ABSTRACT

Religion-specific personal laws in India generate the endemic problem of gender discrimination, especially of women, in marriage, divorce, inheritance, and maintenance. The laws, rooted in colonial legal codes and perpetuated by the legal pluralism that has followed in their wake since independence, tend to Favor patriarchal religious norms over constitutional assurances of equality as enshrined in Articles 14, 15, and 21. The study examines the variations between Hindu, Muslim, Christian, and Parsi personal laws, citing specific instances, such as unequal inheritance rights, unilateral divorce laws, and weak maintenance provisions. The Shayara Bano, Sarla Mudgal, and Vineeta Sharma judgements have gone a long way towards gender justice, but the lack of a Uniform Civil Code (UCC) has remained to assure unequal treatment. The shortcomings inherent in both the Muslim Women (Protection of Rights on Marriage) Act of 2019 and the grassroot movement of the Bharatiya Muslim Mahila Andolan (BMMA). The study reaches the conclusion that meaningful reform needs to be inclusive, participatory, and sensitive to India’s pluralist societal context, requiring legal frameworks to facilitate substantive equality while being respectful of religious diversity.

Introduction

Personal laws in India refer to separate legal codes in family affairs e.g., marriage, divorce, inheritance, and wardship on the basis of an individual’s religion. They run parallel to statutory law and are governed in accordance with religious affiliation by the doctrine of legal pluralism. The historical root of the personal laws in India starts from the colonial era. The British administrators, in a bid to deal with India’s religious diversity, codified Anglo-Hindu and Anglo-Muhammadan laws. These codifications selectively adopted from religious texts such as Manusmriti and the Fatawa-e-Alamgiri and hence preserved intricate religious hierarchies in the colonial legal system. The Indian state continued with these community-based legal systems even after independence. Unlike the majority of civil law jurisdictions, India persisted with religious personal laws rather than embracing a codified uniform code on the basis of respect for religious freedom and minority rights.

The Framework of Personal Laws in India

The Indian legal system applies personal laws deeply rooted in religious practices to regulate important topics of law field like marriage, divorce, inheritance, and adoption. The Hindu personal law functions through the Mitakshara, Dayabhaga schools of thoughts and legislative enactments, such as the Hindu Marriage Act of 1955, the Hindu Succession Act of 1956 (amended in 2005), and the Hindu Adoption and Maintenance Act of 1956. The Succession Act of 2005 amendment granted Hindu daughters equal coparcenary rights, but the original act still gave women’s property rights subordinate to male lines of inheritance. Muslim personal law falls mostly outside formal codification, following Shariat principles derived from Quran and Hadith that allow polygamous marriages and create unequal practices of inheritance, where male heirs receive twice the share of female heirs. illustrating how religious practices are prone to conflict with constitutional requirements of equality. Christian and Parsi law are codified systems, exemplified by the Indian Christian Marriage Act of 1872 and the Indian Succession Act of 1925, though these systems also include unequal provisions for divorce.

Gender Bias in Personal Laws

Divorce: The practice of triple talaq where a Muslim husband could divorce his wife unilaterally by saying “talaq” three times was long a symbol of deep gender bias in religious personal laws. In Shayara Bano v. Union of India (2017), the Supreme Court held this practice to be unconstitutional, and Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalizing the practice with up to three years’ imprisonment and holding the divorce to be void ab initio. Nevertheless, despite the legal ban, many women remain half‑divorcees deserted without clarification, denied maintenance, or pressured into khula (woman‑initiated divorce) waiving claims. Recent reports also indicate ongoing procedural failures instances where local police failed even to register the triple‑talaq offence despite criminalization. Under Hindu personal law there was no concept of divorce under the traditional schools of thoughts before the reforms women have to face unequal treatment. Historically, a Hindu wife had fewer grounds for divorce, and husbands had unilateral powers to terminate marriage or seek divorce on a greater set of grounds than wives, leaving divorce law hopelessly skewed.

