Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (37 page)

The reform initiatives of the Europe an clergy, like those of the major
ulama
, were based on models of religious behavior that emerged among their coreligionists outside South Asia. They urged the abandonment of certain indigenous practices, such as polytheism, animism, polygyny, and child marriage. Some Indian Christians, particularly recent Protestant converts from the upper and middle castes, discouraged the above practices but promoted indigenization and the adoption of certain Hindu practices concerning worship, religious organization, and spiritual understanding much more than Muslim mobilizers did. They also pressed without much success for the greater inclusion of Indians in episcopal hierarchies.
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Christian cultural indigenization did not address personal law in the colonial period, but the revaluation of certain indigenous practices enabled later personal-law reform initiatives to base themselves on emergent local Christian practices. It also made Christians more open than Muslims at times to a UCC. Moreover, the codification and reform of the canon laws of the world’s major churches since the early twentieth century made Christians more receptive to personal law reform.

C. The Courts and Contentious Questions in the Minority Laws

Litigants contested the rules according to which certain kinds of personal disputes were resolved in Muslim law and Christian law, and the courts changed how they resolved them in certain respects over the last generation. Muslims especially contested the validity of unilateral male repudiation and the conditions under which it would be valid, the economic consequences of
divorce, the validity of polygamy, bequests to family members, and the implications of apostasy for the status of marriages; Christians litigated the conditions under which divorce would be accessible and the possibility of adoption. Of these questions, colonial-era legislation only resolved the validity of family bequests and the implications of apostasy among Muslims. Colonial judicial precedents were the points of departure for postcolonial litigation on the other questions.

i. Muslim Law. The colonial state’s rhetoric of noninterference in religious practices, the judges’ limited knowledge of Islamic traditions, the uncertainty of Sunni orthodoxy about contemporary
ijtihad
, and the resistance of most Muslim mobilizers to novel interpretations of Islamic law by non-Muslims and nonexperts in Islamic law shaped the basic posture of the colonial courts toward Muslim law. The courts were reluctant to interpret the founding texts of Islam and its major
madhhabs
independently, and generally followed what they understood to be the verdicts favored by the
ulama
of the litigants’
madhhab
. They sometimes applied the predominant interpretation in Hanafi jurisprudence to all Muslims, but applied the rules of the litigants’
madhhab
in other contexts. The courts recognized the rules of the non-Hanafi schools, for instance the Shia rules regarding inheritance and the right to
mahr
(dower) on divorce, and, for the minority of Indian Sunnis governed by Shafi‘i law, a bar on women retrospectively repudiating marital alliances contracted when they were minors or to which they did not consent. The Ithna Ashari, the Nizari Ismaili, and the Musta’lian Ismaili schools, which together govern most Indian Shias, apportion inheritance rights equally to agnates and cognates and give women the right to retain their dower after divorces they initiate, in contrast with the various Sunni schools that prioritize the inheritance rights of agnates and require women to forego their dower after divorces they initiate. Shafi‘i law does not allow women to repudiate marital alliances retrospectively, while Hanafi law permits this until the consummation of the marriage or until the woman turns eighteen.

The most common form in which divorces occur among Indian Muslims is the
talaq ul-ba’ in
(unilateral and immediately irrevocable male repudiation), pronounced by the husband in a verbal or written statement that he is immediately ending the marriage. It typically involves the man repeating
thrice that he is divorcing his wife (“
talaq, talaq, talaq
,” called the triple
talaq
), thereby giving the divorce immediate effect. If the man makes the statement just once, he is taken to indicate his plan to divorce his wife, but his pronouncement of divorce remains open to reconsideration during
iddat
(period of waiting, lasting three menstrual cycles of usual duration, three months, or until the end of the woman’s pregnancy if she was pregnant when the husband announced his intention to divorce her). If the spouses do not resume their relationship, the divorce takes effect at the end of
iddat
. The early Islamic community recognized only the revocable mode of pronouncement of divorce, which alone left space for the man to reconsider his plan to end his marriage and for the couple to attempt reconciliation, as recommended in the Qur’an 4:35. All
madhhabs
consider irrevocable repudiation irregular, and prefer that the husband’s initial pronouncement of divorce be revocable through
iddat
, during which they recommend efforts at spousal reconciliation. Of the major schools in India, the Hanafi and Shafi‘i schools recognize divorces pronounced irrevocably as taking immediate effect; but the Ithna Ashari, Musta’lian Isma’ili, and Ahl-i-Hadith schools consider even such pronouncements initially revocable.

