Gender Inequality and Religious Personal Laws in India

By Parashar, Archana | The Brown Journal of World Affairs, Spring 2008 | Go to article overview

Gender Inequality and Religious Personal Laws in India


Parashar, Archana, The Brown Journal of World Affairs


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 generated 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 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 pursue 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.1 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, die law made a distinction between personal (often ecclesiastical) 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 different 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. …

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