AN ASSIGNMENT ON:

‘FEMINIST JURISPRUDENCE’

SUBMITTED BY:

UTKARSH MISHRA

ROLL NO – 10 CLASS: 2nd SEMESTER, LLM

FACULTY OF LAW,

LUCKNOW UNIVERSITY, LUCKNOW

UNDER THE GUIDANCE OF:

DR. RAJ KUMAR SINGH

FACULTY

(FAMILY JURISPRUDENCE)

ASSOCIATE PROFESSOR

FACULTY OF LAW

LUCKNOW UNIVERSITY.

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 ACKNOWLEDGEMENT

I am feeling highly elated to work on the assignment under the guidance of my

faculty of family jurisprudence, Mr.raj kumar singh. I am very grateful to him
for his exemplary guidance. I would like to enlighten my readers regarding this topic
and I hope I have tried my best to pave the way for bringing more luminosity to this
topic.

I also want to thank all of my friends; without whose cooperation this project was
not possible. Apart from all these, I want to give special thanks to the librarian of
my university who made every relevant material regarding to my topic available to
me at the time of my busy research work and gave me assistance. And at last, I am
very much obliged to the God who provided me the potential for the rigorous
research work.

Thanking you

Utkarsh Mishra

Lucknow University.

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INTRODUCTION TO FEMINIST JURISPRUDENCE

The word ‘Feminism’ seems to refer to an intense awareness of identity as a woman and interest
in feminine problems. The subjugation of woman is a central fact of history and it is the main cause
of all psychological disorders in society. According to Janet Richards, “The essence of Feminism
has a strong fundamental case intended to mean only that there are excellent reasons for thinking
that woman suffer from systematic social injustice because of their sex, the proposition is to be
regarded as constituting feminism.”1

Feminist jurisprudence is a philosophy of law based on the political, economic, and social equality
of sexes. As a field of legal scholarship, feminist jurisprudence began in 1960s. It now holds a
significant place in U.S. law and legal thought and influences many debates on sexual and domestic
violence, inequality in the workplace, and gender based discrimination. Through various
approaches, feminists have identified gendered components and gendered implications of
seemingly neutral laws and practices. Laws affecting employment, divorce, reproductive rights,
rape, domestic violence, and sexual harassment have all benefited from the analysis and insight of
feminist jurisprudence.

Woman did not write in the beginning as it now, the obvious reason as Virginia Woolf puts it,
“A woman must have money and room of her own if she is to write fiction.’’2. Money symbolizes
power and freedom and a room of her own is to have contemplative thinking Very often women
had enjoyed these things in the past so to develop their imaginative capabilities and personal
freedom.

Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories
and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and
critiques the law by examining the relationship between gender, sexuality, power, individual
rights, and the judicial system as a whole. As a field of legal scholarship and theory,

1
Richards Janet, ‘Women writer’s Talking, Cambridge, London, 1981. p.3
2
Woolf Virginia,’ A Room of One’s Own,’ Pen Craft, London, 1929,p126

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feminist Jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important
and vital part of the law, informing many debates on sexual and Domestic Violence, inequality in
the workplace, and gender-based discrimination at all levels of Indian society.

Feminist jurisprudence intersects with a number of other forms of critical theories, most notably
critical race theory and the study of intra and inter-racial relationships. Moreover, the form of
feminist thought that focuses on legal theory draws from feminism in other disciplines, including
sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps
thus do not focus exclusively upon purely legal aspects of feminism.3

Feminist activist were ardent supporters of women rights and reservations. They actively
challenged male superiority in the workplace. Their efforts paid off and female co-workers and
employees started getting better pays and positions.

Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated
legal doctrine defines and protects men, not women. By discounting gender differences, the
prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social,
economic, and political power, they use the system to subordinate women in the public spheres of
politics and economics as well as in the private spheres of family and sex. The language, logic,
and structure of the law are male created, which reinforces male values. Most troubling, these
concepts and values are presented as and are widely perceived to be both neutral and objective.4

In analyzing the workings of gender in the law, feminist scholars share certain common
commitments. Politically, they seek equality between men and women. Analytically, they make
gender a category by which to reconstitute legal practices that have excluded women's interests.
Methodologically, they use women's experiences to describe the world and to demonstrate the

3
Nahal Chaman, ‘Feminism in English fiction-forms and Variants,’ in Feminism and Recent fiction in English,’ Ed.
Sushila Singh, Prestige books, New Delhi, 1991,p 17
4
Eisenstein, ‘Feminist Criticisms and Social Change: Class and Race in Literature and Culture’, Cambridge University
Press, London, 1963. p. 58

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need for change. They rely primarily on an experiential discourse for analyzing gender hierarchy,
sexual objectification, and social structures.

