Chapter-I

Introduction

“The law embodies the story of nation’s development through centuries and to know what it is,
one must know what it has been, and what it tends to become.”

-Oliver Wendel Holmes1

India is a Secular Republic, with all religions offered equality under the law.2 It is a land of
several religious communities. It is a country of people from diverse religions and backgrounds. 3
There is probably more diversity of religions than anywhere else on the earth. Apart from having
representation from almost all the religions of the world, there are various religious personal
laws in India, which governs the people of different religions.4 Religion is certainly a matter of
faith of one’s believe,5 and that is the reason the members of Constituent Assembly Debate
emphasizes the secular nature of Indian policy which the founding fathers considered to be very
basis of the Indian Constitution.6 The term ‘religion’ is not defined in the Constitution of India,
but the Supreme Court gave a comprehensive definition of religion, according to it, “Religion is
certainly a matter of faith with individuals or communities and it is not necessarily theistic”.7

Every religion has its own personal laws applicable according to the religion of the person;8
consist of either codified or un-codified rules.9 But the status of women is a great concern of

1
A. N. Saha, “Marriage and Divorce”, 1996, p.1 Eastern Law House, Calcutta
2
Aliya Naqvi, Women’s Rights and Personal Laws: A Comparative Study,
http://shodhganga.inflibnet.ac.in/bitstream/10603/148573/14/14pdf (Visited on Feb 27, 2018)
3
Parul Chaudhary, Gender inequality in Hindu and Muslim Personal Laws in India, International Journal of Home
Science, Vol. 1, 2015; p.34
4
Ibid.
5
V. N. Shukla, Constitution of India, Twelfth Ed., p.258, Eastern Book Co.
6
Per Ayyangar J in Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, 871: 1962 Supp (2) SCR
496
7
Commr., Hindu Religious Endowments v. Shri Lakshmindra Thirtha Swamiar of Shri Mtt, AIR 1954 SC 282: 1954
SCR 1005
8
Shivam Garg, Uniform Civil Code: In Context of Secularism, https://papers.ssrn.com (Visited on March 03, 2018)
9
Tanja Herklotz, Religion Based Personal Laws in India from a Women’s Rights Perspective, 2015, South Asia
Chronicle, https://dann.rewi.hu-berlin.de/doc/Herklotz_Personal_laws_Suedasienchronik.pdf (Visited on March 14,
2018)

1
every religion, as the religious personal laws portray women in subordinate position to men;10
the women have fewer rights than the men under the religious personal laws. These codes are
based on different personal laws of different religious communities, but this classification based
on religion faces many difficulties, whenever the question arises on matter of marriage, divorce,
inheritance, succession, adoption, maintenance, guardianship, custody of children etc.11

However, these religious personal laws have generated debate about the meaning of gender
equality in India, since all the religious personal laws to various extents give women fewer rights
than men. Personal laws in India and especially Muslim personal law has been a major political
and controversial issue, and has been extensively debated.12 For many decades Muslim women
are fighting for gender equality in the Islamic law that governs right related to marriage, divorce
and property rights.13 Though the religious personal laws 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 absence of the proper codification of Muslim
personal law women are at much disadvantage position, because of the un-clarity in the various
rights and various interpretation of Quran. Moreover, many ‘Fatwas’ most of time go against the
right of the Muslim women. Muslim women always remain the most economically and socially
depressed section in Muslim community itself.14

prior to his advent a woman don’t have any right over the men. She was not the owner of her
property, but her husband would be considered the owner. She would not receive a share from
the wealth of her father, nor was she considered the heir of her husband’s wealth, though in some
countries she was the custodian of her husband’s assets, but only during his lifetime.15 Once a
woman was married to a man, she was declared his forever, and in no circumstance could she
part from him, but her husband had the right to divorce her; she had no right to separate from her

10
Ibid p.35
11
Shivam Garg, Supra Note 8, p.1
12
Archana Parashar, Gender Inequality and Religious Personal law in India, 2008, Vol. XXIV, Brown Journal of
World Affairs, http://dl4a.org/uploads/pdf/BJWA_GenderInequalityReligiousPersonalLaws_India.pdf (Visited on
March 14, 2018)
13
Anita Yadav, Rights of Muslim Women: An Analysis of Indian Muslim Personal Law, 2015,
https://www.researchgate.net/publication/274702838 (Visited on March 15, 2018)
14
Archana Parashar, Supra Note 12, p.2
15
Mirza Bashir-ud-Din Mahmud Ahmad, Muhammad the liberator of women the liberator of women (peace and
blessings of Allah be upon him), Islam International Publications ltd. Tilford, Surrey, p.3

