Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (28 page)

D. Desertion

Individuals whose spouses deserted them for at least three consecutive years were made eligible for judicial separation in 1955, and for divorce in 1976. This was meant to enable them to change their marital status if they abandoned their hopes of resolving their matrimonial problems, provided they had until then shown an inclination to resume their conjugal relationships. Patrilocality is the predominant pattern of postmarital residence in India and men typically exercise greater influence than their wives even over nuclearized house holds, an influence they sometimes use to evict their wives from the matrimonial home. As it is the woman who leaves the matrimonial home in these situations, the man then often proceeds to claim on this basis that the woman has deserted him in a petition for judicial separation or divorce. Legislators guarded against this possibility by stipulating in Section 23(1)(a) of the HMA that individuals could not take advantage of their “own wrong” or disability to claim judicial separation or divorce. Menski explored the increased attention of courts to such situations from the late 1960s.
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The case
law on desertion was limited in India until independence, and the Indian courts drew significantly from understandings of desertion in British law from the 1950s.
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They borrowed the notion of “constructive desertion” to reject many petitions of men to change their matrimonial status after they or their parents had evicted their wives or induced them to leave by making life difficult for them, as well as to grant the divorce, separation, and maintenance pleas of women whose husbands or in-laws had made them leave their matrimonial homes.
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Some of them derived justification for this from the HMA’s equation of the “willful neglect” of one’s spouse with desertion.

Agnes identified
Bipin Chander Jaisinghbhai Shah v. Prabhawati
(1956) as an important case, which shaped how courts used the notion of constructive desertion.
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In it, the Bombay High Court rejected the man’s divorce petition because it took him to have resisted the woman’s efforts to resume their matrimonial relationship.
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The Supreme Court disagreed with the lower court’s finding that the man had engaged in constructive desertion, insofar as it believed that the woman left the matrimonial home of her own accord because she could not face her husband and her in-laws, who suspected her of infidelity for good reason, a feature of the case Agnes did not note. It indicated thereby that a finding of constructive desertion is appropriate only when the deserted spouse does not initiate the change in the marital relationship. The Supreme Court nevertheless concurred with the high court’s decree because the man resisted the woman’s later efforts to resume cohabitation, signaling that a finding of desertion is appropriate only if the deserter remains disinclined to resume the relationship and the deserted individual does not consent to the spouses living apart at any point.

Many courts rejected men’s desertion petitions from the 1950s onward if they found that the man had given his wife good reasons to leave the matrimonial home. They did so, for instance, in
Kuppanna Goundan v. Palani Ammal
(1955) because a bigamist, whose second marriage predated the ban on Hindu bigamy, refused to provide his first wife a separate residence and maintenance, to which bigamists’ first wives became eligible in 1946, and in
Sirigiri Pullaiah v. Sirigiri Bushings Amma
(1962) because another bigamist contracted his second marriage after Hindu bigamy was banned. Courts also rejected
men’s claims of desertion by their wives because they had rejected their wives’ efforts to resume living with them in
Perumal Naicker v. Sithalakshmi Ammal
(1955) and
Shyam Chand v. Janki
(1966); the man had acted similarly and got remarried while the woman could still appeal the lower court’s divorce decree in
Snehlata Seth v. Kewal Krishan Seth
(1986); the man made unfounded accusations of adultery in
Lachman Utamchand Kiriplani v. Meena alias Mota
(1964); the man beat and otherwise mistreated his wife to extract dowry, and refused to make a commitment that he would end his violence and provide her a separate room in his house in
Shri Kishan Chand v. Smt. Munni Devi
(2003); the man ended his sexual relationship with his wife in
Jyotish Chandra Guha v. Meera Guha
(1969) and
Lt. Col. Mohinder Pal Singh v. Kulwant Kaur
(1975); the man started an informal relationship with another woman in
Renganayaki v. Arunagiri
(1993); the man rejected his wife’s demand that they live apart from his sexually predatory father in
Ram Sarup Aggarwal v. Shrimati Dev Kumari
(1950) and from his abusive parents in
Teerth Ram v. Parvati Devi
(1995) and
Rekha v. B. Susheelendra
(2010); and the man’s parents had killed another daughter-in-law of theirs in
Kamala Sharma v. Suresh Kumar Sharma
(2001). The man’s resort to extreme physical and mental torture to extract dowry led the Delhi High Court to refuse to recognize an
ex parte
divorce the man had secured from an American court, and to order him to provide his wife maintenance in
Smt. Anubha v. Vikas Aggarwal
(2002). Courts also granted a woman a divorce based on desertion because her husband had forced her out of her matrimonial home through frequent physical violence and refused to secure her the medical attention she needed in
Smt. Asha Handa v. Baldev Raj Handa
(1984), and granted another woman maintenance from her husband while she lived separately because the husband had married someone else in
A. Bhagavathi Ammal v. Sethu
(1986).

