Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (30 page)

Judges could exercise their discretion about the conditions under which to grant restitution decrees after the Supreme Court validated restitution provisions. Courts tended to reject men’s restitution petitions that followed their wives’ maintenance petitions or decrees even in the 1960s, especially if there was evidence that they had abused their wives, since such petitions were usually meant to avoid maintenance orders. They were also attentive to whether both men and women were using restitution petitions to pave the way for divorce in the absence of demonstrable spousal fault, by not resuming cohabitation after restitution decrees. For instance, the Madhya Pradesh High Court did so as the man had petitioned to restore conjugality soon after he was ordered to support his wife, who had left him because of his frequent violence, in
Baburao v. Mst. Sushila Bai
(1964). So did the Madras High Court in
Solomon Devasahayam Selvaraj v. Chandirah Mary
(1968), when the man demanded his wife’s company after her maintenance was increased, although he had made it impossible for her to live with him and had shown no signs of wishing to live with her for almost a decade. The same court also rejected a bigamist’s effort to resist his first wife’s maintenance petition by regaining her company even though she preferred to live apart from him and his second wife, in
A. Annamalai Mudaliar v. Perumayee Ammal
(1965). Courts responded similarly to restitution petitions under such circumstances through the succeeding decades.
⁹⁶

Until the 1970s, the majority of courts assumed that men had the right to determine the location of their matrimonial home, since they were usually the main breadwinners and patrilocality was the predominant norm particularly among the upper and upper-middle castes that were most litigious. Indeed, they sometimes made this assumption even when the woman was making a major contribution to family income. In such cases, they often cited a quotation from Mulla’s
Hindu Law
, a major reference book in the courts, to the effect that “under the Hindu law a wife’s duty to her husband is to submit herself obediently to his authority, and to remain under his roof and protection.”
⁹⁷
In
Smt. Tirath Kaur v. Kirpal Singh
(1964), the Punjab High Court ordered the woman to give up her job and move back with her
husband because it took her father-in-law’s offer of land to compensate her for her loss of income as a sign that the husband’s family did not depend on the woman’s income. The same court recognized that the man had no steady income in
Smt. Surrinder Kaur v. Mohinder Singh
(1967), yet considered this and the couple’s likely unhappiness if they lived together inadequate reasons for the woman to live apart, because it found no evidence of cruelty on the man’s part. Other high courts held that Hindu law required women to live wherever their husbands may choose to in
Ram Parkash v. Shrimati Savitri Devi
(1957),
Vuyyuri Potharaju v. Vuyyuri Radha
(1965),
A.E. Thirumal Naidu v. Rajammal
(1968),
Surinder Kaur v. Gardeep Singh
(1973), and
Kailash Wati v. Ayodhia Parkash
(1977). Several litigants challenged
Kailash Wati
with reference to the constitutional rights to equality and equal treatment, drawing different responses from the courts, for instance in
Mrs. Swaraj Garg v. K.M. Garg
(1978) and
Pritam Kaur v. Surjit Singh
(1984), which are discussed below.

A. Annamalai Mudaliar
(1965), the earlier-mentioned case of a Hindu bigamist who unsuccessfully resisted his first wife’s maintenance petition, showed how far courts believed that women needed to accept the way their husbands arranged their matrimonial lives. While recognizing a woman’s right to live apart from her husband and get maintenance payments from him so long as he lived with his other wife, the court held that if he abandoned his second wife, he would be entitled to require his first wife to live with him as “he can at his option live with any wife.”
⁹⁸
Indeed, while bigamy was accepted among Hindus, many courts held that polygamous husbands could claim the company of their first wives while living with their second wives as well, in cases such as
Jeebo Dhon Banyah v. Mt. Sundhoo
(1872) and
Mt. Kishan Devi v. Mangal Sen
(1935).

Other courts responded differently starting in the 1960s to men’s petitions for their wife’s company, which they rejected in
Smt. Alopbai v. Ramphal Kunjilal
(1962) and the earlier mentioned
Baburao
(1964) with a view to the woman’s happiness, even if the man’s behavior did not amount to cruelty.
⁹⁹
In
Sadhu Singh v. Jagdish Kaur
(1969), the court similarly refused to order the woman back to her husband because it found that her in-laws had ejected her from their home, her husband had made no effort to build a relationship with her initially or resume their relationship after she was sent away, he had made
unfounded adultery allegations, and he was clearly seeking a restitution decree as a means to a divorce. Moreover, it found the woman’s refusal to comply with her husband’s demand that she live with his parents, rather than with him, entirely reasonable.

