Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (45 page)

Some courts drew from
Philips Alfred Malvin
the conclusion that all Christians have adoption rights; others used it to rely on church doctrine to assess whether particular Christian groups have adoption rights. The Karnataka High Court declared that all Christian couples have adoption rights, and the Rajasthan High Court inferred that the courts should recognize the adoption customs prevalent among particular Christian groups.
¹¹⁶
Another panel of the Kerala High Court declared that Christian law could be taken to recognize adoption, but its argument depended on church doctrine, specifically that of the Syrian Catholic Church that couples without biological children alone should enjoy this right.
¹¹⁷
Yet another Kerala High Court panel questioned the appropriateness of courts developing adoption rights for Christians in the absence of legislation, and a panel of the Allahabad High Court was divided in its reaction to
Malvin
.
¹¹⁸
The limited case law that has followed
Malvin
so far shows no definite trend, but suggests that more courts might recognize the adoption rights of Christian couples whose church canons accept adoption or whose castes or families have adoption customs. The courts that accepted Christian adoption did not identify legislative inaction as a reason why they did so, unlike those that amended the IDA. But the delivery of the adoption decrees after the blockage of Christian adoption legislation suggests that legislative inaction in the face of community initiative might have prompted these judicial reforms too.

Policy makers gave group traditions and practices priority over group statutes only when the former corresponded more with their normative vision. Thus, legislators wished to give state law priority over the rules of religious institutions, and leave state courts free to accept or reject the methods and results of community adjudication; for those reasons, they did not adopt the proposals of churches to invalidate marriages contrary to the rules of the church of either party, accept all marriage annulments by churches, or agree to base divorce proceedings in state courts on the records of earlier such proceedings in churches. Similarly, courts did not recognize certain church divorces and marriage annulments, starting with
Kurien v. Alphonsa
(1986) when canons considered marriages void under circumstances in which the IDA
considered marriages neither void nor open to dissolution (such as the marriage of a Christian to a non-Christian and the marriage of individuals who took vows of chastity).
¹¹⁹
Such judgments led many priests to urge couples whose marriages they ended in church to seek civil divorces as well, to ensure that the church divorces would have their intended legal consequences; they took this position even while refusing to perform the later marriages of some individuals who had obtained civil divorces but not divorces or annulments in church.

The failure to effect legislation in favor of adoption rights did not deter Christian mobilizers. The organizations that had mobilized for Christian law reform through the 1980s and 1990s, as well as the rapidly growing churches that are part of the EFI and were not part of the earlier initiatives, continued to press for adoption rights over the last decade, and drafted a Christian Adoption and Maintenance Bill (2003) providing unlimited adoption rights. These efforts seem unlikely to succeed in the near future. However, the prospects recently became brighter for the accommodation of a demand that lay Christian reformers made until the 1990s but shelved to effect a compromise with certain churches—the grant of shares in matrimonial property to the spouses on divorce. Policy makers recently became willing to introduce this change among those governed by the HMA and the SMA, and parliament is currently considering a bill that would do so, as we saw in
Chapter 4
. If this change is introduced, the demand for a similar change in Christian law is likely to be revived, and policy makers seem likely to accommodate it.
¹²⁰

VI. PATTERNS OF MINORITY RECOGNITION

The experiences of Muslim law and Christian law reflect important aspects of the formation of the Indian nation and its religious minorities. Minority accommodation in the regulation of family life and the concern of political elites to build broad social coalitions would have been compatible with changing the laws of the Muslims and Christians soon after independence because initiatives for such reforms based on group traditions and group concerns were strong among Muslims and had emerged among Christians at the time. Moreover, support for personal-law reform was no weaker among Muslims
than among Hindus. However, Hindu law was changed extensively as a means to make the postcolonial family, and the minority laws were not. Policy makers pursued this strategy because the majority of political elites took Hindu cultures to be dynamic and to offer the main bases on which to construct a culturally indigenous and modern Indian nation; they considered Muslims to be embedded in introverted cultures incompatible with modernity and postcolonial development. Such discourses about the nation and its religious groups made many of them less sensitive to minority reform initiatives and disinclined to change minority laws. Although prevalent stereotypes of Christians as having special affinities with modern values could have encouraged changes in Christian law, this did not happen in the first postcolonial generation because policy elites based their approaches to the other minority laws on those they adopted to Muslim law.

The growth of reform initiatives among the religious minorities, their greater attention to personal law, and the strengthening of networks between minority mobilizers, other civil society activists, and policy makers contributed to changes in policy elites’ values and their perceptions of minority norms. These developments led certain policy makers to see minority cultures as more dynamic and varied, and to change minority laws based on these new understandings. However, the social vision of policy elites continued to restrict minority-law reform. The growth of Hindu nationalism since the 1980s led more political elites to see the religious minorities as culturally alien, and increased their inclination to limit the numerical strength and influence of these groups. This prevented the accommodation of certain demands for minority law reform—particularly to give Christians adoption rights. Even many policy makers with pluralistic orientations continued to see Muslim cultures as less compatible with the forms of modern family life they valued. As a result, even reformist judges did not feel that Indian Muslim culture provided grounds for them to stop recognizing unilateral male repudiation or polygamy, although reformists justified their demands to do so with reference to Islamic norms and Islamic state laws in other countries. The limited accommodation of such culturally grounded demands for legal change shows that there remains considerable room for reform while attending to cultural accommodation. Our analysis of the reasons for such policies indicates that policy elites would need to understand minority cultures better and weave more
minority cultural threads into their tapestries of the nation for this potential to be realized.

