Chanakya National Law

University, Patna

Subject- FAMILY LAW 1

Topic- NEED FOR GENDER-JUST PERSONAL LAW

Submitted to:- submitted by:-

Mr. Shaiwal Satyarthi Prithvi pal

3rd semester

Roll no. 779

ACKNOWLEDGEMENT
I am feeling highly elated to work on the topic “NEED FOR GENDER-JUST PERSONAL LAWS” under the
guidance of my professor of family law. I am very grateful to her for her exemplary guidance. I would like
to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing
more luminosity to this topic.
pg. 1
I also want to thank all my friends, without whose cooperation this project was not possible. Apart from
all these, I want to give special thanks to librarian of my university who made every relevant materials
regarding to my topic available to me at the time of my busy research work and gave me assistance. And
at last I am very much obliged to the God who provided me the potential for rigorous research work.

At finally yet importantly I would like my parents for financial support.

Thanking you

Prithvi pal

C.N.L.U

RESEARCH METHODOLOGY
The project is basically based on doctrinal method of research as no field work is
done on this topic. The whole project is made with the use of secondary source.

AIMS & OBJECTIVES:

pg. 2
The aim of the project is to present a detailed study of Business and its profit
sharing criteria, through the decisions and suggestions and different laws
prevailing in the society and the various reports.

SOURCES OF DATA:

The following secondary sources of data have been used in the project-

1.Articles

2.Books

3.Websites

METHOD OF WRITING

The method of writing followed in this course of research paper is primarily

analytical.

MODE OF CITATION

The researcher has followed a uniform mode of citation throughout the course of
this research paper.

Table of Contents

Introduction……………………………………..5-6
Origin and concept of religious-personal laws…7-8
pg. 3
Socio-religious status of women………………..9-10
Women under Islamic Sharia law……………..11-13
Reform and the role of state…………………..14-17
A need for gender just personal law…………..18
Conclusion…………………………………….19-20
Bibliography

Introduction
The movement towards gender equality, especially in Western countries, began with the
suffragette movement of the late-19th century. Then there was a change in relation to women's
property rights in marriage. (See for example, Married Women's Property Act 1882.) In the
1960s, a more general movement for gender equality developed based on women's liberation and
feminism. The issue was women's rights. The idea was that women should have equal rights with
men. However, actual changes in attitudes continued to focus on specific issues.

pg. 4
The movement resulted in anti-discrimination laws. Changes to attitudes to equality in education
opportunities for boys and girls have also undergone a cultural shift. Some changes came about by
adopting affirmative action policies. The change has also involved changes to social views, including
"equal pay for equal work" as well as most occupations being equally available to men and women, in
many countries. For example, many countries now permit women to serve in the armed forces, the
police force and to be fire fighters. Also, an increasing number of women are active in politics and
occupy high positions in business.

Conversely, men increasingly are working in occupations which in previous generations had been
considered "female occupations", such as nursing. Also, in the home, while acknowledging the biological
differences between men and women, most notably in relation to child bearing, the role of child rearing
is not as widely considered to be an exclusively female role. Another manifestation of the change in
social attitudes is the non-automatic taking by a woman of her husband's surname on marriage, as well
as a wife being free to pursue her career after marriage.

Many people, feminist and not, still do not regard the objective of gender equality as having been
achieved, especially in non-Western countries. A highly contentious issue relating to gender
equality is the role of women in Christian churches, and female priests. The issue has caused
splits in some churches.

Uniform civil code has been included in the directive principles of the constitution
and many people sincerily belives that it should be enforced for ensuring gender
justice . the framers of the constitution believes that all gender laws should be
uniform for all Indians irrespective of caste and creed. This ideal is, ofcourse
admirable. All our present personal laws, no matter of which community, are
hardly gender just. Traditional laws cannot be satisfactory as they were evolved
centuries ago when gender subjugation, rather than gender justice was the norm.

The Quran laws were highly gender just but patriarchal

society could not put up with gender just laws and took away most of the women’s
right through backdoor.even the Shari’ah law could not fulfill the ideals of the
Quar’anic justice and social ethos, where basically patriarchal prevailed over
Qur’anic ideals. It is therefore, necessary even in Islamic societies to approach the
quranic ideal rather than justify the Shari’ah formulations of eighth and ninth
centuries. The tension between the Quranic and Shari’ah law should be resolved in
favour of Quran.

