Archana Parashar

Australian Muslims and family law : diversity and gender justice

The family law in Australia claims to be universal, egalitarian, progressive and just. This characterisation of family law, among other things, allows for constructing the mythical Australian identity and the political claim that those who choose to come to Australia should agree to live by its values including its family law. It leaves no scope for an argument for recognising ‘religious’ laws. However, the very Act that proclaims a universal and exclusive law for everyone also facilitates huge diversity in the actual arrangements people make under it. The fact that it denies or at least downplays the actual plurality raises the central issue for this paper: the role of legal ideology of universal legal rights in maintaining the hegemony of the dominant social order. The discourse of the recognition of religious personal laws, and in particular the Sharia law, has to be understood in this context of the wider function of family law as an ideology for maintaining the hegemony of the self-understanding of Australia as a modern, liberal society. While legal pluralism is feasible it remains the responsibility of everyone to ensure that the resulting legal arrangements are fair and non-discriminatory for all members of society.

Religious personal laws as non-state laws : implications for gender justice

This article examines the concept of religious personal laws as used in Indian legal discourse. This concept is used to denote religious laws of various communities that are claimed to be upheld but not modified by the secular state and also to refer to the religion related rules followed by communities outside of state regulation. This existence of various ‘religious’ laws is increasingly being described as legal pluralism. The ambiguous status of religious personal laws serves to legitimize the continued denial by the state of gender equality to women in family law matters as it creates a space for rules or laws to operate that do not conform to the Constitutional requirements and yet are enforced by the state. When legal scholars deploy this concept un-reflexively they participate in the discourse formation about religious personal laws as exceptional laws or as (progressive) examples of legal pluralism. In this way they assist the state in using the concept as a mode of governance. In this article it is argued that the legal scholars need to accept responsibility for the significant power they wield as discourse formers and acknowledge the power of naming legal practices. They are the scholars who can and should deconstruct the concept of religious personal laws. This is necessary for a serious engagement with the issue of what kind of family law would be truly non-oppressive.

Family Law as a Means of Ensuring Gender Justice for Indian Women

This analysis of the use of family law to ensure gender justice for women in India is based on the assumption that law plays an important role in the struggle for gender justice despite problems in accessibility and focuses on how family law can help end the oppression that the compulsion to marry perpetrates on Indian women. It is argued that the colonial construct of the religious nature of personal laws must give way to development of a Uniform Civil Code for India that will seek gender justice. After an introduction, the article uses Australian family law as a model for suggested reforms in Indian family law. The first main section provides the details of Australian family law. The next section explores the suitability of Australian family law as a model for Indian family law through a consideration of the following: 1) whether Australian family law is a flawed model; 2) the difference between Indian society and industrialized societies; 3) economic independence and family law; 4) whether it is possible for family law to reconceptualize marriage as a partnership and whether this concept is desirable for Indian women; 5) whether progressive laws create a disadvantage for most women; 6) whether secular law embodying individualism is suitable for community-oriented Indian society; and 7) whether Indian society should become individualistic. The third section of the article considers the developments in feminist legal theory that raise doubts about the worthiness of legal reform as a feminist strategy and concludes that legal reform is a necessary part of a larger strategy.

My Brother's Keeper: Regulation of the Brother–Sister Relationship in the Religious Personal Laws of India

This article analyses the continued denial of equality to women in Indias religious personal laws by focusing on the rights of brothers and sisters to illustrate the repeated failures of law. Although this failure has been normalised by deploying various conceptual tools, these theoretical trends need to be challenged. This article examines the 2005 amendment to the Hindu Succession Act which, although giving women extensive property rights, still gave sisters lesser rights than their brothers. It demonstrates that the concept of religious personal laws is a construct which is often used uncritically, and that it legitimises the denial of equal rights to women. The paper combines critical geography scholarship and legal feminist insights to argue that the law must be aware of spatial practices and that it is essential for legal thinkers to engage with the law in more than an instrumental sense. It analyses the processes of knowledge production and explores how the constitutive aspects of legal knowledge can be better integrated into legal scholarship. It thus aims to make visible the many spaces of the law: where laws are made; where ideas about men and women as owners of property are normalised; and where the law is expected to be implemented. It argues for legal scholars to be present and engaged in the contestation of meanings of the law.