India: Religious Rights Versus Women's Rights In India

Last Updated: 4 June 2018
Article by Jayashree Shukla Dasgupta and Manmayi Sharma

Concluding Note Of The Two-Part Series

India is known for its cultural diversity globally. And a major credit for the rich cultural asset that we possess goes to the women in the country. And yes, one must not forget the might of Goddesses our country has ever since! However, there are several ironical stories as well which one can definitely not ignore. Amongst several such citations, there are a few that have a critical relation to the laws the country has.

Certain religious customs in India dictate women's access terms to place of worship. Part 1 of this Article focused on the struggles of a Parsi woman, to be allowed entry into the Parsi Fire Temple (hereinafter referred to as Goolrukh's case). While a Constitution Bench of the Supreme Court is to pass a final order in Goolrukh's case, the Supreme Court is to constitute another 5-judge bench to look into the ban of entry of women aged 10 – 50 years, into the famous Ayyapa Swamy Tempe at Sabarimala (hereinafter referred to as the 'Sabarimala case').

Customs that prohibit women from entering places of worship ought to be challenged in court or even be declared irrelevant by an appropriate form of legislation, as they discourage women on the basis of regressive practices that are patently unconstitutional. In the Sabarimala case, the Temple Board had argued and the Kerala High Court also upheld that young women should not offer worship as the temple deity is a Brahmachari (a celibate), for whom women are a source of deviation!1

In Goolrukh's case, a Parsi woman was excommunicated from her faith and disallowed entry into the Fire Temple on a self-assumed premise that women ought to take on the religion of their husband, implying that women cannot have their own religious stance!

An astonishing thought remains that in both the cited cases, both High Courts gave precedence to the consideration of a religious institution's rights and a religious custom's "essential character" over the right to equality and non-discrimination – the rights of women to be treated with dignity and with equal participation in society.

Equal rights and dignity of women are subverted in upholding the right of religious institutions, on account of the fact that much importance is given by Courts to the identification of 'essential practices of religion'. Instead, what is necessary is an effort to identify the customs that are discriminatory and derogatory towards women and hold them in violation of the rights mentioned in our Constitution. This may be done by recognizing customs within the definition of 'law' as per Article 13(3)(a) of the Constitution and hence be declared void as per Article 13(1), when found in derogation of Fundamental Rights (hereinafter referred to as 'the test for laws in force').

There are two judgments that are relevant to the discussion of a 'test for laws in force'. In the case of Noorjehan v. State of Maharashtra2, the Bombay High Court, adjudicating a challenge to the ban on women's entry into the sanctum sanctorum of the Haji Ali Dargah, held that women be allowed unhindered entry into the famous shrine. The Bombay High Court held that Articles 14,15 and 25 of the Constitution would come into play once a public character is attached to a place of worship, on which account a religious trust cannot discriminate on the entry of women under the guise of 'managing the affairs of religion' under Article 26.3 However, the Bombay High Court did not decide on customs having force of law under Article 13(3)(a), for the simple reason that the respondent itself did not plead the existence of any custom on the basis of which women were denied entry.4

Even the Supreme Court in the recent Triple Talaq judgment5, failed to apply the 'test for laws' in force so as to hold that the practice of triple talaq falls under Article 13(3)(a), which must be voided under Article 13(1).6, Justice Nariman and Justice U.U. Lalit did indeed apply the test for laws in force to recognize the custom of Triple Talaq as falling within Article 13(3)(a), they held it unconstitutional on the narrower ground of it being "manifestly arbitrary" as against Article 14.

Justice Kurien, on the other hand, did not at all delve into the violation of women's rights under Articles 14 or 15 of the Constitution and declared the practice of triple talaq as unconstitutional for being opposed to the tenets of the Holy Quran - squarely applying the Supreme Court ruling in Shamim Ara v. State of U.P.7

The majority ruling in the Triple Talaq judgment, which constitutes a milestone victory for women, is oddly divergent in its reasoning. While Justice Kurien followed the doctrine of precedent under Article 141 in applying the ratio of Shamim Ara, Justices Nariman and U.U. Lalit applied the doctrine of "manifest arbitrariness" which is new to Indian jurisprudence and hence, hardly backed by precedent.

Women's religious rights have seen slow reforms, yet there is no strong, cohesive effort by courts to declare discriminatory religious customs as unconstitutional. For instance, while there is a growing awareness8 of the role of women priestesses, there is only an old Supreme Court judgment that recognizes a Hindu female's hereditary right to succeed to the priestly office of a pujari, which does so, only in the narrow context of the administrative responsibilities of such office.9 There is no recognition of her equal right or ability to perform sacred rituals as a pujari.

It is imperative that courts lay down uniform standards that leave no doubt about the unconstitutionality of discriminatory and regressive religious customs. The stress on Article 26(2) and even Article 25 may be misplaced – Article 13(3)(a) is widely worded to include ordinance, order, bye-law, rule, regulations, notification, custom or usage... within the definition of laws in force. The recognition of religious customs and usages as laws in force will ensure that those in derogation of Fundamental Rights are struck down as per Article 13(1) of the Constitution.

Two separate Constitution Benches of the Supreme Court are soon to give judgment on Parsi women's religious rights (Goolrukh's case) and on women's entry into the Ayyapa Swamy Temple (Sabarimala case). These matters should be seen as an opportunity to uniformly apply the 'test for laws' in force: declare religious customs as laws in force under Article 13(3)(a) and clean the country of customs that are discriminatory and derogatory towards women and in violation of their Fundamental Rights.


1. Para 41, S. Mahendran v. the Secretary, Travancore Devaswom Board, Thiruvananthapuram & Ors. AIR 1993 Ker 42

2. 2016 (5) ABR 660.

3. Ibid note 1, Para 36.

4. Id, Para 19.

5. Shayaro Bano v. Union of India & Ors., (2017) 9 SCC 1

6.Justice Kurian did not concur with Justices Nariman and U.U. Lalit in holding that triple talaq is a custom having force of law.

7.Para 26 of Justice Kurien's ruling. Justice Kurien heavily relied on and ruled in terms of Shamim Ara v. State of U.P., (2002) 7 SCC 518. Hereinfter referred to as 'Shamim Ara'.

8. The Hindu, "Wife, Mother, Lawyer, Priest". Published on August 11, 2015. Accessible at: ; The Logical Indian, "First Woman Priest Performs Marriage Without Kanyadan". Published on March 14, 2018. Accessible at: ; DailyO, "India Would be a Fairer Place if it had more Hindu Women Priests". Published on January 30, 2016. Accessible at: .

9. Raj Kali Kuer v. Ram Rattan Pandey, 1955 SCR (2) 186

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions