Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (24 page)

Thus, Agnes and Som accurately depict some consequences of Hindu law reform, but partly misunderstand legislative intention. Legislators introduced some laws mainly to underwrite particular values, rather than to make all citizens adhere to these rules soon. They did not believe that the ban on Hindu bigamy ought to lead to the rapid imprisonment of bigamists, because many citizens tolerated the practice and many women in bigamous relationships wished to retain the economic support they gained as a result. Judges followed legislative intention in finding bigamy much more often when women demanded maintenance payments and a separate residence from their husbands than in criminal cases against bigamists, as we will see in
Chapter 4
.
Legislators introduced other legal changes (such as the provision of divorce rights on limited grounds) partly because they were confident that they would not thereby generate rapid social change. Judges urged most couples seeking divorce to initially attempt reconciliation, and followed legislative intention in this regard as well.

Parashar and Som closely associated the limits to women’s empowerment with a retreat from Ambedkar’s vision. However, the legislation of 1955–56 favored women more in some ways than Ambedkar’s vision would have, particularly in the significant room it left for judicial interpretation and in its retention of certain tribal customary laws.
Chapter 4
shows that the higher courts used their interpretive powers from the 1970s onward to provide women easier access to divorce by setting lower standards of proof of spousal faults; they also granted women the right to reside in the matrimonial home on separation or divorce especially if they found spousal cruelty. The retention of tribal customary laws had ambiguous effects on women’s rights because these laws were rather differently gendered. Among matrilineal tribal groups such as the Khasis, Garos, Jaintias, Lalungs, and Rabhas of Meghalaya, Tripura, Assam, Nagaland, and West Bengal, the Kurichiyas of Kerala and Tamil Nadu, and the Koyas and Malmis of Lakshadweep, customary law gave women greater access to property and more conjugal autonomy than Hindu law, at least until certain recent changes in Hindu law.
⁹²

The strategy adopted toward family law in the first postcolonial decade and the proposals and debates that led to its formation influenced subsequent litigation, adjudication, legal mobilization, and legislation in many ways. For instance, both legislators and judges continued to feel freer to change Hindu law than the minority laws. They considered evidence of support in the norms, practices, and initiatives of the relevant group a binding precondition of minority-law reform. This limited changes in the minority laws to a few minor judicial initiatives until the 1970s. A growth in reformist mobilization among Muslims and Christians and the engagement of some policy makers with these initiatives contributed to the onset of cautious minority-law reform thereafter. But majoritarian constructions of the nation continued to limit changes in minority law.

Certain modernist proposals that were not accepted in the 1950s remained a part of public debate, and some of them were adopted once conditions became favorable. More legal and political elites came to value conjugal autonomy, and they attempted to increase divorce rights starting in the 1970s. Women’s organizations and other rights organizations, which grew from the 1970s as well, initiated efforts to increase women’s rights to alimony, redress from intimate abuse, and inheritance. They resorted to litigation and popular mobilization to oppose certain features of the policy compromise of the 1950s—the limits placed on divorce rights and on women’s rights to joint property but not on testamentary rights in joint property. In the process, they revived some arguments made in the policy debates of the 1940s and 1950s: that divorce rights do not strengthen conjugal autonomy if economic support is not ensured for the economically weaker partner; that
Dayabhaga
law, which does not recognize joint property, represents Hindu tradition no less than
Mitakshara
law; that the joint family may remain a viable basis of identity even if joint property is decomposed into individual shares; and, drawing greater support from subsequent social changes, that joint-family residential arrangements were in decline.
Chapter 4
explores how these initiatives led to an increase in the grounds on which Hindus could claim divorce, a reduction and then the elimination of the required waiting time between judicial separation and divorce, and the inclusion of daughters among the coparceners in joint property. The call to increase women’s access to property by restricting testamentary rights, which has yet to be heeded, revived the argument of a few legislators in the first postcolonial decade that the limitation of testamentary rights to a third of one’s property in the Islamic legal tradition should be incorporated in Hindu law.

Early postcolonial policy discourse also influenced aspects of later Hindu nationalist legal mobilization. Its slippage between the formation of Hindu law and a UCC made it easier for Hindu nationalists to present themselves as the advocates of secular and more gender-equal family laws, once their political fortunes rose in the 1980s and public support for certain women’s rights increased. Although Hindu nationalists had resisted Hindu law reform in the 1950s, they argued in the 1980s that minority accommodation had prevented the introduction of a UCC and thus the promotion of modern values, and that they alone would take the long-overdue step of
homogenizing family law, since they would not give the religious minorities undue recognition. Such rhetoric was not accompanied by efforts to specify the content of the UCC they aimed to introduce. This led some to infer that a UCC introduced by these forces would be based on some version of Hindu law, following the preferences that many Hindu nationalist leaders had voiced in the 1950s.

CHAPTER 4

RECASTING THE NORMATIVE NATIONAL FAMILY

Changes in Hindu Law and Commonly Applicable Matrimonial Laws Since the 1960s

MODERNIST POLITICAL ELITES HAD INDICATED the patterns of family life they wished to promote among Indian citizens through the changes they made in Hindu law in the first postcolonial decade. They valued the family as a monogamous nuclear unit, formed and maintained through the autonomous choices of partners, in which women enjoyed a measure of economic independence. This vision was in tension with their wish to encourage the maintenance of nuclear families even in face of serious marital problems, and with the preference of many of them to recognize the patrilineal joint family as a residential unit, basis of family identity, and property-owning entity.
Chapter 3
showed that an inclination to consolidate broad social coalitions influenced how modernist policy makers resolved these tensions in the 1950s. The modernists signaled the value of conjugal autonomy by extending divorce rights while limiting the space to dissolve marriages, and expressed their commitment to
women’s economic independence by giving them rights to inherit separate intestate property. But, because their conservative allies attached greater value to the patrilineage and various forms of gendered familial authority, they also maintained lineage authority and aligned lineage identity largely with its male members by retaining jointly owned family property, devolving such property patrilineally, and restricting women’s access to such property.

