Women, Religion and Personal Law

In one line

The largest limitation on the constitutional scheme for women is that the law governing marriage, divorce, maintenance, guardianship and succession is religious law, and whether that law is even subject to Part III has never been decided.

In the wording a student can write in an exam: the equality guarantees in articles 14 and 15 bind the State, and article 13 makes void any law inconsistent with Part III. Article 13(3)(a) defines law to include custom or usage having the force of law. Whether personal law, meaning the religious law of a community as distinct from a custom, is law within article 13 has never been authoritatively settled, and the question is decisive, because if it is not, personal law is immune from the fundamental rights altogether. Article 25(1) guarantees freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health and to the other provisions of Part III, and article 25(2)(b) permits the State to make law providing for social welfare and reform.

The threshold question

State this before anything else, because everything depends on it.

If personal law is "law" under article 13, then a rule of personal law inconsistent with articles 14 or 15 is void, and the whole of the equality code applies to marriage, divorce, maintenance, guardianship and inheritance.

If it is not, then personal law stands outside Part III, and the only routes to reform are legislation under article 25(2)(b), or codification, or a uniform civil code under article 44.

The argument that it is not "law". Article 13(3)(a) lists Ordinance, order, bye-law, rule, regulation, notification, custom and usage. Personal law derives from scripture and is not made by the State, so it is not within the enumeration; and the framers, who provided separately in article 44 for a uniform civil code, cannot have intended article 13 to achieve the same thing at a stroke.

The argument that it is. Personal law is applied by the courts of the State and is given force by statutes such as the Muslim Personal Law (Shariat) Application Act 1937, so it operates as law and should be tested as law. And a reading that leaves the largest body of rules affecting women outside Part III defeats the equality guarantee in the field where it is most needed.

Where the law stands. Unresolved. An answer should say so. The Court has repeatedly decided cases in this area without deciding this question, either by construing the personal law itself, or by testing the statute that gives it effect, or by relying on article 25's own limits.

The routes that have been used instead

Because the threshold question is open, four other routes have done the work, and identifying which route a case took is the skill this topic tests.