Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (22 page)

Reformers varied in their attachment to these proclaimed ends. While all of them wanted to revive the dynamism of religious law and increase women’s property rights, they constructed family identity in different ways—as the patrilineal or bilateral joint family or the nuclear family. These differing conceptions influenced the changes they desired in inheritance rights and their relative prioritization of these changes, and thus their responses to opposition. Agarwal highlighted the impact of kinship practices on women’s access to land, but not on family identity and lawmaking. Majumdar addressed the influence of kinship practices on the Hindu inheritance law reforms of the 1950s, and my analysis is similar to hers in some respects.
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The majority of Indian political elites were attached to patrilineal visions of the family, crucially because most Indians and most Hindus were embedded in patrilineal practices and patrilocal residential arrangements. This induced them to value joint property to maintain the joint family as a unit of identification and social support, and limited their inclination to increase women’s inheritance rights. It specifically made them disinclined to give married daughters inheritance rights in natal family property or to give daughters (what ever their marital status) rights to absolute ownership of the two forms of property considered crucial to the family’s status and resources—agricultural land and the ancestral residence. Pataskar largely fitted this profile and opposed the dissolution of
Mitakshara
coparcenaries, but unlike many other defenders of patriliny he was inclined to give daughters a minor share in joint property. He said that “a daughter does go out of [the] family on marriage” and that he did not wish to make daughters and their heirs coparceners in joint property because he believed this would undermine the continuity of the family.
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Ambedkar favored the dissolution of joint property and the prioritization of the rights of nuclear family members over those of extended kin, and the HCB of 1948 included these changes. But he indicated even then that he was open to the retention of joint-family control or primogeniture regarding agricultural land if most parliamentarians preferred this.
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Thus, even the Law Ministers of the first postcolonial decade were less determined to pass all the initial proposals regarding inheritance than regarding divorce, particularly as the permissive nature of divorce law (in contrast with the mandatory character of inheritance law in the absence of wills) made it the politically easier terrain on which to demonstrate modernist values. We saw that resistance was strongest to (a) dissolving family coparcenaries, (b) making daughters coparceners on birth, (c) giving daughters intestate shares equal to those of sons in joint property and in agricultural land, (d) giving married daughters shares of natal family property, and (e) limiting testamentary rights; there was less resistance to giving women absolute estate in some forms of property and making their shares equal to those of their brothers in separate property and moveable property.
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These priorities of the reformers and the conservatives and their inclination toward compromise loaded the dice in favor of aspects of the eventual legislation—maintaining joint property and giving women absolute rights to some forms of natal family property while limiting their rights in coparcenaries and agricultural land.

The Hindu Succession Bill that the Law Ministry presented to parliament in May 1954 took steps toward such a solution. It excluded the
Mitakshara
coparcenary from its purview, and Pataskar argued that making daughters coparceners in such property would make the joint family unviable.
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Many members of the parliamentary Joint Committee that considered this bill (Rajeshvar Prasad Narain Sinha, R. Seshagiri Rao, S. S. More, R. P. Sinha, Renu Chakravartty, Parvathi Krishnan, and S. V. L. Narasimham) argued that this would deny most women access to much of their natal family property, leading the Committee to apply the bill to
Mitakshara
joint property and to give daughters minor shares in such property. The Committee’s bill continued to restrict membership in these coparcenaries to male kin, who thus alone would have the right to claim shares in such property at any time as survivors. But it gave daughters a share in joint property if there was intestate succession; this share would have been the same as that of their brothers
who remained part of the coparcenary until the succession opened, and a little less than that of brothers who partitioned their shares earlier.
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Moreover, it increased the daughter’s share in the father’s separate intestate property from half of the son’s share to the same as the son’s share, and the son’s share in the mother’s separate intestate property from half of the daughter’s share to the same as the daughter’s share. Conservatives did not pay much attention to separate property, and so did not resist the equalization of shares in such property strenuously.

