Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (51 page)

6
. Devji 1994; Minault 1998; Zaman 2002; Jalal 2001; Metcalf 2009b.

7
. India, Constituent Assembly of India Debates (CAID) 1999.7, 541–43, 546.

8
. Jacob 1999; India, Parliamentary Debates (PD) 1954, 2511–12; Interviews, Jyotsna Chatterji, founding President, Joint Women’s Program; and John Dayal, President, All India Catholic Union;
Chapter 5
elaborates on the early postcolonial debates about minority law.

9
. This interpretation was offered in
Govind v. State of M.P
. (1975). Article 21 was taken to include the right to privacy in a minority opinion in
Kharak Singh v. State of U.P
. (1963). The view advanced in
Govind
that “any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing” was of much potential significance for personal law.

10
. Parashar 1992, 194–6, 201–29.

11
. The right to a restitution of conjugal rights was incorporated in Sections 32 and 33 of the Indian Divorce Act, passed in 1869 and applied to Christians, and in Section 9 of the HMA in 1955.

12
.
Narasu Appa Mali v. State of Bombay
(1952); Mansfield 1993; Bhattacharjee 1985.

13
. PD 1951, 2466–67; India, Lok Sabha Debates (LSD) 1955, 7374–76.

14
. PD 1951, 2754–55, 2772, 2933, cited in Parashar 1992, 86; LSD 1955, 7428.

15
. Jacobsohn 2003, 95–119, 171–72.

16
. Menski 2003.

17
. Sarkar 1990; Parashar 1992; Som 1994; Agnes 1999; Newbigin 2009; Majumdar 2009.

18
. However, certain presidencies (Bombay), princely states (Mysore, Baroda), and the Portuguese colony of Goa had given Hindu women limited inheritance rights in the 1930s and 1940s.

19
. Parashar 1992; Agnes 2007.

20
. Newbigin 2009, 2010.

21
. Sreenivas 2008.

22
. Majumdar 2009; Kishwar 1994.

23
. Sreenivas 2008; Newbigin 2009, 2011; Agarwal 1994; 2008, 329.

24
. Agarwal 1994, 2008.

25
. PD 1951, 2754–55, 2772, 2933.

26
. PD 1948, 3633–34; PD 1951, 2948; PD 1955, 7437–78.

27
. PD 1951, 2465–57; LSD 1955, 7437–78, 8003.

28
. Mantena 2010, 89–118 offers a nuanced discussion of the codification debates of the late nineteenth and early twentieth centuries, especially as they pertained to India.

29
. This reversed the earlier claim of Macaulay, the first Law Member in the colonial government, that only an authoritarian regime could effectively codify the law.

30
. Everett 1979; Forbes 1998; Mazumdar 1999.

31
. PD 1951, 2948.

32
. India. Constituent Assembly of India (Legislative) Debates Official Report (CAILD) 1948, 3647; PD 1951, 2470–22, 2945–56, 2948, 2951–52, 2992–94, 2999, 3004, 3029–30, 3077–78, 3185–86. The formation of Ambedkar’s jurisprudence has to be understood based on limited materials. The arguments offered in favor of codification in British colonies and in India in particular must have contributed to his thinking, and that of various other Indian jurists. Ambedkar is also likely to have been exposed to similar discussions that preceded codification in some American states while he was at Columbia University in the 1910s and 1920s.

33
. PD 1951, 2992–94, 2999, 3004, 3027–30, 3077–78, 3185–86.

34
. Nehru 1996, 17, 189–190; PD 1955, 7438, 7487–88, 7488–89.

35
. PD 1951, 2419, 2692, 2965, 3110–13, 3183–84; Gazette of India Extraordinary (GIE) 1954, 6890, 7474.

36
. LSD 1955, 7674.

37
. LSD 1955, 6473–75, 7673–74.

38
. PD 1951, 2470–72; Rattigan and Aggarawala 1953; Gilmartin 1988; Oldenburg 2002.

39
. G. V. Deshmukh claimed this precedent in Yajnavalkya’s practice when he introduced a bill in the Central Legislative Assembly to make all female descendants and widows intestate heirs in 1937. Only widows gained inheritance rights from this initiative and only as limited estate. Pataskar cited Deshmukh in support of giving daughters joint property shares. LSD 1956, 6961–62.

40
. India. Report of the Hindu Law Committee (RHLC) 1947, 15–36; CAILD 1948, 3629–33.

41
. PD 1951, 2512, 2712–13, 2880–87, 2913, 2905–7; LSD 1955, 6843–50, 6856, 7693, 7705

42
. PD 1951: 2716, 2723, 2749, 2818, 2823; LSD 1955: 6504–6, 65144–15, 6835–42, 7796; On the presence of divorce customs among various groups, including a few higher castes, and their recognition in colonial courts, see: Sen 2000; Agnes 1999, 20–22; Pujari and Kaushik 1994, III: 310–12; Sharma 1989, 88–89; Virdi 1972, 33–36.