From the 1970s, changes were made in Hindu and commonly applicable matrimonial laws that made membership in nuclear families a more important basis of familial rights and responsibilities, departed from primarily patrilineal constructions of kinship and inheritance, and promoted conjugal autonomy and women’s economic entitlements in various respects. The main changes in Hindu law increased divorce rights based on mutual consent or on a wider range of spousal faults without the need for an initial period of judicial separation, and provided women easier access to family joint property and greater shares of such property. Changes in commonly applicable laws that provide alimony to the indigent, offer security and economic support to women and children facing domestic violence, and punish the practice of dowry reinforced the effects of the Hindu law reforms. Proposals are also currently being considered to enable no-fault divorce under conditions of irretrievable marital breakdown even if the respondent resists the divorce petition, along with giving women greater rights to alimony, child support, and custody, and enabling courts to give them shares of matrimonial property.

These reforms were introduced although regimes continued to value broad coalitions and did not abandon the rural groups that had defended patrilineal authority soon after independence. Indeed, the intensification of political competition and the decline of the Congress Party starting in the late 1970s made the retention of support a greater concern for parties, and agrarian groups gained greater political representation even while their share of the population gradually declined. Moreover, political elites did not prioritize personal-law reform any more than they had in the first postcolonial decade. Nevertheless, changes in the following variables enabled the earlier-mentioned family-law reforms: forms of social, economic, and residential organization; salient discourses about the nation, its religious and other cultural traditions, and indigenous forms of modern family life; patterns of political competition and social and political mobilization; and the composition of policy bureaucracies.

Urbanization and industrialization reduced the importance of landed property, especially for men, who shifted to nonagrarian occupations more than women did. This reduced resistance among rural men to giving women access to land and weakened lineages, whose power rested primarily on land control. The increase in first generation rural-urban migrants and tendencies toward circular migration between rural and urban areas blurred the boundaries between urban and rural experiences and mentalities. Moreover, joint-family residential arrangements gradually declined, particularly among urban and professional groups, leading to a shift from the lineage to the nuclear family as the primary social unit with which many members of these groups felt an affective tie.
¹
Many political elites changed their understanding of the forms of family life appropriate for India accordingly, and became more willing to empower the nuclear family, divide joint property (including agricultural land) into separate shares, require the bilateral devolution of family property, and increase women’s property rights.

Majoritarian visions of the Indian nation gained popularity, especially starting in the 1980s. Hindu nationalists demanded the rapid adoption of a UCC especially after
Shah Bano
, but did not gain sufficient support to introduce this change. Although the Bharatiya Janata Party (BJP) led national coalition governments from 1998 to 2004, some of its allies had significant support among the religious minorities that they were unwilling to lose by supporting a UCC. Moreover, when Hindu nationalists became the most vocal champions of a UCC from the 1980s, many of their opponents shifted their attention from a UCC to the reform of the existing personal laws. This was true of women’s organizations, other rights organizations, and the communist parties.

Pluralistic visions of the nation assumed new forms through closer engagement with various cultural traditions, both durable and emergent. Pluralist nationalists changed personal law more than the Hindu nationalists did, and selectively appropriated cultural repertoires in favor of reform. While claiming continuity with the social visions underpinning traditions of religious law, they also became more willing to adopt Western legal precedents. They relied on such sources to promote conjugal autonomy and women’s economic entitlements because changes in social practice, civil society mobilization, and the public ethos led them to value these ends more.

Until the 1960s, ruling elites focused on determining the basic features of the polity, building state institutions, and pursuing ambitious strategies of economic development and social change. The consolidation of democracy and the postcolonial state’s authority led policy makers to shift their attention thereafter to addressing demands pressed by a more mobilized civil society, the pressure to do which became stronger as party competition intensified. An aspect of this revised approach to governance was a shift from the wide-ranging personal-law reforms proposed in the 1940s and the 1950s to periodic changes in specific legal provisions that mobilizers, patterns of litigation, and emergent values and social practices suggested were urgently needed. Such focused legal changes seemed unlikely to cost parties much electoral support; this seemed particularly so regarding Hindu law because conservative Hindu elites devoted less attention to family law after the 1950s. Modernist political elites became more willing to introduce such changes as a result.

Rights organizations proliferated and grew larger, became more autonomous of political parties, and addressed a wider range of policies, especially after India’s brief authoritarian “emergency” of the mid-1970s. They included women’s organizations and other organizations that addressed women’s rights, religious and other cultural norms, and family law. Various civil-society organizations built networks with legislators, judges, and bureaucrats. Some of their intellectuals and leaders became members of policy bureaucracies, such as the Law Commission and the Minorities Commission, that addressed personal law at times. Many of them were members of commissions engaged with gender-relevant policy, such as the Committee on the Status of Women in India (CSWI), formed by the Ministry of Education and Social Welfare in 1971; the Department of Women and Child Development, established in 1985 as part of the Ministry of Human Resource Development and turned into an independent ministry with access to greater resources in 2006; and the National Commission for Women (NCW), formed in 1992. The CSWI assessed women’s condition and the impact of policies meant to improve their circumstances, and many later initiatives to promote women’s rights and status drew on its report.
²
The functions of the Department of Women and Child Development and the NCW included the assessment and promotion of women’s legal
and constitutional rights. The proposals of these institutions contributed to certain changes in personal law over the past two decades.