The Committee’s bill offset the increase in the daughter’s shares by increasing the coparcener’s testamentary powers in joint property; giving family members the preemptive right to purchase shares of such property from another member; preventing daughters from partitioning the family residence; and giving state laws meant to promote agricultural production and limit the fragmentation of agricultural land (many of which limited women’s shares) priority over the bill’s provisions. These changes addressed the concern of the defenders of the patrilineage to prevent the fragmentation of lineage property and land holdings, as well as their concern over the control of daughters-in-law over parts of lineage property (including the ancestral residence) and the entitlement of women to considerable property. Pataskar claimed that the added testamentary rights were meant to enable parents to compensate for the increased property that the rules gave sons who partition their shares during the parent’s lifetime and to adjust the property allocated to an heir according to the person’s needs; but he clearly indicated to conservatives that the rules would restrict the property that passed into the daughter’s control in most cases.
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Parliament amended the Committee’s bill so that the daughter’s share in intestate joint property was computed based on her parent’s share alone. This meant that the HSA gave daughters much lower shares than sons in such property, because sons got shares qua coparceners as well as portions of their parent’s share (upon the parent’s demise) qua heirs. For instance, in a family with a daughter and a son, there would be two coparceners (father and son) and the father would have three heirs if he predeceased his wife (son, daughter, and widow). On birth, the son would get a one-half share of the interest the father inherited in the property, which he could claim before the father’s death or upon it as a survivor. If the father did not write a will, the
son, daughter, and widow would each get one-third of the father’s one-half share—that is, one sixth of the father’s inherited interest in the joint property—making the net shares of the son, daughter, and widow two thirds, one sixth, and one sixth respectively. Clause 6 of the HSA, which specified these rules, crucially reduced conservative resistance to the bill. It became the focus of much litigation and reformist mobilization over the subsequent decades, leading to its amendment in 2005 to make daughters coparceners.

The bill of 1948 had excluded the nontribal groups of Kerala and Karnataka with matrilineal customary laws (the Marumakkattayam, Aliyasantana and Nambudri laws) from its purview, on the urging of representatives of these groups, because their customary laws gave women greater control over property than the HCB. (The HCB, along with the acts of the 1950s, did not apply to any tribal groups). However, when the Joint Committee applied the bill to these groups, thereby reducing the property rights of their women, it encountered little resistance from group representatives. This reflected a decline in support for matrilineal practices, especially among younger men. The entry of many group members into the professional elite—particularly among the Nairs, but also among the Bunts, the Ezhavas, and the Namboodiri and Thiyya subgroups whose customary laws were recognized under colonial rule—and the conversion of significant chunks of these groups to Christianity increased their aspirations toward integration into the largely patrilineal norms valued by most upper caste Hindus, Christian missionaries, and Hindu nationalists. The only features of these customary laws that were accommodated in the bill were the inclusion of mothers among the Class I heirs, and the equation of the rights of agnates and cognates.
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Majumdar attributed the retention of considerable patrilineal control over property to the visions of economic development most influential at the time and to the tendency of most political elites who favored increased property rights for women to give higher priority to the requirements of efficient production as they saw them.
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She highlighted two concerns of certain key architects of economic policy: the need to limit the fragmentation of agricultural holdings and to accommodate the value that peasants attached to a male monopoly over land ownership; she took their implications for women’s property to coincide with the preference of most indus
trialists to remove the constraints that coparcenaries placed on investment decisions, while limiting women’s property control. These orientations are said to have led to the continued authorization of the control of male kin over joint property.

While planners did not consider women’s independent land rights, as Agarwal demonstrated amply, Majumdar did not accurately depict the views of most agrarian planners at the time about the desirable size of landholdings. These policy elites believed that to increase the incentives to invest in agrarian infrastructure and optimize production, very large landholdings should be divided, the land owned by particular families should be consolidated into continuous plots, and larger farmers should be allowed to take over very small plots that they considered uneconomical.
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Partitioning very large agrarian plots, the majority of which were controlled by joint families, would have coincided with how they saw the preconditions of economic growth.