RISE OF FEMINIST JURISPRUDENCE

Feminist jurisprudence represents the diversity of feminist philosophy and theory.

Notwithstanding differences in approaches, all feminists share the belief that "women are
oppressed or disadvantaged in comparison with men and that their oppression is in some way
illegitimate or unjustified. Under the umbrella of this general characterization there are, however,
many interpretations of women and their oppression, so that it is a mistake to think of feminism as
a single philosophical doctrine. Just as there are diverse images of liberation, so there are a number
of feminist philosophies, yoked together not so much by their particular claims or prescriptions as
by their interest in a common theme.5

Feminist activism has had a major impact, besides other fields, on many areas of law. Legal
feminism which originated as distinct category only in second half of this century now enjoys a
formidable presence in feminist movement worldwide.

The liberal feminism also labeled as first wave feminism was based on emancipatory theory and
sought to dismantle the positive legal barriers that had denied women equal opportunity with men.
This strand of thought supports the values of liberal jurisprudence as imputed to law, but identified
a discrepancy between those liberal values and legal practice, such that women are accorded parity
with men. The theory behind those goals was that the rights of individuals as traditionally
understood in a liberal society should transcend gender differences. If follows that law must be
persuaded to apply these standards more rigorously in case of women or that liberal values must
be revised to recognize gender as a source of social injustice. The main objective is to give women
genuine, as opposed to nominal, equal rights or, where their special social situation demands it,
special rights.6

5
Miriam Shiner, Feminism: ‘The Essential writings’, Vintage Books,1994,p. xiv
6
Nayantara Uma, ‘Indian Women writer’s at the Cross Roads’, Pen crafts, New Delhi, 1996. p. 243.

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After this theory emerged illiberal feminist legal theory, also known as "radical feminism", during 1980s.
It urges women to renounce traditional notions of right and justice, now viewed as perpetuating male
dominance. Some of the radical feminists charge that the reforms achieved by "equality feminists" have
dismantled protections beneficial to women while doing nothing to eliminate their disadvantages. They
too note the discrepancy between the liberal values imputed to law and law's treatment of women but
recognizes the limitations of attempting to close the gap between liberal jurisprudence and legal practice
either by making law apply legal principles more scrupulously in the area of gender or by revising liberal
principles.7

For radical feminists, the key concept is "patriarchy", the male dominated social structure. They
argue that liberal jurisprudence can make no impact on law's treatment of women so long as
categories, such as crime or family law, and legal concepts such as provocation or marriage,
embody male norms and accordingly fail to address women's experiences. It follows that such
legal categories and concepts must be transformed to address women's social position and
experiences. They attack the liberal principles as neutrality of law, equality and individual
autonomy for their "patriarchal" roots. Mackinon, a main protagonist of this stream asserts, "the
greater the prima facie neutrality of law, the more effectively 'neutrality' works as a key mechanism
for masking the male domination for example by requiring women to fit into an economic system
which denies them substantive equality." Law is seen as an instrument to "change the distribution
of power", which requires not equal treatment but "an asymmetrical approach that adopts the
perspective of the less powerful group with the specific goal of equitable power sharing among
diverse groups".

Thus the latest trend can be summarized as questioning the desirability of gender equality as a
feminist goals as well as capacity of law reform to achieve that goal.

