Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (16 page)

The orientations of the majority of modernist and traditionalist political elites toward family law were similar in other respects too, as were those of the cultural pluralists and proponents of Hindu hegemony, especially until the 1970s. These elites primarily engaged Hindu initiatives, and conceived projects to form the Indian nation and to reduce deep inequalities mainly in
light of such initiatives. As a result, their discourses about the Indian nation and the Hindu community overlapped significantly, and led them to focus on Hindu law reform, which they framed as the basis for a future UCC. These discourses also influenced the ways in which they sought to change Hindu law. By way of contrast, most political elites sought to base minority laws on group culture and opinion, and did not see the making of minority laws as a means to form the Indian nation. Most Muslim political elites opposed changes in Muslim law that lacked a basis in Islamic norms, and the majority of Hindu political elites were inclined to accommodate this preference. Moreover, at least until the 1970s, most Hindu political elites misunderstood minority opinion, taking it to oppose reform, and were in any case wary of changing Muslim law based on alternative Islamic norms that they understood poorly. As a result, no changes were attempted in the minority laws until the 1970s.

The major participants in the personal-law debates of the 1940s and 1950s relied on many of the same sources to argue that their proposals promoted practices appropriate for India and enjoyed support in widely valued traditions. Regarding Hindu law, they based their arguments on the schools of Hindu law as colonial officials had constructed them, and also drew on the
shastras
, commentaries on the
shastras
that served as sources of colonial Hindu law, and customs specific to region and caste, particularly those the colonial courts had recognized. Some of them also relied on the model of the monogamous nuclear family as the main unit of domestic life and intimacy, which Western law provided at that time.

The modernists, particularly those like Ambedkar and Nehru who were trained as lawyers, mainly based their Hindu law proposals on reconstructions of colonial Hindu law, with which they were most familiar. They understood the
shastras
and commentaries on them far less, but claimed support in certain selections from these texts to convince more conservative political elites and civil-society actors that their proposals had a sound basis in the traditions these groups valued. For instance, Ambedkar proposed to give daughters greater rights to ancestral property by modifying the inheritance shares prescribed by the
Dayabhaga
school of Hindu law, and to give all Hindu men and women divorce rights by incorporating in Hindu law the divorce customs of various middle castes and lower castes, practices for which he sought support in particular
shastras
. Conservative traditionalists, including
certain Hindu religious elites, resisted these proposals based on similar sources. They gave priority to the inheritance rules of the
Mitakshara
school, which gave coparcenaries (collective entities composed of male lineage members), rather than individuals, control over ancestral property; to the colonial understanding that the
shastric
view of marriage as a
samskara
(life cycle ritual / sacred purifying ceremony / process of self-realization) gave marriage the same status as the Judeo-Christian sacrament; and to the upper-caste norm of marriage indissolubility.

Muslim mobilizers addressed the content of Muslim law based on their aim to build community solidarity, as well as with reference to certain religious traditions interpreted in view of contemporary circumstances and the relationship of personal laws to the major nationalist projects of the time. However, they made greater efforts than most Hindu elites to maintain continuity with earlier forms of religious jurisprudence, placed less rhetorical emphasis on modernity, were less inclined to follow Western precedents, and were open to the influence of Islamic discourse in other societies. Moreover, Muslim mobilizers were more uncertain than Hindus were of the relationship their religious group would have with emergent nations and states, since the nature of Muslim representation and recognition in India and the contours of the Pakistani political project remained uncertain.

Various Muslim elites proposed changes in Muslim law from the late nineteenth century onward, and changed some of its features starting in the 1910s. The major changes enabled the maintenance of family trusts and increased women’s divorce rights. Professional elites and religious elites cooperated to consolidate Muslim law through the passage of the Shariat Act in 1937. Professional elites attached greater value to the symbolic consolidation of the Muslim community in the process, while what religious elites found most important was the application of Islamic norms, rather than customs shared with members of other religious groups, to Muslim family life.

The disengagement of policy makers from Muslim law reform after independence, the periodic assertion of political elites and judges that a UCC was needed, and legislative initiatives to introduce uniformly applicable adoption and alimony laws in the 1970s led Muslim mobilizers to focus more on maintaining distinct Muslim personal laws than on changing these laws. The more conservative among them, represented in the All India Muslim Personal Law
Board (AIMPLB) formed in 1972, also rallied in favor of various judicial precedents. A number of reformist organizations and women’s organizations grew among Indian Muslims especially from the 1980s onward; they articulated alternative Islamic discourses that envisioned greater rights for women and nuclear family members. Many Muslims were disappointed with the response of conservative mobilizers to Muslim socioeconomic decline since independence, which helped the reformers challenge the conservatives more effectively.

Christian mobilizers reconstructed some features of religious discourse and reconciled other aspects of church doctrine with the changes they demanded in Christian law from the 1950s. In demanding increased divorce rights, for instance, Christian lay organizations highlighted the increased acceptance of divorce in various global churches and the growth of marital separation among Indian Christians. Recognizing that this demand was in tension with the predominant clerical view that marriage should be indissoluble, they emphasized that churches would not be required to recognize civil divorces. Some of them supported a UCC that would offer Christians adoption rights and increased divorce rights. However, because various Muslim organizations opposed a UCC and some Christians feared that a UCC would delink their religious vision from the regulation of their family lives, they reframed their demands as part of a changed Christian personal law. This linked their legal mobilization more closely to religious visions, and helped them overcome the resistance of church leaders to greater divorce rights.

