Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (39 page)

ii. Mobilization Regarding Christian Law. Scholars have explored Christian social reform initiatives far more in the colonial period than after independence, although it was over the past three decades that the Christian presence in India became more significant due to extensive conversion. Christian mobilizers gave personal law more attention starting in the 1980s.
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Many Christian leaders were concerned as far back as the 1950s about the restricted access to divorce and the lack of adoption rights for Christians, and the need for ministers of churches other than the Anglican, the Scottish Presbyterian, and the Catholic churches to gain government certification to solemnize marriages. Some Christian leaders presented demands to the Law Ministry in the early 1950s, and Christian parliamentarians presented private member bills in 1956, 1958, and 1973 to permit judicially separated couples that had not resumed cohabitation for two years to seek divorce, as was possible in Hindu law. Three Law Commission reports suggested this change, in 1960, 1961, and 1983, and the second led the government to introduce a bill in parliament in 1962, prepared in consultation with the leaders of the major churches. But parliament only discussed this bill briefly and passed no legislation because the Catholic Church and certain Orthodox churches opposed an expansion of divorce rights.
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Christian mobilization for personal-law reform began in the late 1970s, and was led by the professional elite, in which Christians were much better represented than Muslims. The Joint Women’s Program (JWP) led these efforts after it was formed in 1978, and was joined in the 1990s by two other lay organizations, the All India Catholic Union (AICU) and the Young Women’s Christian Association (YWCA), as well as two clerical organizations, the Catholic Bishops Conference of India (CBCI) and the National Council of Churches of India (NCCI). (Twenty-seven mainline Protestant and Orthodox churches are members of the NCCI). Two evangelical organizations, the Indian Pentecostal Church of God and the members of the Evangelical Fellowship of India (EFI), also supported these efforts from the late 1990s. The main demands of these organizations were to provide Christians more extensive
and accessible divorce rights, to equalize the divorce rights of Christian men and women, to extend Christians adoption rights, and to give the ministers of all churches the right to solemnize marriages.

The JWP’s leaders belonged to the Church of North India (CNI), which had been formed in 1970 through a merger of the Anglican, Congregationalist, Presbyterian, British Baptist, and British and Australian Methodist Churches, along with the Church of the Brethren and the Disciples of Christ. The JWP worked closely with two older institutions, the William Carey Study and Research Center and the Christian Institute for the Study of Religion and Society. These organizations initially demanded a UCC that would incorporate Hindu marriage and adoption law, so that the minorities could gain the divorce and adoption rights that Hindus already had, and the rules of the ISA (applied to Christians and non-Hindus who opt for the SMA), which gave women greater rights in ancestral property than Hindu law did until 2005. The proposal to introduce a UCC including the features of different personal-law systems most favorable to women’s rights and individual autonomy appeared rather different from most Muslim perspectives on personal law, which were rooted in interpretations of particular religious traditions. However, the Christian organizations’ orientations toward personal law were formed through the development of religious perspectives in light of various contemporary social predicaments and the major changes introduced through the twentieth century in the theology and canon of the global churches.

The JWP’s leaders developed their vision of matrimonial life through dialogue with members of the YWCA and the Women’s Fellowships, church-affiliated groups in which women study the Bible, share their understandings of social changes that affect their lives, and offer their members counsel. The feminine interpretations of Christian texts that emerged through these discussions in the 1980s accepted the Biblical understanding of marriage as a sacrament, but also emphasized the importance of love and companionship in marital relations, urged women to cultivate greater spousal understanding and support, and suggested that separation and divorce might be appropriate if such bonds were absent between spouses. They also encouraged women to participate actively in the workforce and public life. Jyotsna Chatterji, the JWP’s founding president, offered such interpretations in six booklets published between the late 1970s and late 1980s, and many others who participated
in these discussions had similar perspectives.
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The JWP’s policy proposals emerged from these feminine religious visions, particularly once the stout resistance of Muslim organizations such as the AIMPLB to a UCC, as well as the preference of many Christians to maintain explicit connections between religious vision and personal law, led the JWP to abandon aspirations for a UCC in the mid-1980s and instead demand changes in Christian law.

It was in the CNI that the clergy became initially involved in promoting personal-law reform, because of the JWP’s close links with this church. The church’s Commission on Religion and Life and the JWP drafted three proposed bills, the Christian Marriage and Matrimonial Causes Bill, the Indian Succession (Amendment) Bill and the Christian Adoption and Maintenance Bill, in 1982; they obtained the signatures of about ten thousand Christians on a memorandum summarizing the changes demanded. These proposals were the bases of discussions with the Law Commission and the Prime Minister’s office, in response to which the Law Commission recommended increases in Christian divorce rights once again.
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However, the prime minister’s office wished to ascertain clerical opinion before considering Christian law reform. This induced the lay organizations to engage in sustained discussions with the mainline churches between 1984 and 1994, which led to a partial convergence in the perspectives of the lay and clerical organizations, brought the reform demands the support of the lay AICU and the clerical CBCI and NCCI, as well as greater popular support, and led policy elites to consider these demands representative of broad Christian opinion.