Feminism has no theory of the state. It has a theory of power: sexuality is gendered as gender
is sexualized. Male and female are created through the erotization of dominance and
submission. The man/woman difference and the dominance/submission dynamic define
each other. This is the social meaning of sex and the distinctively feminist account of

7
Kapur Manju,’ a Married Woman,’ Penguin Pub., New Delhi, 2002, p23

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gender inequality. Sexual objectification, the central process within this dynamic, is at once
epistemological and political. The feminist theory of knowledge is inextricable from the
feminist critique of power because the male point of view forces itself upon the world
as its way of apprehending it.8

Feminism criticizes this male totality without an account of our capacity to do so or to

imagine or realize a more whole truth. Feminism affirms women's point of view by
revealing, criticizing, and explaining its impossibility. This is not a dialectical paradox.
It is a methodological expression of women's situation, in which the struggle for
consciousness is a struggle for world: for sexuality, a history, a culture, a community, a form
of power, an experience of the sacred. If women had conscious¬ nests or world, sex
inequality would be harmless, or all women would be feminist. Yet we have something
of both, or there would be no such thing as feminism. Why can women know that
this—life as we have known it—is not all, not enough, not ours, not just? Now, why don't
all women?

The practice of a politics of all women in the face of its theoretical impossibility is creating
a new process of theorizing and a new form of theory. Although feminism emerges from
women's particular experience, it is not subjective or partial, for no interior ground and
few if any aspects of life are free of male power. Nor is feminism objective, abstract, or
universal. It claims no external ground or unsexed sphere of generalization or abstraction
beyond male power, nor transcendence of the specificity of each of its manifestations.
How is it possible to have an engaged truth that does not simply reiterate its
determinations? Disengaged truth only reiterates its determinations. Choice of method
is choice of determinants—a choice which, for women as such, has been unavailable
because of the subordination of women. Feminism does not begin with the premise that it
is unpremised. It does not aspire to persuade an unpremised audience because there is

8
Roy Arundhati, ‘ An Ordinary Person’s Guide to Europe,’ Penguin, New Delhi, 2005 p43

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no such audience. Its project is to uncover and claim as valid the experience of women,
the major content of which is the revalidation of women's experience. 9

Feminism has been widely thought to contain tendencies of liberal feminism, radical
feminism, and socialist feminism. But just as socialist feminism has often amounted to
marxism applied to women, liberal feminism has often amounted to liberalism applied
to women. Radical feminism is feminism. Radical feminism—after this,
feminism unmodified—is methodologically post-marxist.8 It moves to resolve the
marxist-feminist problematic on the level of method. Because its method emerges from the
concrete conditions of all women as a sex, it dissolves the individualist, naturalist,
idealist, moralist structure of liberalism, the politics of which science is the epistemology.
Where liberal feminism sees sexism primarily as an illusion or myth to be dispelled, an
inaccuracy to be corrected, true feminism sees the male point of view as fundamental to
the male power to create the world in its own image, the image of its desires, not just as
its delusory end product. Feminism distinctively as such comprehends that what counts
as truth is produced in the interest of those with power to shape reality, and that this
process is as pervasive as it is necessary as it is changeable. Unlike the scientific strain in
marxism or the Kantian imperative in liberalism, which in this context share most salient
features, feminism neither claims universality nor, failing that, reduces to relativity. It
does not seek a generality that subsumes its particulars or an abstract theory or a science
of sexism. It rejects the approach of control over nature (including us) analogized to
control over society (also including us) which has grounded the "science of society" project
as the paradigm for political knowledge since (at least) Descartes. Both liberalism and
marxism have been subversive on women's behalf. Neither is enough. To grasp the
inadequacies for women of liberalism on one side and marxism on the other is to
begin to comprehend the role of the liberal state and liberal legalism within a post-
marxist feminism of social transformation.10

9
Ibid.
10
Ibid.

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The feminist posture toward the state has therefore been schizoid on issues central to
women's survival: rape, battery, pornography, prostitution, sexual harassment, sex
discrimination, abortion, the Equal Rights Amendment, to name a few. Attempts to
reform and enforce rape laws, for example, have tended to build on the model of the
deviant perpetrator and the violent act, as if the fact that rape is a crime means that the
society is against it, so law enforcement would reduce or de-
legitimize it. Initiatives are accordingly directed toward making the police more
sensitive, prosecutors more responsive, judges more receptive, and the law, in words, less
sexist. This may be progressive in the liberal or the left senses, but how is it empowering in
the feminist sense? Even if it were effective in jailing men who do little different from what
non-deviant men do regularly, how would such an approach alter women's rapability?
Uncomforted are why women are raped and the role of the state in that. Similarly,
applying laws against battery to husbands, although it can mean life itself, has largely
failed to address, as part of the strategy for state intervention, the conditions that produce
men who systematically express themselves violently toward women, women whose
resistance is disabled, and the role of the state in this dynamic. Criminal enforcement
in these areas, while suggesting that rape and battery are deviant, punishes men for
expressing the images of masculinity that mean their identity, for which they are
otherwise trained, elevated, venerated, and paid. These men must be stopped. But how
does that change them or reduce the chances that there will be more like them? Liberal
strategies entrust women to the state. Left theory abandons us to the rapists and batterers.
The question for feminism is not only whether there is a meaningful difference
between the two, but whether either is adequate to the feminist critique of rape and battery
as systemic and to the role of the state and the law within that system.11

