CODIFIED INJUSTICE: THE ILLUSION OF RELIGION  IN GENDERED PERSONAL LAWS OF INDIA

ABSTRACT

Religion-specific codes that govern India’s laws frequently reflect the outdated gender biases that  go against the notions of equality and non-discrimination as guaranteed by the constitution. This  paper explores how Hindu, Muslim, Christian, and Parsi personal laws uphold women’s unequal  rights in areas such as guardianship, property, inheritance, divorce, and maintenance. Many  discriminatory provisions still prevail despite progressive judicial interventions like Shayara Bano  v. Union of India.¹and Danial Latifi v. Union of India². These contradictions support patriarchal  control over private life in addition to impeding women’s access to justice. The Uniform Civil  Code (UCC) is suggested as a potential framework for gender neutral laws, and the research makes  the case for reforms that prioritise constitutional values over individual customs. In the end, the  paper supports a rights-based strategy for personal law reform that prioritises women’s dignity.

INTRODUCTION

Deeply enrooted gender biases which are stemmed by the outdated gender stereotypes are still  reflected in Indian personal laws, particularly in the areas of marriage, divorce, inheritance, and  maintenance, despite constitutional guarantees of equality and non-discrimination of the  marginalised sections of society. These laws, which are based on religiously specific customs,  frequently disadvantage women and strengthen patriarchal family structures. For example, Muslim  women continue to face challenges such as polygamy and unequal divorce rights even after the  Shayara Bano v. Union of India (2017).³ The case’s ruling that banned instant triple talaq. In a  similar vein, Christian women were not granted equal divorce rights under the Indian Divorce Act  until Ammini E.J. v. Union of India (2023)⁴. Reforms to personal law have once again gained political and public attention as a result of recent discussions surrounding the Uniform Civil Code  (UCC). In 2024, Uttarakhand became the first state to enact a UCC⁵, collecting both.

RESEARCH METHODOLOGY

This study incorporated a doctrinal and analytical approach, drawing on primary sources such as  constitutional clauses, personal law statutes (such as the Muslim Personal Law and the Hindu  Succession Act) in light of the values and principles of the religious scriptures of various religions  across the country, as well as significant Supreme Court rulings like Shayara Bano v. Union of  India.⁶ And Ammini E.J. v. Union of India.⁷ Analysis of changing interpretations and criticisms is  done through secondary sources such as scholarly publications, Law Commission reports, and  various commentaries. In order to contextualise current reform initiatives, this paper also makes  comparative references to recent developments, such as the Uttarakhand Uniform Civil Code (2024). Addressing the gender-based legal disparities, the qualitative approach examines whether  the contemporary personal laws are consistent with the principles of equality and justice embedded  in the constitution of India.

1. Sources of Data

Primary Sources:

• Articles 14⁸, 15⁹, 21¹⁰, and 44¹¹ of the Constitution of India
• The statutory frameworks, such as the Hindu Marriage Act¹², Hindu Succession Act¹³, Muslim Personal Law¹⁴, Christian Divorce Act¹⁵, Parsi Marriage Act,¹⁶ etc,with special reference to the values and beliefs shared by different religions across  the country.
• Reviewing landmark rulings such as Shayara Bano v. Union of India¹⁷, Danial Latifi v. Union of India¹⁸Mary Roy v. State of Kerala¹⁹, Ammini E.J. v. Union of India²⁰.

Secondary Sources:

• Law Commission of India Reports²¹
• Scholarly articles, journals, legal commentaries

2. Analytical Framework

• Comparative analysis of personal laws across different religious communities and their religious scriptures’ values.
• Assessing the legal frameworks and judicial trends based on gender discrimination.
• Analysing the legal frameworks that are inconsistent with constitutional benchmarks of equality and non-discrimination.

This research paper is limited to personal laws related to marriage, divorce, inheritance,  guardianship, and maintenance. It does not cover the procedural criminal laws or  international conventions, though certain references are made wherever relevant.

