Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (44 page)

From 1968 onward, certain courts found the gendered grounds for divorce, the limited room for divorce, and the need for high court ratification of Christian divorce decrees out of date, but deemed legislators responsible to
change these provisions. The first such judgment,
Solomon Devasahayam Selvaraj v. Chandirah Mary
(1968), highlighted the lack of correspondence between Christians having the least divorce rights in India and the social orientations of the community—“no one will consider that the Christians are a backward community compared to the other communities in the country.”
¹⁰⁴
However, its call for legislative reform was an
obiter dictum
in a response to a petition to restore conjugal rights. Certain subsequent judgments also took the widely noticed progressive social inclinations of Christians to particularly warrant an increase in their divorce rights, but did not introduce judicial reform.
¹⁰⁵
Swapna Ghosh v. Sadananda Ghosh
(1989) considered the different divorce rights of Christian men and women and the more limited availability of divorce to Christians discriminatory, and refused to accept
Dwaraka Bai
’s justification of the former, because it took the different consequences of adultery to be merely a result of gender differences.
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This too remained an
obiter dictum
because divorce could be decreed in this case based on the existing provisions themselves. Various courts also called for the elimination of the requirement that high courts ratify Christian divorce decrees.
¹⁰⁷

The executive proposed no reforms to address the judiciary’s concerns about Christian divorce law from the 1960s until the 1990s, although Christian mobilization for personal law reform grew starting in the 1980s. The inaction of the executive and the growth of Christian reformist mobilization prompted certain benches of the Kerala, Bombay, and Andhra Pradesh High Courts to change Christian divorce law in their jurisdictions.
¹⁰⁸
Certain organizations engaged with Christian law participated in the first of these cases,
Mary Sonia Zachariah. v. Union of India
(1995), much as organizations involved in Muslim law had in the major Muslim maintenance cases. However, the major religious institutions, community organizations, and rights organizations united in pressing for reform in
Mary Sonia Zachariah
, unlike in
Shah Bano
and
Danial Latifi
, which pitted reformist organizations and lawyers against the most influential religious and community institutions. This was because many of the churches favored reform by then, contrary to the attitude of the Muslim religious institutions toward alimony law.

Two of Kerala’s important reformed Orthodox churches, certain Christian reform organizations, and rights organizations that did not focus on Christian concerns were involved in
Mary Sonia Zachariah
.
¹⁰⁹
They brought
the visions of religion and gender that were motivating mobilization for Christian law reform to bear on the case. These organizations requested the court to delete the words “incestuous” before “adultery” and “adultery coupled with” before “cruelty” and “desertion” so that spousal adultery, cruelty, and desertion could become grounds for divorce on their own for Christian women, rather than adultery having to be combined with another spousal fault. They felt this would resolve the conflicts that they found between the existing divorce grounds and various constitutional rights. A vicar of the Saint Thomas Evangelical Church also argued in court that although spousal adultery was initially a precondition for divorce based on the Bible, the Biblical view of love as the basis for marriage also provided a justification to dissolve marriages no longer bound by love, reflecting the companionate yet sacramental understanding of marriage shared by many of the women mobilized to change Christian law. The Christian Institute for the Study of Religion and Society said that accessible divorce was necessary as a course of last resort to end dysfunctional marriages for the same reasons that euthanasia was needed to end miserable lives; this reflected a discussion that had recently begun in various churches in Kerala on euthanasia, leading the majority of them to accept the practice. The Indian government resisted the petition initially, on the grounds that many Christians opposed this change, that the Constitution enabled the differential treatment of groups, and that the changes the petitioners requested would create a new inequality in the grounds for divorce, which would be available to women but not to men based on cruelty or desertion alone. The lay organizations and churches had reached a consensus on divorce rights by the time the case neared its end, weakening the government’s claim about Christian opposition. The government therefore abandoned its opposition in principle to increasing Christian divorce rights, but requested the court not to amend the law so that the legislature could pass comprehensive legislation that would better address the community’s demands.
¹¹⁰

