Redefining Family Law in India 0415449065, 9780415449069

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REDEFINING FAMILY LAW IN INDIA

Redefining Family

Law

in

India


of Essays in Honour B. Sivaramayya

Editors
Archana Parashar Amita Dhanda

First published 2008 byRoutledg912TsH,5–7MaNwDhi0.

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Routledge is an imprint of the Taylor & Francis Group, an informa business

Transferred to Digital Printing 2009 © 2008 Archana Parashar and Amita Dhanda TypestbSaComughicPvLd5-,1FlVnED096.

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vfm. kis edof PcDA BritshLbayClogunin

ISBN 0-415-44906-5

Contents

Acknowledgements

vii

Introduction ix B.

Sivaramayya: A Work Profilexxxi

1.

Inheriting Modernity: Religious Intolerance 1 Christianity, Islam and Hinduism

2. Wives and Whores: The Sexual Labour28

3.

Regulation

in

of the Economies in

Custom or Promoting Incest? Post-independence Marriage Law and Dravidian Marriage Practices54

Saving

4. A

Psychosocial Critique

of the Law of Adoption in India

86

5. Paternalistic Law, Autonomous Child and the Responsible Judges111 6.

Dysphoric

Bodies of Law

7.

Sexuality, Freedom

141

and the Law

178

8. Divorce at the Wife's Initiative in Muslim Personal Law: What are the Options and What are Their Implications for Women's Welfare?200

9. Hindu Conjugality: Transition from Sacrament Contractual Obligations236

to

10.

Family, Work and Matrimonial 258 Women and Children

Property: Implications for

11. Succession Laws and Gender Justice

12.

'Bargaining', Gender Equality and Legal The Case of India's Inheritance Laws306

About the Contributors Index 358

282

Change:

355

Acknowledgements

Like any successful project this volume of essays on family law would not have come out but for the generous help of many people. We take this opportunity to explicitly thank some of them. First we remember Professor S.P. Sathe who exhorted us to this volume of essays on family law to honour the memory of Professor Sivaramayya. We feel a great sense of loss that Professor Sathe is not with us to see this project come to a successful Professor Upendra Baxi helped us identify many contributors and this collection is richer for his suggestions. Professor Lotika Sarkar, as always, has provided encouragement and kept us on track by seeking regular reports on the progress of the volume. Professor Chandrasekharan Pillai very kindly put the resources of the library at the Indian Law Institute at our disposal and helped particularly in compiling the bibliography of Professor Sivaramayya’s works; Mrs Leela Sivaramayya’s help was similarly crucial in the completion of his Bibliography. The task of tracking sources and obtaining stylistic consistency is especially difficult in an edited volume with multiple authors. We were greatly aided in this exercise by Chinmayi Arun, who the duties of copyeditor with efficiency, grace and good humour. Any process of redefinition would have its disputes and we have also had our share. These contestations have caused some avoidable publication delays. We are indebted to the for their patience and understanding as we had to change publishers to protect scholastic integrity and freedom of opinion. We therefore wish to specially thank Omita Goyal for believing in our argument and providing constructive support to this project; and we appreciate Nilanjan Sarkar’s meticulous reading of the which has greatly enriched the final product.

undertake

conclusion.

performed

contestations; contributors manuscript,

Introduction

Archana Parashar and Amita Dhanda Family law is synonymous with religious personal laws in India. In the last 50 years we have not had a sustained discussion about what would constitute a ‘just’ family law. Most discussions on family-related matters have floundered on the claims of minority religious identity and the constraints of a secular state with respect to autonomy. Therefore, family laws have a chequered history in granting even limited equality to women.The uniform civil code debate is one aspect of this discourse. Of late, with the rise of Hindu nationalistic politics, the idea of a uniform civil code and Hindu law have been collapsed in political rhetoric. As a consequence, uniform civil code has become a suspect idea and the debate on this issue has more or less died as a scholarly concern. Feminists have quietly withdrawn from arguing for a uniform civil code as a means of gender-just laws. In this altered political climate pursuit of gender justice in family laws has become more problematic and women are facing new hurdles as the agents of social change. We believe that there is an urgent need to generate a discourse of a just family law. Such a discourse would necessarily broaden the debate beyond issues of gender justice, and include all formerly excluded persons in its ambit. For instance, while gender justice issues have been a constant feature of family law discourse in India, there has been next to no discussion on the rights of the child, hence the weight given to the religious sanctity arguments in the two of gender equality and the rights of the child may be very different. In Indian legal scholarship there is no history of child rights being considered as an aspect of family law, or of family law being analysed from the standpoint of child’s rights. Adoption and abortion laws in addition to custody laws are the obvious areas that need to address the rights of the child. Whether the rights of a child can be

religious

discourses

Parashar and Dhanda

conceptualised within the discourse of religious personal laws (RPL) or can transgress it is the starting point for research and analysis. This in turn can yield possible models of change for achieving justice in family laws. Legal scholars can and should create a discourse about the need for such changes in family laws and develop mechanisms for change. This collection of essays is intended to start the process of such a discourse. We aim to move beyond the impasse of debates about religion versus state and majority versus minority. The inspiration for this project comes from Professor Sivaramayya who, throughout his career, almost single-handed waged a campaign for gender equality in family laws.1 Most of us owe him an debt and we believe that the best way of honouring that debt is to rekindle the debate about a just family law. Since the concepts of family, law, and justice are all contested ideas, we begin with our use of the concept of a just family law. We envisage that a just family law, at its most basic level, would enable people to live together in relationships of affection. It would provide a framework of rules for forming and dissolving unions, and ensure that the costs of entering into or exiting affective relationships are distributed evenly. If the contemporary family laws are examined in the light of this aspiration it is readily evident that the family laws leave a lot to be desired. This situation is an outcome of a history of our colonial past and, before we can move forward, there is a need to understand the history of the so-called religious personal laws (RPL). Even though the concept of RPL is treated as an inevitable idea, it is actually a persistent remnant of the colonial period of our and is a constructed category. The concept utilises two ideas —one of the religious sphere and the other of personal relations— to demarcate the boundaries of law. It is implicit in the concept that the state law ought not to interfere with the freedom of the individual in the sphere of religion and in the matter of personal relations. In doing so, the standard Liberal conceptual divide of public and private is deployed. It is this underlying idea of a private sphere as the sphere of freedom, freedom from legal regulation, which the colonial administrators used to legitimise their rule. Rather than ‘replacing’ the personal laws of religious communities, the colonial

generating

intellectual

explaining

complex

history,

1 For familiarity with some of his major arguments and a list of his publications, see ‘B. Sivaramayya: A Work Profile’ in this volume.

Introduction

rulers permitted their selective operation, and thus the category of RPL was created. However, in this venture the British administrators quietly

overlooked the fact that in the Islamic and Hindu world-views all aspects

of life were equally subject to religious rules. The distinction between a religious/private sphere and a secular/political sphere is not a part of either of these laws. Such a distinction was imposed by the British for very specific reasons of governance.2 Once created, the category of RPL functioned to demarcate aspects of religious rules that were considered to be beyond state regulation.Typically, the rules personal relations were supposed to be left out from the colonial state’s legislative control. It is now amply documented that the British administrators nevertheless decided when and how to modify or abolish specific rules in the proclaimed personal laws area. the application and interpretation of religious rules by the courts set up by the colonial rulers inevitably modified these rules. This rather eclectic collection of rules now goes in the name of RPL and invokes the idea of religious sanctity for these often state-enacted or state-enforced rules. The independent Indian state has inherited the concept of RPL as its colonial legacy. And just like its colonial predecessor the Indian state has used the concept selectively to further its own governance needs. At times the RPL have been modified while at other times the legislature has reversed judicial pronouncements perceived to be transgressing the sanctity of other RPL. The discourses of minority community rights to cultural and gender justice have competed with each other and have been selectively deployed. For example, the same state can enact a Muslim Women’s Protection of Rights on Divorce Act 1986 to the shariat rules on maintenance and also enact the Juvenile Justice (Care and Protection of Children) Act 2000 (JJA) allowing adoption of certain children, potentially overriding the shariat rules of inheritance.3

governing

Moreover,

independent legislatively identity

uphold

Therefore, rather than assuming the inevitability of the concept

of RPL, it is possible to ask whether the concept is needed in the 2 For a detailed argument see Parashar (1992: 23–45). 3 The crucial term here is ‘potentially’ as there is a considerable body of opinion which takes the view that the JJA confines itself to care and protection and does not provide for inheritance. For a more detailed consideration of this controversy, see Parashar (2003: 53–72).

changed context of contemporary Indian society. There is vocal

support for the idea of RPL within various minority communities, and

it is the presence of feminist voices in minority communities that makes any argument to the contrary seem like a majoritarian However, we argue that abandoning the concept of RPL need not endanger the religious autonomy or cultural identity of minority (or any other) communities. While it is undeniable that religion and minority status form an integral part of one’s identity, neither is dependent on the state recognition of RPL. Whether one is a good Hindu or a good Muslim is not dependent upon whether the state enforces the respective religious rules of marriage, maintenance or succession. Moreover, the history of the concept shows that the state has always decided when and how to modify aspects of so-called religious rules. If the rules of a just family law are formulated independently of RPL, it is entirely possible that such a move is not inimical to the religious or minority identity. At the same time, the state will not be in the business of selectively enforcing religious rules. What is more, such a family law would rectify the major anomaly of a secular state enforcing religious rules.4 This argument also relates to the wider issue of demarcating the rightful reach of the state law. While the concept of public/private divide has been subjected to extensive feminist critiques, it is also the case that no feminist would argue that the state should have the authority to regulate all aspects of our lives.5 Therefore, the idea that the state should leave matters of religion unregulated by law can be used in a non-reactionary manner. That is, rather than personal relations through RPL, the state ought to formulate rules that are independent of religions but embody principles of justice and fairness for all. A uniform family law with this goal would not only avoid the minefield of religious rules but would also make the legal rules respond to the needs of people in the society. The task ahead for legal thinkers is to create a discourse of family law independent of RPL, and as a promise of justice and fairness to all. This involves, first, a redefinition of the contours of family law so that, among other things, it includes the traditionally excluded

imposition.

regulating

contemporary

4 The same result can be achieved by the state assuming the right to reform religious laws. The important point is that the state, and not the religious rules, is the source of authority. 5 Pateman (1988); Thornton (1995).

persons such as non-married partners or grandparents. It would necessarily contain substantive rules so that connections between the structure of the family and the economy can be acknowledged. Second, it is necessary to deconstruct the myths about the private sphere as the sphere of non-regulation by law. More specifically, it is necessary to ask whether personal relations have ever been free of legal regulation, and to demonstrate that a just family law can be conceptualised so as to be compatible with freedom of conscience. The obvious initial objection to such a uniform family law is that

top-down imposition of law is contrary to democratic ideals. Such a law is problematic since it is an exercise of legislative power that curtails the autonomy of the individuals in the name of achieving uniformity. Moreover, the aspiration for universal norms is well and truly discredited by post-modern critics. Most contemporary legal theory questions the role of law in achieving justice, and implicates it in maintaining hierarchies. In view of these objections, we should explain the basis of our argument. In our specific context, the sphere of personal relations has never

been an area of non-regulation by the state.6 The so-called RPL are enforced by the state legal system, and their substantive content cannot be claimed as being untouched by it. Moreover, the diversity of rules maintained in the name of freedom of religion, or minority rights, is at the expense of women and children. Admittedly, when the minority women voice the claim to religious and cultural it becomes problematic to insist on a uniform family law. We nevertheless wish to make such an argument– our reason for doing so is that women or other leaders of these religious communities have not succeeded for more than 50 years in creating just family law rules.7 It is time to move on. Moreover, a secular family law is not inimical to a minority/religious identity. A secular family law makes it possible for family law rules to be organised independently of religious rules, but it leaves the religious rules unaltered. It is for

autonomy,

6 Nor has the private sphere been unregulated anywhere else. See, for instance, Olsen (1985: 835–64). 7 It is true that various RPL rules have been subjected to differing levels of reform, but even in the most reformed Hindu laws there still remain pockets of rules that treat women less favourably than men. At the other end of the spectrum, Islamic laws have been least modified and contain many provisions that treat women less favourably than men. The important aim for us is that the argument about religious inviolability of rules should be made irrelevant in the legal reform discourse.

the individual person to decide whether to be bound by religious rules— these rules are not, however, enforced by the state legal system. In case there is a disagreement between two parties, only the state-enforced family law is available for the resolution of the dispute.8 An analogous argument is made by Susan Moller Okin9 when addressing the standard Liberal argument that equality and justice are ‘public sphere’ values, and therefore not relevant in organising the personal family relations. She examines the details of these and eloquently argues that justice is neither the highest value nor the only value worth pursuing in personal relations. However, it is a necessary value, when and if the need arises. Therefore a just family law is the minimum condition for a fair resolution of disputes, if and when they do arise. Similarly, in the Indian context, the mere presence of state rules does not mean that the disputes cannot be resolved by reference to other values (religious rules). However, if one party insists on using the state law, it is available as a just system of rules. The mere availability of these rules does not make one less religious, especially if it is firmly established that freedom of is a personal matter. At the same time, however, no one, not even the state law, has the right to force another person to abide by religious rules against their wish. In this manner the autonomy of the individual with regard to matters of conscience is maintained, and simultaneously, the family law upholds basic fair and just standards. There is a seeming contradiction in our argument: while we wish to transgress the private nature of family relations and make them subject to legal regulation, we also seek to keep freedom of a private matter. But this is only a seeming contradiction if it is understood that the aim in both instances is to create a just system of family law— one that does not oppress anyone and also leaves everyone free to the greatest extent possible. Like any other category, justice is not a unitary category, and justice in family law

arguments

conscience

conscience

8 This is not a novel suggestion, as evident from the example of the Roman Catholics. Its rules prohibit the dissolution of a valid marriage but family laws in most Christian societies allow divorce without any reference to the religious It is up to the individuals to decide whether to abide by the religious dicta or avail the state laws. Nor is any serious argument made that by such a course of action, state laws are weakening the individual’s religiosity. 9 Okin (1989).

prohibition.

will necessarily mean different things for different people. These differences will however respond to different contexts, rather than assume to override the principle of justice in the name of distinctive religious or minority identity. A rethinking of family law independent of religious constraints will also enable the rules to be in harmony with the needs of people in contemporary society. While it is a truism that law and society are mutually influenced, there are many obstacles in the path of legal development that make the current family laws inappropriate for a rapidly urbanising and developing economy of India. The inertia in matters of law reform is partly a result of lack of systematic mechanisms. While there is a Law Reform Commission which advises the government of the day about the aspects of law that need change, it does not play a decisive or influential role.10 Similarly, various other Commissions make suggestions to the but these are mere suggestions and are not binding on the government. It is not surprising then that the governments respond to political pressures in an ad-hoc manner rather than execute a well-integrated reform plan in the field of family law. Not only are the legislative responses confused, but there is also an equal amount of ambiguity present in the responses of the judiciary, as detailed in many of the articles in this volume. It is also true that whether law should recognise the link between law and the needs of a rapidly changing society is an issue that is not systematically or addressed by our institutions or our thinkers, including the legal academics. The latter operate in a context of legal education ethos where theoretical and philosophical enquiry is not an integral part of the academy. We therefore wish to create a space for systematic development of ideas about a just family law for contemporary India. As earlier, we need to begin with discussing the contours of family law, and ask what is it that we hope to achieve by legal of the family. It follows that questions arise whether family law is to be conceptualised only as a dispute resolution mechanism for parties to a marriage, or whether it needs to cover subjects like employment conditions for parents, availability of adequate health care for mothers, violence in intimate relations, adequate social

institutional government

family discussed

mentioned regulation

10 For a study of the reports of various Law Reform Commissions, see Sarkar (1988).

welfare provisions, etc. In conceptualising a just family law the main aim would be to respond to the different needs of different sections of society. Thus, rather than asking for a uniform family law, we are seeking to create a discourse of family law that accommodates and is context-sensitive, but is always seeking to be just and fair. Necessarily, such a law would have to employ open-textured language and broad principles, which are to be contextually and applied by the judges. In other words, we are stepping clear of the sterile controversy whether judges do or do not make law, and are recognising that adjudication has to complement, and if necessary reconstruct, the rules enunciated by the legislatures. This choice is not dictated by a naïve belief in the infallibility or wisdom of judges, especially since this volume contains many which suggest the contrary. Instead, we are stressing on the functional necessity of judicial discretion, and the need for judicial reflexivity and scholastic oversight to promote the responsible of such discretion. This position is being adopted in awareness that the trend in most developing countries’ family law systems is to move away from judicial discretion, and formulate strict rules often to be applied administratively. Although these are significant issues that need to be discussed in detail, however, we will address the subject of developing trends in family laws first. Family law theory like the rest of legal theory is Eurocentric. In fact, it is not so much Eurocentric as it is the only kind of Anglo-Common law theory in existence. While these theorists present their analyses as about ‘Family law’ rather than about English, American or any other family law, the universal significance of these developments is assumed rather than articulated. The specific reasons affecting these legal changes are however not replicated in third world economies like that of India. Yet, family law theory produced in the Euro-American universities is the context in which Indian legal scholars must develop their ideas. Thus, for example, John Dewar argues that among other trends, there is a shift from discretion towards rules as a characteristic of family law legislation.11 Similarly, Michael Freeman argues that the trend in family law is towards increasing administrative regulations.12

diversity

interpreted

examples

exercise

socioeconomic

11 Dewar (2000: 59–85). 12 He refers to the increasing transfer of power to bureaucracies; see Freeman (1996: 1–8).

In both these examples, family law is moving away from judicial discretion to strict rules, but these rules are to be applied In other words, the trend is moving away from a discourse of rights to one of efficiency. Another aspect of these developments is an increasing privatisation of family law, so that most matters are amenable to private arrangements that are enforced by law. This is the specific post-colonial context in which we are to generate a family law that creates a discourse of justice as an integral aspect of family law. As briefly described above, we in India find ourselves caught in the web of anachronistic laws (especially family laws) dating from the colonial times. For us to start discussing the contours of a just family law, we need to address questions on the specific purpose of family law. European historical developments of the connections between the changing structures of family and the socio-economic developments, including modernisation, chart the corresponding changes in the laws.13 These analyses typically explain the rise of the nuclear family as a response to the needs of a modernising society, and the corresponding developments in family laws are seen as law responding to the changing needs of a society. The trajectory of socio-economic changes in India has not been the same, but at the same time, we are a part of the global capitalist and are subject to those economic conditions. However, our specific cultural milieu is not a reflection of the changes in western societies, and specifically this means that we have not moved towards the nuclear family as the dominant norm. Yet, we do operate in a context of values of individualism and rights, associated with a Liberal democratic system, that are obviously a legacy of our colonial past. The situation is a complex mix of indigenous and imported ideas and one that does not easily resolve into the binaries of and modern society or western and non-western, or even the developed and developing economies. This is perhaps what the scholarship terms a situation of‘hybridity’.14 This is the peculiar post-colonial context of Indian legal scholars that is the starting point of our efforts— we do not have the option to ignore the developments in the European legal theory although

administratively.

seeking

system

traditional postcolonial

13 See, for example, Gibson (1996: 9–38); also Stone (1990). 14 Menski, ‘Postmodern Hindu Law’ ( www.art.man.ac.uk/CASAS/pdfpapers/pomolaw.pdf). However, we feel that to describe this situation as ‘post-modern law’ is not very useful as that usage collapses any distinction between post-colonial and post-modern analyses.

we are well aware that those theorists are not speaking to our specific concerns.15 Thus family law scholarship in most countries of the north deals with developing trends as if they are the only trends. At the same time, our needs are very different, and it may be that we need to develop our own concepts. Yet, once again, we meet with contemporary legal theory. For example, the post modern critics eschew any talk of rights, justice or partnership between the state and civil society. Put very briefly, the post-modern turn in theory challenges the certainties of positivist thinking and the metanarratives of modernist theory. Whether it is Liberal or Marxist theory, the post-modern critique is that their teleological ends are unachievable. Thus, the theories of law that portray it as a means of justice and fairness, as well as those which show it to be the means of class domination, are equally flawed. Instead the emphasis of post-modern theory is on showing the contingency of meaning, the constructed nature of knowledge, and therefore the fallacy of any particular conception of justice, fairness or equality as the final meaning. The predominant concern of post-modern legal theory is to critique the existing conceptions of law rather than to construct new definitions and theory.16 This is perhaps the inevitable of the post-modern way of thinking but the political of such theorising are that any talk of achieving justice through law becomes impossible. However, it is also important to remember that the authors of these critiques are nevertheless living in societies where law is a major source of order and stability. For all their critiques about the force and violence of law, none of these thinkers has to contemplate living in a lawless society. This of course does not mean that their critiques are flawed, but it does raise the question of whether it is responsible to theorise in a manner that maintains the status quo, especially if that status quo is an oppressive one for some. The with the instability of meaning in legal theory manifests itself as an overemphasis on analysing language, at the cost of relating legal ideas to the wider political and material conditions.17

assuming

outcome consequences

preoccupation

15 This is a common theme in post-colonial literature. See, for example, Slemon (1994: 15–32). 16 Davies (1996). 17 See Sangari (1987: 157–86), where she says that the crisis of meaning is not everyone’s crisis. This crisis of legitimation itself threatens to become a master narrative.

We are not arguing for going back to positivistic theorising, but are at the same time unable to draw much support from the theories of law. It is of course imperative that we construct our own theories, but this raises an important issue. In the context of globalisation of knowledge, where would such a theory be Is it that the Indian legal feminists can keep theorising in their niche but that inevitably these ‘special’ theories do not have any real transformative effect on mainstream legal theory? The point we wish to make is that this type of parcelling of responsibility leaves the mainstream legal theory free to be non-inclusive. This is not simply a matter of North–South or West–non-West relationships; it is an issue that takes seriously the claim that knowledge and power are mutually constitutive. Those who get to define what constitutes authoritative knowledge must also shoulder the responsibility of ensuring that such knowledge is non-exclusionary, and is therefore non-oppressive and just. Translated into legal knowledge, this amounts to saying that contemporary legal theory must engage with issues of responsibility— of the law, legal actors, legal thinkers, and legal institutions. Otherwise, the western theorists are free to carry on portraying their ideas as universal ideas. How legal knowledge is constructed should be the concern of everyone, and not only of the marginalised. Otherwise, all that the post-modern turn in theory would have achieved is to entrench the hegemony of western thought through the idea that there is no explainable basis for ethical responsibility, or that ‘I’ as a European, owe a responsibility to the ‘Other’.18

contemporary

situated?

We are arguing for a way of theorising that carries with it a sense

of responsibility, not only because of being European, but because legitimation of ideas is not a natural but a discursive activity. How we propose ideas and how we justify them is the core of any theory, or it should be. Otherwise, the claim of objective truth as the of reason will continue unchallenged. A direct consequence of such an admission would be that legal theory would have to be informed by the sociological, historical and economic contexts, or what Cotterrell calls the ‘politics of jurisprudence’.19 He argues eloquently that it must be acknowledged that ideas about the nature

preserve

18 For a detailed discussion of this idea, see Abbinnett (2003). He attributes the idea of the responsibility of the European to the‘Other’ to the later writings of Derrida. 19 Cotterrell (1989).

of law are inevitably influenced by the wider political context. legal theories generated in the North American or European contexts may claim universality but they cannot achieve it. The logical extension of this idea is that all theory has to be partial and contextual, but that this is a general requirement and not the responsibility of post-colonial thinkers. Such a view of the responsibility for ideas has the potential to make legal theory less abstract, and at the same time, context specific. And this brings us back to the second issue mentioned earlier, that we expect the family law rules to be flexible and thus to embody wide judicial discretion. However, our confidence in the judiciary is dependent upon the conventions of legal reasoning changing in a manner that responsibility for ideas attaches itself firmly to the thinkers. This is possible if knowledge is viewed as constructed and since the legal thinkers are the main agents in this regard, they must take responsibility for the consequences that attach to their ideas. However, for such a change in the conventions of legal reasoning, an equally important requirement is that the content of that must be derived from a wider field rather than from legal doctrine alone. Thus, interdisciplinary study of law must become the norm, and the aspirations of legal theorists to conceptualise law as radically independent, or autonomous, would have to be given up. As Cotterrell argues, there is a need to study both the doctrine, and the social, economic and political contexts of the doctrine, in order to be able to explain how legal change happens.20 From here, it is not so difficult to imagine that the judges providing of the legal rules must be able to avoid the artificiality of strict or literal interpretations, and strive to make the law the best that it can be.21 While legal scholarship on the whole must broaden its horizons beyond the conventional concerns of the lawyers, there is an equally strong need for engaging scholars from other disciplines to analyse law and legal institutions. Therefore, in this volume we have invited scholars from non-law disciplines to write on their understandings of aspects of law. We thus hope to create a truly inter-disciplinary discourse of family law. Owing to necessity, the articles in this volume cannot cover all

Therefore,

exclusive

knowledge

interpretations

20 Ibid.: 228ff. 21 Dworkin (1977; 1985), although our conception of the sources of ideas is very different from that of Dworkin who insists that law is a complete system in itself and judges remain within the boundaries of law to give their judgements.

areas of family law. Rather than being an exhaustive treatise, we have aimed for drawing upon the special strengths of the various contributors. All of them are, however, united in their aim to a just family law.

conceptualise

This book has set out to redefine family law in order to obtain a more just family law. This advocacy for a just family law requires us to be informed on the injustices subsisting within existing family law. This injustice may be all pervasive or may be limited to specific members of the family. Feminist writings have demonstrated that the pathologies of power have not escaped the institution of the family. Consequently, the rules of the family unequally impact members of the family. A number of articles in the volume lift the familial veil to undertake a close scrutiny of the status, rights and disabilities of some of the subordinated members of the family, be it the divorced wife (Vatuk), the adopted child (Dhanda) or members with different sexual orientation (Bhalla & Sankaran). Since the exploration is an inquiry of empowerment, the volume does not just document the pathologies of power within the family but also makes proposals for remedying these inequities. These remedies have been devised within legislative norms (Agarwal, Sankaran, Saxena), lawyering strategies (Agnes) and adjudicative pronouncements (Parashar and Sathe). This inquiry is not confined to considering what changes need to be inducted into existing law to make it more just, but also strategises on the means and methods of effecting the change. To that end there are articles (Agarwal and Agnes) which document what has worked with and courts in obtaining a fair deal for subordinated members of the family, and hence which kind of strategies and arguments may be experimented with. This book has undertaken its enterprise of redefining family law acknowledging the political nature of the personal. Hence, which issues are raised in the public domain, and which are relegated to the private arena, are political decisions, which continually show the nature of the categorisation.This dichotomy between the and the public has been further complicated in India by the spurious induction of religion. Irrespective of the non-genuineness of this induction, the justification of religion has often been used to claim inviolability for provisions of religious personal law.

different

family

legislatures

artificial private

Vasudevacharya’s article has shown the growth and change in religious tenets and beliefs, and the evolution of respect and for difference and diversity. Religious thought neither nor speaks for immutability. Thus, even if we do not interrogate the category of religious personal law, a case to question the content of these laws can be made. Respect for religion has to be respect for the humanistic elements of religions.22 Those tenets that cannot be so described have necessarily to be phased out. It is this process of phasing out which Vasudevacharya has analytically described in his contribution. This description has special relevance to the redefining enterprise of this book by bringing home the penetrability of the religious barrier. If religious tradition tested on the tenets of equality can be reformed then family law— which is a derivative of that tradition— can evidently be redefined. In this enterprise of creating a just family law, inspiration can be obtained from whichever source. Thus, whilst Vatuk shows the of obtaining a fair deal from the qazis, Vasudevacharya alerts us to the contributions of liberal religious thinkers and Agarwal to the reform possibilities, which exist with legislatures. Vatuk’s piece, once again, stresses that the concern is with obtaining a fair deal and not with the sites at which this deal is obtained. At the same time, the ethnographic records collated by Vatuk show the need for favourable formal systems, since it is to these systems that we have to turn when unfavourable outcomes result from the informal system. The commonalities between the actors of the formal and the informal system also come to the fore in this study on Qazis— sanctioned divorce— how, whilst some Qazis pushed the envelope and tried to protect the interest of the hapless woman, others just stayed within the letter of law, oblivious to the psychosocial of their decisions. Similar patterns can and have been traced vis-à-vis judicial decision-making. If Vatuk speaks of the need to obtain maximal benefit from the traditional system, Agarwal stresses on the need to enter all sites of discrimination, and to obtain its eradication without entering into sterile and self-wounding battles on the absence or presence of sanction for such discrimination.23 The need to develop the

recognition represents,

possibilities

consequences religious

22 For an intensive contemporary exploration of this idea, see Nauriya (1989; 1997; 2000; 2003: 8–10). 23 Even as Vasudevacharya shows how progressive religious interpreters can assist in the modernising of religious traditions.

capabilities of women, and the integral role of economic self-reliance in this enterprise prompts her to look at the ownership patterns of land in the country and to devise arguments for change. If Agarwal has demonstrated how we may obtain change, Saxena’s piece alerts us to the judicial and legislative attitudes that could render even the changed law nugatory. After all, if judges believe that a sister who is seeking her rightful inheritance is, in effect, her brother of his just due, then judicial interpretation would be geared to save male inheritance rights instead of protecting the inheritance rights of women. Further, her analysis of the existing tenancy legislations shows that the reform of the Hindu Succession Act (HAS) does not bring economic empowerment of all women. In fact, this change in HSA should now be used to usher economic parity for all women. This concern with the disempowerment and homelessness of all women has been expressed in the recently enacted Protection of Women from Domestic Violence Act (2005).

robbing

The all-encompassing normative structure of the Domestic

Violence Act gets inspiration from the comprehensive Bill of Rights

inducted in the Indian Constitution, to obtain responsible exercise of state power. However, as already stated, this division between state and non-state, public and private is more artificial than real. For an equitable society, the rights challenge would need to be mounted for all kinds of power, whether in the family or outside it. In recognition of this artificiality, Sathe has used the lens of rights in order to view family relations from an altered angle. From such an angle, a wife has the right to refuse sexual relations, and the husband’s failure to respect this refusal is an infringement of the woman’s right to life and liberty. Even as he draws upon values to modify the power asymmetries which subsist within the family, he requires makers of public policy not to policy oblivious of these asymmetries. Therefore he takes issue with the modifications introduced in the various Panchayati Raj Legislations where the political empowerment of women is on the altar of population control. Sathe’s piece shows that the rights guaranteed under the are available to all members of the family, including the so-called disenfranchised members such as children and transsexuals. However, for these rights to be in fact available, they cannot subsist only in higher constitutional climes but need to be inducted into the norms of lower hierarchies such as legislations, rules, guidelines

constitutional

constitutional formulate

sacrificed constitution

and of course community custom and family practice. For a rule to be accorded recognition from state law, a list of such as long observance and certainty, has to be fulfilled. Customary norms are only allowed to co-exist with state laws— they cannot supplant them. Thus, in case of discord between state and customary law, the latter has to give way to the former. Uberoi brings out the arbitrary and ad hoc nature of this induction by looking at how the entire realm of prohibited relationships has been regulated. The recognition and non-recognition of a relationship is totally at the whim and caprice of the legislators, or rather it is legislative stereotypes rather than legislative reason that dictate choice. This process arouses special apprehension because there would be need to turn to the legislators to derecognise the customary prejudices that subsist against excluded groups such as transsexuals. This redefinition of family law cannot be confined to enhancing the fairness component of existing entitlements such as the on the changes in the succession law (Agarwal and Saxena). It cannot also only seek an increase in the entitlements of existing enfranchised group such as the claim for matrimonial property (Sankaran). There is a need to break the silences prevailing in relation to some excluded groups, whose existence is not even acknowledged by family law. Bhalla & Sankaran have extensively documented both the kind of social prejudice that subsists against the transsexuals, and the ominous silence of the law— especially family law— on this situation. It is because they are denied a legitimate space within the family, or rather because they are on the receiving end of and all pervasive maltreatment at home, that the are forced to move out. The family inflicts such discrimination and treatment possibly because of the social stigma which prevails against transsexuals. The situation is the proverbial chicken-and-egg one— where it is difficult to determine whether the prejudice is causing the exclusion or exclusion the prejudice. Whichever way the situation may be analysed, the fact remains that if this excluded group is to find a place within the family, then the silence in the law would need to be broken and explicit entitlements guaranteed. The piece speaks of the need to accord transsexuals not just the right to retain memberships in their biological families, but also the right to found their own families through marriage and adoption. If a comparative approach is taken on the issue, we find that state

customary requirements,

legislative discussion

discrimination transsexuals

laws have begun the process of empowerment by firstly according transsexuals the right to remain in the family. It is only more recently that legislations have been enacted in several countries of the world according marriage and adoption rights to persons with different sexual orientations. Indian lawmakers could make similar choices but for that to happen, they need to closely scrutinise exclusion, abandonment and oppression within the family. One member of the family whose concerns require closer is the child. In traditional discourse on family law, there is an overarching proprietorial dimension attached to the persona of the child. Thus, whilst in custody disputes the child is reduced to a piece of property, the succession scenario focuses on the property of the legitimate, illegitimate and adopted child.The 1976 Amendments in the marriage laws, whereby legitimacy was on children of void marriages, whether or not a formal decree of nullity was obtained, is one of the few amendments in family law prompted by concerns for child rights. The other of child rights jurisprudence arises from the adoption of the best interests’ principle to which Indian courts pay customary obeisance. Parashar, in her article on child custody, has traced the operation of the principle in Indian and Australian law. She has shown that the open texture of the principle necessarily makes judges crucial actors in the operation of the principle. She urges judges to admit to this responsibility and reflect on its due performance instead of hiding behind Blackstonian theory or the doctrine of separation of powers. As the purpose behind the is to find out how best the rounded development of the child can be ensured, judges should draw upon both child psychology and child development literature to arrive at their decisions. The effort of the judge should be to situate the child in a functional family and the functionality should be assessed in relation to the particular child and family who are before the court and not on the basis of judicial predispositions and stereotype. An open-ended principle such as best interest has been adopted so that judges may individuate according to the needs of each child who comes before them. Any standard form operation of the principle is both a negation of judicial responsibility and the child’s best interest. This emphasis on individuation is reiterated in Dhanda’s piece on adoption. Dhanda shows how the practice of adoption has been deliberated upon from the angle of social policy

examination

entitlements conferred acknowledgement

therefore inquiry

overwhelmingly

where, in the enthusiasm to find homes for homeless children, policy-makers stress on the similarities between giving birth to a child and adopting one. The agony of the individual adoptee and of the particular adoptive parent is subsumed within the utilitarian rhetoric of the greater social good. As the failure to acknowledge the travails does not obliterate them, she contends that it is essential in the best interests of the child that the unique identity of the adoptee is acknowledged, and law and policy be formulated in celebration, and not in denial, of this difference. However, she wants the to be admitted in order to devise suitable child development policies and not to accord a second-grade status to the adopted child. Hence she takes issue with the recently enacted Juvenile Justice (Care and Protection) Act 2000 that is ominously silent on the inheritance entitlements of the adopted child; and does not agree with those child rights activists that getting the child a home is more important and the succession rights can be progressively realised. This silence on the economic entitlements of the child is brought to the fore again by Sankaran in her article. She points out how the unpaid labour of the child contributes to the family property and yet, when the family breaks down, the child— like the wife— is at best entitled to an irregular maintenance. If emotional heartbreak can be eased by economic security then the child who is still in the process of capability development is in dire need of this salve. This book is not just an effort at demonstrating the artificiality of the public–private divide, but also at showing the subterranean linkages between the two spheres. Kotiswaran has detonated the wall that divides the home and the brothel to show how the manner in which the law treats the whore can impact upon the rights of the wife. If the whore can obtain greater autonomy in the grant and refusal of sexual favours, then is there not a case for categorising prostitution as work. And is it false patriarchal morality or real control, which prevents such categorisation to happen.An improvement in the bargaining position of the whore enhances the bargaining position of the wife whilst an oppressed whore only the oppression of the wife. If Kotiswaran explores the interconnections between the sexual labours of the whore and the wife, Sankaran raises queries around unpaid domestic work of women and the problems of valuing it. In making a strong plea for a law on matrimonial property, she

difference

patriarchal

reinforces

demonstrates how the present separation of property subsisting in family law is especially disadvantageous to women. The unpaid labour of women contributes to creation of assets by the family but in the absence of a law for matrimonial property, she is no way gains from the assets when the union in which they were created dissolves. Every demand for law reform especially in the arena of personal relations has continually been confronted with the response that societies cannot change by laws alone. It is therefore important to alter attitudes and change mindsets and that is primarily the function of education. Agnes has demonstrated the educative value of law. She has also shown that this education can be that much more imparted when the power of the law is put behind the more vulnerable members of the family. Legal feminists have questioned the legal deference to the doctrine of precedent especially because the doctrine of stare decisis is just a so-called neutral device to legal principles unfavourable to women.24 Juristic writing on the operation of the doctrine of precedents has shown how unfavourable rulings can be avoided and fresh principles created. 25 The of these techniques in ushering a fair deal for women may be debatable. Belief in and understanding of the women’s cause is the tool that Agnes uses to devise legal arguments that overcome the constraints of the female situation to create suitable precedents. Agnes is thus asking imaginative lawyering to accompany legislative reform. In fact, she convincingly demonstrates how without such lawyering, the most radical legislative proposals could reinforce the status quo. As already mentioned, this book does not make an exhaustive coverage of all issues in family law. Instead, it picks up selective issues to show how this process of reconstruction should be undertaken. In this enterprise, it draws upon knowledge generated by both the experiential and the theoretical. This intimate connection between precept and practice is often undermined in the identity politics of academics and activists. Professor Sivaramayya, whose towering work in family law has inspired this collection of essays, continuously forged a relationship between his research on equality and his crusade for non-discrimination. Academic writings, he continually held and demonstrated, were tools to enrich life of all, and especially of the most vulnerable. This work is a humble salute to one who did not

effectively

enforce

effectiveness

24 Mackinnon (2003: 199–212). 25 See, for example, Stone (1999); Baxi (1983: 34–51).

just preach, but practised what he theorised. It is an invitation to family law with the twin tools of reflection and responsibility.

redefine References

Abbinnett, Ross. 2003. Culture and Identity: Critical Theories . London, Sage Publications. Baxi, Upendra. 1983. ‘The Travails of Stare Decisis in India’ in Tony Blackshield (ed.), Law and Social Change: Essays in Honour of Julius Stone. Sydney: Butterworths, pp. 34–51. Cotterrell, Roger. 1989. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. Philadelphia: University of Pennsylvania Press. Davies, Margaret. 1996. Delimiting the Law: Postmodernism and the Politics of Law. London: Pluto Press. Dewar, John. 2000. ‘ Family Law and Its Discontents’, International Journal of Law, Policy and Family, vol. 14: 59–85. Dworkin, Ronald. 1977. Taking Rights Seriously . London: Duckworth. ———. 1985. A Matter of Principle . Cambridge, Mass.: Harvard University Press. Freeman, Michael. 1996. ‘ Divorce: Contemporary Problems and Future Prospects’ in Michael Freeman (ed.), Divorce: Where Next? Aldershot: Dartmouth Publishing Company, pp. 1–8. Gibson, Colin. 1996. ‘ Contemporary Divorce and Changing Family ’ in Michael Freeman (ed.), Divorce: Where Next? Aldershot: Dartmouth Publishing Company, pp. 9–38. Mackinnon, Catherine A. 2003. ‘ Mainstreaming Feminism in Legal ’, Journal of Legal Education, vol. 53: 199–212. Nauriya, Anil. 1989. ‘Relationship between State and Religion Antimonies of Passive Secularism’, Economic and Political Weekly, 25 February. vol. 24(8): 405–6. ———. 1997. ‘ Humanism and Secularism’, The Hindu, 2 July. ———. 2000. ‘ Equal Respect for All Religions’, The Hindu, 8 May. ———. 2003. ‘ Secularism: Is it a Journey or and End?’, Mainstream , pp. 8–10. Okin, Susan Moller. 1989. Justice, Gender and the Family. New York: Basic Books. Olsen, Frances, 1985. ‘ The Myth of State Intervention in the Family’, University of Michigan Journal of Law Reform, vol. 18: 835–64. Parashar, Archana. 1992. Women and Family Law Reform in India . New Delhi: Sage Publications. ———. 2003. ‘ Welfare of the Child in Family Laws— India and Australia’. NALSAR Law Review , vol. 1: 53–72. Pateman, Carole. 1988. Sexual Contract. Cambridge: Polity Press.

Patterns

Education

Sangari, Kumkum. 1987. ‘ The Politics of the Possible’, Cultural Critique, vol. 7: 157–86. Sarkar, Lotika. 1988. Law Commission of India. New Delhi : Centre for Women’s Development Studies. Slemon, Stephen. 1994. ‘The Scramble for Post-Colonialism’ in Chris Tiffin and Alan Lawson (eds), De-Scribing Empire: Post-colonialism and Textuality. London: Routledge. Stone, Julius. 1999. Legal System and Lawyers Reasonings . New Delhi: Law Publishing Co. Ltd. Stone, Lawrence. 1990. Road to Divorce: England 1530–1987. Oxford : Oxford University Press. Menski, Werner. ‘ Postmodern Hindu Law’, www.art.man.ac.uk/CASAS/pdfpapers/pomolaw.pdf. Thornton, Margaret (ed.). 1995. Public and Private: Feminist Legal Debates, Melbourne: Oxford University Press.

Universal

B. Sivaramay a: A

Work Profile

Amita Dhanda These essays, in honour of Professor B. Sivaramayya, are being brought out nearly eight years after his death in 1999. The reason why the contributors and the editors have felt the exercise necessary is of the overwhelming influence of his scholarship on questions surrounding inequality and discrimination. In order to acquaint the readers with his writings, an extended survey of three of his books written at three different junctures of his career has been undertaken here. For the convenience of readers who wish to look more at Sivaramayya’s work, an extensive list of his writings has also been provided which, despite our best efforts, cannot claim to be exhaustive. This review of his writings is being made in recognition of the fact that the inputs of his scholarship were not confined to the works he authored. A number of contributors have written for this volume in acknowledgement of their intellectual debt to him. His work has influenced the formulation of several governmental policies, and his writings have been often cited by the Supreme Court of India The nurturance he provided to generations of scholars as a teacher par excellence, primarily based at the University of Delhi, is beyond quantification.

because closely

Women's Study

Rights

of Inheritance

of Equality

and

in Protection

India:

A Comparative (1973)

Sivaramayya undertook this study for his Doctorate in Comparative Law at McGill University. The continued relevance of this seminal

Dhanda

study on rights of inheritance has been brought home by the recent amendment to the Hindu Succession Act 1956. This book, as its title suggests, studied the impact of the Hindu and Muslim laws of inheritance on women’s rights of inheritance. The laws relating to other communities have only been briefly touched upon in an The first part of the book is a description of the inheritance rights in statutory and customary Hindu law. This part of the study has been undertaken primarily to analyse the impact of various legislative choices on women. The author firstly explains the nature of a Mitakshara joint family, and then distinguishes between the joint family and the Mitakshara coparcenary. Next he traces the evolution of customary law by analytically describing how a number of norms have altered to keep pace with changing times. He then relies upon this evolution of customary law to argue for a more egalitarian and gender-just inheritance system. Such an system cannot be put in place, he contends, if the sons retain their by birth rights. The succession rights of women are further curtailed by the ease with which separate property can be converted into the ancestral form. The benefits of granting inheritance rights to the daughter in the ancestral property are cancelled out by testamentary rights. To help his readers understand the technical contentions, every one of the relevant issues have been discussed with the aid of suitable illustrations. Sivaramayya undertook this study of inheritance laws in India in order to find out how best to protect the inheritance rights of women. In furtherance of this objective, the author examined laws from other parts of the world instead of limiting himself to the Hindu law of succession. He undertook this comparative study to assess if any of the choices made in other jurisdictions could assist the enactment of equitable succession laws in India. To this end he specially examined the laws relating to compulsory shares, restrictive testamentary rights, and matrimonial property. His quest for gender justice extended to all women; consequently he looked at inheritance rights of women in their multiple roles be it mother, daughter, widow, daughter-in law, grand-daughter, or sister. Besides examining the laws relating to succession more generally, the book examines the close relationship between a system of and the socio-political order. It is by exploring these that Sivaramayya explained the origin of preferences to agnates, and restrictions on the inheritance rights of widows. A running theme

appendix.

customary equitable

unrestricted succession

succession connections

Sivaramayya: A Work Profile

of the book is that there is nothing sacrosanct about inheritance shares and each society keeps renegotiating these shares according to social compulsions. It is these socio-economic compulsions which explain, why even in the west, an unrestricted power of testamentary disposition was permitted only for a short time. Subsequently, in the wake of inequitable disinheritances, restrictions on testamentary powers needed to be reintroduced. These historical explanations were employed by Sivaramayya to make a case for the introduction of restrictions on the power of testamentary disposition in India. This close connection between law and society is more sharply etched in the authors’ analysis of Islamic law. Sivaramayya showed how despite being revealed law, the inheritance choices of the schools of Islamic law were dictated by their own socio-political constraints. It is these limitations which explain why departures from tribal custom were carefully carved in Islamic law. Thus for example, when contrary to the tenets of tribal custom, the full blooded was made an heir in Islamic law, she was accorded only half the share of the full-blood son. In contrast, there was no difference in the shares of the uterine sons and daughters; this parity is explained by the fact that both uterine sons and daughters were accorded rights by Islamic law. Thus when Islamic law did not have to displace extant custom, there was no hesitation in it, to treat the son and the daughter similarly.

various daughter

inheritance As already mentioned the author undertook his study of

inheritance laws in order to determine how to render them gender just. In

pursuance of these reform objectives he studied various western family law reform legislations to suggest changes in Hindu law; and the change initiatives of various Islamic countries to recommend amendments in Islamic law. Sivaramayya classifies the reform of Islamic countries as either ‘restrictive’ or ‘revolutionary’. After evaluating the changes ushered by each approach, he advocates adoption of the ‘revolutionary’ approach for India. The study of succession laws in India has often been found to be both unhistorical and acontexual. Since the compulsions informing the choices of different inheritance systems are not explained, the arguments for recommending change are also poorly constructed. Sivaramayya has studied every system of inheritance in the country by situating it in its socio-economic context. The same rootedness informs the suggestions for reform. The articles delineating on in this book inform that a number of proposals for reform

efforts

succession

suggested by Sivaramayya have already become law. Even so the crusade for gender justice is far from complete and a number of changes are still required. To both understand the changes which have already been introduced and to put together an informed case for those changes that are still desired, this book remains a necessary starting point. Inequalites

and

the

Law

(1984)

According to the Preface this book was an in-depth examination of the legal issues surrounding inequality, as follow up of Sivaramayya’s essay entitled ‘Equality and Inequality: The Theoretical Framework’ (1983). The book aimed to induct conceptual clarity on an issue which

is often emotionally clouded.The author first introduces the reader to the fact of human difference and how the variant social and legal value accorded to this difference gives birth to inequality. Even so, there is a difference between social and legal inequality. The subsisting in a society are more deeply entrenched, when social inequality is reinforced and legitimised by legal inequality. The removal of inequality in the law does not by itself remove but is an essential first step in this direction.After the reader with different kinds of inequalities, the author moves to differentiate between different conceptions of equality: to this end he distinguishes between numerical, proportionate, and merit-based equality. This theoretical discourse on equality and inequality is then tested out at various legal sites. The author inaugurates his effort by the constitutional conundrum of equality of opportunity and affirmative action. To what extent do political and job reservations address the inequality subsisting within Indian society? What are the pitfalls of a caste-based reservation policy? How does such a policy discriminate against communities other than the Hindus? If inequality of economic status has occurred due to inequality in land holdings and other economic assets, then would a policy of job alone be adequate as a remedy? The author addresses these hard questions by critically evaluating the answers proffered in scholarly writings, commission reports and court judgements. The book examines the various socio-economic practices inequality, and then evaluates the various legal attempts at

discriminations

discrimination acquainting examining

reservations generating

alleviation. It is to that end that Sivaramayya examines the right to property, land reform legislations, and the compensation travails. If the acquisition of productive economic assets is one route to inequality, then acquisition of political power is the other. Consequently, the author looks closely at the opportunities and of the electoral system subsisting in the country and accords special attention to the myriad problems surrounding the funding of elections.

alleviating inadequacies Since the book was an examination of the strengths and

weaknesses of the legal solution to inequality, it was important for the

author to assess the ease or difficulty with which the legal system could be accessed and whether any kind of inequities were generated by the legal system itself. In logical pursuit of the theme of access to justice the author studied the entitlements surrounding legal aid and the manner in which the right has been constructed by commissions, courts, and legislatures. The book, in the main, is an issue-based examination of inequality. Whilst the overarching analysis kept the impoverished in view, only two chapters have been devoted to specific vulnerable groups. Sex-based discrimination is the concern of one chapter; the plight of bonded labour is the focus of the other. In the chapter on women, the author demonstrates the extent to which sexual stereotypes contribute to impoverishment of women, whilst the bonded labour chapter draws attention to the consumption needs of the poor, and how in the absence of strategies to address this need, indebtedness is an inevitable consequence. This book was published in 1984. Since then, there have been legal developments in each of the areas covered by the book. These information deficits in no way reduce the utility of the book as the conceptual apparatus created by Sivaramayya stands in good stead to evaluate any law and policy which either exacerbates inequality or alleviates it. Further, insofar as the author has closely examined various policies formulated since independence to alleviate this book would assist in obtaining a historical understanding of current day developments. And lastly, this book should be mandatory reading for all academics bitten by the bug of jargon and obfuscation. The author has written to be understood and has used language to communicate and unequivocally state his positions on various issues. Both his courage and his integrity require replication.

investigative

inequality,

controversial widespread

Matrimonial

Property

Law

in

India

(1999)

In this book Sivaramayya continues his engagement with questions of equality, inequality and discrimination. He begins the study by pointing to the fact of women receiving ‘one-tenth of the world’s income’ and owning ‘less than one percent of the world’s property’. In his opinion this disproportionate holding of assets occurs for three reasons. One, that law and policies of the state do not recognise ‘domestic work’ as ‘productive work’.Two, nature and nurture women with bearing and rearing children. And three, even when women take up jobs they are confined to relatively low-paid ones. He moves on to consider the typical solutions offered to obviate this situation. He finds payment for domestic work to be obnoxious and opening of high-paid positions for women a long haul. The third solution then is to recognise marriage as an equal economic partnership between husband and wife, with a legal mechanism to give weight to the wife’s contribution to the acquisition of assets by the husband. Sivaramayya finds this remedy both conceptually and practically attractive. In this book he undertakes the groundwork required for the practical of this solution. As part of this groundwork the author looks at the various systems of property ownership in marriage: joint, separate and community. He examines the advantages and disadvantages of each of these systems, and how they have been inducted in different legal systems in India and abroad. Since maintenance is offered as the alternative to matrimonial property, the study then proceeds to examine the various schemes of maintenance subsisting in the country, and the high dependency and dignity costs that each of these systems entail. This documentation is again used to underscore the need to promote a system of matrimonial property in India. This study can be divided into two parts. The first part may be described as a justification for establishing a system of matrimonial property; the second part outlines the issues that would need to be addressed to put such a matrimonial property system in place. The ground of dissolution was viewed as a relevant criterion for between marriages. Consequently, the study distinguishes between marriages which break down due to domestic violence and those which are terminated due to divorce and death. A further difference obtains between marriages dissolved after short and long

burden

conceptually suitable implementation

distinguishing

duration. Finally, it focuses on how different assets accumulated during the marriage should be apportioned. Here again a difference has been introduced between the matrimonial home, household assets and other assets. To provide guidelines for the enactment of legislation on matrimonial property Sivaramayya firstly explores the various ways in which these questions have been answered in different jurisdictions; and then suggests his opinion on the best solution for India. Sivaramayya engaged with the right to equality over a lifetime

of scholarship. Through this engagement, he continually raised of non-discrimination. He did not ask for equal treatment of unequals; instead, he was continually alive to the different life and social circumstances of persons. Illustratively (in this book), he recognised the importance of pre-nuptial agreements as a mechanism by which women could retain control of their own property in a joint-ownership system. Having acknowledged this fact, he simultaneously pointed that this method was of little avail to enable women to retain control over their wages. The author did not balk at taking positions, a stance which assisted deep thinking on the issue. Sivaramayya spoke for property rights for women who have been in common law marriages without a subsisting valid marriage. He, however, spoke against property rights for women in second marriages as it would encourage disobedience to the law. That a number of women are getting victimised by this position of the law is a reality. In such a scenario, the position adopted by Sivaramayya helps us to reflect whether or not women should be allocated the exclusive burden of upholding the law. Similarly, the author— learning from earlier experiences of reforming Muslim law— suggested that the Matrimonial Property Act should not to Muslims, at least in the first instance. Again, his suggestion helps deliberation on the role of strategy in law reform. This book is a pioneering effort on matrimonial property law and so would be of continued relevance to any law reform effort in the field. However, the importance of this book cannot be restricted to matrimonial property law. Some of the suggestions that were made in relation to women victims of domestic violence have found inclusion in the recently enacted Domestic Violence Act 2005. The book provides an illustrious example of responsible law reform insofar as it does not just ask for change, but also goes ahead and shows why and how the reform should be carried out. Very

demands

extend

advocacy

often when legislations are studied as end products, the fact of choice is not adequately appreciated. Sivaramayya has drawn on examples from comparative law to highlight the reality of this choice and has hence promoted the enterprise of responsible

legislative

lawmaking. List

of Publications

Books 1. Women’s Rights of Inheritance in India. 1973. Madras: Madras Law Journal. 2. Law and Poverty: Cases and Materials (co-editor). 1973. Bombay: N.M. Tripathi. 3. Inequalities and the Law. 1984 . Lucknow : Eastern Book Company. 4. Matrimonial Property Law in India. 1999. Delhi: Oxford University Press. 5. Women and Law: Contemporary Problems (co-editor). 1994. New Delhi: Vikas Publishers. Articles 1. ‘On the Redundancy of Section 18 of the Transfer of Property Act’. 1956. Andhra Weekly Reporter, p. 77. 2. ‘ Some Aspects of the Indian Succession Act’. 1957. Supreme Court Journal, vol. 20, p. 221. 3. ‘Adoption: An Anomaly under the Indian Succession Act’. 1960. Supreme Court Journal , vol. 23, p. 201. 4. ‘A Revaluation of Cypres in India’. 1961. Supreme Court Journal, vol. 2, p. 95. 5. ‘Ambiguities of the Hindu Adoptions and Maintenance Act’. 1962. Supreme Court Journal , vol. 2, p. 1. 6. ‘Some Suggestions for the Amendment of the Indian Succession Act’. 1962. Supreme Court Journal, vol. 2, p. 62. 7. ‘ Shares to Female Members at a Partition under Mitakshara Law’. 1963. Journal of the Indian Law Institute , vol. 5, p. 270. 8. ‘ Mother’s Share at a Partition under Mitakshara Law’. 1963. All India Reporter, p. 67. 9. ‘ The New Specific Relief Act’. 1964. Madras Law Journal , vol. 2, p. 19.

10. ‘Annulment for Fraud’. 1965. Jaipur Law Journal, vol. 5, p. 70. 11. ‘Ascertainment of a Deceased Coparcener’s Share’. 1965. Bombay Law Reporter, vol. 67, p. 65. 12. ‘ Women’s Rights of Inheritance and Fragmentation of Holdings: Some Observations’. 1971. Supreme Court Journal, vol. 2, p. 6. 13. ‘ The Hindu Succession Act and Socio-economic Justice’. 1972. Kurukshetra Law Journal, vol. 1, p. 72. 14. ‘Equality of Sexes as a Human and Constitutional Right and Muslim Law’, in T. Mahmood (ed.). 1972. Islamic Law in Modern India . Bombay: N. M. Tripathi, p. 69. 15. ‘ Hindu Law’. 1974. Annual Survey of Indian Law, vol. 10, p. 255. 16. ‘Towards a Secular Concept of Family’, in A.S. Fyzee and T. Mahmood (eds). 1975. Family Law and Social Change . Bombay: N.M. Tripathi, p. 145. 17. ‘Towards the Protection of the Child: A Study in the Laws of Compulsory Sterilization and Succession’. 1975. Year Book of Legal Studies, vol. 11, p. 70. 18. ‘ Hindu Law’. 1975. Annual Survey of Indian Law, vol. 11, p. 75. 19. ‘ Law of Adoption in India’. 1975. ICSSR Research Abstracts Quarterly, vol. 4, p. 40. 20. ‘ Hindu Law’. 1976. Annual Survey of Indian Law, vol. 12, p. 142. 21. ‘Random Reflections on the Poorest of the Poor’. 1976. Delhi Law Review, vol. 5, p. 1. 22. ‘ Clogs on Personal Participation in a Democracy, in Equality and Freedom’. 1977. Proceedings of the St. Louis World Congress on Equality and Freedom, vol. 1, p. 333. 23. ‘ Family Law–II’. 1977. Annual Survey of Indian Law, vol. 12, p. 223. 24. ‘The Indian Succession Act, 1925’. K.D. Gangrade (ed.). 1978. Social Legislation in India. Delhi: Concept Publication Co., p. 87. 25. ‘ Hindu Law’. 1978. Annual Survey of Indian Law, vol. 14, p. 108. 26. ‘ The Special Marriage Act, 1954 Goes Awry’, in V. Bagga (ed.). 1978. Studies in the Hindu Marriage and Special Marriage Acts. Bombay: N.M. Tripathi, p. 310.