The leaders of the JWP, the AICU, the CBCI, the NCCI, and certain canon law experts and civil lawyers formed the Ecumenical Committee for Changes in Christian Personal Laws, which drafted revised proposals that were presented to the government. They included (a) an increase in divorce rights and their equalization for men and women through adoption of the relevant provisions of the SMA, (b) the extension of adoption rights, (c) equal shares for the spouses in matrimonial property, (d) an increase in alimony, (e) the elimination of the right to the spouse’s conjugal company, (f) the closing of loopholes that enabled child marriage, (g) the prioritization of widows over other kin in inheriting their husbands’ property if the couple had no children, (h) the invalidation of prenuptial contracts that deprived widows of their husbands’ property, (i) the state’s automatic acceptance of marriage an
nulment by churches, (j) the elimination of the need for high courts to confirm lower-court divorce decrees, (k) the extension of the right to solemnize marriages without government certification to the ministers of all churches, and (l) the application of the ISA to Christians in the former princely states of Travancore and Cochin, whose customary laws had denied women rights in ancestral property. (The Supreme Court had indicated, in
Mary Roy v. State of Kerala
(1986), that the last change had come into effect in 1951, but the Christian organizations wished the ISA to reiterate this). Moreover, the churches that accepted these proposals agreed to require couples whose marriages they solemnized not to give or receive dowry in connection with their weddings, and to allow their priests to remarry divorced individuals.
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The initial resistance of the hierarchies of certain churches to some of these proposals was overcome through dialogue with lay organizations and church members. The leaders of the Catholic Church and some evangelical churches felt that an increase in divorce rights would be contrary to their view that marriage was sacramental, and the former had demanded from the 1960s to the 1980s that any new divorce rights not be applied to Catholics. However, the AICU’s leaders argued with the Catholic hierarchy that changes in the civil effects of marriage would not undermine the institution’s sacramental character, that these reforms were necessary to help Christians in dysfunctional marriages, and that increased civil divorce rights would not oblige the churches either to recognize civil divorces or to remarry individuals who had obtained such divorces. Moreover, the reformers agreed to replace the word “divorce” with the expression “dissolution of the civil effects of marriage” in their proposals, to allay the qualms of some priests. These arguments and compromises secured the Catholic hierarchy’s agreement to increased divorce rights, and Father Alan de Lastic, who was the President of the CBCI and the Catholic Archbishop of Delhi in the late 1990s, was crucial in ensuring this. The resistance of the evangelical churches that were members of the EFI to an increase in divorce rights was in tension with their members being primarily from the lower castes and tribes, among which divorce customs had long existed. Church leaders had considered the inculcation of greater marital commitment important to their mission among these groups. However, a survey they conducted confirmed the claims of reformers that marital separation was widespread and increasing among their members, leading
them to reconcile their insistence on marital commitment to an acceptance of greater divorce rights. But most evangelical and Catholic clergy continued to refuse to remarry divorced people even after Christian divorce rights were increased.

The Malankara Orthodox Syrian Church and the Syro-Malabar Catholic Church were reluctant to discourage dowry, as they gained shares of their members’ dowries. Although the laws against dowry made it difficult for them to argue their position forcefully, the considerable influence of these churches in Kerala, a state with a high Christian population (19 percent according to the census’s low estimate) and a high proportion of India’s Christian professional elite, made the lay reformers eager to secure their support. The lay organizations dropped two of their initial demands to ensure the agreement of these churches to discourage dowry: to give divorcées a share of matrimonial property, and to eliminate the right to the spouse’s conjugal company. Other churches were likely to have opposed these demands if the Malankara Orthodox Syrian and Syro-Malabar churches had not, and legislators were unlikely to have accommodated them, since none of India’s personal laws recognize rights in matrimonial property
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and a right to the spouse’s conjugal company is recognized among all citizens.
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The consensus built among major Christian mobilizers over personal-law reform enabled increases in divorce rights and widows’ rights in their husbands’ property, the equalization of the divorce rights of men and women, and a simplification of divorce procedures, but did not secure the other changes.

Major Christian and Muslim religious leaders responded rather differently to demands for reform because of the extent of recent change and flexibility in their social and religious visions, and the nature of their relationships with their followers and reformist mobilizers. First, the global churches to which the Christian clergy belonged had changed their doctrines considerably and codified and liberalized their canon laws over the past century, making the doctrinal orientations of certain Indian church leaders more flexible. The major Muslim religious institutions of India were not branches of global institutions. Many of their leaders had links with religious institutions in the Arab world and Central Asia, particularly in Egypt, Saudi Arabia, Iraq, and Iran, but religious reasoning had changed far less in these institutions than in the Christian churches, because sociocultural change, secular
ization, and popular mobilization had been more limited in these societies than in Europe and Latin America where the changes in Christian theology and canon had largely emerged. Moreover, only some Indian Muslim leaders were influenced by transnational reformist currents, and most of them considered the extensive changes in Islamic state law in countries such as Tunisia, Morocco, and Indonesia irrelevant to India.

Second, the Christian clergy was more receptive to the concerns of their church members than most
ulama
were to their supporters. Some church members aired their concerns about Christian law with their ministers, who responded by recognizing some emergent practices. The
ulama
’s reformist initiatives were more minor in scope, and many Muslims felt that they addressed their concerns ineffectively. Third, the main reformist mobilizers and the religious leaders differed less in perspective and had less antagonistic relations among Christians. Most Christian reformists belonged to churches, and some crucial reformist organizations organized the members of particular churches for example, the AICU of the Catholic churches and the JWP largely of the CNI. The reformists had ongoing contact with their church leaders, built alliances with the more liberal ministers, and maintained contact with some conservative ones. This enabled dialogue between the lay reformers and religious leaders, and an eventual convergence in their views on personal law. By way of contrast, the major
ulama
considered the reformist organizations havens of dissent, and many Muslim reformers challenged their religious leaders more directly. Women were not members of the major Islamic religious institutions, and some
ulama
were uncomfortable about dialogue with reformist women. Muslim religious leaders changed their tactics in response to reform demands to prevent an erosion of their support and prestige, rather than because they accepted many of the reformers’ views. This hindered agreement among Muslim mobilizers about changes in social practice and personal law.