Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (20 page)

The modernist lawyers who framed the Hindu law proposals of the 1940s especially valued the goals associated with codification. This was particularly the case with Ambedkar, who chaired the joint committee of the first postcolonial parliament that devised the bill initially presented to parliament. Ambedkar wished to limit room for judicial interpretation so that law would
be more certain and more tightly tethered to the intention of a popularly elected legislature, and to restrict the choice available to individuals regarding the laws that govern them. His preference for legal consolidation and for the Hindu code to be complete was also shaped by aesthetic considerations: “our law . . . should not altogether be unaesthetic: It must be good to look at.”
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Ambedkar’s enthusiastic equation of Hindu law homogenization with “slum clearance” reflected the tensions between legal rationalization and accountability, as well as between Ambedkar’s concerns to promote national unity and to gain greater recognition for the lower castes and poor, who tend to be concentrated in slums.
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Ambedkar resisted the recognition of customs, suggested that only customs that were more progressive than Hindu law should be recognized (without systematically incorporating this in his proposals), and was particularly averse to recognizing new practices not incorporated in statutes.
³³
Judicial disinclination to recognize new practices would prove a predicament for those of his Mahar caste who followed his lead and converted to Buddhism, but could not induce the courts to recognize their novel wedding ceremonies from the 1950s to the 1980s.

The jurisprudential visions of some other crucial policy makers were less sharply defined than Ambedkar’s, and this made them more flexible about policy. Nehru and Pataskar were more open to the recognition of customs—especially those of tribal groups whose norms were very different from Hindu laws—valued legal uniformity only to the extent that it promoted national cohesion, and accepted the ongoing judicial interpretation of statutes.
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The legislation of 1955–56 bore signs of Ambedkar’s vision even though he had resigned from the government and the Congress Party a few years earlier. But Nehru’s approach had greater influence over these acts, for instance on the decision not to apply Hindu law to tribal groups—in keeping with the unanimous preference of legislators from these groups.
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Pataskar shared aspects of the Hindu nationalist vision, and wished to promote Hindu solidarity through legal change. He said that “bring[ing] together what are now termed Hindus” was central to the “ideology underlying the [Hindu Marriage] bill.”
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The concern with Hindu consolidation influenced aspects of the HMA; for example, it provided for divorce immediately after the conversion of a spouse to a religion originating outside South Asia, while desertion, cruelty, and adultery were only grounds for judicial
separation, which could lead to divorce two years later, until 1976. This was justified by claims that spousal reconciliation was less likely and perhaps less desirable after religious conversion than after desertion or cruelty.
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Limiting the recognition of custom also served Hindu consolidation. The aim to maintain Hindu hegemony over national culture influenced adoption law. Anxieties that the population share of non-Hindu groups might grow rapidly through the adoption of foundlings of unknown ancestry led policy makers to prevent Muslims and Christians from having adoption rights even if they registered their marriages under the SMA, and to resist demands that emerged later to include adoption rights in Christian law. In contrast, they allowed Hindu couples to retain the adoption rights that Hindu law gave them if they chose to be governed by the SMA. Parashar, Agnes, and Menski do not address the different approaches of key policy makers to legal consolidation.

While some of the policy preferences of Ambedkar, Nehru, and Pataskar were different, their visions converged in other ways. This was the case, for instance, regarding the application of Hindu law to Sikhs, Jains, and Buddhists. Ambedkar wished to apply Hindu law to these groups despite associating Hinduism with caste discrimination because he believed Hinduism was the only religion of South Asian origin associated with a legal framework. He made this claim although (a) Buddhist legal traditions existed in Burma, Thailand, and Japan, (b) distinct Buddhist laws were recognized in Burma and Thailand in the mid-twentieth century, and (c) the personal lives of the majority of Sikhs were governed by Punjabi customary law, which also regulated personal law and aspects of land ownership among various Muslim and Hindu landholding castes in the Punjab.
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Pataskar shared Ambedkar’s preference to apply Hindu law to Sikhs, Buddhists, and Jains, but unlike Ambedkar he wished to promote Hindu hegemony thereby.