There were more serious problem areas in the personal laws of other religious
traditions. The British rulers did not touch the personal laws of any community
(except enacting the Christian DivroceAct). There were good reasons for not
touching these laws. One of the reasons of the revolt of 1857 was a feeling among
pg. 5
the common people of India that their religious traditions were being inferred with.
Even sati abolition affected with the support of Raja Ram Mohan Roy led to a
great change in the women’s liberalization and step towards the rise of a gender
just laws.

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, the 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. 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 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
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
The Caste Disabilities Removal Act (1850), The Hindu Widows Remarriage Act (1856)
pg. 6
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
sanctity of these laws but at other times introduced legislative changes. Most of the changes have been
introduced in the Hindu Laws but the changes in 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.

Socio-Religious Status of Women

India as we know, is a country of different races; therefore, we find several languages,

different customs and traditions in this country. All these facts constitute one side of
picture; the other side is more significant because of the existence of different
religions. In order to identify, the exact nature of status of women in India we need to
understand woman’s place in Socio-Religious context.

Religion
Each religion has different Personal Laws relating to women and each religious group
has its own law of Dharma (conduct). Indian women’s domestic and extra domestic
spheres are largely derived from religious conceptions. Her ‘virtues’, her ‘vices’, her
‘strength’, her ‘weaknesses’, her ‘nature’, her ‘capacities’, so on are assumed on
religious practices and norms. Religion, therefore, has a definite role to play in an
individual’s life such as birth, initiation, marriage and death. Religious personal laws
govern family relations in India traditionally, in which these laws place men at higher

4
See Poonam Saxena, “Succession Laws and Gender Justice,”
pg. 7
stage. There are certain features common in all personal laws, including the reformed
Hindu personal laws, which perpetuates inequality between women and men:
1. Under all the personal laws it is the man who is the head of the family in all
circumstances (however, now mother’s name can also be mentioned in school’s
admission form).
2. The line of succession is through the male line.
3. The woman, normally, has to live wherever the man decides after marriage.
4. The right to divorce is far more lenient with the man under Christian and
Muslim laws but in interpreting the law Hindu women also face the same
difficulties.
5. Women often do not get equal right to property.

Kinship
Women in matrilineal systems seem to fare better as members of kin groups and in
interpersonal relationships. However, majority of Indian population follows the
Patrilineal system of descent.
In the Patrilineal kinship system, a son is the father’s natural apprentice, successor,
and supporter of the parents in old age. Sons are supposed to build up family prestige
and prosperity. Therefore, a father believes that he will continue to live in this world
through his son. All this imparts a special value to the son to continue the family
name. As per religious customs, a son is necessary for performing the prescribed
rituals for his parents when they die. This right is not given to women till date.
Although ritual considerations are less compelling among the lower castes, the relative
importance of the son is general to entire Hindu society.
A daughter on the other hand cannot effectively take the place of a son. As the loyalty
of girl changes at marriage, therefore, a boy is the perpetuator of the Patriliny to
continue the family name; by contrast, a girl is of no use in this respect. Girl’s
contribution is considered in some other house as she is supposed to leave father’s
house. “A bird of passage”, “ another’s property”, “a guest in parents house”, “a thing
to be preserved for an outsider”, or “a thing which has to be given away” is some of
the common descriptions of a daughter.

Marriage
After marriage, a wife gains neither equal status with her husband nor she gains her
individual status. Very few women start their married life independently in a simple
household. In the first few years of married life, norms of a subordinate and
submissive role appropriate for a daughter-in-law govern her behavior. Usually place
of a young wife of any Caste or region is at the lowest ebb in the family hierarchy and
her behavior is watched very carefully.
Family
Besides her kinship status, her husband’s social position and his contribution to the
family economy influence a woman’s status in the family. Her husband’s status
becomes more relevant for the woman’s status.
A rural woman explains this very well.
“Men in our families are like the sun, they have a light of their own, (they own
resources, are mobile, have the freedom to take decisions). Women on the other hand
are like satellites, without any light of their own. They shine, if and only if, when the
sun’s light touches them. This is why women have to constantly compete with each