By using the notion of constructive desertion along these lines, courts limited the ability of men to use their influence in the matrimonial home to unilaterally gain judicial separation or divorce, and enabled women to gain maintenance, as well as judicial separation or divorce, after the actions of their husbands and their in-laws had led them to move out of the matrimonial homes. As a result, they gave women greater autonomy in deciding the terms and duration of their matrimonial relationships.

E. Customary Divorces

The legislature had indicated its willingness to accept the variety of ways in which marriages were solemnized and dissolved in Indian society in Sections 7(1) and 29(2) of the HMA, which indicated that “a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto” and that the HMA would not “affect any right recognized by custom or any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” This continued the approach of the colonial courts, which had recognized the divorce customs of a variety of castes and lineages, the majority of which were of lower or middling status. Hindus could only get divorces based on the customs of their caste or lineage in much of India until the HMA extended them this right under the rubric of Hindu law. Courts based their acceptance of specific divorce customs until then on the claim that, although Hindu law did not recognize divorce, divorce under certain conditions was not repugnant to its principles.
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Litigants called on state courts to assess the validity of customary divorces that
panchayats
(assemblies) of subcastes, lineages, or villages had earlier pronounced, in connection with the contestation of the validity of marriages, matrimonial rights, the eligibility of individuals to get remarried, maintenance obligations and rights, bigamy claims, the legitimacy of children, and inheritance rights, as well as to consider divorce petitions based on the customs of the relevant group rather than the general principles of Hindu law, statutory and otherwise. The wide variety of divorce practices recognized in community courts are beyond our scope, but this section addresses how state courts assessed the validity of such divorces and considered divorce petitions framed with reference to custom. J. D. M. Derrett initiated the exploration of this question, which Livia Holden pursued in much greater detail.
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Under colonial rule, courts made the recognition of customs contingent on a demonstration that they were ancient and continuously followed, and that they were compatible with public policy and morality. Only a custom followed “for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing
rule” was considered worthy of recognition.
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The HMA (Section 3(a)) defined custom accordingly, as “any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.” Courts continued to expect customs to be of long duration, but construed this expectation flexibly from the 1980s onward, especially if the recognition of a custom would provide a litigant support they felt inclined to offer, although not if it would enable conviction for bigamy. Courts have looked for evidence that the divorce customs under consideration were prevalent in the caste, lineage, tribe, family, or ancestral territory of the couple since colonial times. Since the 1950s, courts recognized specific divorce customs among various groups, including Sikh Jats in the Malerkotla and Jullundar regions of Punjab; Patwas, Khatis, and Gonds of Madhya Pradesh; Ezhavas of Kerala; Chetti potters and Ambalakkarar of Tamil Nadu; Pakhalis of Gujarat; Gollas of Andhra Pradesh; Kolis of Rajasthan; and the Maratha Patils of Maharashtra. By contrast, they concluded that such customs did not exist among Koravas of Andhra Pradesh, Arora Khatris of Punjab, Kongu Vellala Gounder of Tamil Nadu, or Marwari Shwetambar Jains of Rajasthan.
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While accommodating a variety of prevalent divorce practices, courts employed certain standards, though not consistently, to assess the compatibility of these customs with public policy. These standards changed over the past three decades, reflecting the changing values that governed the adjudication of divorce with reference to statute as well. Among the cases that Derrett and Holden discussed, as well as others that I examined of the colonial and early postcolonial periods,
Keshav Hargovan v. Bai Gandhi
(1915),
Jina Magan Pakhali v. Bai Jethi
(1941),
Sitaram v. Demai
(1949), and
Shivalingiah v. Chowdamma
(1956) indicated that courts should accept only customs that made divorce contingent on the respondent’s consent; and
Mt. Subhani v. Nawab
(1941) showed that courts were unlikely to recognize practices that adversely affect the interests of women who are not given the chance to represent themselves.
Karumpa Kochappi v. Sirkar
(1911) suggested that if a caste tribunal accepted a man’s divorce petition, the man provided his wife with either a lump-sum payment or a share of his property, and the proceedings were publicized, the woman’s consent would not be necessary. More recently,
Tara Singh v. Shakuntala
(1974) indicated that caste tribunals should have attempted reconcilia
tion and gained the couple’s consent to the divorce after these attempts failed, if courts are to validate the divorces they granted; at the same time it invalidated customs that enabled women to desert their husbands and remarry on the payment of quit money to the caste council. The consent of the respondent in a customary divorce was inferred from his accepting a compensatory payment from the woman’s subsequent husband in
Shamlal v. Rajkumar
(1958) and
Rewaram Balwant Khati v. Ramratan Khati
(1963). Other courts recognized customs by which individuals could unilaterally abandon their spouses without the mediation of a caste tribunal, in
Lachu v. Dal Singh
(1896),
Velayudhan Kochappi v. Sirkar
(1915) and
Gopi Krishna Kasaudhan v. Musammat Jaggo
(1936); by which divorce could be based on the consent of minors in
Smt. Premanbai v. Channoolal
(1963); and by which women could remarry after desertion by their husbands in
Virasangappa v. Rudrappa
(1885) and
Pritam Singh v. Nasib Kaur
(1956). Yet other courts failed to recognize some of the same customs later, in
Laxmansingh v. Kasharbai
(1965) and
Laserbai v. Jugribai
(1978). Courts thus varied more in how they assessed the validity of customary divorces than in their approaches to divorce on statutory grounds. Amid these variations, they granted divorce far more liberally based on custom than when they applied statutory Hindu law, until the latter laws were liberalized in the 1970s.

