Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (34 page)

Sonia Gandhi influenced the way the Law Ministry framed the bill that parliament passed. Her intervention encouraged the committee to accept many civil-society proposals, and led the Law Ministry to incorporate most of the committee’s recommendations in the amended bill, although this was not the preference of the Law Minister, Hans Raj Bharadwaj. The sharp divisions among its members limited the influence of the Law Commission, although it was consulted. The bill made married daughters coparceners, but did not restrict testamentary rights or increase widows’ shares.
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The failure to restrict testamentary rights meant that wills could deprive women of the shares
they had gained in intestate property. Nevertheless, the extension of coparcener status to daughters and the adoption of bilateral rules to devolve family property that passed through intestacy were important advances in women’s rights.

The amended bill faced little resistance in parliament. Some legislators wished the reforms to proceed further, by dissolving joint property, limiting testamentary rights, invalidating deeds in which women sign away their property rights under duress, and requiring agrarian legislation to give daughters and wives the same rights as sons. D. Purandeswari (Congress Party), Susmita Bauri and C. S. Sujatha (CPI-M), Bhartruhari Mahtab (Biju Janata Dal), and M. Ramadass (Paattaali Makkal Katchi—PMK) raised these demands, but lacked sufficient support to change legislation accordingly.
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Others had misgivings about making married daughters coparceners and devolving family property bilaterally, but they did not express their objections forcefully or vote against the bill, because their parties had decided to support it.
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The failure to restrict testamentary rights might have made parties that resisted other women’s rights initiatives around the same time (such as the SP, the RJD, the Janata Dal (United), and the BSP, which opposed the Women’s Reservation Bill) and other conservative legislators more willing to allow the act’s passage.

Only a minority of the legislators enthusiastically supported the HSA amendment, the most ambitious personal-law reform of the past generation, and many of them had reservations about it. This limited the scope of the reform, and showed that proposals to increase women’s inheritance rights further (such as through the dissolution of joint property or the restriction of testamentary rights) did not enjoy extensive support among the political elite. If the legislation passed nevertheless, this was crucially because its proponents grounded it in emergent visions of indigenous tradition that had some appeal.

In the limited case law that has accumulated since this reform, courts applied its provisions to pending cases.
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However, they did not give it retrospective effect or enhance women’s shares in family property more than the act required, for instance by compensating widows for the amendment’s reduction of their shares in view of the act’s presumed aim to increase women’s access to property.
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V. THE MODIFIED NORMATIVE NATIONAL FAMILY

The changes made since the 1970s in Hindu law and in criminal laws about maintenance and domestic violence made nuclear family membership more consequential, promoted bilateral inheritance, and enhanced conjugal autonomy and women’s economic entitlements. Ongoing changes in social practice and civil-society mobilization reduced the value that various actors attached to patriliny, created a public ethos more favorable to women’s entitlements, and thereby enabled such legal changes—although disagreements persisted about these policies among the political elite, who did not give personal law any more importance or value broad coalitions any less than they had soon after independence.

The shifts in personal law in these directions were far from complete, because prior traditions of law and kinship remained important considerations. For instance, legislators and judges enabled individuals to gain divorces without much delay if they could prove spousal fault or their divorce petitions had their spouse’s consent, but not otherwise, and judges continued to attempt reconciliation, especially in the absence of mutual consent. This sometimes prevented the decline in the economic circumstances of the spouse with lower income and less property (usually the woman) that often followed divorce because alimony obligations were limited, alimony decrees were not effectively enforced, and rights in matrimonial property were not recognized. But it also restricted the ability of individuals to leave unsatisfactory and abusive relationships, especially if courts restored the respondent’s conjugal rights rather than grant the petitioner’s plea for divorce or judicial separation. Courts declared findings of cruelty more often when provided evidence of harassment short of physical violence, especially if it was meant to extract dowry, and took greater account of the effects of litigants’ actions on their partners. But they varied in how they construed cruelty, sometimes taking women’s responses to the harassment of spouses and in-laws to amount to cruelty. Judges more often made the conjugal behavior of divorcées and widows irrelevant to their claims to maintenance from their ex-husbands or to derive maintenance from their property, but were not unanimous in this regard. Courts more often recognized women’s rights to participate in determining the location of their matrimonial homes. They especially considered
it legitimate for women to reside close to their places of work, and did not allow their husbands to divorce them or compel women to live with their husbands if they lived separately for this reason, but some courts ruled differently. While the courts largely enabled conjugal autonomy in these respects, the Supreme Court’s support for the judicial restoration of conjugal rights, after a high court judgment that deemed it unconstitutional, had the opposite effect.

