Gender Inequality and Religious Personal Laws in India

Author(s): Archana Parashar

Source: The Brown Journal of World Affairs , SPRING/SUMMER 2008, Vol. 14, No. 2
(SPRING/SUMMER 2008), pp. 103-112
Published by: Brown Journal of World Affairs

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 Gender Inequality and Religious
Personal Laws in India
Archana Parashar
Associate Professor
Macquarie University

Contemporary India is a multicultural society that is pluralistic with regards to

religious law. Different groups in India have separate religious personal laws (RPLs),
which India's secular state is reluctant to reform. However, these laws have gener
ated debate about the meaning of gender equality in India, since all RPLs to various
extents give women fewer rights than men, but Indian women have been promised
equality as a constitutional right. Though the RPLs allow for inclusiveness in religion,
the history of these laws in India shows that they have been used selectively as a tool
of governance and often to the disadvantage of women. In the past, feminists argued
that various differences of identity—such as race, ethnicity, and sexuality—should be
recognized and accounted for in the law. But in the case of India's cultural pluralism,
religious difference comes into conflict with gender equality. I argue for replacing the
religious personal laws with gender-just family laws. Though this argument may seem
exclusionary, cultural identity and gender justice do not have to be antithetical values.
One way of pursuing both goals is to keep the historical and social specificities in the
forefront of any discussions. It is possible to argue for common rights for all women
by re-conceptualizing the feminist project as one of constructing inclusive legal theory
that is sensitive to demands of differences but also those of justice.
This article is divided into four broad parts. The first part explains the origin
of the concept of religious personal laws and their selective reform by the state. The
second part traces the development of various feminist legal responses to the issue of
gender equality and the post-structural proliferation of differences. Here an argument
is made for contextualizing the demand for recognizing differences and examining
whether feminists can argue without contradiction that different religious personal

Archana Parashar is an associate professor in the Division of Law at Macquarie University. Her research
is in contemporary legal theory, with emphasis on social justice, legal education, discrimination law, and
family law. Her most recent book is Redefining Family Law in India.

Copyright © 2008 by the Brown Journal of World Affairs

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Archana Parashar

laws can be replaced with a common family law. The third part illustrates how the
shape of RPLs has repercussions for the design and scope of other laws. The example
of domestic violence legislation is used to argue that law can recognize the different
social contexts of women in India and women in the global North, but must also pur
sue the goal of justice. Legal feminists must carry the responsibility of generating legal
discourse that can be context-specific. The fourth and last part of the article develops
an argument for a reconceptualizing of categories that allow for pursuing differences
and justice together.

The Origin of the Concept of Religious Personal Laws

India's legal system is a common law system—a relic of British imperialism that is at the
same time very different from the original British common law. During colonization,
novel ideas of utilitarianism and legal positivism informed many English innovations
in India.' The usual organic relationship between a legal system and its society was
violently disrupted doubly by this experiment. Indians came to have a legal system
developed in response to the needs of a very different society, that of England. But
whereas laws in England have abandoned or modified most of these legal concepts,
India maintains the "tradition" of the colonial laws. The concept of religious personal
laws is one of those ideas.2

Historically, in Europe, the law made a distinction between personal (often ecclesi
astical) laws and the legal codes of the territory as a whole. In India before colonization,
however, Hindus and Muslims—with very few exceptions—were governed by their
own respective laws. Colonization in India happened in a complex and geographically
varied manner. Different parts of the country came under colonial control under dif
ferent legal arrangements. British laws were introduced gradually and selectively and
"personal matters" were to remain governed by the religious laws of these communities.
However, the content of personal laws was determined almost randomly in the successive
charters and regulations. Moreover, the substantive content of these rules was modified

in judicial and legislative actions. The judicial role in this regard was significant even
if unintentional. Gradually legislative changes were also introduced, but despite these
changes the idea has persisted that the RPLs are immutable.3
The practice of applying laws of religious communities in personal matters was
regarded as the "saving" of religious laws, in part because of the language used. Different

communities in India were identified by the religions they followed and the personal
laws that the English administrators had decided to save were also in turn understood as
religious, although in practice they could be community customs rather than scriptural
rules. Thus religious laws and personal laws became interchangeable, and in the process

