Title: Indian Personal Laws and CEDAW: An Examination of Gender

Equality

19BAL004

Introduction:

In India, the institution of personal laws is deeply interconnected with religious, cultural and
historical norms that has grown over decades. An individual’s life including marriage,
inheritance, adoption, divorce and several other aspects are governed by these laws. These
personal laws, reflect the diversity and pluralism of this country. However, these same laws
have also been criticized for continuing gender inequality. The Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW), is an international treaty which is
a landmark in itself, as it has advocates for women’s rights and gender justice across the
globe. This note explores the relationship between Indian personal laws and CEDAW, and
talks about their compatibility as well as it’s criticisms.

I. Personal Laws in India:

There are several Personal laws in India, that govern the several aspects of an individual.
These laws are based on one’s religion. These are as follows:

1) Hindu Personal Laws: The Hindu Personal laws, primarily include the following
four codified statues:

a) The Hindu Marriage Act, 1955: This statute, looks after marriage amongst Hindus
and tries to ensure that the marriage is based on mutual consent, is voluntary and is
monogamous.

b) The Hindu Succession Act, 1956: This Act looks after the inheritance aspect of
Hindu women and men. It also aims to provide equal shares to daughters.

c) The Hindu Minority and Guardianship Act, 1956: This Act governs the custody and
guardianship of Hindu minors.

d) Hindu Adoption and Maintenance Act, 1956: This Act governs adoption and
maintenance rights of Hindus.
 2) Muslim laws- In India, the Muslim laws aren’t codified like Hindu laws. They are
governed by their personal laws. These personal laws include:
a) Sharia Laws: These laws cover the aspect of marriage, divorce and inheritance of
Muslims.
b) Dissolution of Muslim Marriages Act, 1939: This Act is for women who want to get a
divorce.
c) Muslim Women (Protection of Rights on Divorce) Act, 1986 : This governs the aspect
of Muslim women who seek maintenance.
3) Christian Personal Laws: The aspect of Marriage, Divorce and dissolution for
Christians is regulated by the Christian Marriage Act, 1872.
4) Parsi Personal Laws: The Parsi Marriage and Divorce Act, 1936, regulates
marriages and divorce amongst Parsis.
5) Other Personal Laws: Various other personal laws exist for different religious
communities, such as the Special Marriage Act, 1954, which provides an option
for interfaith marriages.

II. CEDAW: A Global Framework for Gender Equality:

1. Introduction to CEDAW: The Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) is an international treaty which was
adopted the UN General Assembly in 1979. CEDAW was ratified by India in 1993
and committed itself to it’s aims and principles.

2. CEDAW covers a variety of issues regarding women’s rights and gender justice. This
includes the following: a) Elimination of discrimination against women in all forms.
b) Promoting equal rights for women in the family and marriage. c) Proper access to
healthcare, education and employment for women. d) To curb gender-based violence
and practices which are harmful for women. e) Promoting and ensuring participation
of women in social, economic and political life.

III. Relationship of Indian Personal Laws and CEDAW:

1) Compatibility:
a) Equality in Marriage: The Hindu Marriage Act, is in alignment with
CEDAW, as both promote consensual and voluntary marriages. Further, it also
promotes equal inheritance rights for women, as stated in the Hindu
Succession Act.
 b) Protection from Violence: CEDAW emphasises on the need to eliminate
gender-based violence against women. This is in alignment with the several
personal laws in India, which have provisions to protect women’s rights.
c) Right to Divorce: There are several different personal laws, however, both
CEDAW and the Indian laws recognize the need and importance to giving
women the choice to seek divorce, if and when necessary.

2) Areas of Tension:

a) Religious Practices: There are certain practices within the personal laws,
which are discriminatory against women, such as the triple talaq. Whereas,
CEDAW aims and calls for the removal of harmful practices that are against
women.
b) Uniform Civil Code: The Uniform Civil Code would establish a standardized
form of personal laws. The personal laws would then be drafted regardless of
religion. However, this has faced many challenges in India as there is a
concern to preserve culture and religious diversity.
c) Reservation in Politics: CEDAW aims to promote and encourage women’s
participation in politics. Within the Indian system, seats have been reserved for
women in local bodies (Panchayati Raj). This has gained attention. Many
argue that this promotes tokenism rather than true empowerment of women.

