Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (23 page)

Because the SMA did not draw explicitly from religious norms and did not pertain to a specific religious group, certain postcolonial policy makers felt that its wider application would enable the secularization and homogenization of family law. Indeed, C. C. Biswas, the Union Minister of State for Law, said when he introduced a revised SMA in the Rajya Sabha that it was a “first attempt of Government to secure for the citizens a Uniform Civil Code in one branch of the law,” and that it would help build a homogeneous society.
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The new SMA passed in 1954 was more modernist in various respects than the HMA—for example, it offered women more extensive inheritance rights and couples easier access to divorce. All couples were allowed to opt for this act, and couples whose marriages were initially governed by their personal laws were permitted to change the terms of their marriages by registering them under the SMA later. This act was framed mainly in terms of universalist values—for instance, as shaped by the dictates of eugenics—in contrast with Hindu law reform, which was framed significantly in terms of Hindu tradition and regional and caste customs.
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These features of the SMA suggested that the act would initially apply modernist norms to a social vanguard that preferred such rules to their personal laws, and to all others once public opinion was appropriately shaped. Some SMA proponents said that the act should govern all citizens soon.
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These suggestions, however, were contrary to the act’s name and its preamble, which said that it provided “a
special form of marriage,” as well as with Biswas’s statement that he expected only a few couples to choose the SMA for a long time, primarily those belonging to different religious groups.
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Moreover, policy makers portrayed Hindu law reform, not just the new SMA, as a step toward a UCC, and gave the SMA much less attention than Hindu law.

While committees had drafted plans for a Hindu code since 1941, a new Special Marriage Bill accessible to all citizens was framed only when the second parliament met in 1952. (Separate rules to govern civil marriages were proposed earlier as part of the HCB of 1948, and they would have been unavailable to Muslims, Christians, Parsis, and Jews in this form). This bill was hastily drafted, and included many features of the act of 1872 that were less modernist than the reformed Hindu law proposals then under consideration. This was particularly the case regarding its divorce provisions, since the initial bill retained the rule that the Indian Divorce Act (IDA) of 1869 would govern couples that registered their marriages under the SMA. The IDA, which applied mainly to Christians, provided extremely limited divorce rights that differed for men and women. It enabled men to seek divorce only on the ground of adultery, and allowed women to do so only if they could demonstrate adultery as well as another spousal fault. This made divorces very difficult for Christians to gain, and various Christian representatives had already approached the Law Ministry to amend these provisions.
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The initial bill also denied adoption rights to couples that would be governed by it, basing itself on the act of 1872. This meant that Hindu couples that opted for the SMA would have lost the adoption rights that Hindu law gave them.

Ambedkar, who now sat in the opposition benches, criticized the excessive borrowing from colonial legislation, called the initial divorce proposals retrograde, and argued that the provision to sever SMA couples from joint property, initially introduced on the insistence of conservatives to penalize those who contracted unorthodox marriages, should be dropped.
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Two parliamentary committees subsequently included divorce provisions in the bill that were more extensive than those in the HMA (including a provision for mutual-consent divorce that faced some opposition in parliament), and deleted the clause that prevented adoption. The path to these outcomes shows that the policy elite did not clearly direct its ambitions to promote modern
family practices toward the conception of the SMA as it had with its Hindu law proposals.