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 Gender Inequality and Religious Personal Laws in India

it was forgotten that before the arrival of the British administrators, all aspects of the
laws of Hindus and Muslims were religious. Moreover, British policies determined
what should be designated as a personal matter, and of course the final shape of the
laws governing such personal matters—whether administered by the English courts or
legislated by the colonial parliaments—modified the religious laws of the people.
One marked feature of most RPLs is that women have fewer rights than men.The

history of legislative reforms of RPLs in the independent Indian state shows that the
goal of gender equality is frequently subordinated to other political considerations. The
state has selectively used the argument of religious Qf|g pi 3 T k 6 d f 6 31U T 6 Of
sanctity of these laws but at other times introduced , _ . ..
I . I . I w , r l , . . most RPLs is that women
legislative changes. Most of the changes have been
introduced in the Hindu Laws but the changes in ll3V6 feWei" fïglltS than men.
the minority communities' laws have been more halting. Ostensibly the minority status
of some communities has been given priority over gender equality, but Hindu women
have also not managed to gain complete parity of rights with men. The most recent
reform, in 2005, of the Hindu Succession Act was proposed in order to make daughters

equal coparceners; however, the legislation nevertheless still leaves women with lesser
rights than men.4 It is in these particular circumstances that gender equality for Indian
women is more likely to be achieved by introducing a regime of common family law
that would formulate rules so as to recognize the principle of gender equality as the
defining feature of the law.

Cultural Identity and Common Family Laws

The dilemma faced by feminists asking for a common family law for all Indian women
is that they must simultaneously answer the mainstream critics of feminism who
challenge the demand for gender-sensitive laws and the men and women of minority
communities who demand respect for cultural identity. In the following part I will
briefly explain the context of feminist critiques of mainstream understandings of law
and then argue that difference cannot be treated as good per se but must be pursued
in a specific context.

Uniform Law as the Guarantor of Fairness and Justice

Liberalism and positivism have joined to formulate a view of modern law as autono
mous of the economy and society, in contrast to earlier conceptions of law that relied
on historical or theological explanations.5 In this widely accepted view, the legitimate
authority of law is dependent upon universal, neutral, and abstract principles. The law
defines who is a legal subject and everyone who meets these requirements is entitled to

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Archana Parashar

the same rights irrespective of their religion, wealth, gender, or any other characteristic

Liberal legalism in particular finds its legitimacy in this guarantee of non-arbitrariness,

of fairness to everyone irrespective of their specific characteristics or differences.

Legal feminists have extensively critiqued claims about the neutrality and univer
sality of law. Traditionally feminist engagements with law are divided into three broa
phases.6 The earliest feminists, liberal feminists, argued for equal legal rights based upo
the idea of the essential sameness of women and men.7 However, even after wome

gained formal equality it was obvious that men and women remained in a gend
based hierarchical relationship.8 Feminists now explained that neutrality of law in effec
maintained male privilege while portraying legal rules as gender neutral.9
This in turn gave rise to the sameness-difference debate in the feminist discourse:

whether law should be gender neutral or gender specific.10 Feminists who demanded
that the different needs and interests of women be acknowledged in law had to confron
the charge that any deviation from neutral rules amounts to special or preferential trea
ment. The emphasis on difference has become more complex with the advent of post
structural critiques about the essentialism of modernist thought. Post-structural theor
has challenged the idea of universal rules on the grounds that any closure of definition
is exclusionary and therefore unjust. The category of woman is thus deconstructed to
make evident the differences among women (e.g., race, ethnicity, sexuality, etc.).
woman is not a unified category, the implication is that not all women have simil
interests, and thus feminist politics of reform and especially of legal reform becomes
problematic. This development, known as the anti-essentialism idea in post-structural
theory, has a consequence that cultural pluralism often comes at the cost of gend
equality.111 wish to challenge this reification of differences and argue that recognizin
differences is not a virtue in itself.

