Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (43 page)

The verdict that the
talaq-ul ba’ in
was revocable was followed by similar verdicts from some other high courts and declarations of support from a con
servative religious institution (the Jamaat Ahl-i-Hadith) whose legal doctrine treated the
talaq-ul ba’ in
as revocable and a conservative political organization (the Muslim Majlis-e-Mushawarat) that included the adherents of
madhhabs
that varied in their views of such repudiation. Conservative Muslims were more divided in their response to the introduction of conditions for the validity of unilateral repudiation than to the requirement of alimony because reputable commentators, while having different interpretations of
mata
, agreed that the Qur’an recommended that repudiation should be initially revocable and followed by efforts at reconciliation. Moreover, the
darul qazas
of some
madhhabs
in India (the Ithna Ashari, Musta’lian Isma’ili and Ahl-i-Hadith) do not recognize the
talaq-ul ba’ in
, while none seem to require men to provide their ex-wives
mata
.
⁹⁶
As its constituent organizations disagreed on the status of this mode of repudiation, the AIMPLB did not intervene in the cases in which its validity was contested. Smaller associations of Muslim religious elites or lawyers defended precedent in some of these cases, but had fewer resources at their disposal.
⁹⁷
The support of some conservative Muslim elites and the lack of resistance from major conservative organizations made it easier to consolidate Muslim divorce law reform.

The high courts responded differently to cases regarding the validity of repudiation pronounced in an irrevocable form from 1978 until the Supreme Court delivered its definitive verdict in
Shamim Ara v. State of U.P
. (2002).
⁹⁸
The first two judgments placing conditions for the validity of unilateral repudiation were not widely noticed, and the next one was delivered over a decade later. Even after the recent growth of judicial knowledge about Islamic traditions, judges remained far more aware of legislation and were more comfortable independently interpreting statutes than religious traditions. As a result, more of them were willing to decree post-
iddat
maintenance based primarily on the MWPRDA or Section 125 of the Code than to invalidate irrevocable repudiation. Thus, the high courts deemed the
talaq-ul ba’in
revocable only in a minority (ten) of the reported cases in which the practice was challenged in the twenty-four years between the first such high court decree and the definitive Supreme Court judgment of 2002; by contrast, they decreed permanent maintenance in a little over a half (twenty-two) of the reported cases in which Muslim divorcées petitioned for it in the fifteen years between the passage of the MWPRDA and the definitive Supreme Court judgment of 2001. (Moreover, a
number of the reformist judgments based themselves on the Constitution in maintenance cases, but only one (
Rahmat Ullah
) did so regarding repudiation). This was true even though conservatives resisted the reform of repudiation law much less than they did the changes in maintenance law.

Shamim Ara
settled the question for the formal courts, but drew far less attention than
Danial Latifi
because major social organizations and activist lawyers were not involved in it, the litigants did not challenge statutes or base their arguments on constitutional rights, and only a two-judge panel considered the case. Justice Ramesh Chandra Lahoti, who led the court, highlighted his inclination to reconsider precedent based on contemporary social circumstances and a “sense of justice, equity and good conscience.” As he believed that the postcolonial constitution gave the standard of “justice, equity and good conscience” a new form, he brought constitutional principles to bear implicitly on the case, and indicated when I interviewed him that he would have been willing to rule on constitutional grounds if the litigants had referred to them. At the same time, he wished to avoid conservative Muslim protest, much as the
Danial Latifi
Court did; this made him avoid invalidating all forms of unilateral repudiation even though he believed this would be desirable, because he did not find a basis for such a decree in Islamic traditions. It also led him to avoid reference to a UCC.

