Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (48 page)

However, policy makers remained more inclined to signal the practices they underwrote than to promote considerable social change. As a result, they indicated that they wanted women to own more property by making Hindu daughters coparceners in family joint property, but limited women’s empowerment in the process by retaining testamentary freedom in Hindu law, which enabled parents to deprive their daughters of their entitlements through wills. They did so although civil society mobilizers emphasized that a failure to restrict testation would seriously limit women’s gains, that limits on
testation could be drawn from various Western and Islamic legal systems, and that Hindu law did not provide testamentary rights in joint property until the 1950s.

Moreover, the majority of political elites remained more connected to Hindu initiatives and traditions, which continued to be the main sources for their visions of the Indian nation, and more concerned to change Hindu practices. Therefore, their understandings of the modern Indian family continued to focus on Hindu law, which they changed far more than the minority laws. Understanding of minority traditions and opinion remained limited among policy elites, some of whom became more inclined to ensure Hindu hegemony. These circumstances continued to restrict the accommodation of culturally grounded demands for minority personal law reform. They specifically prevented the extension of adoption rights to all Christians and inheritance rights in agricultural land to all Muslim women, even though organizations of the relevant communities and rights organizations with support among different religious groups pressed these demands.

IV. THE AGENDA FOR FURTHER PERSONAL LAW REFORM IN INDIA

In the course of mobilizing in favor of the changes introduced in India’s personal laws over the past two decades, civil-society organizations also offered other proposals to advance women’s rights or individual autonomy in family life. Legislators are currently considering some of these proposals, have debated others since the 1990s but failed to adopt them, and have not so far examined yet others. Our analysis of the determinants of personal-law policy indicates that some of these proposals may be adopted in the near future, but that other demands will be accommodated only if certain features of policy makers’ orientations to making nation, community, and family change.

Parliament is currently considering a bill to grant divorce rights under conditions of irretrievable marital breakdown even in the absence of spousal fault and mutual consent. The bill gives women the right to resist such divorce petitions if divorce would cause them grave financial hardship, and entitles them to a share in their matrimonial property (to be determined by the court) when they get divorced. When they made Hindu daughters coparceners in
family joint property in 2004–5, legislators also debated the following proposals: the extension of coparcener status to Hindu widows, the decomposition of joint property into equal separate shares for each nuclear family member, and the limitation of testamentary rights to ensure that Hindu daughters receive a substantial proportion of the property to which they are entitled intestate. They did not make widows coparceners, mainly because many of them did not realize that the shares of widows would otherwise decline due to the rise in the shares of daughters. Parliament did not dissolve joint property, because certain proponents of increased inheritance rights for women shared the preference of conservatives to maintain the joint family’s control over some property. It maintained testamentary freedom in joint property because many conservative legislators accepted making daughters coparceners only based on the silent assurance that people could still will most of their shares in such property to their sons.

Various legislators and bureaucrats resisted the demands of Christian organizations for unlimited adoption rights, because they believed this would enable an increase in the Christian share of the population. Muslim reformist organizations demanded that Muslim women’s rights to access their dower be strengthened, and that men be deprived of the right to unilaterally repudiate their spouses or women be given that right as well. Moreover, certain conservative Muslim organizations joined reformers in demanding that Muslim women be given the right to inherit a Qur’anic share (half the share to which similarly positioned male kin are entitled) in family agricultural land in the regions where this right is not recognized (other than in Bengal, the northeastern states, Maharashtra, Gujarat, Andhra Pradesh, Tamil Nadu, Kerala, and parts of Karnataka). Policy elites were reluctant to accommodate these demands because they were uncertain about support for them among Indian Muslims and in Islamic tradition. Besides, the Hindu nationalists underlined demands to introduce a UCC since the 1980s, but did not explore such legislation either when they led the national government or when they governed particular states.

Of these proposals, legislators denied coparcener status to Hindu widows in joint property only because they did not adequately consider the implications of doing so. Even conservative representatives might accept this proposal soon. They should be more amenable to it than to making married
daughters coparceners, which many of them agreed to do in 2005, as
Mitakshara
law and other patrilineal traditions consider widows members of the joint family but take married daughters to leave their natal lineages for those of their husbands.