The court issued an interim order in 1989 directing the Indian government to decide within six months whether and how it would act on the suggestions in the Law Commission’s
Ninetieth Report
to amend the IDA. It hoped to hasten legislation thereby, and indicated that it was the government’s inaction on this directive, as well as on the previous recommendations of various
courts and the Law Commission, that triggered its resort to reform: “It is after taking note of . . . the totally intransigent attitude adopted by the Central Government . . . that we have decided to consider the matter on merits and to grant the reliefs prayed for, assuming the role of reformer to the extent legally permissible.” Justice T. Ramakrishnan claimed inspiration in
Shah Bano
’s statement that “inevitably, the role of the reformer has to be assumed by the Courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is palpable,” and Justice Krishna Iyer’s warning that “the sex equality clauses of our Constitution will remain frozen and be a perpetuation of ancient legal injustice unless activist judges share the new concerns and values.”
¹¹¹

Mary Sonia Zachariah
found the availability of divorce to men but not women on the ground of adultery alone, the unavailability of divorce to women on the grounds of cruelty or desertion alone, and the easier availability of divorce to all groups except Christians incompatible with constitutional equality and nondiscrimination on the bases of religion and gender; further, it found the disentitlement of Christian women to divorce based on cruelty and desertion contrary to the constitutional rights to life, personal liberty, and dignity. The court claimed that it was not breaking with judicial precedents that resisted the assessment of personal law with reference to the Constitution as it was amending only a particular provision of the IDA, rather than the entire act. It felt confirmed in its course because it found adultery “well nigh impossible” to prove, and because the increase in the divorce rights of Hindus and Parsis had not impaired family life among these groups, but rather had prompted demands for the further liberalization of divorce.

The second judgment that changed Christian divorce law,
Pragati Varghese v. Cyril George Varghese
(1997), found justification for the change in Christian doctrine and mobilization, as well as in constitutional rights. It indicated that the Protestant and Orthodox churches permit divorce, and that even the Roman Catholic Church, which considers marriage indissoluble, had amended its canon to offer divorce grounds more liberal than the IDA’s. Moreover, it found the gap between Protestant canon and the statute that much greater, which was intolerable because of the extensive mobilization of Christians, including Catholics, for divorce law reform.
Pragati Varghese
found the easier
availability of divorce to Christian women than to Christian men after the amendment it introduced acceptable, drawing justification from a Supreme Court judgment that defended such asymmetry with reference to the “muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and non-aggressive nature and role particularly in this country.”
¹¹²
Mary Sonia Zachariah
more specifically considered it appropriate to enable Christian women alone to access divorce on the grounds of cruelty and desertion, as it believed that women alone suffered the consequences of these spousal faults in India at that point. Both judgments left it to the legislature to equalize the divorce rights of Christian men and women, and to streamline Christian divorce procedures.

Much as with Muslim divorce and alimony law, judges changed Christian divorce law only to the extent that they considered this necessary to offer women redress, rather than with a view to equalizing matrimonial rights. The legislative amendment of the IDA in 2001 was prompted by judicial reform, but was more comprehensive, and equalized the divorce rights of Christian men and women. It (a) made divorce available to both Christian men and women based on a single spousal fault or mutual consent; (b) removed the requirement of high court confirmation of lower court divorce decrees; (c) increased alimony entitlements by eliminating the earlier ceiling of a fifth of the husband’s earnings; and (d) abandoned a punitive approach to adultery by deleting the provision to transfer the property of adulterous women to their husbands and children on divorce and eliminating the need for adulterers to be corespondents and to pay damages. This rendered the divorce rights of Christians similar to those of Hindus, but not to those of Muslims, among whom alone unilateral male repudiation is possible.
¹¹³

The courts considered group norms, practices, and initiatives relevant guidelines to change Christian divorce law, much as they did regarding Muslim law. So did the Law Commission, especially in its
Ninetieth Report
, presented when mobilization for Christian personal-law reform had begun, and its
164th Report
, presented when such mobilization had peaked. The Indian Divorce (Amendment) Act that was passed in 2001 also referred to the increased acceptance of divorce in the canons and by the leaders of various churches, the problems associated with the growth of dysfunctional mar
riages that could not be dissolved among Christians, and the initiatives of various Christian organizations for personal-law reform.
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B. Other Aspects of Christian Law