Feminism has descriptions of the state's treatment of the gender difference, but no
analysis of the state as gender hierarchy. We need to know. What, in gender terms, are
the state's norms of accountability, sources of power, real constituency? Is the state to

11
Deshpande Shashi, ‘Roots and Shadows- A Feminist Study,’ Ed. Amaranth Prasad, Swroop book, New Delhi, 2009,
p129

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some degree autonomous of the interests of men or an integral expression of them? Does
the state embody and serve male interests in its form, dynamics, and relation to society,
and specific policies? Is the state constructed upon the subordination of women? If so,
how does male power become state power?

RESPONDING TO LIBERALISM: QUESTIONS OF PERSPECTIVE

As a critical theory, feminist jurisprudence responds to the current dominant understanding of legal
thought, which is usually identified with the liberal Anglo-American tradition. (This tradition is
represented by such authors as Hart 1961 and Dworkin 1977, 1986.) Two major branches of this
tradition have been legal positivism, on the one hand, and natural law theory on the other. Feminist
jurisprudence responds to both these branches of the American legal tradition by raising questions
regarding their assumptions about the law, including: that law is properly objective and thus must
have recourse to objective rules or understandings at some level that law is properly impartial,
especially in that it is not to be tainted by the personal experience of any of its practitioners,
particularly judges that equality must function as a formal notion rather than a substantive one,
such that in the eyes of the law, difference must be shown to be “relevant” in order to be
admissible/visible that law, when working properly, should be certain, and that the goal of
lawmaking and legal decision-making is to gain certainty that justice can be understood as a matter
of procedures, such that a proper following of procedures can be understood as sufficient to
rendering justice. Each of these assumptions, although contested and debated, has remained a
significant feature of the liberal tradition of legal understanding.12

Feminist jurisprudence usually frames its responses to traditional legal thought in terms of whether
or not the critic is maintaining some commitment to the tradition or some particular feature of it.
This split in responses has been formulated in a number of different ways, according to the
particular concerns they emphasize. The two formulations found most frequently in American
feminist jurisprudence characterize the split either as the reformist/radical debate or as
the sameness/difference debate. Within the reformist/radical debate, reformist feminists argue that

12
Deshpande Shashi interview with M Rati, Eve’s Weekly, June 1998,

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the liberal tradition offers much that can be shaped to fit feminist hands and should be retained for
all that it offers. These feminists approach jurisprudence with an eye to what needs to be changed
within the system that already exists. Their work, then, is to gain entry into that system and use its
own tools to construct a legal system which prevents the inequities of patriarchy from affecting
justice.13

Under the sameness/difference debate, the central concern for feminists is to understand the role
of difference and how women’s needs must be figured before the law. Sameness feminists argue
that to emphasize the differences between men and women is to weaken women’s abilities to gain
access to the rights and protections that men have enjoyed. Their concern is that it is women’s
difference that has been used to keep women from enjoying a legal status equal to men’s.
Consequently, they see difference as a concept that must be de-emphasized. Sameness feminists
work to highlight the ways in which women can be seen as the same as men, entitled to the same
rights, protections, and privileges.14

13
Ibid.
14
Shobha De, ‘ Selective Memory: stories of My Life,’Penguin, New Delhi, 1998,p21

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CENTRAL CONCERNS: QUESTIONS OF THEORY AND PRACTICE

In asking theoretical questions, feminists are concerned with how to understand the law itself, its
proper scope, legitimacy, and meaning. Many of these are the questions of traditional legal theory,
but asked in the context of the feminist project: What is the proper moral foundation of the law,
especially given that any answer depends on the moral principles of the dominant structure of the
society? What is the meaning of rule of law, especially given that obedience to law has been an
important part of the history of subjugation? What is the meaning of equality, especially in a world
of diversity? What is the meaning of harm, especially in a world in which women, not men, are
subjected by men to certain kinds of violence? How can adjudication of conflict be properly and
fairly achieved, especially when not all persons are able to come to the adjudication process on a
“level playing field”? What is the meaning of property, and how can women avoid being
categorized as property? Is law the best and most appropriate channel for the resolution of conflict,
especially given its traditional grounding in patriarchal goals and structures?

