Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (25 page)

Women’s organizations and rights organizations gained some influence over the deliberations in certain parties regarding gender-relevant policies. Moreover, their growth contributed to the emergence of a public ethos favoring greater women’s rights in various social arenas. This made many parties wary of advocating policies clearly contrary to women’s interests. For instance, it led Hindu nationalists, who had steadfastly resisted Hindu law reform in the first postcolonial decade, to support certain initiatives to empower women. Thus, over the last decade, the BJP supported giving Hindu women greater access to their parents’ shares in joint property and opposed enabling no-fault divorce because it seemed this bill would not safeguard the interests of women and children adequately. The changes in the public ethos also tempered the opposition of parties based among the middle castes and lower castes of northern India (the Samajwadi Party (SP), the Rashtriya Janata Dal (RJD), the Janata Dal (United), and the Bahujan Samaj Party (BSP)) to giving married daughters shares in joint property and rights to live in and partition the ancestral home, and to a quota for women in political representation.
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The growth in civil society mobilization, the increased attention of rights organizations to litigation and legal policy, and the experience of the emergency led certain judges in the higher courts to support the rights of weaker groups sporadically. The onset of economic liberalization in the 1990s reduced the support that judges gave poorer groups, but did not change the inclination, albeit inconsistent, of some judges to support women in certain ways in family disputes. These individuals were not a majority of the judiciary (among whom a survey showed the presence of very gender-unequal values in the 1990s) or the legal policy bureaucracy, but nevertheless were important to legal change.
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They played crucial roles in increasing personal-law reform from the 1970s onward.

Even while these changes occurred in Hindu law and commonly applicable matrimonial laws, there were certain continuities with the policy logic of the first postcolonial decade. First, Hindu law remained the focus of personal-law initiatives, and Hindu law reform was framed significantly in light of how policy makers wished to shape the Indian nation. The changes in
the minority laws were less extensive and more closely tied to visions of group culture rather than to discourses about the nation, as we will see in
Chapter 5
. Second, even the more extensive changes in Hindu law were framed partly in terms of indigenous culture. For instance, views that the Hindu marriage was meant to be sacramental and the Indian family durable led legislators and judges to prioritize the maintenance of marriages, even while they made divorces more accessible if efforts to resolve marital problems failed. They dissuaded legislators from making divorce available in the absence of spousal fault or mutual consent up to the present day, but the Rajya Sabha passed a bill that does so in August 2013. (The bill needs the Lok Sabha’s assent for it to take effect). Similarly, views that the joint family is a widely valued and durable aspect of Hindu and Indian culture made legislators reluctant to decompose family joint property into separate shares or restrict the testation of such property, even while they gave women greater shares of such property and required its bilateral devolution in cases of intestate succession.

I. INITIATIVES TO CHANGE HINDU LAW: DIVORCE

The main changes made in Hindu law since the 1960s concerned its divorce and inheritance provisions. The courts played major roles in the changes in divorce, marriage, and alimony law, prompting some of the major legislative initiatives. The reforms in divorce law began in the 1960s and became more significant in the 1970s. Divorce legislation was introduced at the federal level.
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The changes in inheritance law began later, in the 1970s. As the courts felt more constrained in interpreting inheritance statutes, it was the legislature alone that changed these provisions. Resistance remained stronger to increasing women’s inheritance rights than to increasing divorce rights until the last decade. As a result, inheritance law was initially changed, from the mid-1970s to the mid-1990s, only in five states in southern and western India, where the salience of bilateral and matrilineal inheritance practices made resistance weaker to women’s access to ancestral property. Parliament extended these changes to the rest of India only in 2005, a generation after the initial reforms. While being hesitant to change daughters’ inheritance rights, the courts did grant women greater rights to their dower and wedding
gifts, and to reside in and perhaps partly own their matrimonial homes if they lived apart from their spouses or got divorced. These reforms belie Parashar’s claim that “since the enactment of the Hindu Law Acts, not much legislative activity has taken place with regard to Hindu personal law.”
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The divorce provisions introduced in Hindu law in the 1950s represented a compromise between aims to maintain the nuclear family and promote conjugal autonomy, and between understandings of Hindu marriage as a sacrament and as a contract. They allowed divorce if one’s spouse was guilty of the following matrimonial faults: (a) “living in adultery” (rather than specific instances of adultery); (b) nonresumption of cohabitation for at least two years since a decree of judicial separation or restitution of conjugal rights; (c) (grounds available for women only) having another living spouse, rape, sodomy, and bestiality; (d) conversion to another religion; (e) affliction with a venereal disease, leprosy or mental illness for at least three years; (f) renunciation of the world and joining a religious order; or (g) not being known to have been alive for at least seven years. Desertion without cause, adultery and “such cruelty that the petitioner cannot reasonably be expected to live with the respondent” were made grounds for judicial separation, but not for divorce, unless the party petitioning for divorce had obtained judicial separation on these grounds at least two years earlier, and her spouse had not resumed cohabitation since then.

Litigation made policy makers aware that this compromise did not adequately address the growing problem presented by dysfunctional marriages. Ongoing changes in Western law suggested that this problem could be addressed by providing a wider and swifter path to divorce based on spousal fault, as well as by enabling no-fault divorce. Colonial law became a less significant basis on which policy elites understood desirable forms of Hindu and Indian family life, making it easier to consider increasing divorce rights. This led legislators, through a private member’s bill of Diwan Chand Sharma (Congress Party) in 1964, to make individuals eligible for divorce if they had not resumed cohabitation for two years after decrees of judicial separation or restitution of conjugal rights, even if they had refused to live with the spouse who had gained the earlier decree. Unlike the initial introduction of divorce rights in 1955, this change evoked little opposition.
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It took a step toward
delinking eligibility for divorce from spousal fault and connecting it to the state of marital relations, while letting such eligibility depend on an earlier decree of judicial separation based on spousal fault or a failure to comply with a decree restoring conjugal rights.