LEGAL FRAMEWORK

In a largely diverse republic like India, a pluralistic legal framework is followed, where personal  laws vary across different religions, because it is believed that these aspects, which are a part of  personal lives, shall be governed by the values and principles of their religions and their beliefs. 

However, what lacks in this noble thought is its loopholes, which delve around the outdated  stereotypical notions of considering women as the “weaker sex” or limiting them to merely. ‘household duties, for instance;

• For Hindus, the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956 governs the marriages, guardianship, property, inheritance, divorce, and maintenance of Hindus, Sikhs, and Jains across the country which provides various schools of Hindu law, such as ‘Mitakshara’  and ‘Dayabhaga’ that contributes to inconsistencies and discrimination based on gender.
• Whereas the Muslim Personal Law (Shariat) Application Act, 1937, governs these aspects for the Muslim populations. These sharia laws include, for instance, the ban on Muslim women marrying non-Muslim men, the allowance of Muslim men to marry Christian or Jewish  women, and the fact that Muslim women inherit a smaller portion of the family’s wealth than  Muslim men. Because some Sharia laws treat men and women differently, some academics  theorise that gender inequality would be more severe if Sharia were the source of legislation²².
• Christians are thereby governed by the Indian Divorce Act, 1869.
• And the Parsi Marriage and Divorce Act 1936 governs the Parsis across the country.

These laws often reflect some gender-unequal values based on outdated gender biases.²³. For  instance, Hindu daughters only gained equal coparcenary rights after the 2005 Amendment.²⁴ Before that, there was a grave disparity between the daughters in comparison to their male  counterparts.

Constitutional Provisions

• Article 14, which provides the right to equality before the law to all its citizens. 
• Article 15(1) & (3) prohibit discrimination and allow special laws for women 
• Article 21 provides the right to life and dignity
• Article 44 provides a directive for a Uniform Civil Code (UCC) for all citizens

CASE STUDY

1. Shayara Bano v. Union of India (2017)

This landmark case challenged the practice of instant triple talaq (Talaq-e-Biddat). Because it was arbitrary, violated women’s dignity, and lacked Quranic sanction. A religiously  diverse group of Indian Supreme Court justices disagreed along communal lines regarding  the need for or capacity of the secular state to “reform” Muslim family law during the  Shayara Bano decision.²⁵. The Muslim Women (Protection of Rights on Marriage) Act,  2019, was passed by Parliament in July of the following year, making ‘talaq-e-biddat’ (triple talaq) a crime that carries a maximum sentence of three years in prison. In separate  petitions filed with the Supreme Court in August 2019, the President of the Rashtriya  Ulema Council, the Samastha Kerala Jamiathul Ulema, and the Jamiat Ulama-I-Hind  contested this Act. The Court has not yet started hearing arguments in the case, though

2. Mary Roy v. State of Kerala (1986)

In this landmark case of 1986, a Syrian Christian woman was denied equal inheritance. Following the judgement, it was seen that the Supreme Court upheld the rights of women  to be equally entitled to the property under the Indian Succession Act 1925. This created a meaningful impact by overruling the arbitrary and discriminatory customary laws and  recognising the rights of women.

3. Danial Latifi v. Union of India (2001)

Significant concerns pertaining to the Muslim Women (Protection of Rights on Divorce)  Act, 1986, were addressed in the seminal case of Daniel Latifi v. Union of India (2001).  The interpretation of Section 125 of the CrPC²⁶, which provides maintenance for a  dependent wife, was its main focus. The case settled the dispute between fundamental  rights protected by the constitution and private religious laws. The Supreme Court  guaranteed Muslim women who have divorced a just and reasonable settlement while  upholding the Act’s legality. It was able to reconcile religious convictions, constitutional  values, and gender justice.