Inheritance & Property: Under the Hindu Succession Act, 1956, daughters did not enjoy coparcenary rights in ancestral property, which vested chiefly in male descendants. The pivotal Hindu Succession (Amendment) Act, 2005 remedied this by granting daughters equal status as coparceners, including retrospective application making them full sharers from birth, regardless of the father’s death date. The reform thus eliminated a major source of gender discrimination in Hindu property law. In contrast, under Muslim personal law, women’s shares of inheritance are always unequal a daughter usually receives half as much as a son receives for the same degree of kinship. This is a reflection of doctrinal biases inherent in inheritance patterns and is still largely unexamined in Indian personal law systems.

Maintenance: Under Muslim Personal law the Muslim women are not entitled for maintenance after iddat period. The Shah Bano judgment (Mohd. Ahmed Khan v. Shah Bano Begum, 1985) was a landmark judgement in the sense that the Supreme Court held that Muslim women also are entitled to maintenance in law under the secular scheme of Section 125 CrPC and that the right is not restricted to the iddat period. But the massive backlash prompted from public after which the Indian government enacted the Muslim Women Protection of Rights on Divorce Act, 1986, restricting the right to maintenance to the iddat period, i.e., approximately 90 days.

But the Court’s later rulings particularly the 2001 Danial Latifi judgment and sequel cases like Shamim Ara held that an unmarried Muslim woman could claim reasonable and fair provision under law after iddat, and could invoke Section 125 CrPC provisions; courts have held that the 1986 Act should be interpreted in conformity with constitutional promises of equality and dignity. But application is unequal, and most Muslim women are unaware of it or incapable of availing of, their full legal rights.

How Religion-Specific Laws Perpetuate Gender Discrimination

India’s religious personal laws regulating inheritance, marriage, divorce, maintenance, adoption, and guardianship are institutionally based on patriarchal norms that reassert male superiority. For instance, the Hindu law’s Mitakshara school earlier deprived daughters of coparcenary rights; only the 2005 Amendment partially corrected that, but enforcement is patchy and customary male superiority is deeply rooted in property distribution. Muslim personal law’s unilateral divorce via triple talaq earlier allowed men to annul marriage in an instant, and inheritance principles grant men bigger shares than women, reasserting systemic gender bias despite laws like the 2019 Muslim Women (Protection of Rights on Marriage) Act. Even within Christian and Parsi groups, personal law previously restricted women’s rights to divorce, child custody, and inheritance although recent reform, current provisions including Parsi Marriage and Divorce Act and Indian Succession Act, 1925 as applies to all except Muslim and Jews still reflect patriarchal assumptions and unequal norms of guardianship. Even outside of codified law, religious customs dowry expectations, restrictions on remarriage or female leadership within religious groups underlie more deep-seated societal subordination of women.

This legal pluralism enables religious identity to take precedence over constitutional requirements. Articles 14 and 15 ensure equality before law as well as the prohibition of discrimination based on gender, but Article 25’s guarantee of religious freedom regularly allows personal laws to function beyond the purview of those constitutional protections. Courts have occasionally refused to strike down discriminatory personal laws by holding them to be necessary religious practices, thus giving precedence to religious identity over gender equality.

The Constitutional Dilemma & Judicial Responses

The application of Article 44 is the Directive Principle which requires the State to make endeavours towards enactment of a Uniform Civil Code (UCC), based upon the objective of elimination of gender discrimination and religious partiality from personal laws. Although not justiciable, Article 44 has always been praised by the Supreme Court recently in the Shah Bano and Sarla Mudgal cases as a constitutional imperative which legislative initiative has hitherto failed to enact.

Courts frequently have to confront the constitutional dilemma of balancing Articles 14 and 15 (equality and non-discrimination) with Articles 25 and 26 (freedom of religion and denominational rights). Judicial balancing in practice means that where personal laws come into conflict with the principles of gender equality the Court will frequently uphold religious freedom where gender effects are not obvious, but impose equality where discriminatory tradition cannot be maintained under equality rights. For example, in the Sabarimala case, gender-based discrimination of women was invalidated by Supreme Court, relying on Articles 14, 15 and 25, while declining reliance on Article 26 as non-essential religious practice.

