Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (19 page)

The lines of battle over these reforms did not conform to class and occupational status as much as Sreenivas and Newbigin suggest, because religious and ethnic traditions influenced preferences regarding family life in ways
that social status does not predict. It was easier to make joint-family property accessible to women among Muslims and among Hindus to whom
Dayabhaga
law had been applied until the 1950s than among Hindus governed by
Mitakshara
law. Islamic law applied the same rules to the inheritance of ancestral property and of property accumulated by the deceased, and gave women definite shares in both kinds of property;
Dayabhaga
law prescribed that individuals inherit and control property, and many Muslims and Dayabhagagoverned Hindus connected these rules with their identities. The lack of correspondence between occupation and positions on gendered personal law is even clearer if one compares the occupational background and positions on personal law taken by the parliamentarians of the 1950s with those of the 2000s, when the inheritance rights of Hindu daughters were increased much further and women gained rights in the matrimonial home upon separation and divorce. The shares of the groups that Sreenivas, Newbigin, and Agarwal considered most averse to reforms that empower women (“agriculturists”) increased from 22.4 percent to 49.1 percent and those of the groups considered favorable to such reforms (lawyers, traders, industrialists and businessmen, educators, writers and journalists, doctors, and engineers) declined from 72.7 percent to 25.1 percent between 1952 and 2004.
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Nevertheless, more political representatives supported or did not oppose the extensive reforms of the past decade than supported or did not oppose the more modest changes introduced in the 1950s.
Chapter 4
explores why the positions of legislators changed. It indicates that they changed in response to changes in the structure of ownership and control of property (particularly agricultural property), in house hold and family forms, in civil society mobilization, in gendered visions of the Indian nation, its religious communities, and its families, and in the links people made between community identity and particular features of personal law.

Agarwal more fully recognized the potential advantages that the Hindu inheritance law reforms of the 1950s offered women, but also described the various barriers that they faced in benefiting from these legal rights in considerable detail. She showed that kinship practices—specifically, group customs regarding inheritance, marital networks, and postmarital residence—influenced attitudes to family law. Groups that practiced patrilineal inheritance; village, regional, and kin exogamy; and virilocal residence offered most resistance to
the division of joint-family property (especially landed property) and the control of women (especially married women, who were taken to leave their natal patrilineages on marriage) over such property. Such groups were predominant in northern and western India, and political elites from these groups were the leading defenders of joint-family control over property. Agarwal showed that the predominance and widespread valuation of patrilineal practices blocked efforts to abolish joint-family coparcenaries and to enable daughters to claim shares in the properties controlled by these entities in national-level legislation; it also enabled the passage of land tenure laws (exempted by Article 31b of the Constitution from the need to be compatible with the fundamental rights) that limited women’s property rights most in northern and western states, while posing less of a constraint to giving daughters shares in the property that their parents had accumulated. Her analysis also shed light on why the southern states, in which practices of bilateral and matrilineal inheritance, village and kin endogamy, and uxorilocal or nuclearized residence were more widespread, led the way from the 1970s in either abolishing joint property (as happened in Kerala) or giving daughters the right to claim shares in such property (as happened in Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra).
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Agarwal’s explanation of legal change with reference to the bargaining power of coalitions that favor or oppose “gender progressive” legislation, however, ignored some ways in which her own nuanced understanding of kinship practices could inform our understanding of legislative preferences. For instance, the openness of certain defenders of patrilineal norms to giving daughters (especially unmarried daughters) access to their parents’ separate property, reducing the constraints on mate choice, and offering women divorce rights under conditions of spousal fault—even while they strenuously opposed giving women shares of joint property—do not clearly fit the “gender progressive” and “gender regressive” categories. Moreover, Agarwal is mistaken to believe that strong and cohesive women’s organizations are necessary for the enhancement of women’s rights. We saw that women’s rights were increased in the absence of these conditions in early republican Turkey and early postcolonial Tunisia, as a concomitant of the efforts of centralizing states to contain the authority of lineages and religious elites. While women’s organizations had been the most active advocates of women’s empowerment in India since
the 1920s, their influence was too limited for them to have a major say in legislation in the 1950s or even over the 2000s, when they had grown stronger. Various lawyers, political elites, and bureaucrats, most of whom were men disengaged from women’s organizations, initiated proposals for personal-law reform in the 1940s and 1950s. They responded more to mainstream visions of national and community revitalization, legal rationalization, and democratization than to agendas of women’s empowerment. Their efforts nevertheless provided women’s organizations the occasion and space to form and press their more ambitious agendas. I give more central attention to the formation of the visions of these agents, which contributed most to the initial reform proposals of the executive, and attend to how discourses of nation and community framed that vision, than does Agarwal who sees “social perceptions” and “social norms” only as constraints to reform.

Agarwal, Newbigin, Parashar, and Everett gave inadequate attention to the formation of views on conjugality; Agarwal, Parashar, and Som traced preferences regarding the formation and dissolution of marriages and the consequences of marriage dissolution too readily to practices and preferences regarding property control. Thus, Parashar and Som inaccurately assumed that all political elites gave questions of property control priority over the regulation of conjugality, and claimed on this basis that conservatives opposed the proposed changes in succession law more than those in marriage law. This led them to characterize the eventual compromise as a defeat for modernism as it provided individuals, especially women, greater conjugal autonomy than property access. The analysis of parliamentary debates later in this chapter shows that conservative resistance to divorce rights was stronger than that to giving daughters shares in their parents’ separate property, though weaker than that to giving them claims to ancestral property; and that the reformists were eager to demonstrate their valuation of companionate marriage by providing room for divorce under conditions in which the woman was clearly an unwilling party to a marriage. The reformists introduced divorce rights despite strong conservative resistance, but shaped them in ways suggested by their visions of a reformed and culturally indigenous nation—available only when spousal fault was demonstrated, two years after marital separation to maximize chances for spousal reconciliation. They believed that this was the best way to promote stable and companionate marriages, and thereby dis
prove conservative allegations that Hindu women’s newly gained property rights would undermine the nuclear family.

