Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (17 page)

Personal-law reform soon after independence was less extensive in another way. It applied only to Hindu law even though initiatives to change personal law based on the concerned group’s norms and practices were of comparable strength among Hindus and Muslims, and such initiatives had emerged among Christians too. The fact that most political elites were far more engaged with the initiatives and traditions of the Hindus than with those of the religious minorities reinforced the predominant emphasis that Indian nationalist discourses placed on Hindu norms and the Hindu community, and led policy makers to focus their efforts to promote modern and culturally Indian forms of family life on Hindu law. These circumstances, and the prior stereotypes that most Hindu political elites entertained of Muslims as backward, led these elites to misunderstand the reform initiatives among Muslims that were largely cast in religious discourse as efforts to maintain Muslim law in its existing form. As Muslims emphasized personal law far more than other minority mobilizers, political elites based their approach to the minority laws on their view of Muslims, and were reluctant to change them.

Legislators indicated that they might change personal law further in the future, and the Constitution urged that these laws be replaced with a homogeneous and secular family-law system. Couples were given easier access to the civil laws specified in the Special Marriage Act (SMA) in the first postcolonial decade, and this was presented as a step toward a future UCC. However, various constraints were placed on those choosing to be governed by the SMA, because policy makers feared that if many used this option, this might provoke widespread alarm about the impending secularization of public life.

The changes in Hindu law were framed as based on Hindu cultural repertoires, both older sources and norms that had emerged in recent decades in the imagination and sometimes in the practice of social reformers. Policy makers tailored these changes to make rapid and widely unpopular social changes unlikely. Despite the reliance on Hindu norms, these reforms were said to indicate the forms of family life that the state valued and wished to promote among all citizens. This suggested that a UCC, formed partly in terms of certain Hindu norms, might be applied later to the religious minorities. Some members of these groups were wary that this might be part of a
project to gradually assimilate them into an emergent Indian national culture drawn primarily from Hindu mores. Tensions between majoritarian citizen making and minority accommodation would be a recurrent feature of the formation of postcolonial family law.

This chapter explains the formation of the outlines of postcolonial personal law in the first postcolonial decade. It explores the factors and processes which shaped this policy frame—the outlooks and demands of mobilizers, the priorities and proposals of policy makers, the forms of resistance to the proposed reforms and the visions that underlay them, and the considerations that drove the resort to compromise and shaped the terms of the compromise. It highlights how the analytical approach of this study aids a fuller understanding of these processes and their outcomes.

I. THE BACKGROUND TO POSTCOLONIAL POLICY MAKING

A. Initiatives for Legal and Social Change

Various initiatives emerged to promote changes in cultural and religious practice, family relations, and the laws regulating personal life in response to the social and ideational changes of the colonial period. Scholars identify these initiatives with groups that gained Western education,
¹
educated women,
²
and urban professional and commercial groups that became somewhat independent of lineages.
³
Western education provided exposure to post-Enlightenment ideas and to accounts of modern social changes in the West, and aroused aspirations to reform or defend indigenous cultural traditions, primarily as they were conceived in colonial knowledge. The ambitions of social reformers extended to many areas of familial life. Certain members of professional and commercial groups aimed to consolidate the autonomy they had gained from rural lineages, so that they could pursue alternative lifestyles, retain more of their earnings, and face fewer constraints in investment decisions, even if lineage property had enabled their professional training and lineage-based networks aided their commercial activities. This aim directed their attention toward the personal law systems of the colonial period, which underwrote the authority of lineages and their control over property in various ways. (The
Mitakshara
school of Hindu law—which applied to most Hindus in the colonial
period—and many of the region-specific customary law systems especially upheld lineage authority).

While the men who dominated the professional and commercial elite mainly aimed to choose their spouses, organize their house holds, and determine their heirs as they wished, some women wished to build their conjugal relationships on less unequal terms, gain easier redress from intimate abuse, and inherit and control greater shares of family property. Women’s organizations were formed in the interwar period, notably the Women’s Indian Association (WIA), the National Council of Women in India (NCWI), and the All India Women’s Conference (AIWC), and mobilized to increase women’s rights in various arenas, including family law. As these organizations engaged only in limited mass mobilization, their influence on policy depended largely on their ability to exert judicious pressure and build alliances with favorably disposed male leaders of mass organizations, particularly the Congress Party.

These groups were at the forefront of efforts to reduce constraints on spousal choice, make nuclear families more autonomous, promote companionate marriage, individuate rights to inheritance and property, increase the inheritance rights of nuclear-family members, and in some cases to increase the rights of women to enjoy family property, gain economic sustenance from kin, and lead autonomous conjugal lives. Visions of nations, of revitalized religious, regional, and linguistic communities, and of indigenous forms of modernity framed projects to reform social practice and personal law. Lawyers often based their understandings of the relevant cultural traditions on colonial personal law, but some of them also relied on certain precolonial religious norms. Demands to partially replace colonial personal law with classical religious law, and to increase the powers and recognition accorded to religious courts, were strong among Muslims. Many who raised such demands revived forms of reasoning that colonial law had marginalized, particularly
fiqh
(Islamic jurisprudence that involved seeking reflective equilibrium between classical texts, the contexts of these texts, and contemporary social contexts),
takhayyur
(selective borrowing from other Islamic legal schools), and
ijtihad
(innovative methods of legal interpretation with a long history in Islamic practice). Some Hindus also grounded their demands on precolonial
smrti
texts, like the Manu
Smrti
(dated between 200 BCE and
200 CE) and the Yajnavalkya
Smrti
(between the third and fifth centuries CE), and more often on authoritative commentaries on these texts, especially the
Mitakshara
(circa eleventh or twelfth century) and the
Dayabhaga
(circa twelfth century), that were important sources of colonial Hindu law.