Agnes highlighted the greater responsiveness of courts since the 1970s to the need of women in well-paying jobs to live close to their place of work.
¹⁰⁰
Mrs. Swaraj Garg v. K.M. Garg
(1978) provided strong support for the right of women to live apart from their husbands if their husbands did not accept their choice of location for the matrimonial home, based on the constitutional right to equality, differing in this regard from
Kailash Wati
. Justice V. S. Deshpande held that the woman should not be expected to give up her steadier and higher-paying job, especially as the couple had not agreed on the location of their matrimonial home before they got married. He argued that the earlier understanding in Hindu law that the husband has a monopoly over this decision had to be revised in light of the growth in women’s workforce participation. Other features of the case reinforced his decision: the man had taken a big dowry, kept his wife’s marriage gifts, did not arrange medical treatment for his wife when she was sick, and threatened to control her income and her movements. Aside from refusing conjugal restitution, the judge said the marriage had broken down in a way that warranted divorce.

A few courts reasoned as did
Swaraj Garg
, recognizing that women might need to live near their places of work in restitution and divorce cases. Even before
Swaraj Garg
, the Madras High Court had refused to order women to give up their jobs to join their husbands in
Sulochana v. Selva Madhavan
(1974) and
N.R. Radhakrishnan v. N. Dhanalakshmi
(1975). Justice Maharajan noted the need to amend Hindu law in light of changes in matrimonial relations in these cases, which drew less attention than
Swaraj Garg
because they did not rely on constitutional law.
Dhanalakshmi
was influenced by the court’s finding that it was the man who had denied the woman his conjugal company: he had got himself transferred to another town when the couple had marital problems and did not try to get transferred back to the location of his matrimonial home, although his company operated in both towns unlike the city corporation that employed his wife. In both cases, the woman earned more than her husband and had supported their child while living on
her own. In
L. Mallya Naika v. Somli Bai
(1978), the Karnataka High Court dismissed the petitions of two brothers for the sisters whom they married to live with them, because the brothers’ choice to live away from their father-in-law’s home was contrary to the custom of
illatom
adoption prevalent among certain southern Indian castes. This custom involves a man without a son adopting a man as his son-in-law and giving him a son’s share in his property, in return for the latter marrying one of the adopter’s daughters, living in his father-in-law’s home, and helping manage his property. The court recognized this custom because the HMA did not specify contrary rules for the location of the matrimonial home, but also pointed out that its decree was in keeping with the recent trend of deciding restitution cases in light of the spouses’ relative economic status. In
Smt. A. v. Sri B
. (1990), the woman had given up jobs a few times and found other jobs in the towns to which her husband’s company transferred him, but had become reluctant to repeat the process to live with her husband near his current place of work. The Bombay High Court found her attitude reasonable, as the parties were “equal partners having independent earnings” and dismissed her husband’s divorce petition based on desertion and cruelty.

The above cases indicate a change in the attitudes of judges regarding the authority of spouses in determining the location of the matrimonial home, but the judiciary remains more divided on this question than Agnes suggested. Some courts continued to follow the earlier patterns. This was especially true of the Punjab and Haryana High Court, which rejected constitutional challenges to
Kailash Wati
in the 1980s and 1990s that attempted to use the
Swaraj Garg
precedent, and ordered women with jobs in other towns to live with their husbands in
Pritam Kaur v. Surjit Singh
(1984),
Smt. Sumitra Devi v. Narender Singh
(1993) and
Sundari Devi v. Ram Lal
(1995) although the spouses had not agreed on the location of the matrimonial home in these cases. This court granted the man a divorce on the ground of cruelty in
Sundari Devi
although the couple lived in nearby towns where they had jobs even before they got married. Its approach might reflect the predominance of virilocality and village exogamy in northwestern India. The Supreme Court has not had the occasion to adopt a definitive approach to the location of the matrimonial home.