43
. PD 1951, 2716; PD 1951, 2178, 2710–13, 2715–20, 2722–23.

44
. PD 1951, 2374–45, 2392–2405, 2682–86, 2702, 2706–8, 2723, 2880–88, 2905–7, 3001–2, 3176–78; GIE 1954, 710–14; LSD 1955, 7452–55, 7479–81, 7490, 7497–98, 7697, 7760, 7925–29, 7933, 7978–79.

45
. CAILD 1948, 3642–43; PD 1951, 2726–28; LSD 1955, 6477–78, 6487–89, 6498–99, 6845, 7432–35, 7707–8, 7957–58, 7962–63; Nehru 1996.10, 447–450; Nehru 1996.16, 76.

46
. CAILD 1948, 3640–41; PD 1951, 2708–9, 2474–77, 2491–94, 2506–9, 2514, 2548–49, 2702, 2723, 2818, 2823, 2889–90, 2906; LSD 1955, 6533–36, 6891, 7374–76; Nehru 1996.17, 37, 59, 192–94, 434, 457. This is contrary to Menski’s claim that there was “no official admission that low-caste Hindu rules were here being smuggled into the modern Hindu law in the garb of modernist Western-style reforms.” Menski 2003, 446.

47
. The illuminating discussion of the relationship between classical Hindu law and
achara
in Davis 2010, 144–165 and Lingat 1998, 176–206 suggests that this reformist understanding was in keeping with
shastric
tradition.

48
. RHLC 1947, 23–24; LSD 1955, 6487–89, 6845, 7426, 7432–35, 7757–57; Nehru 1996.1, 443.

49
. Menski 2003, 427.

50
. CAILD 1949, 835–41; PD 1954, 2718–32; India. Report of the Joint Committee of the Houses of Parliament to Amend and Codify the Law Related to Intestate Succession Among the Hindus (Intestate Succession Report) 1955, 367–70; LSD 1956, 6970–72.

51
. CAILD 1948, 3642–43, 3651; Intestate Succession Report 1955, 385–87; LSD 1956, 6884–85, 6965–71, 7164, 7190–91.

52
. Intestate Succession Report 1955, 371–78, 381–83, 385–87; LSD 1956, 6865–68, 6884–88, 6899–6902, 7123–24, 7131, 7140–77, 7162–64, 7180–82.

53
. CAILD 1948, 3637; CAILD 1949, 864; PD 1951, 2434–36, 2442, 2445, 2459–60, 2688, 2835–70, 2991, 3024–28, 3031, 3051–52, 3075–82, 3130–44, 3145–50; LSD 1955, 7783–84; LSD 1956, 6713–25, 6807–12, 6872–74, 6908–12.

54
. CAILD 1948, 3640–42, 3648; CAILD 1949, 2533; PD 1951, 2753; PD 1955, 6895–96.

55
. CAILD 1949, 840–41.

56
. PD 1956, 6898–99.

57
. PD 1956, 7163–64.

58
. PD 1955, 7791.

59
. PD 1951, 2713, 2716; LSD 1955, 6487–89, 6843–50, 6856, 7727–29, 7562, 7693, 7756, 7760.

60
. Mahmood 1995, 145–56; Kusum 1975, 611; Menski 2003, 438–42; CAILD 1949, 832–33.

61
. PD 1951, 2721–22; LSD 1955, 6888–89, 7555–56, 7579, 7727–29.

62
. Divorce rights comparable to those introduced in 1955 for India’s Hindus came into continued existence in France in 1884, in Sweden in 1915, in Britain in 1923, and in Germany in 1938, but only in the 1970s in Italy, Spain, and Portugal. Glendon 1989, 3, 17, 149–50, 160, 175–77, 182–85, 191.

63
. CAILD 1948, 3631–32; GIE 1952, 675–714; LSD 1955, 6471–75.

64
. CAILD 1948, 3629–31; Intestate Succession Report 1955, 369–70.

65
. Agarwal 1995; Majumdar 2009.

66
. LSD 1955, 7227.

67
. CAILD 1948, 3651.

68
. Some legislators suggested that married daughters be denied shares of parental property altogether or at least not be placed in the first tier of heirs.

69
. GIE 1954; PD 1954, 2718.

70
. The formula included shares in the property that a son might have partitioned notionally in the coparcenary prior to the intestate’s death, and gave the daughter a share in this property equal to that of other Class I heirs. This meant that already partitioned sons got the highest share, and daughters and unpartitioned sons obtained lower shares.

71
. Intestate Succession Report 1955, 371–78, 381–83, 385–87; LSD 1956, 6965–72.

72
. Dumont 1983, 104–44; Arunima 2003, 157–90; and Jeffrey 1992 discuss changes in attitudes toward matriliny among historically matrilineal groups in Kerala through the nineteenth and early twentieth centuries.

73
. Majumdar 2009, 227–237.

74
. Frankel 2006; Mellor 1976; Subramaniam 1979.

