex inequality in personal laws, Indian Courts appear paralysed by the fear of being tarred by the brush of cultural insensitivity.”

Reforms and Potential Solutions

Having examined these challenges and their persistence, there is no doubt that this needs a solution to address the inequalities embedded in personal laws. One potential approach is the introduction of a UCC, which aims to replace religion-based personal laws with a common framework rooted in constitutional principles. Personal laws as they stand often violate the equality provisions enshrined in Articles 14 and 15 of the Indian Constitution. Additionally, the directive principle in Article 44, which advocated for a UCC, highlights that the ideal of secularism remains unattainable as long as disparate and discriminatory personal laws persist. Further, international conventions, including the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) and the Universal Declaration of Human Rights strengthen the case against gender based discrimination in personal laws by advocating for equality and non-discrimination. The State of Goa has a UCC  which confers equal rights among men and women in most regards.

Archana Parashar in ‘Just Family Law’ argues that personal laws are human-made constructs and are not “immune” to changes. She contends that religion-based ‘customs’ should not even be classified as “law.” Giving them the label of “law” grants them undue legitimacy and an implied immunity (like under Article 25) from scrutiny from questioning them despite being inherently discriminatory or outdated and may perpetuate gender discrimination. One suggestion is an ‘optional code’, which would be a “sex-equal family law” available to all religious communities only with the consent of the women of the community. However, the responsibility for opting into this code would rest entirely on individual women, placing the burden solely on them to navigate the legal system; similarly, she might also face social coercion and community costs that would come with opting for the code.

An alternate approach could involve smaller, targeted changes which lie in gradual and consistent reforms within the existing personal laws, as a full- fledged UCC or an optional code might possibly situate women, who are already in a minority position in an antagonist relationship against their own communities. In today’s context, marked by cultural diversity, prolonged subordination and isolation of women from equality at par with men calls for a, “gradual changes that result from their collaboration with their male counterparts to enhance their communal influence vis-a-via other members and improvising living standards of their families and of the community itself.” Such changes aim to strengthen their communal influence, improve the living standards of their families, and uplift the community as a whole in relation to other groups. This step-by-step reform, rooted in cultural context and gradual societal change, appears to be a more promising and sustainable path toward achieving gender equality.

Conclusion 

The intersection of gender and personal laws in India reveals a deep-rooted conflict between Constitutionally enshrined promises and cultural traditions. While the judiciary holds the power to bridge this gap, it can be observed that it has been reluctant in directly addressing systemic discrimination within personal laws. The path forward requires bold judicial interventions, legislative reforms, and a society willing to prioritize gender justice over archaic traditions.

About the Author: Saniya Dogra is a third year student at the O.P Jindal Global University pursuing a B.B.A LL.B degree. Saniya has a profound interest in Constitutional Law and Criminal Law and is keen on contributing to meaningful discussions and creating informative content in these legal fields.

Image Source: Personal Laws in India – ClearIAS