Agricultural

27. ‘ Hindu Law’. 1979. Annual Survey of Indian Law, vol. 15, p. 120. 28. ‘ Protective Discrimination and Ethnic Mobilization’. 1980. Journal of the Indian Law Institute , vol. 22, p. 480. 29. ‘ Hindu Law’. 1980. Annual Survey of Indian Law, vol. 16, p. 51. 30. ‘ Hindu Law’. 1981. Annual Survey of Indian Law, vol. 17, p. 317. 31. ‘ Law, Status of Women and Social Change’. 1983. Journal of the Indian Law Institute , vol. 25, p. 270. 32. ‘ Equality and Inequality: The Theoretical Framework’, in André Béteille (ed.). 1983. Equality and Inequality: Theory and Practice . Delhi: Oxford University Press, p. 1. 33. ‘Affirmative Action: The Scheduled Castes and the Scheduled Tribes’, in Bruce E. Williams (ed.). 1984. International on Affirmative Action: A Bellagio Conference, August 16–18, 1982. New York: The Rockefeller Foundation, p. 41. 34. ‘Uniform Civil Code: The Concept and Its Relevance’, in N.R. Madhava Menon (ed.). 1986. National Convention on Uniform Civil Code for All Indians. New Delhi: Bar Council of India, p. 56. 35. ‘Uniform Civil Code: Marriage and Divorce’, in N.R. Madhava Menon (ed.). 1986. National Convention on Uniform Civil Code for All Indians. New Delhi: Bar Council of India. 36. ‘ Dharmasastra and Contemporary Hindu Law’, in S. Narang (ed.). 1988. Dharmasastra in Contemporary Times. Delhi: Nag Publishers, p. 67. 37. ‘Family Courts’, in S. Bhatia (ed.), Family Courts, p. 21. 38. ‘Women and Law’. 1989. Annual Survey of Indian Law, vol. 25, p. 321. 39. ‘ Reflections on the Preamble of the Constitution’. 1990. Indian Bar Review , vol. 17, p. 32. 40. ‘Women’s Studies in Law’. 1990. Teaching Politics, vol. 13, p. 29. 41. ‘Women and Law’. 1990. Annual Survey of Indian Law, vol. 26, p. 113. 42. ‘Rights of a Child in an Adult Oriented Society’, in S.C. Bhatia (ed.). 1991. The ‘Citizen Child’: Socio-Cultural Perspectives . 43. ‘ Family Courts: Some Current Controversies’, in Upendra Baxi (ed.). 1992. Dimensions of Law: Festschrift in Honour of Professor S.P. Sathe . Pune: Indian Law Society, p. 203.

Perspectives

44. ‘The Mandal Judgement: A Brief Description and Critique’, in M.N. Srinivas (ed.). Caste: Its Twentieth Century Avatar. 1996. New Delhi: Viking Press. 45. ‘Towards Equality the Long Road Ahead’, in Amita Dhanda and Archana Parashar (eds). Engendering Law: Essays in of Lotika Sarkar . 1999. Lucknow: Eastern Book Company, p. 387. 46. ‘Law and the Aged’, in Arun P. Bali (ed)., Understanding Greying People of India.1999. New Delhi: Inter-India Publications.

Honour

Notes 1. ‘Alienation by a Limited Owner and the Reversioner’s Right to Challenge’. 1961. Supreme Court Journal , vol. 2, p. 9. 2. ‘ The Hindu Adoptions and Maintenance Amendment Bill ’. 1962. Journal of the Indian Law Institute , vol. 4, p. 461. 3. ‘ Indian Succession Act-Debt— Dina Nath v. Bala Krishna’. 1963. Journal of the Indian Law Institute , vol. 5, p. 158. 4. ‘Section 16 of the Hindu Marriage Act— Illegitimate Children’. 1963. Journal of the Indian Law Institute , vol. 5, p. 424. 5. ‘ Maintenance Claims of de facto spouses Gunvantre v. Bai Prabha’. 1963. Journal of the Indian Law Institute, vol. 5, p. 514. 6. ‘Convention on Marriage, Consent to Marriage and Minimum Age for Marriage with Special Reference to India’. 1967. Journal of the Indian Law Institute, vol. 9, p. 402. 7. ‘Does Remuneration of a Coparcener constitute a Joint Family Income?’ 1986. Journal of Indian Law Institute, vol. 28, p. 385. 8. ‘ Partition of Joint Hindu Family Property’. 1986. Journal of the Indian Law Institute, vol. 28, p. 226. 9. ‘ The Hindu Succession (Andhra Pradesh Amendment) Act, 1985: A Move in the Wrong Direction’. 1988. Journal of the Indian Law Institute, vol. 30, p. 166. Book Reviews 1. L.A. Sheridan and V.T.H. Delany, The Cypress Doctrine . 1961. Journal of the Indian Law Institute , vol. 3, p. 116. 2. H.W. Hannah and Robert R. Coughey, The Legal Base for Universities in Developing Countries. 1970. Indian Journal of Agricultural Research , vol. 40, p. 481. 3. Anthony Lester and Geoffrey Bindman, Race and Law. 1973. Sociological Bulletin, vol. 22(2), p. 382.

4. Paras Diwan, Modern Hindu Law . 1975. Journal of the Indian Law Institute, vol. 11, p. 319. 5. Lotika Sarkar, National Specialized Agencies and Women’s Equality: Law Commission of India. 1989. Journal of the Indian Law Institute, vol. 31, p. 116. 6. Subhash Kashyap (ed.), National Policy Studies . 1991. The Indian Economic Review, vol. 26, p. 272.

1 Inheriting ChRelnstonrilsduieagtriaonmsusictmye, HiIin and Modernity:

M. Vasudevacharya On one occasion in the Bhagavad Gita, Krishna refers to women and shudras in language that is now unacceptable in this ‘Age of Rights’, and a number of recent translators and commentators have quietly attempted to reinterpret the passage. The verse in question is this: mam hi partha vyapasritya ye ‘pi syuh papayonayah striyo vaishyas tatha shudras te pi yanti param gatim (9.32).1 Here, Krishna proclaims that salvation (moksha), is available to all people, irrespective of their gender or their social position, they sincerely commit themselves to Him. The problem is not about the overall meaning of the verse, which is clear enough, but about the interpretation of one particular phrase within it. When Krishna says ‘even those of base origins’ (ye ‘pi papayonayah) does he include in that category the phrase ‘women, vaishyas and shudras’ (striyo vaishyas tatha shudrah) or does this phrase refer to a separate category of people, lowly, no doubt, but not so lowly as to exemplify the pejorative term papayonayah?

provided

1 Radhakrishnan translates the verse thus:‘For those who take refuge in me, O Partha, though they are lowly born, women, Vaisyas, as well as Sudras, they also attain the highest goal’ (Radhakrishnan 1948: 252).

Vasudevacharya

Most classical commentators choose the first alternative. Shankaracharya (c. 788–820) says that the phrase is simply an of the word papayonayah. Ramanujacharya too understands the phrase in the same way. Modern Hindu translators of the Bhagavad Gita are, however, clearly uncomfortable with this interpretation which goes against the now universally accepted principle of They employ some ingenuity to read the verse in a new way whereby papayonayah refers to one group of people, while the phrase striyo vaishyas tatha shudrah refers to a separate category. Instead of following the traditional meaning ‘even those of base birth, i.e., women, vaishyas and also shudras’, they wish to understand the verse in a new way: ‘even those of base birth, as well as [and] women, vaishyas and shudras’. They are able to justify this reinterpretation because the Bhagavad Gita is composed in verse, and the words are placed according to rules of poetic metre rather than in prose order. This means that the syntax is often quite different from the naturallyoccurring prose order. While this creates a measure of ambiguity, it enables the modern translator to justify a new interpretation in a grammatically acceptable way, for by transferring the word tatha (‘as well as/and also’) from its place within the phrase to the very beginning of the phrase, the reading would now be: ‘even those who are of base origin, as well as (tatha) women, vaishyas and shudras’. Why have modern Hindu translators and commentators chosen to ignore the classical commentators, whose interpretation they would not normally question in other matters, and taken the trouble to reinterpret this part of the verse? They have done so because of the pervasiveness of one of the guiding principles of modernity, namely the principle of equality, and this principle has proved than tradition in this instance. Modern translators do not seek to undermine tradition, rather they wish to ensure its longevity by reducing its potential offensiveness to the public, and so they have quietly reinterpreted tradition in the light of the modern, guiding principle of social equality. The philosophical principles of that underlie modernity, namely the right to liberty and equality, have gradually come to acquire, over the course of the last 200 years, the status of universal truths that enjoy a validity that is held to be self-evident. I believe that it is proper that religious recognise this fact, and when they find themselves in conflict with these principles, they discover, or rediscover, an inner flexibility that exists within tradition, and bend before them. It is the argument

illustration equality.

stronger

Enlightenment

authorities

Inheriting Modernity

of this article that it is both legitimate and necessary to apply the hermeneutics of modernity to the foundational texts when the need arises and when it is possible to do so, and it is frequently possible, for the sacred texts are obscure at many places, and traditions that work to the detriment of social harmony have sometimes been erected on very flimsy hermeneutical foundations. Where it is possible, we ought to derive a meaning from the source texts that is in with the values of liberty and equality that now enjoy almost universal assent. In this article I do not focus on specific issues of family law. by recognising the genealogical connection between tradition and religious personal laws, I argue for the need to reinterpret when it is found to be in serious conflict with the universal human values of liberty, equality, ‘fraternity’, or toleration. Such an exercise would interrogate the iniquitous elements of tradition and thus assist in creating an environment for removing the unjust of family law. This reform effort can be undertaken without getting embroiled in the highly polarised debate on the Uniform Civil Code. I undertake this reinterpretation by focusing on intolerance (in Christianity, Islam and Hinduism) toward others — others of a religion or others of the same religion — an intolerance that finds its ultimate justification in religion itself. I believe it is only when the adherents of a religion address the faults within their own religion that religions will cease to be rallying points for violence and contributors to social disharmony. This can be achieved through a reinterpretation of problematic passages in the source-texts of religions, in keeping with the principles of liberty, equality and mutual tolerance. In Part 1 of the article I will briefly describe the classical Christian ‘world-view’ that lasted for more than a thousand years until its gradual disintegration with the rise of modernity in the eighteenth century. Then I will show that the modern secular state arose, at least in part, as a particular European solution to the problem of religious intolerance that existed — and to some extent still exists — within Christianity. The concept of a secular state, as a solution to the problem of religious intolerance, has proved to be largely successful. Yet secularism cannot by itself be the complete answer, for not all societies are secular, and among those that are, secularism is just a mechanism that keeps potentially antagonistic parties apart. There still remains the need to remove the fundamental

keeping

Instead, tradition

elements different

problem, which can be done by reinterpreting the source-texts at the core of a religious tradition so that these texts can no longer be used to justify intolerance. This leads me to discuss the problem of intolerance as it currently exists in Islam and I will argue that the reinterpretation of its tradition with regard to religious war (jihad) and its attitude towards other religions is an urgent requirement if Islam is to peacefully co-exist with other religions in a multi-cultural world. This act of reinterpretation is not as difficult as it might seem, for the meaning of the foundational texts of any religious tradition is the result of an act of interpretation, and more than one interpretation of the text is often possible. Finally, I will discuss the problem of intolerance as it exists, in quite a different way, within Hinduism, and I will again suggest that reinterpretation of its texts in accordance with the values of modernity is an important way to resolve this problem.

foundational I* *

The classical Christian ‘world-view’, by which I mean a complete metaphysical picture of the cosmos and of our place within it, took shape out of the amalgam of the ideas of later Greek philosophy with Biblical monotheism. The Greek philosophers of late antiquity looked upon the cosmos as a descending hierarchy of divine beings. At the apex of the hierarchy, transcendent and remote, was the First God. Below the First God was a Second God who fashioned the cosmos, and below ‘Him’ existed a hierarchy of intermediary spirits whose influence reached down to our earth, which lay at the centre of the cosmos and at the bottom of this divine hierarchy. This world-view was given its final shape by Plotinus (205–270 AD), the last of the great non-Christian philosophers of antiquity and the originator of the tradition known as Neo-Platonism that proved so influential to both medieval Christian and Islamic Taking the diverse strands of thought from the centuries that preceded him, Plotinus wove them into a unified, monistic vision of a single Reality that emanated out of Itself a descending hierarchy of being comprising all that exists. The conception of reality that was characteristic of later Greek thought, that the cosmos is a graded hierarchy of beings, then found its way into Christianity due to a spectacular literary hoax that remained undetected for nearly a In the 6th century AD, four manuscripts were circulated

theology.

millennium.

bearing the name of Dionysius the Areopagite, who was the first Athenian convert of St Paul. It has been accepted since the that the author of these manuscripts was not the first convert of St Paul, but more likely an unknown monk living in Syria during the 6th century AD. However, in spite of doubts in some quarters, these writings were generally accepted as genuine, and they carried considerable prestige as compositions of the first disciple of St Paul. These writings — Mystical Theology, Divine Names, Celestial and Ecclesiastical Hierarchy — blended late Neo-Platonism with Biblical monotheism and they helped to provide the worldview of medieval Christianity. Celestial Hierarchy describes the world as consisting of three main orders of angelic beings, each divided into three divisions, and these nine orders successively from the throne of God. In Ecclesiastical Hierarchy, the writer shows that the celestial hierarchy is mirrored on earth by the hierarchy of the Church with its bishops, priests, deacons, monks and laity. This model of the world has been called the ‘Great Chain of Being’. Its basic idea is that all of Creation, from top to bottom, is unified in a single ‘chain of Being’. Throughout the Middle Ages reality was to be a static hierarchy, where everyone and everything had its proper place in a divinely ordained scheme that descended from God, through the various hierarchies of His angels, then through the various hierarchies within the Church, to the laity, then from mankind to the animal kingdom, and finally to the plant kingdom. The Great Chain of Being was thus a model that linked the entire creation to its Creator in an interconnected, hierarchical and static manner. Thus, while there were discussions about ‘natural rights’, inequality was thought to belong to the natural order of things. The idea of a static ‘Chain of Being’ persisted in Europe into the latter half of the eighteenth century, and even in that century it was invoked to justify the inequalities of the existing social order (Willey 1972: 52f.). But in the course of the 18th century this model finally disintegrated and was replaced by a worldview that arose out of new currents of thought that developed in 17th and 18th century Britain and France. To see the emergence of this modern world-view, we must visit its immediate antecedent, the Protestant Reformation in the latter half of the 16th century, to discern the two crucial contributions of Protestantism to the making of the modern world. We can, perhaps,

Renaissance

Hierarchy heavenly descend ecclesiastical conceived

sometimes hierarchical

evoke the spirit of Protestantism with a single image provided by Martin Luther (1483–1545) himself. Luther, an Augustinian friar, priest, Doctor of Divinity and professor of Biblical theology, was a troubled man. He believed that whatever pious act he might perform was still insufficient to bring him close to God, for the chasm himself, a sinner, and the pure and holy God, was simply too vast. Whatever he did would be insufficient for his salvation. He fasted, he tormented his body, and frequently confessed his sins, but always felt that he was never sincere enough; it was never enough! In his anguish he consulted his trusted superior who advised him to study the writings of St Paul. Gradually he found some relief. One day — and this is our image — sitting alone in the tower of his reading St Paul, the words of Paul’s ‘Letter to the Romans’ (1.17) conveyed a meaning that had hitherto escaped him, and he found his problem solved. The words were: ‘the just shall live by faith’. Luther’s discovery was that by simply believing, he found that he was already saved. He need not do anything in order to be saved, for all action is ultimately futile. Man can only be saved by opening his heart to the Word of God as it stands revealed in and the capacity to do this is itself the sign of God’s gift of grace; so, by believing, a person finds himself in the position of being saved through God’s grace. The consequence of his insight was for it meant that the whole hierarchical structure of the Catholic Church became, at one stroke, superfluous, and he even came to see his own priesthood as unnecessary. All that is required for salvation is the individual and the Bible. Modern Europe was born out of the Protestant Reformation, because with its emphasis on the ‘priesthood of all believers’ it gave new importance to the individual and to the primary role of the individual conscience. This broke down the dependence on for in the Protestant vision there was no need for the Church to act as mediator between the individual and God and to have the sole right to interpret the Bible on the basis of its received tradition. Protestantism gave birth to the concept of the autonomous through its promotion of the idea that every person had the right to read and interpret the Bible for himself. The autonomous individual is the first contribution of the Protestant Reformation to the development of a modern European world-view. The second contribution of Protestantism to modernity was the development of the concept of a secular state. The call for a secular

between

monastery

scripture, momentous,

hierarchy, individual,

state grew out of the response among liberal-minded, mostly intelligentsia, to the violence that engulfed Europe following the Protestant Reformation, as the various rulers of Europe lined up on either the Catholic or the Protestant side. The violence by the emotional commitment to religious ideology was on display everywhere. In Geneva, the Frenchman John Calvin (1509–64) tried to bend the city to his stern interpretation of the Christian religion, and when in 1553 the heretical Catholic Michael Servetus, escaping from the Catholics, made the mistake of turning up in Calvin’s church at Geneva, he was recognised and imprisoned. Calvin visited him in prison to persuade him to renounce his heretical views about the Trinity, but when he he was condemned and burned at the stake for his heresy. In England, the learned Catholic Bishop John Fisher and Thomas Moore were both victims of Henry VIII, their decapitated heads placed on public display after they refused to acquiesce to Henry’s demand that he, and not the Pope, should be recognised as the supreme authority of the Church in England. Thomas Cranmer, Henry’s Archbishop of Canterbury who moved the Church of England into the Protestant fold was himself burnt at the stake in one of the most dramatic scenes of the Reformation, as an act of retaliation during the short reign of the Catholic Queen Mary (1553–58), the daughter of Henry and his first wife Catherine of Aragon. In the last three years of her reign nearly 300 people were burnt as Protestant heretics ( Chadwick 1985: 125). The Thirty Years War (1618–48) was at the outset a religious conflict between Catholics and and ended with the Peace of Westphalia in 1648, leaving Western Europe exhausted by years of violence and conflict inspired by religion. The intolerance and violence unleashed by Christians against one another during the Reformation period provoked the thesis that religion’s role should be excluded from the public sphere and to the private life of the individual. This secular model of the state was notably articulated by the English Protestant philosopher John Locke (1632–1704), whose philosophical and political ideas were of importance not only in his own time but dominated the thought of the following century that saw the emergence of modern nation states. Locke composed his influential treatise, ‘A Letter Toleration’, in late 1685 in direct response to the religious violence that was then engulfing France and threatening to break

Protestant unleashed theologian

refused

compliant

Calvinists confined Concerning

out in England. In October of the same year the Catholic king of France, Louis XIV, made a disastrous miscalculation. Protestantism was everywhere on the defensive, losing ground before a newly Catholicism, and Louis XIV, wishing to rule over a united, Catholic France, was persuaded that the exertion of pressure on the French Calvinists (known as Huguenots) would be sufficient to induce them to renounce their Protestant faith and to embrace Catholicism. He revoked the Edict of Nantes (1598) which had formerly guaranteed a measure of religious freedom to the French Calvinists, and adopted a number of harsh measures against them, such as lodging his soldiers, the dragoons, in Huguenot houses with the tacit license to intimidate and mistreat their hosts so as to ‘encourage’ them to give up their Protestant beliefs. A notable leader of the time, Pastor Claude, left this account of the arrival of the dragoons:

resurgent

Protestant

Kill, kill them if they wont be Catholics! Amid a pandemonium of shouting and blasphemy, they strung up their victims, men and women, by their hair or by their feet to the rafters of the roof, or the hooks in the chimney, and then set fire to bundles of moldy hay heaped up beneath them. They plucked out their beards, and tore at their heads till not a hair was left […] They fastened ropes beneath their arms, and lowered them into wells, pulling them up and down till they promised to change their religion (cited in Hazard 1973: 107f.). Thousands of Huguenots chose death before conversion, thousands managed to flee to the safety of Protestant Holland, while in the south of France the Huguenots rose up in armed rebellion. The result of the revocation of the Treaty of Nantes was that Protestantism a new vigour throughout Europe as refugees gave their accounts of Catholic aggression. The early part of Locke’s treatise on toleration shows his indignant response to the human suffering unfolding in nearby France over the issue of religion:

acquired horrific

…this, I say, I desire to remind them [the churches] of, that the Gospel frequently declares that the true disciples of Christ must suffer persecution; but that the church of Christ should persecute others, and force others by fire and sword to embrace her faith

and doctrine, I could never yet find in any of the books of the New Testament (cited in Montuori 1983: 29). Underlying Locke’s work on Toleration is the conviction that ‘liberty of conscience is every man’s natural right’ (ibid.: 95). Such an idea was supported by the individualistic character of Protestantism with its belief in the right of the individual to reach his or her own of scripture, independent of an external authority. On the assumption of such a principle, the natural right to liberty of conscience, Locke proceeded to insist on the distinct demarcation of the spheres of religion and civil government:

interpretation

For political society is instituted for no other end, but only to secure every man’s possession of the things of this life. The care of each man’s soul, and of the things of heaven, which neither does belong to the commonwealth nor can be subjected to it, is left entirely to every man’s self (ibid.: 85). Not only should people enjoy equal rights in religious matters, but the Church should be excluded from interfering in secular matters: Ecclesiastical authority, whether it be administered by the hands of a single person or many, is everywhere the same; and neither has any jurisdiction in things civil, nor any manner of power of compulsion, nor anything at all to do with riches and revenues (ibid.: 101). Locke saw membership of a religion in much the same terms as a club. He thought of a Church as a ‘free society’, something that a person might be free to join, and should be free to leave, but whilst a member a person must abide by the rules of the society of which he is a member, provided those rules do not transgress their proper bounds and interfere with matters that are the proper domain of civil administration. Thus, the state should accord equal toleration to all religions, Christian or non-Christian, subject to the provision that those religions do not try to interfere in matters of secular administration. Though the issue is complicated by the fact that the same people who administer the secular law may also be holding religious views, we can nonetheless see that his principle of the theoretical demarcation between religious and secular spheres is

joining

clearly expressed, and the enunciation of this principal has been one of Locke’s legacies to modernity. The last decade of the seventeenth century and the early decades of the eighteenth offered Western Europe a much-needed respite following the upheaval of the Reformation. In England a new to religion became popular for a time. This was ‘natural (Deism), i.e., religion without revelation and without dogma. Revealed religion had promised to bring peace and happiness but instead it had brought strife and discord. It was thought that the study of the natural world could provide sufficient evidence to us of the existence of God and sufficient reason for worshipping Him. Locke, too, had said that the works of Nature everywhere evidence a Deity, and it was widely believed that Newton too had succeeded in demonstrating this very fact. An intelligent could be inferred from the observation of the intelligent of nature, as well as by the mathematical laws of physics. From England, Deism spread to France where it found a life-long in Voltaire (1694–1778), one of the great figures of eighteenth century French ‘Enlightenment’. The philosophers of the 18th century Enlightenment were a group of scholars and polemists: on the Continent men such as the Voltaire, Diderot and Rousseau; in Scotland, the sceptic and historian David Hume; and in England the great historian of the Roman Empire, Edward Gibbon. They held views on many matters, but they were united in the principle that no subject, howsoever sacred, should be excluded from the searchlight of rational inquiry and, if necessary, rational criticism. And they were equally united in their common opposition to what they saw as the mischief perpetrated by revealed religion, Christianity.2 They took their inspiration, as well as their values, not from the Christian centuries that preceded them, but from the preChristian era of the Roman Empire, for their champions were the

approach religion’

ensure sufficiently Designer workings champion

diverse philosopher different

2 D’Alembert (1717–83) wrote: ‘The middle of the sixteenth century saw a rapid change in the religion and the disposition of a great part of Europe; the new dogmas of the reformers, upheld on the one side and attacked on the other with that fanaticism which God’s work, well or badly understood, alone can inspire in men, forced both their defenders and their opponents to seek enlightenment; the rivalry stirred up by this great issue extended knowledge in every direction; and the light, kindled amidst error and discord, has shone on the very subjects which seem the furthest removed from these controversies’ Lively (1967: 4).

political philosophers of Rome, men such as Cicero (106–43 BC) and Seneca (4–65 AD) who inspired them with ideas about a Law, unchanging and universal, which could be discovered by the use of reason. The intellectual heirs of John Locke, the of the ‘Enlightenment’, ushered in the modern world by giving it a stock of new ideas. And later, during the time of the revolutions, in America the framers of the American drew upon the thought of Locke in emphasising the principle of individual liberty, while in France the Constituent Assembly of 1789 placed its emphasis upon the Right to Equality among citizens.

Natural philosophers political constitution II* *

Sayyid Qutb (1906–66) looked at the modern, secular world, with distinct aversion. A school teacher who worked for a time in the Egyptian ministry of education, Qutb joined the radical Muslim Brotherhood around 1951, following a two-year visit to the United States where he was shocked at what he saw as its materialism, its moral laxity and its racial discrimination. Growing ever more extremist after his return to Egypt, Qutb was accused in 1954 of involvement in an attempt to assassinate Gamal Abdel Nasser, and was jailed. Released after 10 years, the book he wrote in prison, Signposts on the Way (1978) the most radical of his writings, was published and he was arrested again. On the evidence of the book, he was accused of advocating the violent overthrow of the and its replacement by an Islamic state, and was summarily convicted and executed by Nasser in 1966.

government

Sayyid Qutb’s writings helped to promote Islamic prejudice

against the West, and he is widely considered to be the father of modern Islamic extremism. But surely Qutb was entitled to demand another way of life, a Muslim way, instead of merely adopting the secular European solution to the problem of religiously inspired violence? This solution divided life into two components, secular and religious. And Christianity itself made this division easy to carry out, for unlike Islam, Christianity does not have a religious law that prescribes the day-to-day details of how God requires people to live. Qutb would have had no sympathy with Locke’s view of as something like an English club, where rules apply as long as one chooses to be a member, but one is always free to resign one’s membership.

religion

But if Qutb was within his rights to advocate another way of life than merely accepting the model of Western secularism, there is also a real difficulty with the consequences of Qutb’s world-view, and that applies equally to the radicals and extremists who are inspired by his writings and who seek to create an Islamic state along the lines of the sharia. That difficulty can be seen by the answer radicals would give to the following three questions: what would be the within an Islamic state, of those Muslims who no longer believe in Islam? What would be the treatment of members of other who live within an Islamic state? And what would be the with neighbouring, non-Islamic states? Qutb and like-minded Muslims, as conservative followers of the sharia, should say that there is no freedom to be an apostate from Islam. A member of another religion would not be an equal citizen in an Islamic state, but must accept the legalised discrimination of being treated as a second class citizen, a dhimmi, a so-called ‘protected person’. And the relation of an Islamic state with a non-Islamic state is potential war. The difficulty with modern Islamic extremism is that it cannot simply be explained as a recent aberration within Islam, for and extremists take their inspiration from the teachings of medieval Islamic scholars who saw themselves as custodians of orthodoxy and who were themselves involved in a struggle to the ‘true teaching’ of Islam against all innovations. An intolerant version of Islam, based upon the extreme views of these medieval scholars, has become increasingly dominant since the Wahhabi revolution in Saudi Arabia. The Wahhabis both fund and promote a version of Islam that goes back to the 14th century, and which is anything but inclusive and tolerant. Sayyid Qutb and the Wahhabi movement were both influenced by the writings of the Hanbali jurist and theologian Ibn Taymiyya (1263–1328) and his disciple Ibn Qayyim al-Jawziyya (d.1350). Ibn Taymiyya, in fact, is the real godfather of modern Islamic and extremism, and the modern Sunni terrorist stands in his shadow. The life of Ibn Taymiyya was one long struggle to rid Islam of all the ‘innovations’ that he believed had crept into that religion. He opposed just about everything in the Islamic world of his own time: Islamic philosophy (both falsafa and kalam), Shi’as, monistic Sufis, and he opposed, with force if he could, any practice that seemed to him to deviate from the teachings of the Prophet and the first four of his rightly-guided followers (salafiya). His

position, religions relations

fundamentalists maintain

fundamentalism

opponents at last succeeded in gaining the upper hand, and Ibn Taymiyya, respected though he was for his learning and sincere to his own beliefs, was confined, for the good of the public peace, in the citadel at Damascus, where he died. It might have seemed that Ibn Taymiyya had failed, for he had not succeeded in removing the ‘innovations’ that had crept into Islam. His writings, however, were still read and studied by some prominent families in Baghdad, and four centuries later they became the behind the puritanical version of Islam that Muhammad ibn ‘Abd al-Wahhab (d.1787) imposed on Arabia with the help of his son-in-law and protector Muhammad ibn Saud. The Wahhabis a version of Islam that derived from the puritanical teachings of Ibn Taymiyya. Slowly, in the course of the nineteenth century, the ideas of the Wahhabis gained ground outside Arabia, and their views influenced the radical Salafiya movement in nearby Egypt. And with their petro-dollars the Wahhabis, through both official as well as wealthy private individuals, have exported their ideology throughout the world of Sunni Islam: to Afghanistan, Pakistan, the Central Asian republics, China, Africa, Southeast Asia, the United States and Europe, and they have done this by offering development aid, by funding madrasas and building mosques, and by sponsoring the training of religious scholars (Lively 1967: 49). Their puritanical, and at times militant, version of Islam has gradually entered into the mainstream of Sunni Islam, and whereas it was first looked upon as a heretical version of Islam, it has increasingly been accepted as normative Islam during the course of the 20th century. Ibn Taymiyya claimed to be nothing more than the defender of orthodox Islam, and in his struggle to claim the mantle of orthodoxy he was anything but tolerant towards other Muslims who did not agree with his views, not to speak of members of other faiths. Ibn Taymiyya’s views on other religions, it has been said:

inspiration promoted

Regarding

In Ibn Taimiya’s vision of a true Islamic state there was very little, if at all any, room for the religious minorities. The vision was harsh to the Jews and Christians, who must live in complete social isolation, Muslim contempt and under the humiliating of jizya (Memon 1976: 79).

particularly obligation

Such ideas as these belong to a time when tolerance was not held up as a universal value, as it now is, but in a modern, multi-faith world, mutual tolerance and respect is the only option to maintain

peace. In Islam, irrespective of whether Muslims live in a secular state or not, the need of the hour is reinterpretation of the source material upon which they themselves based their own doctrines, namely the Quran, not reinterpretation of the works of the medieval commentators and jurists like Ibn Taymiyya for their intolerance is unambiguous. In the following discussion on Islam I will describe, using as my example an important concept of classical Islam, namely ‘warring in the name of God’ (jihad), and the efforts at of some modernist Islamic scholars.

reinterpretation

All religions have to struggle with the problem of the exegesis of

their scripture, and Quranic scholars are no different in this respect. When the individual verses of the Quran were compiled, some time after Muhammad’s death, they were compiled into chapters, or suras, of varying length, but the principle of compilation, as to why one verse was placed before or after another verse, was not made clear and the historical context in which the individual verses were to the Prophet is often not evident from the text. Islamic scholars therefore had to resort to methods of interpretation. One such method was to try to provide the historical context that a particular revelation. This method is called the ‘occasions of revelation’ and it attempts to correlate specific verses with actual events in the life of Muhammad (Firestone 1999: 49). But the earliest of such works is four centuries after the death of the Prophet. Apart from trying to contextualise the verses to specific occasions, important technique of textual exegesis in the Quran is the method of abrogation (naskh). In the case of a seeming among the various verses, the method adopted is to determine which among the inconsistent statements is the latest to have been revealed. Once that is decided, the principle of ‘abrogating and verses’ can be utilised: an earlier revelation is abrogated by a later revelation. The abrogated revelation is seen as having been revealed only in response to a specific situation and hence it has only a contingent validity. The later revelation — since it remains unabrogated — must therefore be the final word on the subject and is believed to be the eternally valid revelation. Thus these two exegetical tools, determining the context of the revelation and the principle of abrogation, were utilised to resolve any seeming statements among the verses of the revealed scripture. Let us now see how these principles were applied by classical scholars to the verses dealing with war.

revealed occasioned another contradiction

abrogated

contradictory

In the Quran there are four types of verses concerning war. The first speaks of the avoidance of violence in propagating and defending the faith: Invite [all] to the way of your Lord with wisdom and beautiful preaching; and argue with them in ways that are best and most gracious: For your Lord knows best who has strayed from His Path, and who receives guidance (v. 16.125. Ibid.: 52). The second type speaks of fighting, but only as a defensive action. Here, the most notable verse is the following: Permission is given to those who fight because they have been wronged — God is most powerful for their aid — those who have been unjustly expelled from their homes only because they say: ‘Our Lord is God’ (v. 22.39–40a. Ibid.: 53). The third type is transitional between types two and four, and in these offensive fighting is permitted, but it is made subject to certain restrictions such as avoiding the four sacred months or avoiding fighting in holy places such as the shrine of Mecca. The fourth type of verse allows for offensive warfare without restrictions, of which the most notable is the famous ‘sword verse’: When the sacred months are past, kill the idolaters wherever you find them, and seize them, besiege them, and lie in wait for them in every place of ambush; but if they repent, pray regularly, and give the alms tax, then let them go their way, for God is forgiving, merciful (v. 9.5. Ibid.: 61). The classical commentators tended to see the first three stages as arising out of specific situations. In stage one, during his time in Mecca at the beginning of his prophetic career, Muhammad was in a position of weakness, with few followers, and the revelations told him to avoid physical conflict. In the second stage, after the Emigration (Hijrah) of the Muslim community to Medina in 622, Muhammad was given permission to engage in war, but only in response to aggression. The third stage sees the Muslim community growing in strength, and now permission was given to fight, though observing certain customary restrictions. The final stage sees Muhammad at his most powerful, and v. 9.5 is considered to

abrogate the other verses. In fact, it is said to abrogate 124 verses in the Quran! And it gives the command to attack the unbelievers (ibid.: 50). Verse 9.5, according to the classical is the last and therefore the eternally valid statement about fighting in the Quran. But even such an important verse as 9.5, which is seen as giving Muslims the unconditional command to fight the unbelievers at any time and place, is still subject to one restriction that is provided by another important verse which says:

unconditionally commentators,

Fight those who do not believe in God or the Last Day, and who do not forbid what has been forbidden by God and His Messenger, nor acknowledge the religion of truth from among the People of the Book, until they pay the poll tax (al-jizya) out of hand, having been brought low (v. 9.29. Ibid.: 63). Verse 9.5 allows war to be waged against all unbelievers, until such persons either accept Islam or are killed.Verse 9.29 (the meaning of which is especially not clear) is generally understood as imposing a restriction on 9.5. The restriction is that the ‘Peoples of the Book’ are offered a further choice besides conversion to Islam or battle. These people may choose to retain their religion and follow their customary religious practices upon payment of a ‘poll tax’ (jizya) which symbolises their submission to live under Muslim rule. The classical commentators saw the world in terms of a radical dualism, and the original Arab loyalty to one’s own tribe was into loyalty to the single ‘tribe’ of Islam. The world was divided into two exclusive spheres: Muslims and unbelievers, ‘the land of Islam’ (dar al-Islam) and ‘the land of unbelief’ (dar al-kufr), and the commentators understood jihad to be a religious obligation on the part of the faithful to fight all unbelievers until the latter choose either to accept the superior religion of Islam or to submit to it and live under its jurisdiction in the state of humiliation as a ‘protected person’ (dhimmi). This view, current in medieval Islam, accords quite closely with the viewpoint of the radical and militant Islam of current times, so that we cannot simply pronounce that the views of radical Islam are a deviation from the true, peaceful religion of Islam. In fact, the battle within Islam is finally a battle of interpretation of its source-texts since there is no single authority in Islam to give the final, binding pronouncement on the meaning

transformed

of the Quran. Scholars are free to interpret the texts for themselves, and even though it was declared long ago that the ‘door of individual reasoning is closed’, later scholars like Ibn Taymiyya continued to give their own interpretation of the texts and to argue that their interpretation alone is the true Islam. In case of jihad, we have seen that the Quran is rather ambiguous, and this ambiguity was drawn upon by modernist scholars to propose a more moderate of the Quranic verses. The Modernist School that arose in Egypt in the nineteenth rejected the classical method of interpretation of different stages in the revelation of God to the Prophet, according to which the ‘sword-verse’ (9.5) occurring in the Ninth sura, which was considered the last to be revealed, forms the final stage of God’s revelation and therefore serves to abrogate the other, earlier verses that placed restrictions upon fighting. The Modernists rejected the principle of stages of revelation and they highlighted the importance of those verses that allowed for defensive fighting only, and sought to impose restrictions on the unconditional order to fight given in v. 9.5 by insisting that this verse must be interpreted in the context of the earlier verses contained in the Ninth sura. The Modernists say that a verse such as 2.190: ‘Fight in the way of Allah those who fight you, but do not provoke hostility; verily Allah loveth not those who provoke hostility’ should be understood as providing the and valid reason for engaging in jihad. The meaning of v. 9.5 should be restricted by reading it in the context of the first part of sura Nine which is directed against the Meccans who had broken their treaty obligations with the Muslims, and their treachery should be understood as the immediate cause to fight given in v. 9.5 (Peters 1977: 127). Mahmud Shaltut (1893–1963), a disciple of the Muhammad Abduh, who was appointed to the prestigious position of Shayakh al-Azhar, the head of al-Azhar University in Cairo, the oldest and the most famous institution for religious studies in the Islamic world, wrote a book entitled The Koran and Fighting (quoted in Peters 1977: 75) in which he argued that the purpose of jihad is only to defend the Islamic state against outside aggression. It is not to be interpreted as an aggressive act, for its aim is neither to seek to propagate Islam by bringing the world under its sway through an act of aggression nor to exterminate unbelief. Rather, he argued, the normal relations between an Islamic and a non-Islamic

interpretation century interpretation

normative Modernist

state are peaceful co-existence, and it is the defensive verses that show the only legitimate reason for jihad. The Modernists urge that the propagation of Islam should take

place by study, reflection and contemplation, free from any external compulsion whatsoever, and they emphasise peaceable verses as 16.125: ‘Invite [all] to the way of your Lord with wisdom and preaching; and argue with them in ways that are best and most gracious…’ ( Firestone 1999: 52). Interestingly, it seems that this verse, which prescribes a non-militant approach to the spread of Islam, was never cited by any classical commentator as formally abrogated by the notorious Sword Verse, but rather it was simply passed over (ibid.: 53). Another important statement in the Quran is v. 2.256: ‘There is no compulsion in religion’. According to the classical commentators, this verse was revealed as universally valid and prohibited coercion but, in the manner with which we are now familiar, it was abrogated by later verses, notably by the Sword Verse. Only in the modern period have scholars taken a different approach, and some have argued that v. 2.256 is itself a late verse, revealed after the conquest of Mecca and the subjugation of the Arabian peninsula by the Muslims, and so not only is it not abrogated but it abrogates the other, aggressively militant verses ( Friedmann 2003: 103). The Modernist approach, whether of Abduh or Shaltut in Egypt, or of Sayyid Ahmad Khan (1817–98) in India (Smith 1972: 14ff), is an attempt to forge a new tradition of interpretation that is in harmony with modern values such as religious tolerance. I submit that this type of hermeneutic is the way forward for Islam. The intolerant views of Ibn Taymiyya and his modern supporters must be left in the past and the interpretations of the Moderates, such as those advanced by Shaltut, should become normative for the Islam of the future.

beautiful

I* *I The two great religions, Christianity and Islam, both exhibit a highly developed ethical code, such as with regard to less fortunate of society, but these two religions also reveal a flaw (that is ultimately traceable to their common Jewish parent) namely an implicit intolerance of other religions. In Hinduism, the problem of inequality and intolerance does not find its expression directed against the members of other faiths or against the members

members primarily

of one’s own faith who hold a different theological position, rather the problem of inequality and intolerance is directed inwards and downwards, towards those at the bottom of the social hierarchy on the basis of caste (varna), and it manifests most clearly in the justification for the mistreatment of shudras, women, and others who are even lower on the social scale.

theoretical

Hinduism displays an inner contradiction of tradition, a peculiar

type of paradox whereby its religious texts, and sometimes even the same text, offers an argument for accepting the complete theoretical equality among living beings, not so much as a natural right like in European thought, but through a metaphysical revelation. But then it also proceeds to apply a radical form of discrimination against human beings based upon an interpretation of the division of castes. We will see that this inner contradiction occurs also in Manu, the earliest and best known of the literature known as dharmashastra, but let us first ascertain that the Hindu scripture does reveal a principle that can be used as an argument for fundamental equality. In the Isha Upanishad of the Shukla Yajur Veda we find the following, well-known, mantra:

metaphysical

He who sees all beings in the Self alone, and the Self present in all beings, feels no hatred on account of that [realisation] (6). And in the Bhagavad Gita we find the development of the same message as one of its principal teachings.3 In the Manusmrti too we find the same idea presented towards the conclusion of the treatise: He who through his mind sees the Self in all beings goes to equality with all and enters Brahman, the highest. (12.125)4 Whatever interpretation is placed upon these texts according to the panorama of Hindu theological views, all teachers would have to accept that the texts reveal that the Divine is present within all 3 For example: ‘The wise see the same [Reality] in a Brahmin endowed with learning and humility, in a cow, in an elephant, in a dog and in a dog-eater.’ (5.18); ‘The Yogi sees the Self existing in all things and all things in the Self; everywhere he sees the same.’ (6.29); ‘He who sees the same [Reality] everywhere though the comparison of [things] with himself — and applies this even in matters of happiness or sorrow — is considered to be the best Yogi.’ (6.32); ‘He who sees the supreme Lord present equally in all beings, the imperishable among the perishable, sees truly!’ (13.27). 4 Also 12:91 and 12:119.

living things, as is clearly said by Krishna in the Bhagavad Gita: ‘I am present in the heart of all’ (15.15). The presence of God within all beings offers a metaphysical basis to develop the argument for the equality of all living things. Some texts go so far as to call this divine principle the true ‘Self’, and this makes the same point even more explicit: as all living things (human as well as non-human) share the same divine ‘Self’, they must all be fundamentally identical in essence, and so an equality of behaviour toward ‘others’ ought be the logical consequence of this revelation. However, the Hindu tradition often does not draw this in terms of practice, though the inner contradiction between a revealed metaphysical equality and the intolerant discrimination based upon caste (varna) and notions of ritual purity is sometimes acknowledged by tradition itself. We can see an example of this in the best-known among the various legendary accounts of the life of Adi Shankaracharya, the fourteenth century Madhaviyaa Shankaradigvijaya. The story is as follows: while staying at Varanasi, the sanyasin Shankara is proceeding in the company of his towards the Ganga for his prescribed midday bath when he sees a Candala (antyaja; untouchable), the lowest type of man, by four dogs, coming along the path. Shankara calls to the outcaste to move away, but instead the Candala confronts Shankara, saying: ‘It is strange that hundreds of Upanishad reveal the true nature of the “Self”, as undivided in all beings and ever pure, but you persist in the notion of difference’ (Srimacchankaradigvijaya 1972: 71, v. 26). The outcaste offers some further select criticism before saying:

conclusion

disciples accompanied statements

O best of sages, how is it possible that you persist in this false view: ‘I am pure, a twice-born’, ‘you are a dog-eater, get away’, the one, ancient Purusha who is present in all bodies, Itself bodiless and whole? (Ibid.: 71, v. 30) Even after gaining [the true] knowledge, and awake to the path of liberation, [your] desire to benefit people is nothing. Alas, even the great sink down into Indra’s net across the gaping hole of Maya! (Ibid.: 72, v. 32)

disregarding

Astonished, Shankara acknowledges his error and calls the Candala his guru for reminding him of the Truth (Ibid.: 70ff; trans. 1978: 61ff.).

The power of the episode appears to be mitigated somewhat when the Candala turns out to be Lord Shiva in disguise, but actually this only serves further to heighten the message, for now the message of equality is spoken by Lord Shiva himself, but it was a message that tradition tended to ignore, as we shall see. A passage in the Purusha Sukta (Rg Veda, 10.90) provides the most frequently cited canonical foundation for the fourfold of Hindu society. And, ultimately, it is the authority of the Veda that provides the justification for the division of society in this manner. This famous Vedic hymn imagines God in a cosmic form that is offered by the gods as the material in a primordial and the entire Creation comes forth as a result of this sacrifice. One mantra of this hymn mentions the origin of the four classes of society:

classification

sacrifice,

The brahmana was His mouth, the kshatriya was made into His two arms, the vaishya was His thighs, and the shudra was born from His feet (verse 13). While this passage is hierarchical, we should note that the passage simply speaks of the origin of the four classes from the Cosmic Purusha (Cosmic Person), but it does not in itself discriminate between the classes in terms of their superiority or inferiority. For such between the classes we have to look elsewhere, to other Vedic statements that make a fundamental distinction between the first three groups who are entitled to participate in the Vedic culture and to perform its ritual acts, and the shudras who are excluded from that religious world. The Taittiriya Samhita, elaborating upon the idea of the abovementioned Purusha Sukta verse, says that from the mouth of the Creator arose the foremost group: Agni among the gods, gayatri among Vedic meters, brahmana among men, and the goat among animals; from the chest and arms of the Creator arose Indra among the gods, tristubh meter, kshatriya among men, and sheep among the animals; from his belly the Creator emitted the Vishva Devas among gods, jagati meter, vaishya among men, and the cow among animals; and from his feet he emitted anustubh among meters, shudra among men, and the horse among animals. The passage then goes on to say: ‘Therefore the shudra is unfit to perform a sacrifice, for he was emitted along with no gods’, and the

discrimination

text proceeds to imply that the role of the shudra is simply service.5 The reason why the shudra is considered unfit to participate in the Vedic religion is because he has no god to whom he can sacrifice.6 However, in the Purusha Sukta (verse 15) it is said that, like the shudra, the earth also arose from the feet of the Creator, and the Brhadaranyaka Upanishad (1.4.13) states that after the Creator emitted the class of kshatriya gods such as Indra, he then the class of vaishya gods such as the Vasus, Maruts and Vishva Devas, and following that he emitted the shudra deity which is the Earth. Therefore from these two texts, the Purusha Sukta and the Brhadaranyaka Upanishad, we can argue that the shudra does, indeed, have a deity, namely the Earth (Smith 1994: 89, 98). Even though this deity is also sometimes linked to the vaishyas, it is evident that the shudras, too, can be seen as having a deity, to whom they can sacrifice, and in order to offer sacrifice and recite mantras they ought to receive initiation in the Vedic religion. Thus one can make a case for the inclusion of shudras in the Vedic religion from the Veda itself, just as a case has been made out for their exclusion by reasoning from the absence of a positive assertion, for unlike in the case of the other classes, the Veda does not speak of any season when a shudra should receive initiation (upanayana) into the Veda (Kane 1974: 156). An argument may be developed either way. Reason needs some ground from which to proceed, but reasoning is a servant that can be employed for any task, good or ill; it can be used to justify some non-rational motive or even to support a simple prejudice. The exclusion of shudras from the Vedic religious life was not always quite as definite as it was later made out. The Mimamsa Sutra of Jaimini (6.1.25–38) contains a debate as to whether the shudra is entitled to offer sacrifices. Jaimini opposes the proposition, but he cites the opinion of the respected Acharya Badari for the case that shudras are entitled to perform Vedic sacrifices. P.V. Kane cites the Bharadvaja Shrauta Sutra which says that, in the opinion of some (eke), all four classes can maintain the Vedic sacrificial fire (Kane 1974: 157). By the time of the Dharmasutras (c. 600–300 BC), and the still later Dharmasastras (300–900 BC)

emitted

affirmative

5 Tai. Sam, VII. 1.1.6, Kane, vol. 2, pt. 1 (1974: 34). The passage is translated in full in Smith (1994: 69). 6 This is also the reason given in thePancavimsa Brahmana, 6.1.6–11, cited in Smith (1994: 66), and the Tandyamanabrahmana, VI.I.II, cited in Kane (1974: 34). Gayatri, tristubh and jagati are vedic meters; Vishwa Devas are a class of gods.

of which the earliest and the most highly venerated of all was that of Manu, the exclusion of shudras from the Vedic religion was Manu (1.92) interprets the Purusha Sukta passage in such a manner as to justify the exclusion of shudras on the basis of their inherent ritual impurity. His argument is that Brahma declared that, in offering a sacrifice, the purest parts of the sacrificial animal are those above the navel, and therefore in the primordial sacrifice of the Cosmic Purusha the brahmana class is the purest since it emerged from his purest part (the mouth), while the kshatriya class is pure since it emerged from his arms, but the vaishya is lowly and the shudra is the lowest in the scale of ritual purity. Such an of the Purusha Sukta passage provides the theoretical for the purity of the brahmans and the impurity of the shudras and the consequent exclusion of shudras from the Vedic religion. We may note, in passing, that Manu’s justification of the purity of the brahmana class for the reason that they emerged from the mouth which the purest part of the body, is based solely upon a notion of purity; whereas, scientifically speaking, such an would surely be hard to justify. By the time of the Manusmrti it was settled that the shudra can have only one birth, his physical birth, and unlike the other three classes the shudra was not entitled to a second birth through the sacrament of upanayana which entitles him to study the Veda and to perform its rituals. In the later period of the great Vedanta acharyas, Shankara (8th century) and Ramanuja (11th century), the exclusion of shudras from the Vedic religion was accepted as a fact, though Shankara does point out that shudras can achieve the same spiritual goals as the twice-born, only that they cannot achieve that goal from the primary source, the Veda, but by hearing the teachings of the Itihasa and Purana. In the Apashudraprakarana of the Brahma Sutra there is no longer any debate about the competency of the shudra for Vedic initiation as there was in the earlier Mimamsa Sutra, and Shankara and Ramanuja cite identical texts from both the Dharmasutra and Manusmrti prohibiting shudras from the Veda.7

complete.

interpretation justification

metaphorical argument

directly

studying

But though it is clearly discriminatory to exclude shudras in this

way, the authors of the Dharmasutras and the Dharmashastras (such 7 Both Shankara and Ramanuja cite three verses from Manusmrti, 4.80, 10.4 and 10.126. Each also cites the same passage from Vasistha Dharmasutra Section 18, and the notorious passage from Gautama Dharmasutra, XII. 4.

as Manu) are not content merely to exclude them, rather they exhibit a distinctly hostile attitude towards them: the shudras role is service, preferably to the brahmana class, and though they must be by their masters, they should be content with left-over food and clothing that is given to them. Further, a shudra has no legal redress against the verbal abuse by a brahmana, whereas a penalty is prescribed on the shudra should he use abusive words against any brahmana. A brahmana may, but ought not, marry a shudra woman (3.15, 17, 19). A brahmana must not teach a shudra (4.80, 81), nor recite the Veda in the presence of a shudra (4.99) and the goods of a shudra servant can be appropriated by those whom he serves if the need arises (8.417). The slaying of a shudra requires onesixteenth the penalty for the slaying of a brahmana (11.127), which amounts, as the next verse tells us, to the same penalty as killing a cat or a mongoose (11.132). In the case of the caste system within Hinduism, the fourfold castes cannot be simply deleted from that religion since it forms a part of the social structure of that religion as revealed in its canonical texts, the Veda. But the relationship the members of these castes ought to be reinterpreted in the light of the principle of an essential equality, so that even while exists, there is no longer any religiously sanctioned against the lowest classes. It is a legitimate practice to steer a tradition towards an that accords with the values and good custom (sadacara) of the current time. We can see in Manu itself the attempt to restrict the eating of meat (5.31–56) and also an attempt to restrict the then current practice of Niyoga (9.58–70).8 And in Manu, too, there is a verse which says that one should renounce something that was considered to be dharma if it is found to be ‘reviled by the world’ (lokavikrustha) and the commentator Medhatithi gives as an that it is no longer permitted to sacrifice a bull or to eat beef since these practices are reproved by the world.9 The Yajnavalkya

maintained

between differentiation discrimination interpretation

example

8 Niyoga is the appointment of a man to beget a child on behalf of another man, preferably his older brother, or the appointment of a woman to allow such a man to beget a child on behalf of her legal husband. Cf. Doniger and Smith (1991: 203). 9 parityajed arthakamau yau syatam dharmavarjitau

dharmam capy asukhodarkam lokavikrustam eva ca (4.176). ‘He should renounce profit and pleasure if they should conflict with religion, and even religion when it results in future unhappiness or arouses people’s indignation.’ (Trans. Doniger and Smith 1991: 90).

Smrti makes the same point.10 And there is also a principle known as kalivarjya, enunciated at the beginning of the Parashara Smrti, which says that particular rules of former times can be considered to be no longer applicable in the Kali Age. This shows that rules that were considered dharma in former times can be discarded at a later time because they ran counter to the prevailing views of society (Lingat 1973: 194). Although the principle of kalivarjya does not allow for the making of positive law, but only for the discarding rules of dharma that are no longer considered appropriate, the of a positive principle of equality is not new to Hinduism, for as we have seen, a metaphysical basis for equality is present in the ancient texts themselves. All that is required is to highlight it.

enunciation Conclusion ****

The purpose of this article has been to argue, not against religion, but against the inequality and intolerance which religion legitimises. We have seen that the European solution to the problem of within Reformation Christianity has been the concept of a secular state, by adopting Locke’s idea of restricting the influence of religion to the private sphere of the individual.The European, secular to the problem of violence in religion, has largely proved A person is not prohibited from private devotions, while no religion is able to dominate the public affairs of state. Of course, the division between the public and private sphere is porous, but in spite of the complexities involved, the modern secular state, founded upon the ideals of liberty, equality and tolerance, and restricting the role of religion to the private sphere, has managed to provide a real solution to the problem of violence inspired by religion. The secular Indian state has also tried to end discrimination directed towards the lower castes of Hindu society. However, it is operating in a society that is not secularised, and therefore the task of religious reinterpretation remains important. Though the secular state is a viable solution to the problem of communal religious tension, with the notable exception of Turkey, most states in the Islamic world are not secular, and many Muslims may not wish to separate the sacred and the secular in the way that

intolerance

solution, successful.

10 Yajnavalkyasmrti, 1. 156, which makes the same point. For the discussion of this, see Lingat (1973: 189ff).

Christianity has been able to do, for Christianity did not have a of sacred law governing the details of everyday life, as is the case in Islam. Therefore the Western ‘secular solution’ may not the sole answer to the problem of intolerance. Something else is required, and that is the removal of the religious causes of through reinterpretation of the source texts, in order to the post-Enlightenment, but now universal, values of liberty, equality and tolerance. When these are made prominent in the sacred texts themselves, then these religions will become greater of peace and will cease to provide justification for the baser emotions that reside within the human heart.

tradition provide intolerance highlight

instruments References ****

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Sayyid Qutb. 1978. Milestones on the Way. Kuwait: International Islamic Federation of Student Organisations. Smith, Wilfred Cantwell. Modern Islam in India. New York: Russell and Russell. Smith, Brian K. 1994. Classifying the Universe. New York: Oxford University Press. Srimacchankaradigvijaya. 1972. Sri Rangam: Vani Vilas Press. The Bhagavadgita. (1948) 1993. Trans. S. Radhakrishnan. New Delhi: Harper Collins. Willey, Basil. 1972. The Eighteenth Century Background. Harmondsworth: Penguin Books.

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the Labour

Prabha Kotiswaran *

A central motivation of this volume of essays is to produce a body of ‘inclusive’ Indian family law. I avail of this opportunity to attempt a radical epistemic break within the field of family law. My article deals with sex work, a worthy ‘dangerous supplement’ to the primary focus of much family law scholarship, namely, the family, typically articulated in reference to the monogamous, heterosexual marriage. The primary goal of my article is to effectuate a methodological shift in the way that feminists think about, and discuss, sex work, one that is animated not by a politics of harm and injury as mandated by the continuing dominance of the radical feminist analytic of sex work but by an aspiration for redistribution. I suggest that insights from socialist feminism are critical in attempting this discursive shift. One such critical input is the theorisation of the relationship marriage and sex work.Towards this end, in the first part of this article I propose three frameworks drawn from socialist within which to explore the complex and nuanced relationship between the economies of sexual labour inherent in marriage and sex work. Based on a critique of these three frameworks, in the part of this article I reflect on the normative blind spots within

between feminism

second *

I thank Duncan Kennedy, Janet Halley, Martha Minow, Kerry Rittich, Fernanda Nicola, Jane Fair Bestor, Philomila Tsoukala, Alvaro Santos, Chantal Thomas, Rajeswari Sunder Rajan and Pradip Baksi for their astute and insightful comments on the article.

Wives and Whores

feminist theory, including much socialist feminist theory, which leads to the invisibility of sex work as a form of labour. I conclude the article by reflecting briefly on the possible implications of treating sex work as a form of labour (the‘work position’1) for family law. This is based on the belief that family law needs to be reconceptualised in order to acknowledge women’s lived experiences. Wivyessis *** Anal for Schema Some Whores: and

In this section I will delineate the multilayered relationship between sex work and marriage. This is not done in the purely instrumental mode of ‘flattening’ the differences between marriage and sex work with the intent of normalising sex work merely because marriage is an apparently legitimate institution or to suggest that women who enter into marriage are affected by false consciousness in their to view marriage as effectively amounting to sex work. Instead, I heed the cautionary note sounded by Rajeswari Sunder Rajan in her observation that ‘the recognition of continuities among women is crucial to any understanding of prostitution, even while we must necessarily attend to the specificities of the phenomenon in our to understand and contend with it as a feminist issue (Sunder Rajan 2003: 118).’ I undertake to analyse the continuities, specificities, and even overlaps, between marriage and sex work, not merely as an end in itself but to interrogate their implications for the regulation of sex work. Much more has been written about the ideological dimensions of the relationship between sex work and marriage than its aspects. While acknowledging that the ideological reinforces the material and vice versa, I focus on the material dimensions of the relationship between marriage and sex work, as reflected at the levels of ideology and materiality, theory and practice, and the background rules that inform the law, and under the shadow of which sexual bargains are struck. Broadly, I see three ways of theorising the relationship between marriage and sex work. The first approach (which I term as the ‘Overlap’ approach) considers the case where the overlap between sex work and marriage is significant. The second

inability

endeavours

material

1 Any operationalisation of the work position will undertake to radically re-imagine the legal and institutional machinery that would regulate sex work as a form of labour through a model of legalisation for the empowerment of sex workers.

Kotiswaran

approach (the ‘Continuum’ approach) is keenly focused on the

continuum along which women sell sex for money with marriage at

one end of it and sex work at the other, but is interested in how the two institutions sustain and reinforce each other in the service of patriarchy. The third approach (the ‘Bargaining’ approach) takes on more directly the conflicting interests of women in these two institutions and explores the strategy for bargaining between wives and whores.2 I proceed to elaborate on each of these approaches which, far from being mutually exclusive, in fact, have much in However, I present a sharp delineation between these ‘ideal’ types purely for heuristic purposes.

common.