pg. 8
other for a bigger share of sunlight, because without this light there is no life”.
In middle and upper classes, the amount of dowry a daughter-in-law has brought and
the gifts that her parents send also contribute to her status in the family. In this
situation, a very large section of our society continues to be under the influence of
traditional standards. Her own efforts often do not bring her individual status.
The parental family controls the women’s rights of education, choice of employment
and right of decisions and finally marriage- with which both the women and the
power to exercise control over her are transferred to the husband’s family. In cases,
where there is an attempt on the part of women to deviate from clearly defined
conduct, tensions arise often resulting in serious threats, including physical violence,
to the women from their families.

Women Under Islamic Sharia Law

When we compare what is foisted on the pubic with the Islamof Mohammed in the
Qur’an and hadiths, the contrast is great. Sharia, or Islamic Law, has been seriously
proposed as the answer to the world’s problems. Even in Great Britain, India, and
Canada, people have proposed Muslims in those countries should be under Sharia
Law. Sharia Law is based on the Qur’an and the hadiths. But what are some of the
teachings of Sharia law on women?

Temporary Marriage
Man have been allowed to do the Mut’a marriage. If a man and a woman agree (to
marry temporarily), their marriage should last for three nights, and if they like to
continue, they can do so; and if they want to separate, they can do so. But now, the
Mut’a marriage has been cancelled (made unlawful).

Women are Not Half as Intelligent

pg. 9
According to the Muslim Sharia (Law), the witness of a woman is equal half that
of a man, “because of the deficiency of the woman’s mind.” Mohammed said that a
nation will never succeed that makes a woman their ruler. The worst thing is not
that Muslim writers would be considered male chauvinist pigs for saying that
women have deficient minds. The really sad thing is that an educated Pakistani
woman with a high-tech job was trying to explain to me why this was true.

Women In the Eyes of Islamic Law

The Qur’an in Sura says to have two male witnesses at the time of divorce or
marriage. And if there are not two men, then a man and two women, Such as ye
choose, For witnesses, So that if one of them errs, the other can remind her. The
Prophet said, ‘the witness of a woman equal half of that of a man. So if a Muslim
man were to rape a Muslim woman, the man’s word would count twice as much as
the woman’s. The word of a non-Muslim does not count at all in a court of law
against a Muslim. Muslim man rapes a non-Muslim woman, even if a second non-
Muslim woman is present, his word (that he did not do it) would count equal to the
word of both of them.
The Human Rights Commission of Pakistan said in an annual report that one
woman is raped every three hours in Pakistan. Even worse, 72% of all women in
police custody in Pakistan are physically and sexually abused. The Woman’s
Action Forum says that 75% of all women in jail are under the charge of “zina”
(fornication). It was never stated how many men, if any, were in jail for that.
The most notable feature of Islamic laws are that the women
have to wear long blag gowns called burkha. Mostly it has been removed form
india and other countries but still it prevails in Pakistan on large extent.

The rights and obligations of wife

The wife shall dutifully manage the affairs of the household.
*The wife cannot, without the husband’s consent, acquire any property by gratuitous title, except from
her relatives who are within the prohibited degrees in marriage.
*The wife may, with her husband’s consent, exercise any profession or occupation or engage in lawful
business which is in keeping with Islamic modesty and virtue. However, if the husband refuses to give his
consent on the ground that his income is sufficient for the family according to its social standing or his
opposition is based on serious and valid grounds, the matter shall be referred to the Agama Arbitration
Council.
*The wife shall have the right to demand the satisfaction of her mahr (dower)

Husband allowed to have more than one wives

Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more
than four at a time, no Muslim male can have more than one wife unless he can deal with them with
equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases. (Art.
27)

pg. 10
When is a widow allowed to remarry
No widow shall contract a subsequent marriage unless she has observed an ‘idda (period of waiting) of
four months and ten days counted from the date of the death of her husband. If at that time the widow
is pregnant, she may remarry within a reasonable time after delivery. In such case, she shall produce the
corresponding death certificate. (Art. 28)