III. MAINTENANCE RIGHTS AND OBLIGATIONS

Claims to maintenance often arise in connection with divorce and judicial separation cases, for support both during and after the consideration of these cases. The majority of successful claimants are women and children, but courts also order support for young adults without income whose parents are engaged in matrimonial disputes, and occasionally for the men involved in these disputes. We earlier considered how courts responded to maintenance claims associated with petitions for divorce and to restore conjugal rights. This section places that discussion in the context of the ongoing formation of maintenance law.

The
shastras
and precolonial commentaries on these texts placed obligations on Hindu men to provide their wives maintenance through the latter’s lives, obligations that they transferred to the men’s heirs after their death. In return, they expected women not to have other sexual partners, both during and after their husbands’ lives. These norms usually went hand in hand with the prohibition of divorce and widow remarriage, and especially governed the upper castes. The maintenance rights of women could assume the form of an entitlement to a share in the husband’s property, including his share in ancestral property.
Shastric
traditions also recognized the maintenance claims of women in nonmarital conjugal relationships, especially those accorded the status of
avurudha stree
(permanent concubine), but these claims were typically weaker than those of wives.
Shastric
norms coexisted with the extensive practice of divorce and remarriage, as we saw. Among groups with these customs, the obligation to support divorcées was usually placed on their natal families or later husbands, the responsibility of the former husbands being restricted to a reimbursement of the woman’s wedding expenses. Aside from the maintenance provided by their husbands, their husbands’ families, and their natal families, divorced, separated, and widowed women could draw on their
stridhanam
(woman’s property), which primarily comprised the dower and gifts that they received when they got married, but in some Hindu traditions also included a specific share of family property.
¹⁰¹

Rules regarding the maintenance of wives and children were made more uniform and codified under colonial rule, and the claims of divorcées and the scope of
stridhanam
were restricted. When a Code of Criminal Procedure
applicable to all religious groups was adopted in 1872, it required men to support their wives and children, both legitimate and illegitimate.
¹⁰²
Women could live apart from their husbands while they derived such maintenance under various circumstances. As these provisions did not apply to divorced women, Muslim men could end their wives’ economic claims on them by divorcing them, and many Hindu men belonging to groups with recognized divorce customs could limit such claims similarly.
¹⁰³
Moreover, various forms of women’s property were recast as “limited estate,” which women had the right to enjoy during their lifetimes, but not to sell (other than in special circumstances), donate, or devolve to their heirs. Colonial courts transferred much of the property that women inherited to the heirs of the people from whom they had inherited such property.
¹⁰⁴
These changes were partly offset by the reinforcement of widows’ rights to inherit nonagricultural property as limited estate in the Hindu Women’s Right to Property Act of 1937, as well as the maintenance rights of women who live separately from their husbands due to the latter’s matrimonial faults in the Hindu Married Women’s Right to Separate Residence and Maintenance Act (HMWRSRMA) of 1946.

The Hindu law reform initiatives of the 1940s and 1950s focused on divorce and inheritance, rather than maintenance, and contestation was limited in parliament over the maintenance provisions of the HMA and the HAMA. Nevertheless, these acts departed from predominant colonial case law in certain ways. The HMA gave all Hindus divorce rights, and extended certain maintenance provisions of Hindu law to divorcées. Section 18 of the HAMA incorporated the entitlements to maintenance that the HMWRSRMA gave women if they lived apart from their husbands for a range of reasons. Moreover, Section 14 of the HSA made Hindu women full owners of the property they possessed, including property they received instead of maintenance payments, rather than the limited owners they had been in colonial law. Furthermore, the HMA gave women and men maintenance while they were in the midst of matrimonial litigation. The right to maintenance under both the HMA and the HAMA was contingent on the beneficiary not having other sexual partners, reflecting
shastric
understandings of reciprocal spousal responsibilities. The HAMA denied women this right if they had converted to a religion originating outside South Asia, adding to the disincentives that other policies provided for such conversion (which was, for instance, also a
ground for divorce or for a woman to live apart from her husband while claiming maintenance from him in Hindu law). The maintenance rights that wives enjoyed under the Code of Criminal Procedure were extended to divorced wives as well in 1973, to supplement the support available to divorcées in both Muslim law and Hindu law.
¹⁰⁵
Finally, the Protection of Women from Domestic Violence Act (PWDVA), adopted in 2005, extended these rights to women in informal relationships, polygamous relationships, and marriages whose validity could not be proved.