These developments of western feminism did not have exact parallels for women
in India. The political and social context for women in India was very different from th
world of European women. The formal equality guaranteed in the Indian constitution
has not been understood as extending to gender parity in RPLs. This contradiction rest
on the use of religious (minority) identity for political purposes. The same constitution
that guarantees gender equality also ensures the right to religious freedom and minority

identity. That Indian women of different communities have yet to gain complete gender
equality lends credence to feminist political philosopher Susan Moller Okin's suggestion
that multiculturalism is bad for women.12 However, rather than simply reverting to
the orthodoxy of universal rights, it might be more useful to contextualize the deman
for different rights. It could and should be made incumbent upon those demandin
different rights to explain how these demands are not antithetical to gender equality.
The feminist challenge therefore is to acknowledge that gender equality demands more

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 Gender Inequality and Religious Personal Laws in India

than gender-specific laws; the very legal concepts need to change.13 This is the radical
potential of feminist legal theory—it can reorient all legal theory to become more
contextual and inclusive. Thus whether universal laws or different laws will serve the

interests of women can only be answered in a specific context.

Differences Matter

The challenge now is to re-conceptualize categories of law in a manner that women's

interests are neither dismissed nor marginalized.14 Post-structuralism does not mean
either that all women must be treated the same or that no general rules can be for
mulated. Rather it demands that attention is paid to the consequences of recognizing
differences. Therefore feminist analyses of law must constantly theorize the complex
relationships between women and law by conceptualizing law as a site of struggle,
meaning that law is not a pre-given or final. It is always an outcome of contestation
and women like any other community have to constantly argue for gender-just laws.15
Moreover, what constitutes gender justice can only be a contingent definition under
constant scrutiny, always available for redefining—which allows for many different
voices to inform the content of law. This can be illustrated with a brief analysis of the
enactment of domestic violence legislation in India.

Religious Personal Laws and Other Laws

The enactment of the 2005 Domestic Violence [Prevention] Act (DVA) in the Indian
Parliament raises a number of relevant issues for feminists seeking to understand law as
a site of struggle. It is also an example of how the "wrong" of domestic violence needs
very different remedies for women of Northern and Southern nations. The differences
between the conditions of women in different societies ought to be recognized but
always with the proviso that such recognition leads to a just or fair outcome. Women's

groups' demand for a law on domestic The SO-CUlled TeligiOUS personal

violence was reiterated by the National , . . ,
n . . , w if * * laws deny women even formal
Commission tor Women and later adopted
by the government.16 It is reasonable to ask legal equality in personal relations.
what prompted the women's groups to articulate this demand for a legal response to
violence against women and what is it that the backers of the act hoped to achieve.
Domestic violence arises in a specific socioeconomic context for most Indian women.
The lack of real economic independence of most Indian women underpins the cultural
construction of women as dependents.17 The so-called religious personal laws deny
women even formal legal equality in personal relations. In this context it is no surprise
that domestic violence is a real problem. The efforts of women's groups to name this

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Archana Parashar

problem and to seek legal redress for it are understandable but are informed by certa
problematic ideas about the law.18

The DVA is an example of the effort to name certain social realities as a gender
specific harm suffered by women in India. Naming domestic violence as a subject
civil law is an important re-conceptualization. The proposed remedy for domesti
violence however, is less than encouraging. The DVA has defined the major issue
the "right" of the woman complainant to stay in the matrimonial home. Thus when a
woman, subject to violence, makes a legal complaint, the courts are empowered to allow
her (to the exclusion of the violent husband) to occupy the home. In the absence
this law her only option would be to walk out of the house. Presumably, this law give
her time to make arrangements for getting out of a violent marriage, but this is whe
the wider social, economic, and cultural conditions block her exit. The high cultur
premium on the idea of a woman's place in the husband s house is a social reality for
most women. The economic underpinning of this cultural norm is the fact that most
women are financially dependent. Furthermore, they cannot realistically expect either
maintenance or a share of property on divorce. The right of residence in the matrimoni
home (legally the husband s house) therefore, is an empty achievement. The woman ca
not live there indefinitely and nothing else in her circumstances has changed to enabl
her to be financially independent. Even if this law is a limited advance, why are Indian
feminists so modest in their demands? No doubt they are acknowledging the particula
social realities of Indian women, but a more integrated response is required.
The domestic violence law is as much limited by the wider social, economic, and
political contexts as our failure to challenge the inequalities built into the religiou
personal laws. A woman who seeks the protection of the DVA will invariably be e
nomically dependent, and that dependence in itself is to a large extent underpinn
by various laws. For example, the lack of rights in matrimonial property, illusor
maintenance rights, deficient rights in agricultural land, and absence of employment
opportunities maintain the inequalities. How then can the DVA change anything?1
Still, it is undeniable that for all its limitations, the law is a step forward in working
towards gender justice. It of course does not mean that the struggles for all other kin
of equality rights are no longer necessary.
Legal feminist discourse in India at present does not deal adequately with thes
fundamental issues. A possible explanation of this state of affairs is that, as a specific
legacy of the history of colonization, legal scholarship in India is mostly caught in a tim