4. Ammini E.J. v. Union of India (2023)

In this case, the discriminatory divorce grounds for Christian women were challenged. The  Kerala High Court decided that since the wife must prove adultery along with other  aggravating circumstances, the husband is in a better position to use it as grounds for  divorce, making it unjust to the wife. It further upheld gender-neutral grounds for divorce.

The court, however, took a serious view of adultery and granted contested divorce in India, taking into consideration various circumstances of the party seeking divorce, especially the  presence of children.

CRITICAL ANALYSIS

• Unequal divorce rights

Though the precise grounds and processes vary, both Muslim and Christian personal laws  in India may grant men and women different rights when it comes to divorce. Muslim law  has historically given men the right to divorce their wives using procedures like triple talaq,  which is now illegal, while giving women fewer choices. Contrarily, Christian law has  traditionally had more stringent grounds for divorce, frequently requiring fault-based grounds and drawn-out legal procedures, which can disproportionately impact women. Questions concerning gender justice and the need for a more standardised legal system are  brought up by the way personal laws are applied in India, especially when it comes to  divorce.

• Inheritance biases

Despite reforms, many customary laws and practices exclude women. In their respective  places, state amendments introduced comprehensive reforms. Nevertheless, due to the  shortcomings of the Hindu Succession Act, 1956, Hindu women in other Indian states were  still subject to inequality regarding their property rights. The Law Commission of India,  chaired by Justice B. P. Jeevan Reddy, took the initiative to improve the status of Hindu  women by recommending in its report that discrimination against women is exemplified  by social justice and property rights, and that women be treated equally in the social and  economic structures²⁷. With the revision of section 6 and the removal of sections 4(2), 23  and 24, which had, under the Hindu Succession Act, 1956 (original Act), maintained gender  bias and inequality, the Law Commission of India’s recommendations were reflected in the  Hindu Succession (Amendment) Act, 2005. In 2008, the Law Commission of India, chaired  by Justice A. R. Lakshmanan, recommended in its report²⁸ that Section 15 of the Hindu  Succession Act, 1956, be amended to provide for the situation where a Hindu woman dies  intestate, leaving her self-acquired property uninherited. Since the Hindu Succession  (Amendment) Act of 2005, the status of property rights of Hindu women has undergone a  shift. Hindu daughters in the Mitakshara coparcenary have made a remarkable transition  from exclusion to recognition; however, it is illogical and unjustified for other Hindu  women to be excluded, as the Indian Constitution states that all women have an equal right  to social and economic justice. In the prevailing patriarchal society, women are still denied  their legal rights despite some advancements brought about by the Hindu Succession  (Amendment) Act, 2005.

• Unequality in Guardianship

The primary concerns and disparities in guardianship and the laws that specifically place a  burden and hardship on mothers were addressed in Githa Hariharan v. RBI.²⁹. The case  concerned the mother’s natural guardianship rights. Sec 6(a) of the Act of 1956³⁰ and  sec19(b) of the Guardians and Wards Act of 1890³¹ They were contested as  unconstitutional. In the context of equal gender concepts, the word “after,” which appears  in Section 6(a) of the Act, was interpreted as “in the absence of,” upholding the  constitutionality of that section of the Act of 1956³². Before this case, mothers were  regarded as the natural guardians, only after fathers, and their status was somewhat  pitiful.³³. According to Islamic law, the father remains the child’s guardian even if the  mother has physical custody, since he is expected to provide for the child’s needs.³⁴.

RECENT DEVELOPMENTS

The Uttarakhand Legislative Assembly passed the Uniform Civil Code Uttarakhand, 2024, which  the President signed into law in March 2024³⁵. On January 27, 2025, the Uniform Civil Code Rules  Uttarakhand, 2025 (Rules) came into enforcement. Uttarakhand has now become the first state to  pass legislation pertaining to the uniform civil code, and its rules were passed. According to the  UUCC’s preamble³⁶, its goal is to regulate laws pertaining to succession, marriage, and other  related topics. With the exception of Scheduled Tribes, the law is applicable to all Uttarakhand  residents, including those who live outside the state. Addresses grave issues and requires marriages  and cohabitation to be registered. It further rejects customs such as ‘talaq’, ‘iddat’, and ‘halala’ by guaranteeing women’s equality in matters of inheritance and property. However, adoption,  maintenance, and guardianship are not specifically covered by the UUCC.

