Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (8 page)

Charrad paid inadequate attention to the diverse ways in which the kinship practices upheld in classical religious texts were enacted in particular social contexts, the various sources from which colonial personal laws were drawn, the different relationships that systems of religious personal law had with local customs, and the particular ways in which different groups felt that their social identities were tied to classical religious law on the one hand and local customs on the other hand. Due to her focus on a region where the Maliki
madhhab
developed in interaction with patrilineal forms of kinship, she did not consider the rather different forms of “practical kinship” enacted as normatively Islamic and enforced as Islamic law in different societies.
⁴⁷
John Bowen, Michael Feener, Mark Cammack, and Michael Peletz showed that kin relations developed among Muslims in Indonesia and Malaysia through the interaction of pre-Islamic matrilineal and bilateral practices with the largely patrilineal norms of the Shafi‘i
madhhab
that is said to govern these groups.
⁴⁸
Qadis
(religious judges) often mandated inheritance according to
adat
(ethnic or regional customs, many of which predate the influence of Islam in the region and differ from the prescriptions of Islamic jurisprudence). Even the authoritative texts of the main school of Shia law (the
Ithna Ashari
) prescribed bilateral rather than patrilineal inheritance outside the nuclear family, influenced by the predominantly bilateral kinship practices of Iran and Iraq, where the majority of the world’s Shias live.
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The variety of inheritance practices followed by Muslims, some of which were encoded in texts of religious law, are among the many indicators that world religions assumed different forms in interaction with specific social contexts.

Even if they were framed as religious laws, colonial personal laws incorporated many customs specific to region or ethnic group, as well as common law or civil-law conventions. These customs had uncertain relations with the texts on which colonial policy makers mainly based their understanding of religious law. Some of them governed members of many religious groups. Colonial courts recognized many such customs in Indonesia, where various colonial intellectuals and officials considered such customs rather than Islamic law the main basis of family practices especially regarding inheritance, although Islamic law was said to govern the country’s Muslim majority. They also recognized the inheritance customs followed by the majority of Indian Muslims, which did not give women the shares in family property that classical Islamic law prescribed. Thus, colonial personal law was in most cases some steps removed from the classics of religious law. It often influenced what colonized groups considered of cultural value, and to the extent that it did so, postcolonial rulers faced popular expectations that they would recognize many family practices that the texts of classical religious law did not support. This was less the case among Indian Hindus. Colonial officials constructed official Hindu law based importantly on particular Hindu religious texts (especially the
Mitakshara
and the
Dayabhaga
) that upheld many of the customs of the dominant castes and lineages of particular regions. They systematized different schools of Hindu law based on these earlier texts, and applied them to the residents of specific regions. This aligned the Hindu law in force with certain prevalent customs.
⁵⁰

The perceived relationship between religious law and custom influenced how groups connected their identities with religious law on the one hand and regional custom on the other hand. Indian Hindus saw ethnic and regional customs more often as the prescriptions of religious law, while Indian Muslims (particularly religious elites) felt that the customs of their religious group departed from their religious law in crucial respects. As a result, Muslim religious elites demanded that the rules of classical Islamic law rather than the customs of landed elites be applied to Muslim inheritance, and faced the resistance of Muslim landed elites, who ensured the continued application of regional custom to land inheritance. Among Hindus, the majority of religious elites and landed elites made common cause in opposing personal-law
reform on the grounds of religious tradition as well as indigenous custom from the late nineteenth century until the 1950s.

Besides, groups vary in the stake they feel in religious law. Indian Muslim religious elites had a greater stake than their Hindu counterparts because expertise in religious law was more important to their authority. As a result, they mobilized Muslim personal law as an important domain of religious identity from the late nineteenth century, and remained closely engaged with Muslim law adjudication and legislation thereafter. By way of contrast, Hindu religious elites largely withdrew from debates about personal law after parliament introduced moderate reforms in the 1950s. Resistance to Hindu law reform came primarily from the social elites of patrilineal groups thereafter.

The norms of specific ethnic groups and regions supplemented religious jurisprudence more in societies in which predominant nationalist discourses highlighted cultural similarities and cultural exchanges across religious boundaries. This was especially the case in Indonesia. Sensitivity to regional culture also depended on the level of government that was responsible for family law, being greater in federal polities in which the state governments assumed much of this responsibility—such as Malaysia, the United States and Canada—than in unitary polities such as Britain or in federal polities such as India’s in which the federal government assumed primary responsibility.

Bina Agarwal explored the implications of kinship practices for orientations to family law in South Asia. She argued that regional differences in customs regarding inheritance, marital alliances, and postmarital residence influenced women’s rights to inherit land, as well as their effective access to land. Agarwal demonstrated that the customs of patriliny, village and kin exogamy, and patrilocality, predominant in northern and western India, Pakistan, and Nepal, limited women’s ability to access resources, especially land, to which they were legally entitled. The greater prevalence of bilateral and matrilineal inheritance, and village and kin endogamy, and more varied patterns of postmarital residence in southern and eastern India, Bangladesh, and Sri Lanka were more favorable to women’s access to land. Moreover, Agarwal showed that these customs influenced state-specific land legislation, which overrode national-level Hindu laws regarding the inheritance of agricultural land until recently, seriously limiting women’s land rights in northern and
western India.
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These regionally specific practices influenced the Hindu law debates of the 1950s and the 2000s, in which legislators from the north and the west especially opposed changes that would have enabled women to access ancestral property. They were also crucial to the introduction of such changes initially in the southern states. Furthermore, they influenced people’s positions on marriage and divorce law, which Agarwal did not discuss. Representatives from northern and western India particularly resisted allowing kin endogamy and increases in the rights to marital separation and divorce. This was especially the case among those from the upper and upper-middle castes, which followed norms of kin exogamy and marriage indissolubility the most.