Justice Lahoti drew confidence from the presence of
hadith
and major Islamic commentaries that treated the
talaq-ul ba’ in
as revocable, and the precedents authored by Muslim judges knowledgeable about Islamic tradition. He highlighted these precedents, and not
Rahmat Ullah
, which had aroused controversy by basing itself explicitly on constitutional principles and Hindu-majoritarian assumptions. The judgment repeated the conditions specified in
Jiauddin Ahmed
for the validity of male repudiation, and added others—that the claim of repudiation must be clearly made in the initial petition rather than being added as the case proceeds, and that it should be corroborated by eyewitnesses or documentary evidence. This closed the door to men pronouncing divorce in the midst of cases in which their wives seek maintenance or the restitution of conjugal rights. It did not require the judicial approval of unilateral repudiation, as the Islamic laws of Tunisia and Jordan do, but made the validity of repudiation open to judicial consideration. This judgment also aroused no protest.

Neither
Shamim Ara
nor its precedents specified the standards by which courts should assess the reasons men provide for repudiating their wives. Justice Lahoti wished these standards to be different from the divorce grounds recognized in the various personal-law statutes and in Islamic legal traditions. For instance, he wanted the breakdown of marriage to be an acceptable ground even in the absence of spousal fault or mutual consent, although this was not the case in Indian statutes, and he did not believe that a woman’s disobedience of her husband would be an appropriate reason, although Islamic traditions recognize it as such. But the judgment did not specify any standards.
Masroor Ahmed v. State of Delhi
(2007), a subsequent high court judgment, clarified that the
talaq-ul-ba’ in
would be considered revocable even among Hanafis and Shafi‘is, whose schools predominantly take such pronouncements of divorce to end marriages. It added that a man’s pronouncement of divorce needs to be communicated to his wife for it to take effect; and that if
talaq
is pronounced in revocable form, reconciliation was possible before the divorce takes effect at the end of
iddat
.
⁹⁹

C. Patterns of Change in Muslim Law

The courts justified the changes that they introduced over the last generation in Muslim law with reference to features of statutory Muslim law and Islamic legal and normative traditions. They also alluded to constitutional rights, but departed from precedent only when they felt that group law and group norms also offered plausible support. Policy makers’ visions of group norms and the implications of group recognition shaped and limited legal change. These considerations constrained the Supreme Court from overruling sections of the MWPRDA, as the petitioner demanded in
Maharshi Avadhesh v. Union of India
(1994), and from invalidating unilateral male repudiation, banning polygamy, and providing daughters shares of family property equal to those of sons, as the petitioners demanded in
Ahmedabad Women’s Action Group (AWAG) v. Union of India
(1997). The Court believed that such changes lay solely in the legislature’s jurisdiction and that it could not assess personal laws based on constitutional rights alone.
¹⁰⁰
Legislators did not adopt these changes either, or require judicial approval of male repudiation, allow either woman-initiated no-fault divorce through judicial mediation or unilateral female repudiation, extend rights to inherit agricultural land to women in all
states, give separated and divorced women shares in matrimonial property, recognize the matrilineal customs of certain Muslim groups, or extend Muslim couples adoption rights, although activists highlighted the bases many of these proposals had in reformist interpretations of Islamic tradition. Policy makers did not introduce these reforms because there had been limited mobilization and litigation in their favor, these rules did not seem to them a part of the sense of group tradition shared by many Indian Muslims, and their vision of the normative family did not suggest that these changes were imperative.

In response to their losses in the state courts, conservative Muslim institutions underlined their suggestion that Muslims take matrimonial disputes to the
darul qazas
over which they had influence. The AIMPLB urged this course since its inception, but emphasized it starting in 1993. Besides, some conservative Muslim elites demanded that the state give sharia courts (that is,
darul qazas
and perhaps Muslim neighborhood councils) exclusive jurisdiction over Muslim family law cases. Legislators show no inclination to give Muslim institutions greater autonomy, and are unlikely to remove Muslim law cases from the jurisdiction of state courts. In recognition of this, many conservative Muslims accept the dual authority of state courts and community courts, but demand that state courts recognize all community court verdicts and direct the police to aid in their implementation. However, the state courts are likely to continue considering appeals of community court verdicts, especially as certain recent verdicts (for example, of caste
panchayats
against intercaste marriages) were clearly contrary to state policy. While resisting demands to give Muslim religious courts added powers, the executive opposed the plea in
Vishwa Lochan Madan v. Union of India
(2005) to disband these courts.
¹⁰¹
Although the formal powers of Muslim community courts are unlikely to change, the efforts of conservatives to urge more Muslims toward these courts may succeed, because they are more embedded among less-privileged groups, and the cost and duration of cases are lower in them.