SUGGESTIONS: A Way Forward

Certainly, it is evident that the personal laws of India lack reforms in matters like gender neutrality and recognition of equality principles despite being guaranteed by the Constitution of India,  expressly under Articles like 14, 15, as well as 21. There are inconsistencies between these  personal laws governing each community across the country, with those of the constitutional  values. It has long been a concern for the marginalised sections of society to attain full-fledged  liberty and autonomy within the concerned aspects of Law. Despite several policies for reform  during the years, there have been loopholes in their enforcement, which have denied women their  equal rights on par with their male counterparts. There are Law Commission reports³⁷ which made  important observations regarding the Uniform Civil Code, stating “UCC is neither necessary nor  desirable.” It further suggested focusing on adopting gender-neutrality in all personal laws. Christian and Muslim women still face inequality in inheritance.³⁸ There is a dire need for

reformation in this context apart from merely implementing (Uniform Civil Code), such measures  are;

• Amending the gender-based discriminatory policies of various personal laws into more enhanced policies, ensuring a shift towards equal rights for women under the personal laws.
• Criminalisation of arbitrary practices which are based on outdated stereotypes that prejudice women in all spheres, such as ‘Nikah Halala’ and ‘Polygamy’, which leads to fake conversions and cheating on wives in order to remarry³⁹, and it subjects women to  discrimination as well as exploitation at the hands of patriarchy.
• Harmonisation of the maintenance laws, which are fragmented into the rights under BNSS⁴⁰ To ensure fair and sufficient maintenance irrespective of religion.
• Setting up a Permanent Personal Law Reform Commission dedicated to conducting periodic reviews, public consultations and drafting bills for the Parliament.

CONCLUSION

The analysis of the personal laws of India reveals a lack of nexus between the fundamental values  of religion to that of the legal framework purportedly derived from them. Every religion, at its core, advocates the ideals of justice, equality and compassion for human dignity. Yet their laws  that are practised under their names often seem to perpetuate gender discrimination and not  because these religions mandate, but due to the historical and patriarchal structures. Many of the  personal laws governing people of different religions across India reflect discriminatory provisions

that are not the faithful reflections of the sacred texts but rather result from selective readings and  societal biases. While respecting the cultural diversity of India, with the world’s largest  democracy, the constitutional values of equality, upholding individual dignity and principles of  non-discrimination must guide personal law reforms. A balanced and inclusive approach is crucial  to the endeavours of justice. A just legal system must evolve to align with the constitutional values  without distorting religious beliefs. Reforming personal laws is something beyond legal necessity, but a moral imperative. In order to ensure that faith is never used to justify injustice, and that law  becomes a powerful tool for liberation and not oppression.

Reference(S):

¹ Shayara Bano v. Union of India & Ors (2017) SCC OnLine 4609.

² Daniel Latifi & Ors v. Union of India (2001) SC 3958

³ Shayara Bano v. Union of India & Ors (2017) SCC OnLine 4609.

⁴ Ammini E.J. v. Union of India & Ors (1995) 1 KER 252.

⁵‘Uttarakhand to become first state to implement Uniform Civil Code: All you need to know’ Times of India (27  January 2025) <https://timesofindia.indiatimes.com/india/uttarakhand-to-become-first-state-to-implement-uniform civil-code-all-you-need-to-know/articleshow/117588721.cms > accessed 22 July 2025

⁶ Shayara Bano v. Union of India & Ors (2017) SCC OnLine 4609.

⁷ Ammini E.J. v. Union of India & Ors (1995) 1 KER 252.