Overlap of Marriage and Sex Work In this approach, feminists theorise the overlap between marriage

and sex work as being considerable. This overlap can be articulated in several ways: 1. Definitional Overlap: Here, an expansive definition of sex work is articulated, so that bourgeois marriage is subsumed under it. The best example of the definitional approach is to be found in Kollontai (1977: 237) who I discuss in detail later. 2. Functional Overlap: In terms of the practice of sex work, where a certain mode of the organisation of sex work mimics marriage. Examples would include the malaya form of sex work in Nairobi around the time of World War II, and the sex tour packages in 2 I cannot resist suggesting that these approaches find a promising analogy in the scheme for analysing approaches to the purchase of intimacy offered by Princeton sociologist Viviana Zelizer; cf. Zelizer (2000: 817). The first view is that the sexual and economic realms are ‘Hostile Worlds’ so that ‘such a profound contradiction exists between intimate social relations and monetary transfers that any contact between the two spheres inevitably leads to moral contamination and degradation’ (ibid.: 818); in my scheme this would be the ‘Bargaining Approach’. The second approach is the ‘Nothing But’ approach where ‘intimate relations involving monetary transfers are (a) nothing but another rationally conducted exchange, indistinguishable from equivalent price-making markets; (b) nothing but another expression of prevailing cultural values; or (c) nothing but coercion.’ ibid.: 818; in my scheme this would be the ‘Overlap Approach’. The third approach is Zelizer’s alternative to the first two, and is called ‘Differentiated Ties’ view according to which ‘intimate relations involving monetary transfers include a variety of social relations, each marked by a distinctive pattern of payment.’ ibid.: 819; this would be similar to my ‘Continuum Approach’. But more on commodification will follow later in this article.

present-day Thailand. Here, I discuss the work of Thanh-Dam Truong (1990) in detail. The overlap between marriage and sex work can also be found in prescriptions for wives such as in Brahminical texts that a ‘good wife’s dharma was to be a at work, a mother at mealtimes, and a prostitute in (Sangari 1999: 358)’.3 3. Agential Overlap: This is where an actor within the institution of marriage, namely the wife, engages in sex work or where, within one family, one daughter becomes a sex worker and another daughter a wife. The phenomenon of wives who sell sex seems to be quite widespread in India and they are referred to as women in ‘secret prostitution’ (in Tirupati) and as ‘flying sex workers’ (in Kolkata). As for families daughters to both sex work and marriage, this is common amongst communities that are engaged in customary, that is hereditary, sex work, like the Bedia caste. Here, if the family can afford it, it initiates one daughter into sex work and the other is married off; if not, two or more daughters engage in sex work while the sons in the family get married. This phenomenon was also evident in the dasi communities of south India.4

servant lovemaking

colloquially sending

I will focus here on Definitional Overlap and Functional Overlap because they both exemplify a certain mode of, and moment in, theorising within the canon of socialist feminism. Definitional overlap: Classical socialist feminism Alexandra Kollontai, one of the few socialist feminists with specific views on sex work, attributed sex work to the stark economic reality of women under capitalism, and a culture whereby women expected to be in return for sexual favours instead of in return for their (1977: 265). She defined prostitutes as ‘women who sell their bodies for material benefit’ (ibid.: 262) which included exchanging sex for food, luxury items, or favours in business and promotions at work (ibid.: 270–71). She also defined prostitutes as ‘all those who avoid the necessity of working by giving themselves to man, either on a temporary basis or for life (ibid.: 262).’ Thus, a housewife was

supported labour

3 The overlap of marital/familial, non-marketised sexual services and marketised sex work is also visible in the Kamasutra (Mallanaga, rpt 2002: lxviii, 131–59). 4 Ramamirtammal (1936), where the daughter of a dasi refuses to become a dasi and instead chooses to get married but when she is abandoned by her mother, mother-in-law and husband, is forced to leave her daughter with a dasi (ibid.: 170).

also a prostitute. Instead of waiting for communism to ameliorate these conditions of poverty which led women to take up sex work, however, Kollontai advocated for a proactive role of the state (ibid.: 266). Although the Russian interdepartmental commission for the campaign against prostitution considered the criminalisation of all parties engaged in and benefiting from sex work, following amongst several people’s organisations,5 the option of criminalisation was foregone. Neither sex workers nor their clients would be prosecuted. Instead, full-time sex workers would be treated as labour deserters. A woman who was otherwise employed but in part-time sex work for supplemental income could not be prosecuted either. In other words, ‘A prostitute is not a special case; as with other categories of deserters, she is only sent to do forced labour if she repeatedly avoids work (ibid.: 272).’ Similarly, all third parties benefiting from sex work were to be prosecuted for living off other people’s earnings rather than their own labour. Kollontai’s views on sex work demonstrate that even at the height of the socialist experiment and the founding of the first labour sex work was sought to be eradicated. The sex worker was a signifier for the labour deserter, the corrupter of communist ideals and the impoverished condition of the woman, whether in marriage or in sex work and, contrary even to academic impression (Baldwin 1992: 102),6 sex work was in fact viewed as the very anti-thesis of work.This led in no small part to the erasure of the labour involved in sex work, and points to a larger problem with classical socialist feminism and its lack of a theory of work. Functional overlap: Post-colonial feminist dependency theory Here I focus on certain modes of organisation of sex work that mimic marriage. What is crucial from a theoretical point of view is that feminists engaged in a distributive analysis of sex work focused on the mode of organisation of sex work in a particular context, not necessarily to conclude that sex work was just like marriage but instead to demonstrate how women’s reproductive labour was disaggregated under capitalism only to be reintegrated

discussions

engaged

republic,

historical 5 Considering that these were the post-revolution years, I am unsure of the

governmental status of the agencies mentioned in Kollontai’s speech (such as the interdepartmental commission, the Central Department, the Commissariat of Justice, etc.). Hence I refer to them as people’s organisations. 6 Baldwin (1992: 102) where the author attributes the work position to socialist feminists.

under it. 7 So, for example, Luise White (1986: 256) has how a certain class of sex workers in Nairobi during World War II sold (in addition to sexual services) a short-term rental of the woman’s room and domestic services such as ‘bed space, cooking, bath water, companionship, hot meals, cold meals and tea’ for the period of the customer’s stay.8 This led White to conclude that ‘prostitution in Nairobi, as elsewhere, is domestic labour. In addition to sexual intercourse, prostitutes sold individual domestic tasks, or sets of tasks, that literally reproduced male labour (ibid.).’ In a more thorough exposition of this approach, Thanh-Dam Truong (1990: 194) studied the emergence of the sex industry in Thailand, and advocated the breaking down of the main components of reproductive labour into ‘biological sex (procreation and bodily pleasure) and social maintenance services’ and studying the social relations which organise them. She observes that capitalism and the wage labour process in particular have led to the incorporation of women’s reproductive labour under exchange relations. Although commercial sex predates the emergence of capitalism, ‘this has been intensified and diversified with the penetration of capitalist relations in the area of reproduction.’ with the result that ‘rather than producing only use value, reproductive services in create surpluses that can be extracted by economic agents as well as by the state (ibid.: 197).’ She then goes on to assert that the invisibility of sex work as a form of labour by cognitive and structures has led to an intensification of accumulation in sex work and the formation of a relation of domination and between sex workers and their employers that ‘minimises the

demonstrated

cleaning,

disruption

prostitution

institutional dependency

7 In fact, Truong cautions against this; she argues that the extension of the wages-for-housework campaign to the wages for sex work and the belief that this will have the same consequences for marriage and sex work is inaccurate because, ‘It is important to keep in mind that the relationship between the sexual and social aspect of work is not static and uniform. It is changing and can be diversified, as can its social, economic and political effects on women. It is not possible to equate a housewife with a prostitute on the basis of female poverty and wagelessness. Not all prostitutes are poor, and not all poor housewives enter prostitution ( Truong 1990: 53). This complicates Truong’s placement under the ‘Overlap Approach’. Her approach to the relationship between sex work and marriage would place her under the ‘Continuum Approach’. However, I place her under the ‘Overlap Approach’ because of the of her theory to draw one back, as I have demonstrated, to the ‘Overlap Approach’. 8 White published a book on the topic in 1990; for a review of the book, see Seidman (1993).

reproductive

potential

effects of the wage system as a redistributive measure and

permits the use of force to discipline sexual workers in order to increase

productivity (ibid.).’ Extrapolating this analysis to the international sphere, she in the specific context of the entry of leisure into the division of labour, that ‘peripheral countries play a passive role in providing the social infrastructure and facilities, with limited control over the process of production and distribution (ibid.: 198).’ Another result is the emergence of sex package tours, exposing in turn contradictions in the international reach of capitalism. In other words, capitalism was responsible in the first place for the and commodification of reproductive labour and it is again capitalism that is responsible for the reintegration of these elements of reproductive labour (ibid.: 199). Finally, while she thinks that the recognition of the sex workers’ labour would help in their organisation, ethically speaking, given the inexorable surge of capital not only in developed countries but developing countries as well, its prolific commodification of pleasure and eroticism and the sexual subordination of women that leads to the availability in sexual labour to begin with, suggests that ‘to stop judging prostitution is one thing, but to cease imposing ethical boundaries on the use of sexual labour is quite another (ibid.: 202).’

observes international

fragmentation

The Overlap Approach Evaluated The ‘Overlap’ approach is vital in countering the current influence of radical feminist analysis of sex work, as well as in charting a work position, for several reasons. For one, by asking the provocative of whether there is any difference between sex work and it displaces the exceptionalism with which sex work is currently treated in the realms of discourse and policy. Second, the ‘Overlap’ approach as evident in Kollontai’s writings was indifferent to the various forms of sexual relationships, with no underlying preference for marriage or family.9 For Kollontai, ‘a relationship is harmful and alien to the collective only if material bargaining between the sexes is involved, only when worldly calculations are a substitute for mutual attraction (1977: 271, italics in original).’ Hence ‘where passion

question marriage,

9 Kollontai is in fact critical of even politically aware communists who are reluctant to acknowledge weakening family ties across Russia and who cling on to so-called ‘sacred’ family ties. Kollontai (1977: 274).

and attraction begin, prostitution ends (ibid.: 275). So Kollontai rejected the bourgeois definition of sex work as rendering sexual services for payment. Instead, for her, sex work was a trope for all sex tainted by material considerations, be it in the form of bourgeois marriage (where women sold themselves to their husbands) or the more conventional understanding of sex work, i.e., selling sex on a transactional basis. This then meant that the people’s organisations could not find a logical reason for prosecuting prostitutes while not prosecuting housewives. If prostitutes were labour deserters, so were most housewives. Similarly, the people’s organisations could not punish clients for they would then have to punish most husbands. Thus, sex work had to be viewed merely as a problem of labour and exploitation. 10 Thus, Kollontai’s version of socialist demonstrates how a normative theory of sex that does not distinguish between marital and non-marital sex can only flounder when called upon to penalise non-marital sex, as opposed to radical feminism, which privileges marital sex over non-marital sex by for the criminalisation (even if partial, that is directed at the customer) of sex work. In the process, Kollontai brings marriage back into the debate on sex work and dismantles the public–private (read sex work–marriage) divide that pervades the debate on sex work. This is in contrast to currently influential radical feminist analyses of sex work which view sex work as nothing but sexual violence, while ignoring the exploitation inherent in marriage unless it assumes the form of domestic violence.11 Similarly, Truong offers a reproductive theory of labour which, in its nuanced elaboration on the social and sexual aspects of labour performed by all women, allows us to contemplate the combinations of such female labour that are evident in the

desertion feminism

calling

reproductive

10 Note that clients are not held guilty of labour desertion. I suppose one could have argued that by visiting sex workers, the productivity of clients at work was affected (thought the opposite may have actually been true) or that by visiting sex workers, clients were violating the communist spirit of treating women as equals and with respect. 11 One could argue that radical feminism in its theoretical version would adopt a continuum-based view of sex as violence, be it in marriage or in sex work. When I refer to radical feminism here, however, I am thinking of radical feminism in its activist incarnation, especially in the context of sex work. This lack of denouncement of marriage — unless it involves domestic violence — may be amplified by the fact that many anti-sex work activists also work on domestic violence and often find a striking equivalence between domestic violence and sex work.

institutions of both marriage and sex work.Thus, Truong not only makes sex work appear less exceptional, she successfully the idea of the economic to a feminist theory populated as it was, and continues to be, by the sexual subordination theories of radical feminism. Despite these critical insights of the Overlap approach, it suffers from some serious shortcomings. Although the Overlap approach successfully brings marriage back into the debate on sex work, it adopts a strong moral posture against the exchange of sex for considerations. Thus we find Kollontai’s failure to bridge the affective/productive divide so that any sex tainted by material would be bad sex, although to Kollontai’s credit, she did acknowledge the impossibility of ascertaining for sure whether a relationship was based on mutual attraction or material bargaining when she asked, ‘Where does prostitution end and the marriage of convenience begin? (1977: 272). 12 In effect then, the Overlap privileges uncommodified sex over commodified sex. Second, the Overlap approach exemplified by Kollontai offers a simplistic theory of causation for sex work, namely, the poor economic status of women. However, even in socialist states like Soviet Russia which assumed that rehabilitation and the provision of alternative would solve the problem of sex work, these efforts have met with little success (Waters 1989: 3f.). In the case of the later version of the Overlap approach, although the theory of causation is less simplistic, it suffers from a tendency to over-reach. Thus, we find in Truong for instance, what could be called a version of feminist ‘dependency theory’ although her work was initially limited to a specific discussion of sex tourism in Thailand and she was methodologically committed to a contextual analysis of the social relations of sex work.13 This dependency theory a structuralism of the economic kind, one that forces us to prostrate before the power of global capital. Thus, where of the radical feminist variety permits us little agency in

reintroduces

material considerations approach

employment

reinforces structuralism

12 She asks, ‘Can we really persuade a couple to admit whether or not there is an element of calculation in their relationship? Would such a law be workable, particularly in view of the fact that at the present time a great variety of relationships are practised among working people and ideas on sexual morality are in constant flux? Where does prostitution end and the marriage of convenience begin?’ Ibid. 13 The title for her conclusion to the book is tellingly entitled ‘Sex Sans Frontieres and the Ethical Question’; cf. Truong (1990: 200).

the face of patriarchy, so also post-colonial feminist theory allows for no escape from global capital, even where entire sex industries (even in major Indian cities) belong more accurately to the informal economy, and not to tourism-driven capitalism. This is particularly evident in a variation on Truong’s theory of reproductive labour where Jyoti Sanghera produces a gendered narrative of globalisations — Globalisation 1 or G1 which refers to ‘a masculinised and world of high-technology, global finance, trade and production’, whereas Globalization 2 of G2 represents a ‘feminised menial of sexualised, racialised service involving intimate activities’ so that in the absence of the availability of women in industrialised countries for reproductive labour, women from the third world are being exported for this purpose through the wage contract or contract (Sanghera 1998: 275–76). While this analysis has little to say about poor migrant men engaged in menial labour, more it uses the Overlap approach to de-emphasise the important differences between sex work (wage contract) and marriage. Thus, although the Overlap approach starts with a nuanced understanding of sex work and its relationship with marriage, its preference for anti-commodification of sex and a structuralist theory of causation leads it ultimately to collapse sex work and marriage in a way that is unproductive. This propensity for rehearsing the ‘paranoid of radical feminism on an economic register ultimately leads it to being appropriated by radical feminists. For example, we now find radical feminists who now use their opposition to the of sex along with the idea of dependency theory and capital accumulation under capitalism to recognise the sexual labour in sex work but argue for the abolition of sex work (D’Cunha 1997: 230) as akin to child labour and deserving of abolition. This means the Overlap approach will continue to be used to selectively target sex work but not marriage itself.

integrated economy marriage importantly

structuralism’ commodification

Marriage *** Post-Modern

and

Sex

Work

on

a Continu m:

Feminisms

Feminists who have repeatedly cautioned against collapsing and sex work into each other argue that sex work and marriage indeed form two ends of the continuum along which women sell sex for consideration, and that the law has an important role to play in

marriage

maintaining the poles of the continuum.These feminists agree that patriarchy as a unitary system collectively appropriates the labour of women in both marriage (sexual and social labour) and sex work (sexual labour). It achieves this through the material as well as organisation, for instance by investing in the divides between private and public, affective and productive, moral and immoral of women’s labour. Not only that, this organisation of women’s labour strives towards the optimisation of the appropriation of women’s labour. So, despite the apparently conflicting natures of these two institutions, they in fact reinforce each other in complicated ways. In a study of sexual economies within late capitalism in the of the HIV epidemic, Linda Singer (invoking Baudillard) that a central feature of a sexual economy under late capitalism is that it forms a unitary system, which for its survival, necessarily involves a binary system of regulation. Hence, ‘although the logic of late capitalism would demand an enlargement of erotic and commodities, this logic does not operate seamlessly but finds its limits regarding an oppositional profit logic in terms of which sexual labour, reproductive and erotic, must also remain the only form of labour which is unpaid and uncompensated (Singer 1993: 49).’ The value obtained from this oppositional logic according to her is not merely economic, but also, ideological as well since all forms of uncompensated sexual exchanges, are hegemonised and naturalised to sustain dominant class and gender interests (ibid.). Thus, to Singer (ibid.: 50), ‘prostitution certain(ly) exists, in another sense, on a continuum with other ways of socially organizing and transacting sexual relationships where relationships are already mediated by a logic of profit and loss.’ In some cases such as marriage, the currency used is love, romance and social legitimacy whereas in sex work, it is money (ibid.). Writing in the context of reforms in female domestic labour in the 19th and early 20th century, Kumkum Sangari (1999: 300) notes that patriarchy simultaneously appropriated the labour of women within the household as well as the market. This was achieved by materially organising the unpaid labour of women within the household, while at the same time de-privileging categories of women, which in turn determined the conditions of their paid labour so as to contribute to the process of labour market segmentation as well as class differentiation.Assisting these processes was ‘the consensual construction of binary oppositions

ideological

context observes reproductive

according

certain

between procreative and non-procreative sexuality — good wives and ‘others’ such as widows or prostitutes — creating a hierarchical differentiation of labour and services (ibid.).’ The ideological between marriage and sex work optimised the collective appropriation of women’s sexual labour by delinking sex work from labour and explaining the entry of women into sex work in terms of sexual gratification (ibid.: 358). While sex work was not viewed as a form of labour, interestingly, domestic labour, despite its affective qualities, was viewed as labour. In fact, the optimising logic of ensured, according to Sangari (ibid.: 354), that upon the loss of one’s husband, there would be an immediate redistribution of domestic labour resulting in a fall in the wife’s status within her home accompanied by increased domestic labour and reduced This then paved the way for her entry into the market for domestic labour or sexual labour. Thus, ‘both marriage and unilaterally guaranteed the availability of many women to one man, along a range of fluctuating monetary arrangements (ibid.: 359) while ‘she (the prostitute) too represented the slide from the domestic economy of labour to the market of labour, from customary structures of availability (in which the widow was embedded) to public availability through exchange (ibid.: 358).’ The Continuum approach further emphasises the role of law in maintaining the continuum between the institutions of marriage and sex work. Mary Joe Frug (1992: 1050) proposed that the law as a proxy for patriarchy is organised as a system of rules and discourse that constructs the female body, naturalises it, and renders the female body rule network authoritative. In particular, Frug details three of legal rules, namely, rules that terrorise the female body,14 rules that maternalise the female body 15 and legal rules that sexualise the female body.16 In the case of sex work, this rule system sexualises the female body by criminalising sex work. It terrorises the female

opposition

patriarchy

consumption. prostitution

potential economy

categories

14 Rules that terrorise women inadequately protect them against physical abuse (Frug 1992: 1050). 15 Rules maternalise the female body by rewarding women for ‘singularly assuming responsibilities after childbirth and those that penalise conduct — such as sexuality and labour market work.’ Ibid. 16 Rules that sexualise the female body do so through the criminalisation of certain kinds of sexual activity, support to industries that eroticise the female body and in the course of criminal trials for sex-related injuries against women. Ibid.

body through cultural practices which endanger the female body, including the discriminatory enforcement of anti-sex work laws, the association of sex work with other illegal activities, social against sex workers and the lack of police protection in case of abuse against sex workers (ibid.: 1054). Finally, the rule system maternalises the female body by locating marriage as the site for legal sex, and by linking such marital sex to reproduction (ibid.: 1055). Thus, according to Frug, ‘the legal system maintains a shaky line between sex workers and other women’ to the extent that it pushes some women into sex work by maintaining the legal, systematic of women’s work and the distinction between sex workers and mothers (ibid.).

discrimination

devaluation The Continuum Approach Evaluated

The Continuum Approach offers much promise for a distributive feminist understanding of sex work as it holds both sex work and marriage in continuous conversation with each other by highlighting their differential institutional coordinates without collapsing them into each other or articulating a hidden preference for one over the other. This opens up a space for debating sex work in a way that the radical feminist analytic of sex work does not. Thus, Frug (1992: 1059) while ambivalent about the legalisation of sex work itself, allows for the possibility that sex workers — in demanding legalisaion — might be appealing to a ‘sexualised femininity that is other than a choice between criminalised and maternalised sex or a choice between terrorised and maternalised sex’ thus reorganising the three images of femininity outlined by her. However, in sheer contrast to Frug’s position is that of Singer (1993) which effectively forecloses any such conversation. While Singer the differential legal regulation of marriage and sex work, where the former is rewarded and the latter subject to harassment, exploitation and discrimination, she is also critical of suggestions that exploitation can be eliminated whereas in fact, ‘legality and selective exploitation are certainly compatible, as evidenced by the legal construction of marriage, and the capitalist definition of free employment (ibid.: 56).’17 In arguing that exploitation in sex work

something acknowledges

17 See chapter 5 of the same book for a slightly different take on the issue by Singer. In an analysis of the Baby M case of the 1980s, Singer concludes that the decision had the effect of allowing ‘for women’s bodies to be progressively

cannot be eliminated, however, she relies on the radical feminist critique of sex work to negate the possibility of any choice on the part of the sex worker. Hence, when sex workers argue that they are superior to wives because they can negotiate the substantive and temporal aspects of paid transactional sex rather than committing to life-long unpaid sex on demand (ibid.: 54), she views them as labouring under false consciousness. After all, for one who has that the power of capital lurks everywhere, she cannot but note the irony ‘in the way that the mediation by the economic, specifically the monetary, is linked or recoded in the currency of personal control and autonomy’ (ibid.: 48). Here is an instance where despite the nuanced analysis of the sex work–marriage continuum, the paranoid economic structuralism of socialist feminism dips into radical feminism to dismiss any suggestion for altering the continuum by making sex work legal — a status that marriage already enjoys.

demonstrated

Li*** ELeft and Law cobneromaicsl

Work:The

Bargain

Between

Mar iage

and

Sex

The Bargaining approach is arguably the most intuitive one in the relationship between marriage and sex work, whether in the ‘nod and the wink’ that Chameli (played by Kareena Kapoor) directs towards Aman Kapoor (played by Rahul Bose) in the Hindi movie Chameli (only ‘ghar ka khana’ or home cooked food?, she asks rhetorically); or in the insistence of aristocratic British women in colonial India that the colonial government provide lower class British soldiers with native prostitutes so that they did not molest decent British women (Andrew and Bushnell 1899: 13–14); or the widely held idea amongst sex workers I interviewed in Kolkata that it was only because of them that rapists stayed off the street or stayed happy; or the triumphant revenge of the abolitionist

fathoming expressed

marriages

commodified, i.e., exploited for their use value, while withholding from women any material benefits that accrue from this value, maintaining their status as unpaid whose value can be represented only in entirely mystical terms that carry no entitlements’ (ibid.: 97). At the same time, she does not call for the payment for these services. Instead, her solution is to work towards a situation ‘when women are no longer in the position of having to exchange their reproductive potency for their own economic support or their child’s legitimacy’ (ibid.: 99). If one were to extrapolate this stance towards commodification to the case of sex work, would it be fair to call Singer an abolitionist?

labourers material

wives in the novel Web of Deceit18 who will not stop at assuming the guise of a dasi (slaves) to win their husbands back only to go on to ‘convert’ the dasis to marriage. If these ‘bargains’ are being struck between wives and sex workers on the streets, in brothels and every day and every night and everywhere, how should begin to make sense of them? Acknowledging them as real rather than as symptoms of false consciousness would perhaps be a starting point. I argue further that the debunking of the category of ‘woman’19 and the consequent fragmentation of women’s interests between wives and whores inter se and internally within both these groups of women themselves augurs well for feminist theorising of sex work. I now analyse one such attempt by feminists who have sought to apply the bargaining model of law and economics to wives and whores. Linda Hirshman and Jane Larson (1998) argue that sex workers and wives have historically never been able to adopt a united stance on sex work because sex workers, in the short run, ‘damage the of non-prostitutes [by] bidding down the price of access’ (ibid.: 287). In other words, anti-sex work efforts by non-sex workers could be thought of as ‘collective bargaining’ and sex workers as ‘strikebreakers’. Hence, while non-sex workers might try to act collectively to raise the price of sexual access for men to all women, including sex workers, say by strengthening rape law or an implied contract of concubinage in the case of sex work, they are also known to use law to close off avenues by which men gain access to defectors from collective bargaining efforts (ibid.: 291). Hirshman and Larson thus view laws against sex work as an ‘attempt to close off avenues for sexual access outside the complex social bargains of marriage or other consensual unions’ (ibid.: 260). anti-sex work laws drive up the price of sexual access and affect the availability of sex workers who constitute, in their view, ‘cheap, mostly female sexual labour’ (ibid.). Also, anti-sex work laws are hypocritical in that the two components of sex work, that is, the component or non-marital sex, and the commercial component

bedrooms, feminists

interests heterosexual

requiring However,

sexual

18 The novel is replete with some robust ‘bargaining’ of the part of both dasis and wives over their means of livelihood and male affection, respectively. 19 This debunking has occurred but essentially in the context of intersectionality theory and there too it has been argued that for all its critique of feminist essentialism, intersectional formulations retain a strong ontological commitment to real identities; cf. Halley (1998: 137).

of sex work that is wage labour, are not independently penalised. The lack of consent and the commodification of sex are not adequate defenses in their view, for criminalising sex work.Added to this is the perceived beneficial effect of decriminalisation of sex workers. Hence, Larson and Hirschman argue for removing sex work from the ambit of criminal law, placing it instead within the purview of labour law. However, they also say that selling sex should still be an illegal labour contract, subject to the same penalties as those socially unacceptable and undesirable forms of labour such as sweatshop labour or child labour. ‘Sex is after all special and it a high degree of respect’ (ibid.: 291), they argue, hence their moral discomfort with treating it as work.Finally, abolition is also justified because, in their view, customers derive pleasure from a sex worker’s moral individuality, and sex work results in excessive harm which cannot be reduced by legalisation to levels of domestic violence in marriage.

attending requires violating The Bargaining Approach Evaluated

On the one hand, the Bargaining approach fragments the category of woman which much feminist theory takes for granted. For this reason, it has the potential to demonstrate the vastly varying stakes that different groups of women like wives and sex workers have in the regulation of sex work. In fact, this approach might require that we further differentiate the sub-categories amongst wives and sex workers themselves. This does not mean that we are forsaking the feminist project altogether. For instance, it is totally plausible that, even assuming that sex workers reduce the bargaining power of all women, the strengthening of the rape law or requiring a contract of concubinage (as Hirschman and Larson suggest), or using the of organised labour, could substantially increase the rights of the weaker workers so that the interests of both the stronger that is, wives and that of the weaker workers, that is, sex workers are protected. So, if in fact, certain minimum conditions for sexual access to sex workers were maintained, it would cause married to turn to their wives and increase the latter’s bargaining power vis-à-vis their husbands. However, treating sex as special leads Hirschman and Larson to invoke the politics of harm and injury — which is typical of the radical feminist analysis of sex work — to argue that while for pragmatist reasons, sex work should

strategies workers customers

be decriminalised, it should not be recognised as a form of labour. In this respect, it is not clear how ‘prostitutes could demand payment for work performed under an illegal contract, protest harsh working conditions, or unionise without suffering legal penalty, even though their employment would remain illegal (ibid.: 289)’. In other words, is the regulatory model that Hirshman and Larson suggest different from the current criminalisation of sex work? It then appears that the Bargaining approach of Hirschman and Larson is used merely to mask an abolitionist perspective which, while paying lip service to the interests of sex workers, is more in setting the baseline for negotiation on the part of non-sex workers. Does the game theoretic modeling of the Bargaining then simply amount to a utilitarian result in favour of stronger women, namely wives?

substantially

interested approach Femihevoisrnitensdgt ReT*** Work Sex on

How do these approaches to the relationship between marriage and sex work relate to the broader debate within feminism on sex work? For this, I briefly summarise the state of the debate as I view it. Then, I articulate how I think a politics of redistribution inspired by insights from socialist feminism might initiate a critical intervention in this debate. Over the past several years, the most popular mode of theorising of sex work tries to bridge the bitter divide that has emerged between radical feminists on the one hand, and liberal feminist, sex radicals and sex workers on the other.20 I call this mode of theorising ‘middle-ground’ feminism. Middle-ground feminism supports the rights of sex workers but not the right to sex work; it supports empowering practices within the sex industry but not the institution of prostitution itself; it acknowledges the agency of sex workers but is at a loss to comprehend the nature of labour in sex work; and finally, in terms of policy, advocates decriminalisation in the short term.This form of feminism warrants closer attention for both strategic and normative reasons. Politically, middle-ground feminism, in its governance mode, leads to bad results for

feminist

involved

20 Dichotomies that animate the debate include coercion/choice, violence/work, anti-commodification/pro-commodification, bad sex/good sex, victims/agents, institution/individual, structuralism/liberalism and so on.

sex workers.21 Normatively, it does not have a theory of sex, nor is it willing to address explicitly the question of whether women can or should sell sex for money. Instead, middle-ground feminism the work position on account of the Harm (with a capital H) 22 that is caused to both sex workers and all women by sex work, although I would argue that these harms, even with a capital H, are not unique to sex work. So while they cannot be ignored, they by themselves neither present us with a compelling argument for not treating sex work as labour or for wanting to abolish it. Second, middle-ground feminism is opposed to the work position because of its sheer inability to conceptualise the labour involved in sex work. The very fact that sex workers are being called upon to explain to feminism the nature of labour involved in sex work and why it should be recognised as such, despite the de facto existence of a in sex, leads us to ask what the normative assumptions of feminist theory on sex work are, that have led to the invisibility of sex work as a form of labour? In my view, there are three broad assumptions of feminist theory which explains its inability to consider sex work as a form of labour. First, much feminist work on sex work lacks a theory of sex so that the default position favours mutual, affective, heterosexual, marital sex over any other sex. Second, due to the influence of radical feminism on debates surrounding sex work, much feminist theory on sex work ignores the continuum along which women sell sex for consideration, so that sex work is considered to be more worthy of intervention than marriage unless, of course, marriage involves domestic violence. Third, feminist theory on sex work has a fairly problematic relationship with the material dimensions of sex work

opposes

market

monogamous,

21 For instance, middle-ground feminism often advocates the partial decriminalisation of sex work. However, sex workers perceive the proposed criminalisation of the customer as directly jeopardising their only source of income. Similarly, even the broader agenda for decriminalisation, while taking the state off the backs of sex workers, does little to address the grip of power dynamics of other stake-holders in the sex industry. 22 This Harm (with a capital H) can be further broken down into four harms — the first most obvious harm being the physical, emotional and mental harm and resulting directly from sex work itself; the second harm being the harm arising from the objectification and commodification of women in sex work; the third harm being its gendered reality and its consequent feminisation; and the fourth harm being the harm done to all women because sex work reinforces stereotypes of female availability.

exploitation

in terms of a theory of causation, objectification and class processes, political economy, the economic organisation of the sex industry, and so on. To the extent that middle-ground feminism, which is very popular today, is unable to engage with this critique, I argue that it mires feminist theory in a politics of harm and injury despite its considerable efforts to distance itself from the totalitarianism of the radical feminist analysis of sex work. Given this broad critique of the current feminist theorising on sex work, what are the normative inputs of socialist feminism in the impasse in feminist theorising on sex work and us more generally towards a politics of redistribution? It is fair to say that socialist feminist analyses of sex work have been and even mischaracterised, for a range of historical, political and otherwise unfathomable reasons, in the feminist debates on sex work. Of course, one might argue that at the end of the day, the ‘result’ (in policy terms) of the socialist and radical feminist of sex work would not have differed too much. Still, the modes of argumentation in reaching this end result could not be further apart in some ways. The most significant difference in this respect is the socialist feminist insights into the relationship between sex work and marriage. This is consistently true for the socialist feminists who I have considered in this article, irrespective of whether they adopt the Overlap approach, the Continuum approach or the approach. This is in contrast to the legacy of the radical feminist analytic on sex work which effectively privileges marriage over sex work. The result is that the contemporary feminist debate on sex work has completely dropped marriage out of the debate by treating sex work as an exceptional condition, thus contributing to the international sex panic surrounding the issue of sex trafficking. Assuming that we bring back marriage into the discussion on sex work as articulated by the Overlap, Continuum and Bargaining can we still endorse the work position? If we understand sex work as a form of labour, is the logical conclusion that we campaign for workers’ rights for sex workers? None of the three approaches, despite their nuanced analyses of sex work vis-à-vis marriage, that we make sex work legal because marriage is legal. I argue that the radical potential of socialist feminist insights in this respect is severely handicapped because of an important feature that socialist feminism shares with radical feminism, namely its totalitarian, structuralist theory of power that has little room

commodification,

negotiating propelling overshadowed, analyses

Bargaining

approaches, suggest topdown

for resistance, agency, pleasure or the possibility of fluid bargaining situations between sex workers and other players in the sex industry. In the case of socialist feminism, this is manifested in its extreme characterisation of the economic dimensions of sex work. The with the economic might involve a distancing move, as evident in Kollontai’s resistance to the exchange of sex for material benefit despite her ambivalence as to whether this is realistic. This is characteristic of early socialist feminism. But by the time we come to socialist feminists of the 1970s and 1980s in the West — who campaigned for wages for housework — we find that they were willing to consider selective commodification. The housework of housewives could be commodified but there was no theoretical elaboration of remuneration for sex work, whether performed by housewives or by sex workers. In the more recent work of socialist feminists, although they describe the sexual elements of labour, in their keenness to interrogate the excesses of capitalism, they resort to a deep structuralism which prevents them from addressing the normative question of whether sex work should be viewed as a form of labour. Rather, they take it for granted that sex work cannot be a form of labour. Instead, they warn either that the conquest of capital is complete from which there can be no flight (Singer) or that the third world is exporting reproductive labour to the West and the sexual labour of third world women is transnationalised to aid processes of capital accumulation in the tourist industry (Truong, Sanghera, D’Cunha) despite the fact that in many countries like India, the sex industry largely forms part of the informal sector. Socialist feminism of this genre then not only reiterates the invisibility of sex work as a form of labour, but also leads to a perverse result whereby the differences between marriage and sex work are de-emphasised in the face of the globalisation of capital (Sanghera). Worse still, socialist feminists dip back into the radical feminist analytic of sex work (Singer, Hirshman and Larson) to deny the possibility of any agency on the part of the sex worker. Thus I argue that in order to move towards a politics of it is necessary to retain the novel insights of the socialist feminist analysis of the relationship between sex work and without succumbing to a mode of theorising power, which Duncan Kennedy characterises as ‘paranoid structuralism’ (Kennedy 2001: 1147). This way, we can possibly revive socialist feminism to

relationship

reproductive

becoming

redistribution, marriage

reintroduce a more vigorous and less paranoid idea of the economic to feminist theory in its many fragmented forms — in terms of the internal hierarchies of the sex industry, class processes, varying coordinates for sex work, the political economies of the sex industry,23 and by problematising causation, discourses on and liberal solutions.

institutional trafficking *** theIn

Lieu of a

Position Work

for

Conclusion: Family

Implications of

Law

In this section, I contemplate the implications of the work position for family law24 on the relationship between sex work and marriage. This is not an easy task considering the intense privileging of marriage over sex work, and the radically differentiated nature of each of the categories of the wife and sex worker.25 Still, in the factual scenarios that follow — of the lower class, once-married Hindi sex worker in Sonagachi, Kolkata, a housewife engaged in ‘secret prostitution’, an urban, upper middle class housewife whose husband does not visit sex workers, a lower middle class housewife whose husband visits sex workers and a lower middle-class housewife whose husband does not visit sex workers — I assess the impact of the work position on a triangular set of actors (although there are many more), namely, the wife, the husband and the whore, mediated through their respective class and caste statuses and the varying degrees of their proximity to the institutions of marriage and sex work. 23 As an illustration of the grip of the radical feminists over the debate on sex work, note how when the International Labour Organisation (ILO) attempted to study the sex industry as an ‘economic sector’ in South EastAsia in 1998, radical feminists accused the ILO of advocating a laissez faire approach to sex work and supporting legalisation. Moves like this which includes labeling supporters of legalisation as of slavery or of being liberals with no structural account of power has a effect on any alternate approaches to understanding sex work. 24 The fact-scenarios will demonstrate the relevance of all three approaches to the relationship between sex work and marriage. While I think all three approaches yield rich results, the ‘Continuum Approach’ in my view fares best at keeping both marriage and sex work central to the debates on sex work. 25 I realise that in the process I am ignoring entire sexual economies other than sex work and marriage available to men and women through rape, sex harassment, sexy dressing, erotic dancing, adultery, consensual non-marital sex, cohabitation, abstinence and so on.

supporters disciplining

pornography,

Consider the example of a sex worker from the relatively poor and backward rural district of Chattisgarh in Madhya Pradesh. Her sexual labour is most likely appropriated by the institution of at a young age. She may have been promised soon after birth through the custom of ‘gowna’ to a boy from her village or a neighbouring village. Once the girl attained puberty, she would go to live with her husband and in-laws. Typically, after a few years of and usually the birth of a child, there would be problems in the marriage. She would not want to return to her parents’ home. With little education and job prospects for independent livelihood, she was vulnerable to being approached by ubiquitous traffickers who seem to keep track of single women in their communities. Lured by a decent job in the city, and anxious to support her parents and her children, she travels to the city, only to find herself in sex work. She stays in sex work because it is the only way for her to support her children. Family law is entirely implicated in this situation.First, it is difficult to justify laws against child prostitution when laws against child marriage are under-enforced. Second, assuming that our sex worker is an adult, is unlikely to enforce any claims to support for herself or her children upon the breakdown of her marriage either from her husband or the state. Also, she has no claim to remuneration for the reproductive labour (both social and sexual) that she has performed for her husband and his family for the past several years leading to her destitute situation that makes sex work a necessity. If sex work were to be recognised as a form of labour, it is possible that she can be assured of her share of her earnings during her time in the sex industry so that she can capitalise on her youth and save enough money to return to her village to a life of relative affluence or self-sustenance through a small business at the very least. The regulated conditions of work in sex work and the freedom it affords, however circumscribed, might also be more when compared with an abusive home situation. So clearly, the work position as well as family law has much to offer this class of women whose vulnerability makes for an easy slide from marriage to sex work. Let us now consider the example of the housewife who engages in ‘secret prostitution’ to supplement her husband’s income. The of secrecy refers both to the social sanction against extra-marital

marriage marriage

extremely

financial

appealing element

sex as well as the fact that the husband does not know about his wife’s sex work. This secrecy then permeates the work and psychic lives of the secret sex worker. Under such circumstances, any of sex work as a form of labour might lead to an improvement of her working conditions. Still, increased state scrutiny of the sex industry might well expose her secret means of livelihood to her family and society in general. Hence she may find the work position undesirable. On the other hand, if based on the work position, her reproductive labour begins to be remunerated she may not have to do sex work in the first place. Let us now consider the hypothetical case of the urban, upper middle class wife. Her husband does not visit sex workers. She may or may not be in a happy marriage but for her, the institutions of and sex work couldn’t be further apart. Sure, the sight of driving through Mumbai’s red light areas or watching police raids of cagelike brothels on television from time-to-time may be an aesthetic irritant. Still, if one were to take seriously Frug’s rule system and Kennedy’s thesis of the tolerated residuum in the context of sexy dressing, both she and her husband benefit from the criminalisation of sex work to the extent that the law privileges marital, procreative and affective sex and does not terrorise or sexualise her in the way that it does with sex workers. If sex work were to be recognised as a form of labour, it is quite possible that she and her husband will continue to stay indifferent to the sex work laws and will not in any case feel deprivileged. On the other hand, it is possible that she might feel threatened because the deterrent effect of the criminal law had earlier stopped her husband from buying sex and risking their middle class status. In this scenario, her bargaining power vis-à-vis her husband in their marriage might actually be reduced. If, on the other hand, based on the work position, her reproductive labour is remunerated, her bargaining power within the marriage especially when confronted with her husband’s infidelity would be strengthened. Alternatively, we could consider a lower middle class housewife whose husband visits sex workers. On the face of it, the legal of sex work as a form of labour might make little difference to her, as she is reconciled to the lack of fidelity on her husband’s part. But then again, her husband, who regularly visited sex workers, might be put off by the higher costs, both financial and erotic, of the regulation of conditions under which sex work must now be

recognition

marriage

recognition

performed. Under such circumstances, he might turn more to his wife improving her bargaining position in the marriage. Finally, we have the case of a lower middle-class housewife whose husband does not visit sex workers. The work position may appear to have no direct bearing on her marriage. However, recognition of the sexual labour of sex workers might lead to an intense desire on her part to crave recognition of her reproductive labour. for her reproductive labour will improve her bargaining power within the marriage, and in case of an unhappy marriage ease her potential exit, without her having to bet on the vagaries of divorce court proceedings. Consider the letter written by one such Seema Nandy, to the editor upon hearing the Kolkata Mayor’s promise to issue licenses to sex workers:

Remuneration housewife,

During the last thirty-three years of my married life, bereft of any recognition from the biological father and from the father-in-law, I could not understand throughout the whole of my life where do I belong, where is my home. Till date, I cry pretending that the tears were caused by smoke. Now if our Mayor considers the case of innumerable housewives like me, by conferring upon us the status of ‘worker’, then we shall be highly obliged. I am a housewife. I have pleased/entertained all the members and relatives of my in-laws, through domestic labour, for the last thirty-three years. I have tried to raise my children as good citizens. That apart, I had to do bone-crushing work day in and day out, while trying to divine the psychological conditions and needs of almost everyone. Even then there was no escape from numerous humiliations and insults. Parents told me that after marriage the house of the in-laws became my own home. Yet my husband-deity tells me on any slim pretext, ‘I shall throw you out of the house’. (Do mothers sometimes resort to female foeticide because they swallow so much insult?). When the body revolts after the toils of a long working day from dawn to night, one has to endure the caresses of the husband, like a corpse enduring the beaks and claws of a swooping vulture. My request, sir, if you show a little sympathy towards these workers ‘packaged as housewives’, then at the end of our sleepless nights we shall no more be constrained to think that, ‘at the end of the day, the sacrificial fire of dejection has turned

housemaids-cum-sex

everything into ashes’. My slogan on behalf of the housewives: ‘We labour, that is why we eat, A license is what we need’. Seema Nandy, Kolkata 700 09226 Thus, sex workers may after all be more than strike-bearers. If Nandy’s letter is anything to go by, one might even be tempted to valorise them as the vanguard. Whether the sex worker is a or a member of the vanguard, there is a conversation to be had here but only if we disavow a feminist politics of sex work based exclusively on injury and harm.

strikebreaker References ***

Andrew, Elizabeth W. and Katharine C. Bushnell. 1899. The Queen’s in India. London: Morgan and Scott. Baldwin, Margaret. 1992. ‘Split at the Root: Prostitution and Feminist of Law Reform’, Yale Journal of Law & Feminism, vol. 5. D’ Cunha, Jean. 1997. ‘Prostitution The Contemporary Feminist Discourse’, in Meenakshi Thapan (ed.), Embodiment: Essays on Gender and Identity. Delhi: Oxford University Press. Frug, Mary Joe. 1992. ‘A Postmodern Feminist Legal Manifesto: An Draft’, Harvard Law Review , vol. 105. Halley, Janet E. 1998. ‘ Gay Rights and Identity Imitation: Issues in the Ethics of Representation’, in David Kairys (ed.), The Politics of Law: A Progressive Critique. New York: Basic Books. Hirshman, Linda R. and Jane E. Larson. 1998. Hard Bargains: The Politics of Sex. New York: Oxford University Press. Kollontai, Alexandra. 1977. ‘ Sexual Relations and the Class Struggle’, in Selected Writings of Alexandra Kollontai . Trans. by Alix Holt . London: Allison and Busby. Kennedy, Duncan. 2001. ‘A Semiotics of Critique’, Cardozo Law Review, vol. 22. Mallanaga, Vatsyayana. rpt 2002. Kamasutra. Trans. by Wendy Doniger and Sudhir Kakar. Delhi: Oxford University Press.

Daughters

Discourses

Unfinished

26 This letter appeared in ‘Letters to the Editor’, Anandabazar Patrika, 6 April 2004 in response to the Kolkata Mayor’s election promise on 11 March 2004 that he would consider issuing licenses to sex workers after the parliamentary elections were over. I am very grateful to Pradip Baksi for drawing my attention to this letter and for translating it from Bengali to English.

Ramamirtammal, Muvalur. 1936 (2003). Web of Deceit. Trans. by Kalpana Kannabiran and Vasanth Kannabiran. Delhi: Kali for Women. Sangari, Kumkum. 1999. Politics of the Possible: Essays on Gender, History, Narratives, Colonial English. Delhi: Tulika. Sanghera, Jyoti. 1998. ‘ Poverty, Patriarchy and Prostitution A Study of the Sexual Labour of Nepali and Thai Women in the Sex Industry in Asia’, unpublished Ph.D. dissertation, Department of Sociology, University of Berkeley. Seidman, Gay W. 1993. ‘ The Comforts of Home: Prostitution in Colonial Nairobi, by Luise White’, Signs, vol. 18(3). Singer, Linda. 1993. Erotic Welfare, Sexual Theory and Politics in the Age of Epidemic, (eds) Judith Butler and Maureen MacGrogan. New York: Routledge. Sunder Rajan, Rajeswari. 2003. The Scandal of the State: Women, Law and Citizenship in Postcolonial India. Durham: Duke University Press. Truong, Thanh-Dam. 1990. Sex, Money and Morality: Prostitution and in Southeast Asia. London: Zed Books. Waters, Elizabeth. 1989. ‘Restructuring the “Woman Question”: Perestroika and Prostitution’, Feminist Review , vol. 33. White, Luise. 1986. ‘ Prostitution, Identity, and Consciousness in Nairobi during World War II ’, Signs, vol. 11(2). White, Luise. 1990. The Comforts of Home: Prostitution in Colonial Nairobi . Chicago: University of Chicago Press. Zelizer, Viviana A. 2000. ‘The Purchase of Intimacy’, Law & Social Inquiry , vol. 25.

Tourism

Savitonmg Cus3 Promoting or Incest? PostIndependence Marriage Law and Dravidian Marriage Practices *

Patricia Uberoi In this article I seek to bring both a social anthropological and a feminist perspective to bear on certain provisions of the Special Marriage Act of 1954 (SMA) and the Hindu Marriage Act of 1955 (HMA), 1 and on the legislative debates surrounding their enactment and amendment. In particular, I look at the Acts’ provisions regarding ‘prohibited relationships’ — what anthropologists might term rules of exogamy — violation of which, under either Act, renders a marriage ‘null and void’. While feminist authors have been quite vociferous in their of the political horse-trading that preceded the enactment and amendment of the personal law regime of independent India, the various provisions of the laws concerned, and their mode of application and adjudication, in fact the ‘prohibited relationships’ clauses have attracted negligible attention as a ‘gender’ issue. Partial

critique *

I

am

grateful to Amita Dhanda and Archana Parashar for their encouragement and I have rehearsed these ideas in two earlier papers (Uberoi 2002 ;

helpful suggestions. 2005],

1 The Special Marriage Act, No. 43 of 1954; The Hindu Marriage Act, No. 25 of 1955.

Saving

Custom or

Promoting

Incest?

exceptions are comments by B. Sivaramayya, to whose gendersensitive work on Indian personal law we are all much indebted, and by feminist legal sociologist, Flavia Agnes.2 In both these however, the concern was with what we might call the effective ‘de-secularisation’ of The Special Marriage Act by a 1963 Amendment which (in line with The Hindu Marriage Act) allowed of a violation of the ‘prohibited relationships’ provisions of the SMA such that ‘where a custom governing at least one of the parties of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship’.3 It was understood that this back-door concession to ‘custom’ was made in the light of the existing marriage practices of many communities in South India which permit — nay, even prefer — marriage between certain categories of close kin that otherwise fall under the definition of ‘prohibited relationships’ in both Acts.

instances,

permits

I begin by outlining, in a rough-and-ready way, the formal features

of the northern and southern kinship systems, and the made in recent social scientific and feminist literature between the respective systems of kinship and marriage and various social and demographic indicators of women’s ‘status’ in society. I then consider the tortuous process of the enactment and amendment of the ‘prohibited relationships’ sections of the SMA and the HMA, and the positions articulated in the process. Finally, I consider, inconclusively it must be said, aspects of the rather sparse case law in this particular area of the marriage laws. The overall intention is simply to draw attention to a ‘gender’ dimension of the legal regulation of marriage which is not generally seen as meriting feminist scrutiny.

connections somewhat

contemporary North ****

and South Indian Kinship

Anthropologists have long recognised that North and South India exhibit two qualitatively distinct systems of kinship and marriage. 2 See Sivaramayya (1978); Agnes (2005). Agnes’s position on this issue (2005: 117–18) is not exactly transparent. On the one hand, she deplores the implied dilution of the progressive and secular character of the SMA; on the other, she concedes that the original ‘prohibited relationships’ clause reflects the practices (and kinship ideology) of the ‘dominant Hindu upper castes’, in contradistinction to ‘the customary practices of several lower castes, as well as … Muslims, Christians, Parsis and Jews’ in India. 3 Section 2, Act 32 of 1963.

Uberoi

These differences roughly parallel the subcontinental distribution of two major language families — the Indo-Aryan (or Indo-European) and the Dravidian — and are encoded, mutatis mutandis, in the structure of the respective kinship vocabularies.4 Among other features, kinship terminologies of the Dravidian type make a between what anthropologists term ‘parallel’ and ‘cross’ cousins (the children of same-sex siblings versus those of opposite sex siblings), and conflate the terms for mother’s brother, father’s sister’s husband, and father-in-law. These and other features are believed to point to the practice of preferential cross-cousin marriage (that is, marriage of a man with the daughter of either his mother’s brother or his father’s sister), matched by a corresponding on parallel cousin marriage (marriage with the daughter of his father’s brother or mother’s sister). On the other hand, the contrastive Indo-Aryan kinship terminologies class all cousins as quasi-siblings (and thereby unmarriageable), and terminologically distinguish the mother’s brother, father’s sister’s husband and fatherin-law. Indeed, in the region of north Indian kinship, where marriage between close kin of any type is disapproved, marriage is seen as a means to forge new bonds and extend the range of social influence, rather than — as in the southern system — as a means of reiterating and consolidating pre-existing affinal ties. Two women anthropologists, writing in the 1950s and 1960s, were instrumental in suggesting that there might also be an important ‘gender’ dimension to all this‘kinship algebra’, and to the generic distinction thus posited between North and South Indian kinship. In her long standard, but latterly rather neglected work, Kinship Organization in India (originally published in 1953),5 Irawati Karve drew on the evidence of kinship terminologies in the first instance, and the ethnographic record by way of supplement, to four main varieties of kinship organisation in the Indian

distinction

proscription structurally

differentiate

4 The distinctive structure of Dravidian kinship terminologies was first highlighted by Lewis Henry Morgan (1871), one of the founding figures of the discipline of On the hypothesised link between the Dravidian kinship terminologies and the practice of cross-cousin marriage, see the seminal contribution by the famous Cambridge anthropologist W.H.R. Rivers (1907). The idea was taken up subsequently by (among others) Karve (1965; see also excerpt in Uberoi 1993: 50–73); and — from a different theoretical perspective — by Dumont (1953, rpt 1983). On Dravidian kinship in relation to Indo-Aryan kinship, see Trautmann (1981: chap. 3; 1993: 74–90). 5 Karve (1965).