When is a divorced women aalowed to remarry

No woman shall contract a subsequent marriage unless she has observed an ‘idda of three monthly
courses counted from the date of divorce. However, if she is pregnant at the time of divorce, she may
remarry only after delivery. (Art. 29.1) Where it is indubitable that the marriage has not been
consummated when the divorce was effected, no ‘idda shall be required. (Art. 29.3)

Who has the authority to act as a guardianship for marriage (wali)

In the order of precedence:
* Father
* Parental grandfather
* Brother and other paternal relatives
* Paternal grandfather’s executor or nominee, or
* The court. (Art. 79)

Who can exercise guardianship over the property of minors

In the order of precedence:
* Father
* Father’s executor or nominee
* Paternal grandfather
* Paternal grandfather’s nominee
* The court. (Art. 80)

Even for the guardianship and property of the minor, the first preference has been
given to the men, and in the absence of that only women has the right to have
guardianship and property.

pg. 11
 Reform and the role of the State

Legal reforms such as the get legislation fall under the rubric of "appropriate
measures" to eliminate discrimination in customary practices, required by articles
2(f) and 5(a) of the Women's Convention.5 Specific judicial and legislative reforms
must be assessed in order to determine whether they meet the requirements of
article 1(3) of the Declaration (and article 18(3) of the Political Covenant) as
limitations based on the rights and freedoms of others. This section explores
broader policy questions about the impact of such reforms, including the religious
implications of secular approaches to reform and factors affecting the efficacy of
legal reform.

The state might assert the authority to interpret religious law, either in order to
determine whether there is a conflict between it and international law, or to find a
basis within religious law itself for resolving an apparent conflict. 6 The
interpretation of religious law by secular courts or legislators for purposes of
reform raises several questions. Does such interpretation violate the freedom to
manifest religion by expounding a definition of religious doctrine that will be
enforced by the regulatory power of the state?7 What will be the effects of the
interpretation of religious law by secular authorities on the content of doctrine as
embodied in religious observance? How can the state enhance the efficacy of its
initiatives to advance women's de facto equality, or to reform religious law when
religious leaders and jurists oppose those efforts?

The difficult policy implications of these questions are illustrated by the

controversy surrounding the decision of India's Supreme Court in the 1985 Shah
Bano case. In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court held
that a Muslim man was liable under the secular Code of Criminal Procedure for
maintenance payments to his indigent divorced wife, although he had already paid
the maintenance required under the generally accepted interpretation of Islamic
5
Articles 2 and 3 of Women's Declaration, supra note 123.
6
Where religious law remains uncodified or disagreement exists among authoritative religious leaders and jurists
concerning interpretation of the law
7
Of course, the state might choose to restrict the application of religious law
pg. 12
personal status law.148 The Court's decision was grounded in the principle of gender
equality, and in the Constitutional mandate to effect reform of social inequities
within religious traditions.

The Court stated at the outset that this criminal statute, which has the secular
purpose of preventing destitution, overrode personal status law in the event of a
conflict between the two.8 Nevertheless, the Court went on to interpret Islamic
personal status law, reaching the conclusion that there was no conflict between the
secular criminal law and Shari'a. The Court's interpretation of Islamic
requirements concerning maintenance was highly controversial with regard to both
methodology and result.

The Supreme Court purported to interpret a verse of the Qur'an itself, without the
benefit of commentaries by Islamic jurists. 151 Muslim religious leaders claim
exclusively the right to interpret the Qur'an. Moreover, the Court's conclusion
regarding the meaning of this Quaranic verse went against the weight of accepted
Islamic jurisprudence.9

Even more controversial than the Supreme Court's efforts to interpret the Qur'an
was its obiter dictum stressing the need to adopt a uniform civil code to replace the
personal status laws applicable to the various religious communities in India. The
Court dismissed the argument that the reform of Islamic personal status law must
be accomplished from within the Muslim community. It stated that no religious
community in India was likely to take the lead in such reforms, and that it is the
state's duty to secure the uniform civil code contemplated by the Indian
Constitution. In an interview following the decision, the Chief Justice of the [End
of Page 850] Supreme Court stated that the "thesis of the Court was that women
are generally treated with discrimination under personal laws, be it Hindu personal
law or Muslim personal law."10