Holden highlighted the reluctance of courts to recognize woman-initiated customary divorces until recently. Courts considered such divorces contrary to public policy in
Keshav Hargovan
(1915) and
Kishenlal v. Prabhu
(1963), and incompatible with Hindu law when the man did not consent to them in
Reg. v. Karsan Goja and Reg. v. Bai Rupa
(1864),
Uji v. Hathi Lalu
(1870), and
Narayan Bharthi v. Laving Bharthi
(1877). But courts had recognized such divorces as early as 1915 among the Ezhavas of Kerala in
Velayudhan Kochappi v. Sirkar
.
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It is only from the 1980s that Holden found courts much more willing to accept woman-initiated customary divorces, notably in the Supreme Court decree in
Govindaraju v. Munisami Gounder
(1997). This judgment was remarkable in another respect. It took customs of unilateral common law divorce to exist among all Shudras, the castes that occupy the fourth rung of the
varna
(megacaste) hierarchy and account for a large share of the Indian population: “Hindu law is clear on the subject that if a Shudra woman is turned out of the house by her husband, or she willfully abandons him and
is not pursued to be brought back as wife, a divorce in fact takes place, sometimes regulated by custom, and then each spouse is entitled to re-arrange his/her life in marriage with other marrying partners.”
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It sought no proof of the prevalence of this custom among the concerned group, contrary to the predominant judicial practice. If this precedent had been followed, it could have enabled the recognition of unilateral common law divorces among a large number of Indians. However, no other reported judgment appears to have cited it. Even the Supreme Court continued to seek proof of the prevalence of the specific divorce customs in the concerned group thereafter, in various cases including
Yamanji H. Jadhav v. Nirmala
(2002), which was followed in many subsequent decrees, and
Subramani v. Chandralekha
(2004). In the latter case, it did not take divorce customs to have been shown to exist among Kongu Vellala Gounders, the caste of the couple in
Govindaraju
, but another court declared otherwise. In
Asha Rani v. Gulshan Kumar
(1995), the Punjab and Haryana High Court clearly stated that litigants should show divorce customs to exist in their caste, rather than inferring their existence from the customs of another group.
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