V. CHANGES IN CHRISTIAN LAW

The important changes in Christian law since the 1990s have drawn far less public and scholarly attention than those in Muslim law. Alice Jacob, Flavia
Agnes, and Rita Monteiro outlined some of these changes, but did not address the legislation and case law of the last decade or explain the content, timing, and process of the reforms.
¹⁰²

The formation of a consensus about personal-law reform among the major Christian mobilizers by the 1990s contrasted with the resistance of conservative Muslim leaders to the majority of the reform proposals on offer. This reinforced the perception among policy elites that Christians were more inclined toward reform, and made them more willing to consider legislative changes in Christian law than in Muslim law. As a result, the Law Ministry drafted proposals that would increase individual autonomy and women’s rights in Christian law in the 1960s, and then again in the 1990s and 2000s, but did not do so regarding Muslim law. But policy makers continued to resist Christian-law reforms that they feared would erode Hindu predominance in public life.

Various judges highlighted the need to change Christian divorce law from the late 1960s. As policy elites periodically considered legislative changes in Christian divorce law and adoption law, judges advocated legislation but did not change Christian law themselves until the 1990s. Judges began to change Muslim law earlier because they saw no signs of legislative initiative in this regard, and litigants demanded that they address the uncertain implications for Muslims of the changes in commonly applicable alimony laws.

Although policy elites considered Christian law reform at different points, their preferences differed from those of the Christian mobilizers about the precise nature of the reforms, and this delayed legislation until 2001. The majority of Christian mobilizers had agreed by the mid-1990s that they wanted to increase divorce rights, equalize the divorce rights of men and women, gain adoption rights, and give the ministers of all churches the right to solemnize marriages. Crucial political and bureaucratic elites were willing to accept the changes in divorce law alone, but wanted to give Christians the right to adopt only children with Christian biological parents, and wished to restrict Christian marriage law to couples in which both partners were Christians, because they were wary of enabling growth in the Christian population. The Christian mobilizers were unwilling to accept such restrictions on adoption rights and in the ICMA’s application, and this suggested that there could be a prolonged delay in legislation. The failure of the executive to accommodate many
reform demands even when the major Christian organizations had reached a consensus over them led certain judges to change divorce and adoption law in some states, especially as they believed these reforms were long overdue. The judicial reform of divorce law prompted legislation, which changed divorce law further and applied this reform throughout India. But the opposition of political elites and bureaucrats prevented legislation to apply the judicial changes in adoption law to all Christians. Legislators did increase widows’ inheritance rights and divorcées’ alimony entitlements, and abandoned a punitive response to adultery even though only certain Christian mobilizers prioritized these changes. They did so because giving widows better access to their husbands’ property than extended kin conformed to their inclination to give the nuclear family priority: and ending punishment for adultery and increasing economic support for divorcées was consistent with their valuation of conjugal autonomy.

A. Divorce Rights

We saw that the IDA of 1869 provided men and women divorce on different grounds, and made it difficult for Christians to get divorce decrees. After independence, various women litigants challenged the differentiated divorce rights of Christian men and women on grounds including the constitutional rights to equality and equal treatment and current provisions of British law. However, as they ceased to rely on the divorce provisions of British law, starting in the 1950s, the courts made the limits to Christian divorce rights more binding. Moreover, the Madras High Court reinforced the judiciary’s commitment to the gendered grounds for divorce in the IDA in
Dwaraka Bai v. Professor Nainan Mathews
(1953). Justice Panchapakesa Ayyar ruled that these provisions did not discriminate based on sex, insofar as they were based on the different consequences of adultery—a woman’s adultery could lead to the birth of a child whom her spouse would be obliged to support—and found this a sound reason to limit the availability of divorce based solely on adultery to men.
¹⁰³
The courts followed this precedent until 1995, initially endorsing
Dwaraka Bai
’s logic.