The Shah Bano decision ignited widespread protest by Muslim leaders, who
viewed the Court's interpretation of the Qur'an as a usurpation of religious
authority and a threat to the integrity of Muslim communal identity. The Court's
call for a uniform civil code was echoed by anti-Muslim Hindu revivalists who
sought the abolition of Muslim personal status law, intensifying the force of the
decision as a lightening rod for political cohesion among Muslims. Following
losses in the next election, the Government succumbed to political pressure, and
adopted the Muslim Women (Protection of Rights on Divorce) Act of 1986. This
8
The Indian Code of Criminal Procedure requires a husband to pay up to 500 rupees
9
The Court interpreted Aiyats 241 and 242 of the Qur'an
10
The Supreme Court Interpreted Muslim Personal Law,
pg. 13
Act makes a divorced woman's relatives and the Muslim religious endowments
responsible for her ongoing maintenance if she is indigent.

As one observer noted, the Act effectively allows husbands to divorce their
indigent wives with impunity, leaving society to pick up the tab. The controversy
surrounding the Court's decision must be seen in the context of the escalating
violence between the Hindu and Muslim communities in India, and the climate of
fear created by anti-Muslim propaganda by Hindu revivalists. Particularly in such
circumstances, efforts by a secular judiciary to reform religious law should avoid
direct interpretation of religious texts without supporting religious authority. The
Supreme Court's call for a uniform civil code, obiter dictum in any event, should
have been explicitly related to gender discrimination in the personal status law of
other religious communities, as well as the Muslim community.

Some human rights activists and scholars have emphasized that international
norms are more likely to be implemented if they are shown to be a legitimate
development of existing religious and cultural tradition.11 This approach may
require the reinterpretation of religious norms in order to bring them into line with
the present formulation of international standards. Jurists may be able to
implement change in religious law by drawing on existing bases for reform among
variant schools of jurisprudence.159 Among the most noted examples of a state
undertaking such reformist reinterpretation of religious law is Tunisia. Based on
religious arguments, the Tunisian Personal Status Code of 1956 outlawed
polygamy and unilateral extrajudicial divorce (talaq). The Government has
described the prohibition of polygamy under the Code as "evidence of the equality
of men and women" in Tunisia and characterized polygamy as "the most flagrant
and most unjust manifestation of inequality between the spouses." 12 The Code did
not modify the Islamic provisions regarding succession, however. In response to
the observation by a member of the Human Rights Committee that the laws of
succession conflicted with articles 3, 23, and 26 of the Covenant, the representative
of Tunisia stated that those laws concerned "an area in which it was impossible to
force the pace and overturn principles 14 centuries old,"162 and that the laws of
succession would preclude the application of international norms governing the
principle of equal inheritance.13

Studies suggest that when the Tunisian Government withdrew from its program of
reform in the 1970s, and curtailed official efforts to promote cultural change in the

11
See generally AN-NA'IM, supra note
12
Third Periodic Report: Tunisia, supra note 129, at 10.
13
U.N.Hum.Rts.Comm., 990th mtg. ¶ 49, U.N. Doc. CCPR/C/SR.990 (1990).
pg. 14
traditional status of women, popular support for change in the status of women
declined across all classes, but especially among poorly educated and rural men. 164
The Government observed that efforts by the state to transform religious law can
have a singular impact on women's status in society:

It might even be asserted that the content of Tunisian positive law corresponds to
the level of emancipation effectively attained by the Tunisian woman of today. We
should not forget the link of cause and effect which exists between law and the
society which produces it or, in other words, the circumstances and social and
economic peculiarities of a community.14

Law reform in advance of broad political and social consensus can generate social
change. The example of Tunisia suggests, however, that the success of law reform
is tied to economic and social initiatives to transform normative change into praxis.
Law reform to protect the human rights of women must be accompanied by
educational measures to foster social change, and economic and political initiatives
to advance women's status if it is to have a significant impact on women's de facto
rights.