The Supreme Court has also construed conflicts of personal law to drive reform in the absence of legislation. Shah Bano resulted in the entrenchment of maintenance rights in secular law, and Parliament responded to Article 44’s requirement. In Sarla Mudgal, the Court denounced bigamy by conversion and forcefully called for consideration of UCC reform. Recent rulings on Hindu coparcenary rights (Vineeta Sharma) and Triple Talaq nullification (Shayara Bano) show the Court’s activist use of Articles 14 and 15 to correct gender discrimination in religious personal laws. Under such jurisprudence, the courts carefully weigh the constitutional tension between equality and religious freedom and interpret and align with protecting women’s rights in reality in the absence of uniform code.

Reform Efforts and the Way Forward

Approaches towards codifying and rationalizing religion-specific personal laws have grown more vigorous in the face of growing dismay at the manner in which plural legal regimes perpetuate gender inequality. Debate remains on whether codification of community laws, and most especially Muslim family law, is an available alternative to a Uniform Civil Code (UCC). Scholarly and activist codified reforms are promoted as a means of increasing transparency and obliterating discriminatory practices, while others warn that codification without attendant substantive internal reform cannot do nothing but entrench patriarchy under the veil of the law.

A milestone was reached in the year 2017, when the Supreme Court declared instant triple talaq unconstitutional. That prompted Parliament to pass the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalizing oral, written, or electronic triple talaq and granting maintenance to victimized women. The reform was a step forward on the legal front, but gaps remain polygamy and other religiously established conventions continue, and enforcement gaps continue to water down the law.

A growing coalition of the Bharatiya Muslim Mahila Andolan (BMMA) and women’s movements demands gender justice reform for women either in personal laws or in a carefully drafted UCC. BMMA polls show over a large number of resistances to unilateral talaq and polygamy among Muslim in large numbers. they had favoured codification of personal law in an effort to secure custody rights, inheritance rights, guardianship rights, and consent rights in marriage. Importantly, BMMA has introduced a model Muslim Marriage and Divorce Act and empowered women Qazis to challenge patriarchal interpretations of Sharia.

Nevertheless, a uniform UCC remains contentious. Its critics caution that appealing to uniformity i.e., one majoritarian in character threatens to undermine cultural pluralism and go beyond constitutionally protected guarantees of religious freedom under Article 25. The Pam Rajput panel’s 2015 report reaffirmed that reforms cannot enact uniformity but can extend equality to women irrespective of whether they choose secular or personal law paradigms.

All future reforms need to be responsive and participatory to diversity. The debate has to be led by marginalized women and not be the subject of solutions imposed from above on them. Whether through codification at the grassroots, incremental statutory reform, or some ultimate consensus-driven UCC, the path to gender justice is to make processes inclusive, to recognize plural legal realities, and to have binding structures of enforcement.

Conclusion

In conclusion the religion-specific personal laws have been defended for centuries as necessary to maintain India’s plural cultural identity, they have at the same time been exploited as opportunities for the institutionalization of gender discrimination. In advancing community-specific conceptions of marriage, divorce, succession, and maintenance, these laws tend to violate the constitutional promises of equality, dignity, and non-discrimination under Articles 14, 15, and 21. The protective umbrella of Article 25’s freedom of religion has sometimes pre-empted required reforms, permitting personal laws to function outside the purview of egalitarian norms. This paradox has left women particularly those from marginalized and minority communities vulnerable to systemic legal subordination in the name of cultural autonomy.

Indian constitutionalism’s challenge is to balance these conflicting imperatives of guarding religious freedom and granting gender justice in substance. Shayara Bano, Sarla Mudgal, and Vineeta Sharma court interventions have cautiously opened the door for gender-just interpretations within the personal law regimes. These incremental reforms, however, need to yield to a more inclusive reform paradigm that is plural-sensitive. In the future, reform must not only impose homogeneity but also create a deliberative process with women from all religions and classes at its helm. A law that moves beyond symbolic equality to deal with lived gender realities either through a reformed UCC or through codifications by society must be imagined. Only inclusive, secular, and enforceable reforms can turn personal laws into tools of equality and not instruments of patriarchal consolidation.