Legislation also changed other features of Christian law. It amended the ISA in 2002, based on demands of the more ambitious Christian mobilizers represented in the Ecumenical Committee for Changes in Christian Personal Laws. The amendments increased widows’ rights in their husbands’ property, specifically giving them priority over lineal descendants other than the couple’s children; invalidated prenuptial contracts that might have deprived them of such property; and ensured that they would receive a third of their husbands’ property irrespective of wills to the contrary.

Policy makers did not grant some of the demands of the Christian mobilizers, even though they were based on group preferences and interpretations of religious tradition, because these demands did not coincide with their normative vision. This was specifically the case regarding adoption rights, which they did not extend to Christians because of the concern of various political elites and bureaucrats that unlimited adoption rights could lead to a rapid rise in the Christian population. These actors were only willing to give Christian couples the right to adopt children of known Christian parentage; the Law Ministry drafted a bill to this effect in 2000, but it was not presented to parliament because the Christian organizations found such limits unacceptable while the adoption rights of Hindus, Sikhs, Buddhists, and Jains were not similarly restricted. When concerns to limit the religious minority populations had been weaker in the 1970s and early 1980s, the government had proposed to extend unlimited adoption rights to all Indians in 1972; in 1980, when faced with Muslim opposition to this proposal, it suggested granting this right solely to non-Muslims even though Christian mobilization for adoption-law reform was much lower then. Hindu nationalism had gained greater influence and the population shares of Christians and Muslims had risen since then, increasing Hindu anxieties about the further growth of the religious minority populations. This led enough legislators to resist unlimited adoption rights for Christians that even the Union Law Ministers of the past two decades who were open to this change (Arun Jaitley, Veerappa Moily, Salmad Khurshid, Ashwani Kumar, and Kapil Sibal) did not propose such
legislation. Moreover, the disagreements of two other Union Law Ministers (Bharadwaj and Jethmalani) with the Christian organizations about the scope of the ICMA (the ministers wished to restrict it to couples in which both parties were Christians) blocked the other changes these organizations demanded in it, including the extension of the right to solemnize marriages to the ministers of all churches. Besides, Christian proposals to eliminate the right to demand the conjugal company of one’s spouse and to grant spouses equal shares in matrimonial property, which the women’s organizations primarily voiced, were based on valuing conjugal autonomy and women’s property rights more than many policy makers did. Therefore, legislators did not introduce these changes in Christian law.

Certain judges did not share the opposition of crucial legislators and bureaucrats to Christian adoption rights, and a few high court benches granted couples these rights once the path to such legislation seemed blocked.
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Other courts were reluctant to recognize such rights in the absence of legislation to this effect. The courts that granted adoption rights based their rulings on the canon of particular churches, and in some cases deduced these rights from the constitutional right to life. In the first such case,
Philips Alfred Malvin v. Y.J. Gonsalvis
(1999), a single judge of the Kerala High Court indicated that the canon of the Roman Catholic Church, to which the petitioner’s parents belonged, accepted adoption if it was recognized in the civil law of the area. The court pointed out that Christian statutory law did not prohibit adoption although it did not recognize it either, Hindu law accepted it, and Muslim law could be taken to do so because certain statutes (the Oudh Estates Act, 1869 and the Sri Pratap Jammu and Kashmir Laws Consolidation Act, 1977) had accepted the adoption customs of particular Muslim groups. Justice Sreedevi treated these as signs that the civil law of India accepts adoption, and deduced that the Catholic canon would accept it as well. She reinforced this consideration with the construction that the constitutional right to life includes a right to what makes life meaningful, and surmised that the plaintiff’s parents might have felt that the adoption of a son would make their lives more meaningful. Her justification of adoption with reference to canon or caste custom could only be extended to the members of churches and castes that accepted this practice, but the deduction of the right to adopt a child
from the right to life could be extended to all citizens, including Muslims among whom resistance to adoption rights was strong.