Many features of the eventual legislation made it unlikely that large numbers would choose to be governed by it soon. First, religious personal law remained the default choice for couples belonging to the same religious group. This seemed to place those choosing the SMA on the margins of their religious group, although they no longer needed to renounce their religious identities. This was particularly the case as the Indian Succession Act (ISA), which governs Christians, also applied to the inheritance of the property of SMA couples, appearing to impute a Christian identity to non-Christians who opted for the SMA.
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Second, policy makers removed only a few of the obstacles to the registration of marriages under the act. Couples registering under the act still had to give a month’s notice of their weddings; until 1976, Hindu couples doing so were legally separated from their joint families; couples belonging to different religious groups continue to face this consequence; and Hindu couples whose only living son chooses the SMA could adopt a son to perform their
pinda
. SMA couples were penalized in these ways despite the opposition of many parliamentarians.
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Third, couples choosing the SMA had no adoption rights, because most courts interpreted the SMA’s silence regarding adoption to mean that Hindu couples choosing the SMA could not adopt children rather than retaining the adoption rights that Hindu law gave them. Fourth, as the Hindu Marriage Disabilities Removal Act had accepted intra-
gotra
and intra-
pravara
marriages and the Hindu Marriages Validity Act had accepted intercaste marriages in Hindu law in 1946 and 1949 respectively, it was no longer necessary for such couples to register their marriages under the SMA. Fifth, only a minority of citizens preferred the more modernist provisions of the SMA to those of the various personal laws, making it more unlikely that many couples would choose the SMA.

Hindu conservatives resisted the SMA much less than they did the changes in Hindu law, because the former act seemed very likely to apply only to a small number for the foreseeable future. This enabled the SMA’s quick passage and its formulation along more modernist lines. While fifteen years passed between the presentation of the first Hindu Law Committee report and the passage of three of the four major acts of Hindu law, the SMA was
passed within two years of its presentation to parliament. Its inheritance and divorce provisions especially gave women more rights and individuals more autonomy than the major personal laws. The ISA, which governed the inheritance of the property of all couples choosing the SMA until 1976 and still governs non-Hindu couples making this choice, gave daughters a greater share in ancestral property and easier access to such property than Hindu law (insofar as it did not provide for joint property in which women’s shares were limited) or Muslim law (equal to, rather than half of, the share of sons). The SMA enabled divorce on the same grounds as those for judicial separation (including mutual consent), and these grounds were more extensive than those under Hindu law. It did not require judicial separation before petitioning for divorce on most grounds. Moreover, it set a higher minimum marriage age for women (eighteen rather than sixteen) and placed fewer restrictions on intrakin marriage (disallowing marriages to those sharing ancestors or descendants within three generations, in contrast with the five generations on the paternal side and three generations on the maternal side required by Hindu law since 1955). Policy makers did not feel the need to introduce the special provisions they had retained or added in Hindu law to maintain joint property and discourage divorce in the SMA; they assumed that the social vanguard choosing the SMA would be more independent of family support and would have the maturity to manage their shares of family property effectively and to resist any urge to resort to quick divorces. Although the SMA granted individuals various new rights, the many constraints on accessing its provisions meant that the act only partly circumvented the control of communities and families, contrary to Perveez Mody’s understanding.
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Conservative Muslims resisted the SMA far more than conservative Hindus did; they especially opposed the application of non-Islamic inheritance laws to Muslims. B. Pocker Sahib and Kazi Ahmad Hussain of the Muslim League argued accurately that Muslims who opt for the SMA could inherit property from agnates who would lack the reciprocal right to inherit their property; and wrongly that the SMA would reduce the inheritance and divorce rights of Muslim women. Since they could not muster much parliamentary support and the SMA was optional, parliament ignored their objections. The Muslim League registered its opposition to Muslims having access to the SMA, but conservative Muslim organizations ended their opposition to the act later.
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III. THE POLICY OUTCOMES AND THEIR CONSEQUENCES

Approaches to family law were shaped by the state’s association with secularism in a multireligious country in which religion plays major public roles; by official commitments to recognize cultural specificity and, at the same time, promote national consolidation; by the inclinations of policy makers to gradually promote forms of modernity based in indigenous cultures; and by the inclination of political elites to build broad coalitions. The choices made based on these concerns in the first postcolonial decade set the framework for subsequent policy.

Visions of indigenous forms of modern family life focused on Hindu law; no significant changes were made in the minority laws until the 1970s, although opinion and mobilization did not favor personal-law reform significantly more among Hindus than among Muslims. The changes made in Hindu law were based both on visions of authentically Indian forms of modern family life and on specifically Hindu norms, both enduring and emergent. Although they drew heavily on Hindu norms, these changes were presented as a step toward a UCC. The association of Hindu law reform with the formation of future civil laws was part of a majoritarian approach to forming nation and citizen. The SMA was changed to give a small social vanguard a slightly wider path to civil family laws, and policy makers claimed that this would also pave the way to a UCC. However, the much lesser attention that political elites gave the SMA than Hindu law and the constraints placed on couples governed by the SMA suggested that a UCC might draw mainly from Hindu law.