Both the proponents of Hindu law reform and their critics sometimes defended their positions based on the need to conform to particular classical Hindu norms or certain customs recognized in colonial law. The two Hindu Law Committees of the 1940s (which presented their reports in 1941 and 1947) and the Joint Committees of the Central Legislative Assembly (1943) and the first postcolonial parliament (1948) took the provisions of the two schools of colonial Hindu law as their points of departure. They sought to change these
provisions in ways that bore some relationship to the visions of kinship and right underlying colonial Hindu law, while modestly advancing ends such as economic enterprise, fairness, and equity. For instance, these committees preferred the inheritance rules of the
Dayabhaga
school to those of the
Mitakshara
school because they believed that the former’s reliance on the same rules for the inheritance of separate and joint property would enable the growth of individual property, which would be conducive to economic enterprise, and because
Dayabhaga
’s emphasis on the inheritance rights of heirs rather than of survivors was favorable to nuclear family members. Moreover, they proposed to modify the
Dayabhaga
rules to (a) place daughters, widows, and sons’ widows on a par with sons and give mothers priority over fathers in the lexical ordering of a man’s intestate successors, (b) make the daughter’s share half that of a son’s without regard to her marital status, and (c) make dowry the bride’s property, basing themselves partly on the support that some
smrtis
provided for women’s property rights. While these measures were meant to reduce gender inequalities, the committees felt the need to match them by giving sons a corresponding share in their mother’s property—half that of daughters.