Although feminists have addressed all these questions and more, perhaps one issue stands out in
many feminists’ eyes as a matter of special importance, encompassing as it does some aspect of
many of the questions noted above. The issue that for many feminists is at the heart of concerns is
that of equality and rights. Two others that may be considered nearly as central are problems of
harm, and of the processes of adjudication.15

A. EQUALITY AND RIGHTS

Law works partly by drawing abstract guiding principles out of the specifics of the cases it
adjudicates. On this abstract level, theoretical questions arise for feminist jurisprudence regarding
equality and rights, including the following: what understanding of equality will make it possible
for women to have control over their lives, in both the private and public spheres? What
understanding of equality will provide an adequate grounding for the concept of rights, such that
women’s rights can protect both their individual liberty and their identity as women?

15
Neb N K,’ Writing of Shobha DE, ‘Prestige, New Delhi, 2006, p21

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Examinations of equality are, therefore, often framed by particular substantive issues. For
example, much feminist jurisprudence regarding equality is framed in terms of concerns about
work. If women are equal, then how will this be expressed in workplace law and policy? One of
the key issues in this field has been how to treat pregnancy in the workplace: Is it fair for women
to have extended or paid leave for pregnancy and birthing? Under what circumstances, or
limitations? Are women being given “special” rights if they have a right to such leave? The
struggle over the proper understanding of pregnancy and work raises questions about whether
women should be treated in such law as individuals or as a class. As individuals, it has seemed
relatively easy for workplaces to claim that not all employees are given such leave, and thus that
women who do not are being treated “equally”. One feminist strategy has been to attempt to revise
such law to recognize the particular difference of women as a class. Herma Hill Kay, for example,
argues that pregnancy can be seen as an episode which affects women’s ability to take advantage
of opportunities in the workplace, and that pregnant workers must be protected against loss of
equal opportunity during episodes of pregnancy.16

B. UNDERSTANDING HARM

Perhaps the most difficult question for feminist jurisprudence regarding the issue of harm is that
of perspective: who defines and identifies harm in specific cases? Given that law has traditionally
worked from a patriarchal perspective, it is perhaps not surprising that identifying harm to women
has been problematic. A patriarchal system will benefit from a very stingy recognition of harms
against women. Feminist jurisprudence, therefore, must examine the basic question, what is harm?
It also must ask, what counts as harm in our legal system, and why? What has been excluded from
definitions of harm that women need included, and how can such trends be overturned?17

16
Chitnis Suma ‘Alphabet of Lust’, Kenyan Review, Vol. VIII. 1951.
17
Ibid.

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 C. THE PROCESSES OF ADJUDICATION

Many feminist jurists challenge the processes of adjudication by raising questions about the
neutrality or impartiality those processes are assumed to embody. Neutrality is believed to function
in the law in at least two ways. It is assumed to be built into the processes of the law, and it is
assumed to be produced by those processes. Feminist jurisprudence challenges the first set of
assumptions by raising questions about legal reasoning. It challenges the second by raising
questions about how a law created and applied by partial and biased persons can itself be neutral.
Thus feminist jurisprudence also raises the question of whether neutrality is a possible, or an
appropriate, goal of the law.18

18
Ibid.

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 FEMINIST JURISPRUDENCE IN INDIA

Feminist Jurisprudence or legal feminism in India can be said to have emerged as a distinct
category of feminist movement in late seventies as a reaction towards some of the overtly biased
judicial decisions. Before that the origination of women's movement can be traced back to the
period of subservient status under colonial rule. Like elsewhere in world, movement had focused
on the reform of women's social position and in India it was especially aimed at eradicating some
of the traditional but evil practices like 'Sati', 'Devdasi' system, child marriage, seclusion of
widows etc.19