warp. In keeping with the conservative view of legal knowledge as technical know how
most legal analyses in India restrict themselves to doctrinal emphases.20 Legal scholarshi
that confines itself to examining the minutiae of the doctrine cannot engage with the
interdisciplinary developments in legal theory elsewhere. This absence of theoretic

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 Gender Inequality and Religious Personal Laws in India

concerns can be illustrated by examining the developments related to the reform of

aspects of Christian personal laws.

Difference and Justice as Dual Feminist Goals

The Divorce Act of 1869 governs the dissolution of marriage for two Christians. The
British colonial administrators originally enacted this act to govern Indian Christian
subjects. The act was reformed in 2001, after protracted community consultations and
persistent demands by women's organizations. There is no doubt that the amendments
to the act are a major gain for Indian Christian women. Nevertheless, it is disturbing
that in 2001 the Indian legislature, in consultation with women's organizations, could
endorse ideas about fault-based divorce laws, the concept of dependent domicile, and
the concept of restitution of conjugal rights.
In order to assess the scope of the amendments to this legislation and its suitability
for the Indian Christians it is necessary, at the very least, to know the reasons behind
this act and the relevant legal model used. The original IDA of 1869 was enacted as a
follow up to the first Divorce Act in England. English law up to that point, in keeping
with the ecclesiastical principles, did not allow for a Christian marriage to be dissolved.
Social, economic, and religious changes in Europe resulted in a gradual acceptance of
divorce in certain circumstances, manifested in the Married Women's Right to Property
Acts and the Divorce Act. In other words there was a correspondence between the social
changes and the legal changes.21
None of this correspondence existed in colonial India. Yet, the IDA of 1869 was
enacted as a religious law for the Christian community. The model derived from the
English divorce law, which was a major legislative innovation that was duly transferred
to India in 1869. However, when the legislature of a long-independent India enacted
an amendment to this law in 2001 and it insisted on retaining the "religious" grounds
of divorce, it is surprising that legal scholars do not see this as incredulous.
Feminist legal thinkers must surely be able to point out the anachronistic nature
of this law, but instead the amendments are portrayed as a major gain for Indian Chris
tian women. There is an almost total lack of discussion as to the ideal divorce law for

women in the twenty-first century. The continued presence of fault-based grounds of

divorce, the lack of recognition of marriage as a partnership, no mention of the concept
of matrimonial property, or the anachronistic continuation of the idea of father as the
natural guardian of a child makes divorce a very problematic remedy for women. The
fact that women's groups are the main force behind these changes makes it even more
difficult to accept that appeasing religious and other community leaders takes priority
over gaining a realistic right of divorce for Christian women. Political contingencies