75
. Rajeshvar Prasad Narain Sinha, R. Seshagiri Rao, S. V. L. Narasimham, Renu Chakravartty, Parvathi Krishnan, S. S. More and R. P. Sinha attached such notes to the Committee’s report. Intestate Succession Report 1955, 371–78, 381–83, 385–87.

76
. LSD 1956, 6867–68, 6884–87, 6900–6902, 7236–37, 7261–66, 7275–77, 7609–46.

77
. Mody 2008 and Majumdar 2009, 167–205 discuss the context in which the initial SMA was passed.

78
. PD 1953, 2512; Various other parliamentarians made similar statements. LSD 1954, 794–95, 812, 818–19, 833, 892–93, 937.

79
. PD 1953, 2507, 2523.

80
. PD 1953, 2556.

81
. PD 1953, 2507; LSD 1954, 897–98.

82
. PD 1954, 2511–12.

83
. PD 1953, 2547–51.

84
. PD 1953, 2510–11, 2523, 2546, 2559–60; LSD 1954, 750–52; LSD 1955, 7935–36, 7997–98. An amendment of 1976 made the HSA rather than the ISA govern Hindu, Sikh, Buddhist, and Jain couples opting for the SMA, but did not offset the other factors discouraging a choice of the SMA.

85
. The notes of dissent of eleven of the forty-five members of the Joint Committee that considered the SMA (B. K. Mukerjee, Tek Chand, Savitri Nigam, Sushama Sen, Violet Alva, K. A. Damodara Menon, Sucheta Kripalani, Renu Chakravartty, Rajendra Pratap Sinha, Venkat Krishna Dhage, and K. Rama Rao) opposed the severance of SMA couples from joint property. GIE, 1954: 148–52, 155–58, 173; Similar arguments were offered in parliament. PD 1953, 2508–9, 2523, 2527–28, 2545–46, 2549–56.

86
. Mody 2008.

87
. PD 1953, 2561–72; GIE 1954, 164–66; Parashar 1992, 161–62. Some AIMPLB leaders said they accepted the SMA because they felt that those of Muslim ancestry who choose the SMA place themselves beyond the Muslim fold. However, SMA couples have not been required to renounce their religious identities since 1923. Interviews, Mohammad Abdul Rahim Quraishi, Secretary, and Zafaryab Jilani, Member, Legal Committee, AIMPLB.

88
. Many Christians and Muslims did not enjoy these rights, however, as they were governed by customary laws specific to region or sect.

89
. Agnes 1999; Som 1994.

90
. S. Basu 1999 is the most detailed account of patterns of property transmission. Patel 2007, Agarwal 1995, and U. Sharma 1983 support its findings.

91
. S. Basu 1999.

92
. Some practices of matrilineal groups were different from their colonial and postcolonial customary laws, and matriliny is in decline among some groups. Matriliny in erosion sometimes places various responsibilities on women without giving them access to the resources with which their ancestors fulfilled these responsibilities. For instance, this is the case with female ultimogeniture among the Khasis, Garos and, Jaintias of Meghalaya (which gives the youngest daughter control over the ancestral home and other family property, while making her responsible to maintain various kin). Changing practices led to disagreement over the laws to apply to these groups, with some younger men favoring assimilation in Hindu law, and women’s organizations and older men preferring to retain matrilineal customary law. Agarwal 1995, 100–168 and Narwani 2004 provide overviews of India’s tribal customary laws. Karve 1990; Dube 1997; Nakane 1967; Nongbri 2010; Trautmann 1982; Arunima 2003; Saradamoni 1999; Vijaya Kumar 2006 discuss changing practices among various matrilineal groups in India.

CHAPTER FOUR

1
. India. Office of the Registrar General and Census Commissioner 1983.

2
. India. Committee on the Status of Women in India 1975.

3
. These parties initially opposed the Women’s Reservation Bill because they believed that the quota it gave women in representation in parliament and the state assemblies would dilute the effects of the quotas for the lower castes and tribal groups unless the latter groups were assured a share of the women’s quota as well. However, this consideration did not deter parties based among similarly ranked castes in other regions with more equitable gender relations (e.g., the DMK, the AIADMK, the PMK) from supporting this bill. When the Rajya Sabha passed this bill in 2010, the SP, the RJD and the BSP abstained from voting, and the majority of the Janata Dal (United)’s legislators voted in favor of the bill.

4
. Sakshi and Global Fund for Women 1996.

5
. State legislatures made a few changes in Hindu marriage law, such as the recognition in Tamil Nadu of “self-respect marriages,” weddings conducted by some supporters of the Dravidian movement that dispensed with religious ceremonies involving Brahman priests. These changes did not influence matrimonial relations as much as those in divorce and inheritance law did.

6
. Parashar 1992, 134.

7
. India. Lok Sabha Debates (LSD) 1964, 3477–94, 4990–91.

8
. This amendment did not change cruelty as a ground for divorce in the IDA and the DMMA, applied to Christians and Muslims respectively. Divorce was less accessible through the IDA than the HMA and the SMA, and the DMMA entitled a Muslim woman to a divorce based on spoual cruelty only if her husband