Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (21 page)

When the parliamentary Joint Committee and the Law Ministry decided to retain the
Mitakshara
coparcenary in 1955, some reformers like R. Venkataraman, Jayashri Raiji, Narendrabhai Nathwani, Rajeshvar Prasad Narain Sinha, W. S. Barlingay, R. Seshagiri Rao, Krishna Chandra, Upendranath Barman and Sushama Sen of the Congress Party, Shankar Shantaram More of the Peasants and Workers Party, Renu Chakravartty and Parvathi Krishnan of the Communist Party of India (CPI), and the independents Rajendra Pratap Sinha and S.V.L. Narasimham expressed their concern that this would constrain the individuation of property rights and limit the inheritance rights extended to women. They preferred to increase the daughter’s share in intestate joint property, to restrict testamentary rights in joint property to prevent parents from denying their daughters a part of such property, to make daughters coparceners at birth so that they could claim their shares of their parents’ interest in joint property at any point as their brothers already could, or to dissolve
Mitakshara
coparcenaries and give daughters shares in all parental property equal to those of sons.
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Conservatives such as Pandit Thakur Das Bhargava, Pattabhi Sitaramayya, Sardar Hukam Singh, Seth Govind Das, Ganesh Sadashiv Altekar, C. D. Pande, Mulchand Dubey and U. R. Bogawat of the Congress Party, and the Hindu nationalists V. G. Deshpande, N. C. Chatterjee, and U. M. Trivedi demanded the retention of the
Mitakshara
coparcenary and resisted efforts
to make daughters coparceners on birth in joint property and to give them significant shares of such property intestate, based on the prevalence and presumed value of patrilineal and virilocal practices. Because their focus was more on these practices than on
smrti
prescriptions and the rules of colonial personal law, some of them were willing to accept women’s rights that they did not feel seriously threatened patrilineal authority (such as the right of unmarried daughters to a share of their parents’ separate property and of women to a share in their husband’s and their in-laws’ property), as well as certain changes that valorized monogamy and conjugal autonomy (for example, a ban on bigamy and the recognition of intercaste marriages). These preferences were based on the patrilineal assumption that women became a part of their husband’s joint families on marriage, making their inheritance of shares of their parents’ property a diminution of the property of their natal patrilineages. In addition, Thakur Das Bhargava, Sardar Hukam Singh, Bhopinder Singh Mann, and Ranbir Singh underlined their emphasis on regionally specific practices by demanding the continued recognition of Punjabi customary law that authorized lineage control over property, levirate marriages that kept widows within their deceased husbands’ patrilineages, and the extension of all the rights of sons to adopted sons.
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While the majority of participants in the family-law debates based their arguments on particular understandings of Hindu traditions and the norms of particular Hindu groups, some of them also wanted Hindu law to catch up with or borrow from India’s other personal-law systems and the legal traditions on which these personal laws were based, in certain respects. Hindu law was considered some steps behind Muslim law and Christian law in the extent of its consolidation, and in its provisions for divorce and women’s property. For instance, Begum Aizaz Rasul, Raj Bahadur, Jayashri Raiji, and Shivrajwati Nehru welcomed the HCB for reducing the gap between Hindu law and Muslim law (or
sharia
) in the rights they provided women.
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Ambedkar urged that Hindu law should borrow the extension of shares in family property to daughters, the construction of marriage as a contract, and the associated provision of divorce rights from Islamic, Parsi, and contemporary Western law.
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R. Venkataraman added that India’s Christian law provided women more inheritance rights than Hindu law, and argued that Hindu law should be brought on a par with the other personal laws before the inheri
tance rights of men and women could be equalized and a UCC framed.
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Renu Chakravartty indicated that the restriction of testamentary rights could be drawn from Islamic legal traditions, which limit wills to a third of all forms of property to protect the shares of heirs.
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R. N. Singh Deo believed that the provision of a minimum waiting period between divorce and remarriage was based loosely on the stipulation in Islamic law that one could remarry only after the passage of
iddat
(a waiting period of three menstrual cycles after the man pronounces divorce).
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Proposals for Hindu law to borrow from the other personal laws and legal traditions only had minor influence in the early postcolonial policy debates, but became more important from the 1980s onward.