Other changes in adjudication were unambiguous. Courts became more selective in finding adultery, in view of the decline in social barriers to interaction across gender lines. Moreover, they usually took the maintenance claims of spouses into account in their responses to allegations of matrimonial fault in petitions for divorce and judicial separation and petitions to restore conjugal rights; in addition, they resisted restitution petitions that seemed to be meant only to enable divorce later. Legislators reinforced the effects of these judicial practices by increasing women’s rights to alimony, protection from domestic violence, and rights in the matrimonial home if they faced such abuse.

Legislators (a) gave daughters rights equal to those of sons in family joint property and over the ancestral home, (b) placed the inheritance rights of cognates on a par with those of agnates, (c) made the rules to inherit women’s property the same as those to inherit men’s property, (d) made the inheritance rights of widows in their deceased husbands’ property independent of their current civil status, and (e) gave these modified inheritance rules of Hindu law priority over state-specific agrarian legislation in determining the devolution of agricultural land. However, they did not give widows rights in joint property similar to those of daughters, and indeed reduced their shares in such property. Moreover, they retained the joint ownership of property by kin rather than equalize the inheritance rights of nuclear family members by dissolving joint property into separate shares, and did not protect the inheritance shares of female kin by restricting testamentary rights. This helped them contain resistance to giving daughters equal rights in intestate joint property, but also made it likely that the majority of women will not gain control over much family joint property soon. Thus, these changes in Hindu law and commonly applicable matrimonial law did not reconstitute the family in entirely novel ways. Rather, they followed the pattern set in the first
postcolonial decade of introducing culturally grounded reforms that underwrote certain emergent practices without requiring their rapid adoption, as the latter course seemed likely to generate considerable conflict or seriously erode support for the parties promoting the changes.

The judiciary was not united in deciding cases in new ways, even in the higher courts. Besides, the most far-reaching legislative changes were based on the enthusiastic support of only a minority of legislators, backed by certain rights organizations. The initiatives of a small number of actors gave married daughters coparcener status in joint property, extended increased protection and access to the matrimonial home to women facing domestic violence, and recently led the executive to propose enabling courts to apportion shares of matrimonial property on divorce. The first two changes were introduced because crucial actors in the ruling UPA were favorably disposed, and various legislators and parties with misgivings about them were reluctant to openly resist women’s rights, to which the public ethos had become favorable. The narrow support for the most extensive reforms suggests that ambitious proposals currently being pressed by civil-society organizations are unlikely to be adopted soon—specifically those to limit testamentary rights and dissolve joint property in Hindu law.

CHAPTER 5

MINORITY ACCOMMODATION, CULTURAL MOBILIZATION, AND LEGAL PRACTICE

The Experiences of Muslim Law and Christian Law

PERSONAL LAW WAS AN IMPORTANT SPACE where Indian political elites developed their approaches to recognize, regulate, and form the religious minorities. The discourses they articulated about the nation and its cultural groups influenced their strategies regarding the minorities. This chapter explores how these discourses impinged on the personal laws of India’s two largest religious minorities, the Muslims and the Christians. It also considers how alternative discourses of nation and community may have suggested other ways to make minorities and accommodate them in the core of the nation, rather than relegate them to its margins.