Anthropology.

subcontinent, coordinating with the distribution of language families. The major division, and the chief focus of Karve’s attention, was that between (1) the North Indian or ‘Indo-Aryan’ system, which she saw as continuous with the model represented in the classical Sanskrit legal texts;6 and (2) the southern region of ‘Dravidian’ kinship. these two she posited (3) a ‘Central’ kinship zone with mixed features, covering Maharashtra, Gujarat and parts of Rajasthan through Madhya Pradesh to Orissa, while (4) a non-contiguous ‘Eastern’ zone, effectively a residual category in her scheme of things, included speakers of the Sino-Tibetan and Austro-Asiatic language families. Aside from the features already referred to, Karve pointed to a number of other differences in kinship and marriage practices that may express or entail a moderation of the strongly masculinist evident in North India. For instance, North Indian customary rules of exogamy require not only a ban on marriages within the localised patrilineal descent group, but sometimes extend this exogamous prohibition to cover all co-villagers, whether distantly or only putatively related under the same patronymic, or unrelated (see below);7 in South India, by contrast, intra-village marriage is generally permitted. Thus, in the north, women typically marry total strangers, often at a considerable distance, and take up residence with their husbands’ families, whereas in the southern kinship system women may marry within the kin network, possibly within the same village, and have greater flexibility in regard to post-marital residence arrangements. Add to this the higher of dowry marriage in the north, and you have in that region a family system which is qualitatively and experientially different from that in the south, at least from a woman-centered perspective. Karve’s picture of regional differentiation in kinship practices was further amplified by anthropologist Pauline Kolenda in a series

Between

emphasis completely

thereafter

prevalence

6 An important predecessor in this way of thinking was Sir Henry Sumner Maine (1822–1888), the famous author of Ancient Law (1961), who saw in the kinship regimes of (north) Indian communities a near approximation to the ‘ancient’ stage of ‘patriarchy’ as human society evolved from‘status’ to ‘contract’ (cf. Maine 1895; Uberoi 1993: 8–12). 7 This is the practice termed ‘village’ or ‘territorial’ exogamy in the ethnographic literature. Marriages and liaisons within the village are regarded as heinous and attract strong sanctions. See Chowdhry (1998: 339–42); Hershman (1981: 133–37); Lewis (1958: 160–61).

of papers from 1967. 8 Utilising materials from a number of studies of the 1950s, along with household and other from the 1961 Census, Kolenda sought to correlate the incidence of different household types — particularly the patrilineal joint household — with factors such as caste status, size of and rural/urban residence. To these she added a set of proxymeasures of women’s domestic ‘bargaining power’, referring to the emotional or material leverage that a young married woman might bring to bear on her husband to persuade him to set up house of his patrikin:9 high or low rates of divorce and remarriage; bridewealth or dowry payments; and stronger or weaker ties with the wife’s kin (uxorilaterality versus virilaterality). Kolenda’s studies indicated the higher prevalence of joint households in the northern zone; conversely, factors enhancing women’s bargaining power to be stronger in the south. As she also noted, these regional differences in the prevalence of joint household arrangements to correlate with certain other significant social phenomena that are now widely touted as indicators of ‘social development’.10

ethnographic information

landholding,

independent

appeared appeared Though Karve and Kolenda were chiefly interested in

describing and mapping patterns of family and kinship per se, exegesis of regional differences in family practices has subsequently been coopted to other, and wider, explanatory ends: in the first place, to

explain the ‘cultural’ dimension of regional patterns of demographic behaviour; and, more broadly (but not unrelatedly of course), to explain contrasting patterns of economic and social development and gender empowerment. ‘The main states of India’, Dyson and Moore wrote in an exceedingly influential paper in 1983, can be broadly grouped into two basic demographic regions. In contrast to the north, states in the south and east are by the following: relatively low overall fertility; lower fertility; later age at first marriage; lower infant and child mortality; comparatively low rates of female to male infant and

characterized marital

8 Collected in Kolenda (1987: chaps 1, 2 & 5), a book which was dedicated to the memory of Irawati Karve. 9 Kolenda’s concept of ‘bargaining’ is somewhat different from the interpretation recently given it in the writings of feminist economists such as Agarwal (1994: chap. 2), though substantive features overlap. 10 For instance, the south has more female-favourable sex ratios, higher levels of women’s education, and a greater proportion of women in salaried occupations (Kolenda 1987: chap. 5); see also Raju et al. (1999).

child mortality, and, largely as a consequence, relatively low sex ratios.11 Dyson and Moore related these differences in demographic

indicators — in particular, the regional asymmetry of sex ratios12 — to the different levels of ‘female autonomy’ enabled by the respective family and kinship systems: low in the north, higher in the south.13 A major demonstration of the homology between regional patterns of kinship and marriage and other factors that may enable or

inhibit women’s ‘bargaining position’ in the family and society is offered in economist Bina Agarwal’s densely documented A Field of One’s Own (1994).14 This study seeks to map women’s customary and statutory rights of inheritance through South Asia (India, Pakistan, Bangladesh, Nepal and Sri Lanka), specifically, women’s inheritance rights in arable land, which is the most important and chief means of livelihood for some three-quarters of the region’s population. In this respect, too, Agarwal’s study reveals a noticeable north/south India dichotomy, women in the south being more likely to inherit land under customary law as wives or as or to be apportioned land as dowry. She also found a similar patterning in respect of a number of other factors that are presumed to affect women’s bargaining position in the family: (i) rules of post-marital residence; (ii) close kin marriage; (iii) purdah practices; (iv) controls over women’s sexuality and freedom of divorce and remarriage; (v) rural female labour force participation rates; (vi) rural literacy rates; (vii) total fertility rates; and, rather more in my opinion, (viii) measures of land scarcity.15 Taken together, Agarwal suggests, south India has customarily allowed women superior access to material resources, resulting in their better bargaining power in the family and better leverage in availing of the gender-equal inheritance rights that were provided in the Hindu Succession Act (HSA) of 1956. The crucial explanatory factor in Agarwal’s account is the distinctiveness of the south Indian kinship

resource

daughters,

problematically

11 Dyson and Moore (1983: 42, emphasis added). 12 Regional asymmetries in sex ratios have attracted a great deal of scholarly on the part of both demographers and feminists. See, among others, Agnihotri (2000); Miller (1981; 1989); Visaria (1999); Visaria (1972). 13 Subsequent studies have in general endorsed Dyson and Moore’s observations; for instance, Basu (1992); Das Gupta (1995); Raju et al. (1999). 14 Agarwal (1994). 15 Ibid., chap. 8.

attention

system (in particular, the different rules of marriage and norms of post-marital residence), along with the co-presence in the southern region of pockets of matrilineal and bilateral succession, stretching down into Sri Lanka. A number of other economists have similarly drawn attention to north-south regional differences in respect to a range of indicators of social development, gender equity, and distributive justice. On measures of female literacy and levels of education, health delivery, maternal and child survival, male and female life expectancy and, as already mention, sex ratios, southern India (and most notably the southwestern state of Kerala) has an outstanding profile in to the north and northwestern states.16 Reflecting on this phenomenon in the light of the revelations in the 2001 Census of an increased anti-female sex bias in natality and post-natal child mortality, Amartya Sen has asserted ‘something of a social and divide across India’.17 Even the ‘partial misfit’ in the picture, the state of Tamil Nadu, he said, does not really detract from the ‘astonishing finding’ that

comparison

cultural

the vast majority of the Indian States fall firmly into two contiguous halves, classified broadly into the north and the west, on the one side, and the south and the east, on the other. Indeed, every State in the north and the west … has [a] strictly lower female-male ratio of children than has every State in the east and the south…, and this indeed is quite remarkable.18 It will be clear from this albeit cursory survey of a truly vast literature that social scientists have placed considerable explanatory weight on aspects of the south Indian system of kinship and marriage, to levels of ‘female autonomy’, as factors accounting for that region’s superior track record in South Asia in respect of patterns of demographic behaviour and indices of economic and social development. In this light, it is surely something of a conundrum that post-independence family law legislation — legislation that was supposedly aimed at improving the social position of Indian

related

16 See Drèze and Sen (1996); Jeffrey (1993). 17 Sen (2001). 18 Ibid.: 12, emphasis added.

women — actually de-legitimised Dravidian marriage practices, while ultimately, contradictorily and grudgingly, allowing their retention as ‘custom’ under specified conditions. In exploring this conundrum, this article returns to the legislative debates of the 1950s and 1960s around the ‘prohibited relations’ provisions of the Special Marriage Act (1954) and the Hindu Act (1955) to reflect on the complex regional and gender politics of this gesture. There are several aspects of the puzzle that will be highlighted here. First, controversy over the ‘prohibited relations’ sections of the new Acts (i.e., the sections that effectively if inexplicitly outlaw Dravidian marriage practices) was — relatively speaking — quite mild compared to the much more vociferous controversies on issues of monogamy, divorce, and age of marriage. However, as this account will indicate, there was obviously a behind-the-scenes struggle going on through a decade and more before a compromise solution was finally reached. Second, the delegitimization of Dravidian marriage practices has attracted minimal interest and comment in legal circles.19 Third, as noted, case law is surprisingly sparse in respect to the ‘prohibited relations’ provisions of the two Acts, though other grounds for nullity and the voidance of marriage are exploited to the hilt in this notoriously litigious environment. Fourth, the presumed positive correlation between Dravidian kinship and marriage practices and higher levels of women’s (see above), the undercutting of Dravidian marriage practices has not been flagged as a significant ‘gender’ issue. By contrast, many other aspects of the new legal regime of marriage — for instance, the not-unrelated issue of the‘future of matriliny’ under colonial and post-colonial legal regimes, and the very fraught question of the desirability or otherwise of ‘religious’ personal laws (versus a Uniform Civil Code) — have generated intense and continuous feminist attention. 20 Fifth, a supposedly universal and scientific ‘eugenic’ discourse has clearly played a significant role in muting both feminist and ‘Dravidian’ pockets of resistance, though this

Marriage

notwithstanding autonomy

19 Apart from the comments of Sivaramayya (1978) and Agnes (2005) and some stray remarks by the inimitable Derrett (1978: 24–27, 51–52, 61–63), the exogamic provisions of the marriage laws find no mention in standard secondary writings on the evolution of Indian family law — for instance, Menski (2001); Parashar (1992). 20 On the transformation of matriliny, see e.g., Dube (1997); Nair (1996: chap. 6); Saradamoni (1999).The gender implications of the continuance of community-specific personal law regimes in India are addressed in particular by Parashar (1992).

mediating factor remains both unacknowledged and — as yet — unchallenged. I must now confess that this article offers no solution to the thus set out, and certainly no recommendations for legal intervention and feminist activism. The intention is simply to open up to feminist scrutiny an issue that has been brushed under the carpet of legal and social reform for half a century or more.

conundrum ****

IndiaLegislating Marriage in

Post-Independence

As is well known, the enactment of the new Hindu Law Code in the mid-1950s was a tremendously controversial affair that stretched over more than a decade.21 The process had begun, piecemeal as it were, with the 19th and early 20th century social reform movements, and consequent legislative enactments in British India and in ‘progressive’ native states like Mysore and Baroda. The demand for a comprehensive Code for all Hindus and for all aspects of Hindu personal law came as a recommendation of the B.N. Rau Committee, constituted in 1941 to consider lacunae in the Hindu Women’s Rights to Property Act (1937). The work of the Committee was stayed by War, resuming in 1944, and the Report eventually to the Legislative Assembly in 1947. The Hindu Code was hotly but intermittently debated through the next four years, ultimately provoking the Law Minister, B.R. Ambedkar, to resign in protest against what he believed to be deliberate delaying tactics motivated by narrow electoral calculations. The family law Bills were taken up once again following the first general elections and the constitution of the new Parliament. The Special Marriage Bill was presented first, as presumably the less contentious of the set, and the expressly Hindu personal law divided into four separate Bills, the better to ensure their smooth passage through the House. The Special Marriage Act (SMA) and The Hindu Marriage Act (HMA) were passed in 1954 and 1955 respectively, to be followed by The Hindu Succession Act, The Hindu Minority and Guardianship Act and The Hindu Adoptions and Maintenance

submitted

21 See Parashar (1992); Agarwal (1994); Derrett (1968: chap. 10); Forbes (1996); Sarkar (1976); Som (1994) among others. See also Law Minister Pataskar’s to the Hindu Marriage Bill, Lok Sabha Debates (hereafter LSD), 26.iv.1955, cols 6468–70.

introduction

Act, all in 1956. Here we are concerned primarily with certain of the Special Marriage Act and the Hindu Marriage Act which bear on South Indian marriage practices. The purposes of the two Marriage Acts, it must be said by way of beginning, were rather different. The SMA was essentially a of the 1872 Special Marriage Act,22 retaining a notable penalty of the earlier Act, namely, severance of the parties marrying under this Act from Joint Family property.23 (‘Either he should have the wife or the property’, as one unsympathetic Member put it.24) It was billed at the time as a secular and territorial law of marriage and divorce which, notwithstanding its problems, was at least ‘a step in the right direction’ towards the ultimate goal of a Uniform Civil Code.25 It was thought that the SMA would encourage frugal marriage ceremonies, rather than the extravagant festivities with religious rituals,26 and contribute to national unity by enabling inter-caste and inter-religious marriages.27 Changing circumstances, it was said, commended a new, ‘progressive’ and ‘contractual’ approach to marriage.28 ‘Democracy’, said D.C. Sharma during consideration of the Bill, ‘means freedom of choice’:

provisions

reenactment

associated sociopolitical

We can choose in marriage anybody we like. I think this Bill gives us that freedom of choice. This is a freedom which cannot be denied to men and women. It cannot be denied to persons when 22 Originally introduced to legalise Brahmo marriages. Members of the reformist Brahmo Samaj, founded in the 19th century, repudiated Hindu rituals. At the same time, the form of marriage that they instituted could not be condoned as ‘customary’, for ‘custom’ by definition must be of long standing. See Biswas LSD, 26.iv.1954, cols 7798–99. A similar problem arose in the case of Tamil non-Brahmin marriages. See Menski (2001: 13–15). 23 This was corrected for Hindus married under the act by an Amendment in 1976 (Article 21A, SMA). 24 Shastri, LSD, 16.xii. 1953, col. 2319. 25 See Law Minister Biswas’s introduction to the Special Marriage Bill, LSD, 19.v. 1954, cols 7797–99; also Chakravartty, LSD, 16.xii.1953, col. 2317; LSD, 7.ix.1954, cols 1222–24; Shah, LSD, 19.v.1954, cols 7831–32; Chowdary, LSD, 20.v.1954, cols 7880–82; Nehru, LSD, 14.ix.1954, cols 1860–62. Article 44 of the Indian Constitution states as a Directive Principle: ‘The State shall endeavour to secure for the citizens a uniform civil code through the territory of India.’ 26 Rao, LSD, 7.ix.1954, cols 1214–16. 27 Chowdary, LSD, 20.v.1954, cols 7881–82. 28 Chakravartty, LSD, 16.xii.1953, col. 2317. This point of view was also stated with eloquence by Prime Minister Nehru, LSD, 21.v.1954, cols 8048–54.

they receive high education, when they are brought up in a

democratic atmosphere, and when they are taught that they should

love freedom. If they can have political freedom in other spheres of life, I do not see why they should not have freedom in their choice of partners.29 The explicit and stated purposes behind the promulgation of the Hindu Law Code were quite different, namely, to bring ‘certainty' into the operation of Hindu law; to ‘unify’ the various schools of classical and customary law; to eliminate restrictive practices and antiquated rules; and — at least for some — to provide a of progressive legislation en route to the Uniform Civil Code.30 Specifically, the HMA sought: (i) the abolition of caste [endogamy] as a necessary requirement of a valid marriage; (ii) the enforcement of monogamy; and (iii) the facility for divorce or the dissolution of marriage on certain grounds.31 As remarked, the ‘monogamy’ and ‘divorce’ provisions were the heart of the controversy over the Bill: the former because it interfered with a ‘right’ to which a section of Hindu men felt entitled (whether by ‘tradition’ or by comparison with the rights of Muslim men); the latter because it was seen to controvert the indissoluble, ‘sacramental’ character of Hindu Nonetheless, Law Minister Pataskar took pains to assure the House that this legislation was in conformity with the principles of Hindu law which, he claimed, had always adapted to changed circumstances, and that it in no way aimed to violate the sanctity of Hindu marriage.32

benchmark

marriage.

Marriage Rules under Classical Hindu Law The Parliamentary debates around the legislative enactments of the SMA and the HMA, which occupied much of the time of the House through 1954/55, provide ample evidence of the contradictory and regional pressures at work in the production of a new

ideological

29 Sharma, LSD,17.xii.1953, cols 2370–71. 30 See Derrett (1968: chap. 10). 31 Pataskar, LSD, 26.iv.1955, cols 6468ff. It did not escape critics and cynics that and remarriage were already allowed, often on more liberal grounds, by the law of an estimated 80 per cent of the Hindu population; and that the Act’s cautious allowance of divorce made this law at once ‘brahminising’ for the majority, and ‘liberalising’ for the upper caste minority. 32 Pataskar, LSD, 26.iv.1955, cols 6475–502.

divorce customary

personal law regime for independent India. Before discussing this legislation and the public discourse that it generated, however, it will be pertinent to outline the rules of marriage under the classical Hindu law — especially in so far as they concern exogamous This is not to claim that the Dharmashastric rules have been observed in practice: they certainly have not. Nor, strictly speaking, are they relevant to interpretation of points of law under the HMA, which provides its own definitions of the relevant concepts.33 All the same, it is important to recognise that the codification of AngloHindu law in the latter half of the 19th century, and the subsequent enactment of a Hindu Law Code in post-Independence India (along with a secular and territorial marriage law), have paradoxically the legal recognition of the Dharmashastras as the source of the governing principles of family law for all Hindus.34 It is another matter that some scholars are convinced that genuine Hindu law, as transmitted by the rishis [Hindu sages], is for all practical purposes a dead letter!35

restrictions.

consolidated authoritative

In short, the Hindu law books do not speak with one voice on the

rules of marriage — as on any other matter.36 There are substantive differences between the Mitakshara and Dayabhaga Schools, and between different texts and commentaries. Additionally, since the 19th century, the practice of ‘Anglo-Hindu’ law has generated its own body of authoritative texts and legal precedents, modified piecemeal by reformist legislation. Leaving aside the definitions of ‘approved’ and ‘unapproved’ forms of Hindu marriage, and regarding varna (class) and jati (caste) endogamy, we focus here on the rules of exogamy under the classical Hindu law. Classical Hindu law specified a very extensive range of exogamous — ‘extravagant’, Louis Dumont has termed them.37 First, marriage was banned between kin in the patrilineal line of descent

stipulations

prohibitions

33 Mulla (1998: 41); Singh (1983: 18–19, 41). 34 For instance Diwan (1993); Mayne (1991); Mulla (1998). The Parliamentary debates we consider below also offer ample illustration of this point. 35 Derrett (1978). 36 For elaboration of the principles of classical Hindu law, see in particular the authoritative and pioneering work of P.V. Kane (1930–62: especially Bk II, Pt 1), and Trautmann (1981: chap. 4); Derrett (1968; 1978); Lingat (1973); Prabhu (1955: 154ff); and others, including standard compendia of Hindu law, such as Banerjee (1915; rpt 1984: 57ff); Mayne (1991); Mulla (1998: vol. 1, chap. 22), and more recently Diwan (1993: chaps 3&7). 37 Dumont (1983: 14–15); also Madan (1989: 91–92, 287).

from putative gotra and pravara ancestors.38 The gotras, 18 in all, are exogamous patrilineal clans whose members claim descent from eponymous Hindu sages, while the pravara are similarly exogamous units, subordinate to the gotra, to which they are complexly related. 39 Properly speaking, the gotras and pravaras are restricted to Brahmins, and only by courtesy, so to speak, extended to the second and third classes (varna) of the Hindu caste order.40 Second, marriage was prohibited between persons in what was termed a sapinda or ‘shared body’ relationship with each other. The concept of sapinda relationship defines graded responsibilities in ancestor worship and death rituals and, relatedly, entitlements to inheritance. In these contexts it is exclusively, or almost exclusively, agnatic (related through the male line). However, in the context of defining the boundaries of the exogamous group, sapinda-ship takes on a cognatic dimension (related through both father and mother), with just a slight prioritisation of agnatic kinship in the limit of recognition of seven degrees of relationship on the father’s side versus only five on the mother’s.41 Unlike gotra and pravara affiliation, the relationship of shared body is universal, not restricted to Brahmins.42 It is this [a]sapinda rule that is hostile to the Dravidian practice of cross-cousin marriage. As Thomas Trautmann and others have elaborated, numerous Dharmashastric texts expressly prohibit cross-cousin marriage. among them, and much cited in this regard, is the Baudhayana Dharma Sutra (ca 500–200 BC), which concedes however that mother’s brother’s daughter (MBD) and father’s sister’s daughter (FZD) marriages are among the cultural peculiarities of south India. While local custom should, in general, be taken as authoritative — and this principle has been invoked by several authorities to justify Dravidian marriage practices — Baudhayana himself rules that such

Prominent

38 Kane (1930–62: Bk II, Pt. 1, 482ff); Kapadia (1955: 19–21). 39 Trautmann (1981: 239ff). 40 The fourth class, the Shudras, were not recognised to have gotras, and were allowed to be governed in matters of family life by their own customs. The Untouchables were considered to be beyond the pale of Hindu law. 41 Trautmann (1981: 246ff); also Dumont (1983). 42 A cognatic, sapinda-like concept is invoked in the so-called three- or four-gotra rule of marriage in north Indian kinship. This rule prohibits marriage with partners from the patrilineal descent groups, even the patronymics, of the father, the father’s mother’s father, the mother’s father, and, possibly, the mother’s mother’s father.

practices are contrary to the Veda, and should be prohibited.43 On the other hand, other jurists, notably Madhava (ca 1350), have argued that cross-cousin marriage is allowable not only on grounds of ‘custom’ practiced by ‘the learned’, but also for the reason that marriage in any of the four approved forms, that is, involving kanyadana (the symbolic ‘gift’ of the bride, laden with jewels, in tribute to a ritual superior), transubstantiates the bride from a sapinda of her father to a sapinda of her husband: the bride becomes, as the phrase has it, of ‘one body’ with her husband.44 By this rather logic, both cross-cousins (MBD and FZD) are defined as non-sapindas and therefore marriageable — providing, of course, that the marriage is in the appropriate form. So too, logically is the elder sister’s daughter (eZD),45 marriage with the latter being another of the preferred arrangements in the region of Dravidian kinship. Here, in sum, we have the complex legacy that confronted the law makers attempting to codify a uniform Hindu personal law for independent India: a tension between agnatic and cognatic principles of relatedness; between notions of immutable law and mutable custom; and between different and contradictory renderings of the classical law, some traditions of which found arguments to justify the distinctive practices of Dravidian kinship.

regional

convoluted speaking,

Prohibited Relations under The Special Marriage Act (1954) and The Hindu Marriage Act (1955) By 1954–55, caste endogamy was no longer a requirement for a valid Hindu marriage. Nor was the principle of gotra exogamy.46 Hindu 43 See Trautmann (1981: 302–04). For further discussion see Derrett (1968: 86–87; 1978: 63). Kane (1930–62: Bk. II, Pt. 1, 458–67); Kapadia (1955: 117ff); Mayne (1991: 134). 44 Trautmann (1981: 291). Trautmann (1981: 438–46) also provides a useful of Madhava’s comment on the authoritative text of the Yajnavalkya Smrti (1.52) that prohibits marriage with a sapinda. 45 On the other hand, the Dravidian taboo on marriage with the matrilateral cousin might be weakened by the same logic (cf. Kane, 1930–62: Bk. II, Pt. 1, 469). See Derrett’s critical comments on Madhava’s rationalisation of Dravidian marriage (1968: 86–87), which creates a predicament for those castes that practice marriage in the Asura form (marriage with ‘bride price’, formerly widely prevalent in south India). 46 The case for inter-caste marriages had already been won through The Hindu Marriage Disabilities Removal Act 1946, and The Hindu Marriages Validity Act 1949, which were repealed with the coming into force of the HMA (HMA, Section 30).

translation

parallel

reformers had long argued that the primitive eugenic wisdom of the asagotra rule made no sense in modern times.47 It might inhibit, say, the marriage of a Kashmiri brahmin with a Tamil brahmin if both happened to be of the same gotra, though they could not conceivably be close blood relations. However, both the SMA and the HMA, albeit on different grounds and in different terms, laid down certain exogamous requirements for valid marriage. Section 4(d) of the SMA specifies that a marriage may be solemnisednised between two persons if, inter alia, ‘the parties are not within the degrees of prohibited relationship’. To this is appended the proviso:

needlessly

Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be notwithstanding that they are within the degrees of relationship.48

solemnized, prohibited

Schedule I of the Act lists the specific kin who fall under ‘prohibited degrees of relationship’ from the viewpoint of the husband and wife respectively. These are (in anthropological terms) opposite sex lineal ascendants or descendants in three generations; the spouses of same sex lineal ascendants and descendants; siblings; nephews and nieces; aunts and uncles; and matrilateral and patrilateral parallel- and cross-cousins. In short, the SMA expressly prohibited, among others, the typical forms of south Indian marriage alliance (MBD, FZD and eZD marriages), which were ultimately ‘saved’ by ‘custom’ only through a 1963 amendment to the Act49 that brought the SMA into line with the HMA in this particular regard (see below). Section 29(1) of the HMA confirms the provisions of this earlier legislation:‘A marriage solemnised between Hindus before the commencement of this Act [1955], which is otherwise valid, shall not be deemed to be invalid, or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or subdivisions of the same caste.’ The term ‘religion’ in this Section refers to those religions, sects and reformist groups which are defined as ‘Hindu’ under Section 2(1) of the HMA: it includes Buddhists, Jains and Sikhs, but explicitly excludes Muslims, Christians, Parsis, and Jews. 47 For example Iyengar (1941: 16); Kapadia (1955: 120–21). 48 ‘Custom’ is here defined to mean ‘any rule which the State Government may, by notification in the Official Gazette, specify … as applicable to members of that tribe, community or family.’ It should be ‘continuously and uniformly observed for a long time’, ‘not unreasonable or opposed to public policy’, and, if a ‘family’ usage, not ‘discontinued' at any point of time (SMA Section 4, ‘Explanation’). 49 Act 32 of 1963, Section 2 (c).

The HMA scheme of prohibited relationships overlaps to a large extent with that of the SMA, though conceptually speaking it tackles the question of exogamy rather differently. On the one hand, the HMA disallows marriage between persons ‘within the prohibited degrees of relationship, unless the custom or usage governing each of them permits of a marriage between the two.’50 Unlike the SMA, the HMA does not provide a Schedule listing the prohibited but instead provides a sort of genealogical calculus. Perhaps this was the outcome of legislators’ earlier criticism of the lists of ‘prohibited relationships’ in the SMA: They argued that it was an insult to intelligence to prohibit, for instance, the marriage of a man with his great grandmother; and an insult to Hindu wisdom to mindlessly copy British legislation when Hindu law had already developed a comprehensive approach to exogamy.51 While both the SMA and the HMA prohibit marriage with lineal ascendants or descendants or their spouses (as the case may be),52 the HMA this scheme to include certain other affines — ‘the wife of the brother or of the father’s brother or mother’s brother or of the grandfather or grandmother’s brother of the other’.53 The operative provision from the viewpoint of Dravidian kinship, however, is Section 3 (g) (d) of theAct, which prohibits marriage between two persons ‘if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters’ (emphasis added).The inclusion of the children of the brother and sister in the list of prohibited was apparently a change made by the Joint Committee of the two Houses of Parliament before the reintroduction of the Bill into the Lok Sabha in 1955.54

partners,

expands

relationships

50 HMA Section 3 (g) (a) and (b). 51 See Trivedi, LSD, 17.xii.1953, cols 2411–12; More, LSD, 1.ix.1954, cols 810–11. Thundered More: ‘…. The First Schedule is not a good thing. When you concretise certain facts you are reduced to such a ridiculousness.… If this legislation is taken up by some foreigner, he would get an impression that in India people are out to marry their grandfather’s mother and therefore, the sovereign Parliament was forced to say that you cannot marry that lady. By the time he is ready to marry, she will be in her grave already’ (ibid.). 52 HMA Section 3 (g) (a) and (b). 53 HMA Section 3 (g) (c). This provision expressly disallows leviratic marriage, a common practice in many parts of India, including the northwest. 54 Pataskar, LSD, 26.iv.1955, col. 6475. The cross-cousins (though not the brother’s widow) were also prohibited as sapindas.

Secondly, and this is another point of departure from the SMA, the HMA prohibits marriage of persons who are sapindas of each other, again, ‘unless a custom or usage governing each of them of a marriage between the two’. 55 The invocation of the concept of sapinda-ship, which is one of the few features that distinguish this Act as ‘Hindu’ law from its purported model in the British Causes Act, 1950,56 unambiguously prohibits Dravidian cross-cousin and uncle-niece marriage. Though the limits of sapindaship are reduced from the classical 7/5 model to just five generations in the line of ascent through the father and three through the mother,57 the prohibition nonetheless includes quite a broad range of agnatic and cognatic kin. 58 It is still needlessly comprehensive, in some opinions.59

permits

Matrimonial

In sum, then, cross-cousin and uncle niece marriages are doubly

prohibited in the HMA, to be saved only by ‘custom’ or ‘usage’, which must be longstanding, continuous, reasonable, and not opposed to public policy.60 Significantly, in this case too, the allowance of ‘custom' was not originally conceded in the Hindu Code Bill,61 but had clearly emerged through processes of political negotiation and the precise details of which remain obscure.

compromise, ****

‘Custom’‘Saved’ by

It will have been obvious from the foregoing account of legal and the legislative process that an intense struggle had been going on in the public domain — and no doubt even more behind the scenes — over the legitimacy of Dravidian marriage practices. In this section, we review some of the arguments for and against Dravidian marriage put forward in the course of the Parliamentary

provisions

55 HMA Section 5 (v). 56 See Derrett (1978). 57 HMA Section 3 (f) (i) and (ii). 58 For a working out of sapinda relationships in the context of the HMA, see e.g., Mulla (1998: vol. 2, 29–36). That practicing lawyers find little use for this provision of the Act (Section V (v)) is surely demonstrated by the garbled, confusing, and frequently incorrect explanations of sapinda-ship provided in legal textbooks, including even such recognised authorities as Mulla (1998) and Diwan (1993). 59 See Kapadia (1955: 121). 60 HMA Section 3 (a). 61 See Kapadia (1955: 257).

debates on the ‘prohibited relationship’ clauses of the SMA and the HMA. Although the stated purposes of the two Acts were rather as noted, arguments on the clauses overlapped to a considerable degree; the dramatis personae were in many cases the same people, reiterating well-rehearsed positions; and arguments that properly speaking should have pertained to the HMA were brought up in connection with the SMA, this being the Bill that was presented first. The fact that two Hindus could choose to be married under either Act62 further complicated matters, since legislators were acutely aware that the provisions of the one might undermine the legislative intent of the other. 63 Thus, there was constant cross-referencing between the two Bills, as well as to the anticipated provisions of the Hindu laws of succession, adoption and maintenance, still to come. The debate on the ‘prohibited degrees of relationship’ was primarily as a debate on the role of ‘custom’ and ‘usage’ in the legal regime of post-Independence India; an important theme, however, was the science of eugenics. The ‘saving’ of ‘custom’ — and the reference was especially to Dravidian marriage practices — was a zigzag process. Allowance of custom was first an amendment proposed to the SMA, Clause 4 (d). At the time it was stoutly resisted by the government64 and outvoted in the House, although pre-Act marriages in contravention of the clause could still be registered under the Act65 (an anomaly that alert legislators did not fail to notice). Meanwhile, however, a proviso regarding ‘custom’ had been added to the ‘prohibited relationship’ clauses of the HMA and within a few months, appearing to contradict itself, the Government defended this proviso against spirited criticism and numerous amendments calling for its deletion. Finally, in 1963, the SMA was itself amended66 to make provision for ‘custom’ after

different,

articulated subsidiary

62 Originally made possible by Sir Hari Singh Gour’s 1923 amendment to the SMA (1872). See Biswas’s statement, LSD, 19.v.1954, cols 7802–04. 63 See for instance Raghavachari, LSD, 7.ix.1954, col. 1221; also Chakravartty, LSD, 7.ix.1954, cols 1223–24, among many others. 64 See Biswas’s statement, LSD, 19.v.1954, cols 7797–7811–12; also LSD, 1.ix.1954, col. 836. 65 SMA Clause 15. 66 Many members sought to know the source of the supposed ‘demand’ for amendment of the Act. The only person actually named in this regard was the nationalist leader, Rajagopalachari. See Mishra, LSD, 28.viii.1963, col. 3268.

all, citing as justification the precedent of the HMA.67 It was altogether a peculiar story. One set of arguments on degrees of ‘prohibited relationships’ revolved around the nature of the SMA, in contradistinction to the HMA. Was the SMA to be seen as a ‘special’ Act, meant just for the few citizens who might seek to contract inter-religious marriages? If so, the majority of citizens would continue to marry under Hindu law, where ‘custom’ had a recognised role. Or was the SMA a secular and territorial law for modern times which should seek to bring ever larger numbers of citizens under its sway? If so, it would need to come to an expedient accommodation with practices, at least in the short run.68 The irony of the situation was not lost on critics of the proposed SMA amendment. Love of one’s own customs and usages was understandable, Hindu Mahasabha Member V.G. Deshpande conceded, but

progressive,

customary

[y]ou are doing away with the [Hindu religious] marriage you are doing away with the sacred fire, you are doing away with all this sacred vow, but you are sticking to all kinds of customs which we do not know, and parading in this House that you are introducing a uniform civil law for the whole country, and that a model system of marriage is being introduced.69

ceremonies,

The whole idea was ‘ridiculous’, he said. Similar arguments were advanced on behalf of the HMA clause on ‘prohibited relationships’: if the aim of the Code was to unify, clarify and reform the Hindu law of marriage, why should deviant customs be given recognition? Pandit Thakur Das Bhargava was among the vehement critics of the introduction of a ‘custom’ clause into the HMA. What is the use of a Hindu law, he asked, where ‘any person can marry any person and may divorce in any manner he pleases?’70 67 The procedure for establishing ‘custom’ was somewhat different, however. In the case of the amended SMA, custom was to be established by state government notification, rather than through judicial procedure, as in the case of the HMA. See Derrett’s skeptical comment on the ‘cumbersome’ procedure of notification; writing in 1978, he was unaware of any instances of such notification (1978: 27). 68 See Das, LSD, 8.ix.1954, col. 1256. 69 Ibid. cols 1229–30. 70 Bhargava, LSD, 3.v.1955, col. 7458.

In [the HMA] clause 2 [on the application of the Act] we say that it is binding on all and in the rest of the clauses we say it is not binding on all the Hindus. They can have their own customs. My submission is that we should be consistent and logical. Let us do the right thing which will bring about solidarity among the Hindus in India. We should have a law which will bind all people.71 Other parliamentarians were quite explicit in asserting that practices in contravention of the shastras (and also, one might emphasise, of north Indian norms) should not be allowed under the HMA, or indeed under the SMA as well. They argued that even a secular, territorial law must endorse the principle of sacramental marriage ‘that has ruled our country for at least 5,000 years’: ‘Are you passing this legislation’, asked N.C. Chatterjee in debate on the SMA, ‘following India’s Swadharma, India’s tradition? … We must keep our own culture, our dharma, that is, the essence of our being, our inborn nature, and we have to assimilate it and re-create our own country, our Indian society, on its old, own moorings.’72 Just see what has happened in Western countries, he added for good measure: not the ‘progress’ but the ‘degradation’ of womenfolk.73 Also speaking on behalf of Hindu ideals and sentiment, Mulchand Dube reiterated Chatterjee’s point:

marriage

This [SMA] is a piece of social legislation and I take it that the object of all social legislation should be to promote unity and solidarity in the society. Now, the two parts of the Schedule in the Special Marriage Bill permit marriage between persons which would otherwise be prohibited according to Hindu sentiment. For instance, the children of cousins can inter-marry. This kind of thing is repugnant to Hindu society…. [T]he persons who undertake such marriages … would not only incur the of the rest of society, but this kind of thing may create antagonism and be the cause of disruption of their society. So my submission is that the sentiments of the people who are likely to be affected thereby should receive primary consideration, and if such a thing is incestuous or repugnant to the sentiments of Hindus,

mentioned

contempt

71 Ibid. cols 7458–59, emphasis added. 72 Chatterjee, LSD, 17.xii.1953, cols 2384–85. 73 Ibid., col. 2386–87.

there is no reason why this should be introduced at the present stage.74 Almost a decade later, U.M. Trivedi spoke in almost the same terms in opposing the 1963 SMA Amendment: Generally among the Hindus — leave alone the customs

pertaining in some parts of South India — it was always considered derogatory, most derogatory and most heinous, for any man to conceive of

an idea of marrying his own sister — sister in that sense includes maternal uncle’s daughter, paternal uncle’s daughter or aunt’s daughter. To marry a sister like that was considered most in North India. In North India nobody would conceive such an idea.75

abominable

Moreover, as many speakers pointed out, if you make an exception for ‘custom’ in one case, where does this end? Some hon. friends said that there is a custom among certain of the people of marrying [the] maternal uncle’s daughter. If these customs are allowed, not only will one be able to marry the maternal uncle’s daughter, but he would be able to marry his own sister’s daughter, who is considered by some people to be one’s own daughter. Not only that: there are customs prevalent among certain communities whereby one can marry the paternal uncle’s daughter and sometimes also the sister of half-blood. So it would mean that all these marriages would be allowed. If you allow all these marriages, then there is no use incorporating this provision regarding prohibited degrees of relationship in the [Special Marriage] Bill.76

sections

Indeed, as Tek Chand, another active north Indian participant in all these debates put it, Custom may be an absurd sort of custom; custom may be that of the Vam Margis [Tantric ‘left-handed’ cults] who do not recognize 74 Dube, LSD, 2.ix.1954, cols 850–51, emphasis added. See also Dube’s proposed amendment to the SMA First Schedule, 16.ix.1954, cols 2159–60. Dube was of the opinion that exogamous prohibitions should extend to second cousins at least. 75 Trivedi, LSD, 28.viii.1963, col. 3234, emphasis added. 76 Dhabhi, LSD, 8.ix.1954, col. 1257.

the degree of prohibited relationship. Nevertheless, they have only got to show that it is their custom, whether it is immoral or vicious, whether it is reprehensible or unacceptable to you, or whether it is intolerable. Nonetheless, it is their custom, and you jolly well have to tolerate it. 77 However, the ultimate and clinching argument for a

comprehensive schedule of ‘prohibited relationships’ was that of eugenics.

No particular scientific authorities were cited in this regard: it was taken to be common knowledge that the universal ‘horror of incest’ was based on established principles of eugenic science. If ‘custom’ were to be allowed, medical doctor Jaisoorya said, [t]here will be no end to concessions to all sorts of customary laws, and the very purpose and spirit of this Bill will be lost. Do you believe that there is no such thing as eugenics, that eugenics is all bunk? In the ancient Egyptian empire, the Egyptian kings married their own sisters. There is no evidence that it was bad.78 Where are you going to put a stop to all this? It is incestuous. Marriage with your niece is incestuous, whether you call it customary law or not; marriage with your cousin is incestuous, whether you call it customary law or not.79 Indeed, it was quite probable, asserted one Member early on in the debates, that consanguine marriages, such as ‘are obtainable amongst the Semitic people, amongst the Arabic people, etc.’, result in fertility and spell ‘ruin’ for a country already overpopulated.80 For the most part, south Indians (and other advocates of the ‘custom' clauses) did not seek to contest the eugenic argument: some of

excessive

77 Chand, LSD, 13.ix.1954, col. 1754. 78 Presumably he was replying to a point made by Dr Rama Rao (see below) that there was no adequate scientific evidence to support the supposition of the ill-effects of consanguineous marriage. 79 Jaisoorya, LSD, 7.ix.1954, col. 1226. Among many other references to eugenics, see e.g., Biswas, LSD, 19.v.1954, col. 7811; Shah, LSD, 19.v.1954, cols 7835–36. Eugenics is the rationalisation that many south Indians give nowadays for the discontinuance of consanguineous marriages. Some south Indians have also sought to distinguish the relatively innocuous cross-cousin marriage from the more exotic practice of uncle-niece marriage, on both eugenic and moral grounds, e.g., Iyengar (1941: 17). 80 Trivedi, LSD, 17.xii.1953, col. 2413. See Trivedi’s similar comment almost a decade later, LSD, 28.viii.1963, col. 3235.

them even added their own evidence of the general ill-effects of such practices.81 They simply argued that such marriages should be legally permitted in a ‘transitional’ society until such time as people could be ‘educated’ into voluntarily giving them up — an uphill task, apparently82 — or the customs declined in the natural course.83 A rare note of defiance on behalf of Dravidian marriage was struck by Dr. Rama Rao. Speaking as a medical man, he maintained that there was no conclusive scientific evidence to substantiate the harmful effects of consanguineous marriage: in any case, was not ‘a scientific body deciding eugenics’. 84 ‘I want to appeal to our North Indian friends’, he said,

supposed Parliament

not to have a stone curtain before their eyes but to see beyond the Vindhyas [the mountain range that is taken to divide North from South India] and understand the customs and laws of the South Indians. Most of our thinking is conditioned by things we are used to. People in South India marry their maternal uncles’ daughters. That is a very common thing, but the wonderful list of prohibited relationships prohibits such marriages…. It is not abnormal and therefore I request my North Indian friends not to see things through their limited glasses only. Customs differ; habits differ….85 Bengali Brahmins eat fish; Punjabi women wear trousers — these are disgusting practices in south Indian eyes, he continued by way of illustration. ‘Similarly, the thinking of our North Indian friends is conditioned by things they are accustomed to.’86 The struggle to prevent the outlawing of Dravidian marriage by the combined forces of north Indian prejudice, traditional

practices

81 Vimla Devi, LSD, 28.viii.1963, cols 3230–34. 82 Ibid., col. 3232. 83 R. Venkataraman, LSD, 3.v.1955, cols 7542–43; Velayudhan, LSD, 7.ix.1954, cols 1235–36. Punjab Legislator Sardar Hukam Singh, however, was convinced that consanguine marriages would increase if women were given property rights under the HSA. Either that, he said, or one would see female infanticide on a large scale (LSD, 3.v. 1955, col. 7485). 84 Rao, LSD, 7.ix.1954, col. 1214. 85 Ibid., LSD, 7.ix.1954, col. 1214. 86 Ibid., cols. 1214–16.

Hindu orthodoxy and Enlightenment eugenic science was conducted over a decade or more. The upshot was a political compromise on behalf of a nation struggling for unity and stability in changing times. Few legislators actually defended Dravidian marriage practices, as ‘custom’, and only one Member in my recall (V.G. Deshpande) referred to shastric endorsement of cross-cousin marriage.87 The ultimate solution was a political one, however. This was no time to drive a wedge between north and south India, whatever one’s on Hindu ethics, eugenics, or other people’s ‘incestuous’ unions. As Law Minister Pataskar put it, summing up the debate on ‘prohibited relationships’ in the HMA:

except opinions

I know that amongst the people in the North the prohibited vary from the prohibited degrees in the South. There are in the South even amongst the highest [castes], the Brahmins, … which permit marriages between certain persons which are not allowed in the North. It is not desirable to enter into controversy whether one is right or wrong. It has been a subject matter of in the past and it will continue to be so for some time in future also.88

degrees customs controversy

The answer is to lay down a definitive scheme of ‘prohibited

relationships’ — to show ‘how the wind blows and what is the trend of

public opinion’, but to allow people to follow their own customs if they so desired:89 … I would appeal to my hon. Friend … to think of the times in which there are already enough problems and we should not add to it one of North or South. Therefore, … — whatever our own ideas may be — it may be that what the hon. Member feels is more correct than what is followed by other people — it is much better to go along with the rest.… No one group of people living in the

87 Deshpande, LSD, 7.ix.1954, cols 1227–30. Said Deshpande, who claimed to belong to a caste that practiced cross-cousin marriages: ‘I would accept challenge from anybody to prove that they are against shastras, or against any laws of eugenics. If you read the old nibandas and prabhandas, there are very scholarly discussions on this point’ (ibid., col. 1227). Deshpande objected only to smuggling recognition of these practices into the SMA under the provision for ‘custom’. 88 Pataskar, LSD, 3.v.1955, cols 7567–68, emphasis added. 89 Ibid.

78 • Uberoi

North or East can debate that one custom is bad. I think this should be better than exactitude in any way whatsoever. 90 But what of the gender politics of 'prohibited relationships'? Both marriage Bills, the SMA and the HMA, were promoted as gestures towards women's equality; 91 both were critiqued, too, as likely to be injurious for women, particularly when it came to the liberalization of divorce. But these battles were fought for the most part over clauses on monogamy, divorce, age of marriage, maintenance and restitution of conjugal rights. The question of 'prohibited relationships' was not construed as a 'gender' issue affecting women's status one way or the other. A stray and tantalizing exception was the report by a southern legislator, Vimla Devi, of unsuccessful attempts by women's organizations to campaign against consanguineous marriage. 92

0

(ASE LAW ON QUESTIONS OF 'PROHIBITED RELATIONSHIPS'

The struggle for the legal recognition of Dravidian marriage practices in post-Independence India appeared to have been won by 1963 when the SMA was amended to allow breach of the 'prohibited relationships' condition on grounds of 'custom' and 'usage'. There remained a practical problem, however. 'Custom' was not recognised ipso facto, but had to be established- either by government notification (SMA) or by due legal processes (HMA). Given the litigiousness of Indians in all walks of life, one would surely have expected vigorous exploitation of the vagaries of these clauses. As it is, legal textbooks confirm that almost all clauses of the Hindu personal law have attracted robust case law, and clauses that bear on the validity of marriage are part of the routine armory of those claiming 90 Ibid., col. 7568; see similarly Mishra, LSD, 28.viii.1963, cols 3266-70. Though it might be assumed that the 'unity' oflndia in this context meant the unity of Hindu Indians, at least one Member argued for tolerance of Muslim (cross- and parallel-) cousin marriage, abominable as it might seem to Hindu sentiment: After all, he urged, Muslims too had 'contributed to the progress of our country and of the world' (Basu, LSD, 14.ix.1954, col. 1850). 91 See e.g., Chakravartty, LSD, 16.xii.1953, cols 2317 -18; LSD, 14.ix.1954, cols 1823-32; LSD, 2.v.1955, cols 7254-62; Pataskar, LSD, 26.iv.1955, col. 6500; More, LSD, 2.v. 1955, cols 7392-95. 92 Vimla Devi, LSD, 28.viii.1963, col. 3232.

or contesting succession to property, or seeking to avoid prosecution for bigamy or suits of maintenance, etc.93 ‘Custom’ is indeed amply contested in the context of, say, Section 7 of the HMA, which specifies the ceremonies required for a valid Hindu marriage. All other grounds for nullity — bigamy, want of consent, impotency, mental incompetence, age of marriage, etc. — are also exploited to the full. 94 But, the clauses on ‘prohibited have attracted hardly any case law worth looking at.95 Much of the exemplary case law refers to judgements under AngloHindu law, and though many of the latter do indeed involve south Indian cases, more recent case law is not especially focused on Dravidian kinship practices — our specific interest here — but deals with customary usage in other regions.96 Among the more commonly cited south Indian cases, two general points of law concerning the status and definition of ‘custom’ are seen to be at issue. The first concerns the density of cases required to evidence a ‘custom’ for the community concerned. For instance, in K. Kamakshi vs K. Mani,97 a wife sought the annulment of her (contesting her husband’s plea for the Restitution of Conjugal Rights) on the grounds that she and her husband were within the prohibited degrees of relationship (her father and the husband’s mother being brother and sister respectively),and that there was no custom in her community (identified as ‘Dravida Brahmin’) that allowed such a marriage.98 The plea had been initially dismissed on the grounds that such a custom (matrilateral cross-cousin marriage, in anthropological terms) had been satisfactorily established, but on retrial it was affirmed that the grounds for asserting the existence of the ‘custom’ in this community were rather flimsy, to say the least:

relationships’

marriage

The sum total of the evidence [of community leaders and the

learned witnesses appearing on behalf of the wife] is that there was but

a single instance of a marriage [of first cousins] some time in 1918,

93 See Menski (2001: 35–43, and chap. 4). 94 Uberoi (1996). 95 An observation confirmed by search of the Supreme Court cases. 96 For instance, Punjab and Haryana, where Hindu law was not earlier in force. See e.g., Shakuntala Devi v. Amar Nath, AIR 1982 P & H, 221. 97 Madras Law Journal Reports (hereafter MLJR), 1970(2): 477–78. 98 The couple, married in 1960, had incidentally lived together for some time before the separation that induced the plea for Restitution.

but this was objected to by members of the community, resulting in a conference which decided that the marriage was prohibited. According to evidence on the [husband’s] side, there were one or two marriages that took place in 1961 and 1965. That is the whole evidence to establish a custom permitting marriage between parties within the prohibited degrees in the community.99 Clearly, these stray cases were inadequate proof, for a custom needs to be sustained over ‘a reasonably long time’: Short of this, a custom cannot be the result of a process of or analogy or deduction from other customs prevalent among communities or sections of the people other than that to which the parties in dispute belong.100 A custom cannot be extended by analogy. It should be established inductively, and not by a priori methods. … Evidence in this case falls very far short of establishing a custom prior to 1955 [when the HMA came into effect]. Even thereafter, only two instances have been brought to the notice of the Court, which again would be insufficient to make out a custom which would relax the imposed by Section V (iv).101

approximation

condition

In the second case, much cited in the legal literature,102 a property dispute between the descendants of a man of the Reddiar caste of Tirunelveli who had married his own grand-daughter (daughter’s daughter) as his fourth wife, the existence of a custom of marriage between a girl and her maternal grandfather was deemed ‘credible’, if not widespread, in the light of five other known instances in the concerned. All the same, the judge was explicit that:

community The requisites of a valid custom are that the same should be ancient, certain and reasonable and that [they] also should not be

opposed to decency or morality. … A custom which is abhorrent to decency and morality, however long practiced and recognised by a

99 MLJR, 1970(2): 477. 100 Presumably the judge, K. Veeraswami, was referring to the fact that Dravidian communities in general have customarily approved marriage with the mother’s brother’s daughter. 101 MLJR, 1970(2): 477. 102 Balusami Reddiar v. Balakrishna Reddiar, AIR 1957 Madras 97.

particular community, can find no enforcement by a Court of Law. We therefore feel no doubt whatever that the civilised and cultured society in which we live and the progressive society in which we are should not approve of an incest which would not find favour even under primitive or tribal society. The attempt in this case is to get a judicial recognition of the propriety of a most revolting and practice under the guise and pretext of usage and custom said to have the force of law.103

obscene

From this, the logical next step would be legal acknowledgement that ‘a man can marry his own grand-mother’, was the judge’s final riposte!104 ‘But everybody knows that south Indians marry their cousins’,

was the explanation of one legal expert from whom I had sought to know why the case law in this area was so sparse. She presumably meant that it would normally be inexpedient for a lawyer to try and prove otherwise in the southern region (notwithstanding the in K. Kamakshi v. K. Mani, cited above). Nonetheless, from the ethnographic record one can imagine cases where one form of cross-cousin marriage is customarily acceptable, the other not; or cross-cousin marriage is approved but uncle-niece marriage deplored; or a marriage may be correct in one reckoning, but in another. All such uncertainties, one might think, would be grist to the lawyers’ mill. On the other hand, a practicing lawyer construed the problem as a simple one of locus standi: It is unlikely, he suggested, that either party to a null marriage within the degrees would be motivated to file a nullity petition. But his answer disregards the plethora of nullity suits on other grounds, and the considerable utilisation of nullity clauses by heirs and other parties in property disputes. The puzzle remains.

judgement extrapolating

improper

prohibited interested ****

RConclusion: elationship’ ‘Prohibited

or

Allowable Custom?

South India as a region has long been known for its singular rules of marriage which, along with other related practices, appear to have 103 Ibid.: 99, 100, emphasis added. Quoting the British ethnographer Edgar Thurston, the judge also took the occasion to allude to some other morally questionable marital/sexual customs of the community concerned, such as the cohabitation of a woman married to a very young boy with older maternal or paternal relatives. 104 Ibid.: 99.

had the effect of moderating the sternly patrilineal emphasis of the rules and practices of Indo-Aryan kinship. These particularities have latterly become the focus of social science attention — not alone by kinship specialists, who seem to have reached a dead-end on the issue some time ago, but by demographers, development economists, and feminists, who have taken a keen interest in the southern region’s superior track-record on questions of social development and gender equity. Yet, these same rules and practices were de-legitimised on grounds of morality and eugenic science by supposedly progressive postIndependence legislation. Ultimately, a lengthy process of political lobbying and negotiation, concluding in 1963 with the amendment to the prohibited relationships’ clause of the SMA, ensured their ‘saving’ on grounds of ‘custom’. It appears that the political class a ‘progressive’ legal regime, but ultimately not at the cost of driving a wedge between the Hindus of north and south India. To keep things in proportion, the struggle to ensure the (albeit qualified) recognition of Dravidian kinship practices was a relatively minor one in the overall context of marriage law reform: as indicated, questions of monogamy, divorce, and the age of marriage were the salient points of controversy. Yet there was, obviously, an intense struggle going on both in public and behind the scenes, and it is rather surprising that there has been almost complete silence on the question ever since, whether in public debate or in academic discourse. Nor has the legal profession seized the opportunity to exploit the vagaries of the concept of ‘custom’ in this particular And it appears that there is no sense of grievance over the issue, even on the part of activists of the anti-Brahmin movements which have been a powerful force on the south Indian political scene for many decades.105 Is this because Dravidian marriage practices are now securely ‘saved’ by the provision for reasonable customs and usages? Are south Indians excessively embarrassed by their usages in the face of the hegemonic ideology of Indo-Aryan kinship? Or do they just discreetly seek to avoid controversy, rather than draw further to south India’s ‘incestuous’ singularity? Whatever the answer, it remains a matter of curiosity, if not of wider public concern, that the de-legitimisation of Dravidian kinship

desired

regard.

attention 105 M.S.S. Pandian, personal communication.

has not been construed as a ‘gender’ issue, though the distinctive marriage practices of the Dravidian culture area appear to be at the core of the differentiation of north and south India, in family and kinship, as in a whole range of social development indicators. Refrncs

****

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University

International

A Psychosocial 4 of

Critique the

Law

of in

Adoption

*India

Amita Dhanda ‘The adoption of a child provides a home to a homeless child and a child to a childless couple.’ Adoption agencies and child-care continually mouth this rhetoric as part of their advocacy of adoption. They draw upon the same rhetoric to bemoan the absence of a uniform Adoption legislation in India. These institutions are not alone in seeking the enactment of a uniform Adoption law; such a demand has been made by different sections at different points in the post-Independence history of India.At two points, this demand obtained sufficient momentum to result in legislative bills being introduced in parliament. 1 Unfortunately, for different reasons which do not concern us here, these legislative efforts did not fructify and the legislative bills lapsed without becoming law.2 In a third effort, the Maharashtra Legislature enacted the Maharashtra Adoption Act 1995 which applied to every person, irrespective of religion, adopting a

institutions

*

I am especially grateful to Gabor Gombos and Inger Iforland for their response this article in light of their personal experiences, and to have generously allowed me to draw from their experience. I thank Gita Ramaswamy for her comments on an earlier draft. 1 The Adoption Bill (1974) and the Adoption Bill (1980). 2 The 1974 Bill applied to all communities, including the Muslims who objected to this inclusion on the grounds that Islamic religion did not recognise adoption. In the 1980 Bill the Muslims were expressly excluded, but this round going the Parsis objected to being included on the grounds that Parsi religion did not recognise conversion, and adoption was a virtual conversion. to

—

Adoption in India

child in the state of Maharashtra. As this legislation concerned a matter on the Concurrent List, it required presidential assent before it became an operative law. This presidential assent has not been granted as yet.3 As a result of this failure, the Hindu Adoptions and Maintenance Act 1956 (HAMA), which gives to Hindus a legally circumscribed right of adoption, remained (till 2000) the only legislation adoption in the country. If a member of any other community wished to adopt a child, they had to proceed under the Guardianship and Wards Act of 1898 (GAWA).4 In 2000, the option to adopt a child was given to all communities by a chapter in the Juvenile (Care and Protection of Children) Act (JJA). The JJA is not an enactment relating to adoption, but a statute which makes for the care and protection of children in conflict with law, and abandoned and neglected children. It professes to undertake a childfriendly approach in the adjudication by disposing of matters in the best interests of the child. The statute aims to make provision for the ultimate rehabilitation of these children, and proposes the institution of adoption as one measure of rehabilitation.5 Other than these procedures for domestic adoption, Indian law also allows for inter-country adoption. There is no legislation regulating foreign adoptions even as the Supreme Court of India, in a public interest action drawing the attention of the Court to trafficking of children, has as a preventive measure formulated guidelines regulating foreign adoptions.6 These guidelines of 1984 (with some subsequent regulate inter-country adoptions in India.7 Whilst these Inter-country Adoption Guidelines (ICA Guidelines) do claim to accord

permitting

Justice provision

modifications)

3 According to Bajpai (1996), the Bill ran into rough weather because the Statement of Objects and Reasons to the Bill stated that it was enacted to further the commitment to the uniform civil code. Bajpai holds that the legislation would have seen the light of day if the reasoning of welfare of children had been employed. 4 The use of GAWA meant that they could not adopt the child but only be appointed as his/her guardians, an arrangement by which the guardian provided care and protection to the child in his or her lifetime but the child had no right to the property of the guardian. 5 The other measures being foster care; sponsorship; and sending the child to an after care organisation. 6 Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469. 7 The subsequent modifications were made by the apex court in Lakshmi Kant Pandey, AIR 1986 SC 272; (1991) 4 SCC 32 and (2001) 9 SCC 379.

constitutional

Dhanda

preference to domestic adoptions, they recognise that all children may not get a home in India, and since a home, even a foreign one, is better than none, they allow foreign adoptions in the best interest of the child. This aforesaid narration on the law of adoption in India has been undertaken with the aim to show that the laws permitting adoption have been premised on the presumption that the institution of is of benefit to the adoptee, the benefit being weighed primarily from a societal perspective. The beneficial impact of the procedure on the individual has not been established but presumed. To enhance the value of the process, a legal fiction is created whereby the adopted child is accorded the same status as the biological child. The of taking a child in adoption has often been described in every day conversations in terms similar to giving birth to a child.8 to such descriptions, some of the accommodations and allowances which are allowed to bear and rear a biological child are also being gradually allowed to bring up an adopted one.9 This for equality of treatment has not just stopped at according sameness of treatment; it has whether inadvertently or by design also eliminated the difference. It is my contention that there is a difference between giving birth to a child and adopting one. there is difference in the experience of being born into a family and being adopted into one. This equation is further complicated when adoption occurs in the lifetime of the biological parents, be it by relinquishment or abandonment of their biological child. The relationship of adoption has a psychosocial impact on the various actors involved in the transaction — adopters, adoptees and parents. This impact needs to be acknowledged to devise a suitable policy and law on adoption. Such an acknowledgement will happen only if the differences of the adoption experience are Possibly because the Indian lawmaker has been continuously

adoption

experience Consequent

crusade

Similarly, biological

admitted.

8 See Bhargava (2005), where she describes how the customs and rituals for the adoption of a child are no different from those followed upon the birth of a child. Also, treating the adoptive child as the biological child is so all-pervasive that ‘resemblances’ are often observed and remarked upon. 9 For example, in 1989 the Central Government issued an office memorandum granting adoption leave to women employees on adoption of a child. The leave — for a maximum period of one year — was linked to the age of the adoptive child. For a critique of the memorandum, see Bajpai (1996: 175).

seeking to obtain consensus for a uniform adoption law, there has been an ominous silence on the travails of the process.10 When I speak of the silence on travails I do not mean that the lawmaker is not alive to the abuses to which the system could be subjected. The Lakshmikant Pandey Guidelines were aimed to prevent trafficking of children in the guise of adoption. And Section 11 of HAMA, which requires a certain age difference between adoptive parent and child again is an effort to prevent sexual abuse.11 By travails I refer to the everyday trials and tribulations confronted by an parent and child. Whilst some of these trials are surmounted by the passage of time, others require more explicit legal For this to happen it is important that instead of only focusing attention on the need for a uniform adoption law, we also need to ponder on the substantive content of such law.12 This article is an attempt in this direction. As India has ratified the Convention on the Rights of the Child (CRC), it is only appropriate that the obligations of the Convention are taken into account in devising this substantive content. Therefore, the first part of the article dwells on the normative guidance by the CRC for formulating a law on adoption. The has required its difficult choices to be guided by the ‘best interests of the child’. In order to provide some objective content to this of ‘best interests’, relevant psychosocial studies on adoption are discussed in the second part. In the light of international law and psychosocial studies, the Indian law of adoption is analytically described in the next part. Finally, the article makes suggestions for a more child-friendly law of adoption.

adoptive acknowledgement.

provided Convention touchstone

10 In an effort to prepare prospective adoptive parents of their responsibilities, the 2004 In-Country Adoption Guidelines provide that all prospective adoptive parents may avail counseling facilities which must be provided free by all Licensed Adoption Placement Agencies (LAPA). The counseling is primarily meant to apprise the prospective parents of their legal obligations and the legal rights of the adopted child. 11 The concern with sexual abuse repeatedly surfaces in deliberations on especially when the discussion revolves around the adoption of girls by single men. The 2004 Guidelines lay down that girls may not be given in adoption to single men. A similar kind of embargo was sought by participants discussing the Christian Adoption Bill 1988 drafted by the Joint Women’s Programme. See Bajpai (1996: 40, n. 3). 12 Bajpai (1996: 222–48) included a draft of an Adoption of Children Bill. In contrast to Bajpai who was concerned with principles, procedures and authorities, this article limits itself to a discussion on principles relating to adoption.

adoption,

Adoption

and

Child

Rights

The primacy that is accorded to the family in the life of a child is evidenced by the fact that the Convention on the Rights of the Child has situated the child in the family. It has regulated this situation in two ways: first, by according primacy to the continual interaction parent and child, and second by recognising that the identity of a child flows from the identity of the parent. In fulfilment of the first obligation,States Parties are required to respect the responsibilities, rights and duties of parents to provide appropriate direction and guidance to the child to exercise the rights under the Convention. Parents are expected to provide this direction in a manner consistent with the evolving capacities of the child. The Convention does not restrict its familial deference to parents alone, but also includes within its purview members of the extended family, or community, or legal guardians, or other persons legally responsible for the child.13 Even as the Convention accords primacy to the parent–child it continually recognises that there can be circumstances which could cause the severance of this tie. Thus, the right of a child to know, and be cared for by his or her parents, is to be respected only as far as possible.14 The obligation on States Parties to ensure that a child shall not be separated from his or her parents against their will has been formulated in qualified terms as well. the enormity of the action is acknowledged by the fact that such separation cannot happen without objective judicial determination. Parental abuse or neglect, or the fact of the parents living separately, are mentioned as circumstances requiring such independent judicial determination.15

between

relationship,

However Even as the Convention repeatedly places the primary

responsibility of upbringing and development of the child on both parents

and legal guardians, it also obliges States Parties to render assistance to parents and guardians in the performance of their child-rearing responsibilities.16 13 Article 5 of the Convention on the Rights of the Child (hereinafter CRC). 14 Ibid., Article 7. 15 Ibid., Article 9. 16 Ibid., Article 18(2). On how this assistance should alter in the case of alternative parents, see below.

In so far as the Convention envisages situations where the child may be deprived or separated from his or her family environment, it also contemplates the creation of alternative care. Such alternative care has been defined to include foster placement, institutional care and adoption.17 The system of adoption, wherever recognised, has to be worked in accordance with the principle of best interest of the child.18 Article 21 of the Indian Constitution specifies the safeguards that need to be observed whilst sanctioning adoption. It also requires the choice of inter-country adoption to be ‘considered as an alternative means of child care if the child be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child’s country of origin’. Once permitted, an inter-country adoption must enjoy standards and safeguards to those existing in the case of national adoption. In articulation of the second limb, Article 7 of CRC grants to all children the absolute and unequivocal rights to be registered on birth, and to acquire a name and nationality. This is carried further by Article 8 whereby States Parties undertake to respect the right of a child to preserve his or her identity including nationality, name and family relations as recognised by law without unlawful interference. If any part of this identity is illegally denied, States Parties are mandated to provide assistance to the child to speedily re-establish his or her identity. If these two limbs of the Convention are harmoniously construed, then the following propositions can be deduced from the Convention:

procedural

cannot

equivalent

immediately obligation

To the extent possible, a child should live and be cared for by his or her biological parent. That a child obtains a name and nationality from his parents, and this name and nationality is an integral component of his identity. If due to certain unavoidable circumstances a child has to be separated from his or her family, then systems of alternative care (including adoption) can be considered. However, as the child has the right to retain his or her name and nationality, adoption which results in change of name or nationality cannot happen against the will of the child. 17 Ibid., Article 20. 18 Ibid., Article 21.