ii. Policy Making: Motivating Ambitions, Resistance, and Compromise. The opposition to many initial proposals was sufficiently strong to prevent the HCB’s passage. The Congress Party’s decisive victory in the first postcolonial elections of 1952, in which the conservative opposition had made the proposed Hindu law reforms an important issue, was presented as a mandate for these reforms. Moreover, Nehru’s popularity and strong support made it easier for the second parliament to change Hindu law. But the modernists in the Congress Party realized that the HCB had to be modified, in view of the resistance it encountered, to limit defection from the party. The focus of opposition and the priorities of policy makers influenced how the proposals were changed. The resistance was strongest to proposals that threatened patrilineal authority—specifically to women’s rights to inherit natal family property (particularly the rights of married daughters and rights to joint property)—and those that did not favor the continuity of the nuclear family, especially divorce rights. These proposals were changed most. Since more legislators accepted divorce rights than accepted granting daughters shares equal to those of sons in joint property, and since many felt that suitably restricted divorce rights would not undermine the nuclear family, policy makers changed the proposals regarding the inheritance of joint property more than those concerning divorce.

a. Hindu Marriage Law
. The main changes proposed in Hindu marriage law were to recognize intercaste, intra-
gotra
/
pravara
, and some kinds
of intrakin marriage (such as marriages to one’s mother’s cousins’ children), to ban bigamy, and to extend divorce rights based mainly on spousal fault. Divorce rights and the recognition of intercaste and intralineage marriages aided conjugal autonomy; the recognition of intrakin marriages had an ambiguous effect on freedom in mate choice, since elder kin arrange most such marriages; and the ban on bigamy strengthened the autonomy of first wives while weakening the recognition and economic implications of other conjugal relationships that men formed. Intercaste and intrakin marriages were readily accepted, because building solidarity across caste boundaries was central to Hindu reformist as well as Hindu nationalist ideas and the forms of intrakin marriage recognized were widespread in some regions. There was some resistance to a ban on bigamy because many Hindus practiced bigamy (a survey conducted as part of the 1961 census estimated the Hindu bigamy rate to be 5.8 percent), and some
smrtis
and other Hindu texts permitted a man who did not have children with his first wife to marry another woman to beget a son who could perform his
pinda
(memorial ceremony). Various conservatives cited this second reason to explain their preference to recognize bigamy at least under some circumstances.
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Many more parliamentarians opposed divorce rights than the ban on bigamy, and the Anti-HCB Committee, which spearheaded street protest against the HCB from 1948 until the 1952 elections, made divorce rights the focus of its ire. As a result, the antibigamy clause of the HMA passed without modification on a voice vote, but the divorce proposals were modified significantly and passed only after a vote in which 20 of the 170 Lok Sabha (lower house of parliament) members voted against them. Many other parliamentarians also opposed divorce rights but desisted from voting against that clause.

