Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law
![handle is hein.journals/cjtl28 and id is 481 raw text is: Religious Rights Versus Women's Rights
in India: A Test Case for International
Human Rights Law
INTRODUCTION
Conflict of laws problems generally arise when the law of one
state or country differs from that of another. In a country such as
India, however, where some citizens are governed by a religious law
that is separate and distinct from the secular law of the state, a con-
flict of laws can arise within the state. In India, such a conflict has
arisen between Muslim personal law and India's Criminal Procedure
Code concerning an Indian Muslim divorc6e's right to reasonable
maintenance from her ex-husband. This particular conflict of laws
problem is especially important because it raises international issues
of women's rights and gender discrimination.
This note analyzes both the conflict between religious law and
secular law and that between religious rights and women's rights in
the context of India's Shah Bano case1 and international human rights
law. Section I describes India's religious-secular law conflict over a
husband's duty to maintain his ex-wife and examines the way this
conflict developed into one between religious rights2 and women's
rightS3 in the wake of the Shah Bano decision. Section II analyzes
relevant international human rights law to help resolve these conflicts
of law and rights in India. After concluding that international human
rights law provides no definitive guidelines for resolving those ten-
sions, Section III suggests a criterion that the Indian government
should consider in determining which laws and rights have priority.
I. RELIGIOUS LAW VERSUS SECULAR LAW/RELIGIOUS RIGHTS
VERSUS WOMEN'S RIGHTS
Both Muslims and non-Muslims in India are subject to the secu-
lar criminal law as embodied in the Code of Criminal Procedure and
1. Md. Ahmed Khan v. Shah Bano Begum, [1985] 3 S.C.R. 844. See infra text accompa-
nying notes 23-36.
2. For the purposes of this note, religious rights refers to the Muslim community's
right to be administered by the Islamic personal law regarding maintenance of divorc6es in
light of an Indian citizen's guarantee to the right to freedom of religion.
3. The women's rights issue is the right of divorced women to obtain adequate support
from their ex-husbands.](ViewImageLocal?handle=hein.journals/cjtl28&div=31&collection=&method=preview&ext=.png&size=3)
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Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law
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