Certain cultural mobilizers promoted the cultural and political solidarity of particular religious groups by consolidating the personal laws that governed them, overriding prescriptions specific to schools of law, sect, region, and caste that the colonial courts recognized. Various Muslim religious and political elites mobilized through the 1920s and 1930s to apply Islamic law rather than South Asian customs to all Muslims in family matters, leading to the passage of the Shariat Act in 1937. This act did not specify the version of Muslim law that would be authoritative, and the courts generally followed colonial judicial precedent. Efforts to consolidate Hindu law began later, partly in response to the consolidation of Muslim law and the Pakistan movement, and influenced the committees that proposed Hindu law reforms in the 1940s.

Still others wished to change and increase the scope of civil and criminal laws pertinent to family life that applied to all Indians, such as those concerning child marriage, spousal violence, and the maintenance of female and minor kin. A few wished to homogenize and secularize family law soon, or to provide citizens the option of being governed entirely by secular family laws. Many more felt that the introduction of a UCC would be unpopular for some time, and so wanted the state to commit itself to this change without setting a time horizon for it or specifying the UCC’s content. There was no correspondence between whether groups relied mainly on religious or secular reasoning and the extent to which they sought to maintain or reduce gender and generational inequality. Thus, alliances often formed between groups guided significantly by religious reasoning and those with more secularized outlooks, both to change and to maintain the existing personal laws.

B. Late Colonial Policies

The colonial state claimed it would not interfere in religious practice after the Great Rebellion of 1857, in a posture that was in some tension with its ongoing interpretation and adjudication of personal laws partly based on religious traditions. The courts attempted to resolve this tension by relying on what
they took to be the authoritative understandings of religious scholars regarding Hindu, Muslim, Parsi, and Jewish law, while vetting these understandings according to standards of “justice, equity and good conscience” that they conceived and applied inconsistently. The statutes of Christian law were largely drawn from English and Scottish family law of the mid-nineteenth century, and the courts often interpreted them in the light of subsequent changes in British matrimonial legislation. The posture of noninterference made colonial bureaucrats reluctant to change personal law. But reformist mobilization sometimes overcame such reluctance, especially once institutions of self-government grew in the early twentieth century and gave some Indian political elites influence over legislation.

Some changes were introduced as a result in criminal law, Hindu law, and Muslim law. For instance, the state specified and later increased an age of consent, established a minimum marriage age, and made men responsible to support their minor children and indigent wives. Moreover, Muslims were allowed to make bequests of a portion of their property that did not need to conform to Islamic inheritance rules, a provision that they typically used to increase the shares of nuclear family members. The
Mitakshara
school of Hindu law, as it was imagined in colonial law, recognized property jointly held by coparcenaries, typically composed of male kin. Upon the death of a member, shares in such property passed to the other members (who were considered “survivors”), rather than passing to individual heirs based on wills or the rules of intestate inheritance of property owned by individuals. The rules concerning joint property limited the ways in which it could be sold or its proceeds invested. Reform empowered individual Hindus to retain the income they earned as a result of their education, rather than being obliged to share such earnings with the other coparceners whose joint property had supported their education. Hindu widows gained the right to remarry, and later to enjoy (though not bequeath) a part of their ex-husbands’ property; Muslim women gained divorce rights under specific circumstances.
⁴
Further personal-law reforms and uniform family laws were introduced in particular presidencies (administrative units) of British India, and in certain princely states governed by hereditary Indian rulers under indirect British rule. They provided divorce rights or changed the inheritance rules for various groups.
The mobilization that led to these legal changes and the debates to which these reforms gave rise influenced how policy makers considered the course of postcolonial family law.

II. POLICY FORMATION AFTER DECOLONIZATION

A. Understandings of Aims, Processes, and Outcomes

i. Focus on Hindu Law Reform. Scholars offer different understandings of the reasons for the personal-law policies adopted in the first postcolonial decade—specifically, for the focus on changing Hindu law, and for the particular changes introduced. Many consider the exclusive attention to Hindu law a result of the special interest in minority accommodation. They ignore the possibility that minority accommodation could have been reconciled with culturally grounded changes in the minority laws. Moreover, some of them readily accept policy makers’ views that Muslims opposed changes in their personal laws.
⁵
However, this view of Muslim and minority opinion was inaccurate, as many critics indicated at the time.

Even among Muslims, assumptions about whose opinions most influenced the decision not to change the minority laws, some mobilizers were open to reforms in their personal laws based on the group’s norms, practices, and opinions. Various
ulama
such as Maulana Hussain Ahmad Madani of the Darul Uloom Deoband (DUD), Muslim elites educated in secular institutions such as the lawyer-jurists Badruddin Tyabji and Asaf Ali Fyzee, Muslim women’s organizations like the Anjuman-i-Khavatin-i-Islam (All India Muslim Ladies’ Conference), and certain Muslim leaders of the AIWC wished to proceed further with the reforms begun in Muslim law in the 1930s.
⁶
Such reformist currents influenced the positions that some Muslim leaders took in the Constituent Assembly debates on family law. Most Muslim leaders wished to retain distinct personal laws, but remained open to changes in these laws if they had the relevant group’s consent. Some like Naziruddin Ahmad and Hussain Imam were willing to envisage the future introduction of a UCC if all religious groups accepted this.
⁷
Although Christian reformers did not focus as much on personal law, some Christians had begun to demand increased divorce rights by the 1950s.
⁸