Legal precedent was not a reason for which antibigamy legislation faced less resistance than divorce rights. While the majority of Indians, as well as the majority of Hindus, had divorce rights under some circumstances, bigamy was prohibited for a little under a third of India’s Hindus and just over a quarter of all Indians before the 1950s. Parsis gained divorce rights in 1865, converts to Christianity and their spouses in 1866, and other Christians in 1869. While Muslim men could always initiate divorce, Muslim women were able to do so in the state courts from 1939. Muslim community courts consid
ered women-initiated divorce pleas even earlier. A majority of Hindus—many middle and lower castes—had customs of nonjudicial divorce that the colonial courts recognized. Moreover, five states (Kolhapur, Baroda, Bombay, Madras, and Saurashtra) provided divorce rights to all Hindus between the 1930s and the early 1950s. Antibigamy provisions had been introduced in Christian, Parsi and Jewish law throughout India, as well as in Hindu law in four states (Bombay, Madras, Saurashtra, and Madhya Pradesh). Ambedkar was thus accurate in saying that divorce provisions were less innovative than the bigamy ban in Hindu law.
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Hindu norms, public opinion, and reformist mobilization influenced the experiences with bigamy and divorce legislation. Although Hindu law permitted bigamy until the 1950s, Hindu texts indicated that men who did not have sons with their first wives could adopt a son to ensure the performance of their
pinda
, and reformers highlighted this possibility. Besides, Christian missionaries had brought bigamy into some disrepute, leading many Hindu reformers to promote monogamy. This reduced the opposition to banning bigamy, especially once policy makers clarified that they meant to deter the practice and protect first wives more than to punish bigamists.
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Considerable stigma attached to divorcées, especially among the upper and upper-middle castes that dominated the legal and political elite. This stigma was much greater among India’s upper strata in the 1950s than it was among the social elite of Western Europe when comparably extensive divorce rights were introduced there.
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It remained strong enough in India thereafter that the courts often denied divorce petitions for this reason. Moreover, reformers could only find stray
smrti
references in support of divorce under very specific circumstances. However, the value that many Hindu reformers gave companionate marriage urged them to offer couples in irretrievably impaired marriages the option of divorce, although their inclination to promote stable nuclear families led them not to make divorce readily available. Thus, reformers pressed for divorce rights despite considerable opposition, but framed divorce law to encourage spousal reconciliation. The Law Ministry, a Joint Committee of parliament and the Rajya Sabha (upper house) changed the divorce proposals along these lines between 1952 and 1955. Judicial separation was made more easily available than divorce. For instance, one could claim
judicial separation if one’s spouse engaged in adultery once, but could petition for divorce without prior judicial separation only if one’s spouse “lived in adultery.” The minimum time after judicial separation when divorce petitions could be considered was raised from one year to two years; the minimum time after the wedding when divorce petitions could be considered on grounds that did not require prior judicial separation (such as the spouse’s conversion to another religion, renunciation of the world by entering a religious order, and engagement in bigamy, rape, sodomy, or bestiality) was raised to three years; and the minimum period after divorce when remarriage was possible was raised from six months to a year. (The SMA, which became available to all Indian couples but which only a few couples were considered likely to choose, did not place these restrictions on access to divorce). Other changes, such as the reduction of the minimum marriage age from twenty-one to eighteen for men and from sixteen to fifteen for women and the recognition of distinctive marriage and divorce customs, also eased the HMA’s passage.
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Conservative resistance did not lead policy makers to reduce divorce rights in all respects. The Hindu Women’s Right to Divorce Bill of 1938 and the Hindu Law Committee Report of 1941 proposed divorce rights only for couples that had civil marriages. Only a small minority of Indian couples had such marriages and their numbers were not expected to rise rapidly. Official proposals made divorce available to couples that had religious wedding ceremonies too, starting with the report of the second Hindu Law Committee, of 1947. Policy makers persisted with this provision because they wished to indicate that they supported conjugal autonomy for all citizens, not just for the unconventional. The extent of resistance to divorce rights, the ways these provisions were modified to ensure their acceptance, and the persistence of reformers despite the opposition show that political elites of all inclinations attached crucial importance to how the divorce question was resolved, contrary to the claims of Everett, Parashar, Som, and Newbigin.

b. Hindu Inheritance Law
. The main changes that the HCB of 1948 proposed in inheritance law were to: dissolve jointly owned family property; give individual male and female kin shares of such property; place daughters, widows, and sons’ widows on a par with sons among the first tier
of heirs; give women half the share of their brothers in their father’s separate property and men half the share of their sisters in their mother’s separate property; make dowry the bride’s property; and place cognates on a par with agnates in the order of heirs and the property shares due to them. These changes were presented as a version of
Dayabhaga
rules that gave priority to “blood relationship” and “propinquity and love,” taken to be based mainly on nuclear family bonds rather than to patrilineal norms and sons’ imputed ritual roles. Moreover, they were portrayed as ways to increase women’s property rights and social autonomy, orient Hindu law to contemporary practices, and spark enterprise.
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