Policy makers later accommodated their critics by maintaining the
Mitakshara
joint family and the associated colonial construction that much of Hindu family property is jointly owned. However, they gave daughters minor shares in joint property upon a parent’s death, justifying this modification of
Mitakshara
rules with reference to popular lore that Yajnavalkya, the author of the text on which both the
Mitakshara
and the
Dayabhaga
were commentaries, divided his property between his two wives when he abandoned worldly life.
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In a similar vein, the Hindu Law Committees proposed to maintain kin exogamy, but in a less stringent form—recognizing the marriage of partners without shared ancestors or descendants within five generations on the paternal side and three generations on the maternal side; the
Mitakshara
rule prohibited marriages to kin who share ancestors or descendants within seven generations on the paternal side and five generations on the maternal side. They also wished to recognize marriages across caste boundaries and within the same
gotra
/
pravara
(imagined megalineage), as well as those celebrated without religious rituals in Hindu law, while banning polygamy and enabling delayed divorce if there was spousal fault.
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The parliamentary debates on these proposals delved further into the sources of Hindu law and various customary practices, and reforms that seemed to be based on such sources had higher prospects of success. The Hindu nationalist parties (the Hindu Mahasabha, the Bharatiya Jan Sangh, and the Ram Rajya Parishad) were unanimous and most vociferous in opposing reform in parliament and on the streets, although some policy makers argued that the reforms would promote Hindu solidarity. They resisted Hindu law homogenization mainly because many of the proposed changes were contrary to the norms of their main support groups, the twice-born castes of northern and western India. Hindu nationalists like Shyama Prasad Mookerjee (the founding leader of the Bharatiya Jan Sangh), N. C. Chatterjee and V. G. Deshpande (of the Hindu Mahasabha), and Nand Lal Sharma (Ram Rajya Parishad) resisted divorce rights, arguing that, in describing marriage as a
samskara
, the
shastras
gave marriage the indissoluble status of the Judeo-Christian “sacrament.”
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While they were willing to continue the recognition of the divorce customs of many middle and lower castes, they did not wish the state to recognize divorce rights as the Hindu norm or place them within easy reach of groups without divorce customs.
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Moreover, they made no effort to hide their disdain for the customs of south Indians, the lower castes, the middle castes, and tribes. For instance, S. P. Mookerjee said: “I say good luck to South India! Let South India proceed from progress to progress, from divorce to divorce . . . but why force it on others who do not want it?”
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As a result, the Hindu nationalists preferred that a uniform Hindu law, based on the customs of their core support groups, govern all Hindus and eventually others too, once public opinion was appropriately shaped.
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In response to these conservative interpretations of Hindu tradition that had been incorporated in colonial law, divorce proponents like Nehru and Ambedkar emphasized certain cultural grounds for divorce rights more than the Hindu Law Committees had. They argued that Orientalists had misinterpreted the
shastras
to regard marriage as a sacrament, pointed to the support in some
shastras
for divorce under specific circumstances, and claimed that divorce rights would ensure that men respect the sanctity that the
shastras
associated with marriage by calling it a
samskara
. On this basis, they said that customary divorce was no further removed from the
shastras
than were upper-caste norms.
⁴⁵
Moreover, Ambedkar argued that the customs of most
of the lower and middle castes, groups that account for the majority of Hindus, recognized divorce, and that statutory Hindu law should be based on the customs of most Hindus unless such customs were undesirable. The idea of incorporating certain lower caste and middle-caste customs into Hindu law addressed some of Ambedkar’s abiding political concerns, and attracted greater support for divorce rights in the context of growing demands for the recognition of these groups.
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It harkened back to the acceptance of diverse forms of
achara
in the
shastras
, in contrast with the view in the colonial courts that Hindu law prescribed specific practices and that alternative customs were exceptions to Hindu law.
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Moreover, it reinforced the arguments of the Hindu Law Committees that the inclusion of divorce rights in Hindu law was unlikely to trigger a divorce explosion, since divorce rates were low among the groups whose divorce customs already enjoyed judicial recognition.
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It was such interpretations of Hindu norms that led modernist political elites to propose only limited divorce rights, not the precedents of English law (which had not yet accepted no-fault divorces), as Menski claimed.
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Differing constructions of cultural traditions also entered the debates over inheritance law. The focus in this case was more on normative and current group practice, but some reformists also claimed support in certain
smrtis
and their commentaries. Ambedkar pointed out that giving daughters shares in parental property involved a return to the
Manusmrti
and the
Yajnavalkyasmrti
, which had prescribed that a daughter get a quarter of a son’s share (a prescription that custom had erased and colonial law had not considered), and that a share for married daughters was recognized in the
Dayabhaga
(which gave them priority over unmarried daughters). The Hindu Law Committees of the 1940s increased the daughter’s share to half of the son’s; a Joint Committee of parliament placed it on a par with the son’s in 1953, justifying this with reference to the dynamic character of Hindu norms and the committee’s inclination to incorporate what it considered the best emergent Hindu social practices into Hindu law. Similarly, these committees found it appropriate to extend the recognition of
stridhanam
(woman’s property, which primarily comprised dower) as absolute estate in classical Hindu law to widows’ shares in their deceased husbands’ property. They considered such changes in tune with the ongoing nuclearization of families and partition of jointly owned family property into individual holdings.
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Proponents of suc
cession law reform such as Ambedkar, Pataskar, Biswas, S. V. L. Narasimham, Hansa Mehta, Renu Chakravartty, Parvathi Krishnan, and Debeshwar Sarma reassured those concerned to maintain the joint family that the changes proposed in the property shares of kin would not make the fragmentation of family property more likely. They argued that male coparceners already had the right to partition joint property, and that the dissolution of joint property, changes in who controlled such property, and the nuclearization of residential arrangements would not necessarily weaken the solidarity of extended families. Moreover, they pointed out that state-specific legislation meant to prevent the fragmentation of landholdings had priority over the inheritance rules of Hindu law.
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These statements overcame the resistance of some defenders of lineage authority, but also indicated that their authors were more intent to signal the practices that the state valued than to ensure that many would adopt them soon.