These reforms under colonial rule were sought through recourse to law since attempts were made
to root out the practices against conventional and deep rooted beliefs of the society. Next major
attempt for reforms came through immediately after independence, where in Government made
considerable and revolutionary reforms in laws relating to Hindus towards improving the status of
women although, these measures were required in the laws of every religious community. The
Hindu society was experiencing many social reformists which helped the government to modify
and reform Hindu law while due to many other considerations personal laws of minority
communities were left undisturbed. Thus in both instances Law, which is an important institution
in most contemporary societies was used as a tool for social reform. Now, more than five decades
after independence, at the turn of 21st century, when role and efficacy of law in empowerment of
women and in social change in general is questioned, law is still considered and used as one of the
important mechanisms to uphold and support the cause of women in India.20

The new feminist theory advocates for looking beyond goals of gender equality and related rights.
Feminist analyses of law usually take the form of pointing out those laws as enacted and
implemented by state agencies are biased against women and are in favour of men. It is also
claimed that the creation of a 'new corpus' of rights for women ignores the ideological power of
law to mask social reality and obstruct social change. In view of the demonstrated ineffectiveness

19
Basu, Aparna, 1976, “Role of Women in the Freedom Movement”, in B.R.Nanda, ed, Indian Women From Purdah
to Modernity, Vikas, Delhi.

20
Chattopadhyaya, Kamaladevi, 1983, Indian Women’s Battle for Freedom, Abhinav Publications, New Delhi

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of legal rights in ending oppression of women, some western feminists and legal scholars are now
abandoning rights based claim altogether. There exists a considerable literature documenting how
law upholds the division between the public and private spheres and is thus disadvantageous to
women. The liberal feminist efforts to make the state responsible for welfare services like child
care and health care as means of ensuring substantive equality to women attract the charge that
this measure will strengthen the hold of the state on women. The argument, briefly, is that formal
legal intervention by the state in the personal life of people weakens the family bonds and makes
individuals more susceptible to state control.21

Considering all these contentions it can be said that there is no consensus about what needs to be
done. All the above kind of discussions tend to make the whole debate regarding women's
oppression very abstract and theoretical , taking it far away from reality, especially in Indian
context. Feminist objections to gender equality or negative role of law are not of much relevance
in India. Feminist authors who point to the drawbacks of law reforms all live in societies in which
women have already gained formal equality. Their concerns have shifted beyond law reforms and
legal rights only after they had virtually achieved legal equality with men. But the first wave
feminism had started everywhere demanding legal equality with men. Just as first wave feminist
could not contemplate kind of demands made by second wave feminist, so in Indian context,
women who do not even have a parity of rights regarding divorce, maintenance, custody,
guardianship, inheritance and like matters cannot realistically be expected to make demands for
the autonomy to control their sexuality or the right to the inviolability of their bodies. This almost
equal legal status of women in west permits them to focus on alternative strategies for ending the
oppression of women. They can afford to reject law reform if it no longer yields sufficient gains.22

In India, however, even after five decades of independence, women still do not have equal legal
rights. Most women often do not have the option to step out of oppressive family situations and
therefore cannot afford to ignore law reform as one of the strategies in their struggle against
oppression. Performing their role, women do bear child but a large number of them have no choice

21
Forbes, Geraldine, 1998, Women in Modern India, Cambridge University Press, Cambridge.

22
Lerner, Gerda, 1981, The Majority Finds Its Past, Placing Women in History, Oxford University Press, London,
New York, Toronto, etc.

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regarding how many and when. Concern for a women coming from modernized western nation
may be, "my son would grow up and perpetuate patriarchy" but for a woman in India, concern is
"what if she is not able to bear a male child" or " how can she keep her female child alive?”23

Thus, still largely under first wave of feminism, legal equality is the major concern. Law cannot
be rejected as a tool of reform in spite of its limitations. Nevertheless it is important to note that
while reality for women in India is much different from that of west the demands like those made
by second wave feminists are not altogether absent. Demands for rejecting traditional norms of
femininity and sexuality, claims for inviolability of the body for every woman, change in legal
concepts and legal categories to deal with problems specific to women have also gained ground.
The fact that women are trying to eke out balance between the forces of modernization and
traditional values adds to the peculiarity of the situation, as India, especially the urban areas are
largely under the influence of both kinds of so called waves of feminisms, where law as a social
reformer can neither be accepted nor rejected in its totality.24