Although Hindu law was changed and the minority laws were not in the first postcolonial decade, Hindu law did not provide women more rights or individuals greater liberties after these reforms than the other personal laws did in various respects. For instance, Christian law, Muslim law, and the customary laws of various matrilineal tribes gave women greater rights to ancestral property, and Muslim law gave them more divorce rights, than Hindu law did. There were many reasons for the mismatch between the focus of early postcolonial reform and the extent to which the various personal laws recognized women’s rights and individual autonomy. First, some of the minority laws favored these ends more in certain respects than Hindu law did before
the reforms of the 1950s. Since it was codified in the 1860s and 1870s, Christian law gave women greater inheritance rights than Hindu law. Muslim law provided women more rights to inheritance and divorce than Hindu law, especially after it was changed in the 1930s.
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Second, the visions of family life that motivated the reform proposals did not favor women’s rights and individual autonomy in all respects. For instance, many reform proponents valued the stability of the nuclear family, rights to the spouse’s conjugal company, widows remaining a part of their dead husbands’ enduring social personality by not entering other conjugal relationships, and patrilineal or bilateral constructions of family identity. As a result, even the initial Hindu law proposals included only limited divorce rights, underlined rights to the company of one’s spouse even if she preferred to live on her own, made the widow’s claim on her dead husband’s property contingent on her “chastity,” and did not draw from the matrilineal norms of some Hindu groups that especially favored women’s conjugal autonomy and access to property.

Third, modernist policy makers aimed to signal their family values more than to promote rapid and potentially unpopular social changes, to limit the political costs of reform. Thus, they indicated that women were equally worthy of owning property by giving them rights to shares equal to those of their brothers in their parents’ separate intestate property, but did not ensure women’s empowerment by limiting testamentary rights. Fourth, modernist political elites abandoned some of their initial proposals to avoid an erosion of conservative support and maintain the Congress Party’s dominance. The resistance was strongest to giving women (especially married daughters) substantial shares in their natal family’s ancestral property, which was contrary to the widely shared patrilineal constructions of family identity. As a result, the legislation retained joint property that could not be readily decomposed into individual shares, limited women’s shares in such property, provided testamentary freedom with regard to such property, and gave state agrarian legislation priority over Hindu inheritance rules.

Agnes and Som highlighted how the legislation of the 1950s failed to promote women’s rights effectively.
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They indicated that divorce rights and antibigamy law had ambiguous implications for women because of their limited
economic autonomy, that bigamy law had loopholes that judicial interpretation widened to seriously limit the punishment of bigamists, and that the proposal most valuable to women—giving women equal access to ancestral property—was not adopted. Various studies show that the majority of Hindu parents used two features of inheritance law to avoid giving their daughters their intestate shares of family property.
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First, they used their freedom in testamentary rights, which they had even earlier in separate property but gained in joint property through the reforms, to bequeath most of their property to their sons. Second, some of them placed parts of their property in coparcenaries jointly owned with their sons. This limited their daughters’ shares in such property even in the absence of wills, and restricted their access to these notional shares. Srimati Basu demonstrated the inaccuracy of claims often made in support of the grant of much family property to sons—that daughters get a commensurate share in the form of marital expenses, dowry, and dower, and further property or at least maintenance from their husbands’ natal families.
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She found that parents direct fewer resources to their daughters’ weddings than to their sons’ inheritance; daughters do not benefit from such expenses after their weddings; their husbands and in-laws invariably control their dowries; dowries tend to be much higher than dowers; and women often do not control their dower either, although they had the right to do so even before independence. The serious limits to women’s control over property and the inadequate implementation of decrees for the maintenance of separated and divorced women further restricted women’s gains from divorce and antibigamy law.