The majority of colonial courts considered immediately irrevocable divorces valid, following the predominant Hanafi interpretation, even among Muslims belonging to
madhhabs
that consider such divorces open to reconsideration during
iddat
. They did so although this did not comport with the judges’ preference for durable marital bonds or the practices valued in the early Islamic community and in all
madhhabs
. A judgment of the Bombay High Court in 1905 standardized the rationale for this position, saying that immediately irrevocable unilateral male repudiation was “good in law, though bad in theology.”
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The courts followed this precedent until 1978, varying only on whether the divorce might be pronounced in the wife’s absence and on the standards of proof for the pronouncement of divorce (from none to oral or written evidence).
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Some judges expressed misgivings about the insecurity that the ready availability of unilateral male repudiation caused Muslim women, but claimed that Islamic tradition required them to recognize such divorces.
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The courts required Muslim men to provide for their ex-wives only through
iddat
. In addition, some required these men to give the women any gifts
the women might have received. They required Shias to pay or return the women’s dower—which the man’s natal family typically controlled while the couple was married—requiring Sunnis to return it as well unless the woman initiated the divorce petition. Maintenance was decreed for longer periods only in the exceptional cases in which marriage contracts required it.
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The period through which the man was obliged to support his ex-wife depended on when the courts took the divorce to have taken effect: when witnesses attested that the man orally pronounced divorce (even in the wife’s absence); when the man wrote a divorce statement; when the woman learned of the divorce; or when the man stated in court that he had repudiated the woman. Men were required to provide maintenance from when they stopped supporting their wives until three months after the date on which the divorce took effect. These judicial verdicts were based on the assumption that only one of the forms of support from husbands to ex-wives mentioned in the Qur’an was mandatory—
nafaqa
(maintenance during
iddat
, mentioned in Qu’ran 4:34) and not
mata
(usually translated as provision, mentioned in Qur’an 2:236, 240, and 241). All Islamic jurists considered
nafaqa
mandatory if the wife had submitted to her husband’s authority. But most Hanafi jurists gave the ex-husband discretion over whether to grant
mata
and how much support it would provide. The other
madhhabs
in India consider
mata
obligatory, but
qazis
of these schools do not appear to have systematically required such transactions. Various litigants contested colonial precedents regarding unilateral repudiation and the economic consequences of divorce, leading to reforms from the 1970s onward.

ii. Christian Law. Colonial Christian law applied to both Europe an Christians living in India and Indian Christians, although the colonial state governed these groups differently in other respects. The major Christian-law statutes, adopted in the 1860s and 1870s, were drawn from the British matrimonial legislation of the time. Some of these acts bore the “Indian” rather than the “Christian” label (such as the Indian Divorce Act (IDA) and the Indian Succession Act (ISA)) even if they applied only to Christians.
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The greater codification of Christian law than of Muslim law (whose first statutes were introduced only in the twentieth century) divested Christian law of an appearance of association with divinity. If Christians felt that their laws had
transcendent moral value, this feeling pertained to church canon rather than the Christian laws operative in the courts. This was in contrast with many Muslims, who attributed divine significance not only to
shari’a
but sometimes also to Muslim personal law. These circumstances made the Christians feel that their personal laws and their religious identities were less intimately linked.

Some features of Christian law were meant to influence the interactions between Europe an Christians and other groups. For instance, couples in which only one of the partners was a Christian were allowed to register their marriages under the Indian Christian Marriage Act (ICMA) to encourage Europe ans who had non-Christian partners to marry them, thereby legitimize their children, and raise them as Christians. This was in contrast with the application of the other personal laws only to couples in which both parties belonged to the relevant religious group. While wishing to urge more conjugal partners to marry, colonial administrators and judges were reluctant to enable non-Europeans to inherit property in Britain. As a result, they did not give Christians the right to adopt children, preventing propertied Britons from adopting Indian children and thus making them eligible to inherit shares of their property in Britain. Christian couples could be guardians of children, but their wards did not have the rights either to receive maintenance from their parents once they attained adulthood or to inherit family property. A few courts, however, recognized the adoption customs of particular Indian Christian groups. Moreover, the ICMA enabled only ministers of the Anglican, Scottish Presbyterian, and Catholic churches, which had closer links to the colonial state, to solemnize marriages, and required government certification before ministers of other churches could do so.
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Litigants contested the somewhat restricted room for divorce that the IDA provided and, to a lesser extent, the absence of adoption rights. The IDA enabled men to seek divorce on the sole ground of adultery, but allowed women to do so only if (a) they could demonstrate adultery as well as another spousal fault (bigamy, such cruelty as would entitle them to judicial separation, or desertion without a reasonable excuse for at least two years), (b) their husband had engaged in incestuous adultery, rape, sodomy, or bestiality, or (c) their husband had converted to another religion and married another woman.
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Moreover, it required a three-judge bench of the relevant High Court to ratify the divorce decrees of district courts; if the case hinged on a claim of adultery, the adulterer had to be made a corespondent. This act was based largely on the English Matrimonial Causes Act of 1857, and directed the courts to base their judgments on current English matrimonial law. The majority of colonial courts considered Christian divorce cases on the more extensive divorce grounds made available in En gland after the IDA’s passage, but some abided by the rules mentioned in the IDA. The tendency of many courts to consider Christian law cases in the light of current British law attenuated Christian concerns about the growing gap between the IDA’s rules and Indian Christian opinion and practice. However, most courts ruled after independence that British legislation was no longer relevant to adjudication, and relied on the nineteenth-century Indian statutes until Christian divorce statutes were changed in 2001.
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Under these circumstances, Christians found that access to divorce was difficult, and in most instances required demonstration of adultery.
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The divorce rights of Christians were far more limited than those of other religious groups after the HMA’s passage, and Christian divorce procedures were also more cumbersome. This made an increase in divorce rights the main Christian demand regarding personal law for almost six decades. It was the focus of an unsuccessful private member’s bill in the Central Legislature in 1941, and of other such bills from the 1950s onward.

II. THE FORMATION OF EARLY POSTCOLONIAL POLICY

We saw in
Chapter 3
that the Constituent Assembly and the courts considered the future course of minority law soon after independence. All Muslim members of the Constituent Assembly wished to retain distinct personal laws, but were open to changing personal law based on the concerned community’s consent. Mohammad Ismail, B. Pocker Sahib, and Mahboob Ali Baig of the Muslim League argued that the right to religious freedom required that religious groups with distinct personal laws be allowed to retain these laws. The links they claimed between religious practice and personal law suggested that distinct personal laws should be indefinitely retained. They tried without
success to add to the clause of the Constitution about a UCC the qualification that “any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.”
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