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Archana Parashar

constrain the political activists, but no such hurdles exist for the legal feminist scholars
theirs is a disappointing silence. Unless systematic theoretical analysis becomes part of
Indian legal scholarship, the level of critique will remain limited and gender equality
will continue to be an afterthought rather than a core component of the law.
Even though most of the international legal feminist literature is Eurocentric, it
can nevertheless be a good starting point for Indian legal feminists to build specificall
Indian legal theory. One of the peculiar legacies of being in a postcolonial country
the fact that the scholars can neither ignore the scholarship in the developed wor
countries nor employ it directly. Most legal thinkers in the developed world write as i
the developing world simply has to catch up with the developed world, and ignore the
specificities of postcolonial societies. For thinkers in the developing world, however,
all scholarship is judged by its engagement with contemporary developments in t
global North.22 That being said, Indian legal feminists can use these development
to illustrate that what constitutes knowledge, including feminist knowledge, has a
effect of silencing the marginalized voices.
The postmodernist insight that knowledge is constructed and partial can allow
a space for arguments about the justice of law recognizing differences among people.
Feminist legal thinkers can make the theoretical issues relate to the specific India
conditions. For example, with regard to RPLs, the fundamental issue for legal scholars
is whether the divide between religious and secular spheres is an adequate conceptu
category. It is necessary to examine who deploys the religious-secular conceptu
divide and to what effect. In the Indian context the construct of religious identity of
the various communities and in particular minority communities is in turn worthy of
analysis. How and why religious personal laws become the chief marker of religio
minority identity is a question that should lead into an in-depth analysis of the ro
of law in maintaining communities. The existence of religious personal laws that deny
equality to women is usually discussed as an example of conflict in rights of equality
and the right to culture, especially by the minorities.
In liberal democratic societies the right to freedom of conscience is routinely
recognized. But nowhere does this right extend to imposing one's view of religion on
other people, even other members of one's own community. This is not a particularly
novel situation faced by Indian thinkers. In all European states, personal laws ori
nated in religious laws, but family laws are now secular. Nowhere has the existenc
of modern family laws given rise to the argument that they prevent people from be
ing good Christians. Neither is there a credible argument made that in a Protestan
country where divorce is allowed, the Roman Catholics are denied the right to cultural
autonomy. It is not particularly radical to formulate the issue as one of comparing the
compatibility of group rights and individual rights. In a liberal polity, how far the law

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 Gender Inequality and Religious Personal Laws in India

can or should go in upholding communal identities is a question that legal scholars

ought to concern themselves with. It is worth repeating here that cultural/religious
differences are not a good per se. If the discourse of difference is being used to deny
women legal equality, it is incumbent upon the analysts to point that out and argue
for a discourse of fairness in the law.

The religious autonomy that various communities claim in turn invokes a sim
plistic notion of choice. Invariably there is no discussion of who is making the choice
and whether the structural nature of hurdles in exercising choice makes it a futile con
cept for most women. With regard to personal matters it could be imagined that law,
rather than enforcing religious authority, can facilitate equality by making all family
laws gender non-discriminatory. Such a family law would not interfere with anyone's
religious autonomy but neither will it enforce religiously sanctioned inequalities.
The conceptual issue for legal scholars is to develop arguments that gender and
religious autonomy can coexist. India, being a religiously plural society, faces this tension
more so than many other societies. It is no surprise that most legal theory, developed in
industrialized countries, does not concern itself with this issue. The specific responsibility
of Indian legal scholars, feminists, and others is to develop ideas about the relationship
between law and their social institutions. It is not enough to simply replicate ideas
developed elsewhere and end up with the absurd situation that in contemporary India
women are denied equality by reference to anachronistic laws that are now supported
in the name of progressive pluralism.

Notes

1. Eric Stokes, English Utilitarians and India (Oxford: Clarendon Press, 1959).
2. The following account is based on Archana Parashar, Women and Family Law Reform in India, (New
Delhi: Sage Publications, 1992).
3. Legislative changes of "religious" practices were introduced in pursuance of humanitarian consid
erations, public policy, demand by the public, etc. Examples of such laws include, The Caste Disabilities
Removal Act (1850), The Hindu Widows Remarriage Act (1856), The Native Converts Remarriage Act
(1866), Hindu Inheritance (removal of Disabilities) Act (1928), and The Child Marriage Restraint Act
(1929). All of these laws modified practices that were considered an integral part of their religion by the
local populations.
4. See Poonam Saxena, "Succession Laws and Gender Justice," Redefining Family Law in India, eds.
Archana Parashar and Amita Dhanda (New Delhi: Roudedge, 2008), 282-305; see also Bina Agarwal,
"Bargaining, Gender Equality, and Legal Change: the Case of India's Inheritance Laws," ibid., 306-354.
5. Ian Ward, "The Politics of Positivism," Introduction to Critical Legal Theory, 2nd ed. (London: Cav
endish Publishing, 2004); see also Brian Bix, "H.L.A. Hart and Legal Positivism," Jurisprudence: Theory
and Context, 2nd ed. (London: Sweet & Maxwell, 1999).
6. Ngaire Naffine, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen and Unwin,
1994), 1-19.
7. Susan Atkins and Brenda Hoggett, Women and the Law, (Oxford: Basil Blackwell, 1984); Albie Sachs
and Joan HoflF Wilson, Sexism and the Law, (Oxford: Martin Robertson, 1978).
8. Indian women are however, denied even formal equality in the area of family relations under the

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 Archana Parashar

guise of Religious Personal Laws.