V. SECULARISM, THE RECOGNITION OF RELIGION, AND MULTICULTURALISM

Certain states that claim to be secular recognize personal laws that draw from religious norms and govern specific religious groups or sects. Tensions arise between their secularist claims and their application of religious laws. Secular states aim to restrict or change the social roles of religion to promote various ends. Liberal-democratic secular states and states that present themselves as such claim that their interventions in religion are meant to ensure individual liberties, treat different religious groups similarly, limit religious discrimination in society, contain religious and sectarian conflict, and promote social equality to levels necessary to produce an autonomous citizenry. An important body of literature indicates that secularist institutions and policies depend on, and perhaps ought to reflect, the nature of religious practices and religious institutions, the prior engagement of states with such practices and institutions, and the visions of religious toleration, equality, and freedom salient in particular societies.
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These studies trace the higher resistance to the recognition of religious norms and the greater restriction of religious symbols in public life in France than in the United States to such factors as the role of anticlericalism in restricting the monopolistic power of the Catholic Church in France and the greater prevalence of religious practice in recent decades in the United States. Similarly, they attribute the greater accommodation of religious norms and greater attention to the state’s equidistance
from religions and religious groups in India than in France and the United States to the higher public relevance of religion and greater intensity of inter-religious conflict when a sovereign state was established there.
⁵³
These considerations are taken to have motivated the recognition of religion as a basis for social and cultural rights (for example, to distinct educational institutions and personal laws), but not for political rights (for example, separate electorates) in India. In highlighting the extensive accommodation of public religion in India and the correspondence of these arrangements with certain popular expectations, this literature refutes the claims of T. N. Madan and Ashis Nandy that India’s secular institutions did not engage with crucial public cultures infused by religious norms and therefore drew support only among a narrow elite. We will see, however, that such criticisms were applicable to Turkish secularism.
⁵⁴

Gary Jacobsohn offered such a contextually specific understanding of three models of secularism: American assimilative secularism that seeks to preserve religious liberty in the private sphere while urging political assimilation in the American republic; Israel’s visionary secularism that involves the coexistence of the vision of Israel as a state of the Jewish people with commitments to preserve religious liberties and cultural autonomy; and India’s ameliorative secularism, committed to transform enduring social inequalities related to religious belief and practice while ensuring cultural autonomy. He considered these models responses to religion’s role in social life and national identity, and understood features of family law as expressions of these models. While the American state’s determination to subsume the claims of religious groups to the supremacy of civil law led to the penalization of alternative family practices related to minority religious norms (specifically, Mormon polygyny), the inclination of the Israeli and Indian states to accommodate religious minorities led them to accept polygyny among Muslims while banning the practice among their religious majorities. Jacobsohn claimed that the Indian state was more likely than the Israeli state to reform Muslim law and introduce uniform secular family laws if opinion among the concerned groups supported these steps because the Indian state alone had ameliorative ambitions.
⁵⁵

These authors contributed significantly to understanding varieties of secularism, but slipped too readily from an empathic understanding of official
secularisms to the conclusion that religion was accommodated appropriately in various societies. They paid inadequate attention, for instance, to phenomena that meant that Western states engaged very unequally with specific religious groups and sects, a problem which became more glaring as these societies became more diverse in religious practice, such as the association of the British state with the Anglican Church; the incorporation of Judeo-Christian visions in the Constitution and aspects of the legal system in the United States; and the reluctance of states in Norway, Sweden, Denmark, and the Netherlands to extend non-Christian religions the recognition they had given Christian sects that had lived for long in their societies. Nor did they consider whether the religious laws of Israel and India best reflect religious practices, reform initiatives, and the requirements of tolerance. The ban on polygyny among the majority and not among Muslims was related to public opinion in Israel but not in India, where bigamy was practiced and accepted about as much among Hindus as among Muslims when the practice was banned among Hindus soon after independence. Even in Israel, polygyny was practiced among some Mizrahi groups (Jews from the Arab world, Caucusus, Central Asia, and Ethiopia) when they migrated to Israel. As the Israeli political and judicial elite prioritized changing practices among the Jews, but not among the Muslims, they applied the civil law banning polygyny (and other civil marriage laws) much of the time in the rabbinical courts, but accepted the continued validation of polygynous marriages in the Muslim courts.
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Major understandings of Indian secularism identify the main reasons for the maintenance of distinct personal laws, but do not effectively account for the postponement of change in the minority laws or the specific changes made in Hindu law. Jacobsohn and Rajeev Bhargava argued that the focus on Hindu law reform reflected the greater support for personal-law reform among Hindus and a commitment to minority accommodation. In a similar vein, Paul Brass, James Chiriyankandath, Subrata Mitra, and Alexander Fischer attributed the choice not to change the minority laws after independence to the agreement that Congress Party leaders had reached with certain Muslim elites to maintain distinct Muslim laws.
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These authors ignored the compatibility of minority accommodation with changes in minority laws based on the relevant group’s norms, practices, and initiatives, and misunderstood the
relative strength of reformist mobilization. Significant initiatives to change social life and personal law had emerged among Muslims from the 1920s. They led to some reforms in Muslim law in the late 1930s, and made many Muslim elites open to further changes if they were based on Islamic norms and significant Muslim mobilization.