Moreover, leaders of women’s organizations such as Hansa Mehta, Sucheta Kriplani, Jayashri Raiji, Sushama Sen, Renu Chakravartty, and Parvathi Krishnan, as well as male parliamentarians who valued women’s property rights such as S. S. More and S. V. L. Narasimham, repeatedly argued that women’s inheritance rights would not increase land fragmentation or undermine agrarian management. Many other male parliamentarians, including R. Venkataraman, C. C. Shah, Rajeshvar Prasad Narain Sinha, R. Seshagiri Rao, Krishna Chandra, C. R. Chowdary, K. Kelappan, K. K. Basu, and N. P. Nathwani, argued that to stimulate economic growth, one needed to reduce the constraints that both men and women faced in their ownership and transfer of property. In the eyes of such reformers, considerations of economic efficiency only reinforced justice-driven arguments to increase women’s rights to most forms of family property and to dismantle joint property. Some of them expressed these views in notes of dissent from the Report of the Joint Committee,
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and others tried without success to amend the bill to dissolve coparcenaries, increase women’s shares in joint property, limit testamentary rights, or maintain widows’ rights in their deceased husbands’ property after remarriage.
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They did not vote against the HSA only because they realized that parliament would give women no further inheritance rights at that point. But the presence of such opinion among a significant minority of
the political elite provided a base on which later efforts to change inheritance law built.

The majority of defenders of patrilineal property control prioritized it over growth optimization. The retention of joint property, restriction of female kin’s access to such property, and increase in testamentary rights conciliated them because they felt it ensured that female kin, and married daughters in particular, would not gain much property.

c. The Special Marriage Act
. Visions of indigenous forms of modernity gained fuller influence over the SMA than over Hindu law. The SMA was introduced in 1872 as a first step to provide for civil marriage, in response to demands to recognize the emergent rituals of many members of the reformist Brahmo Samaj sect, formed earlier in the nineteenth century. It was more modernist in many respects than the personal laws; for example, it set a higher minimum marriage age than any of the personal laws did, and required monogamy, which only Christian law also did at that point. This act enabled individuals to contract marriages that crossed caste or religious boundaries, were solemnized through unorthodox wedding ceremonies, or had legal consequences that differed from those of the marriages of most of their coreligionists.

Conservatives had succeeded in limiting the conditions under which couples could register their marriages under this act in the 1870s. The act was applicable only to couples that renounced their affiliation with India’s major religions until 1923, after which it was made available to couples in which both members were Hindu, Sikh, Jain, or Brahmo Samaj members. It required such couples to give a month’s notice of their wedding plans, during which time others could contest the validity of the planned marriage. No such advance notification was required for weddings governed by the religious laws. Colonial law severed couples that made this choice from their joint families and separated any shares they might have in family coparcenaries. This granted these couples control over their shares of joint property, but also made their continued economic cooperation with their kin less likely, and was in fact meant to induce them to forego their rights to ancestral property. These restrictions deterred individuals from contracting marriages that only the SMA would recognize and from claiming the provisions of the act; they
enabled the couple’s kinsfolk to prevent such marriages. The legislation also underlined the liminal status of those who contracted such marriages by giving couples whose only living son registered his marriage under the SMA the right to adopt a son to perform their
pinda
, on the assumption that it would be inappropriate for a biological son whose marriage broke social norms to do so.
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The restrictive conditions under which one could resort to the SMA ensured that very few couples were governed by this act under colonial rule—mostly couples whose marriages the various personal laws did not recognize (such as couples belonging to different religious groups or castes, or to the same
gotra
or
pravara
), or whose wedding ceremonies were unlikely to be recognized in the courts otherwise. The major religious laws did not govern marriages that crossed religious boundaries (other than between groups practicing Indic religions); Hindu law did not recognize intra-
gotra/pravara
marriages until 1946 and most intercaste marriages until 1949.