9. For example, most of the legislators, judges and administrators of law are men and it is inevitable that
they bring their experiences into the creation and application of the laws. A possible method of rectifying
this bias was to have more women in the echelons of the legal system so that another world-view could
inform the creation and the interpretations of law. Diane Polan, "Toward a Theory of Law and Patriarchy,"
The Politics of Law, ed. David Kairys (New York: Pantheon Books, 1982), 294-303.
10. Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard
University Press, 1989).
11. Elizabeth Spelman, Inessential Women: Problems of Exclusion in Feminist Thought (Boston: Beacon
Press, 1988). In legal scholarship Carol Smart has explored the implications of poststructural thinking.
For example, see Carol Smart, Feminism and the Power of Law (London: Routledge, 1989).
12. Susan Moller Okin, "Inequalities Between the Sexes in Differential Cultural Contexts," Women,
Culture and Development: A Study of Human Capabilities, eds. Martha Nussbaum and Jonathan Glover
(Oxford: Oxford University Press, 1995), 274-297. For an interesting debate, see the collection of articles
in Joshua Cohen and Mathew Howard, eds. Is Multiculturalism Bad for Women: Susan Moller Okin and
Respondents (Princeton: Princeton University Press, 1999).
13. Drucilla Cornell, The Philosophy of the Limit (New York: Routledge, 1991); Drucilla Cornell,
Michel Rosenfeld and David Gray Carlson, eds. Deconstruction and the Possibility of Justice, (New York:
Routledge, 1992).
14. See a collection of essays on this theme in Margaret Thornton, ed. Public and Private: Feminist Legal
Debates (Melbourne: Oxford University Press, 1995).
15. Martha Fineman, "Feminist Theory in Law: The Difference it Makes," Columbia Journal of Gen
der and Law 2, no. 1 (1992): 1-23. For another view, see Carol Smart, Feminism and the Power of Law,
(London: Routledge, 1989).
16. Indira Jaisingh of the Lawyers Collective was at the forefront of the demand for a DV bill. For a brief
history, see Indira Jaisingh, "Reconsidered: Dangerous Bill," India Together, November 2002, http://www.
112
indiatogether.org/women/violence/domvolbill.htm
17. See Bina Agarwal, A Field of One's Own: Gender and Land Rights in South Asia, (Cambridge: Cam
bridge University Press, 1994) for the glaring disparities in the land holding entitlements for women in
a primarily agrarian economy.
18. For a comprehensive critique, see Rajeshwari Sunder Rajan, "Rethinking Law and Violence: The
Domestic Violence (Prevention) Bill in India, 2002," Gender and History 16, no. 3 (2004): 769-793.
19. We must look at the role of law in a nuanced manner as argued by Roger Cotterrell, The Sociology of
Law: An Introduction (London: Butterworths, 1984), 112-124; see also Angela Harris, "The Jurisprudence
of Reconstruction," California Law Review 82, no. 4 (1994): 741.
20. This is supported by the articles appearing in law journals and the conventional textbooks in vari
ous areas of the law.

21. For further details, see Archana Parashar, "Do Changing Conceptions of Gender Justice Have a Place
in Indian Women's Lives? A Study of Some Aspects of Christian Personal Laws," Changing Conceptions
of Rights and Justice in South Asia, eds. Michael Anderson and Sumit Guha, (Delhi: Oxford University
Press, 1998), 140-178.
22. The same point, in a slightly different context, is made by Maitrayee Chaudhari, "Introduction,"
Feminism in India, ed. Maitrayee Chaudhari, (Delhi: Kali for Women, 2004), xviii.

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