14
Second Periodic Report: Tunisia, supra note 163, at 10-11
pg. 15
Need for gender just personal laws
A lot of research has been conducted on the controversy of the uniform civil code.
The demand for a uniform civil code has got contradictory origin and diverse
implicatiions. In fact, it is now one of the most controversial issues in
contemporary politics. The two groups who consider it as a priority are the
women’s organization and Hindu fundamentalists.
To understand the debate on uniform civil code and personal
Laws, views of Dr. Asghar Ali Engineer are very significant. The main points
raised during the course of the debate are as follows:

* It is argued that it is a constitutional provision under Article 44 and hence must

be implimened. It is more than 40 years since the constitution was framed and yet
UCC has not been enforced. This is what has essentially been the argument of
judges in the recent judgement.

* It is often argued that there cannot be different laws for different community in
one country. How can muslims be allowed to marry four wives and divorce them at
will whereas the others must follow a diiferent set of laws.

* It is highly necessary to have a uniform law in order to strengthen unity and

integrity of the country.

* It is argued that UCC is needed in the interest of gender justice. The muslim
personal law in particular is gender un-just as it permits polygamy and unilateral
divorce. It is only UCC which can ensure justice.

* The Hindus has accepted reforms in their personal law right after independence
and it is only muslims who are resisting change and modernization in their laws. In
modern secular India no one can be allowed to practice archaic law.

pg. 16
 CONCLUSION
The potential for conflict between women's rights and the right to practice religion
or belief arises in all major religious traditions. The impact of religious law and
practice on women's human rights must be assessed in specific historical contexts,
taking into account the interlocking effects of gender, religion, race, ethnicity,
class, the role of the state in constructing and promoting ideologies of gender and
of religion, and international political and economic relations. International and
regional human rights norms offer a framework for resolving conflicts between
equality rights and religious law and practice as manifestations of religious
freedom. These norms permit limitations on the freedom of religion or belief that
are necessary to ensure that gender inequalities do not impair women's de jure and
de facto rights.

Factors to be weighed in determining whether such restrictions are necessary

include: the relationship between the specific equality right and the broad aim of
gender equality; the significance of the religious law or practice to the religious
tradition; the effects on other human rights implicated; the degree to which the
conflicting rights interfere with each other; the cumulative effects of multiple
restrictions on either equality rights or religious practices; and the proportionality
of the restriction. The process of balancing the competing interests involved must
take into account the fact that neither gender nor religion operates in isolation from
class, ethnicity, or the other factors mentioned above. To the extent that gender
distinctions in religious law are rooted in the gender roles constructed by religious
traditions themselves, those roles do not constitute objective and reasonable
justifications for the distinctions.

This article has focused principally on the systemic effects that personal status law,
as applied by religious or secular courts and reflected in custom, may have on
women's ability to exercise internationally guaranteed rights, in light of the broad
substantive scope of that law. The success of attempts by the state to reform
personal status and other religious law for the purpose of securing women's human
rights, and the impact of those efforts on religious practice and communal identity
are likely to be closely related to the nature of the economic and educational
initiatives taken in conjunction with law reform, and to the broader processes of
political change. Secular courts applying the religious law of minority communities
should exercise particular care to base restrictions of that law on international (or

pg. 17
national) guarantees of gender equality binding the society as a whole, rather than
majoritarian religious beliefs or public policy.

The question of the extent to which women are able to exercise their right to
freedom of religion or belief within religious communities, although beyond the
scope of this article, is linked to possibilities for reinterpretation of religious law to
eliminate gender inequalities. While women have been historically excluded from
the formal processes of articulating and interpreting religious law, they are active
participants in the formation of religious practice. Women have interests in the
rights of religious collectivities, as well as interests in the elimination of gender
inequalities. Conflicts involving the principles of gender equality and religious
freedom should not be viewed as clashes between individual and collective rights,
but as conflicts between sets of rights that each have individual and group
dimensions.

pg. 18
 BIBLIOGRAPHY

Books:

1.Family law in india-Agarwal

2.Redefining family law in India-Archana Parashar, Amita Dhanda

3.Family law- Paras Diwan

Sites:

1.www.humansecuritygateway.com ﾧ

2.en.wikipedia.org/wiki

3.www.helplinelaw.com › Indian Bare Acts

4.timesofindia.indiatimes.com

5.www.unicef.org/gender/index.html

pg. 19