An adoption against the will of the child or in infringement of legal procedure would be an illegal deprivation of a child’s identity, and a child is entitled to seek help to re-establish his or her identity. However, if the identity of the child has not been altered illegally, does the child still have a right to seek assistance to search for his or her identity?19 Even in situations where the identity of a child is being changed legally, does the child have the right to demand that records of his or her original identity be maintained with a right of access to the child? Both these questions should be answered in the affirmative if reliance is placed on the articles stressing on the primacy of relations between parents and child in the Convention, as also on the belief that the identity of the child flows from the parents. Such an opinion could be disputed as these questions have not been explicitly in the Convention. Article 21 requires States Parties to or permit the system of adoption guided by the principle of best interest. Hence it would be necessary to consider what would be the dictates of this principle in devising a law of adoption. As the principle is being operationalised in the context of adoption, it would be necessary to first describe how the adoption experience differs from giving birth to a child.

answered recognise

How

Adoption

Dif ers

from

Giving

Birth?

This description on the differences between adopting a child and giving birth to one is largely drawn from Vinita Bhargav’s study on adoption (Bhargava 2005). In the first instance it needs to be that in becoming a parent, an individual assumes a new responsibility. This responsibility is assumed anew with every child; however, it is most strongly experienced with the first child.When this responsibility is assumed by giving birth, the parents are given the time to prepare for the assumption of parental by the biological time of gestation. This preparation time is not

appreciated responsibilities

19 The need of adult adoptees to know about their background was recognised by an expert group framing guidelines on procedure concerning inter-country adoptions and was adopted by the Economic and Social Council in its 20th session;cited in Diwan (2000: 168).

accorded to adoptive parents. They are required to follow a series of bureaucratic,20 investigative21 and medical 22procedures. However none of these procedures inform them of the time by which they would in fact receive a child in adoption. 23 There are reports of parents who received a child within a few days of registration and others who had to wait for as long as two years (Bhargava 2005: 94–96). Whilst the 2004 Guidelines speak of pre-adoption in the main, the adoptive parent gets into the role of an alternative parent without really comprehending what it entails. This situation is further complicated by what Bhargava terms ‘the oversensitive adoptive parents’. Thus, the extended family who play a vital role in biological parenting are uncertain about their role in adoptive parenting. The crucial question then is how should the adoption process be structured so as to give parents the time to prepare themselves for this experience of parenting. Adoption is an alternative method of parenting which confronts 24 the adoptive parent with the dilemma of disclosure. To disclose or not to disclose is a dilemma between an uncomfortable truth and a

counseling,

20 According to the 2004 Guidelines, the prospective parents are required to register themselves with a Licensed Adoption Placement Agency. 21 After the registration, the second stage of the adoption process is a Home Study Report which has to be prepared by a qualified social worker or designated officer of the state government. This Report is aimed to assess the ability of a couple to parent a child not born to them. The marital status, age and financial status, and a clear police record, have to be evident from the Home Study Report. 22 There is no explicit mention of the need to check the health status of the parents in the Home Study Report. The 2004 Guidelines do not make mention of the need for a sterility certificate from the prospective parents; however, documentation of actual practice constantly mentions the need to provide a sterility certificate. See Dhanda and Ramaswamy (2005). 23 The 2004 Guidelines mention that after the Home Study Report and the parents being found eligible, the adoption agency will match the parents to the child. Once the matching has taken place, an application to the competent seeking approval of the adoption shall be made. This court process, the 2004 Guidelines says, takes 2–4 weeks. However, no time limit has been set for the earlier stages. It is only when the prospective parents reach this last stage can they the time within which they could get the child. If this time estimation is correct, then the prospective parents get a maximum of 4,and a minimum of 2 weeks, to prepare themselves. 24 Assistive reproductive techniques offer another method of alternative parenting which have some features of biological parenting and some of the adoptive. The of disclosure are more complex in assistive parenting; Kernberg (2002: 475–76).

prospective authority

estimate

responsibilities

precarious falsehood. If the parents choose to disclose, they not only redefine their relationship with the adoptive child but cause a redefinition of the child’s identity.25 Research shows that the of this redefinition vary from child to child. However, no systemic support is available either to the parent or to the child; and each parent-and-child has to devise its own coping mechanisms. If the parents choose not to disclose, then they have to live under the constant fear that the child may come to know its adopted status from elsewhere. When non-disclosure is taken as a choice; the parent– child relationship subsists on restrictive communication and socialising. Further, such like parents wish to only adopt such a child as can be passed off as their own. This is a preference which may be approved by the CRC which stresses on continuity in a child’s upbringing and due regard to be paid to the child’s ethnic, religious, cultural, and linguistic background.26

consequences

structured The act of adoption, except when used as a measure of

rehabilitating an orphan, is a tripartite affair involving the biological parents,

the adoptive parents and the child.27 When a parent gives up his or her child due to social censure or economic constraint, the act of relinquishment causes lifetime grieving and loss for the parent. And the child not knowing the circumstances of surrender is engulfed with feelings of betrayal and abandonment. These consequences require the veil to be lifted from such like surrenders. They also cause one to question whether adoption should be considered as when displacement from the birth parents is caused by such circumstances? Best Interest of the Child would require strategies which prevent such displacement from happening to be put in place.28 Once it is conceded that the act of adoption differs from giving birth, then the question necessarily arises should the biological of parenting also be extended to adoptive parenting? Should

rehabilitation

constraints

25 A colleague who had consented to adopt a Roma child in Hungary was advised not to disclose this identity to the child by the Director of the Orphanage saying ‘It will be a big enough shame at the age of 18 to learn about that.’ Gabor Gombos, communication, March 2006. 26 Art. 20(3) CRC. On some of the dilemmas surrounding disclosure see Bhargava (2005: 114–19). 27 There could be situations when the larger biological family and the extended adoptive family may also be involved. 28 See, for example Moody (2001: 867).

personal

the law privilege the heterosexual nuclear family even in adoption? Or should the culture of care allow for diversities in families? If is conceded would it be an infringement of the rights of the child? The answer to this question will differ depending upon whether families are conceptualised as a kinship network or as which both provide protection and encourage growth and development. The latter kinds of models may be considered only when the in the adoption relationship is highlighted rather than This can happen only when adoption is viewed as a distinct method of forming a family with its own emotional gains, and not when it is constituted as counterfeit biological family. In order to determine how the law should order the relationship of adoption and how the psychosocial consequences of the bond should be it is necessary to consider the extant law on child adoption.

diversity

relationships difference camouflaged.

addressed, Extant

Law

of Adoption

As already mentioned in the introductory section, child adoption in India is regulated under diverse legal regimes. At this point of time adoption can occur under the following legal regimes: the HAMA; the JJA; and the ICA Guidelines. In what follows, each of these legal regimes will be examined to determine how the relationship of is perceived under them and what aspects of the relationship are regulated by the law.

adoption Hindu Adoption and Maintenance Act 1956

HAMA was an amendment and codification of the shastric Hindu law of adoption. This statute brought forth revolutionary change, when it moved away from the exclusive preoccupation with of a son which subsisted in traditional Hindu law, by allowing for the adoption of a daughter.29 Hindu law allowed for adoption as it was believed that salvation could not be obtained unless a son performs the funeral rites and attendant religious ceremonies. If a son was present to perform these rituals there was no justification for adoption. Even as the justification is no longer ostensibly present its restrictive logic has been retained. Thus a Hindu can make a valid

adoption

29 On the Hindu law of Adoption before HAMA, see Bajpai (1996); Diwan (2000); Kumar (2004).

adoption only if the adopter does not have a living Hindu son or son’s son or son son’s son whether by legitimate blood relationship or by adoption.30 Traditional Hindu law did not contemplate of daughters but HAMA allows it. However, here too adoption is meant to be restorative in operation, and a daughter can be adopted only if the adopter does not have a Hindu daughter or son’s daughter living at the time of adoption. 31 The restrictive content of these underscores the fact that the relationship of adoption was viewed as a means of compensating those who do not have legitimate heirs. It is interesting to note that in specifying the disqualification of existing heirs, the lawmakers have treated legitimate blood and adoptive relationships at par. Thus, the disqualification subsists even if the adoption has not been made by the adopter which would be the case when an adoptive son’s son or son’s son’s son or son’s is included. The finality of the adoptive relationship is again by section 15 which places an embargo on the cancellation of a valid adoption whether by the adoptive parents or the adopted child.The statute creates a legal fiction whereby the adopted child shall be deemed to be the child of his or her adoptive father and mother for all purposes from the date of adoption. The section does not stop at only forging relationships but goes a step further and severs all connections between the adopted child and his or her birth family.32 However, provisos (a) and (b) do speak of certain continued Thus, the birth connection is acknowledged in proviso (a) of section 12 when the adopted child is prohibited from marrying ‘any person whom he or she could not have married if he or she had continued in the family of his or her birth’. And proviso (b)

adoption

adoptions

daughter underscored

responsibilities.

30 Section 11(i) of HAMA. 31 Ibid., section 11 (ii). 32 The controversies arising in Khazan Singh v. UOI AIR 1980 Del 60 and Sailaja v. Principal Kurnool Medical College AIR 1986 AP show how this severance can be utilised for ulterior motives. In the first case, a grown-up Jat man claimed to have been adopted by a Julaha (kabirpanthi) just a few days before he applied for a post reserved for backward classes. In the second case, a similar claim was made by a teenage girl from a Brahmin family whilst applying for a reserved seat in the state medical college. Whilst the Delhi High Court chose to ignore the motive prompting the adoption, the Andhra Pradesh High Court saw public policy ramifications in the concealment, and held otherwise. Whilst the core controversy raised by these cases is not the concern of this article, they do show that the finality introduced by the statute is not absolute. For a collation of judicial decisions of a similar nature see Balu (2003: 537–42).

allows the adopted child to retain any property which may have vested in him or her before the adoption. The ownership is of the ‘obligation to maintain relatives in the family of his or her birth’. The adoption visualised in HAMA is primarily an adoption families. Thus, the statute lays down elaborate procedures with regard to who may give or take in adoption. Being a Hindu 33 is a mandatory condition for both the giver and the taker in adoption. If the parents of a child are giving the child in adoption the statute does not visualise judicial intervention. Hence, there is no mention of consulting the child or asking his or her opinion in the matter. The court comes into the picture only if the parents of the child are dead ‘or have completely and finally renounced the world or have abandoned the child or have been declared by a competent court to be of unsound mind or if the parentage of the child is not known’. In such a situation the guardian of the child may give the child in adoption with the previous permission of the court.34 And the court, in granting permission, is to be satisfied that the adoption is for the welfare of the child and the applicant has not derived any monetary benefit from the transaction. In contrast to the adoptions prompted by parents, when adoptions are sanctioned by courts, the statute requires that the court should arrive at its decision giving due consideration to the wishes of the child, having regard to the age and understanding of the child. 35 It may be noted that the wishes of the child have not been given determinative value but the court is required to take it into account when arriving at its decision. in the Adoption Guidelines 2004 an application for the of a child above six years has to be accompanied with the written consent of the child. This requirement has made the signing of a form by the child equivalent to consent and once such consent forms

inclusive

between

Interestingly, adoption

33 A condition which is not as restrictive as it seems in light of section 2 of HAMA which specifies the application of the Act. According to the section, the Act applies to ‘any person who is a Hindu by religion in any of its forms or developments; to any person who is a Buddhist, Jaina or Sikh by religion; to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed’. 34 Section 9(4) of HAMA. 35 Ibid., section 9(5).

are appended with the application there is little chance that courts will suspect its validity or seek to independently verify it. 36 The relationship of adoption is predominantly being created in a heterosexual family which may or may not be nuclear. In fact, as monogamy had just been introduced by the Hindu Marriage Act in 1955, this statute is speaking of multiple wives and specifying which wife would be the adoptive mother and what the relationship of the other wives shall be to the adopted child. Irrespective of their status, a married Hindu male taking a child in adoption has to obtain the consent of all his wives. This condition seems to show recognition of the fact that a new relationship should be created with the consent of all members of the family and the non-participation of any one member could be a cause of trauma and tension for the child. even as the statute primarily contemplates adoption to be undertaken by couples it does not make marriage a prerequisite to adoption. Thus, a single male and a single female have also been eligible to adopt with the only additional requirement that there should be a difference in age of at least 21 years when a female adopts a male child or a male a female child.37 This apart, the statute does not lay down any additional requirement when an adoption is undertaken by a single male or female. Data from the field again shows that adoption agencies are less willing to give children in adoption to single parents (Bhargava 2005; Dhanda and Ramaswamy 2005). Irrespective of its implementation the fact that HAMA such like adoption does show that the rationale of religious salvation did not prevail for all adoptions under HAMA and the law-makers were also exploring the utility of adoption as a of rehabilitation.

However,

considered

permits

mechanism

36 This surmise is primarily being made because of the Dhanda and Ramaswamy study (2005), which has shown that courts tend to exercise their powers mechanically in such like non-adversarial proceedings. 37 It could be contended that the statute has incorporated this condition for the authentic creation of the parent–child relationship and possibly to protect the child from sexual abuse. However, there is nothing sacrosanct about the age difference which is evidently arbitrary in import. Even so the age difference has been rigidly applied by the courts. Thus, in Devagonda Patil v. Shamgonda Patil, AIR 1992 Bom 189, the court invalidated the adoption when the age difference between adoptive mother and adoptive son was 20 years and not 21. A similar consequence occurred in Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235, when the age difference was 19 instead of 21 years.

The fact of being adopted into a family makes for the creation of property rights for the adoptive child in the adoptive family. However, these rights only arise from the time of the adoption and the adopted child shall not divest any person of any estate which vested in him or her before the adoption.38 Even as adoption of a child is a more conscious assumption of responsibility, the parity with biological children is continued, and the adoption in no way prevents the parents from disposing off their property by disposition.39 Except when the child is not being given in adoption by the the HAMA model of adoption is a facilitative one. The statute specifies the conditions of a valid adoption but does not require any official imprimatur to confer validity to the adoption. It is a different matter that utilisation of official channels enhances the legal value of the adoption.40 If the official channels are not utilised, then the question of openness is left to the discretion and choice of the parties. If the adoption is occurring within the family, it alters the property entitlements but the emotional ties remain. The child remains varyingly connected with both the biological and the adoptive family. In a number of case studies, Bhargava records this absence of as the reason why a number of parents do not wish to adopt within the family (Bhargava 2005: 92–93). Parentage is being shared in all adoptions; however, in non-familial adoptions this sharing is not an everyday physical occurrence. Interestingly, it is this same desire for exclusivity which is reported to have caused open to flounder in jurisdictions which permit them. As already mentioned, in parent-driven adoptions there is no legal obligation to consult the child. It is presumed that the parents would necessarily act in the child’s best interest. In so far as this presumption both parental good faith and judgement it may be open to question. However, questions can also be raised on the value of the consultation even if required. After all, keeping in view the relationship between parents and child the parents could, well convince the child that what they have contemplated for the child is in his/her best interests. The statute leaves the issue of continuity of upbringing and commonality of background to the

testamentary parents,

exclusivity

adoptions

encompasses

symbiotic 38 Bhargava (2005), and Dhanda and Ramaswamy (2005). 39 Section 12 (c) of HAMA. 40 Ibid., section 13.

discretion of the parents again on the belief that these are factors that parents are bound to take into account. In contrast, in adoptions sanctioned by the court there is explicit mention of consultation with the child, and continuity of Whilst consultation with the child may be undertaken by the judges, the matching of backgrounds is primarily carried out by the adoption agencies with the court providing a mechanical stamp of approval. This ‘matching’ is informed by a class bias, which is all the more pronounced when the agency is also engaged in intercountry adoptions.41 Also, whilst an obligation to consult has been incorporated, the weightage to be accorded to the opinion of the child has been left to the discretion of the court. It may be said that as the weightage to be accorded is linked to the age of the child, the criterion is in accord with the ‘evolving capacities’ formula of the CRC. Again, in practice, possibly because of the more paternalistic perspective towards children, such consultation is conspicuous by its absence. In the non-familial HAMA adoption there is a status changeover for the adoptive child. By a legal fiction, the adopted child is born anew in the adoptive family. In accord with this newly-born status, full inheritance rights are accorded to the adopted child in the adopted family. The finality of the relationship is underscored by the fact that neither party can go back on it. 42 Except for the taboo, there is no acknowledgement of the birth family.43 As the fact of birth is virtually wiped clean, HAMA does not even admit that a part of the child’s identity resides with the birth parents and that the child may wish to search for his/her roots. Similarly, having given up a child for adoption, the birth parents lose all with the child. This legal model of adoption is in no way

background.

marriage connection

41 Section 16 of HAMA states that whenever a registered document recording an adoption is produced in court, the court shall presume that the adoption recorded by the registered document is in accordance with the provisions of the law and the burden of proving otherwise lies on the other party. 42 For the interplay between in-country and inter-country adoptions, see Dhanda and Ramaswamy (2005) where they have demonstrated how agencies engaged in inter-country adoptions make offers to Indian parents to obtain rejections rather than consent. Also, even parents with whom a child is placed are made to sign a cluster of rejection slips which are then used by the adoption agencies to demonstrate that the child is being placed abroad after three or more Indian parents had rejected the child. 43 Section 15 of HAMA.

inspired by the socio-cultural model of adoption prevailing in Hindu society whereby adoption only resulted in altered property but the emotional ties were retained.

entitlements Juvenile Justice (Care and Protection of Children) Act 2000

HAMA put in place a hybrid system of adoption. One segment of the system is worked by the families, and the other is run by the apparatus of licensed adoption agencies, Child Welfare Boards and Courts. The JJA on the other hand provides for a system which is primarily mediated by officialdom, be it the licensed adoption agencies or the child welfare boards or courts of competent This is because, in contrast to the HAMA, the JJA proposes adoption as a strategy of rehabilitation and social reintegration. These efforts need to begin once a child is required to stay in a children’s home or a special home.44 The statute places the primary for providing care and protection upon the family.45 Adoption is to be resorted for the rehabilitation of such children as are abandoned, neglected and abused.46 These adoptions are to be effected in accordance with guidelines promulgated by the state government or the Central Adoption Resource Agency (CARA) and notified by the central government.47 Other than this omnibus of the state government, the statute lays down the explicit conditions for making a valid adoption. Thus, no abandoned child is to be placed in adoption unless two members of the Child Welfare Committee declare the child to be free for adoption. 48 In the case of a surrendered child adoption has to be considered only after the two-month period for reconsideration by the biological parent has expired. 49 Where a child is able to and express his consent, an adoption cannot be ordered without his consent.50 Whilst declaring that an adoption cannot be made

official

jurisdiction.

responsibility orphaned,

empowerment following understand

44 Section 12(a) of HAMA which states that ‘the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth.’ 45 Section 40 of JJA. 46 Ibid., section 41(1). 47 Ibid., section 41(2). 48 Ibid., section 41(3). 49 Ibid., section 41(5) (a). 50 Ibid., section 41(5) (b).

without fulfilling these requirements, the statute allows a child to be given in adoption to a single parent.51 The ICA Guidelines lay down that a single adoptive parent should be above 30 and less than 45 years of age. Despite the permission of the statute, girls are not to be given in adoption to a single male parent. Single are required to provide evidence of independent family support before a child can be given in adoption to them. This support has necessarily to be of other members of the natal family as the prohibit the giving of a child in adoption to same sex couples. The cautious tenor of the guidelines explains why despite statutory permission, single persons have found it difficult to get a child in adoption. The JJA has not linked the creation of relationship by adoption with the religion of the adoptive couple or the adopted child. In so far as the existing biological children embargo has been lifted, the statute even permits Hindu couples to adopt under it. However, the statute is totally silent on the legal status of this adopted child. A child adopted under HAMA obtains the right to inheritance; no such entitlement has been expressly provided in JJA. This omission has been attempted to be corrected in the 2006 Amendment of the Act by inserting an ambiguously worded definition of adoption.52 Adoption is defined to mean ‘the process through which the adopted child is permanently separated from his biological parents and the adoptive child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship’. As the provisions of JJA do not explicitly override HAMA, it is far from clear whether this definition will suffice for creating inheritance rights in favour of the adopted child. The JJA is creating a hierarchy between adopted children. It is important to ask whether such a hierarchy is in the best interest of the child. This variability between statutes is acknowledged by the Guidelines when it requires Licensed Adoption Placement Agency to counsel parents on the various laws under which they can adopt a child, and also to inform the parents of the varied rights and responsibilities under each statute.53 The only effort the Adoption Guidelines make to some kind of an identity to the child is by specifying a procedure

however

persons guidelines

become

prospective provide 51 Ibid., section 41(5) (c). 52 Ibid., section 2 (aa). 53 Guidelines 1.1.5 stage IV.

by which a birth certificate bearing the name of the adopted parents can be obtained for the adopted child.54 The Central Government Guidelines on In-Country Adoption has specified both the procedure by which adoption has to be as also the eligibility conditions for adoptive parents. Adoption can be considered for both abandoned and surrendered children. In both cases, after observance of the specified procedure, a child is available for adoption within a period of two months. In the main, the guidelines place a lot of emphasis on signatures: if a married couple surrender a child, the surrender document has to be signed by both parents; and if the child is born out of wedlock, only the mother can make the surrender. If the mother is a minor, the has to be countersigned by an accompanying relative.55 The guidelines require that the parents should be counselled on the finality of the surrender, but even as the JJA states that the primary responsibility of caring for the child is with the parent, at no juncture is there an obligation placed on government authorities to go behind the reasons of surrender and try and alleviate them in order that the child can remain with the parent.56 This continues to be the case despite it being found that, upon support being provided, even unwed mothers prefer to retain rather than surrender their children.57 The equanimity with which the surrender is contemplated is also by the limited time for reconsideration accorded to the parents. If the decision is prompted by pressing socio-economic constraints, then two months is hardly sufficient for a parent to plan a recovery of the child. If the process of surrender is problematic, then the procedure of abandonment is no better. There is an acontexual construction of abandonment in JJA. The lawmakers seem to be oblivious of the difficult socio-economic circumstances in which poor people earn

effected

document

evidenced

54 Guidelines 1.1.12. 55 Guidelines 1.1.3.

56 Sociological studies on surrender have continually shown that despite guidelines to the contrary there is greater pressure on vulnerable parents to give up their children than to retain them. The Cradle Baby Scheme of the Government of Tamil Nadu is a dramatic illustration of state encouraging parents to shirk rather than assume responsibility. 57 A telling illustration is provided by the Bal Sadagopan Scheme of the Government of Maharashtra which provided child support to mothers without linking the same with the marital status of the mother. A number of mothers preferred to retain their children rather than give them up. See n. 23 supra.

their livelihoods and care for their children. With no child-care facilities available, poor parents are often forced to leave their at home and go to work. If, then, an unattended infant toddles off or gets lost, it can hardly be contended that the parent has the child. The procedure for tracing the parents of the lost child, i.e., advertisements in newspapers and television, is again oblivious of the capability deprivations of poor people. A sociolegal investigation on inter-country adoptions has further found that children categorised as abandoned are often kidnapped or stolen, and the situation has come to such a pass in Andhra Pradesh that parents whose children get lost begin their search by first inquiring with adoption agencies (Dhanda and Ramaswamy 2005). These problematic dimensions are missed out when abandonment and surrender are taken at face value. Abuse of power is made easier by the fact that the biological parents have been granted no locus to interrogate the process and nor is there any obligation on the LAPA to provide information on the place of adoption to the birth parents.

children abandoned

Procedure

for

Inter-Country

Adoptions

Once a child is authoritatively found to have been abandoned or recognised as duly surrendered, then it is free to be given in adoption not just within but also outside the country. If the process of sourcing children (discussed earlier) is problematic for domestic adoption, it is all the more so for foreign adoptions. It is a different matter that foreign adoptions are to be considered only when — within a specified period of time — a domestic adoption does not take place. However, this time set aside for domestic adoption holds meaning only if such time is utilised to actively seek a domestic placement for the child. Socio-legal investigations on inter-country adoptions have however found that this time period is observed more in the breach, and documents are forged to create a false impression of observance. The investigation further finds that, wherever observed, the time period is treated more as a legal impediment which has to be surmounted before children can become available for foreign adoptions rather than a time period within which an in-country home has to be found for the child. In similar manner, the exempted categories — children with disability, or twins, or siblings — are falsely employed to circumvent the mandatory effort for in-country (Dhanda and Ramaswamy 2005).

placement

The study also documents the implementation deficits of the entire official adoption system ranging from the Voluntary Agency to the Central Adoption Resource Agency to the courts. This failure is to a great extent prompted by the belief (especially of courts) that sanctioning a foreign adoption is to opening up opportunities in lands of milk and honey for poor, deprived children. This belief is held despite the Convention on the Rights of the Child and the L.K. Pandey Guidelines holding otherwise. The adoptees who are sent to these countries of also do not share this belief of Indian officialdom.A number of psychosocial studies on adoptees have found that there is a representation of adoptees in the psychiatric clinics of these developed countries and they lose out from their peers on all the parameters of achievement (Goodman and Kim 2000: 1–17; Dhanda and Ramaswamy 2005: 51–60). A much-documented agony of the adoptees is the search for their roots. The Pandey embargo of secrecy does not apply to the Guidelines have left the matter of seeking out the birth record to the discretion of the adoptive parents and the grown-up adoptee. However, a record can be obtained only if one is maintained. The adoptions are often sanctioned without a rigorous scrutiny of the records, hence the adoptee is frequently unable to trace his/her roots with the aid of the records. This situation is further complicated by the fact that a number of records are fabricated. Whilst the Pandey Guidelines at least acknowledge the curiosity of the adoptee, the anxiety of the birth parents has been dismissed. In fact, the Supreme Court at many a point in the Guidelines asked the fact and place of the adoption to be especially concealed from the birth parents. This course of action has been mandated by the court in order to prevent any financial harassment of the adoptive parents. Not only do these Guidelines smack of against poor parents who are forced to surrender their they are also oblivious of the questionable circumstances in which a number of children are given in foreign adoption. If there had been an obligation to take the birth parents into confidence, a number of fabrications and forgeries would have been discovered. Also, a poor parent would at least be able to retain some emotional contact with their child. The ICA Guidelines make mention of the need to counsel adoptive parents on open adoptions. This of openness has not as yet been extended to foreign adoptions.

Coordination equivalent

opportunity disproportionate adoptees;

peremptorily

prejudice children,

requirement

There is a need to reconsider the requirement of total secrecy on adoption information to birth parents by the Pandey ruling.

imposed Towards

A Child-Friendly

Adoption

Law

This article has been premised on the argument that taking a child in adoption is distinct from giving birth to a child, and for this to be a fulfilling one, it is necessary that this difference is acknowledged in policy and law. The analysis here has demonstrated that before an adoption is approved, the adoptive parents are to rigorous scrutiny to assess their suitability as parents. once an adoption is approved and the legal seal of finality conferred on it, the adoptive relationship — be it in-country or intercountry — is left to its own devices. The ICA Guidelines do speak of pre- and post-adoption counselling. Wherever provided, this is a device to help parents cope as individual parents. It in no way creates a community for them whereby they can revel in their own and not feel defensive about it. This community creation is necessary because the adoptive parents are continually confronted with the dominant norm where parenting is a responsibility acquired by giving birth to the child to be parented. This difference causes both parents and child to feel defensive and try to merge with the majority or pass off as the same. To stand up for themselves it is that adoptive parents and adopted children also have their own support networks. These networks, like the networks of other minority groups, allow for acceptance of difference without feeling deviant or marked.58

experience subjected However, difference necessary

58 A colleague in the United States who is bringing up a biological daughter and an adopted son states in a personal communication that it is not possible to forget that one of the children is adopted because adding an adopted child to our family mix has meant changing the entire family discourse. It’s not that you raise them both as biological kids: the way you raise both of them is impacted by the fact of being an adoptive family, and the biological child is raised as part of an adoptive family just as the adopted child is, with sensitivities, etc., that non-adoptive family kids don’t have. ‘Maisie will ask a question about one of her ancestors, and I’ll know the answer, and Liam will say, “What about my great-grandfather?” or whatever. And I have to say that I don’t know, because I elected not to pretend that when I adopted him my family tree became his, wiping out his own. Or Maisie will talk about her mixing-pot heritage — the birth countries of all of her relatives — and then Liam will ask about his and I’ll tell him he’s 100 per cent Indian — I assume it — and he’s deflated because though he’s so proud of his Indian-ness, he knows his personal Indian

Individuals take the adoption choice in the belief that nurture prevails over nature. Child psychologists will, however, ask adoptive parents to acknowledge the biological reality of the child. parents would be told that they are undertaking the task of rearing with a veil on one-half of the child. It is this continuous with the veiled half of the child which makes a case for open adoptions in which the adoptive parent does not just adopt a child but also establishes and retains contact with the birth parent or parents. Earlier in this article it was mentioned that one of the reasons why couples opt for non-familial adoptions is to let them have an exclusive claim on the child. Open adoptions by seeking to retain contact with birth parents eliminate one of the primary advantages of non-familial adoptions. Despite these reservations of adoptive parents it needs to be considered whether the exclusive model of adoption does not in some manner reduce the child to a piece of with a single owner. Monogamy is suitable for marital not for parenting. Infact multiple emotional ties enhance emotional security in a child.59 Non-familial closed adoptions may cater to the possessive streak in couples but it is doubtful that this secrecy and exclusivity is in the best interest of the child.

Adoptive struggle

property relationships

The questions surrounding closed adoptions need to be raised

not just because of the parenting problems faced by the adoptive parent but also because of the identity crises confronted by the child. It has to be accepted that a part of the child’s identity flows from the birth parent, hence information on or contact with the birth parent could be a better way of handling the separation pangs than denial of the separation. These identity crises are surfacing most acutely with inter-country adoptions as there the option of passing off is also not available.60 Therefore, this veil of secrecy should be raised with foreign adoptions so that a child does not feel severed history is behind a curtain, and so the question dead-ends. This kind of stuff happens all the time. In the normal course of being raised up and taught one’s history — who one is — Maisie gets both the information and the repeated, cemented connection to me, and Liam not only doesn’t get the information but has to witness again and again that Maisie is connected to me in ways that he will never be’. Inger Iforland, personal communication, November 2005. 59 Ibid. 60 Of significance here is the experience of colleagues with psychosocial disability who tried to adopt a child after disclosing their medical history. Their application was refused in the first instance even as the investigating authorities acknowledged that they had no real tests for assessing parenting capabilities. In the absence of any scientific

from his or her roots, and an emotional support in the country of origin is retained.61 In accord with the CRC, this article has advocated that the option

of adoption should be considered only if the birth parent or parents cannot be assisted in retaining the child. Temporary family crisis may be better handled through fosterage arrangements rather than adoption. A similar interrogation is required of adoption of children of unwed mothers. Adoption does not have to be considered as the first option if social and economic support helps the mother retain the child. If Adoption is accepted as a method of providing home and to a child — a family which would give love and nurturance to a child, then the necessity of replicating the prototypical nuclear family is no longer felt. A diversity of family types can then be more openly considered suitable be they same-sex couples or single-parent families. This reconsideration would need to extend to other eligibility criteria such as economic status. The ICA sociolegal study has documented how working-class parents are routinely turned away by adoption agencies even as a number of children who may be available for adoption may be coming from 3 class homes. Adoption then would be about finding a loving home for a child, not an effort at improving his or her economic This criterion needs to be kept in mind when despite the CRC and the Pandey Guidelines foreign adoptions are preferred over Indian ones. Finally, the JJA model of adoption without any further on the inheritance rights of the adoptive child seems to be creating a second-class status for the adopted child.This may be because a uniform law of adoption has been smuggled into the to avoid the controversies emanating from earlier efforts at a uniform law. The legislation in no way protects the rights of the child and lays no obligations on the adoptive parents — a situation which cannot be considered in the best interests of the child. The definition of adoption inducted in the JJA by the 2006

family heterosexual

prospects.

clarification

statute enacting

expertise, decisions were primarily being arrived at on the strength of stereotype, one such stereotype being that persons with psychosocial disabilities cannot be good parents. Interestingly, in their case this conclusion of incapacity was reversed when they chose to challenge the finding in appeal. Gabor Gombos, personal communication, March 2006. 61 A rationale also advocated by Bajpai (1996).

Amendment is an effort at denying rather than confronting the problem of lesser rights. If the lawmakers wished to avoid the imbroglio, they could have done so, more forthrightly, by insisting that where the adoptive parent has living biological children and is bound by a religious personal law which would make such adoption invalid, there the adoptive parent will enter into a agreement outlining the entitlements of the adopted child. I do not agree with Bhargava (2005) when she holds that the JJA is a move forward in so far as it is encouraging a uniform practice of adoption. Once such a practice acquires greater social acceptance, inheritance rights can also be provided for. Bhargava is proceeding on the ‘something is better than nothing’ logic. However, it is my opinion that in the realm of personal relationships and especially in a relationship to be forged with a child, it is better to have nothing than have a discriminatory second-class something. Acceptance for the practice of adoption should be obtained by lending social, and logistical support to the adoptive parent, but not by according a lesser status to the adopted child. Adoption is preferred to institutional care because it is believed that a home is more to the growth and development of a child. In making that transfer from institution to home, care has to be taken to ensure that the home is real, and not a mirage.

inheritance contractual

psychological

conducive References

The Adoption Bill of 1974. The Adoption Bill of 1980. Bajpai, Asha. 1996. Adoption Law and Justice to the Child . Bangalore: Centre for Child and the Law. Balu, N. 2003. ‘Adoption Some Unresolved Issues’ JILI, vol. 45( 2&3): 537–42. Bhargava, Vinita. 2005. Adoption in India Policies and Experiences . New Delhi: Sage Publications. Diwan, Paras. 2000. Law of Adoption, Minority, Guardianship and Custody . 3rd edn. New Delhi: Universal Law Publishing Company Ltd. Dhanda, Amita and Gita Ramaswamy. 2005. On Their Own: A Socio-Legal Investigation of Inter-Country Adoption in India . Hyderabad: Otherwise Books. Goodman, Joan and Stacy Kim. 2000. ‘Outcomes of Adoption of Children from India: Subjective versus Normative View of Success’, Adoption Quarterly , 4(2): 2–27.

Kernberg, Paulina. 2002. Book Review of V.B. Shapiro, J.R. Shapiro and I.H. Paret, ‘Complex Adoption and Assisted Reproductive Technology’, Archives of General Psychiatry, vol. 59(5): 475–76. Kumar, Vijendra. 2004. Hindu Law of Adoption Principles and Precedents. Hyderabad: S. Gogia and Company. Moody, Rachel. 2001. ‘ Women Must be Helped to Consider All Options’, British Medical Journal, vol. 323, October.

Paternalistic 5

Law,

Autonomous the

Child Responsible

and Judges

Archana Parashar ‘Best interests of the child’ (hereafter BIC) is a pervasive concept in all common law countries. This is entirely in keeping with the role of the law as the protector of the vulnerable. Family law has endorsed the cultural construct of the child as a vulnerable subject because of the natural immaturity of the very young human being, and entrusted the judges with the task of deciding what is best for the child. Inevitably, the courts are asked to exercise very wide as they assume this role of deciding what is in the interests of the child, but at the same time, judges have been subjected to constant criticism for being paternalistic. One of the perennial in the area of family law is whether this paternalism can and ought to be replaced with a guarantee of legislative rights to the child. Such a development would be in keeping with the rise of the Children’s Rights movement, in part manifested in the Convention on the Rights of the Child. This article will consider whether BIC are inadequately safeguarded because of the judicial paternalism and the lack of formal rights. It will be argued that the strictest of the rights of the child would nevertheless be interpreted by the judges and therefore, what is required is a sound basis for relying on the authority and the expertise of the judges. The article is divided into three broad sections. The first section reviews the presence of the BIC discourse in the Indian context, and attempts to ascertain why it is problematic. The second section

discretion questions

formulation

Parashar

relates to the general critique of the concept, and analyses the

development of the trend of replacing judicial discretion with legislative

formulae. In the third section an analysis of the nature of the judicial task is undertaken in order to argue that BIC will be served only if the conventions of legal reasoning and interpretation change. This is so because whether the judges are exercising wide discretion or are restrained by strict legislative formulations, ultimately they are the ones who make the decision. The contemporary modes of legal reasoning distance the interpreter from the consequences of their interpretations. This creates the false impression that the law is and it leaves the decision-makers (judges) free of for the consequences of their decisions. The interests of the children would be better served if the responsibility for choosing a particular position and its attendant consequences is seen as an aspect of the judicial task.

objective responsibility integral Indian

Courts

of the

Child'

and

the

Concept

of the

'Best

Inter st

A brief survey of the various High Courts’ decisions on the of the ‘best interests of the child’ very soon yielded a pattern.1 The judges have a very wide discretion in interpreting the concept of BIC. The relevant statutes do not give much guidance to the judiciary in deciding which factors to take into account. Guidance from the precedents is used in a very eclectic fashion. There is no reference to any sociological or psychological texts in determining the needs or requirements of the child. The judges are not assisted by any other ‘experts’ in making their determinations. The legislation governing the issue of BIC 2 is a combination of the Guardians and Wards Act 1890, and the religious personal laws of

interpretations

1 I began this article with the intention of conducting a comprehensive survey of all the High Courts’ reported decisions dealing with the concept of the ‘best of the child’ but realised very soon that they were all making very similar and exercising very wide discretion.Therefore, a random selection of the judgements is discussed in the following section.I have chosen to examine the High Court decisions as they are relatively less known; for a similar survey of the Supreme Court see Parashar (2003: 49–72). 2 In the Indian legal context the phrase ‘welfare of the child’ is used to denote the same ideas as encapsulated in the concept ‘BIC’.

interests assumptions

decisions

Law, Child and the Judges

Hindus, Christians, Parsis and Muslims.3 The pathways to the court include disputes in the context of divorce and maintenance or at times if a parent has died and the grandparents are unwilling to let the surviving parent bring up the child. The route to the High Court is sometimes through a writ of habeas corpus.

applications procedural

A random selection of the High Courts’ judgements is analysed

here as a context for the argument of this article. The Guardians and Wards Act 1890, declares the father as the natural guardian and only after him is the mother a natural guardian. This provision raises an initial question: may anyone other than the father initiate the proceedings with regard to the child? The Mysore High Court, in an early case,4 decided that the mother could bring a writ petition under the Guardians and Wards Act 1890, section 25, as it allows standing to de facto guardians as well.The mother was a Jewish American woman and had custody of the daughter but the father brought the daughter to India in breach of the American court’s order. Mysore High Court held that between custody and guardianship, the latter is a superior right. Under the Guardianships and Wards Act 1890, the father is the natural guardian and has a superior right. If, therefore, the ward was removed from the custody of its mother by the father of the child and is retained under his care, the mother will have no cause of action. The wishes of the child are relevant but only as a question of fact. The court

undoubtedly

3 The Guardians and Wards Act 1890, in section 19 recognises the father as the natural guardian. Furthermore, courts are enjoined not to appoint another guardian if the father is fit and has not been disqualified to be a guardian. Section 17 considers welfare of the child as the paramount consideration. ‘Welfare of the child’ is to be interpreted so as to be consistent with the personal laws. The Hindu Minority and Guardianship Act 1956 in section 6 also specifies the father as the natural guardian and it is only after him that the mother can be a natural guardian. It also specifies that the custody of a minor child up to the age of five years shall ordinarily remain with the mother; Islamic law declares the father to be the natural guardian but the custody of minor children is ordinarily given to the mother. Hanafi law allows the mother to have the custody of a boy up to age 12 and of a girl until she reaches puberty. The Parsi Marriage and Divorce Act 1936 allows the court to make orders for custody, education and maintenance of a minor child. And the Divorce Act 1869 (formerly the Indian Divorce Act 1869) authorises the court to make orders as to custody, education and maintenance of a minor child. In both cases, the Guardians and Wards Act 1869 imports the principle of father as the natural guardian. 4 Mrs Sara Dorine Ramanathan v. Swamynathan Ramanathan 1961 Mys LJ189. The writ petition by the mother was dismissed without any costs.

said it could not make an order that would place the ward out of its jurisdiction. Moreover, the court held that even though the father was he was a highly educated person, and in view of his he would find a job. The fact that the daughter had not attended school since she had been brought to India was not seen as a problem and the court allowed the father to decline the mother’s offer that she would pay half the expenses of the daughter’s education. The Gujarat High Court, in a later case, placed more emphasis on the importance of education.5 The mother argued and it was by the High Court that she should have custody of the three children who were living with the father. The father was a primary school teacher but did not send the two younger daughters to school, and there were suggestions of ‘mistreatment’ of the daughters by older step-brothers. The court granted custody to the mother, who was a vegetable vendor, on the basis that the father — who is a school teacher but has no value for educating his daughters — is obviously not able to look after their welfare. The welfare of the children also demands that they stay with the mother if they do not feel ‘safe’ in the father’s house. The High Court went on to say that even though the father is the natural guardian under the Hindu Minority and Guardianship Act 1956, the Act only created obligations and no rights of the parents. The interrelation between the claimed rights of the parents and the duty of the court to pursue the welfare of the child plays out in the arguments. The idea that the law does not create any rights of the parents but only demands that the welfare of the child should be safeguarded is repeated often. In ascertaining the welfare of the child, the courts rely on notions of common sense. For in one instance, the mother had brought the five-year-old child to India while the father was still living in Uganda. 6 The father, through his sister had applied for the custody of the child and the trial court had granted it. On appeal, the High Court reversed the and held that the trial court misdirected itself in focusing on the rights of the mother and father under the Guardians and Wards Act 1890. The true focus should be the welfare of the child. The

unemployed qualifications

accepted

frequently

example,

ruling 5 Savitaben Lagarbhai v. Manji Ramji Chavda Cri LJ 1983, 598.

6 Smt Sarla Shyamsunder Purohit v. Anandrai Harishanker Trivedi 1976, Hindu Law Reporter 731. Appeal allowed, costs awarded.

single judge went on to say that ‘one does not need books on

psychology to know that a child needs love and affection in the formative

years’7 which the mother could provide. In another instance, the court explained that the task of the court in an application for the custody of the child is to act like a wise father who should very carefully and anxiously weigh the various considerations and decide what would promote the welfare of the child.8 The Gauhati High Court upheld the orders of the district court that a nine-year-old female child needs her mother for many things and therefore the mother should have her custody.9 Orissa High Court refused an appeal by the father against the district court order for interim custody of the children to the wife. The court held that Section 26 of the Hindu Minority and Guardianships Act 1956 grants complete discretion to the court to decide what constitutes the welfare of the child, and the district court made no error in the exercise of this discretion.10 The Delhi High Court has held that the provisions of the Guardians and Wards Act 1890, and the Hindu Minority and Guardianship Act 1956 make it obvious that the of the minor predominates to such an extent that legal rights of persons claiming to be guardians, or claiming to be entitled to custody, will play a very insignificant role in a determination by the court.11 Moreover, the father may continue to be the guardian under the Hindu Minority and Guardianship Act 1956, and yet the custody may be given to the mother. However, the fact that the father is declared the natural guardian creates tensions between the father’s claims and those of the mother. For instance, the Karnataka High Court had occasion to discuss the Hindu Minorities and Guardianship Act 1958, which says that when the father is alive he is the guardian and it is only after him that the mother becomes the natural guardian.12 The court cited the Supreme Court13 that in those peculiar circumstances where the father is

welfare

7 Ibid.: 733. 8 Shrimati Gangabai v. Bheru Lal 1975 WLN High Court Reports 652. Appeal allowed, no costs. 9 Debi Prasad Mukherjee v. Sandhya Debi AIR 1985 Gau 97. Revision application dismissed, no costs. 10 Harulal Dasgupta v. Smt Saudamini Misra AIR 1985 Orissa 239. Appeal dismissed, no costs. 11 Nandita Virmani v. Raman Virmani 1983 CriLJ 794 (Del HC). No costs. 12 Mayamma v. N. Chikkanna 1984 (2) Kar LJ 215. Appeal allowed. 13 Jijabai Vithalrao Gajre v. Pathankan and others AIR 1971 SC 315.

alive but had fallen out with the mother of the minor daughter and was living separately and not taking any interest in the affairs of the minor, the father should be treated as if non-existent. Therefore, the mother could be considered the natural guardian of the minor’s person as well as personal property. The High Court said that in the dispute before it the father was wrongly given custody by the lower court on the basis that after divorce the father is the natural guardian and therefore gets the custody of minor children. In that decision the High Court said that the father was not in contact with the children, was not paying maintenance for them and had applied for custody as retaliation against the mother’s petition for maintenance. In these circumstances, the father would be treated as non-existent and the mother is the proper person for custody. However, courts have on other occasions held that the father cannot be disqualified in the absence of evidence that he was unfit for the role. There is a certain amount of confusion between the of guardianship and custody. Courts at times use the concepts interchangeably while distinguishing them in other instances. Very often the High Courts have to deal with disputes that have a long history of acrimonious litigation.14 For example, the Madras High Court interpreted the Guardians and Wards Act 1890 in an appeal by the father against the orders of the trial court.15 The trial court was dealing with a long-standing dispute with a very long of acrimonious litigation. The mother had applied for judicial separation under the Indian Divorce Act 1869 and the trial court had eventually granted the custody of the two younger children to the mother. The eldest son remained with the father. Appeal by the father against this order was partially upheld by the Madras High Court on the grounds that the clear intent and spirit of the Guardians and Wards Act 1890 is that the father is the natural guardian of his minor child unless otherwise found unfit. In the absence of such evidence, it must be presumed that the children’s best interests

reversing

concepts

history

14 It came as a surprise to me that even in these cases the courts are reluctant to grant costs to the mother who is invariably the complainant. It is for this reason that I have included the information, wherever available, about costs, with the citations in this article. 15 Jacob Chakramakkal v. Rosy Chakramakkal 1972 Mad LJ Rept 520. Appeal partially upheld.

will be properly protected by the father.16 In another manifestation of this idea it has been held that since the father is the natural guardian of a Hindu minor it is not sufficient to simply assert that the mother will be a better person to look after the child. If the custody of the child is to be given to the mother it must be that the father is unfit to be a guardian. 17 In another case the Andhra Pradesh High Court interpreted Section 19 of the Guardians and Wards Act 1890 to mean that even though the court can not appoint a guardian for a child if the father is alive and not unfit, it can still grant custody to some one other than the father if the of the child so demands.18 However, it also said that the father of a Muslim girl who has not attained puberty is ‘unfit’ to have her custody under Hanafi law and therefore the maternal would retain the custody of the girl. The Madras High Court held that normally the natural guardian is entitled to custody and the court would change this only if it is for the welfare of the child. 19 In this case the mother took her three children to her father’s house and applied for maintenance from the husband. The husband responded with an application for custody of the children. The High Court upheld the lower court decision to grant custody to the father. It held that even though the children have lost touch with the father and have been tutored against him, it is the case that the son needs a father more than a mother to him to embark on a course of useful study to secure a good footing in life and employment. The father is a decent gentleman who can be trusted to look after the girls as well. The mother is indigent, dependent on an old father who is himself in debt and likely to die soon.20 The competing claims under religious personal laws are a basis of applications. For example, the Delhi High Court in an appeal against the district court orders discussed the relationship between the Guardians and Wards Act 1890 and the Muslim personal

established welfare grandmother

enable common

16 This decision was later overruled by the Supreme Court; see Rosy Jacob v. Jacob A. Chakramakkal AIR 1973 SC 2090. The High Court cited decisions from 1915, 1917, 1923 and 1924. 17 Kamalamma v. Laxminarayana Rao 1971 AIR Mysore 211. Appeal dismissed, no costs. 18 Khatija Begum v. Gulam Dastgir (1975) Andhra WR 194. 19 Bhagyalakshmi v. K Narayana Rao AIR 1983 Mad 9. Appeal dismissed, no costs. 20 See n. 15 supra.

law.21 The dispute related to a father demanding custody of his sixyear-old child as the mother had remarried. He argued that the Hanafi law disentitled a mother from having custody of a minor child if she married a stranger. The court accepted the argument and the assertion that the Guardians and Wards Act 1890, is to be applied in a manner consistent with the religious personal law applicable to the parties. However, the court declined to accept the father’s assertion that the court is disentitled to disregard Hanafi law even in the interests of the minor. Instead the court found precedent22s for the principle that welfare of the child is the paramount consideration and the father’s right to custody is not a rigid and inflexible rule. This right must give way if the welfare of the minor so demands. Therefore, the rigidity of the rule that a mother disentitles herself of custody of a minor child on remarriage has been watered down to take the welfare of the child into account. However, the court awarded the custody of the son to the mother only until he turned seven, and then the father would have custody in with the Hanafi law.23 Similarly, the fact that the Hindu father is a natural guardian would not automatically entitle him to the custody of the child. The father’s right is neither absolute nor indefeasible in law.24 Although there is no articulated ‘mother preference’ principle, mothers are construed as the natural parent frequently in judgements. The Andhra Pradesh High Court allowed the mother to bring a habeas corpus petition in the interests of justice and the welfare of the child who was three-and-a-half years old.25 The parties were Hanafi Muslims and the court held that under that law the mother has custody of a child less than seven years old. Moreover, the welfare of the child demands that the mother have his custody. The court ascertained the welfare of the child by interviewing the petitioner, respondent, paternal and maternal grandparents, and by observing the child during the interview. It observed that the initial resistance

conformity

21 Mrs Shama Beg v. Khawaja Mohiuddin Ahmad ILR (1972) II Del 73. 22 Abdul Mohit v. Mt Zehunnessa Khatun AIR 1951 Cal 205; Tumina Khan v. Gaharian Bibi AIR (29) 1942 Cal. 281. 23 I have been unable to ascertain whether a court would consider not giving to the father after the period of Hizanat. 24 Shri Sehjoo and another v. Shri Bhiku (1973) ILR HP 1136. 25 S. Rehman Fatima v. Syed Badinudin Pariviz AIR 1984 AP 1. Application allowed, no costs.

custody

of the child to the mother was no doubt due to the tutoring of the father. Another important circumstance was that the father had indicated that he was going to remarry soon. In the court’s opinion ‘it would be difficult to visualise that the minor son would be better looked after by the father rather than the real mother who has stated categorically that she does not intend to remarry and her only object in life is to give single-minded devotion to the welfare and the upkeep of the minor son.’26 In another dispute, the same High Court held that the fact that the father has remarried is not a disqualification, but a distinction has to be made between the needs of a boy or a girl child. It is a matter of common knowledge that a male child spends most of his time outside the house and comes into contact with the step-mother only for a limited period of time. The female child has to look to the step-mother for all her needs, and it is a matter of common knowledge that the child will not get the same affection from a step-mother as she would from her mother’s mother.27 In an application for interim custody, the Bombay High Court granted the mother’s application for custody. The court quoted an earlier judgement that ‘human nature is much the same all the world over, and in my opinion if the mother is a suitable person to take charge of the child, it is quite impossible to find an adequate substitute for her for the custody of a child of tender years.’28 The claims of the natural guardians against any one else looking after the minor child generally do not find easy acceptance in the courts. For example, the Bombay High Court allowed the petition by a mother for the custody of her daughter from a previous marriage against the claims of paternal and maternal grandparents.29 It said that religion is a matter of personal choice and conversion cannot be regarded as a disqualification for the custody of a minor. Similarly, the Allahabad High Court granted the habeas corpus petition of the 26 Ibid.: 4.

27 Vegesina Venkat Narasiah v. Chintalapati Paddi Raju (1970) Andhra WR 190. Appeal allowed, no costs. 28 Shrimati Anuprabha G. Navale v. Gajanan Navale (1976) UCR Bombay 226 at 228. Appeal allowed, no costs. 29 Sheila Umesh Tahiliani v. Soli Phirozshaw ShroffAIR 1981 Bom 175. Petition allowed, no costs. The mother had separated from the father who subsequently died and the mother had remarried. The child was looked after by the grandmother and paternal grandparents who were refusing to give the custody to the mother partly because she had converted from being Parsi, and had married a Hindu man.

father against the step-grandmother who claimed that since the death of the mother of the children she had looked after the minor daughter for many years and the minor son for the last one year.30 The court held that, notwithstanding the fact that the natural guardian desires to keep a minor child, it is the duty of the court to see where the of the minor lies. However, the court handed the children to the father as it did not accept the claims of the step-grandmother and observed that the children could not be left with an old, illiterate, infirm and not well-to-do woman.31 The Delhi High Court upheld the petition of the mother for of her minor son when her husband died. 32 The paternal grandparents claimed that they could provide a much more lifestyle to the child. The court held that a mother ordinarily cannot be deprived of the custody of her only son after the death of the minor’s father unless the minor can be benefited substantially if somebody else is appointed or declared as guardian. The claim to be appointed a natural guardian under personal law is not to be disregarded except on good grounds. The very principle of the is that there is a presumption that parents will be able to exercise good care in the welfare of their children if they do not happen to be unsuitable as guardians. The preferential right of any person to the guardianship under the personal law cannot be ignored unless he is totally unfit to be appointed as a guardian. No such circumstances are shown here and the welfare of the child is in remaining with his mother. The court observed that the minor son has a moral as well as legal duty to look after his widow mother after he attains majority. This he can do only if he remains with his mother. He would also be entitled to a share in the immoveable property of his maternal grandfather if he remains with the mother. Moreover, the love and affection which the mother can give to her son cannot be bestowed upon him by anybody else. The court said that the welfare of the child is not to be measured by money. It went on to say that normal and religious welfare must be considered,

welfare

guardianship affluent guardianship

30 Kumari Sunita and another v. Smt Shyam Kali AIR 1982 All 1. Application allowed, costs not mentioned. 31 See also Smt Jaswant Kaur v. S. Manjit Singh MarwahAIR 1985 Del 159, discussed above. 32 Nirmal Jain v. The State and others AIR 1983 Del 120. Application allowed, no costs.

as well as its physical well being; nor can the ties of affection be disregarded.33 Similarly, the father’s claim against the claim of maternal who had looked after the child since he was born was by the Delhi High Court.34 The mother was living separately and had not contested custody. The court approved the lower court’s order and said no reasons had been shown to deprive the father of his legal right under Hindu law. The court observed that that the father has remarried and while it is common experience that the step-mother seldom gives love and affection to a step-child, this cannot be made an unwritten rule that the father loses custody on remarriage. The court said that the father will in all probability not allow his new wife to mistreat the son. The welfare of the son that the son live with the father even if it disturbs the statusquo. However, the same court35 denied the mother custody of her son born after the death of her husband. The grand-parents were given custody on the basis that the mother was living a life of easy virtue with a married man who had his own family. It would not be in the interests of the child to live in such a ‘vicious’ atmosphere. Welfare of the child includes material as well as moral well-being. The natural right of the mother to claim custody of the child must therefore be subordinated to the paramount consideration of the welfare of the minor. The Jammu and Kashmir High Court36 held that the capacity of a guardian or custodian would include more than financial capacity.37 If independent financial support is to be considered the criteria most Indian women (mothers) would have to be denied

grandparents upheld

demanded

predominant

33 The court used the concepts of guardianship and custody interchangeably throughout the judgement. It also relied on In re McGrath (infants) 1893 (1) ChD 143 and traced this precedent in later high courts judgments. 34 Smt Jaswant Kaur v. S. Manjit Singh Marwah AIR 1985 Del 159. Appeal no costs. 35 Puran and others v. Shrimati Angoori ILR (1976) II Delhi 337. Appeal allowed. 36 Mohammad Ramza Magrey v. Taja and others AIR 1983 J&K 70. Appeal dismissed, no costs. 37 In this case the father had remarried and the mother had left with the child.The father had removed the child forcibly and the child wanted to remain with the father. The court said that the personal law had almost become subservient to the Guardians and Wards Act 1869, and the welfare of the child is of paramount consideration. It quoted In re Mc Grath (1893) Ch D 143 for the meaning of the welfare of the child.

dismissed,

custody. The love and affection which the mother can give to her son cannot be bestowed upon him by anybody else, much less by his step-mother. Nor can it be given by the father who, being a working man, would not have much time to devote to the child. From this eclectic collection of the opinions of various High Courts

it is evident that the judges are not particularly well-informed about the historical origins of the concept of BIC. Nor do they rely on sociological or psychological discourses of child The judges do not have access to the services of trained social workers or child specialists and therefore must rely on their own skills to ascertain what is required. Frequently the judges take on the task of counseling the parents and speaking with minor children in their chambers. Therefore, it is not surprising that the judges’ own experiences and understanding inform their views on BIC. However, the concept of BIC has always attracted the charge of indeterminacy: the issue here is whether this is the flaw that needs to be corrected. The historical origin of the concept of BIC in England establishes that the concept was developed by the judiciary and adopted by the legislature as a means of keeping the law in step with the changing ideologies of family and marriage. Despite its claim of looking after the interests of the children, the welfare principle has always been used to arrive at decisions made by adults for adults. The specific changes in the marriage laws of England (allowing divorce) gave rise to the demands by women that their parental rights ought to be recognised in law. The unquestioned rights of the father came to be juxtaposed against the gradual recognition of the mothers’ rights.38 A review of the historical development of the of BIC demonstrates the connection between the societal changes and the changes in the law. It is a very apt illustration of the organic or symbiotic connection between law and society. In India the transfer of laws from England is a function of colonisation and the correspondence between these laws and societal is obviously lacking. The colonial administrators in India transported some of these ideas about the interests of the child to the Indian legal system but the impetus for such a change did not come from relevant societal changes in India. When the judges in

contemporary development.

therefore concept developments

38 For a detailed history of the development of the concept of BIC, see Maidment (1984); and Parashar (2003).

India had to interpret the idea of the welfare of the child they were thus dealing with a situation very different from that prevailing in England. Nevertheless, English precedents and legislative played a big role in the judicial interpretations. But the really difficult part of this story is that the Indian courts in the 21st century are still applying the legislative ideas that are a few hundred years old. For complex political reasons, the family laws have not developed in any systematic fashion in the post-colonial India. Even more disturbingly, the courts frequently seem to rely on precedents from the colonial times. Whereas the legislation, and consequently the judicial attitudes, have changed dramatically in England, the Indian legislation and the judges’ ideas remain shackled to an past. This is a highly unsatisfactory state of affairs in a gender- and class-divided society like that of India. Moreover, it overrides the rights of the mother, father and the child in the name of flexibility and makes it inevitable that judges are paternalistic. The judges are operating within a very unsatisfactory legislative regime. On the one hand, they are expected to promote the welfare of the child but on the other hand the legislation informs them that the father is the natural guardian. It is left up to the individual judge to resolve the contrary pulls of the welfare principle and the principles of various religious personal laws. The judges very valiantly try to reconcile the paramountcy principle with the clear injunctions of religious personal laws that the father is the natural guardian, that the relationship between guardianship and custody is not articulated and that the Guardians and Wards Act 1890 asks the courts to interpret that Act in conformity with the religious personal laws. Moreover, questions like whether the biological mother or father or the extended family is the best option for the child creates a novel set of issues confronting the courts. An assessment of the suitability of the concept of BIC and how it ought to be interpreted in India will therefore need to be context-specific. In the following section I will briefly discuss the historical in the area of family law and BIC in Australia. Australian family law has its source in the common law and the legislative of England. Therefore, the Australian example has a direct relevance for understanding the transfer of the concept of BIC to the Indian legal system by the English colonists. Another reason for using the Australian example is that I am more familiar

developments

unsatisfactory

clearly

developments developments

with Australian literature in this area. The following short chronology of developments in the Australian law will help me contextualise the debates about the indeterminacy of the concept of BIC. Judicial

Discretion

or

Strict

Formal

Rules

The major and persistent criticism of the concept of BIC is that it is indeterminate. This indeterminacy is in large part due to the wide judicial discretion embodied in the legislative formulae. the legislation dealing with the welfare of children does not define the concept of BIC. A parallel development has been the rise of the discourse of the rights of the child. In this section I will discuss the trend of increasing legislative guidance to the judges in Australian family law but despite this trend the desired determinacy in law has not been achieved. Therefore, it is not useful to juxtapose autonomy and paternalism and it may be that the real issue is to determine how best to equip the decision-makers — to make responsible It is not my intention to suggest that judges now are not acting responsibly. Rather my argument is that the judges’ role of interpreting the rules of law is inevitable. Therefore, rather than trying to curtail this role it is imperative that legal discourse develops arguments about why the judicial authority is legitimate and can be relied upon to make the right choices. The twin developments of enumerating a list of factors that a judge must take into account in determining BIC and the of the rights of the child share the aim of curtailing judicial discretion.39 If, however, the law is to adequately recognise the rights of the child (and consequently of the parents), there are at least two separate but connected issues of legislative and judicial to law must be considered. In this article, due to constraints of

Typically,

judgements.

enumeration

contribution 39 If the rules are so clear it is conceivable that there is no need for judicial

interpretation and the administrators should be able to apply them. However, the move

away from litigation and judicial determination has the potential to create a set of (new) problems from the perspective of the less powerful,including children. decisions could override the rights. It has been well argued that the formality of rights is still a surer guarantee of fairness to the disempowered. Notwithstanding all the shortcomings of the rights, I am premising this discussion on rights being of a legal subject and I will argue that these rights inevitably have to be by the judiciary. For an argument that children’s rights ought to be recognised in law, see Freeman (1992a: 29–46).