The limits within which their demands were met did not restrain Muslim and Christian reformers. Drawing confidence from their successes in overcoming conservative resistance, winning the support of some religious elites and influencing policy, they pressed for further changes that would empower women or increase conjugal autonomy. For instance, Muslim reformers demanded that all women be given rights to inherit agricultural land and to access their dower on marriage, and that unilateral male repudiation not be recognized or require judicial approval. Meanwhile, Christian reformers demanded that unlimited adoption rights and shares in matrimonial property be recognized. The imaginative ways in which intellectuals and activists have interpreted and transformed the cultural traditions of India’s Muslims and Christians suggest ways in which forms of multicultural accommodation might be changed.

Muslims and Christians were accommodated in different ways in personal law in some respects. Since independence, many policy makers saw Christians as more oriented than Muslims to social reform and to the state’s initiatives to form the postcolonial citizen. This view was out of tune with mobilization being greater among Muslims than among Christians for personal-law reform in the last colonial decades. However, as Muslim mobilizers based their personal-law initiatives on religious discourses with which the political and bureaucratic elite were largely unfamiliar, these elites neither understood nor accommodated their reform aspirations.

Mobilization for personal-law reform increased much more among Christians than among Muslims from the 1980s, and gained the support of the majority of religious elites only within the former group. Levels of support in the two groups for changes in personal law thus coincided with policy makers’ stereotypes from the 1980s, and reinforced those perceptions. This made policy elites promote changes more cautiously in Muslim law than in Christian law. Judges did not overrule any aspects of statutory Muslim law or rule that Islamic legal traditions were irrelevant, changing precedent only by drawing on interpretations of these statutes and traditions, sometimes in light of constitutional principles. The support of community mobilizers and major religious leaders made some judges willing, by way of contrast, to change Chris
tian law, basing their rulings more crucially on constitutional principles. They overruled some features of Christian divorce statutes and constructed adoption provisions in certain states based on these principles, as well as on emergent community norms and initiatives. Moreover, the legislature reformed Christian law, but not Muslim law, to promote gender equality and individual liberty. Policy makers also saw more similarities in the practices emerging among Hindus and Christians and found it more feasible to promote similar practices among these groups, while continuing to regard Muslim practices as distinctive and rooted in irreducibly different traditions. As a result, they brought about partial convergence in Hindu law and Christian law, especially in their rules of marriage and divorce but also to some extent in their inheritance rules, while leaving Muslim law more distinctive, particularly with regard to its inheritance and divorce provisions. Thus, recognition involved more marginalization for Muslims than for Christians.

CHAPTER 6

NATIONALISM, MULTICULTURALISM, AND PERSONAL LAW

I. STATE, NATION, TRADITION, AND FAMILY: PATTERNS OF FORMATION

States formed family law in different ways in postcolonial societies and other developing societies over the course of the twentieth and early twenty-first centuries. We have seen that certain features of state-society relations and the discourses of nation and community salient among ruling elites took shape through mutual interaction, and their interactions influenced the approaches that states took to family law.

A variety of social institutions, such as local, lineage-based, ethnic, sectarian, and religious institutions, regulated aspects of family life and property control in these societies in the early twentieth century. The majority of colonial states, as well as certain indigenous monarchies, recognized the authority wielded by these institutions at the time. They did so either by delegating aspects of the formation and adjudication of personal law and
customary law to these institutions or by having state courts apply laws that gave these institutions some influence over family life—for example, by recognizing marriages they solemnized or applying inheritance rules based on lineal descent. The new regimes that were established in these societies through the twentieth century could consolidate their authority by containing the power of these intermediate social institutions over family life and other aspects of social life, or by acknowledging their authority and building alliances with them. Trying to assume control over family life by curtailing the power of these social institutions could generate considerable conflict and impair the regime’s popularity, authority, and stability. These were the consequences when leaders of the Turkish republic disbanded certain religious institutions, established state control over others, and transferred authority over matrimonial disputes to state courts. The delegation of authority to intermediate social institutions also had potential costs for state elites: it could weaken state authority and the autonomy of state institutions, blur the boundaries between state and society in various ways, constrain the ability of state elites to promote social change, and limit the stake of citizens in state policy and their incentive to respect state law. These were some of the effects of sectarian institutions being granted much authority over political, social, and family life in Lebanon, and they contributed to the onset of a prolonged civil war.

The Enlightenment encouraged various social actors to frame their projects as promoting universalistic values such as equality and liberty, although these projects were shaped in important ways by the specific contexts in which they emerged. The authors of modernist projects typically present them as promoting universalistic values as well as contextually specific goals. The promotion of such values often comes into conflict with pressures to accommodate culturally specific normative traditions, which are strong in various societies. Modernists sought to promote gender equality and individual autonomy in certain respects in family life, or at least framed their proposals as doing so. Such efforts had to contend with the value that many attached to cultural traditions and personal laws that gave men and kin groups authority over aspects of family life, intimacy, and property control, and the interest that many powerful actors had in such a distribution of authority. Policy makers could prioritize the promotion of universalistic values or the recognition of
difference, or could seek to reconcile these aims by reconstructing cultural traditions to support goals conceptualized partly through universalistic modes of reasoning. A minority of states prioritized the promotion of universalistic values in developing societies (for example, in Turkey and Albania), but the majority either emphasized the accommodation of dominant cultural practices (as in Lebanon and Syria) or sought to reconstruct cultural traditions to promote social change (such as in Tunisia, Indonesia, and India).