Religious Personal Laws in India: Feminist Jurisprudential Perspective

Religious Personal Laws in India: Feminist Jurisprudential Perspective

Sonia K. Das (Government Law College, Thrissur, India)
DOI: 10.4018/978-1-7998-2819-8.ch023

Abstract

Contemporary India is a multicultural society that is pluralistic with regard to family laws. Different groups in India have separate religious personal laws that India's secular state is reluctant to reform. These laws deny even formal equality in personal relations. They have generated debate about the meaning of gender equality in India. Women occupy a less advantageous position in the arena of religious personal laws, which in fact goes against the Constitutional guarantees of equality and also cherished human rights. In India the constitutionally guaranteed gender equality is to be juxtaposed with the harsh societal realities. A uniform civil code (UCC) with all the existing discrepancies and inequalities is not the solution for the issue. The existing laws governing family relations should be critically analyzed and redefined from a feminist jurisprudential perspective, which of course should be the basis of UCC.
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Introduction

Contemporary India is a multicultural society that is pluralistic with regard to family laws. Different religious groups in India have separate religious personal laws. The matters like marriage, divorce, maintenance, succession, adoption, guardianship etc. are regulated by the personal laws of various religious groups. A perusal of many of these laws reveals that women do not enjoy the same rights and privileges as men. These laws in certain instances deny even formal gender equality and hence often have generated debate about the meaning of gender-justice in India.

It is a matter of utter dismay that discrimination becomes legitimatized when it is enshrined in various laws. More serious astonishment is that sometimes even judiciary has accepted such provisions without much reluctance. The chapter analyses various provisions of family laws from a feminist jurisprudential perspective which are in fact against the cherished human rights and also fundamental rights guaranteed in the Constitution of India.

Significance of Family Law

Family law refers to rules governing the formation of marriage and its dissolution; the respective rights, obligations and capacities of spouses; the relationship between parents and children; marital property; child custody or guardianship; and inheritance. Legal constructions of the status of women in the family are symbolically important as it allocates rights, responsibilities, and privileges between men and women, parents and children, brothers and sisters, and so forth (Htun &Weldon, 2011). Historically family law has been non-state laws (Charrad, 2001). Personal law system is in fact a legal arrangement that has been truncated over a long time due to many influences (Galanter &Krishnan, 2001).British policy on family law rested on the principle of “noninterference” in the personal laws of the Hindu and Muslim religious communities, and this continued even after Independence (Williams, 2006). Under the British rule ,personal laws were not administered by members of the religious group themselves.It was administered by a secular judiciary (Parashar. 2013). Thus, the application of Hindu and Islamic laws were transformed through processes of translation, interpretation and adjudication by British judges and came to be described as Anglo-Hindu and Anglo Mohammadan laws. There are several customs and practices which have later become personal laws and are even now continuing but are not in consonance with cherished principles of feminist jurisprudence nor human rights as well as constitutional morality. The Constitutional mandate of the Uniform Civil Code still remains as a debatable topic.

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Right To Inherent Dignity: Crux Of Human Rights, Fundamental Rights And Feminist Jurisprudence

The underlying principle of all human rights documents is the right to live with inherent human dignity. All other human rights converge at this focal point. According to Article 21 of the Constitution of India. “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Article 21has been interpreted by the Supreme Court in various cases including Maneka Gandhi v. Union of India(1978)making it crystal clear that the right to life does not mean an animal existence, but the right to deal with human dignity.

Human dignity is the foundational concept of the worldwide human rights system. The importance of human dignity is laid in The UN Charter, Universal Declaration of Human Rights and other several international covenants as also in the Constitution of India.

Law is an instrument of social change (Friedmann,1959). Women empowerment is a social change in which law has a very important role. It can alter the existing power equations in society and bring about an equilibrium.

Key Terms in this Chapter

Sodomy: Anal intercourse.

Zihar: A mode of divorce under Muslim law.

Mitakshra: A school of Hindu law.

Ila: A mode of divorce under Muslim law.

Nikah: Muslim marriage.

Instrument: A formally executed written document.

Khula: Procedure through which a woman can divorce her husband.

Irrevocable: Final.

Bestiality: Sex with animals.

Decree: An official order of the court.

Mubarat: Divorce by mutual consent.

Summumbonnum: The ultimate goal.

Coparcener: One assumes a legal right in his/her parental property by birth only.

Muta Marriage: Temporary marriage.

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