IV. Balancing Tradition and Modernity:

1. Cultural and Religious Diversity: India is known for its rich culture as well as for its
religious diversity, which also covers the personal laws. While diversity is one of the
strengths of India, this diversity can also cause tensions between the traditional
practices and the modern principles of gender justice established by CEDAW.

2. Customary Practices: There are several communities, where customary practices

hold more power than the codified personal laws. Such kind of customary practices,
might also include practice that discriminate against women, when it comes to
inheritance, marriage related issues and property rights. Alignment of customary
practice with the principles of CEDAW can be challenging.

3. Interplay with Constitutional Guarantees: The Constitution of India, guarantees

certain fundamental rights to all citizens, regardless of their caste, class, sex and
 religion. Historically, the personal laws have operated within the ambit of religious
freedom, however, there are times when they are in conflict with the principles of
CEDAW. This can lead to court cases and legal debates.

V. Judicial Interpretation:

1. Role of the Courts: The role of the Indian Judiciary, is to interpret personal laws and
ensure that they are in alignment with the principles of the Constitution and
international treaties like CEDAW. There are several landmark judgements, that have
acted as an instrument to ensure gender justice in the Indian society. For example, in
2017, the Supreme Court gave a judgement on triple talaq and declared it to be
unconstitutional. This act of the apex court, was in alignment with the principles of
CDEAW, that calls for elimination of harmful practices against women.

2. Continued Legal Debates: There are several legal challenges regarding gender
justice and personal laws, that are faced by the judiciary. Challenges such as marital
rape, the constitutionality of nikah halala (a practice within the Muslim communities),
and the question of a Uniform Civil Code, always remains a subject of debate and
discussion.

VI. Impact of CEDAW on Indian Personal Laws:

1. Legal Reforms: In the past few years, India has taken several steps to amend
personal laws, so that they are more in alignment with the principles of gender justice.
For instance, in 2005, the Hindu Succession Act, was amended which gave daughters
an equal right to inheritance.

2. Advocacy and Awareness: a. CEDAW has acted as a wave of change for women’s
rights activists and the organizations related to it in India. Furthermore, CEDAW has
also raised awareness amongst the public, about gender discrimination and the
importance to reform it.

VII. Challenges and Ongoing Issues:

1. Implementation: There have been several legal reforms that promote gender just
laws and laws that promote equality. However, even after such kind of reforms, its
implementation still remains a challenge in India. There is a need to strengthen the
 enforcement mechanisms. Further, the social institutions like patriarchy, often acts as
an obstacle. Due, to such patriarchal mindset, the actual realization of gender equality
becomes difficult, irrespective of legal provisions.

2. Religious Sensitivities: There is a need to balance out religious sentiments with the
principles of gender equality. However, the attempts to reform personal laws have
been met with resistance, based on religious grounds. Thus, a balance between the
religious sentiments and the modern principles of gender equality by CEDAW
remains a challenge.

3. Political Will: There has been a lack of consensus when it comes to personal laws.
This slows down the legal reforms in India. The proposal for a Uniform Civil Code is
still a subject of political debate with no significant progress.

Conclusion:

The relationship between Indian Personal laws and CEDAW, reflect a complex and difficult
relationship between culture, religion, tradition, and the need of gender equality. There have
been significant movements that have aimed to align the personal laws with the principles of
CEDAW. However, there are still several challenges in the areas of political will, religious
sentiments and its implementation. In the coming times, it will be more challenging to create
a balance between ensuring gender equality and justice, and preserving religious and cultural
diversity.

CEDAW is a strong framework, which advocates for women’s rights and to remove harmful
practices against women, globally. India has shown its commitment to this international
treaty. This shows that India has recognized the importance of gender equality and justice in
its society. It is still a challenge to achieve full gender equality in a complex country like
India. However, the principles of CEDAW acts like a guiding light and promotes to move
towards a more equitable society.