We saw in
Chapter 2
that centralizing state elites that uphold homogeneous and formally inclusive visions of nations, as is the pattern in France, Turkey, and China, characterize the nation implicitly in terms of the practices and traditions of the majority and seek minority assimilation in many
respects. Those that understand national culture largely with explicit reference to the ethnic, religious, or racial majority, as in Israel, Pakistan, Bangladesh, Thailand, and Malaysia, even while acknowledging cultural diversity, are likely to be unaware of sources of dynamism and variations in the traditions and practices of minorities, particularly those that are stereotyped as backward. This leads such majoritarian nationalists to (a) mainly accommodate dominant interpretations of minority cultures, (b) privilege conservative minority elites as the voices of group opinion, (c) adopt forms of recognition that are insensitive to emergent practices, ideas, and initiatives, and (d) not promote the same practices among these groups as they do among the majority. However, these actors sometimes promote reform and empower its agents more among minorities that they consider attuned to modernity, as happened at times in Egypt and Malaysia. State elites that incorporate the cultures of various identity groups into their understandings of the nation tend to adopt multicultural institutions, and mobilizers that do so support such institutions. If they emphasize cultural maintenance and the distinctness of group cultures, they are disposed to retain existing forms of recognition and limit cultural exchange, as happened in Lebanon. If instead they prioritize the transformation of indigenous cultures and highlight the overlap in group cultures, they are likely to (a) change the ways they accommodate both the minorities and the majority, (b) value the repertoires of different groups, (c) promote similar practices among various groups, and thus (d) build synthetic, inclusive, and dynamic national cultures. Such elites are more likely to engage with different currents among various groups and thus recognize initiatives for reform even among some groups stereotyped as backward. These patterns were seen in Indonesia.

The kinds of social coalitions that regimes aim to assemble also shape approaches to accommodation. Regimes that prioritize broad coalitions tend to limit the scope of reform, especially of practices about which mobilized opinion varies significantly. They are especially reluctant to change forms of minority accommodation if official narratives portray national culture largely in terms of majority mores and stereotype the concerned minorities as backward. Under such conditions, the personal laws of various minorities were barely changed: consider those of the Berber groups of Morocco and Algeria, the Muslims and Druze of Israel, the Hindus and Christians of Pakistan, the
Hindus and Buddhists of Bangladesh, and the Muslims of Thailand and the Philippines. However, some regimes that aimed for broad coalitions made moderate changes in the laws of minorities that they considered progressive (for example, the Egyptian government did so regarding the Copts, though the desire for broad support discouraged reform after a point), included minority representatives that favored reform (as the parties representing predominantly non-Muslim groups in Malaysia’s ruling alliances did), or could base reform on aspects of the relevant group’s norms of which they were aware (as happened with several of Indonesia’s ethnic groups). The focus of Egyptian regimes on an Arab identity shared by the country’s Christians, and of Indonesian regimes on a nondenominational mono the ism in which all the country’s citizens were taken to believe, also made these ruling elites more open to changing certain minority laws. Regimes that prioritized modernist social reform over broad support were willing to apply new laws to their minorities as well, especially if they did not value cultural diversity, as in Turkey.

How did ruling elites’ discourses of nation and community and their coalition-building ambitions impinge on minority accommodation in Indian personal law? The majority of Indian nationalists considered the nation diverse and claimed that various religious and ethnic groups and regions belonged equally in the nation. The aspect of official discourse most relevant to personal law was the view of the Indian nation as a composite of religious (and ethnic) cultures. Proponents of this view varied in whether they presented the nation as an aggregate of distinct religious cultures or emphasized cultural overlap. While the aggregate view encouraged the recognition of distinct religious norms, the cultural-overlap view urged the promotion of similar norms among various religious groups. Indian policy makers recognized distinct personal-law systems, but also introduced similar rules in some of these systems.