A bigger change was made in divorce law in 1976; it made cruelty, desertion for two years, and adultery grounds for divorce; enabled divorce based on mutual consent; and reduced the period of nonresumption of cohabitation after decrees of judicial separation or restitution of conjugality that would entitle one to a divorce from two years to one year both under the HMA and the SMA.
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However, an initiative of the Law Commission in 1978 to make divorce available in a case of irretrievable marital breakdown, even if one’s spouse resisted, this did not succeed. Menski provided the most comprehensive understanding to date of the approaches to divorce law reform from the 1970s to the early 2000s.
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He claimed that modernist inclinations to liberalize matrimonial law and intensify state regulation of family life drove legislation until the 1970s and influenced adjudication until the 1980s. Even though women’s organizations increased the modernist ranks from the 1970s, he argued, a growing awareness of a mismatch between modernist aims and various features of social norms and matrimonial relations in India restrained legislative initiative, and led judges to construct a postmodern Hindu law that was better attuned to Indian society, drew less readily from Western precedents, and maintained or revived features of classical Hindu law, though often expressed in a secular idiom.

Regarding divorce and nullification of marriages, Menski said that judges had interpreted statutes conservatively to maintain social stability in the 1960s, but that modernist ambitions, particularly as expressed in the Report of the CSWI, led the legislature to make divorce more readily available in 1976.
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In a context in which divorce brought women greater stigma, women were the economically weaker partners in most marriages, alimony rarely compensated them adequately for the loss of access to the resources they had shared with their husbands, and the state did not provide effective legal aid for the poor, ensure alimony payments, or give women access to matrimonial property, the easier availability of divorce impaired the interests of many women, especially poorer women. Menski argued that as ongoing intervention in matrimonial disputes made them aware that easier divorce had weakened
women’s circumstances as well as social stability, judges in the higher courts interpreted Hindu divorce law to encourage spousal reconciliation. They are said to have become especially selective from the late 1980s in handing down divorces based on cruelty, requiring stricter proof of adultery, rejecting men’s divorce pleas based on the nonresumption of cohabitation after decrees of judicial separation or restitution of conjugal rights if the petitioners had prevented cohabitation, and paying greater attention to whether both parties continued to favor mutual consent divorce petitions.
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Various features of policy proposals, legislation, and adjudication do not fit well with Menski’s interpretation. We saw in
Chapter 3
that the reforms of the 1950s drew not just on Western precedents but also on understandings of colonial Hindu law, reformed Hindu discourse, and the distinctive future of Indian society. This was a crucial reason why the resulting statutes retained various indigenous norms, albeit in a modified form. The architects of the divorce law reforms of the 1970s also framed their proposals partly with reference to indigenous norms. Justice P. B. Gajendragadkar, who chaired the Law Commission that recommended these reforms, had earlier in his career coauthored
Narasu Appa Mali
(1952), which refused to vet personal law systematically with reference to constitutional rights. A scholar of the Hindu classics, he drew inspiration from the dynamism of Hindu law, and presented his proposals as promoting constitutional egalitarianism while adhering to Hindu jurisprudence, much as the modernist legislators of the 1950s had. The Law Commission’s
Fifty-Ninth Report
adopted such an approach, recommending that individuals whose marriages have irretrievably broken down be given easier access to divorce; however, it also tried to promote the stability of marriages by requiring judges to attempt spousal reconciliation before they pronounced divorce and enabling them to grant judicial separation in response to divorce petitions. While urging that the nonresumption of cohabitation after a maintenance order in favor of the wife also be made a ground on which she could get a divorce, the report cautioned that a man should not be allowed to get a divorce decree by virtue of the passage of time since he ceased to provide his wife maintenance; further, it urged that those who were minors when they got married be allowed to repudiate their marriages once they become adults. Gajendragadkar believed that this approach would maintain the vision of marriage underlying classical Hindu law although marriage had
ceased to be a sacrament, yet urged the application of his proposals to both the HMA and the SMA.
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The Commission’s approach thus differed considerably from modernism as Menski understood it. The Law Ministry largely pursued the path the Law Commission recommended, and parliament readily accepted most of the proposed reforms.
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Thus, the attempts of judges to limit room for divorce to give reconciliation the fullest chance and to prevent parties from taking advantage of their “own wrong,” as detailed by Menski, were in keeping with the vision underlying the legislation of 1976. This amendment expanded the divorce provisions of both the HMA and the SMA in light of visions of Hindu/Indian modernity, and effected a convergence in the divorce rights of couples governed by the two acts.

Women’s organizations were even further from adopting a modernist perspective, as Menski understood it, than the majority of policy elites. Rather than urge the liberalization of divorce in all respects, they recommended that policy proceed cautiously in this regard as long as alimony provisions remained weak, decrees to provide alimony and child support were ineffectively implemented, and women did not enjoy rights in matrimonial property. Thus, the CSWI recommended that irretrievable marital breakdown be made a ground for divorce only if women were granted at least a third of their husbands’ property on divorce.
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When the Law Commission recommended the introduction of this ground for divorce without giving women rights in matrimonial property in 1978 (based on the suggestion of certain courts), and the Law Ministry presented a bill along these lines in 1981, women’s organizations, reflecting the interests of women of different strata, opposed this course because they believed it would undermine the economic position of many women.
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The executive abandoned this proposal precisely because many legislators were persuaded by the concerns of the women’s organizations, rather than because it was “clearly unwilling to be steered by elitist feminist lobbying.”
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