Administrative

constitutive interpreted

space, I will focus only on the nature of judicial task and leave out the important topic of legislative reform for another time.40 The dichotomy —that legislature makes the law and the judiciary applies it — demonstrates an implicit confidence in the legislatures doing the right thing by the child. This is in stark opposition to the distrust shown of the judicial discretion. The conventional response that the legislature is the elected representative of the people and the judiciary is unrepresentative is not a very convincing explanation of these differing responses, except as ideology. The issue for us is that law is an amalgam of legislative and judicial acts. Even if legislative changes are made, the most precisely formulated rules still require interpretation. Whether the legislation gives wide discretion to the judges or lays down extremely strict rules, the courts nevertheless remain the institutional mechanism for resolving about the meaning of law. A brief history of the developments in the common law of the concept of BIC demonstrates an incremental restriction of judicial discretion.41 In common law, initially only the concept of as concerning parental rights and powers was known.42 It was only towards the early parts of the 20th century that the law started making a distinction between the concepts of custody and Guardianship — in a broad sense — includes all the rights and powers that can be exercised by an adult with regard to the bringing up of a child. Courts have been reluctant to lay down a clear between the concepts of guardianship and custody. Generally, custody at common law signifies the broad right to look after a child and control their upbringing and a person with a right to custody possesses all the rights and powers necessary to bring up the child. In an often-quoted judgement it was said that ‘custody essentially concerns control, and the preservation and care of the child’s person,

appropriate

disputes guardianship

guardianship.

demarcation

40 However, it is important to reflect on how the process of legislative reform is conducted. Where does the information for change come from, from the lawyers or a wider field of experts? Who identifies the values that inform the change proposals? The Australian Parliament went ahead with the FLA Reform Act 1995 to emphasise contact despite there being widely available evidence that similar changes had not worked in USA; see Dewar (1996: 18–34). 41 Dewar (1997) argues that both English and Australian family laws show an trend towards curtailing judicial discretion. 42 Information for the following discussion is taken from Dickey (2002: 342–51, 398–413).

increasing

physically, mentally and morally; responsibility for a child with to his needs, food, clothing, instruction and the like.’43

regard

The Australian Family Law Act 1975 (FLA) was amended in 1983

and the legislature gave revised meanings to the concepts of and custody. A guardian under the amended Act was a who had the responsibility for the long-term welfare of the child and had all the powers, rights and duties in relation to the child that are vested by law or custom in the guardian of a child but did not have the right to the daily care and control of the child or the right and the responsibility to make decisions concerning the daily care and control of the child. 44 In the same Act custody was defined as the right to have the daily care and control of the child, and the right and the responsibility to make decisions concerning the daily care and control of the child.45 From its commencement in 1976, the FLA has provided that each of the parents of a child under 18 years was a guardian of the child and each had joint custody of the child.46 However, the amendments to the FLA in 1995 have changed the terminology and instead of custody and access it now talks about the residence and contact parents. Over time, the terminology of the FLA has varied but it is accepted that the concept of BIC or the welfare of the child however remains intact. Various phrases in the legislation as the ‘best interests’ or ‘welfare’ and whether these are the‘paramount consideration’ or ‘first and paramount consideration’ all signify the same principle.47 The FLA contains a list of 12 considerations that the court must take into account in determining what is in the best interests of the child.48 These considerations are not listed in order of priority and there is no suggestion that any of them has a greater significance than another. The relevance of each consideration is determined by the judge in any particular decision. 49 The High Court

guardianship person

generally

43 Justice Mayo in Wedd v. Wedd [1948] S.A.S.R. 104 at 107 cited in Dickey (2002: 345). 44 Section 63 E (1). 45 Section 63 E (2). 46 Section 63 F (1). 47 Finlay (1968) cited in Dickey (2002: 400). See section 65E for the injunction that in making a parenting order, BIC is the paramount consideration. 48 Section 68 F (2). 49 Empirical studies suggest that decision-makers are assuming that now BIC requires a continuing relationship with both parents. This is effectively operating as a presumption even if not spelt out in the legislation. Rhoades, Graycar and Harrison

of Australia is on record for saying that the ‘best interests’ principle does not involve an objective standard.50 In another instance, it has said that the same body of evidence may produce opposite but conclusions from different judges but that is because best interests are values, not facts.51 A particular feature of the FLA is that a very small proportion of the separating parents come to the court with a custody dispute.52 In the vast majority of cases the parents reach private agreements and the family court does not even need to assess the suitability of the arrangements.53 Therefore, the judicial assessment of BIC is necessitated only in a few cases, but even in these instances the task can be made difficult if the judge has to choose between two suitable parents.54 This is the background context for the argument that rather than trying to curtail judicial discretion it is more useful to replace the ‘welfare’ approach inherent in the BIC with recognition of the rights of the child. The rights discourse for the children has existed for a while and most notable development in this area is the international Convention on the Rights of the Child.55 This convention is an step towards recognising children as the bearers of rights rather than as the recipients of patronage, even though much of the convention is not focused on family law matters but at health, standard of living, child labour, etc.56 The obvious objection to the claim that children should have rights comes from the sense understanding of a child as a not-mature human being either physically, mentally or emotionally.57 Apart from the fact that

reasonable

important

education, common

(2000: especially 1.18–1.20). The most recent development in this area is the proposed reform of the FLA to introduce a joint parenting presumption in the Act. 50 Secretary, Department of Health and Community Services v. J.W.B. and S.M.B. (1992) 175 CLR 218, pp. 270–72, 320. 51 C.D.J. v. V.A.J. (1998) 197 C.L.R. 172, pp. 214, 219, 231. 52 See Parkinson and Behrens (2003: 924–25). They report that there is some empirical evidence that increasing numbers of fathers are gaining residence orders since the 1996 reforms. 53 In passing a decree of dissolution of marriage the court does have to be satisfied that adequate arrangements have been made for the children, see section 55A. 54 For an interesting discussion of the indeterminacy of the principle of BIC see Elster (1989); Mnookin (1975: 226). 55 See Freeman and Veerman (1992b). 56 Parkinson and Behrens (2003: 802). 57 This is a vast area of scholarship but I can not engage with it in any detail here. For an introduction to the literature see Freeman (1996); Purdy (1992).

it is now well-recognised that childhood is as much a construct as a biological state58 it remains the case that whatever rights are in international or national laws will nevertheless have to be interpreted by the courts. It is not enough to point out that a judge about the BIC and the judge enforcing an interpretation of the ‘Rights’ of a child are conceptually performing very different tasks.59 I argue that it would be much more worthwhile instead to pay attention to questions as: what is the nature of judicial training? What is the judges’ expertise? What sources of information do they draw upon in interpreting legal concepts? In all these questions the underlying and wider issue is about the construction of legal meaning.

enumerated enquiring

Nature

of the

Judicial

Task

Nature of the judicial task is a subject of long-standing debates in the jurisprudence literature but for some reason BIC discourse has not focused on it. In the following discussion I will explore whether the ineffectiveness of the move to curtail judicial discretion can be understood better with the help of these jurisprudential insights about interpretation. Stated in brief, the debate about the nature of judicial task is whether the judges ‘apply’ or ‘make’ the law. The historical origins of this long lasting debate lie in the specifics of English history, namely the competing claims of the Common Law judges and the English Parliament.60 Classical Common Law theory expressed the idea that law is not something made by the King, Parliament or the judges. The judges in particular simply discover and publicly declare the law.61 This idea went together with the doctrine of precedent that the principles of law declared by the judges were a cumulative body of legal rules that bound all other judges in the hierarchy of courts. More importantly, in a famous judgement Coke made it explicit that he considered that common law (and therefore the law judges) could control Acts of Parliament.62 This view also

common 58 See, for example, James and Prout (1997). 59 Eekelaar (1992: 221–35). 60 See Cotterrell (1989: 21–51). 61 Postema (1989: 3–38). 62 Dr Bonham’s Case (1610) 8 Co Rep 114, cited in Davies (2002: 44).

rested on the belief that law is not made but simply discovered. The judges had the special expertise to understand the ‘artificial reason’ of the common law and therefore only they could declare what the principles of common law were. Historically, with the in legislation, the declaratory theory of law came to be replaced with the doctrine of Parliamentary Supremacy, i.e., the Parliament can make any law, even in contravention of Common law. Although the doctrine of precedent persists, it does so with the very strong belief that the judges simply apply the law and it is only the that can make new laws. However, in contemporary legal theory the fiction that the judges simply apply the law now situates the judges’ expertise on a very different basis than the classical Common law idea that judges had special access to the ‘artificial reason’ of Common law. The political doctrine of separation of powers provides for the judiciary to check and balance the power of the legislature but there is an implicit hierarchy maintained with the help of the dichotomy of making/ applying law. As a result, the judiciary is expected to play a secondary role to the legislature. That in itself is not a problem if the basis of the hierarchy is articulated and justified. But if the source of legal authority in a democratic polity is the will of the people, represented by the legislature, there can be no justification for curtailing this authority by providing for judicial review. If, however, judicial review is nevertheless an aspect of the legal system it will need to be justified and must be done on some other basis than the old common law idea that the latter possesses artificial reason and the judges have the special expertise to access it. The common discomfort with the authority of the judiciary arises from the lack of any articulated basis for their role and consequent authority. If applying the rules made by the legislature is a straightforward activity the executive could do that. If, however, it is a more complex task and specially trained judges are needed it must be because the judges are equipped with the expertise in interpreting the rules. Unless this expertise of the judges can be accepted, the tension between relying on them and at the same time not wanting to be subject to their authority will remain. While even a cursory acquaintance with the development of in any common law jurisdiction would establish the judges as creative interpreters, the challenge to judicial authority is always present. The theoretical debate about the appropriate role of the

increase Parliament

precedent

judges, in its modern form, is represented in the dialogue between Hart and Fuller.63 Purposive and formal schools of thought about legal interpretation understand the nature of the judicial task as diametrically opposed.64 The formalist view65 of the judicial task requires the judge to be bound by the formal rule. Here, when the rule is clear the judge has no option but to be bound by the language of the rule. Hart endorses this view when he argues that in most cases there is a core of certain and clear meaning of the rule and the judge is bound to apply this rule. However, even Hart agrees that at times there can be a penumbra of uncertainty and the rule can no longer provide guidance to the judge. More precisely, in this instance the law has simply run out and the judge’s role is to exercise and provide (legislate) a solution. But if the rule is clear the role of the judge is unambiguous irrespective of the result and it is not open to the judge to go behind the rule even if the result is unsatisfactory.

discretion

In response, Fuller argues that even in the so-called core area it

is not possible to say what a rule means without taking the context into account. He rejects Hart’s claim that there can be a core of clear meaning that is evident from the language of the rule itself. For him meaning is always contextual66 and therefore it is necessary for the judge to interpret the rule in context, and that would include its purpose. In this manner the judge is responsible to avoid absurd outcomes of applying the literal language of the rules of law. Predictably such a view of the judicial task is criticised as giving

the judges arbitrary power over the meaning of law.67 It is seen as non-democratic and, more significantly, it implies that the judges 63 Hart (1958: 593–629); Fuller (1958: 630–72). 64 It is important to also keep in view the fact that the particular ideas about the judicial task are in turn related to the respective thinker’s view of the nature of law. Thus the positivist Hart and the modern natural lawyer Fuller must strive to be consistent about their theories of the law and their views on the nature of the judicial task. Summers argues that Fuller associated the plain-meaning approach with positivism, see Summers (1984: 120). 65 For a discussion of the various meanings of the term ‘formalism’ see Schauer (1988: 509–48, especially 509, n. 1). 66 See also Summers (1984: 118–22). 67 An important issue here is that law uses language and by its very nature language is subject to interpretation. However, the more technical debates about law and language are not the focus of this discussion.For an introduction to the field see Schauer (1993).

can not be relied upon to exercise their reasoning power without becoming tyrannical.68 Therefore, the safe option is to restrict the scope of judicial discretion and definitely not permit the judges to claim that they can identify and pursue the purpose behind any particular rule of law. Schauer is one of the more articulate of this view. He argues that the very idea of a rule constraining choice is lost if the judges are allowed the choice to depart from the clear language of the rule.69 He admits that at times rules may be unjust or inappropriate but following them makes the decision predictable. The rules in a sense give the decisional jurisdiction to the legislature who makes the rule. It follows then that the judges should not be able to avoid the rule by asking what the purpose of the rule is. Creating the jurisdiction of the judge to determine whether the purposes of a rule are served undermines predictability and it is possible that the judge might just get it wrong.

proponents

In this analysis Schauer has managed to frame the issue as one

about the jurisdiction of the decision-makers and thereby deviated attention from the central problematic of the Hart-Fuller debate, that is, how to determine what is the meaning of a particular rule. Schauer’s argument valorises predictability as a value but only at the cost of justice, fairness or reasonableness. He mentions that if the judges are allowed to identify the purposes behind any rule, they could get it wrong. That much is undeniable but it is not obvious what is so valuable about predictability if it is to be achieved at the cost of conservative, sub-optimum and inflexible outcomes. Schauer’s response that ‘to stabilise, to operate in an inherently conservative mode, is to give up some of the possibility of improvement in exchange for guarding against some of the possibility of disaster’70 that rules make it difficult to adapt to a changing future. Presumably, that function belongs to the legislature. But the does not concern itself with reading the rules on a regular basis and grapple with the issues of giving and changing the meanings

acknowledges legislature

68 Summers argues that Fuller appreciated the risk that some judges might take the purposive approach as an invitation to be idiosyncratic but he believed that any such risk is not high as statutes have discernible boundaries. Moreover, the process provides opportunities to rectify any misjudgements; see Summers (1984: 122). 69 Schauer (1988: 590–48), especially Part III, ‘Should Choice be Restricted?’, where he gives the reason of predictability for why rules should be followed. 70 Ibid.: 542.

appellate

of those rules. In fact, this is the special institutional task of the judiciary. If so, his ‘allocation of jurisdiction’ solution is a false because it relies on the myth that the legislature has the ‘authority’ that the judiciary lacks. If one could see through the falsity of this claim it would become that much more urgent to ask why the judiciary can not be trusted but the legislature can. 71 Moreover, it is only after the legislature has formulated the rule that the question arises about its ‘meaning’. The issue ultimately is whether this meaning is to be contextual or not. When Schauer says whether the game is worth the candle can not be determined acontextually, he is not providing any of a contextual determination for he denies jurisdiction to the judges. And in so far as the rules have to be applied by the courts but the courts have no ‘jurisdiction’ to take the context into account, no one presumably can take context into account. It is his fear that the judges might get it wrong if allowed to go ‘behind’ the rule that the basis of his assertion that ‘rules may get in the way of wise decision-makers but this can not always be considered a bad thing’. 72 Schauer goes on to argue that it may be an asset to restrict ‘misguided, incompetent, wicked, power-hungry, or simply mistaken decision-makers.’73 He uses these epithets for the judges but not for other decision-makers, in particular the legislature. His idea that judges ought to be restrained by rules quietly overlooks the obvious fact that in any dispute before the judiciary it is the meaning of the ‘rule’ that is in dispute. It is only because the rule is not self-evident and requires interpretation that the jurisdiction of the court is invoked. In this case the argument that the judges should only give formal interpretation promotes one set of values over another. The argument thus operates in an acontextual space rather than as an explanation of why it is more valuable that the judges should pursue predictability rather than justice and fairness.74 Law, by deploying concepts like formal interpretation, manages to distance itself from the process of construction of meaning and

solution

possibility

provides

71 The obvious answer that the political doctrine of separation of powers provides is not satisfactory. I am alluding to the falsity of the law and politics divide but due to the constraints of space can not develop this argument here. For an introduction to the issues see ‘Statutory Construction and Democracy’ in Freeman (2001: 1419–421). 72 Schauer (1988: 543). 73 Ibid. 74 For a collection of essays critically assessing Schauer’s thesis, see Meyer (1999).

as a consequence the responsibility of the legal thinkers for the actual decisions and their consequences becomes obscured.75 It is imperative that legal theory focuses on the matter of attaching for the immediate decisions in a dispute not on any ‘nonpresent, unexaminable, impersonal, or abstract authority — the sovereign, the law, the rule, the precedent’. Instead, it should be for the decision-makers, those who are present and acting at the moment of decision to accept unmediated responsibility.76 With acknowledgement of choice comes the responsibility for the that flow from making those choices.77 This responsibility is an important aspect of the argument that the judges have authority for interpreting and applying rules. Therefore, I argue that whether the judges understand the nature of their task as or as a matter of conscious and considered choice can change the contours of legal knowledge.78 The judges in the contemporary common law systems have the authority but they should also carry the responsibility for making choices in resolving disputes. It is not useful to hide behind the smoke screen of slogans such as institutional roles, separation of powers, constraint of rules, etc. It may not even be possible to ‘separate law from debatable principles of fairness, truth-finding, and morality.’79 The judges, whether they are determining the scope of BIC or interpreting a more specific formulation of the rights of the child ought to be equally bound to pursue fairness and justice. It is very likely to be objected that my confidence in the judges’ capacity, and some may say willingness, to pursue fairness or justice through

responsibility

possible

consequences legitimate mechanical

positive

75 Legal realists argued this most prominently. Legal realism is often explained as a direct response to the hold of formalism on legal thinking. For a discussion of the many ways in which realism and instrumentalism are used, see Quevedo (1985: 119–57). 76 Michelman (1986: 17). He makes the point in a different context but the spirit of his argument is the same as I am trying to put forward. 77 See Michelman (1986: Foreword) for the view that that the decision-makers should accept the consequences of their actions. Cf. Christie (1986: 747–78). He makes the point that we can not completely eliminate relatively unfettered discretion from judicial decision-making (1986: 772). We need to reconcile our traditional expectations concerning the judicial role with relatively open-ended judicial decisionmaking. 78 For an argument that the dichotomy between legal reasoning being either guided by mechanical authority or dependent on the value preferences of the judges is false but comforting, see Gordley (1984: 138–77). 79 Selznick (2003: 177–86, especially 179).

the courts is naive. I wish to emphasise again that this argument is not about personal qualities of the judges but about their role. Margaret Davies rightly argues that modern legal thought places excessive emphasis on author’s intention, whether in judicial or legislative arenas. This reflects a world-view where the autonomy of the individual actors is emphasised but not their place within a communal or discursive system.80 Judges, as part of an that is expected to pursue fairness and justice (and not only be a mechanical actor) should be able to be trusted to make the right decisions. The justified feminist distrust of the courts in custody disputes however can be addressed by contextualising analysis of how is attached to the concept of BIC or the rights of the child. This kind of analysis would hopefully result in changing the conventions of legal reasoning rather than end in deterministic analyses of the patriarchal nature of the judiciary. For example, the conventions of legal reasoning that pretend that courts access objective truths help make judges into unaccountable officials. If, however, judges are seen as making legislative assumptions gel with social realities then courts can be a mechanism of achieving social justice through law. What the politicians can not do the judiciaries can: be impartial in its pursuit of justice and fairness.81 Judges who are held responsible for the consequences of their decisions will necessarily broaden their sources of knowledge but will also have to justify their choices in the light of these ideas. For instance, in contemporary societies gender hierarchies are a reality. The judge who assumes gender equality as a starting point for their interpretation of the law would at least need to justify that It is in this process of justification that a wider base of than common sense or legal doctrine would become inevitable. For example, in a celebrated case82 the High Court of Australia asserted that there has been a radical change in child-rearing practices and fathers now share parenting tasks, while the studies indicate no such social change. If these judges were

institutional institution meaning

assumption. knowledge simply sociological

80 See Davies (2001). 81 This conception of the judicial role is probably closer to the Realists view but my reasons for trusting the judiciary are different than those of the Realists.I am reluctant to endorse the cynicism of the CLS scholarship as I find that kind of analysis deterministic. 82 Gronow v. Gronow (1979) 144 CLR 513.

expected to take responsibility for their views rather than be the oracles of truth (as the highest court in the system) they would at least have to articulate how they know what they know. In the remaining part of this article I wish to develop an argument that the norms of responsible judicial decision-making can allow the courts to take into account a wider base of knowledge and make contextualised determinations of BIC. The gender-neutral assumption of family law and the consequent concept of BIC invoke a masculine world-view in so far as the law imagines all individuals to be self-interested. The assumed gender neutrality of family law in most industrialised countries has created the phenomenon of ‘equal parenting’ as a norm for discussing childrelated disputes.83 That is, when the separating parents can not agree about child issues the law requires the court to treat the gender of the parents as irrelevant in deciding what arrangements are best for the child. Predictably, mothers as primary care givers perceive the gender-neutral stand and the expectation of equal parenting as denying them justice and a manifestation of the patriarchal nature of the law.84 Thus, the father and the mother are compared as two similar individuals, both intent on pursuing their own ends, making rational choices, and being prepared to be competitive and maximising their own interests. Moreover, feminists wanting to critique the concept of BIC as gender-biased are portrayed as selfish, and that also at the expense of vulnerable children. This is a serious charge against women as they are seen as transgressing the contemporary societal norms of femininity and maternalism. 85 For feminists to get past the opprobrium of these charges and argue that the actual lies with the legal discourse is no doubt difficult but necessary. This conception of the mother and father makes the judicial about custody fraught with danger for the judge is confronted with the reality that the minor child is dependent and may not be assumed to be autonomous in the same way as both parents. It is for the judge to ask: who can the judge trust to make sacrifices for

unassailable

problem decision

83 For parallel developments in the English and Australian laws see Dewar (1996: 18–34). For the developments in USA he cites Maccoby and Mnookin (1992); for Canadian developments see Boyd (2003). 84 This assumption of the law also fails to satisfy the fathers. See, for an introduction to ‘Fathers’ Rights’ literature and feminist critiques, Kaye and Tolmie (1998a: 162–94; 1998b: 19–68). 85 See Fineman (1995).

the child? How will the judge arrive at this decision? What evidence is available to the judge to support their decision? The judge can not invoke gender stereotypes in view of the legislative assumption that men and women are the same and instead must base the on ‘objective’ factors. Usually these factors include the economic capacity of each partner, living arrangements available for the child, wishes of the child et al., in other words the concept of BIC is determined independently of the traits and of the primary care-giver, invariably the mother. Furthermore, just like the adults, the child is also seen as an independent character, not requiring emotional sustenance and connection in any way and therefore can be shifted from one living arrangement to another on the basis of an objective assessment of their welfare.86

judgement comparative

capacities

meaningful Feminist critiques of the gendered nature of law ought to go

beyond showing that the legal subject is masculine. The pressing task is to open the possibility of the law acknowledging that legal concepts reflect lived experiences (rather than objective truths) and that these concepts have to be inclusive so as to be able to accommodate actual lived experiences. Thus, it is imperative to question

the assumptions of law, in particular the gender neutral family law that treats the mother and the father on par in defiance of social reality to the contrary. Similarly, the ‘equal parenting’ assumptions go against the social reality of any contemporary society. The obvious issue here is why can the law make this assumption? How do of legal reasoning manage to ignore extensive literature that parenting is a gendered task?

conventions establishing

Ros Poole has argued in a different context that the construction

of ideas about public (supposed to be masculine) and private to be feminine) first of all has to be seen as a construction. 87

(supposed

86 Nor is the children’s rights discourse an adequate alternative. Eekelaar’s argument that talking in terms of the rights of the child can change our welfarist attitude towards children is an extremely individualistic focus. The rights-based arguments can not account for the social reality that a young human being does require care, is to a certain extent on other human beings and its rights can not be pitched against those of its carers. Nor is it an adequate response that only the child has rights and not the parents. See Eekelaar (1992: 221–35); Freeman (1992a: 29–46). 87 See Poole (1991), where he has analysed the construction of the public and private spheres to demonstrate why it is so important for the political and philosophical discourses to obscure the private from scrutiny. Otherwise the claimed autonomy of the public sphere would be compromised. The resultant ideas are anything but the objective truth.

dependent

Next, it becomes possible to show how certain ideas are excluded and others are given prominence in any theory. None of the resulting world views is inevitable and any system of thought invariably carries costs to some and advantages to others. Rather than claiming for legal knowledge, it is much more useful to acknowledge that every view comes from a standpoint.88 If adopting a standpoint is inevitable and as a result is a matter of choice it can be argued that the consequences of making the choice should be fair. Therefore, the conventions of legal reasoning should at least a judge to correlate legal assumptions with social realities. Such a task would necessitate the judge deriving relevant knowledge from a wide field rather than only legal doctrine and principles.89 This is what is meant by saying that the law should be inclusive and contextualised. Thus the judges (and not only feminist legal scholars) would be able to acknowledge that the rational, unattached and unencumbered legal subject is not an empirical reality but a construct.90 Its function is to allow the legal decision-makers to distance themselves from the social context and absolve themselves of any responsibility for their decisions. Responsible judiciary would question the disjunction between the legal assumptions and social reality and try to create a conjunction instead.

objectivity compel

With this conception of the judicial role it is possible to expect

that justice demands that the concept of BIC has to remain an open category, interpreted contextually. This context would take into account how the child was brought up before separation, it would avoid assuming gender parity, it will acknowledge the true costs of child-care and the mother’s share in bearing that cost and thus reach a conclusion that would be socially just. Rather than pretending that the rights of the child exist independently of the mother and father, it would acknowledge that the members of a family exist in a symbiotic relationship. When the relationships do not work any more the law can at least acknowledge the respective made by each member in the past. Ultimately, it remains

contributions

88 Bartlett (1990: 829–89). 89 Therefore Dworkin’s conception of the judicial rule is not an adequate safeguard. His confidence in the judges being able to find the right answer mystifies the judicial role beyond critique. My argument is more in the nature of feminist theorists’ claim that all knowledge is partial. The most we can do is justify why a particular partial claim should be pursued. See Dworkin (1982). 90 See Lacey (1998, especially 1–18).

the responsibility of the judges to interpret the rights of each of the family in such a way that social justice prevails, rather than pretend that law and social reality are entirely independent of each other. At its most basic level it is a matter of choice, choice of the appropriate method of legal reasoning by judges who are equipped to take an expansive view of the relevant sources of knowledge. In conclusion, the significance of this argument for the Indian law on BIC is that the judges would be expected to take a wider base of knowledge than personal views as the source of relevant They would have the specialised training to appreciate the socio-political context of the laws they work with. An expansive view of their role as responsible actors would better enable them to assess the relation between social reality and the context of any particular child and family. It would hopefully enable them to resolve the tension between discretion and the prescription of the rules of religious personal laws.

member

information.

References

Bartlett, Kathleen. 1990. ‘ Feminist Legal Methods’, Harvard Law Review , vol. 103: 829–88. Boyd, Susan. 2003. Child Custody, Law, and Women’s Work. Ontario: Oxford University Press. Christie, George C. 1986. ‘An Essay on Discretion’, Duke Law Journal, vol. 1986: 747–78. Cotterrell, Roger. 1989. The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London: Butterworths. Davies, Margaret. 2001. ‘Authority, Meaning, Legitimacy’, in T. Campbell and J. Goldsworthy (eds), Legal Interpretation in Democratic States. Aldershot: Ashgate. ———. (ed.). 2002. Asking the Law Question: The Dissolution of Legal Theory, Sydney: Law Book Company. Dewar, John. 1996. ‘The Family Law Reform Act 1995 (Cth) and the Act 1989 (UK) Compared: Twins or Distant Cousins’, Australian Journal of Family Law , vol. 10: 18–34. ———. 1997. ‘ Reducing Discretion in Family Law’ Australian Journal of Family Law , vol. 11: 8–34. Dickey, Anthony. 2002. Family Law. Sydney: Law Book Company. Dworkin, Ronald. 1982. Taking Rights Seriously. London: Gerald Duckworth and Co.

Children

Eekelaar, John. 1992. ‘ The Importance of Thinking that Children Have Rights’, in Phillip Alston, Stephen Parker and John Seymour (eds), Rights and the Law. Oxford: Clarendon Press, pp. 221–35. Elster, J. 1989. Solomonic Judgments. Cambridge: Cambridge University Press. Fineman, Martha. 1995. The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies . New York: Routledge. Finlay, H. A. 1968. ‘ “First” or “Paramount”? The Interests of the Child in Matrimonial Proceedings’, Australian Law Journal, vol. 42: p. 96. Freeman, M.D.A. (ed.). 2001. Lloyd’s Introduction to Jurisprudence. London: Sweet and Maxwell. Freeman, Michael and P. Veerman (eds). 1992a. ‘ The Limits of Children’s Rights’, in M. Freeman and P. Veerman (eds), The Ideologies of Rights. Dordrecht: Martinus Nijhof, pp. 29–46. ———. 1992b. The Ideologies of Children’s Rights. Dordrecht: Martinus Nijhof. ———. (ed.). 1996. Children’s Rights: A Comparative Perspective. Brookfield: Dartmouth. Fuller, L.L. 1958. ‘ Positivism and Fidelity to Law — A Reply to Professor Hart’, Harvard Law Review , vol. 71: 630–72. Gordley, James. 1984. ‘Legal Reasoning: An Introduction’, California Law Review, 72(2): 138–71. Hart, H.L.A. 1958. ‘ Positivism and the Separation of Laws’, Harvard Law Review, vol. 71: 593–629. James, Allison and Alan Prout (eds). 1997. Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood. London: RoutledgeFalmer. Kaye, Miranda and Julia Tolmie. 1998a. ‘ Discoursing Dads:The Rhetorical Devices of Father’s Rights Groups’, Melbourne University Law Review , vol. 22: 162–94. ———. 1998b. ‘ Fathers’ Rights Groups in Australia and Their Engagement with Issues in Family Law’, Australian Journal of Family Law, 22: 19–68. Lacey, Nicola. 1998. Unspeakable Subjects: Feminist Essays in Legal and Social Theory . Oxford: Hart Publishing. Maccoby, E.E. and R.H. Mnookin. 1992. Dividing the Child: Social and Legal Dilemmas of Custody. Cambridge: Harvard University Press. Maidment, Susan. 1984. Child Custody and Divorce. London, Croom Helm. Michelman, Frank. 1986. ‘Foreword: Traces of Self-Government’, Harvard Law Review , vol. 100: 4–77. Mnookin, R. 1975. ‘ Child Custody Adjudications: Judicial Functions in the Face of Indeterminacy’, Law and Contemporary Problems, vol. 39(3): 226–94. Meyer, Linda (ed.). 1999. Rules and Reasoning: Essays in Honour of Fred Schauer . Oxford: Hart Publishing.

Children,

Children’s

Parashar, Archana. 2003. ‘ Welfare of the Child in Family Laws — India and Australia’, NALSAR Law Review , vol. 1: 49–72. Parkinson, Patrick and Juliet Behrens. 2003. Australian Family Law in Context. Sydney: Law Book Company. Poole, Ros. 1991. Morality and Modernity. London: Routledge. Postema, Gerald. 1989. Bentham and the Common Law Tradition. Oxford: Clarendon Press. Purdy, L.M. 1992. In Their Best Interest? The Case Against Equal Rights for Children. Ithaca: Cornell University Press. Quevedo, S.V. 1985. ‘ Formalist and Instrumentalist Legal Reasoning and Legal Theory’, California Law Review, vol. 73: 119–57. Rhoades, Helen, R. Graycar and M. Harrison. 2000. The Family Law Reform Act 1995: The First Three Years. Sydney: University of Sydney and the Family Court of Australia. Schauer, Frederick. 1988. ‘ Formalism’, Yale Law Journal, 97(4): 509–48. ———. 1993. Law and Language . Aldershot: Dartmouth. Selznick, Philip. 2003. ‘ “Law in Context” Revisited’, Journal of Law and Society, 30(2): 177–86. Summers, Robert. 1984. Lon L Fuller. Stanford: Stanford University Press.

Dysphoric 6

Bodies

of

Law

Damini Bhalla and Supriya Sankaran We are … masculine females and feminine males, cross-dressers, transsexual men and women, intersexuals born on the anatomical sweep between female and male, gender-blenders, many other sex-and-gender-variant people, and our significant others. All told, we expand understanding of how many ways there are to be a human being. Feinberg (1998) 1 It is primarily human experiences and interactions in any society that result in the formulation of certain stereotypes, social constructs, values, a construction of social morality, etc. The experiences of the majority or the powerful often get stamped as ‘the’ norm. Most of us innocently imbibe and perpetrate these stereotypes without any or little introspection, for in the absence of the ‘big picture’, allow us to ‘fill in the blanks’. Such stereotypes often arise as a result of an inability or to obtain all the information that is needed to make fair judgments about people or situations. They frequently lead to unfair discrimination and persecution against specified groups, to the extent that we forget the existence of any life outside these stereotypes. Heterosexuality and the binary construct of the ‘male’ and ‘female’ are among such norms/stereotypes that have cut across geographical, social, cultural, economic, racial and religious barriers. However, a little reflection on these stereotypes would throw open a whole range of questions. The ‘transgenders’ are an example of one such community

stereotypes unwillingness

1 Quoted in Seshadri and Ramakrishnan (1999).

Bhalla and Sankaran

who have challenged these existing stereotypes prevalent in our thus reinforcing how many ways there are of simply being human. The common understanding of a transgender in India are hijras (eunuchs), who form a distinctly visible community. They are perceived as ‘asexual’ beings occupying a unique place in the Indian society.2 Most of us associate certain characteristics with them — the clapping of hands in a most distinct manner, their queer lack of any sense of shame or humiliation, etc. The understanding is that they are responsible for their own poverty and the exclusion they face, and hence deserve no sympathy. Similar stereotypes are created about a range of other persons who are ‘sexual deviants’. Our research led us on a fascinating journey into the life of transgenders in India, and made us realise the range of stereotypes ingrained in our very being.3 An insight into the lives of the transgender their beliefs and history serves not only to demolish the existing stereotypes but also highlights the urgent need for action.

society,

popularly

appearance, common

community, affirmative

2 The term one most frequently comes across in India to describe a transgender person is hijra, which refers to a socio-cultural construct in which a transgender person, who is biologically male, takes on the gender role of a female. Hijras have their own form of social organisation, and form a parallel society to the mainstream one. Very often a hijra undergoes castration. Serena Nanda describes them as ‘a religious of men who dress and act like women and whose culture centres on the worship of Bahuchara Mata. As part of this worship, hijras undergo ritual surgery involving the removal of their genitals. They are believed to have supernatural powers, which entitle them to perform special rituals during weddings, and after the birth of a child. In both contexts, these ritual performances are connected to fertility. Nanda (1997: 3831). 3 When we started this article we were quite apprehensive as our only interaction with transgenders had been on trains and on the road, where we had seen them beg for money and had considered them as a threat. It was only after an extensive reading of literature and interacting with transgendered persons that we realised the of discrimination they face in their everyday lives. Talking to them made us realise that they were ‘normal’ and had the same feelings, emotions, fears and joys as we did. What made them so different from us, however, was the experience of living on the margins of society, facing oppression, hate, violence and exclusion. The common experience of ostracisation had bound them together and forced them to live lives that are parallel to, and not part of, ‘normal’ society. In this context, we realised the importance of understanding their experiences not merely as a legal problem, but also over a long term, i.e., the history of the oppression they face. Thus, for example, we had to worry about what to call them — transgenders, male/female, or third-sex. Depending upon the nomenclature, they would be ‘normalised’ or marginalised.

community

extent

Dysphoric Bodies of Law

This article traces the manner in which the transgenders have become the target of prejudice, discrimination, persecution and Laws reflect and create these existing stereotypes, not only by the specificity of the legal text but also by their ambiguity and silence to render them non-existent as legal subjects, making them vulnerable to its terror. Family laws find special relevance to the issues surrounding transgenders as alienation from the ‘family’ is a major reason for the exclusion and discrimination of transgenders. However, in light of the high level of ignorance and present in society, it is first necessary to understand the class of persons we seek to address and the various facets of transgenderism and their complexities.

violence.

misinformation Gender

and

Sex:

The

Interplay

of Terminology

From infancy, our culture teaches us what it means to be a boy or a girl. Time and again we hear statements like‘boys don’t cry’, ‘sit like a girl’ or ‘you are a girl don’t shout and run about like a boy’ being made by parents while they are instructing their children to behave accordingly. There are a set of characteristics or traits associated with the sex of an individual that he or she is supposed to conform to in every culture. Sometimes we question such but by and large we follow them believing that such standards are ‘appropriate’. With the construction of the standard of ‘appropriate behaviour’ for each sex, the distinction between the gender and sex of an is collapsed. However, these socially determined norms or standards of behaviour for men and women create the gender of an individual and not the sex, which refers to the biological organs of the person. Many studies reveal that the psychological/emotional behaviour and mannerisms of an individual are determined to a significant extent by genetic or inborn hormonal factors.4 It is, a more accepted view that gender identity and sexual orientation

standards,

individual

however,

4 Medical research in the area reveals that gender is programmed into a person’s brain during the first 18 months of his/her life. Cf. XY and Z v. UK (1997) 24 EHRR 143, which noted that transsexuality is not merely a psychological disorder but has a physiological basis in the structure of the brain referred to the research done by Gooren Swaab www.genderweb.org/julie~/general/tsinf2.html [Visited on 5 September 2004].

are determined for most people at an early age through interactions of biological, psychological and social factors, which is evidenced by the fact that notions of gender not only change with time but are also different amongst racial and ethnic groups, religions, and across geographical regions. This is the point where ‘gender’ and ‘sex’, as conventionally understood, overlap.5 Thus, the differences between women and men are not biologically compelled; they are, rather, ‘socially constructed’ (Frug 1992). While these stereotypes often only reflect different cultural norms, they become problematic when they are used to discriminate against people or perpetuate racist practices.6 If one actually observes society closely one can see that at some point or another every individual deviates from these stereotypes and possesses ‘transgender’ Gender identity refers to the internal feelings of an and the gender that person identifies with irrespective of his or her biological sex, whereas gender expression is the external of such an identity. For most of us, our gender identity corresponds to our biological sex but this is not the case with transgenders and transsexuals.7 Thus, what singles out many transgendered people is simply a preponderance of the characteristics associated with the opposite gender. Society’s abhorrence to such ‘difference’ invariably results in people with mixed gender traits to doubt their gender or sex, and question their sexual orientation as well. What is not realised is that ultimately, qualities associated with ‘masculinity’ or ‘feminity’ are just human (Laframboise 2005). From this naming ‘transgender’ people as a discrete group may be arbitrary and even misleading insofar as it reinforces the mistaken view that transgender people are somehow fundamentally different from other people. However, such labelling is necessary to create a group identity and to foster a sense of solidarity. Only by naming the discrimination

characteristics. individual manifestation

perspective,

5 The formation of a gender identity occurs through interactions of biological, psychological and social factors. What is accepted as womanly in,say, a district in America is very different from that in a village in India or Africa. 6 Often boys who are ‘sissy’ or girls who are ‘tomboyish’ are under tremendous pressure from society and from their families to change. Currah and Minter (2001: 2–4). 7 Female-to-male transsexual people are born with female bodies, but have a male gender identity. Male-to-female transsexual people are born with male bodies, but have a female gender identity. Laframboise www.mypage.direct.ca/h/hrp/gendertr.html [Visited on 10 August 2005].

predominantly

can we hope to move towards a society where the ‘transgender’ label will no longer be required. For a transsexual person there is a conflict between the physical sex and the gender identity as a man or a woman, and a transsexual desires to change his or her physiological gender to live in the new gender role. Many, but not all, transsexual people undergo medical treatment to change their physical sex through hormone therapy and sex reassignment surgeries (SRS). 8 can, therefore, be further divided into pre-operative and groups.

permanently Transsexuals postoperative

Unlike the term ‘transsexual’, ‘transgender’ is not a medical or

psychiatric diagnosis and is used as an ‘umbrella’ term to describe a wide range of identities and experiences, including but not limited to: pre-operative, post-operative, and non-operative transsexual people; male and female cross-dressers;9 intersexed individuals;10 and men and women, regardless of sexual orientation, whose or characteristics are perceived to be gender atypical. In its broadest sense, transgender encompasses anyone whose identity or behaviour falls outside of stereotypical gender norms. That includes people who do not identify themselves as transgender, but

appearance

8 SRS refers to the administration of surgery to change the physical appearance and organs according to one’s sex identity. The objective of the treatment is to harmonise psychological sex with the physical sex. The period of transition for a transsexual is decisive and the role of the medical establishment in facilitating this is vital. Medical discourse has classified such a period as Gender Identity Disorder (GID). According to the two main diagnostic systems ICD 10 and DSM IV, transsexualism is a GID in which there is a strong on-going cross-gender identification, and a desire to live and be accepted as a member of the other sex. It is important to note that a surgery will not make a person belong to the opposite sex in every respect, but will only make one fulfil more criteria of the other sex. The currently accepted and effective model of treatment utilises hormone therapy and surgical reconstruction, and may include electrolysis, speech therapy, counselling and other psycho-therapeutic The surgical construction itself could include construction of vagina, removal of penis, construction of clitoris, etc. (PUCL 2003: 52). 9 Sometimes referred to as ‘transvestites’, ‘drag queens’ or ‘drag kings’. 10 Technically, ‘intersex’ is defined as ‘congenital anomaly of the reproductive and sexual system’. Intersexed people are born with external genitalia, internal reproductive organs, and/or endocrine system that are different from most other people. http://www.intersexinitiative.org/articles/intersex-faq.html [Visited on 14 December 2005]. See also Foucault (1980a), for the traumatised memoir of a hermaphrodite’s journey to discovering twin sexual traits in the body.

definitely

treatments.

who are perceived as such by others and, thus, are subject to the same social oppressions and physical violence as those who actually identify with any of these categories. In contrast to transsexual people, ‘transgender’ persons (in the older, more narrow sense of the term) appear to have come to terms with the contradiction between their bodies and their gender identities and so have not shown up at a doctors’ office to be diagnosed and documented. As a group, their sexual orientation is predominantly heterosexual (based on but there are also bisexual, asexual, and homosexual Sexual orientation or behaviour is not the primary issue or primary motivation for transgendered people; rather, the issue is wishing to live and to be perceived as a gender that is different than one’s biological sex. Within queer identity, hijras question many of the culturallyconstructed stereotypes to the greatest extent, and visibly so. from these stereotypes most often results in exclusion from the ‘family’, and consequently the society, which is structured on traditional patriarchal regimes of family law.

genitalia), individuals. Deviations The

Family

— The

Roots

of Social

Ostracisation

The institution of a family normally conjures up an image of security, warmth and love. However, the experience of transgender persons within their families is frightfully different.From childhood, ‘transgenders' are ridiculed, abused and even beaten for not conforming to stereotypes of how a man or a woman must behave. Even if want to accept their children and live with them, the extreme forms of social stigmatisation makes it virtually impossible. Swati had been staying with her family for over a year after her identity as a hijra was accepted by her family. One day she threw a party for her friends and late in the evening eight plain clothes policemen barged in and harassed them by asking derogatory questions and also demanding that the hijras show them their breasts (PUCL 2002: 33–34). This stigmatisation is present across all echelons of society. During the course of our interviews we came across a range of people who had run away from economically affluent families because of the stigma attached to their deviance. Kumar told us about how he had tried to hide his identity as a kothi for a number of years before he was discovered in feminine attire by his family.He was then subjected

families

to brutal abuse, ridicule and torture, threatened with disinheritance and finally asked to leave the family.11 Thus, due to pressure on the family from neighbours and other members of their community who begin to ridicule the family, persons are often forced to leave home to save the izzat (honour) of the family. They sometimes gain acceptance back into the family when they begin to contribute to the family income. But even this is normally never absolute as they still live separately and visit their family only occasionally. They thus find themselves bereft of any kind of emotional support, love or understanding. Such exclusion stems primarily from norms of evolved human family structure such as heterosexuality and monogamy which have been determined by law or by tradition for practical requirements of successful reproduction.12 As propounded by many Marxist such exclusion may stem from a complex nexus between and capitalism (Harraway 1999: 83). With the family being identified as the source of the future work force, it also became the arena for instilling discipline and conformity. Heterosexuality became essential for the maintenance of capitalism where of labour, rather than industrial work, was seen as the woman’s role in society. The logic of perpetuating the human race has been used to make heterosexuality ‘natural’ and the basis on which the society today is constructed 13 as is evident from the case

transgendered

thinkers, patriarchy

reproduction

11 The name of the person interviewed in Hyderabad had been changed as he did not want his identity to be revealed. A kothi is, in the South Asian context, a male homosexual who is feminised and takes a passive/receptive role in sex. A kothi never declares his gender identity openly, and will still wear the accepted attire of a man in society. A katla kothi, like a ‘transvestite’, wears a woman’s attire and is comfortable with the fact that his biological and gender identities are different. 12 These norms have cut across geographical, social, cultural, economic, racial and religious barriers. 13 Such sexual drives were ‘naturally’ selected, as not only do they produce an but also produce offspring that will perpetuate the species in successive generations. It has often been propounded that ‘pair-bonding’ drives stable couples to form parental teams to care for offspring that require long term and/or intensive care. Hence romantic love and marriage have been seen as the conscious realisation and cultural expression of the innate human response to sexual involvement, pair-bonding towards the production of offspring. According to Desmond Morris, ‘the human animal is basically and biologically a pair-forming species. The main factor was the evolution of a giant brain. This led to a prolonged childhood and this in turn meant a long-term family unit. A pair bond had to be forged and maintained. Pair-formation and pairmaintenance sex were added to the primary procreation sex.’ http://htdconnect.com/~merriman/pairbon2.htm [Visited on 6 August 2003].

offspring,

of Khanu vs Emperor 14 where the court, while determining guilt of an accused under Section 37715 of the Indian Penal Code (IPC), 1860 held: It is clearly against the order of nature, because the natural object or carnal intercourse is that there should be the possibility of of human beings, which in the case of coitus per os is impossible…by a metaphor the word intercourse like the word commerce is applied to the relation of the sexes. Here also there is that temporary visitation of one organism by a member of the other organisation for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves, consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visiting organism, for intercourse connotes reciprocity. Looking at the question this way, it would seem that the sin of Gomorrah is no less carnal intercourse than the sin of Sodom.

conception

Norms of a heterosexual society have today come to be viewed as ‘universal truths’, and any deviation from such norms is viewed as unnatural — with disgust, suspicion and fear. Such intolerance stems from practices that are taken so much for granted and are so integral to the social fabric that life outside it is considered unimaginable. Thus, the family is accepted or recognised by the law and by civil society only if it is in conformity with the binary construct. The reason for law to do so (which in turn makes the civil society do so) may stem from the fact that the law, in Foucauldian terms, a disciplining role: creating a paradigm of ‘appropriate behaviour’ and establishing a discipline of conforming or perishing (Foucault 1980b).

performs

14 AIR 1925 Sind 286. 15 Section 377 of the Indian Penal Code (IPC) reads: ‘Whoever voluntarily has carnal intercourse against the order of nature with either man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.’

description

It is from this perspective that the role of law as a tool of social control becomes evident.16 The primary task of law, as stated by Jeremy Bentham, is that of coordinating social interaction among members of society on a comprehensive scale. Individual happiness requires social structural supports — the existence of clear social norms and a widely accepted and respected social order. Control, in that sense, is necessary as it lays down standards and structure within which ambitions can be met (Haidt and Rodin 1999: 317). The psychology of law has at different instances been used by and citizens to achieve social control. The disciplining force of law is demonstrated in the Criminal Tribes Act (CTA) (D’Souza 2001) which was passed in 1871, whose full title read ‘An Act for the Registration of Criminal Tribes and Eunuchs’. The CTA defined eunuchs as ‘persons of the male sex who admit themselves or on medical inspection clearly appear, to be impotent’. Section 24 of the CTA mandated the maintenance of a register of all eunuchs residing in any town or place ‘who are reasonably suspected of kidnapping or castrating children, or of offences under Section 377 of the IPC, or of abetting the commission of any of the said offences….’ The CTA further required the maintenance of a register of all their properties. Section 26 imposed penalty of imprisonment up to two years and/or a fine on eunuchs for appearing in female clothes, dancing or playing music, taking part in any public exhibition.Additionally, Section 29 of the CTA prohibited a eunuch from acting as a guardian of a minor, making a gift or a will, and adopting a son, in effect depriving hijras of the opportunity to form and retain relationships. The status of hijras in the eyes of law has changed little even after the denotification of the CTA in 1952 (D’Souza 2001: 5), as

lawmakers

committing

16 The literature on social control shows a wide variety of perspectives. Introduced in sociology as early as the end of the 19th century, the concept of social control denoted the capacity of a group or society to regulate itself and to secure harmony and unity in social life. Social control, in this meaning, relates to the ontological problem in social theory, providing an answer to the question of how social action is coordinated, or how social order is possible. Since the 1950s, social control has been more narrowly conceived in relation to deviant behaviour and crime. Formally defined, social control refers to those social mechanisms that are brought into play to react to (prevent, reduce, and detect) crime and secure obedience to social norms (Deflem 1994: 355–73).

originally

was noted by the Advisory Group on the Human Rights of Denotified Tribes before the National Human Rights Commission in 1998: …the possible benefits of the repeal of the Criminal Tribes Act in 1952 was short lived, in that [the] ‘Habitual Offenders’ legislation was passed by various States opening up precisely the same avenues for mal-identification and persecution as the Criminal Tribes Act of 1871. Additionally, Section 377 of the IPC,17 dealing with ‘unnatural offences’ penalises the sexual acts of hijras, and continues to have the most terrorising effect on their lives. Unlike the offence of rape under Section 376 of the IPC, consent is immaterial. The proof of an offence under Section 377 has been held by various cases to be gathered from the following aspects:18 (a) the accused had carnal intercourse with any man, woman or animal; (b) such intercourse was against the order of nature; (c) the act of the accused was done voluntarily;19 (d) there was penetration. ‘Unnatural carnal intercourse’ is thus abhorred by civil society, and is therefore punishable with strict sentences.20 Further, an array of legislations including those against vagrancy and begging, their entire existence by either criminalising their identity

criminalise

17 If one analyses Section 377 itself, it only criminalises the act of having homosexual sex and not of being homosexual. Most decisions under this section deal with acts of sodomy. 18 Mihir alias Bhikari Charan Sahu v. State, 1992 Cri LJ 488; Brother John Antony v. The State, 1992 Cri LJ 1352 19 The term ‘voluntarily’ has been defined under Section 39 of the IPC as: ‘A is said to cause an effect “voluntarily” when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.’ 20 The High Court of Orissa, in the case of Mihir alias Bhikari Charan Sahu v. State, (1992 Cri LJ 488) made an interesting observation at the time of determining the sentence of the accused under Section 377 of the IPC. It stated: ‘Undisputedly the evidence on record shows that the petitioner has a broken family life and belongs to the lower strata of the society. The offence definitely is one relating to perversity and deprivation of mind.’

nonconsensual

person

itself or the behaviour they are necessarily forced into because of their identity.21 The violence of the law lies in not only criminalising their but also in its power to overlook their existence. The law executes its disciplinary role, through the family and the society, and by excluding any person who does not conform to the norms from the ambit of civil society. The recurrent of law, directly and indirectly, with the life of hijras to criminalise their existence, reinforces the naturalness of the binary construct. As illustrated, such discipline is instilled and power equations are established not merely by a prohibition by the law, but in fact by a strategy, through complex social networks. Such a discipline established by law perpetrates and is internalised by the family and society, causing hijras to be constantly subject to violence — psychological, physical and economic. With their queer identity, hijras question most gender and sexuality norms to the greatest extent, and visibly so. As pointed out by the testimonies, for most hijras the family is the first site of such violence. Parents often fail to understand the ‘peculiar’ sexuality of their children.This sexual deviance invites restrictions on their movement and surveillance, and subjects them to constant beating and mockery from family and peers. Exclusion from the family, which is the site of an connection with society, results in making the individual into a social outcaste. Most hijras are thus compelled to run away from home and work, eat and live outside of the mainstream of family and find solace amongst those who are like them by living in hamams. They are thus forced to form their own established parallel structures of personal relations, which may also be intensely hierarchical, and sometimes exploitative.22 Such structures require

existence

established interaction

individual’s

framework

21 Hijras have further not been granted protection under Section 354 of the IPC, when policemen and hooligans harass and trespass their bodies. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, is punishable under Section 354 of the IPC. It has been emphasised that for this section to apply, it is essential for the victim to be a woman, and the reaction of the victim is immaterial. This has raised concerns for hijras, as to identify them legally as women is a struggle in itself. Though the Indian feminist movement has expressed concern for lesbians, there has been no significant move to include the ‘hijra paradigm’ into their movement. 22 Hijras live in groups of about 10–35 members in hamams (baths). There is usually a nayak (chief) to each hamam, who resolves disputes, manages the finances,

strict adherence to the rules of the hamam, and any transgression has serious consequences on the protection available to the hijra. The attraction of social acceptance, at least within the hijra if not wider society, may thus not be of less significance. Consequently they are subject to violence by the larger society: a classic example of Foucault’s theory on power, where power is neither conceived as a property or possession of the dominant class, state nor is it located in a centralised agency, but is diffused throughout society, investing in it and transmitting through it. 23 Power is present everywhere, within the family and between peers. Thus, the of family, which provides the basic security to an individual, the primary site for instilling discipline and ensuring conformity. The ability to be a part of and form the institution of the family, both socially and legally, is the basic right of every person. In most countries, it is assumed that a family defines the primary social unit which needs to be protected and upheld by law.24 The institutions of ‘family’ and ‘marriage’ are legally tied to the capacity to adopt children, succession to property, the ability to make medical acquire housing, satisfy other basic needs and make use of benefits. However, most governments across the world, in their dealings with transgender people, have a long history of and of ill-judged attempts at social policing while limiting who is legally recognised as a member of a ‘family’. As the family itself is defined in terms of a unit formed by the husband and the wife, a transgender, whose gender definitions are ambiguous is finds no place or protection within such laws.

community

institution became

decisions,

misunderstanding automatically

and generally presides over the administration of the hamam. The hamam is a closelyknit unit, which exercises complete control over the life of its individual members. Many hijras we interviewed mentioned that they are required to contribute a portion of their income every day to the running of the hamam. Continued failure to do so results in them being thrown out of the hamam. Further, the hamams have clearly demarcated geographical areas of work amongst themselves, and strictly adhere to them. Violations or infringements in the work area of a hamam often leads to serious fights. Interviews with Mr Arun Chaudary, Darpan Foundation, Hyderabad [on file]. 23 In Foucauldian terms, power is not conceived as a property or possession of the dominant class, state, bourgeoisie or as being based on a centralised agency (Gordon 1980). 24 ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ Article 16, Universal Declaration of Human Rights, 10 December 1948. Similar provisions are contained in Article 23 of the International Covenant on Civil and Political Rights of 16 December 1966.

