"THE FATHER, AND AFTER HIM, THE MOTHER": GENDER IN JUDICIAL REASONING IN HINDU CUSTODY LAW

This thesis problematises the treatment of gender in judicial reasoning in the cases decided under Hindu custody law in Indian courts. India has several religious personal laws to regulate the lives of its citizens. Of these, Hindu law governs the personal lives of about 800 million people in India and forms the largest set of personal laws. It is largely based on Common Law Principles, due to colonial influence at the time of its codification. However, there has been limited research on case law in this area of law, especially in terms of analysing gender in these judgments. This thesis takes a set of cases not previously analysed, problematises how judges approach gender in them, and thereby contributes to Indian legal feminist and religious personal law literature.

The site of this research is a set of custody cases decided under the Hindu Minority and Guardianship Act, 1956. In the first part of the thesis, the underlying premises of judicial reasoning in the cases are studied. The analysis of the cases draws out disparity of treatment of gender in these cases, as well as underlying normative assumptions about gender roles in judicial reasoning. Further, the thesis demonstrates how the middle-class Hindu woman is constructed as a privileged but subordinate person or "Elite Dependent" in judicial reasoning. The analysis challenges the claim that these cases are decided in line with Constitutional ideals. The central argument developed from the cases is that judicial reasoning is based on normative ideas of gender and the judges do little to rectify gender inequities.

The second part of the thesis examines the possible impact of judicial reasoning in the cases under study on the formulation of a new Uniform Civil Code to replace religious personal laws in India. The key argument in this part of the thesis is that the Hindu code should not be used as a blueprint for this Uniform Civil Code, as the gendered nature of judicial reasoning raises important concerns on the egalitarian nature of the Hindu Code. Using both the parts, this thesis verifies and expands the hypothesis proposed by Indian legal feminists that religious personal law in India is gendered. This thesis contributes to Indian legal feminist scholarship on religious personal laws in general and to the specific debates in India. The analysis of case law as well as the formulation of the category of Elite Dependent are its unique contributions to furthering this body of literature.