⁸ Constitution of India 1950, art 14

⁹ Constitution of India 1950, art 15

¹⁰ Constitution of India 1950, art 21

¹¹ Constitution of India 1950, art 44

¹² The Hindu Marriage Act 1955

¹³ Hindu Succession Act 1956

¹⁴ Muslim Personal Law (Shariat) Application Act 1937

¹⁵ Christian Divorce Act 1869

¹⁶ Parsi Marriage and Divorce Act 1936

¹⁷ Shayara Bano v. Union of India & Ors (2017) SCC OnLine 4609

¹⁸ Daniel Latifi & Ors v. Union of India (2001) SC 3958

¹⁹ Mary Roy & Ors. v. State of Kerala & Ors (1986) SCR (1) 371

²⁰ Ammini E.J. v. Union of India & Ors (1995) 1 KER 252.

²¹ Law Commission of India, Consultation Paper on Reform of Family Law (2018)

²² Ahmed Alshammari, ‘Islamic Schools of Jurisprudence and Gender Inequality in Muslim-Majority Countries’  (2025) <https://www.proquest.com/openview/236999d2b674d61475a31a0bc48704cd/1?pq origsite=gscholar&cbl=18750&diss=y > accessed 23 July 2025

²³ Nistha Jain, ‘Gender Inequality in Hindu and Muslim Personal Laws in India’ (2018) 1(3) <  https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs1&div=69&id=&page= > accessed 22 July  2025

²⁴ Archana Parashar, ‘Gender Inequality and Religious Personal Laws in India'(2008) 14(2) <https://www.jstor.org/stable/24590717 > accessed 22 July 2025

²⁵ J. A. Redding, ‘A Secular Failure: Sectarianism and Communalism in Shayara Bano v. Union of India’  (Asian Journal of Law and Society, February 2021) < https://doi.org/10.1017/als.2020.47 > accessed 23 July 2025

²⁶ The Code Of Criminal Procedure 1973, s 125

²⁷ The 174th Law Commission of India, Property Rights of Women: Proposed Reforms under Hindu Law (2000)

²⁸ The 207th Law Commission of India, Proposal to amend Section 15 of the Hindu Succession Act, 1956 in case a  female dies intestate leaving her self-acquired property with no heirs (2008)

²⁹ Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

³⁰ The Hindu Minority and Guardianship Act 1956, s 6 (a)

³¹ Guardians and Wards Act 1890, s 19 (b)

³² The Hindu Minority and Guardianship Act 1956, s 6 (a)

³³ Sariga Ramachandran M , ‘Concept of Guardianship in India: The Unrevealed Gender Bias and Inequitable Laws’  (2023) 6 (4) < https://doij.org/10.10000/IJLMH.115478 > accessed 23 July

³⁴ Aayesha Rafiq, ‘Child Custody in Classical Islamic Law and Laws of Contemporary Muslim World’ (2014) 4(5) <https://themuslimtimes.info/wp-content/uploads/2024/07/Child-custody-in-Islam.pdf > accessed 23 July 2025

  ³⁵ Sachin Bhandawat and Vatsal Singh, ‘Introduction of Uniform Civil Code in Uttarakhand’ Bar and Bench (09 March  2025) <https://www.barandbench.com/view-point/introduction-of-uniform-civil-code-in-uttarakhand > accessed 23  July

³⁶ The Uttarakhand Uniform Civil Code 2024

³⁷ The Law Commission of India, Consultation Paper on Family Law Reform (2018)

³⁸ Sukanya Shaji, ‘Why Muslim women are demanding equality in inheritance rights’ (The News Minute, 31 March  2013) <https://www.thenewsminute.com/news/why-muslim-women-are-demanding-equality-inheritance-rights 175310 > accessed 22 July 2025

³⁹ Sarla Mudgal, President Kalyani & Others vs. Union of India & Others (1995) SC 1531

⁴⁰ The Bharatiya Nagarik Suraksha Sanhita 2023, s 144