IX. POSTCOLONIAL REFORM IN INDIA

Policy makers changed personal law less extensively than they did certain other colonial multicultural legacies, such as preferential policies, language policy, and patterns of devolution of authority. Preferential policies based primarily on caste and tribal identity were made more uniform across the country and the constitution was framed to permit such preferences for some time. Moreover, various vernaculars were given official status and significant power was extended to states formed mainly along the lines of language use after independence. The lower priority they accorded changes in family life led the modernists to a compromise with the conservatives over Hindu law reform in
the 1950s. The compromise gave women greater conjugal autonomy (by accepting intercaste marriages within Hindu law, reducing restrictions on kin endogamy, and enabling divorce) than it gave them access to property, as kin coparcenaries retained control over ancestral property, in much of which women could not demand shares. Of the most contentious proposals, divorce rights were introduced based on the arguments that some Hindu texts justified divorce under specific circumstances, and that the provision of divorce rights solely based on spousal fault and only two years after judicial separation made a rapid rise in divorce seem unlikely. By contrast, the attempt to give daughters substantial shares in ancestral property did not succeed because neither school of Hindu law provided for it and it seemed to pose a greater threat to patrilineal authority than divorce did, making many modernists wary of this change and conservative traditionalists particularly opposed to it.

These changes gave the majority of Hindu women new rights—for example, to divorces and to a share equal to that of their brothers in their parents’ self-acquired intestate property. But the promotion of the monogamous nuclear family also reduced certain rights of women engaged in alternative practices—for example, of women in some matrilineal groups to control property, and of later wives to inherit property from their polygamous husbands. This was a particular way in which the promotion of modernist visions of the normative family constricted the space for alternative forms of family and intimacy. The accommodation of certain Hindu traditions that conservative elites particularly valued deprived remarried widows of their rights in their deceased husbands’ property. Although only Hindu law was changed in the 1950s, these Hindu law reforms had such mixed implications for women’s rights that Muslim law gave women greater rights than Hindu law in certain respects even after these reforms. Crucially, Muslim law gave women greater access to ancestral property and quicker divorces.
¹⁰⁸

The unimplemented modernist proposals of the first postcolonial decade did not disappear from the agenda. For instance, Ambedkar’s proposal to give Hindu women the right to inherit shares of jointly owned ancestral property was reconsidered more readily when women’s organizations pressed this claim from the 1970s onward, because lineage authority had declined in the meantime and it was already a part of important modernist visions of the family. This change was introduced initially between the 1970s and 1990s in five southern
and western states, in which the prevalence of bilateral and matrilineal customs weakened the defense of patrilineal authority, and in 2005 in the rest of India. Group norms remained a basis of debate over this reform during the past decade. Proponents of the reform overcame the objection that the tradition of sons performing their deceased fathers’
pinda
(memorial ceremony) justified giving them greater rights in ancestral property, by highlighting alternative Hindu customs that allowed daughters to perform this ceremony.

Divorce was enabled on more extensive grounds among Hindus in 1976, based on mutual consent and without the necessity of prior judicial separation. This became possible because political elites valued conjugal autonomy more by then, and the provision of divorce rights in the 1950s had not led to a flood of divorces. This value change also made policy makers more willing to increase Christian divorce rights once the major Christian organizations agreed on this change in the 1990s. Proposals to enable no-fault divorce even in the absence of mutual consent did not succeed, however, because the aim of maintaining the nuclear family, particularly strong among traditionalists, coalesced with feminist concerns that this change would disadvantage most women in the absence of stronger provisions for alimony and sharing matrimonial property. The latter concerns carried weight because women’s organizations had gained greater influence over gendered social policies by then.

Minority laws were changed starting in the 1970s, as policy makers began to engage more with reformist minority traditions and initiatives. Even then, it was visions of group culture, rather than projects to form the Indian nation, that shaped these changes. Thus, judges extended alimony rights and limited unilateral male repudiation among Muslims based on particular interpretations of Islamic traditions—the construction of
mata
(provision), one of the forms of support from husbands to ex-wives mentioned in the Qur’an, as mandatory, and of unilateral male repudiation as valid only if the husband provides good reasons for repudiating his wife and spousal reconciliation is attempted. Similarly, Parsi and Christian divorce rights were increased only when mobilization grew among these groups for these changes based on reconstructing aspects of their religious traditions.

Even after the onset of minority-law reform, many policy makers understood minority traditions poorly and considered the religious minorities marginal to the Indian nation. This prevented the accommodation of certain
culturally grounded demands for minority law reform—for instance, to give Muslim women throughout India the right to inherit agricultural land and to give Christians adoption rights. Concerns to consolidate Hindu hegemony especially motivated political elites and bureaucrats to resist the extension of adoption rights to Christians because they feared that this would lead to a surge in the Christian population. The minority-law reforms of the last generation thus did not optimally use the room that mobilized group opinion and group traditions provided to promote equality and liberties. The conception of the nation, its constituent groups and cultures, and its deepest inequalities through asymmetric engagement with the major religious groups continued to limit efforts to reduce gender inequality, promote individual autonomy, and build interreligious understanding while recognizing valued traditions.

CHAPTER 3

OFFICIAL NATIONALISM, MULTICULTURALISM, AND MAJORITARIAN CITIZEN MAKING

The Formation of the Postcolonial Policy Frame

THE OUTLINES OF POSTCOLONIAL FAMILY-law policy were formed in the first postcolonial decade, and many policy changes since the 1970s fitted within this frame. The state continued to apply distinct personal laws to the major religious groups and tribal groups; it presented this decision as a way to maintain the relevance of religious norms and religious identities for certain social and cultural rights while secularizing public life in various ways. Policy makers changed personal law less extensively soon after independence than they did other aspects of multiculturalism, such as language policy, federalism, and preferential policies. They did so because political elites wished to maintain broad social coalitions, their preferences about personal law varied considerably, and the modernists among them attached lower priority to reforming personal life than to changing various other features of social and economic life.