23
Nanda, Reena, 2002, Kamaladevi Chattopahdhyaya, Oxford University Press, Delhi
24
Ibid.

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 CONCLUSION

Throughout the study it has emerged that somehow this status continues and various laws
contribute to this paradox. Every time the law, which is very often alleged to be an oppressor has
come to the rescue of women, was seen to be favoring them it has done so half heartedly. The
state, the governing bodies, the polity have extensively used the inherent flexibility of legal system
in their vested interests. Women empowerment has always been professed as an objective of
government during various modifications and amendments in law, but given the deeply entrenched
patriarchal system, they could never be achieved up to the desirable levels. The law reformers had
to tread a fine line in giving women better rights but not seeming to take away any of the privileges
of men. In Indian context this patriarchy is further shaped by an additional but the most important
element, Religion.

Religion, which defines the lives of people in India, and is supposed to give meaningful ways of
life, has been used since a long as an instrument to oppress women. In this study, the dichotomous
behavior of state is well exemplified by analysis of the laws relating to marriage, divorce, adoption,
guardianship inheritance and maintenance. In each of these laws, not only women are
disadvantaged again men, but there exists extreme discrimination between women of different
communities, and again it is religion and respect of religious freedom which are used as insidious
excuses for tolerating such discrepancies. It is true that every state is composed of hierarchy of
interests and every time while giving priority to one, other interests have to be subordinated.
Probably, that can be accepted as valid justification by a state in post partition independent India
for extending equality, though only partial, to Hindu women, and deciding to do nothing for
women of minority communities, but the disturbing realization is that in a long period of more
than fifty years after independence, women could never assume priority in hierarchy of interests.

This gives rise to an important question if the government regulated by political and religious
considerations can be relied upon for further positive action. Inspire of all the negative points in
Indian situation, State and law are the most important sites for struggle. This is further
substantiated by the fact that even in case of reforms for Hindu women, besides the state's own
zeal to appear progressive; it had to concede to the pressure of reformers, activists and women's
movements. This intensifying crusade for women’s because has also been successful in extorting

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out some more important concessions from the state for empowerment of women. Inclusion of
special categories of crime against women likes 'dowry deaths' and 'custodial rape' is some of the
encouraging example. On the same lines are 73rd and 74th amendments in the constitution, which
have set a unique example by providing governance rights to women at local level both in rural
and urban area. Furthermore, it is to be remembered that every society is composed of hierarchy
of normative values and in this there are people (though miniscule) at the top of hierarchy, at some
stage, who transcend their times and are critically aware of oppressiveness of certain values, which
their society professes, adores and suffers in. Such people themselves being conscientising agents
can act as conscientizing multiplier to generate sensitivity in the society. It is heartening to realize
that Indian society is not completely devoid of such agents. Indian judiciary presents a strong
example of the same. Series of decisions in case of 'Pratibha Rani,' 'Sarla Mudgal,' 'Geeta
Hariharan', 'Vishaka', 'Shah Bano', 'Mary Zaharias' which have been cited in this study are only a
very few examples exhibiting the sagacity and sensitivity of the judiciary, which gives the women
all the reasons to keep the optimism and struggle thriving.

It may thus be concluded that isolated but numerous efforts have been effective in shaping feminist
jurisprudence in India. It has gained a foothold in the country and is passing through a transitional
phase. It is zealously combating retrogressive fundamentalist forces with its inner strength
supported by international community. There is courage of conviction and immense potential
which is finding increasing support at all levels. The time is not very far when the discipline will
be institutionalized not only in the educational system but also in the political, social and economic
systems of the country and the world may see India emerge as a major force in the global
community to support the cause of feminist jurisprudence.

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 BIBLIOGRAPHY
➢ N.K. Chakraborti : Principles of Legislation & Legislative Drafting ; 2nd Edition , 2002.
➢ Dias, Jurisprudence ( Indian Re print ) , Aditya Books.
➢ Freidmann W., Legal Theory (1999) Universal, Delhi.
➢ Salmond on Jurisprudence (1999) Tripathi, Bombay.

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