Sushil Bawankule, Nagpur University Maharashtra
ABSTRACT
Personal laws are considered an area that needs exceptional treatment. This is the logic for allowing religious groups to register and codify their customs that eventually become personal laws. This is also the logic on which religious practices that are derogatory to women are allowed to continue, even when they violate fundamental rights. However, the issue really is whether personal laws can actually be said to derive their sanction from religion, such as in the case of religious practices. In this paper, I argue that personal laws, irrespective of the source from which they derive their legitimacy, are actually in direct conflict with the constitution. This is because personal laws expressly ignore gender equality by allowing gender discriminatory family laws to exist based on religion, customs, or codification. It does not even take the religious argument to understand why personal laws are actually in direct conflict with the Constitution. The case is even stronger when factors such as globalization, migration, and cross- border marriages are considered.
This paper also analyses the legal equality between men and women as envisaged in the constitution and how currently unjust it is for women vis-à- vis family laws in personal laws. It also deals briefly with Article 44 of the Constitution, the Directive Principle which expects the state to bring about a Uniform Civil Code. I conclude by examining the possible political yet practical solutions for the gender discriminatory laws, propose a census that explicitly covers all personal law matters to highlight the need for a UCC, and argue for having a UCC in India.
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