In a stark example of such exclusion, the European

Commission had ruled in a case that the eviction of one of the partners of a

same-sex marriage from public housing after the death of the other does not interfere with notions of ‘private life,’ and that the in the treatment of same-sex and opposite-sex couples was objectively and reasonably justified.25 The terrorising force of law is here premised upon the construction of the otherness of the as persons who fall outside this assumption of the family as a sustaining social unit.26 This otherness that is constructed by the ‘us’, is necessarily one that portrays the hijra as one without any intrinsic worth. This is evident from the struggle for recognition and decriminalisation, reflected in numerous cases which were filed on the interpretation of the human rights instruments such as the European Convention on Human Rights (ECHR), which came into force as early as 1950. Many cases,27 upheld discrimination against transgenders on the basis of Article 8 of the ECHR which permitted interference in the private and family life of an individual for the ‘protection of health or morals’ of society.28 These cases did not even venture to deal with issues of marriage, etc. In the verdicts rendered between the years 1955–67 the Commission allowed for the punishment

differences

transgender

25 Kerkhoven v. The Netherlands (No. 15666/89), 19 May 1992. 26 It is a popular perception that gender dysphoria automatically rules out a desire for reproduction and family life. On the contrary, as we gathered from our interviews as well as studies on the subject, a considerable number of transgenders in India and other countries across the world are interested in raising a family. A number of hijras consider themselves ‘married’. There are a large number of instances where hijras or katla kothis are married to men, and see themselves as playing the role of the women in marriage. Often men are legally married to women and also marry hijras, and so lead dual lives, sometimes to the ignorance of their wives. As one kothi told us, such polygamous relationships are popular. In such instances, the money earned by the hijra through begging or sex work is used not only to support the man but often also his wife and children. 27 For instance the cases of F v. Switzerland (No. 11680/85) (1988), 55 D.R. 180; and X and Y v. UK (No. 9369/81) (1983), 32 D.R. 220; Wintermute (1995: 110–15). 28 Article 8 (1):‘Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

of homosexuality since ‘the right to respect for private life in a society could be subject to interference as provided for by the law of that party for the protection of the health and morals of society’.29 This was indeed ironic as the provision that was drafted to protect individuals and privacy in a ‘democratic’ society was the very provision used to deny homosexuals privacy in their own homes. Thus, the Commission seemed to have made a sharp distinction between private life and family life — homosexual relationships clearly seeming to fall within the ambit of private life but not within the ambit of family life. The position remains the same in India, with the criminalisation of homosexual behaviour under Section 377 of the IPC. Further, none of the civil laws in India today, secular or religious, recognise marriage between two members belonging to the same sex, marriages or marriages between hijras and men. This means that the entire community of people whose gender identity and sexual orientations are different from what we consider ‘normal’ are denied the right to get married in the eyes of the law which is a right that every other citizen of this country enjoys. The Special Marriage Act 1954, which is a secular, forward-looking legislation in some senses, also restricts marriage to that which is solemnised between a man and a woman. Section 4 specifically uses the words ‘male’ and ‘female’ while prescribing the conditions of a valid marriage.30 The same terminology is adopted in the Parsi

democratic

transsexual

29 In most of these cases the applicants were from Germany or Austria and had been imprisoned and had other sanctions imposed on them for consensual sexual activity with other men, who most often were old enough to give their consent for such sexual activity. For instance these were the facts in X v. Germany 1 Y.B. 228; X v. Austria 11 Coll. Dec. 9. 30 Conditions relating to solemnisation of special marriages: Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages, a marriage between any two persons may be solemnised under the Act, if at the time of the marriage the following conditions are fulfilled, namely (a) neither party has a spouse living; (b) at the time of the marriage, neither party (i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (iii) has been subject to recurrent attacks of insanity; (c) the male has completed the age of 21 years and the female the age of 18 years; (d) the parties are not within the degrees of prohibited relationship; and (e) where the marriage is solemnised outside the territories to which the Act extends, both parties are citizens of India domiciled in the said territories.

Marriage and Divorce Act 1936.31 Similarly, Section 60 of the Indian Christian Marriage Act 1872 lays down the conditions subject to which a marriage may be solemnised, one of them being that the age of the man intending to be married shall not be under twenty– one years, and the age of the woman intending to be married shall not be under eighteen years.32 The Hindu Marriage Act 1955 also contemplates the possibility of a marriage only between a man and a woman and imposes age restrictions for the groom and the bride, referring again to a ‘marriage’ between two members of the opposite sex as is commonly understood.33 31 Requisites to validity of Parsi marriages: (1) No marriage shall be valid if (a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in Schedule 1; or (b) such marriage is not solemnised according to the Parsi form of ceremony called ‘Ashirvad’ by a priest in the presence of two Parsi witnesses other than such priest; or (c) in the case of any Parsi (whether such Parsi has changed his or her religion or domicile or not) who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age; (2) notwithstanding that a marriage is invalid under any of the provisions of sub-section (1), any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. 32 On what conditions marriages of Indian Christians may be certified: Every between Indian Christians applying for certificate shall, without the preliminary notice required under Part III, be certified under this Part, if the following conditions be fulfilled, and not otherwise. (1) The age of the man intending to be married shall not be under 21 years, and the age of the woman intending to be married shall not be under 18 years; (2) neither of the persons intending to be married shall have a wife or husband still living; (3) in the presence of a person licensed under Section 9, and of at least two credible witnesses other than such person, each of the parties shall say to the other — ‘I call upon these persons here present to witness that I,A.B., in the of Almighty God, and in the name of our Lord Jesus Christ, do take thee, C.D., to be my lawful wedded wife [or husband or words to the like effect].’ 33 Conditions for a Hindu marriage: A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely, (i) neither party has a spouse living at the time of the marriage;(ii) at the time of the marriage, neither party (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of [21 years] and the bride, the age of [18 years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Section 3 (f) (ii) of the Act lays down that ‘two persons are said to be sapindas of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they

marriage

presence

procreation

What is pertinent to note is that while these legislations do not specifically prohibit same-sex marriages, it appears evident from the use of the terms ‘male’ and ‘female’ and ‘bride’ and ‘groom’ that the laws governing marriage were framed without even transgenders. However, these legislations read with 377 of the IPC would clearly result in a reading that not only would same-sex marriages not be recognised in the eyes of law, but it would in fact be a crime. For instance in the case of Cossey vs United Kingdom34 where a (chromosomally male) transsexual woman wanted to marry a man, the European Court held that under Article 12, the term ‘marriage’ referred only to a marriage between two persons of the opposite sex thus justifying a prohibition on a transsexual woman from marrying a man.35 This is ironic as here technically the marriage was between a man and a ‘woman’ even though she may have been a transsexual. Given this interpretation which accepts even on the marriage between a transsexual and a man, legalisation permitting same-sex marriages seemed like a far off mirage. In a number of other cases the European Commission had concluded that the relationship of a same-sex couple does not fall within the scope of the right to ‘marry and found a family’ under Article 12 of the ECHR.36 However, as a result of a long struggle by several transgenders, on 1 May 1999, Article 13 of the European Commission Treaty was amended to empower the Commission to take appropriate action to combat discrimination based on sex or sexual orientation. 37 This

considering Section

prohibition

have a common lineal ascendant within the limits of sapinda relationship with reference to each of them’. And Section 3 (f)(i) of the Act informs that a sapinda relationship ‘with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father…’. 34 No. 13 (1991) EHRR 622. 35 Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right. 36 In the case of C and L.M. v. UK (No. 14753/89) (1989), the Commission held that the right to marry and found a family and marry were not rights that could be claimed by a lesbian couple; same was held in Simpson v. UK (No. 11716/85) (1998), 47 D.R. 274. 37 Article 12: ‘Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’

was the first international treaty to acknowledge and prevent

discrimination on the basis of sexual orientation.

Despite various representations by the transgender community, few countries allow for homosexual marriages. What has, however, been recently allowed in several countries as a result of strong from many human rights, and gay and lesbian groups, is a civil partnership or a civil union offering similar but not equal rights conferred pursuant to a marriage. For instance, in 1989, Denmark became the first country in the world to recognise same-sex unions by allowing registered partnerships as an alternative to marriages.38 However, this union is not at par with heterosexual marriages as same-sex couples, unlike heterosexual couples, have not been given the right to adopt children. With the enactment of the Civil Act, 2004, the United Kingdom accorded recognition to same-sex unions treating them almost at par with marriages in terms of benefits and entitlements — making a distinction primarily in the manner in which partnerships are registered. 39 Similarly, are allowed to enter into civil partnerships in Norway and Sweden.40 Additionally, a step forward was taken in the landmark case of Toonen vs Australia,41 under the International Covenant on Civil and Political Rights 1976, where the United Nations Human Rights Committee struck down the laws in Tasmania that prohibited same-sex and opposite sex oral or anal intercourse and all other activity between men as it was an arbitrary interference with the ‘right to privacy’ enshrined in Article 17 of the Convention.42

struggle

Partnership homosexuals

sexual

38 http://en.wikipedia.org/wiki/Civil_unions_in_Denmark (Visited on 20 May 2007). Other countries that recognise civil unions between persons of the same sex are Denmark, France, Germany, Hungary, Israel, Switzerland and the United Kingdom 39 A civil partnership is formed once both parties sign the relevant document whereas a civil marriage may be solemnised merely through the exchange of words by the parties intending to get married. Further, a marriage may be solemnised by a religious or civil marriage ceremony whereas persons entering into a civil partnership are given no such choice and have to mandatorily follow a civil procedure. 40 Registered Partnerships for Homosexual Couples 1993 in Norway; and Registered Partnership Act 1994 in Sweden. 41 No. 13 (1991) EHRR 622, UNHCR Committee Doc. CCPR/C/50/488/1992, 1 IHHR 97. 42 Paragraph 8.2 of the judgement states that, ‘it is undisputed that the adult sexual activity in private is covered by the concept of privacy and that the Tasmanian laws interfere with privacy’. The Committee found that the interference was arbitrary after applying a test of reasonableness, as well as examining the end to be sought through such legislation. It concluded that criminalisation was not a reasonable or proportional means to prevent the spread of AIDS-HIV, nor

consensual

proportional

The underlying logic behind the creation of a separate status for same-sex couples as ‘civil partnerships’ or ‘civil unions’ is per se questionable as it only reflects and reinforces society’s imprint of a difference and the ‘other’. The Netherlands became the first country to progress from recognising civil partnerships in 1998 to recognising same sex marriages in 2001. Some other countries, like Belgium and South Africa, have followed suit by progressively granting equal rights to same sex couples. For instance, Belgium43 initially recognised civil unions between same sex couples in 2003 but denied them adoption rights. However in April 2006 the proposal to permit adoption was by the Chamber of Representatives of the Parliament thereby legalising adoption by same-sex couples.44 Certain states in the United States of America like Massachusetts have also recognised civil The Massachusetts Supreme Judicial Court has in the case of Hillary Googridge and others vs Department of Public Health and another45 ruled that ‘barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution.’

approved

marriages.

However, there remains strong opposition to same-sex marriages

even in jurisdictions where same-sex marriages have been recognised and laws according recognition to same-sex unions or partnerships though passed after a long struggle have often been passed with small majority in the legislature. For instance, in 2007, controversy was it essential to protect the morals in Tasmania given that the act was within the private sphere. The provisions relating to the right to marry and found a family, and the right to freedom of speech subject to the restriction of public morality, have not been used by transgenders under this Convention as yet. 43 http://en.wikipedia.org/wiki/Same-sex_marriage_in_Belgium (Visited on 20 May 2007). 44 For instance, South Africa granted unregistered cohabitation in 1999. Five decisions of the Constitutional Court set the status of civil unions. The decisions recrognised same-sex partnerships in immigration (1999), granted same-sex couples the same financial status as married heterosexual partners (2002) and unmarried cohabiting heterosexual couples (2003), allowed adoption by same-sex couples (2002), and recognised that the children born to same-sex couples by way of artificial are legitimate (2003). http://en.wikipedia.org/wiki/Same-sex_marriage_in-_ South_Africa (Visited on 20 May 2007). 45 No. 941 (2003) Mass. LEXIS 814 http://www.mass.gov/courts/courtsandjudges-/ courts/supremejudicialcourt/goodridge.html (Visited on 20 May 2007).

insemination

arose when the government in The Netherlands announced in its government policy statement that individual officials who object to same-sex marriage on principle may refuse to marry such couples. Similarly, the future of same-sex marriage in Massachusetts is still uncertain, as there is an active effort to amend the state constitution in order forbid it.46 The result has been that, while some other countries like China and Romania do not recognise civil partnership even today, most of the legislations have permitted ‘civil unions’ wherein the legal of matrimony are extended to gay couples but the all-powerful term — ‘marriage’ — has been withheld. The euphemism of 'separate but equal’ has been employed to accord fictional fairness to segregation. However, it needs to be noted that even state of partnership-style marriages has attracted strong public criticism.47 A further issue arises in the categorisation of transsexuals and hijras within the categories of ‘male’, ‘female’, ‘man’ or ‘woman’. No indices are available, as there exists no Indian case law determining the validity of transsexual marriages or same-sex marriages.48 While on one hand it is a cause of concern that such an issue has never come before the courts of law, it is likely that the word ‘man’ or ‘woman’ will be given its ordinary meaning — one that excludes transsexuals and hijras. This issue gains special significance in light of the fact that the majority of hijras castrate themselves.49 This is done either within the hamam — by the nayak or some senior hijra —or by quacks. Such operations are often conducted in hazardous and unsanitary

benefits

recognition

(postoperative)

46 http://en.wikipedia.org/wiki/Same-sex_marriage_in_Massachusetts (Visited on 20 May 2007). 47 In Fort Lauderdale, Florida, where same-sex marriages are recognised (along with the right to have a ceremonial marriage), anti-gay activists feel the measure is void as it goes against the state law that bans such marriages. Judicial precedent that allows for these partnerships have been criticised as being a ‘complete waste of taxpayer money and time’, The Orlando Sentinel, 12 July 1999. http://www.orlandosentinel.com. (Visited 20 August 2003). Similarly, in Wisconsin, although the legislature has incorporated these partnerships, various religious rights activist groups seek to sue and invalidate the legislation. The Wisconsin Light Newspaper, 13 July 1999. www.wilight.com (Visited on 20 August 2003). 48 There is a writ petition, pending before the Supreme Court of India, challenging the constitutionality of Section 377 of the IPC (PUCL, K 2003, p. 70). 49 Based on interviews conducted.

conditions. Operations often turn out to be defective, leading to severe infection, loss of urine control, other painful complications, and sometimes even death. 50 Due to the manner in which operations are conducted, hijras have ‘ambiguous’ genitals. Further, as earlier, transexuality is not contemplated in most including India. But technically, it is illegal in India as under Section 320 of the IPC ‘emasculating’ (castrating) someone is causing him ‘grievous hurt’ for which one can be punished.51 And under Section 32252 of the IPC, even ‘voluntarily causing grievous hurt’ is a punishable offence. Therefore even if one voluntarily chooses to emasculate oneself, the doctor may be liable to under this provision and the person undergoing the could also be punished for ‘abetting’ and aiding in this offence.53

mentioned countries,

punishment emasculation

50 The current practice within the hamams in Hyderabad is that after the person seeking to join the community has met some members of the community, he is welcomed by the others with a small celebration, distributing sweet and dancing. When the members of that community feel that he is ready for attaining nirvan (castration) his penis is tied with horse hair for 48 hours to ensure he does not urinate. Then he is brought before murgi mata (hen goddess) and made to lie down over a hole. A sharp knife is taken and the penis is cut in an instant. There is an immediate gush of blood and urine. To stop this some hot oil is poured over the wound. Some ash is then put on it to act as an antiseptic. The hijra is them left to herself through the night. If she survives, they believe murgi mata trusts her to be a good hijra. For some of them, the risks involved include death due to neurogenic shock or due to the wound becoming septic, and for all others lifting weights is akin to suicide. She stated that there exists a danger of them bleeding to death in case they lift relatively heavy weights; also, that many hijras take hormonal tablets/injections since hormonal therapy is not offered by government or private doctors. Excerpts from an interview with Mitridu, a transsexual, Hyderabad 24 September 2003; and with Arun Chaudary, Darpan Foundation, Hyderabad, 3 October 2003 [on file]. 51 Section 320: ‘Grievous Hurt: the following kinds of hurt are only designated as “grievous”. First, emasculation….’ It is relevant to note that in India SRS is available, though very surreptitiously, and where it is available it is accessible only to the rich. Most hijras and kothis who come from the lower income groups are unable to afford it. For instance, the plastic surgery department in Lok Nayak J.P. Narayan Hospital performed SRS on a 27-year-old Ranjan, one of several that this hospital has performed in the last couple of years. The surgery, which was a complicated one lasting seven hours, was done free, which would otherwise cost Rs 15 lakhs in a private hospital (PUCL 2003: 52). 52 Section 322:‘Voluntarily causing grievous hurt’. Whoever voluntarily causes hurt, which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said ‘voluntarily to cause grievous hurt’. 53 Section 88 of the IPC however provides an exception for acts done in‘good faith’ with the consent of the person suffering the harm. However, as a transsexual is

In light of such provisions and the absence of SRS being recognised, it is improbable that the courts would be receptive to categorising a hijra as a woman. However, even in countries where transexuality is contemplated and SRS is permissible, various issues arise in relation to of a transsexual as a ‘man’ or a ‘woman’, when same-sex are not permitted. The bio-logic of law is further exemplified after a reading of judgements from various jurisdictions which have recognised the SRS but have failed to provide a mechanism for their legal recognition in the acquired gender. A range of complex issues relating to marriage, adoption, succession etc. are required to be addressed post the SRS. For instance in the case of Corbett vs Corbett,54 where the validity of a marriage between a male to female transsexual and a male was in question, it was held that the chromosomal factor is decisive in sex determination and as a transsexual was chromosomally male while ostensibly female, her marriage with a male was invalid. Hence it was held that sex is determined at birth.55 Similarly in S-T (formerly J) vs J,56 wherein J was undergoing transition and lacked a penis at the time of marriage, the marriage was held to be a singlesex union. What is more relevant to note is that the ability of fulfilling the essential marriage role which requires the capability to engage in sexual intercourse was also stressed upon.57 It should be recognised that it is the centrality of genitalia and the capacity for heterosexual intercourse in the legal formulation of sex which ensures that a dichotomous notion of gender is reproduced. Hence, legal marriages

determination marriages

seen as suffering from GID which is classified as a psychiatric disorder, it remains a moot point as to whether the consent given is valid. In India there has been no case of doctors being prosecuted for causing grievous hurt through SRS, and remains unlikely since in such a situation both the doctors and the patient are consenting parties. Moreover, the doctor is likely to be covered by Section 88. 54 [1970] 2 All ER 33. 55 Ironically, Ormod J. held that he was not determining legal sex, i.e., sex for any purpose other than marriage. He stated that law can accommodate transgenders in almost all its other aspects. This would mean that for all other purposes sex is equated to gender or the psychological feeling, but for marriage sex refers to one anatomy. 56 [1998] 1 All ER 431. 57 This has seen stressed upon in many subsequent cases like Richards v. United States Tennis Association, 400 NYS 2d 204.

depend on conduct rather than heterosexual status and the ability of transgender persons to marry rests on their ‘physical ability to perform a particular sex-act’, and that it is the homophobia of law that confers them the acquired sex for all purposes other than marriage. However, a shift in the understanding of sex with reference to genitals/chromosomes alone took place in Attorney-General vs Otahuhu Family Court58 (in New Zealand) where Ward LJ placed considerable emphasis on ‘new insight into the aetiology of transsexualsim’ and relied on contemporary scientific studies conducted on male-to-female transsexuals suggesting that they possess a female brain structure. Such studies support the hypothesis that gender identity develops as a result of an interaction of the developing brain and sex hormones, and problematises the view taken in the Corbetts case. This approach has its common law origins in the New York case of Re Anonymous,59 which involved an application by a (male to female) transgender woman to have her birth certificate changed to reflect her post-operative status. Justice Perora held the applicant to be female because her anatomy had been brought into conformity with her psychological sex. He further stated that a person’s identity should not be limited by ‘the results of mere section or biochemical analysis’.60 A reading of the decisions shows an attempt to overcome the legal tension between the desire to reproduce the gender order and the desire to preserve the space for the ‘natural’ heterosexual within marriage. However, this has not been free from a legal anxiety over the homosexual body. That is to say, inclusion of transgender bodies (restricted to those with heterosexual capacity) within the realm of marriage proves possible only because of the ‘denaturalising’ efforts of law expended around these bodies. In particular this legal work requires the ‘naturalness’ of already

histological

intercourse postoperative

58 [1995] 1 NZLR 603. 59 293 NYS 2d 834 (1968). 60 In MT v. JT [355 A 2d 204 (1976)] the psychological and anatomical harmony test formulated by Perorra J. was endorsed implicitly wherein it was stated that ‘...factors other than a person’s psychological sex cannot be ignored. In fact, they must be held to be controlling if overwhelmingly contrary to the assumed sex role. Thus, a pre-operative transsexual would have to be classified according to his/her anatomical sex. Society would consider a fully anatomical male to be male regardless of a convincing feminine appearance or the individuals’ inner beliefs.’

included bodies to be mirrored.61 That is to say, the law continues to project its homophobia into the pre-operative body. In some cases there appears to be a progress from proving heterosexual and all post-operative transgenders have been able to claim marriage rights.62 Hence the SRS would appear necessary not so much to generate heterosexual penetration, but precisely in order that transgender bodies accord with the aesthetic sensibility of the law and thereby reduce its homophobic anxiety. As a result of this exclusion and reluctance to recognise transgenders and their unions on par with the ‘natural’ and ‘normal’ heterosexual unit they face discrimination and unfairness in other spheres as well such as in the case of adoption, inheritance and other entitlements. For instance, the two primary legislations in India governing the Juvenile Justice (Care and Protection of Children) Act 2000 (JJA) and the Hindu Adoption and Maintenance Act 1956, both speak in terms of adoption by a couple as understood in the traditional sense to be a man and a woman, or adoption by a single person, and prescribe a set of requirements and restrictions with respect to the age of the parents, and in case of single parents, the of another family member as additional economic support. The only place where the existence of transgenders and/or couples are acknowledged is under the Inter-Country Guidelines that was framed in 2004 to lay down the procedure to be followed by adoption homes/institutions before filing adoption petitions under Hindu Adoption and Maintenance Act 1956, the JJA 2000 and also the Guardianship Petitions under Guardian & Wards Act 1890 (GAWA). The Guidelines state that ‘placement of girls with a single male is not allowed as also placement of children

capacity,

adoption,

presence homosexual Adoption

61 Most countries that have recognised the SRS have permitted only a post-operative transsexual marriage right, hence excluding all other transgendered people. In countries like UK even post-operative transsexuals face a differential treatment depending on whether they are ‘authentic’ or not. That is to say, courts have looked into the physical ability to perform a sex act, functionality of the vagina, the capacity to do the act, etc. In other words, courts have not been satisfied just with the fact of SRS being established. MT v. JT, 355 A 2d 204 (1976). This results in judges with little knowledge about medicine and psychology deciding crucial issues. It also creates a high level of confusion among members of the community as they are unclear about their own status unless challenged in the court of law 62 Attorney General v. Otahahu Family Court, 1995 1 NZLR 603.

heterosexual

with same-sex couples’, clearly depriving same-sex couples of the right to adopt children. The logic behind these Guidelines seems to be similar to that adopted by the Commission in one case wherein it was held that ‘as regards parental authority over a child, a homosexual couple cannot be equated to a man and woman living together’.63 The law here in some ways is adopting differential standards, where on the one hand it requires single persons to provide an family support system, and on the other, same-sex couples where the second person could form that additional support system are denied the right to adopt. However, it is important to keep in mind that for the first time the existence of same-sex couples has even been acknowledged within the realm of Indian family law. Not only are hijras and kothis deprived of their right to found a family, but they also most often lose the rightful share over their property. This may be attributed to many reasons such as running away from home at an early age, or the ambiguity in the present law as to their legal status, or due to wilful exclusion from the family property by their parents. Hence their choice of being a hijra/kothi deprives them of the support of their families both emotionally and monetarily. The laws relating to succession in India are also predicated on the concept of the family as traditionally understood to comprise of a male and a female. The term ‘heir’ is also defined to mean any person who is ‘male’ or ‘female’, and traditionally excludes those whose gender is ambiguous. The Hindu Succession Act 1956 has elaborate sections governing intestate succession wherein the of property is based on the existence of a family. The first set of people who are given preference are sons and daughters, and the husband, who is understood to be a man.64 Further, as the definition of family has been legally limited only to the aspect of heterosexual unit as discussed earlier, gay or lesbian couples cannot nominate their companions for receiving payments

additional

devolution

63 Sandra v. UK (No. 9672/56) (1979) EHRC 97. 64 For instance, Section 15 of the Hindu Succession Act 1956, which speaks of the manner of devolution of property of a female is as follows: (a) first, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) second, upon the heirs of the husband; (c) third, upon the mother and father; (d) fourth, upon the heirs of the father; and (e) last, upon the heirs of the mother.

under the relevant legislations. For example, under the Employees’ State Insurance Act 1948 (ESI) dependants and family as defined under Section 2(6A) and 2(11) of the ESI Act, are entitled to certain benefits. Similarly under the Employees Provident Fund Scheme 1952 (EPF) an employee is entitled to claim provident fund on, and termination. Further, an employee can nominate a who will receive the provident fund in case of his/her death.65 Besides, under the EPF, if no nomination is made, the provident fund will go to heirs as prescribed under the personal laws. the Workmen’s Compensation Act 1923 provides that in case of death caused by injury at work place, dependents are entitled to receive compensation. The word ‘dependent’ is defined so as to include only a widow, a minor son, an unmarried daughter, or a widowed mother … and a major son or daughter who is infirm. The position is the same under the Payment of Gratuity Act 1972 where a family is defined in a very restricted manner to include only relationships by blood or marriage. Another example, affecting hijras and kothis as employees, would be the provisions of the Equal Remuneration Act 1976. According to Section 4 of the Act, employers are duty-bound to pay equal to both men and women workers for the same work or work of a similar nature. Section 5 of the Act imposes a positive duty upon employers not to discriminate between men and women during recruitment. Since hijras and kothis are not traditionally understood as persons falling within either category, they face and would indeed also lobby hard to have the provisions of these laws to extend to them. These benefits would accrue only if transgenders are accepted into mainstream employment. Most of the time, they are denied jobs (which might otherwise help to keep them as part of society and at least give them some basic protection) on the basis of their queer sexuality or because they lack the requisite education. The laws thus deny transgenders the ability to equip themselves with skills which will help them earn a decent living and live with dignity. According to Young, this kind of marginalisation isation constitutes the most dangerous form of exploitation in society

resignation, person

Additionally,

remuneration exclusion

mainstream

65 Regulation 61 of the EPF which deals with nomination, reads: ‘(3) If a member has a family at the time of making a nomination, the nomination shall be in favour of one or more persons belonging to his family. Any nomination made by such member in favour of a person not belonging to his family shall be invalid.’

because it prevents minorities from exercising their capabilities in socially recognised ways. No amount of benefits of distribution 66 will be able to eliminate this kind of marginalisation that the community faces. Sexual behaviour is thus naturalised through laws relating to adoption, employment and property rights. The non-existence of any laws to regulate hijras or transgenders (who have undergone sex-change surgeries) similarly reinforces the naturalness of the binary. Thus, though there may be no law directly dealing with hijras, their very non-existence as legal subjects, makes them to its terror. As a number of them run away from their families they lead a life of abject poverty bereft of the economic support from their family, education, employment and other benefits which are dependant to a large extent on the degree of conformity with such societal norms.67 Most of them, if they manage to have any, do not complete their education.68 Further, their ‘peculiar’ physical appearance69 and their sexual behaviour prevents them from obtaining jobs within the economy,70 forcing them to resort to begging or sex-work for the rest of their lives. The few who manage to secure jobs are forced to leave, and others refused employment because of their peculiar physical attributes, which deviate from the heterosexual norm. Hijras are thus left with no option but to resort primarily to — basti (begging), badhai (performances at birth and wedding ceremonies), and pun (sex work), to earn a living. The basti is accompanied with the traditional clapping and sometimes even with threats that they will lift their underskirts and display their genitals if money is not

transgender marriage, gender vulnerable

mainstream

66 Distributive justice, according to Iris Marion Young, addresses material deprivation but does not address the other kinds of discrimination in society that marginals face (Freeman 2001: 551). 67 Shanta, one of the hijras we interviewed at an HIV awareness centre in Hyderabad, was from a middle class background and was forced to run away from her family as her decision to be a hijra was not acceptable to them, and now lives a life begging and making the little money she can from sex-work. 68 Famila and one other hijra (who did not want her identity disclosed) we in Bangalore, told us of how they, despite support from the family, had not passed their high school exams because they were subject to ridicule and teasing at school and hence lost all interest in studying. 69 As a bank manager once told Bunty, a katla kothi we interviewed, ‘Mooh dekho, tumko naukri kaise milega (Look at your face, who will give you a job)? 70 Rani was employed in Kemp Fort as a sales assistant, but could not go back to the job after her sex change operation (PUCL 2001: 32).

interviewed

paid. Begging is done on streets, in buses and on trains. As interviews revealed, the interesting fact about hijras is that most often the sex work is not a result of trafficking. There are few pimps and most often all the money earned is kept with them. While the rigid hierarchical structure that exists in the hamams often prevents many hijras from taking up other means of for fear of bringing about discord in the hamam, the primary reason for most hijras preferring to stick to traditional is the fear of social oppression and harassment, and the mental and physical persecution they face at the hands of policemen and goondas. Thus effectively, ironic though it may seem, the choice of becoming a hijra is like making an occupational choice. A hijra is therefore denied the basic protection of fundamental rights that are accorded to every person under the Constitution of India. The Indian Constitution prohibits discrimination against any person on the ground of sex.71 Similar provisions in other such as Title VII of the Constitution of the United States of America, have been read to include discrimination on the ground of gender stereotyping too.72 Until date there is no similar judgement in India. However, even if such an interpretation was borrowed in the Indian context, such a prohibition of discriminating on the grounds of sex would extend only to the state, and not to private However, past instances of judicial activism such as the Supreme Court’s decision in Vishaka vs State of Rajasthan 73 has raised hopes of such prohibitions being extended to private persons. from Constitutional provisions and international human rights documents such as the ICCPR and CEDAW, the Supreme Court in the case of Visakha vs State of Rajasthan held ‘sexual harassment’ at workplace to be violative of gender equality guaranteed by these documents. Most significantly, the Supreme Court issued guidelines requiring ‘all employers or persons in charge of work place whether

employment occupations

jurisdictions,

persons.

Drawing

71 Article 15: (1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 72 For instance, in the landmark case of PriceWaterhouse v. Hopkins in 1989, the US Supreme Court expressly declared that sex-stereotyping was sex discrimination under Title VII. As a result of this judgement, if an employer discriminates against a member of one gender for exhibiting a particular characteristic that it would find acceptable in the other gender, i.e., persons who fail to conform to gender stereotypes, that employer has discriminated ‘because of sex’. 73 AIR 1997 SC 3011.

in the public or private sector to take appropriate steps to prevent sexual harassment’, thus bringing the private sector within the scope of Article 15. More relevant is the fact that it addressed and recogrnised the relationship between gender inequality and employment. 74 The same logic can easily be extended to hijras and kothis. Similarly, the benefits and non-discrimination guarantees available under the various labour legislations to dependants and families should also be extended to hijras and kothis. 75 The Indian Constitution further contains several guarantees in order to ensure equality, the right to practice any profession, or to carry on any occupation, trade or business.76 In addition to these, it also imposes on the state a duty to try and ensure that its citizens are provided opportunities for work and are not forced to do work under unsuitable or degrading conditions because of economic necessity or social prejudice.77 However, these rights and guarantees such as the right to use public transport, enter a religious place of worship, get treatment at a hospital, buy articles from a shop, opportunity to be considered for a job and for admission to an educational institution based on merit rather than on physical appearance etc. which are available to all citizens alike and are taken for granted, are denied by the society and the law to transgenders. As a result of this exclusion and the fact that they have no or social power in society, transgenders are subject to a range of atrocities of the most inhumane and degrading kind simply by virtue of their not being ‘normal’ human beings.78 Police harassment, whether in the form of abuse, violence, extortion or even rape, forms

economic

74 The Court held that ‘it is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work, including recruiting or promotion or when it creates a hostile work environment’. 75 For instance, EST 1948; The Equal Remuneration Act 1976. For example, the Draft Law in Wages as proposed by the Second National Commission On Labour, Government of India, 2002, prohibits discrimination against female workers, http://labour.nic.in/lcomm2/2nlc-pdfs/ [Visited on 20 August 2003]. 76 Article 19 (1) (g) of the Constitution of India. 77 Article 39 of the Constitution of India. 78 ‘Sachin, a hijra who did sex work for a living was caught by a policeman, taken into the bushes and asked to strip, as he wanted to see if Sachin could get his penis up. The policeman beat up Sachin badly, and refused to return his clothes. He then had sex with Sachin. As Sachin narrates “My ass was bleeding. I could feel blood going down on my thighs. The policeman shouted ‘Hey stop crying or I will hit you more.’ He then lifted me, asked me to bend and fucked me more.” The policeman then left,

a real part of their everyday lives. One of the most common forms of harassment by the police is extortion.79 Rape, sex, beatings, verbal abuse and torture are just some of the ways in which hijras are abused within these custodial institutions.80 In jails where there is a strict segregation of inmates according to their sex, hijras become even more vulnerable to torture at the hands of the police because of their feminine behaviour which is viewed with contempt in an essentially ‘masculine’ environment.81 The powers of the police under the Immoral Traffic Prevention

Act 1956 and Section 377 of the IPC are often misused to create terror in the lives of a transgender in India.82 The police here, only reflect the social prejudices of society itself that sees

unfortunately,

but Sachin’s trauma that night was not over as he was dragged into a passing tourist van where alcohol was forced down his throat, and after breaking the bottle the tourists gashed his arm with it. They then stopped the car in a field and forced him to have anal intercourse with all of them, sometimes even two at a time. He was still bleeding. They then left him and drove away. He survived by dragging himself to a hijra’s house’ (PUCL-K 2003: 26–28). 79 The police often extort money from them, and first information reports are almost never recorded as hijras are threatened with beating, rape or being ‘outed’ if they don’t pay the sum named by the police. It appears to be one of the easiest ways for the police to make easy money as the gay/bisexual men are so scared of being ‘outed’ to wider society that they will part with whatever they have with them. The problem is only worsened by the fact that there are virtually no mechanisms for redressal. The police also utilise the technique of illegal detention for periods of time varying from overnight to a few days. They do not file a FIR and keep no documentary evidence of the person’s detention. Due to the lack of such evidence, these cases do not come to the attention of the public. (PUCL 2001: 13). 80 Often they are picked up by the police not because they commit a crime but because they are found loitering around, and that they are hijras. In one case, a middleaged sex worker was just sitting in the park when a policeman attacked her and dragged her into the street and went away only when her screams attracted attention. (PUCL 2003: 32). There are cases where hijras have been registered under false names and false crimes, as in the case of Rahul, who was sexually abused by the police in jail. They beat him up and took turns in putting their penis into his mouth. 81 The other experiences narrated to us during the course of our interviews all speak of horrific stories of being raped, forcefully paraded naked, forced into having anal intercourse, while others speak of ridicule, being beaten up, torture and exclusion from public spaces and denial of access to basic facilities. 82 We understand from our interviews that the police, in an attempt to prevent trafficking, often proceed against the sex workers instead of the institution of prostitution or the brothel-keepers without gathering evidence of solicitation (which is mandatory under Section 8 of the Immoral (Trafficking) Prevention Act 1956), and hijras are very often victims at the hands of the police. One such hijra who did not want her identity disclosed told us of a horrific story of being picked up by the police on charges of solicitation while she was on her way back to the hamam and

hijras as a separate class of beings that deserves only to be abused, mistreated and dehumanised in the worst manner possible. This violence only explains the intolerance of society and the law anyone who digresses from established sexual norms. The police also say that as long as homosexuality and soliciting in public places are offences, they have to follow the law and arrest hijras if necessary.83 Violence and abuse thus forms a part of the everyday lives of transgenders. The disciplining role of the law thus takes many forms — from the violence inflicted by the police, exclusion from and economic support of the family, ridicule and in popular media, to widespread social ostracism. Iris Young argues that this violence is a form of social injustice that cannot be ignored by any theory of justice because it is not an moral wrong but an accepted social practice, and the members of the oppressed group know that they are liable to this sort of violation. As rightly stated by Young, oppression can result from tyranny but it often results from the ‘everyday practices of a wellintentioned liberal society’. It is these everyday practices of exclusion, violence and exploitation that have resulted in oppression of the transgenders.84 The epidemic of hate and exclusion faced by the transgenders makes an interesting study of the psychology within which the law operates. A developmental perspective of morality emphasises on how moral reasoning becomes more sophisticated as individuals in

towards

emotional misrepresentations individual

discrimination,

was imprisoned, repeatedly beaten, asked to reveal her private parts and forced to have anal sex with the policemen in the lock-up and ridiculed.We also interviewed a policeman who did not want his identity to be disclosed, who while the problem and admitting that harassment at the hands of the police does occur specifically in police custody, said that the police cannot be expected to be righteous. 83 Policemen often deny reports that harassment of hijras takes place at their hands but on comparing of narratives of hijras and social workers we interviewed we understand that this impression is because most often no formal complaints of such atrocities and violations are lodged with the police out of fear of further harassment and torture. 84 Oppression consists in systematic institutional processes that prevent some people from learning and using and satisfying, and expansive skills in socially recognised setting or institutionalised social processes that inhibit people’s ability to play and communicate with others or to express their feelings and perspective on social life in contexts where others can listen (Freeman 2001: 618).

acknowledging

every society mature.85 Such a developmental perspective can also be applied to a person’s conception of the law. June Tapp and Felice Levine have tried to explain how individuals come to appreciate and react to the requirements of the law. They divide the moral development of individuals into three stages: in the first, preconventional stage, where people obey the law out of fear of punishment or deference to authority; at the second, conventional level, people follow laws to maintain the social order of the community as group norms become more important than individual rights. At the postconventional level, people follow only those laws that coincide with independently derived ethical categories.86 The experiences of a transgender in India evidences a mindset of society that falls predominantly under the second stage, where people seek to act and accept those acts which will abide by the law and gain approval of others. However, whether such an existing social mindset stems from ignorance, indifference or abhorrence, it is important to realise 85 Lawrence Kohlberg believed and was able to demonstrate through studies that people progressed in their moral reasoning (i.e., in their bases for ethical behaviour) through a series of stages. He believed that there were six identifiable stages which could be more generally classified into three levels. The first level of moral thinking, pre-conventional, is that generally found at the elementary school level. In the first stage of this level, people behave according to socially acceptable norms because they are told to do so by some authority figure (e.g., parent or teacher). This obedience is compelled by the threat or application of punishment. The second stage of this level is characterised by a view that right behaviour means acting in one’s own best interests. He classifies the second level as the conventional level, that generally found in society. The first stage of this level is characterised by an attitude which seeks to do what will gain the approval of others. The second stage is one oriented to abiding by the law and responding to the obligations of duty. The third level, i.e., postconventional, of moral thinking is one that Kohlberg felt is not reached by the majority of adults. Its first stage is an understanding of social mutuality, and a genuine interest in the welfare of others. The last stage is based on respect for universal principle and the demands of individual conscience (Garrett 2003). 86 Further, Urie Bronfenbrenner, another psychologist, outlines five moral among which the third was analogous to that of Kohlberg’s conventional level: Authority-oriented morality: Here, the child or adult accepts the decrees of authority figures, from parents up to heads of state and religion, as defining of good and bad. Peer-oriented morality: This is a morality of conformity, where right and wrong is not by authority but by one’s peers. In western society, this kind of morality is frequently found among adolescents, as well as many adults. Collective-oriented morality: In this orientation, the standing goals of the group to which the child or adult belongs over-ride individual interests. Duty to one’s group or society is paramount. Information available at http://www.ship.edu/cgboeree/genpsy.html or http://www.social-psychology.de/do/genpsy2.pdf [Visited on 20 May 2007].

orientations

determined

that it is such a mindset that is primarily responsible for the creation of permanently targeted people who at any time are liable assaulted and excluded from the family and the society, merely because they happen to exist. There is a pressing need to progress towards creating social mutuality and a genuine interest in the welfare of others — based on respect for universal principles and the demands of individual conscience.

discriminated,

Conclusion

Illegality and criminality are not defined by law alone; moral,

economic and social discourses shape the contours of legality. Often it

is not through its specific provisions that the terrorising power of law is asserted, but through its ambiguity, silence and indifference. Transgenders are not only marginalised but are also powerless as they too lack ‘authority, status and a sense of the self’ in society (Freeman 2001: 552). They are forced to live in a closely-knit away from mainstream society where they only face and abuse and are even denied the right to work. Society treats them as the ‘other’ and hence finds no reason to make norms that would apply to them as well. This results in cultural imperialism87 and, as Nancy Fraser88 points out, the injustice that results from this is that ‘the oppressed group’s own experience and interpretation of social life finds little expression that touches the dominant culture, while that same culture imposes on the oppressed group its and its interpretation of social life’. Our notions of how people should live, the kind of relationships they should have are thus, very alien to transgenders but are imposed upon them by us. It is the silence of the law that is more terrifying than the exclusion as it depicts that transgenders are not even regarded as members of society. The problems of law for a transgender person thus operate at various levels. One is an ideological one, which relates to the existing social mindset, reflecting the high level of misinformation and relating to transgenders. The other is the legislative framework,

community, exploitation

experience

ignorance

87 According to Young, cultural imperialism is ‘to experience how the dominant meanings of a society render the particular perspective of one’s own group invisible at the same time as they stereotype and mark the other group out as the other’ (Freeman 2001: 552). 88 Freeman 2001.

when the law normalises the binary division of gender and makes a transgender an aberration. At the implementation level, this creates a bias in the mind of the society and law enforcement machinery. While the issues surrounding transgenders operate at several levels, the impoverishment and alienation is primarily caused as a result of their being ousted by the families into which they are born, and second, by a denial of the right to found family, of the right to marry or adopt — all of which are fundamental to the survival of any individual in the existing structure of society. Ideally speaking, transgenders should be treated like any other ‘normal’ human being and the law must be reformed to grant the same set of rights, and freedoms as they have — rights of marriage, adoption, succession and other benefits not to mention freedom from as well as a decriminalisation of their sexual activities. However, in the actual business of reforming a law, the first and most difficult decision concerns the basis on which reform should proceed: should a law be introduced to achieve the ‘ideal’ level of rights or should they be introduced in phases taking into prevailing social prejudices and preparedness? Any step towards protecting and recognising transgenders would first require the elimination of institutionalised domination and Young argues against the grain of much of the feminist theory when she states ‘social justice requires explicitly and attending to those group differences in order to undermine oppression’ ( Freeman 2001: 550). Her theory of justice thus goes beyond the realms of distributive justice to include all other aspects of institutional organisation that a group may require. If Young’s arguments were applied to transgenders, it could be stated that the denial that transgenders are different from the majority is what contributes to their oppression in the first place. Only the acceptance of the fact that they are different can lead to ensuring that their rights as human beings are protected.89 The practices of discrimination are now a part of the social fabric of our society and commence right from the time a person realises he or she does not conform to the binary social construct. Her entire theory hinges on the fact that ‘basic equality in life situation for all persons is a moral value’ (ibid.: 551).

mindset

entitlements discrimination,

consideration

oppression. acknowledging heterosexual

89 Young argues for ‘a politics that recognises rather than represses difference’ (Freeman 2001: 551).

The violence against transgenders and the indifference of the law towards them stems at this point, where they defy the basis on which society is formed and sustains itself, and continues to affect all aspects of their lives. The demand for equal treatment of transgenders cannot be based on any notions of charity or pity, for that would be condescending or and would confer upon those who extend sympathy a sense of superiority. Instead, and more fundamentally, laws regarding their status must be based both on the principle of rights and on the need for correcting historical wrongs. They have the right to be granted the same fundamental legal rights as any other human being without any prejudice against their gender. Only then will the social and the legal system fulfil Dworkin’s criteria of an ethical and fair society which treats everybody in a ‘disinterested’ manner. Dworkin is correct in asserting that without such a basis in rights, the legal system will necessarily be exclusionary and prejudiced, and the social system out of which it emerges morally impoverished.90 In light of the above, transgenders should be entitled to equal protection and treatment under the law. However, any effective law must balance the conflicting interests in society and thus be framed in light of prevailing mindsets and moralities. Any legislation to drastically reform prevailing mindsets and eradicate existing prejudices, exclusion and disentitlements would be an exercise in futility as it would not be accepted in society. Given the history of horrifying experiences of transgenders in India, there is an urgent need for reform in the law to facilitate a social movement and to eliminate prevalent prejudices.91 Thus, though it would be ideal to grant transgenders in India the entire gamut of rights — including marriage, adoption, succession and

fundamental

compassion, patronising, arrangement

introduced

90 There is no natural or social ground upon which transgenders can be denied the right to full participation in the community and to the kind of ‘respect and equality’ of opportunities which are so essential for judging a good society. Laws must be framed on the principle of equality and respect so as to enable them to do things which they, like all other citizens, have a right to do and a desire to do; and, further, have all those things which they, like other citizens, have a right to have (Freeman 2001: 542–43). 91 For instance, the laws that came to abolish sati (burning of widows) or dowry came at a time when the two social evils were sanctioned and practiced by society. They did not change society overnight but gradually the practice of sati has been abolished as people began to see that it was indeed an evil practice. Laws sometimes have to be forward-looking. Apartheid in Africa was accepted by a majority of its population until, because of pressure from certain enlightened groups in society, an anti-Apartheid law was passed. These kinds of laws help dispel ignorance and are also the starting-point of any alteration that has to occur in societal prejudices. The law thus

other entitlements, an introduction of such rights at one instance would find heavy resistance from society. Attempting to not only decriminalise but also legalise them overnight would thus appear to be impractical, and result in violence and a high degree of as it would not be accepted keeping in mind the religious sensitivities and the communal forces that work in India today. Imposing laws that are not accepted by the society only result in lip service to the law. Considering the fact that in India, social awareness and movements by the sexual minorities are at their nascent stages, the prevailing social realities need to be considered and addressed to ensure that any such move does not become redundant. 92 In this instance, as in others, ideally, it is not for the state to impose on the doctrines, but to provide a mechanism by which social realities may be accommodated. It remains a matter for each and their community to reconcile any conflict inherent in their own situation. As Young argues, the ‘ethics of rights … requires not only that apply to all people in the same way, but a nuanced of the particularities of the social context, and the needs particular people have and express within it’ (Freeman 2001: 553). Any legislation for a community like the transgenders will be redundant if it does not consider the prejudices they face and the special kind of protection that they require. Given the peculiar kind of discrimination that they face, there is a need for a separate law that addresses their problems. She argues that though the notion of impartiality of rights, that theorists of justice like Rawls argue for, may seem like an ideal goal, in practice it fails miserably as it denies particularity of situations and thereby results in more injustice because different people are treated similarly. Affirmative action, for sensitisation and dissemination of relating to transgenders is thus the first step that is required to be taken. It is important for the state to present society the police) with moral dilemmas for discussion which would encourage society to move towards the post-conventional level of moral development where there is an understanding of social and welfare of others based on the demand of the individual

discontent

individuals individual

principles understanding rendered

information (including mutuality

needs to acknowledge the existence of varied and competing social interest and the need to strike a balance between them. 92 Given historical wrongs, it may sometimes be necessary to tilt laws in favour of transgenders and override the interest of those in the majority in exactly the same way as laws have been framed for Scheduled Castes and Tribes.

conscience. Additionally, reform must be made in the law to it decriminalise the existence of sexual minorities, and to recognise their legal status in society and to prevent discrimination. This would require a repeal of section 377 of the IPC and the enactment of laws which seek to integrate transgenders into mainstream society. Further, given the nature of the exclusion of transgenders from equal access to the economic, social and cultural goods of the society through illegitimate natural and moral it will also be necessary to frame special laws which will safeguard them against violent and prejudicial actions, as well as further their interests and enable them to achieve some of the goals that they desire. In fact, affirmative action is both legally and morally justified to correct past discrimination and its present consequences. This balance of interests operates not by merely weighing one against another in isolation but on the values that a society chooses to be governed by. Progressively, however, laws must be introduced to recognise rights of marriage, adoption, and other benefits. Any reformation thus needs to come in phases and slowly strive to attain the ideal; otherwise they would only be an exercise in futility. Any legal reform must first be introduced as a base for future action and change, conferring basic rights to transgenders, and atrocities against them so that they can find a niche for in mainstream society. Only after this kind of protection is granted can any law speak in terms of more rights.

antidiscrimination

justifications,

interest

prevent themselves References

Currah, Paisley and Shannon Minter. 2001. Transgender Equality: A for Activists and Policy Makers. New York: International Association for Gays and Lesbians. Deflem, Mathieu. 1994. ‘Social Control and the Theory of Communicative Action’, International Journal of the Sociology of Law, vol. 22(4): 355–73. D’Souza, Dilip. 2001. Branded By Law: Looking at India’s Denotified Tribes. New Delhi: Penguin Books. Feinberg, Leslie. 1998. Trans Liberation: Beyond Pink or Blue. Boston, Mass.: Beacon Press. Foucault, Michel. 1980a. Herculin Barbin: Being the Recently Discovered Memoirs of a Nineteenth-Century French Hermaphrodite, Trans. Richard McDougall. New York: Pantheon Books. ———. 1980b. The Archaeology of Knowledge. London: Tavistock. Frug, Mary Joe. 1992. ‘A Postmodern Feminist Legal Manifesto’ (An Draft), Harvard Law Review , vol. 105: 1045–68.

Handbook

Unfinished

Freeman, M.D.A. 2001. Lloyd’s Introduction to Jurisprudence. London: Sweet and Maxwell Ltd. Garrett, Jan. 2003. ‘ Theories of Cognitive and Moral Development’, www.wku.edu/~jan. garrett/cogmordv.htm. Gordon, C. (ed.). 1980. Michel Foucault, Power/Knowledge: Selected and Writings of Michel Foucault. Brighton: Harvester Press. Haidt, Jonathan and Judith Rodin. 1999. ‘ Control and Efficacy as Bridges’, Review of General Psychology, vol. 3(4): 317–37. Harraway, Donna J. 1999. ‘ Gender for a Marxist Dictionary: The Sexual Politics of a Word’, in Richard Praker et al. (ed.), Culture, Society and Sexuality: A Reader. London: UCL Press. Laframboise, Sandra. 2005. ‘An Introduction to: Gender, Transgender and Transphobia’, at www.mypage.direct.ca/h/hrp/gendertr.html. Nanda, Serena. 1997. ‘ The Hijras of India’, in Martin B. Duberman (ed.), A Queer World: The Center for Lesbian and Gay Studies Reader. New York: New York University Press. People’s Union for Civil Liberties. 2001. ‘Human Rights Violations against Sexual Minorities in India’. ———. 2002. ‘ Human Rights Violations against the Transgender A Study of Kothi and Hijra Sex Workers in Bangalore’. People’s Union for Civil Liberties. -K. 2003. ‘Human Rights Violations against Sexual Minorities In India: PUCL Fact-finding Report about Bangalore’. Seshadri, P. and L. Ramakrishnan. 1999. ‘Queering Gender: Trans-Liberation and Our Lesbigay Movements’, Trikone Magazine , 14(3): 6–8. 18 July. Wintermute, Robert. 1995. Sexual Orientation and Human Rights . Oxford: Clarendon Press. http://en.wikipedia.org/wiki/Civil_unions_in_Denmark http://en.wikipedia.org/wiki/Same-sex_marriage_in_Belgium http://en.wikipedia.org/wiki/Same-sex_marriage_in_Massachusetts http://en.wikipedia.org/wiki/Same-sex_marriage_in_South_Africa www.genderweb.org/julie~/general/tsinf2.html http://htdconnect.com/~merriman/pairbon2.htm www.intersexinitiative.org/articles/intersex-faq.html http://labour.nic.in/lcomm2/2nlc-pdfs/ http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/goodridge.html www.mypage.direct.ca/h/hrp/gendertr.html www.sfgate.com http://www.tgcrossroads.org/news/?aid=604 www.washblade.com www.wilight.com

Interviews

Interdisciplinary

Community:

Sexuality, 7

Fre dom and

the

* Law

S.P. Sathe Sexuality

as

a Human

Right

Sexuality encompasses desire and capacity to enter into sexual relations with another person. This desire is as integral to human life as hunger or thirst. Whereas hunger and thirst are considered legitimate and therefore can be openly talked about, the sexual is morally taboo. Instead, sexual drive is linked to procreation and only considered acceptable when indulged in as a means to that end. Any talk of sexuality without procreation is considered blasphemous. It is this writer’s submission that sexuality is an integral component of the human personality, hence its development is an important aspect of individual’s freedom. Men are accorded greater freedom to explore their sexuality because such exploration is viewed as an essential attribute of masculinity. The sexuality of women is suppressed and controlled by the ‘good woman’ stereotype prescribed by patriarchy even as women are disproportionately vulnerable to sexual harassment and attacks. A woman has little control in the conduct of sexual relations with her husband or any other man who has power over her, and no agency over her reproductive choices. Instead, she may well have to endure the polygamous behaviour of her husband. The repression of female sexual choices is not just

desire

*

The author thanks Professor Peter Hogg, former Dean of Osgood Law School, York University, Toronto, Canada, for supplying information about the same sex litigation before the Supreme Court of Canada. I thank my colleague Ms Sathya Narayan who accessed materials from the internet, and Ms Shubhangi Puranik who typed the various drafts of this article.

marriage

Sexuality, Freedom and Law

restricted to the family because the state— through its family policies— curbs reproductive freedom to arrest the growth of population. Women are often compelled to abort female foetus to prevent the birth of a girl child. The right to develop one’s sexuality in accordance with one’s sexual preferences is most trenchantly denied to men and women with alternative sexual orientation. They are very often not just deprived of the freedom of sexual choice but are subjected to physical as well as mental torture for their choices. This article proposes to survey the laws which tend to control the sexual choices of women and of persons with homosexual If development of sexuality is to be recognised as part of the fundamental right to life and personal liberty, such repressive laws either need to be repealed or differently interpreted by courts. rights cannot be denied due to social prejudice. When such like deprivation occurs, the state— including the legislature and the judiciary— need to initiate legal reform. The legal recognition of unpopular freedoms is a prerequisite to the social acceptance of such rights.

planning

orientation.

Legitimate

International

Human

Rights

Instruments

This discourse on the freedom of sexuality is inaugurated by the recognition accorded to this freedom in international human rights instruments. The international declarations and on human rights have been found to be normatively in recognising the freedom of sexuality. Article 16, clause 1 of the Universal Declaration of Human Rights 1948 declares that: ‘men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.’ In clause (2) it further says that ‘marriage shall be entered into only with the free and final consent of the intending spouses.’ Article 17 of the International Covenant on Civil and Political Rights reads as follows:

examining conventions deficient

(1) no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; (2) Everyone has the right to the protection of the law against such interference or attacks.

Sathe

In Article 23, the Covenant recognises in clause (1) that ‘the

family is the natural and fundamental group unit of society and the

State’; clause (2) recognises the right to found a family; clause (3) provides that no marriage shall be entered into without the free and full consent of the intending spouses. The States Parties who are signatories to the Convention have to take appropriate steps to ‘equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.’ These two international recognise the right to marry and also speak of a range of rights surrounding marriage, without defining it. Insofar as these conventions do not mention the freedom of ‘sexuality’, marriage may well have been understood in its traditional sense as a union between a man and a woman. It could be asked that do two persons have to be sexually related even without entering into wedlock? Such relationships are not forbidden by law. But parties to such do not always acquire economic entitlements such as or inheritance which are associated with ‘marriage’ as understood in law. In Australia, the Northern Territory has a law which allows courts to recognise such de facto relationships and to give to the parties some rights in respect of property and maintenance.1 Article 3 of The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) enjoins the states, which are parties to that Convention to take in all fields, ‘all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men’. Article 11, clause (1) sub-clause (f) asks the signatory states to secure to women the right to protection of health including the safeguarding of the function of reproduction. Clause (2)(b) enjoins the state to provide for maternity leave, and sub-clause (d) asks the states to provide special protection for women during pregnancy.

ensure instruments

freedom relationships maintenance

CEDAW is the first international convention which asks the states

to act positively for undoing the discrimination against women. It speaks of ‘rights’ rather than ‘liberties’ and imposes duties on the state. Against the backdrop of these international instruments, this

article will examine the legal curbs on sexual behaviour by (i) the law of rape and other penal provisions against sexuality;

examining

1 De Facto Relationship Act, as in force at 17 March 2004. It came into operation on 1 October 1991.

(ii) the law regarding homosexuality; and (iii) coercive methods of birth control. Law

of Rape

Section 375 of the Indian Penal Code defines rape as sexual

intercourse with a woman without her consent and against her will. Usually, in a rape case the defense lawyer has to prove that the sexual intercourse took place with the consent and willingness of the

complainant. In order to prove this, the defense tries to show that the rape victim was of bad character. Clause (4) of s. 155 of the Indian Evidence Act 1872 provided that ‘when a man is prosecuted for rape or an attempt to ravish, it might be shown that the was of generally immoral character.’ Her consent or for the sexual act was implied from her having been of bad character. If she had sexual relations, extra-marital or premarital sex, then she was stigmatised as being of bad character and her consent to the sexual intercourse was implied. Such a view was highly biased and denied the freedom of sexual choice to a woman and especially disadvantaged those women who did not conform to the ‘good woman’ pattern laid down by the man’s world. A woman who may have had sex with other men in the past could well refuse to have sex with the accused. The Supreme Court, in one decision, said that:

prosecutrix willingness

Even a woman of easy virtue is entitled to privacy, and no one can invade her privacy as and when he Therefore merely she is a woman of easy virtue, her evidence cannot be thrown overboard.2

because likes....