2
husband, no matter how afflicted she might be.16If a husband deserted his wife and paid no
attention to her, or ran away from her, there was no law in place to safeguard her rights. It was
thought to be an obligation for her to resign to her fate and earn a living for both herself and her
children. When displeased it was considered the right of a husband to physically discipline his
wife at which she could not raise a voice of complaint.17

Religious law is dynamic in many societies when incorporated into contemporary state
institutions. Women gained greater rights over the last half century even while religious law and
religious norms remained influential in Indian Society.18 Before the advent of the Islam

A further injustice was that when a woman found it impossible to live with her husband, instead
of fully allowing her to separate from her husband, she was permitted only to live away from her
spouse which was in itself a form of punishment as she was compelled to endure an aimless
existence.19

In other instances the husband was permitted to divorce his wife whenever he so willed, yet the
wife under no circumstance had the right to seek separation from him. If the husband abandoned
her and lost all contact with her even then she would be forced to spend the remainder of her life
waiting for him, she had no choice to live a life for the benefit of her country and society. The
bonds of matrimony which should be a source of comfort became instead, a cause of distress.
The woman would have to fulfill her role as both a wife and a husband, and still carry on waiting
for her husband. The obligation of a husband to earn for the upkeep of the household was also
assigned to her as well as to fulfill her charge of taking care of the children’s upbringing. Thus,
they were not only psychologically discomfited, but also had to undertake material
responsibilities. All of this was tolerated by this forsaken soul.

16
Ibid.
17
Ibid.
18
Narendra Subramaniam, Legal Change and Gender Inequality: Changes in Muslim Family
Law in India, 2008, Vol. XXXIII, Issue 3, Law & Social Inquiry,
https://casi.sas.upenn.edu/sites/casi.sas.upenn.edu/files/iit/Legal%20Change%20%26%20Gender%20Inequality%20
-%202008.pdf (Visited on March 15, 2018)

19
Ibid.

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For many decades Muslim women are fighting for gender equality in the Islamic law that
governs right related to marriage, divorce and property rights. 20 Though the religious personal
laws 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.21

Since independence it has been a rallying point for not only Muslim organizations, but also for
Hindu rights wing politics. After the 1986 Shah Bano Case, and the enactment of the Muslim
Women (protection of Rights on Divorce) Act thereafter, the debate has assumed a central
position, and majority identity politics has gained mileage, evident in the weakening of centrist
secular parties.22

However, All-India Muslim Personal Law Board is, is one of the main influential bodies in
Muslim community. There are lots of supports as well as criticism about this board. Many time
this board rejected the proposal to change the Muslim personal law as they believe it will
infringe the basic principles of Islam. Further, there are many male members domination in that
particular board. Whereas Quran does not support a system that is only managed by the
patriarchy system. Muslim women rights of marriage, divorce, inheritance has encouraged many
Muslim women activists to fight for their rights.23

India’s legal system is a common law system a relic of British imperialism that is at the same
time different from the original British common law. During colonization, novel ideas of
utilitarianism and legal positivism informed many English innovations in India. 24 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

20
Anita Yadav, Rights of Muslim Women: An Analysis of Indian Muslim Personal Law, 2015,
https://www.researchgate.net/publication/274702838 (Visited on March 15, 2018)
21
Archana Parashar, Supra Note 12, p.1
22
Razia Patel, Indian Muslim Women, politics of Muslim personal Law and struggle for life with dignity, 2009,
Economic and Political Weekly, Vol. 44, p. 44.
23
Anita Yadav, Rights of Muslim Women: An Analysis of Indian Muslim Personal Law, 2015,
https://www.researchgate.net/publication/274702838 (Visited on March 15, 2018)
24
Eric Stokes, English Utilitarian’s and India (Oxford: Clarendon Press, 1959)

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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. In India before colonization, however, Hindus and
Muslims with very few exceptions were governed by their own respective laws. Present Indian
society is the inheritor of three different and distinct legal systems Hindu, Muslim and British.25

25
D.K. Srivastava, Religious Freedom in India, 1982, p. 213.