The widespread concern among the political and judicial elite to provide an exit for couples in dysfunctional marriages should enable the acceptance of irretrievable marital breakdown as a ground for divorce, and the Rajya Sabha accepted this proposal in August 2013. Many civil society activists and some legislators are concerned about the potential deleterious economic consequences for divorcées and their children, but the room that the bill under consideration provides for women to oppose their spouses’ divorce petitions on the ground of likely financial hardship and the share that it offers them in matrimonial property address this concern to some extent. These actors demanded that the bill specify divorcées’ share in matrimonial property, in view of the inconsistent judicial record of ensuring support for divorcées and their children. However, many proponents of the proposed legislation are more inclined to demonstrate their belief that couples should share the property accumulated in the course of their marriages (as they contributed jointly to its acquisition) than to ensure that divorcées receive a substantial share. They left the divorcée’s share to the court’s discretion partly to accommodate conservative legislators who believe that matrimonial property should belong largely to the partner who earns more. The even greater reluctance of these legislators to accept the entitlement of divorcées to a share of their husband’s residential property if it was not acquired with the couple’s income during their marriage resulted in the deletion of this provision in the bill that the Rajya Sabha passed. The Lok Sabha is likely to pass this bill only if it retains its current form, not specifying the share of matrimonial property to accrue to the divorcée and not giving her a share in residential property that the husband inherited or acquired with his income prior to the couple’s marriage. Such legislation will no doubt lead some courts to provide divorcées with limited support. Divorcées’ entitlements are likely to be reinforced further only when more political elites believe that Hindu spouses should share matrimonial property equally.

The limitation of testamentary rights and the dissolution of joint property in Hindu law could empower women far more than the grant of coparcener
status to daughters did, especially if people are allowed to will no more than a third of their property (as is the case in Islamic law and as certain policy planners have suggested be made the rule in Hindu law since the CSWI Report of 1974). These proposals will continue to face considerable resistance for precisely that reason. The argument of reformist mobilizers that restricting testamentary rights to a third of one’s property would not take Indian law in entirely new directions because of the precedents in Islamic law will prove persuasive only when more political elites accept that one may borrow rules applied to Hindus from Islamic traditions. More of the political elite and mobilized citizens must embrace the equalization of gender roles and the democratization of families if testamentary rights are to be limited and joint property dissolved. Moreover, the dissolution of joint property is possible only if many Hindus cease to attach importance to the joint family as a unit that controls property, a change that would be compatible with the continued relevance of the joint family as a residential unit and a reference point in identity formation.

If the changes proposed in the minority laws are to be adopted, their proponents would need to overcome the resistance of those who find them contrary to their visions of desirable family organization, group tradition, or intergroup relations. Demands to reinforce Muslim women’s access to their dower and to make unilateral repudiation equally available to Muslim men and women (or unavailable to both) were not seriously considered because there was limited mobilization in their favor, some conservative organizations opposed them, many policy elites did not understand how religious scholars justified such provisions in India and elsewhere, and the few that understood the relevant Islamic legal arguments were not convinced that they enjoyed support among many Indian Muslims. Even the support of the main conservative Muslim organizations for giving Muslim women Qur’anic shares in agricultural land throughout India did not bring about this change, because policy makers did not engage closely with this initiative and understand how it was based in widely accepted constructions of Islamic law; many of them did not grasp that the national government has the power to introduce this change; and conservative Muslim organizations did not mobilize strongly behind this demand because it remained unpopular among landed groups.
Islamic norms that distribute gendered authority more equally in families need to be mobilized much further, and gain the understanding and support of more policy elites, if the proposed changes in Muslim law are to be adopted. Moreover, for inheritance law to be changed, reformers would need to effectively press conservative Muslim organizations to give this demand much more attention, and policy elites would have to understand that conservatives cannot resist this change because it is indisputably grounded in the Qur’an, and that Indian federalism permits national legislation on this question.