B. Options Considered, Choices Made

The political elites and bureaucrats that planned postcolonial policy in the 1940s and 1950s gave the following options close consideration: the retention of various colonial personal laws, including variations by sect, caste, and region; the consolidation of Hindu law; the reform of Hindu law; and the provision of an option to have one’s personal life governed entirely by civil laws. Many proposed both the consolidation and the reform of Hindu law, and most reform proposals involved the retention of various colonial-era provisions. Policy bureaucrats did not consider reforms in the minority laws because they believed group opinion was unfavorable; they did not consider consolidation because these legal systems had fewer internal variations than Hindu law. Neither did they consider the introduction of further uniform laws pertinent to family life, the expansion of the scope of religious law, an increase in the powers of community courts, or the introduction of a UCC.

The piecemeal Hindu law reforms and more extensive changes in Muslim law in the 1930s triggered demands to change and consolidate Hindu law further. This prompted the colonial government to form two Hindu Law Committees composed of retired judges and bureaucrats in the 1940s, and the postcolonial parliament to form a Select Committee in 1947–48 to consider the second Hindu Law Committee’s recommendations. The Hindu law reform proposals were modified several times between 1941, when the first Hindu Law Committee submitted its report, and 1955–56, when parliament passed four acts—the Hindu Marriage Act (HMA), the HSA, the Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act (HAMA). The revisions were particularly extensive after the first postcolonial parliament accepted only one aspect of the Hindu Code Bill (HCB), the recognition of intercaste marriages in Hindu law, after debating it over three years. The option of a civil law was initially proposed as a part of the Hindu Marriage and Divorce Bill of 1952, and such legislation would have made it available to those governed by Hindu law. It was recast in 1953 as an amendment to the SMA, to make it available to all Indians. The reports of the two Hindu Law Committees and the parliamentary Select Committee, along with the debates in
the first postcolonial parliament from 1948 to 1951, indicate the bases of the initial proposals.

i. Considerations that Influenced Policy Proposals. Policy makers claimed at times that the reforms they proposed would promote rights recognized in the constitution adopted in 1950.
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But constitutional rights did not shape the changes they proposed, the relative priority they accorded these proposals, the relative value they gave these changes and other ends such as the consolidation of regime support, and thus the compromise they eventually reached. Other considerations that influenced policy making included legal uniformity, the social solidarity of Hindus or all Indians, conformity with classical or colonial Hindu law, and the recognition of valued customs. Policy makers acknowledged the influence of all these goals.

The law ministers who presented the proposals to parliament argued that the postcolonial state should pursue legal uniformity far more than the predecessor regime had, because it valued national cohesion and administrative rationality more, and took greater pride in the legal system’s aesthetic qualities. They and other reform proponents argued that the colonial state had inhibited legal change by treating religious traditions and customs as common-law precedents; this was a reprise of critiques offered by colonial officials such as Henry Sumner Maine and James Fitzjames Stephen of how local traditions had been recognized. The postcolonial state, these reformers believed, could more effectively change personal law because its decision makers were better aware of the more gender-equal features of religious traditions and ethnic customs ignored by colonial law.
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They considered Hindu law consolidation a step toward a UCC, but varied in whether they wanted the reformed Hindu laws to become the core of the UCC. Ambedkar argued that the UCC should take as its starting point the SMA rather than Hindu law because the former was a civil law and more progressive than Hindu law. He nevertheless believed that Hindu law homogenization would aid the eventual introduction of a UCC. Hari Vinayak Pataskar and Charu Chandra Biswas, the law ministers who piloted the Hindu law reforms and the SMA through parliament in the mid-1950s, suggested that the reformed Hindu laws would be extended to other groups once they were ready for this, to the extent that these laws had beneficial consequences.
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Although the govern
ment did not commit itself to either approach, the statements of the latter ministers especially aroused fears among some minority representatives that Hindu law reform was a step toward the stealthy assimilation of their groups into Hindu norms.

The goal of legal uniformity influenced Hindu law reform at different points from the nineteenth century. The utilitarians led the call for codification everywhere. Even many proponents of historical jurisprudence, who had opposed codification in Britain and Germany, believed that it was necessary in the colonies because the shallow training of some judges in common-law jurisprudence and the limited understanding of local practices among others would otherwise lead to excessive variation in adjudication, and thus uncertainty. They also believed that the colonial state could overawe opposition to codification. The first colonial Law Commission of 1833 sketched plans to codify the Indian legal system, leading to the codification of civil law, penal law and criminal law in 1860, 1861, and 1862 respectively, and a consideration of Hindu law codification at different points through the last decades of the nineteenth century.
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Colonial officials abandoned Hindu law codification because of considerable resistance. But this plan was revived in the 1940s, as decolonization appeared imminent.

By the 1930s, some political elites believed that a postcolonial state could more effectively codify Hindu law because it would continue the Indian nationalist movement’s efforts to build a popular national culture, command considerable support, and have officials aware of local cultures.
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The proponents of legal homogenization believed it would enable administrative rationalization; the consolidation of state control; a limitation in the range of judicial interpretation; a reduction in the roles of custom, uncodified legal traditions, and colonial judicial precedent; the promotion of national unity; and the cohesion of religious communities. Women’s organizations, which demanded a Hindu code from 1934, and some modernist male leaders expected such a code to aid women’s empowerment too.
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