Christian mobilization regarding personal law has emphasized adoption rights for over a decade. However, many Hindu policy makers remain unwilling to give Christians the right to adopt foundlings of unknown ancestry because of dystopian fears of a rapid growth in the population and social influence of the religious minorities. To circumvent this problem, religious pluralists would need to grow much stronger and effectively counter the demographic anxieties cultivated by the Hindu nationalists. If they do so, more policy elites will accept gradual increases in the non-Hindu share of the population or at least realize that unlimited adoption rights are unlikely to change population ratios much.

Although a UCC has been a motif of Hindu nationalist discourse since the 1980s, the BJP did not propose such legislation when it led the national government from 1998 to 2004 because most of its coalition partners opposed this move. Moreover, it neither took steps in this direction in the states that it ruled on its own nor initiated a debate about the content of a UCC, because its discourse about family law served mainly to portray the religious minorities as averse to national integration and modern values. The shift of most civil-society organizations that address family law from the aim of a UCC to that of culturally grounded personal-law reform has narrowed support for a UCC, and most political parties do not favor this goal as a result. These changes in civil-society mobilization and the minority law reforms they enabled since the 1970s have rendered less credible the claim that minority resistance to reform obliges modernists to introduce a UCC to promote the family practices they value. If the Hindu nationalists attempt to introduce a UCC in the future, they would face strong resistance from most political parties, which rely significantly on minority support.

V. LESSONS DRAWN FROM A COMPARATIVE PERSPECTIVE ON INDIAN EXPERIENCES

The book’s exploration of the experience of Indian personal law in a comparative perspective indicates certain paths that multiculturalism, secularism, and family law may follow in India, as well as in other developing societies in which many citizens attach considerable value to various group traditions and to particular public roles for religion, and states recognize certain culturally specific norms in family life. In such societies, changes in family law are most likely to gain significant public support if they are based in the cultural traditions and practices of the concerned groups. The experiences of India and of other societies that saw comparable or higher levels of culturally grounded changes in personal law indicate that the traditions of many groups provide grounds for extensive reforms that enhance women’s rights and individual liberties. Moreover, the demands of reformist mobilizers in various countries suggest ways in which cultural dynamism may be promoted to build social bases for further legal changes that advance these goals. The limited extent to which various states that employ multicultural policies have used the support that group norms and popular mobilization provide for culturally based reforms makes it more crucial to explore this avenue further.

We saw that states professing commitments to secularism accommodated many public roles for religion in countries such as India and Indonesia. Such extensive public recognition of religion met the expectations of many groups in these societies, and provided public institutions greater legitimacy. The pattern of secularism adopted in these societies and its consequences make for a sharp contrast with the experience in Turkey. The serious limits placed on the public roles of religious norms and religious symbols in Turkey enjoyed support only among a minority of citizens, and evoked considerable resistance. The country’s rulers could sustain this form of secularism only by resorting to extensive repression or military rule at various points. Besides, the imposition of state tutelage over the most influential religious institutions was at odds with the rulers’ claims to have erected a wall of separation between state and religion. Moreover, the limited public support for the secularization of family law during the early years of the Turkish republic meant that the state courts did not monopolize the adjudication of matrimonial
disputes for at least a generation after they were granted exclusive jurisdiction over them. The acceptance of the simultaneous consideration of matrimonial and property cases by community courts in India and Indonesia was more pragmatic, since various groups felt a greater affinity with these courts or found them more accessible. The type of secularism seen in India and Indonesia offers a promising model for changing the public roles of religion in ways that are somewhat accountable and tolerant and that promote equality and liberty in some respects, while securing regimes a significant measure of legitimacy. It is worthy of emulation in the majority of societies, in which religious norms frame the expectations of many citizens in public life, if it is appropriately modified to suit the context. The early Turkish republican experience is less relevant for such societies. The widespread discontent with various features of Turkish policy enabled the growth of Islamic forces such as the Justice and Development Party, which have begun to accommodate public religion more, though not without provoking new conflicts.