The words ‘woman with easy virtue’ is a description of a woman not conforming to the ‘good woman’ stereotype. The apex court is evidently paternalistic but even this paternalistic attitude of the apex court does not seem to have percolated to the level of the trial courts ( Agnes 1992: WS-19). Recent amendments to the Law of Evidence have prohibited questions regarding the moral character of the rape victim. Clause (4) of Section 155 has been deleted by Section 3 of the Indian Evidence (Amendment) Act 2003. Section 2 2 Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207, 211.

of that Amendment Act adds a proviso to clause (3) of section 155 as follows: ‘Provided that in a prosecution for rape or attempt to rape, it shall not be permissible to put questions in the cross-examination of the prosecutrix as to her general immoral character.’ The definition of rape is narrow and does not take in various kinds of indignities such as stripping and abuse of genital organs which a woman may suffer. Penile penetration is necessary to the offence of rape under Section 375.This definition means two things. One, that any sexual invasion less than penetration does not constitute the offence of rape. And two, insertion of objects into the vagina causing physical suffering does not amount to rape. attitude has not been helpful to rape victims (Dhagamwar 1992: 242–43). Many years ago, the decision of the Supreme Court in the famous Mathura case 3 was severely criticised by four professors of Law ( Baxi et al. 1979: 17). However, only a few changes have in the law since then.4 Recently, a women’s organisation called Sakshi moved the Supreme Court urging that the word ‘penetration’ in the explanation of 375 be interpreted to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration. A man guilty of inflicting such indignities on a woman can be punished only under Section 354 of the IPC for outraging the of a woman, the punishment for which is imprisonment for two years or/and fine. It was therefore vehemently argued that the word ‘penetration’ should be given a wider meaning so as to include other types of penetrations as well. The petitioners had approached the Supreme Court hoping that it may extend its judicial activism to this question. It was hoped that the Court might adopt a wider interpretation of the word ‘penetration’ so as to cover the indignities and cruelties that are heaped on a woman. This hope was fuelled by the broad obiters issued by the Court while liberally interpreting Article 21. Unfortunately, the Supreme Court did not respond favourably.5 This result was especially disappointing in view of the earlier decision of the Supreme Court where it had held that rape was

commit

constitute

Judicial

occurred Section

modesty

evidently

3 Tukaram v. Maharshtra, AIR 1979 SC 185: (1979) 2 SCC 143. 4 Section 376 was amended and sections 376A, 376B, 376C and 376D were added. 5 Sakshi v. India, (2004) 5 SCC 518.

violation of the woman’s right to live with dignity which stands included within the right to life guaranteed by Article 21 of the Constitutio6n. In another case the Court had observed that since rape was violation of the dignity of a woman, the state must deal with it more sensitively.7 The Supreme Court has also found that the Railway Board, a statutory body, was liable to pay compensation to a woman who had been raped by railway employees.8 Such must come in addition to and not in lieu of punishment of the person who inflicts the indignities. Article 7 of the International Covenant on Civil and Political Rights protects the life and dignity of all persons by laying down that‘no one shall be subjected to or to cruel, inhuman or degrading treatment or punishment’. The act of rape can be both termed torture, and a degrading act. And consequently it can be argued that in fulfilment of its obligations it was the duty of the Indian state to reform its criminal law to provide adequate redressal to the rape victim. State arguments in defense of the law The union government opposed the Sakshi petition by arguing that there was no need to modify section 376 as the complained acts of indignities could be taken care of under section 377 of the IPC. The marginal note on section 377 of the IPC— which contains the phrase ‘Unnatural — lays down that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’ The section does not contain any of unnatural offence. It was contended by the Union that oral sex or the rape of minor girls was an unnatural offence, and other than penile would be covered under the definition of unnatural offence. It is disappointing that the Government of India took such a dishonest position to defend the existing law.

compensation

torture international

offences’

definition penetration Contentions Against the Ruling of the Court

In Khanu vs Emperor,9 the Sindh High Court held that the act of oral sex could not be termed carnal intercourse against the order of 6 See Bodhisatwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490. 7 Punjab v. Ramdev Singh, (2004) 1 SCC 421: AIR 2004 SC 1290. 8 Chairman, Railway Board v. Mrs Chandrima Das, AIR 2000 SC 988: (2000) 2 SCC 465. 9 AIR 1925 Sind 286.

nature and hence was not an ‘unnatural offence’ punishable under Section 377, thus restricting its attention to anal intercourse in the sexual acts that were not punishable under that section. Even if the precedential value of Khanu is discounted, statistics of offences registered and tried under Section 377 expose the falsehood of the Union’s contention. A socio-legal study on Section 377 has found that hardly 18 cases have been tried under that section (Narrain 2004: 86). It is well known that Section 377 is used entirely to exploit, threaten to punish, and punish, persons of different sexual orientation. The Supreme Court could have nailed the lie of the government’s contention if it had asked the government to produce statistics under Section 377 of prosecutions instituted and obtained against child rape, oral sex or heterosexual acts of penetration other than penile penetration. The Supreme Court further observed that the dictionary meaning of ‘sexual intercourse’ is heterosexual intercourse involving of the penis into the vagina. The Court connected this dictionary meaning to the classical rule of interpretation that:

specifying

convictions

penetration

The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of to read words into an Act unless it is absolutely necessary to do so.10

consequence,

construction

This rule is applied with greater rigour to penal statutes. The common law requires strict interpretation of penal statutes. However these rules of strict interpretation are specially relevant in where courts are constrained by norms of parliamentary supremacy from striking down a statute. In such jurisdictions Courts protect individual liberty by holding that encroachment upon individual liberty shall be allowed only if expressly provided for by parliamentary enactment. This common law rule stands modified in jurisdictions, where there is a written bill of rights in the Constitution, which imposes

jurisdictions

10 Sakshi v. India, (2004) 5 SCC 518, at p. 537 (para 19).

restrictions on the power of the legislature. In Visakha vs State of Rajasthan,11 the Supreme Court had interpreted Articles 14, 19 (1)(g) and 21 in the light of CEDAW, and held that sexual harassment of a working woman infringed the fundamental rights mentioned above. Such a pronouncement was made by the Supreme Court because it found the obligations arising out of the ratification of an international covenant consistent with the constitutional expounded by the Court since Maneka Gandhi vs India.12 In Francis Coralie Mullin vs U.T. of Delhi,13 Justice Bhagwati— after observing that ‘the fundamental right to life’ must be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may ... enhance the dignity of the individual and the worth of the human person’14— enunciated the following of interpretation:

jurisprudence principle

[A] constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges, applies with greater force in relation to a fundamental right enacted by the Constitution.15 What use is the liberal interpretation of the Constitution if it does not percolate into the interpretation of statutes, particularly penal statutes? Once the Supreme Court has held that rape is not a mere offence under criminal law but is a violation of the woman’s dignity and therefore violative of her right to life and personal liberty guaranteed by Article 2116 should the interpretation of the criminal law not be informed by this constitutional norm? It is submitted that when a constitution contains a bill of rights, the courts must interpret statutes, whether of the penal or the family law variety, consistent with such rights. 11 (1997) 6 SCC 241: AIR 1997 SC 3011. 12 AIR 1978 SC 597: (1978) 1 SCC 248. 13 (1981) 1 SCC 608, 618. 14 Ibid.

15 Ibid. 16 Bodhisatwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490;Punjab v. Ramdev Singh (2004) 1 SCC 421: AIR 2004 SC 1290.

Danial Latifi v. India It is our case that fundamental rights should inform the criminal law of rape. We illustrate the relevance of the fundamental rights jurisprudence to the field of statutory law by discussing the Supreme Court decision in Danial Latifivs Union of India.17 In this case the Supreme Court interpreted the provisions of the Muslim Women’s (Protection of Rights on Divorce) Act 1986 to be consistent with the ideal of gender equality enshrined in the Constitution. It may be recollected that the above law was passed to override the decision of the Supreme Court in the Mohd Ahmad vs Shah Bano Begum case.18 Section 125 of the Cr.P.C. gives to a woman the right to obtain maintenance from her husband. section 127 of that Code, however, provides that if a woman has received some amount under her personal law after the of the marriage, she would not be entitled to maintenance under section 125. Under Muslim personal law, the husband was liable to pay maintenance only for three months, called the period of iddat. The Supreme Court held that if the amount received under section 127 was too small and not adequate for her sustenance, she could obtain maintenance under section 125. Such an obviously saved the woman from vagrancy. Since a section of the Muslim community protested against the Shah Bano decision, the government came out with a law called the Muslim Women’s (Protection of Rights on Divorce) Act 1986 which denied the of section 125 Cr.P.C. to a Muslim divorced woman, and provided that she would get maintenance from her husband only during the period of iddat, and subsequently would get support from the who would inherit her property on death, or failing any of them, from the Wakf board. This apparent solution was questionable the support of both the relations and the Wakf boards was suspect. The Supreme Court in deciding on the constitutionality of the statute was required to construe Section 3(1) of the Act, which required the husband to make a ‘reasonable and fair provision’ for his divorced wife ‘within the period of iddat’ and ruled.19

divorced

dissolution

interpretation

benefit

relations because

In interpreting the provisions where matrimonial relations are involved, the social conditions prevalent in society have to be In Indian society, whether they belong to the majority or

considered.

17 (2001) 7 SCC 740. 18 Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945: (1985) 2 SCC 556. 19 Danial Latifi v. Union of India, (2001) 7 SCC 740, 757.

the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Indian society is male dominated, both and socially, and women are assigned, invariably a dependent role, irrespective of the class or society to which she (sic) belongs.

economically The court held that a careful reading of the impugned law

revealed that a divorced woman was entitled to a reasonable and fair

provision for maintenance to be made by her husband within the period of iddat. He could not wash his hands by providing for her only for the period of iddat but such a provision must be for her life and the only requirement was that it should be made during the period of iddat. Unless the Act was interpreted in this manner, it would violate Articles 15(2) and 21 of the Constitution. Here the court, in awareness of the presumption of constitutionality of so interpreted the Muslim Women’s Act that it was rendered consistent with the ideal of gender justice enshrined in the If the court had restricted itself to only applying the mischief rule the divorced Muslim woman would have only obtained a meagre maintenance amount during the period of iddat.

statutes Constitution. It is unfortunate that the Supreme Court did not follow a similar

method while interpreting Section 375 of the IPC. In Sakshi, the learned judge distinguished Visaka by pointing out that a treaty which is contrary to the municipal law could not be enforced unless it is incorporated into the municipal law. This function, according to the court, was required to be undertaken by the Parliament and not the court. Even if this essentialist role definition is accepted, a liberal interpretation of fundamental rights (so as to avoid with an obligation arising from an international treaty) is clearly a function of the court. Similarly, a liberal interpretation of 375 of the IPC so as to render it consistent with the fundamental right to live with dignity is also the function of the court. It is submitted that the court conceived its function rather and contrary to what was projected in its previous decisions. The court reinterpreted the section on sedition (Section 124-A of the IPC) to make it compatible with the right to freedom of speech. Prior to Independence, the words ‘causing disaffection’ in 124-A of the IPC were held20 to include lack of affection towards

conflict section

narrowly Section 20 Queen Empress v. Bal Gangadhar Tilak, (1898) ILR, Bombay 112.

the government. In Kedarnath vs Bihar,21 however, the section was reinterpreted in the light of the fundamental right to freedom of speech guaranteed by Article 19(1)(a) of the Constitution and it was held that nothing short of an incitement to violent overthrow of the state would constitute ‘disaffection’ within the meaning of that section. In Mithu vs Punjab,22 the Supreme Court struck down section 303 of the IPC which prescribed the death sentence for the offence of murder committed by a person serving life as being violative of Articles 14 and 21 of the Constitution. Where a criminal law is contrary to the Constitution, it may either be reinterpreted so as to make it compatible with the Constitution or be struck down. While in Kedarnath, it was reinterpreted, in Mithu it was struck down. Prospective overruling The Sakshi judgement did not accede to the altered meaning of penetration because the entire legal of lawyers, judges and legal academics understood ‘penetration’ in the explanation of section 375 of the IPC to only mean penile penetration. An important requirement of criminal law was its certainty and predictability.

imprisonment

fraternity An exercise to alter the definition of rape, as contained in

Section 375, by a process of judicial interpretation, and that too when

there is no ambiguity in the provisions of the enactment, is bound to result in a good deal of chaos and confusion, cause delays and will not be in the interest of the society at large.23 We respectfully disagree with the view that such reinterpretation of the word ‘penetration’ would harm the interest of the society at large. It is also disputed that ‘there is no ambiguity’ in the provisions of the enactment. The court was afraid that a wider meaning of the word ‘penetration’ would violate Article 20(1) of the Constitution which says that penal legislation should not be retrospective. A conflict with Article 20(1) could have been avoided if the court had declared that the wider meaning of the word ‘penetration’ would apply prospectively. In the United States, the doctrine of prospective overruling was invoked in criminal law where certain types of were held to be inadmissible. It was held that the new rule of

evidence 21 AIR 1962 SC 955. 22 AIR 1983 SC 473. 23 (2004) 5 SCC 518, 538.

admissibility would not affect those cases in which final decisions had been rendered and the accused had started undergoing the The rule of inadmissibility of certain evidence would apply only to cases which were pending and prosecutions which had not yet been dealt with by a court.24 The Supreme Court of India has given prospective application to its decisions in many cases.25 If prospectively, it would have applied to all future prosecutions. The court could have given direction to the government to inform by suitable publicity that the word ‘penetration’ would include all types of penetration (mentioned earlier). Lord Keene, Chairman of the Judicial Studies Board of England and Wales, who recently visited India opined that ‘a predominantly male judiciary should become more sensitive to violent crimes against women.’26 We wish the Supreme Court had shared this view in Sakshi. Judicial activism in relation to the law of rape is not required just for redefining ‘penetration’ There is a case for interrogating the artificial boundaries of private and public by re-examining the age of consent in marriage. The sub-section on marital rape is totally inconsistent with the new paradigm of gender justice.27 Marital rape has been rendered punishable not only by advanced countries such as England but even the Supreme Court of Nepal which declared that marital rape would be punishable like any other rape. The came in response to a petition filed by the Forum on Women, Law and Development.28 If Parliament cannot change the law, the court should take the lead in removing such blatant remains of feudalism.

punishment.

applied

judgement

24 In Wolf v. Colorado 338 U.S. 25 (1949), the US Supreme Court had held that the 14th amendment did not forbid the admission of evidence obtained by search but in Mapp v. Ohio 367 U.S. 643 (1961), the court held that such evidence was not admissible. In Linkletter v. Walker 381 U.S. 618, the court held that the Mapp ruling would not apply to state court’s convictions which had become final before the date of that judgement but such evidence would not be admissible in future in any trial in a state court. See Sathe (1968: 36–37). 25 Sarwan Kumar v. Madanlal Aggarwal (2003) 4 SCC 147; Saurabh Chaudhary v. India AIR 2004 SC 2212: (2004) 5 SCC 618. True, in none of these cases, interpretation of the law was made prospectively applicable. But for prospective application of the law see Golaknath v. Punjab AIR 1967 SC 1643. See Sathe (1968: 34–38). 26 The Hindu, 18 October 2004, Hyderabad, p. 5. 27 An exception to section 375 lays down that ‘sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape’.

unreasonable

28 http:www.nepa/news.com.np/ntimes/issue99/nation2.htm

The legal stranglehold on the sexual choices of the married woman is not restricted to the provision relating to marital rape. If the to section 375 denies her the right of refusal then section 497 takes away from her the right to consent. The section renders a man who has sexual intercourse with a married woman without the consent or connivance of her husband guilty of adultery. The consent of the woman has been accorded no legal significance. The section punishes only the man who has sexual relations with a married woman. Sexual relations of a man with an unmarried woman or a divorcee or a widow is not punishable; so the provision is clearly one which treats a married woman as the property of her husband. The constitutionality of this section has been subjected to challenges, but without success. The Supreme Court did not strike down that section despite it being manifestly gender biased. 29 The court saved the section each time and the gender of the party has failed to influence the result. 30 We hope that the sexual which has informed the court in dealing with the offence of adultery is re-examined, and sexual relations in marriage are regulated in consonance with the values of dignity and respect of both parties.

exception

multiple

conservatism Law

against

Homosexuality

The human rights discourse has expanded to include some

unpopular rights such as those of homosexuals and transsexuals. Both morality as well as the law refuses to recognise other than heterosexual

sexual orientation. Gays, lesbians and transsexuals are subjected to physical torture, ridicule, antipathy and denial of access to gainful employment. The right to be different is now being canvassed as an integral part of the right to live with dignity, recognition of varied sexual orientations being an important aspect of pluralism. 29 Sowmitri Vishnu v. India (1985) Supp. SCC 137: AIR 1985 SC 1618. See Sathe (1985: 209, 210; also 1999: 117, 127). 30 In the first round the section had been challenged by a male accused in Yusuf v. State of Bombay AIR 1954 SC 321 alleging the section infringed the constitutional mandate of equality insofar as the accomplice women was not liable to punishment. The court upheld the section by pointing out that the Constitution allows special provisions for women. In the second round, a woman petitioner Sowmitri Vishnu (see note 29 above) contended infringement of the right of equality with no different result.

Section 377 of the IPC— being a remnant of Victorian morality —makes homosexuality a punishable act. In Britain, homosexual interaction between two consenting adults is no longer an offence. The Departmental Committee on Homosexual Offences and chaired by Sir John Wolfendon recommended (in 1967) that the law punishing homosexuality between consenting adults be repealed. Accepting this recommendation, the British Parliament passed the Sexual Offences Act 1967, which decriminalised and acts of sodomy between consenting adults. In Canada, the Court of Appeal for Ontario held that (i) the courts have to alter the common law definition of marriage, and resort to statutory or constitutional amendment was not necessary; (ii) the existing common law definition of marriage— ‘the voluntary union for life of one man and one woman to the exclusion of all others’— violated the couples’ equality rights on the basis of sexual orientation under Section 15(1) of the Charter of Rights in the Constitution of Canada as amended in 1982. The Court declared that the existing definition of marriage was invalid to the extent it referred to ‘one man and one woman’, and reformulated the definition of marriage as ‘the voluntary union for life of two persons to the exclusion of all others.’31 The courts in British Columbia and Quebec have already decided in favour of same sex marriage. The Government of Canada has declared its intention to draft a legislation permitting same-sex marriage which has been referred to the Supreme Court of Canada for its advisory opinion. Oral arguments have been heard and the judgement has been reserved.32 In the United States, however, there is severe opposition to any recognition of same-sex marriage.

Prostitution

homosexuality jurisdiction

In India, a petition was filed before the Delhi High Court by

Naz Foundation, a non-government organisation. 33 The petition requested the Court to read down Section 377 as not criminalising private consensual sex between adults. It was argued that 377 affected HIV/AIDS prevention efforts, and that criminalising predominantly homosexual acts in effect provided moral and legal sanction for continued discrimination against sexual minorities. They also argued that the law punishing homosexuality interfered with the right to privacy which had been part of the right to personal

Section

31 EGALE Canada Inc. v. Canada 13 B.C.L.R. (4th) 1 (C.A.). 32 http://www.chc.CA/stories/2003/DG/17gaymarriagecab030617. 33 Naz Foundation v. Govt of N.C.T. Delhi, Writ petition © No. 7455 of 2001.

liberty guaranteed by Article 21 of the Constitution. In fact, the section has been used most often against non-consensual acts, but its potential use against consensual sex threatens many people and is often abused by the police. The government justified the law on the ground that it was its responsibility to protect the health and morals of society. In the view of the government, if the section was repealed, it would open the floodgates of delinquent behaviour and would be misconstrued as providing unbridled license for such like behaviour. The petition was therefore dismissed by the court on the grounds that no cause of action had arisen since no prosecution had been pending. It is surprising that the court relied upon an old decision in Chiranjit Lal vs India34 where the Supreme Court— which never strictly the rule of prematurity— had taken a traditional common law position on locus standi and justiciability. It has expressed on matters when it could have disposed of a matter on other grounds.35 There were no concrete disputes either in Laxmi Kant Pandey vs India36 or the Blood Bank Case,37 and yet the Supreme Court intervened. The highly adversarial view which the Delhi High Court took was merely a pretext to refrain from giving opinion on the constitutionality of Section 377. It seems that both Parliament and the Supreme Court are reluctant to undertake legal reform out of fear of offending the existing social morality. Should human rights be a prey to existing social prejudices? Decriminalisation of homosexuality means recognition of a human right to be different. A movement for the recognition of this right will continue, and ultimately proper legislation decriminalising consensual sex between adults and criminalising sex with a child will have to be passed. Section 377, as it exists today, fails to achieve either of these ends. To say that Section 377 is necessary for protecting children is to make no distinction between paedophiles and homosexuals. There

homosexual

followed opinions

consensual

34 AIR 1951 SC 41. 35 Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan, AIR 1959 SC 149. See Seervai’s criticism of the court on the ground that it entertained a question which it need not have. Seervai (1967: 170). 36 AIR 1987 SC 232. 37 Common Cause v. India, (1996) 1 SCC 753. In fact the very declaration that Parliament could not amend the Constitution to take away or abridge the fundamental rights in Golak Nath v. Punjab, AIR 1967 SC 1643 was unwarranted since the court upheld all the three amendments whose validity had been challenged.

is no evidence to prove that homosexuality promotes AIDS. Yet both the Parliament and the Supreme Court are fighting shy of taking a position on this issue. This may be because upholding the rights of persons with different sexual orientation runs counter to the dominant public opinion. Coercive

Methods

of Brith

Control

The upper middle class in India is obsessed with the idea of down the birth rate and thinks that the ‘others’, i.e., the dalits, Muslims and the poor are mainly guilty of adding to the population. They have never bothered to find out why the birth rate is higher among the poor, the illiterates and the economically less-developed sections. The remedy is not to use coercive methods of population control but to bring about uniform development of all sections and adopt completely non-discriminatory policies in the distribution of resources. Somehow the obsession with using coercive methods is shared so widely that even the Supreme Court judges who belong to the urban middle class seem to share it. Air India International, a public sector organisation, made laying down service conditions of its staff (under its regulations-making powers) which were clearly discriminatory against air hostesses. In Air India vs Nargesh Meerza,38 air hostesses had the validity of these regulations which prohibited an air hostess from marrying before the completion of four years of service, asked her to resign on becoming pregnant if she married after the completion of the above locking-in period, and required her to retire at the age of 35 though male stewards were allowed to work till the age of 55 years. While defending the first restriction on before the completion of four years of service as well as the requirement of her resigning after being pregnant, it was argued that those restrictions would promote family planning and the judges responded favourably to that argument. Perhaps if Air India had agreed to make the resignation of an air hostess contingent upon her third pregnancy, the Court might have upheld the restriction. I have argued elsewhere that the regulations of the Air India were ultra vires the regulation-making power given to it by the Air Act. Regulations had to be made for laying down service

slowing

regulations

challenged

marriage

Corporations 38 AIR 1981 SC 1829.

conditions. How could they address or be concerned with family planning? An air hostess could certainly be asked to resign if she could not fly due to her health conditions, but that should be gauged independent of her pregnancies. But the judges seem to have been so concerned about population growth that they did not even stop to think whether air hostesses constituted such a large number that restrictions on their reproductivity would make a difference to the growing population of the country (Sathe 1981: 194, 198–200; 1993: 38–39; 1999: 117–25). Since no democratic government can afford to undertake mass sterilisation (the experience during the 1975 Emergency gave a in this regard), recourse is taken to tokenism. One such tokenism is to make the two-child norm a condition of eligibility for access to certain elective offices or government service. The class bias of our ruling elite is manifested in their making it applicable only to those seeking electoral offices under the panchayats which are the grassroots decision-making authorities but not for the state and Parliament. The Haryana Panchayat Raj Act 1994, that a person having more than two children shall not be qualified to stand for election to the office of a sarpanch or a panch of a gram panchayat, or a member of a panchayat samiti or zila parishad. A person who already has more than two children till the expiry of one year from the commencement of the Act shall not be disqualified. The validity of this law was challenged before the Supreme Court in Javed vs Haryana.39 on the ground that it was arbitrary and therefore violated the right to equality, and restricted the right to life and personal liberty guaranteed by Article 21. Article 243-G of the Constitution gives to the legislature of a state the power to endow the panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government. The state legislature can certainly legislate to lay down the composition of the panchayat.40 Qualifications of and sarpanchs can also be laid down by the state legislature.41 The question is, did the condition of not having more than two children have a nexus with the functions of the panchayats namely, family welfare and women and child development (entries 24 and 25 in the Eleventh Schedule)? How would not having more than

lesson

legislatures provided

members

39 (2003) 8 SCC 369. Also see Rameshwar Singh v. Haryana, (2003) 8 SCC 396. 40 Art. 243C. 41 Art. 243F(a).

two children by those seeking elections to gram panchayats or zila parishads promote family planning and welfare? Is composition of a popular assembly required to reflect the acceptance of the norms by its members which it is likely to propagate for the people? On this yardstick Parliament should have prescribed that all Hindus who had more than one wife living shall be ineligible to become members of the legislatures since monogamy had been prescribed for Hindus by HMA. It is submitted that even in pith and substance, disqualification of persons having more than two children does not fall within the ambit of the power given by Article 243-G. In the Constitution, qualifications of members of Parliament and the state legislatures are provided in Articles 84 and 173 respectively. Further disqualification can be added by the Representation of the Peoples Act 1951. But nowhere do we find that disqualifications are of the legislative members personal commitment to the norms laid down in the laws. Why did Parliament not disqualify persons who took dowry in their son’s marriage? Would it not have had a demonstrative effect on the community? Further, any law made under Article 243-C or 243-G cannot be immune from the control of the fundamental rights guaranteed by Part III. The laws enacted under Article 243-G are subject to Article 13(2) which says that the state shall not make any law which takes away or abridges the fundamental rights.

demonstrative

How many people constitute the elected members of the panchayats

and zila parishads? What is their percentage in the entire population? How much would they contribute to the population policy if they did not have more than two children? Is such tokenism worth the while despite its clear violation of the fundamental rights given by Articles 14 and 21? Is this not an unnecessary intrusion into the privacy of a person? Since the right to privacy is included in the right to personal liberty,42 such a restriction can be allowed only for a greater public gain. The court has not enquired as to how far the requirement of not having two children by elected members of the panchayat is going to affect the population growth in next 10 years. The elected members of all the legislative bodies and the government servants together constitute a small fraction of the total 42 Neera Mathur v. LIC, (1992) 1 SCC 286: AIR 1992 SC 392 the Supreme Court took objection to a questionnaire required to be filled in by women applicants for jobs which sought information about their menstrual cycles. The Court held that this was an unjustified intrusion into their privacy. See Sathe (1993: 38–39).

population. Do they come from the class in which there is highest birth rate? The learned judge said: There is nothing wrong in the State of Haryana having chosen to subscribe to the national movement of population control by a legislation which would go a long way in ameliorating health, social and economic conditions of rural population, and thereby contribute to the development of the nation which in its turn would benefit the entire citizenry.43

enacting

Assumptions such as the impugned provision would ameliorate health, social and economic conditions of the rural population was not warranted by any information that came before the court. This was indeed judicial notice dictated by the subjective viewpoint of the learned judge. But fundamental rights cannot be whittled down by such subjective predilections. It has been said several times that population control would occur as a result of the socio-economic policies directed towards the abolition of poverty, promotion of health care and women’s empowerment. If the court had perused the Census data for the last 20 years, it would have found that there is a continuous decline in the birth rate. Population in absolute terms has grown but the growth rate is declining, and in another decade it will reach a stage of population stability (Basu 2004: 4294–96). One is surprised at the alarmist attitude the judgement reflects; and legally too the judgement makes several blunders. For example, the learned judge says: The fundamental rights chapter has no bearing on a right like this created by a statute. The appellants have no fundamental right to be elected and if they want to be elected they must observe the rules.44 It is submitted that this is a strange observation. The fundamental rights guaranteed by the Constitution must prevail over all the That is what Article 13(1) and (2) mean. Although the right to be elected is not a fundamental right, the right not to be is a fundamental right.The election law may lay down criteria

statutes. discriminated 43 Javed v. Haryana, (2003) 8 SCC 369, 383–84. 44 Ibid.: 385.

for election but such criteria cannot be contrary to the fundamental rights. Can a law lay down that the eligible age of contesting an will be different for men and women? Can the election law lay down that the deposits would be different for people depending upon which religion they profess? The election law may lay down that the deposits to be paid with the nomination may be less for the candidates belonging to the Scheduled Castes or the Scheduled Tribes. This may be defended with reference to Articles 15(4) and 46 of the Constitution. But it will have to be so defended. The does not have the power to lay down the law of elections without the control of the provisions of the Constitution.The of the Representation of the Peoples Act 1951 also have to meet the test of constitutionality when they are challenged as being inconsistent with the fundamental rights.45 A very dangerous was made by the learned judge in the following words:

election

legislature provisions

proposition

The lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive — economic, social and political— cannot be given a go-by in the name of undue stress on fundamental rights.46

justice

It is submitted that even the most lofty ideals do not justify of illegitimate means. The preamble of the Constitution, which talks of social, economic and political justice also talks of liberty and equality. The ends do not justify the means. That has been the main and the most pivotal philosophy of the Indian Constitution; it has also been the main concern of the national movement for independence. The Union Health Minister A. Ramadoss, speaking at a national convention of State Health Secretaries on Gender and Health organised by the Union Health Ministry and the National Commission for Women, assured that the goal of population stabilisation would be achieved without coercive measures. He made it clear that the government’s programme aimed at ‘population stabilisation’ and not ‘population control’. Mira Shiva of the Voluntary Health of India said that as many as 80 per cent of the panchayat members disqualified for violating the two-child norm belonged to

adoption

Association 45 PUCL v. India, (2003) 4 SCC 399. 46 Javed v. Haryana, (2003) 8 SCC 369, 386.

the Scheduled Castes, Scheduled Tribes and Other Backward Classes. She pointed out that fudging of births, denial of fatherhood, of records, increase of abortions, increased sex-selective abortions, desertion, divorce and abandonment of wife and child were reported as consequences of the enforcement of the two-child norm.47 As a student of judicial process and also an admirer of the Supreme Court of India’s activism (Sathe 2002), the author feels disappointed by the court’s recent decisions which suffer from class and gender bias, and submits that the court, as the protector of the fundamental rights, should have said what the minister has said.

tampering

Conclusion

This article has explored the legal regulation of some sexual choices and demonstrated how, in the main, this regulation has occurred oblivious of the jurisprudence of fundamental rights. The is not just of the legislature but also of the judiciary. The courts have not only failed to provide voice to excluded groups and rights, rather, a number of judicial pronouncements have further reinforced populist understanding and social prejudice. Judicial activism obtains its legitimacy from the fact that the courts provide voice to those issues, interests and groups whose own voices would be drowned in the pell-mell of majoritarian democracy. If these voices start to get silenced in judicial discourse then a major justification for judicial activism would stand defeated. We have examined the relevance of fundamental rights in the of sexual choices to demonstrate the artificiality of the public–private dichotomy, and how values of dignity and respect are common to all arenas. It is not possible to have a polity which is informed with the norms of fairness and equity, if oppression and indignity are allowed to rule in the home and family. After all, what one can get away with at home is what one will let pass abroad (Nussbaum 1999: 55–80). The courts as sentinels of constitutional values have to guard against the infringement of these values at all sites. It is those who make unpopular choices that require the protection of rights and courts. Conformity to the populist is obtained by social sanctions and the numerical force of the majority. Judges do not need to add to the numbers.

indifference unpopular

context

47 The Hindu, 13 October 2004, Hyderabad, p. 12.

References

Agnes, Flavia. 1992. ‘Protecting Women Against Violence? Review of Decade of Legislation 1980–89’, Economic and Political Weekly, vol. 27(17): WS-19. Basu, Alaka M. 2004. ’The Squabble that Never Ends: Religion and Fertility’, Economic and Political Weekly, vol. 39: 4294–96. Baxi, U., V. Dhagamwar, R. Kelkar and L. Sarkar. 1979. ‘An Open Letter to the Chief Justice of India’, SCC, vol. 4: 17. Dhagamvar, V. 1992. Law, Power and Justice: Protection of Personal Rights Under the Indian Penal Code. New Delhi: Sage Publications. The Hindu, 13 October 2004. Hyderabad, p. 12. Narrain, Arvind. 2004. Queer Despised Sexuality: Law and Social Change. Bangalore: Books for Change. Nussbaum, M. 1999. ‘ The Feminist Critique of Liberalism’ in idem, Sex and Social Justice. Oxford: Oxford University Press, pp. 55–80. Sathe, S.P. 1968. Fundamental Rights and Amendment of the Indian . Bombay: Tripathi. ———. 1981. ‘Constitutional Law I— Fundamental Rights’, Annual Survey of Indian Law , vol. 17: 194–233. ———. 1985. ‘Constitutional Law I— Fundamental Rights’, Annual Survey of Indian Law, vol. 21: 209–30. ———. 1993. Towards Gender Justice. Bombay: Research Center For Women’s Studies S.N.D.T. University. ———. 1999. ‘Gender, Constitution and the Courts’, in Amita Dhanda and Archana Parashar (eds), Engendering Law: Essays in Honour of Lotika Sarkar. Lucknow: Eastern Book Company, pp. 117–38. ———. 2002. Judicial Activism in India: Transcending Borders and Enforcing Limits. Delhi: Oxford University Press. Seervai, H. M. 1967. Constitutional Law of India. Bombay: Tripathi.

Constitution

http://www.chc.CA/stories/2003/DG/17gaymarriagecab030617. http:www.nepa/news.com.np/ntimes/issue99/nation 2.htm.

Divorce 8

at

Initave

in Law:

What and

the

Muslim

Personal

are What

Implicatons

Wife's

the

Options

are for

their Women's

Welfare? *

Sylvia Vatuk The continuing public and scholarly debates over the desirability of enacting a Uniform Civil Code (UCC) are heavily dominated by the issue of gender bias in Muslim Personal Law (MPL). The of MPL that has attracted the most attention permits a Muslim man to dissolve his marriage extra-judicially, unilaterally and with immediate effect by simply pronouncing three times (in the presence of, or with clear reference to, his wife) the word talâq (‘divorce’). The so-called ‘triple talâq’ is final and cannot be revoked: the Arabic term is talâq-ul bâin (literally, ‘irrevocable divorce’).1 The husband is not required to provide any justification for divorcing his wife in this

provision

* The original version of this paper was presented at the Annual Meeting of the Association for Asian Studies in April 2002, and was later expanded and revised for presentation at seminars at the Freie Universitat, Berlin, and the universities of Köln, Heidelberg, Pittsburgh, Virginia and Pennsylvania State. I am grateful to the organisers of each of these gatherings and to the various members of the audience for their stimulating questions and constructive comments. 1 Once the husband has pronounced talâq-ul bâin, the couple cannot get married again to one another until the wife marries someone else, consummates that union and is divorced again, a procedure called halâla.

Divorce at the Wife’s Initiative

manner, nor need he seek approval from or notify any agency of the state. Indeed, he need not even inform the woman he is divorcing!2 Every Muslim marriage contract includes a commitment on the part of the groom to transfer to his bride a marriage gift (in cash or other valuables) called mahr. Mahr is of two sorts, either ‘prompt’ (mucajjal)— handed over at the time of the wedding— or ‘deferred’ (muwajjal) until some unspecified later date. In India it almost takes the latter form. 3 When a man pronounces an ‘irrevocable’ divorce, whatever portion of the promised mahr he has not yet handed over to his wife falls due immediately. He must also pay her an amount sufficient to maintain her until she has completed three menstrual periods or, if she is pregnant, until their child is born. During this ‘waiting period’, called ciddat, the woman is to remain at home, in seclusion, and may not remarry. The alleged ‘widespread abuse’ by Muslim men of the ‘privilege’ of discarding their wives in the manner described and their frequent failure to make good on the financial commitments entailed by this form of divorce is repeatedly cited by those who favour a thorough overhaul of the existing system of personal law.4 There is no doubt that the ease with which a Muslim man can repudiate his wife is profoundly detrimental to the interests of

always

2 The state’s current legal position on this is that talâq must be for a ‘reasonable cause’ and will only become effective after an attempt to reconcile the couple, undertaken by a team of two family members (one from the wife’s side and one from the husband’s), has failed. See the case of Shamim Ara v. State of U.P., http:// supremecourtonline.com/cases/7383.html , also at (2002) 7 SCC 518. 3 None of the women we interviewed in Chennai or Hyderabad had received ‘prompt’ mahr at the time of their marriage. In only about 6 per cent of the approximately 1,000 unions about which details are given in the qâzîs’ marriage and divorce registers that I was able to examine in Hyderabad had the brides received ‘prompt’ mahr, in amounts ranging from Rs 501 to 1 lakh. Amounts given as ‘prompt’ mahr tended, on average, to be considerably smaller than what was typically pledged when the mahr was ‘deferred’. But since in most cases the ‘deferred’ mahr is never actually handed over to the wife, those brides who are paid ‘promptly’ nevertheless usually come out ahead in the long run. 4 It should be noted that even within the Muslim religious leadership this particular feature of MPL has strong critics. Most of the latter, however, also strongly resist the notion of a UCC and insist that the state not interfere in this or any other matter of MPL but leave it to the community itself to undertake any needed ‘reforms’ of practice within the bounds of sharicat. Recently, responding to considerable pressure from segments of the Muslim community, the All-India Muslim Personal Law Board took up the issue of the so-called ‘triple talâq’. A consensus was apparently reached that Muslims ought to be strongly discouraged from divorcing their wives in this way. The members stopped far short, however, of forbidding the practice or recommending that divorces pronounced in this manner be judged invalid.

existing

Vatuk

Muslim women. But if one wishes to form a more comprehensive and balanced picture of how Muslim divorce law actually works in practice in India, it is important to look beyond the issue of ‘triple talâq’. In this article, I hope to make a contribution towards a more broadly focused and nuanced understanding of Muslim divorce, by discussing some aspects of the law that have thus far received very little scholarly attention. 5 My main focus is on woman-initiated extra-judicial divorce— called khulc— in MPL, as it is implemented in India today, specifically in the cities of Chennai and Hyderabad, where I carried out ethnographic and archival research in 1998-99 and 2001, respectively.

developing

Most non-Muslim Indians (and doubtless some Muslims as well)

assume that the only way a Muslim marriage can be dissolved is at the initiative of the husband. According to this popular a Muslim woman is always the passive subject of divorce: she can only be divorced; she can neither prevent nor counter her husband’s act, nor can she initiate the process. But what is not widely known outside of the legal and social service professions is that a Muslim woman who desires to extricate herself from an unhappy marriage has at least two well-established legal options. One is to file a civil suit for divorce under the Dissolution of Muslim Marriages Act (DMMA). The other is to negotiate privately with her husband in order to secure his agreement to release her from the marriage, by khulc.

understanding,

Considering that it is so rarely mentioned in popular or scholarly

literature, in the course of my research I was surprised to discover that divorces by khulc are quite prevalent. Of course, khulc is routinely listed as one of several possible modes of dissolving a marriage and the procedure and case law pertaining to it are outlined in every standard textbook or manual on MPL (see Fyzee 1974: 163-66; Mahmood 1980: 96-114; Ameer Ali 1980 : 354-73; Hidayatullah and Hidayatullah 1990: 258-76). Certain South Asian Muslim legal authorities, sensitive to allegations of gender bias in Muslim law, have written about it as well, actively seizing upon this provision of MPL to support their contention that Islam accords to women rights similar to those it gives to men. Khulc, they claim, is simply the female equivalent of talâq (Mahmood 1986; Hussain 1987). But the only empirical studies of khulc that 5 Imtiaz Ahmad’s recent book (2003) is an excellent step in this same direction. It is the first major scholarly attempt to provide an empirically based, on-the-ground picture of the variety of divorce practices among Muslims of different social strata and in different regions of the country.

I have been able to find relate to its practice in the Middle East. Some historians of Muslim law, basing their conclusions on data from sharicat court records from Palestine, Egypt and Ottoman Turkey, have suggested that the ability of women to initiate divorce —and the frequency with which, at least in the past, they did so— can be read as evidence of women’s ability in those societies to exert ‘independent agency’ over the circumstances of their lives. This undermines the prevailing view of Muslim women as invariably passive and submissive to the overbearing patriarchal control of their husbands (Tucker 1991: 241; 1998: 95-100; Zilfi 1997: 271). My own ethnographic and archival investigations in Chennai (1998-99) and in Hyderabad (2001) lead me to seriously question both these interpretations, at least insofar as their applicability to contemporary India are concerned. While there is no doubt that the ability to initiate an extra-judicial divorce is a positive right and has been, and continues to be used successfully by many Indian women to extricate themselves from unhappy marriages, khulc is hardly equivalent to talâq, in that it cannot be effected without the agreement of the husband. 6 Both sets of scholars greatly overestimate the extent to which one can validly use the availability of khulc in law and/or its prevalence in certain social settings as a measure of women’s status. I will elaborate my reasons below. But first let me outline the main features of the law of khulc and present some about how it is implemented in those parts of India of which I have some personal knowledge. I will then briefly address the issue of woman-initiated civil divorce (under the DMMA), which represents an avenue of last resort for women who are unable to obtain khulc but are determined to divorce. Finally I will revisit the larger question of how much of an advantage it is for the Muslim woman in marital distress to have available to her those options that MPL provides for initiating the dissolution of her marriage.

actually

observations

Divorce

by Khulc

If a Hindu or Christian woman, or one married to a man of a different religion from her own, is determined to be legally free of her she has no choice but to try to secure a ‘court divorce’ (by resort

husband,

6 The situation is different in Pakistan and in many Middle Eastern countries that have undergone law reform in recent years.

to the applicable Hindu Marriage Act [HMA], Indian Divorce Act [IDA] or Special Marriage Act [SMA]). But a Muslim woman has another option. Assuming that she knows where to find her husband and has some hope of persuading him to release her from the — either by making it financially worth his while or by offering some other inducement— it is much easier, quicker and cheaper, as well as more socially acceptable, to try for an extra-judicial khulc (or mubarâ cat7) divorce. Even advocates and activist women’s organisations routinely advise women who consult them for legal advice to try this route before resorting to the DMMA. As my data shows, this form of divorce is a very real option for women in this situation and is very frequently availed of in practice. Even where the marriage is ultimately not dissolved, or is dissolved by some other method, the fact that a Muslim woman can take the initiative in divorcing her husband plays an important role in the negotiations, power struggles and manipulations that inevitably develop when one or both parties to an unhappy marriage consider the possibility of ending it.

marriage

The Qâzî's Role in Facilitating Khulc As I have noted, under MPL (as administered in India), the wife

cannot unilaterally declare herself divorced by khulc. The procedure requires negotiation between the spouses. The wife is supposed to take the first step, approaching her husband and offering him a ‘consideration’ for releasing her from the marriage. If he is willing, he accepts her offer and pronounces an irrevocable divorce, talâq-ul bâin, the same as if he were divorcing her at his own initiative. However, as I will detail below, the consequences of these two forms of divorce are not identical, for either spouse. A Muslim couple can effect khulc by the simple expedient of privately entering into an agreement between themselves. But it is more usual for the couple, or for the woman herself (typically by one or more male relatives), to consult either a Muslim cleric or an advocate knowledgeable about MPL to assist them in negotiating an appropriate agreement and drafting a written This is because they may not be sure of the correct procedure or because the wife and her family are unable or unwilling to contact

different

accompanied

document.

7 Mubarâ cat is divorce by mutual consent. Either party can initiate it and, as with khulc, its terms are negotiated by the spouses themselves. While recognised as a valid option in MPL, it is, as far as I have been able to determine, rarely resorted to in India.

the husband directly, or have already tried and been rebuffed. Or they may hesitate to make a private agreement because they are under the (false) impression that, in order to be valid, the divorce must have the written imprimatur of a recognised religious functionary. In many parts of India, including the states of Tamil Nadu and Andhra Pradesh where I did my research, it is to a government-appointed qâzî that Muslims most often turn for this purpose. A qâzî, properly speaking, is an Islamic ‘judge’ who, in Muslim states such as existed in much of India before the coming of the British, presides over the ruler’s court of judicature, deciding cases according to Islamic legal precepts. At the beginning of the 19th century, in the parts of India controlled by the British, these officials were divested of their former judicial authority, though some were as advisors on matters of Muslim law to the British judges who had been brought in to administer justice to the ‘native’ in newly established British-style courts. In 1862, in conjunction with a major restructuring of the British–Indian judicial system, this role too was eliminated. But later, in response to community demands, the office of qâzî was eventually resurrected in a new form with the passage of the Kazi Act of 1880.8 In the present day, qâzîs are appointed by their respective state governments. Their primary activities are to conduct wedding ceremonies (when invited to do so by the families concerned), 9 write up and maintain records thereof and issue certificates of marriage. They may also register and maintain records of divorces (again, at the request of one or both of the parties) and issue corresponding ‘divorce certificates’ (talâqnâma or khulcnâma) that clients can use as evidence that their

retained populace

8 The Kazi Act explicitly refrains from conferring any administrative or judicial powers on qâzîs, and makes no mention of remuneration: see Chitaley and Appu Rao (1971). Some individual states have since enacted their own laws pertaining to the appointment and responsibilities of qâzîs; in their broad outlines these all follow the model of the Central Act. When it was enacted, the Kazi Act was, of course, meant to apply only in British India. Hyderabad city was at that time still under the administration of the Nizam of Hyderabad, in whose own system of Islamic jurisprudence qâzîs presided over sharicat courts as well as conducting marriages and authorising divorces. That system was dismantled after the state was incorporated into the Indian union in 1948. 9 It is not legally required that a Muslim cleric— or any other outside authority— be called to preside over the wedding ceremony, but in practice the services of such an individual are almost always used.

marriage has been dissolved. Much of the other ongoing work of the qâzî’s office (dâr-ul quzat) involves looking up records needed by clients for one or another legal, career, travel or other personal purpose. But the qâzî may also be called upon from time to time to answer the questions of clients about the minutiae of Muslim law with regard to marriage, divorce, child custody, and the like. In addition, he often serves as an intermediary between husband and wife for those monetary transactions that may be associated with a marriage or a divorce, including the of mahr and ciddat expenses and the return of ‘dowry’ (jahez) items to the wife after a marriage has been dissolved. Because of the qâzîs’ role as registrars of marriages and divorces, their records constitute valuable source materials for the study of the realities of Muslim divorce. Yet they have been little used by scholars,10 in part, no doubt, because of difficulty of access. Furthermore, there are limitations to their usefulness for some kinds of quantitative research. Since an individual wishing to get married or register a divorce can go to any qâzî he wishes, the population covered by a particular qâzî’s records is not geographically localised or bounded. Marriages solemnised by one qâzî may be dissolved before another, making it extremely difficult for a researcher working in a large urban area who does not have unlimited time at his or her disposal and the cooperation of all of the qâzîs in the city to trace individual marital careers. Furthermore, insofar as divorce is the individuals whose records are found in one or another qâzî’s archives represent only a partial and quite selective sample of the larger population from which they are drawn. This is because, whereas most people call upon a qâzî when they marry, not does so when considering divorce. Since a khulc divorce is more complicated to effect on one’s own than a talâq, a high proportion of those contemplating divorce through the former method consult a qâzî or some other legal expert. But in the case of talâq only those who have (or think they may in the future have) some reason to require documentary proof of marital status are likely to bother with such formalities. Therefore the data on talâq that one finds in a qâzî’s archives have a distinct class bias. The bulk

day-today

inheritance payment research

concerned,

everyone somewhat

10 Jameela Nishat has consulted the divorce records of one Hyderabad qâzî, which she analyses in Nishat (2003: 303-15). Fanselow (unpublished) has used mosque records to document changing patterns of Muslim marriage over several decades.

of the qâzî’s clients tend to be of at least lower-middle class status. They are likely to be possessed of some material assets, be regularly employed and/or aspire to travel abroad for educational or purposes. Those who find themselves involved in some kind of civil litigation may also require documents of the kind that the qâzî can provide. The poor, while clearly predominant in the are less likely to have such needs and are consequently almost certainly under-represented in the qâzî’s divorce registration records.

employment

population, Qâzîs'

Marriage

Records

in

Hyderabad

In Andhra Pradesh, seven ‘chief’ or sadr qâzîs11 are appointed by the state Wakf board, the agency charged with supervising the operation of Muslim endowments.12 The position is in practice, though not in law, virtually a hereditary one, passed down from father to son or other male heir.13 Each sadr qâzî serves within a particular loosely 11 Although I interviewed the Chief Qazi of Tamil Nadu in Chennai and another qâzî in the district town of Vaniyambadi and was able to briefly observe their modes of operation, it was only in Hyderabad that I was able to personally examine qâzîs’ records. 12 The principal responsibility of this body is, as its name implies, to oversee the financial affairs of Muslim endowments. But two decades ago, in the wake of the Shah Bano decision (Mohd. Ahmed Khan v. Shah Bano Begum and Others, AIR 1985 SC 945), it was charged with an additional responsibility, namely the of destitute divorced Muslim women. A divorcee with no earnings of her own and no adult child or other close relative financially capable of supporting her can file suit for a maintenance award against her local Wakf Board (under the 1986 Muslim Women [Protection of Rights on Divorce]Act 1986 [MWA]). Although in 2001 I was told by one employee of the Andhra Pradesh State Wakf Board that it had been called upon on numerous occasions to come to the aid of such women, I was unable to obtain any details about how often this had occurred or how much had actually been paid out in this connection since the MWA was passed. However, in December 2005 a news report revealed that, up to that time, only four women were currently in receipt of maintenance stipends from the Board. Cf. ‘Not Many Divorcees Avail Wakf Board Scheme’, The Times of India, Hyderabad, 12 December 2005. This was confirmed in an interview with the Board’s Law Officer, Shaik Saleem Basha, on 9 January 2006. 13 For some years the issue of succession to the post of qâzî has been the subject of litigation in the Andhra Pradesh High Court. The dispute, in its broad outlines, is over whether the post should be given to the ‘most qualified’ individual or (as has been the practice) go automatically to a relative of the deceased or retiring

infamous maintenance

officeholder.

defined geographic area of the city.14 He appoints his own assistants (nâib qâzîs), who work under his general supervision in specific sub-areas of his larger jurisdiction. The qâzî’s position is unpaid, although he is permitted to charge modest fees for the various he supplies. All of the qâzîs I interviewed hold some other job as well. For example, one of the sadr qâzîs in Hyderabad who me to examine a sample of his divorce records is a clerk in a state government office. His five-person office staff performs most of the day-to-day business of his quzat, though he reserves to himself and his nâib qâzîs the privilege of performing marriages. When a couple marries, the qâzî who presides over the ceremony enters the necessary details (in Urdu) onto a standard, printed form, called a siyâhnâma. At the top of the form is entered the date and place of the wedding. Next is noted whether the bride has been married before and, if so, how her prior marriage(s) ended.15 The names and addresses of the bride and groom, their respective ages or dates of birth, occupation, ‘nationality’ (qaum— e.g., ‘Hindustani’), ‘community’ (firq— e.g., ‘Sheikh’), and school of Islamic law (maslak— e.g., ‘Hanafi’) are listed, along with the names of their respective parents and that of the bride’s ‘guardian’ (wâlî— usually her father) and an ‘agent’ or ‘representative’ (wakîl) and two official witnesses for each of the spouses, with their occupations and kinship relationship (if any) to the party they represent. Finally, the qâzî notes down the amount of the mahr and whether it was paid ‘promptly’ or ‘deferred’. Down the right side of the form is a row of spaces for the signatures or thumbprints of the bride and groom and each of the other official attendees. At the bottom the officiating qâzî and, if the marriage was performed by a nâib qâzî, the sadr qâzî to whom he reports, affix their own signatures and official stamps. One copy of this form is retained for the qâzî’s files, one each is given to the bride (or her wâlî) and the groom and another is transmitted to the Andhra Pradesh State Wakf Board. A

services permitted

followed

14 Nishat says there are six; see Nishat (2003: 305). In the course of my interviews I found that qâzîs often differed among themselves, even about such seemingly straightforward matters as the number of officially recognised sadr qâzîs in the city, their respective jurisdictions, the hierarchy of authority among them and the way in which succession to the post was handled. 15 The qâzî does not ask whether the groom has been previously married or currently has another wife, presumably because his marital history— unlike the bride’s— does not affect his eligibility for marriage.

fifth copy is, in theory at least, deposited in the Andhra Pradesh State Archives.16

Divorce Records Whereas both the sadr qâzîs whose records I examined in Hyderabad claim to have several hundred years of marriage records in their possession, passed down from ancestors who held the same post, both indicated that keeping records of divorces and issuing divorce certificates has become a common practice only within the last 30-40 years. They said that not only was divorce quite rare in the past but, when it did occur, there was little perceived need for of the kind that they now are routinely asked to issue, and therefore there was no need to go through the process of Nowadays, divorces are registered on a form that is similar to, though briefer than, the standard marriage registration form. Here is noted the date and place of marriage, the type of divorce (talâq or khulc), the amount and type of mahr, and the names and signatures or thumbprints of each spouse and his and her two and the amount of any payments made to the wife by way of a divorce settlement. The mahr and ciddat expenses, and any other monies that might have been transferred to the wife, are itemised separately. Sometimes further details about the divorce settlement or arrangements for the custody of children are noted. If it is a khulc divorce, then the terms of the divorce agreement are outlined. There may also be a brief statement explaining why the marriage is being dissolved. Each of the qâzîs who permitted me to examine some of his records has jurisdiction over an area in the predominantly Muslim ‘old city’ of Hyderabad. I will call them Qazi A and Qazi B. 17 The dâr-ul quzat overseen by Qazi A is staffed by a (who does most of the work involving direct dealings with

documentation registration.

witnesses,

divorce superintendent

16 In practice this latter requirement seems not to be taken very seriously by the various qâzîs in the city, as I discovered to my dismay when I attempted to examine the pertinent records in the Andhra Pradesh State Archives in Hyderabad. I am very grateful to the staff of the Archives for locating and making available to me such recent marriage records as they did have on hand. 17 I would like to express my gratitude to both these individuals for their gracious cooperation with my research. For their assistance with interviews and for the relevant data from the documents, I thank Mr Muhammad Ayyub and Ms H. Rayees Fathima.

copying

clients) and two or three clerks. It is open daily, 11 am to 4 pm,

except Fridays and religious and civil holidays. Cupboards lining the

wall of the large reception room contain cloth-wrapped bundles with individual files of all marriages performed (by the qâzî himself or by one of his 11 nâib qâzîs) over the last several years. Similar bundles contain files of all divorces (both talâq and khulc) registered in his office. Some of these were registered at the time they took place, others afterwards. In other cupboards are the qâzî’s marriage and divorce registers, later compilations of the most pertinent details from all of the individual case files accumulated during the past year: names of the parties, date of marriage (or divorce), amount of mahr, whether and how much was paid. Qazi A told me that, of the pressure of work, it is difficult to keep these registers up to date. Indeed, when I visited his office in 1999 the clerks were several years behind in this.18 The 1993 divorce register that Qazi A allowed me to photocopy contained 407 entries, 391 of which pertained to an extra-judicial divorce registered in his office during 1993.19 Fifty-four per cent of the divorces recorded in that register were khulc, while only 46 per cent were talâq. The other set of documents I examined is a bound volume of original divorce forms filled out in the office of Qazi B during the hijrî year 1421 (from early April 2000 through March 2001).20 There are 390 sheets in the volume but only 355 contain enough information to determine the type of divorce or even whether it went through at all. Here there was an even greater predominance of khulc over talâq: 57 as against 43 per cent. Thus, in both of these jurisdictions women appear to be consistently initiating more divorces than men, a rather surprising finding. There is reason to believe that one cannot take these figures entirely at face value, for reasons that I have mentioned above and will elaborate below. But they do testify

because

18 The individual files of marriages and divorces are arranged in chronological order by hijrî year. But the annual marriage and divorce registers are kept according to A.D. year, perhaps because this is the calendar under which the Wakf Board operates. 19 Of the entries, 16 were incomplete or pertained to something other than an extrajudicial divorce by talâq or khulc. Thus three entries record the ‘cancellation’ of a divorce, and two recorded divorces awarded (to women) under DMMA. 20 Qazi B allowed my research assistant to hand-copy the relevant information from these forms. In order to avoid privacy issues, I chose not to have her copy any information, such as names or addresses, that would enable the parties to be identified later.

to the undeniable significance— numerical and otherwise— this form of divorce in contemporary India. What

Goes

on

in

the

Qâzî's

of

Office?

By the time a marriage has broken down to the extent that a khulc is being contemplated, the couple is usually already living separately, the wife with her natal family and the husband in their former marital home or elsewhere. The usual first step is for the wife and one or more of her male relatives to go to their local qâzî’s office. Typically, the qâzî or a member of his staff listens to their story and, perhaps after asking the woman to consider a reconciliation, explains how they should proceed.21 He tells them that he will contact the husband on the wife’s behalf, sending a registered letter, written on official letterhead, summoning him to come on a specified date and time to discuss the matter. If and when the husband appears, the qâzî will try to get his version of the story and perhaps again suggest that the couple try to reconcile. If the husband is clearly averse to this suggestion, the qâzî may propose that he simply divorce his wife by talâq. This way, the wife will be entitled to claim her outstanding mahr and other financial perquisites. But if the husband refuses this also, the qâzî will urge him to at least grant her the khulc she desires, since she has clearly expressed her determination not to resume their conjugal life together. If he agrees and the wife and the required number of witnesses are present on that occasion, the qâzî will execute the necessary documents on the spot. he will set a time and date for both to return and complete the formalities. In making an agreement for khulc the spouses are free to make any bargain they wish. However, in India most agreements follow a standard pattern: the wife offers to forfeit her mahr (or whatever portion of it is still outstanding at the time of the divorce) in for her freedom. Since in the vast majority of cases the mahr was of the ‘deferred’ sort and by the time negotiations for khulc

Otherwise, exchange

21 According to my observations, women do not usually hesitate to speak their mind in front of the qâzî, nor are they necessarily constrained by considerations of parda to keep their faces covered before him. Even women accustomed to wearing a full burqa (with face veil) in public places, frequently cast the veil aside when called up to the qâzî’s desk to present their case.

have begun it usually still remains unpaid,22 the typical khulc is a purely paper one. No actual cash changes hands: the wife simply agrees to give up her right to claim what her husband promised at their wedding but never actually handed over to her. Occasionally a husband will drive a harder bargain, demanding additional above and beyond his wife’s waiver of mahr. He may, for example, ask for an amount in cash, gold or consumer goods or he may demand that she give away her right to retain temporary (hizânat) of their young children or to receive child support while they are under her care.23 Behaviour of this kind is legally permissible, though strongly discouraged by most religious In Hyderabad, at least according to the qâzîs’ records I examined, it does not appear to occur very frequently. However, it does seem to be standard practice there for the wife who initiates khulc to forego, not only her mahr, but also her legitimate claim to be during ciddat.24 In view of the fact that this waiver of ciddat expenses occurs so consistently, it seems likely that the qâzîs, perhaps

transaction

compensation custody

authorities.

maintained

22 It is not unusual, very shortly after the wedding, for a man or his parents to urge —or even compel— his young bride to ‘excuse’ him (mocâf karnâ) from the obligation of making good on his promise of mahr. And even if she has not formally waived her rights in this way, it is still considered very bad form, indeed as unwifely behaviour in the extreme, for a married woman to demand that her husband pay what he owes her. 23 Under Hanafi law, followed by most Indian Sunni Muslims, a divorced mother is entitled to retain custody of a son until age seven and of a daughter until puberty, after which the father may claim them (see Fyzee 1974: 198). In practice, if the child is very young at the time of the divorce (which is usually the case), the father is to reclaim him, probably because, by the time the child is old enough to return to the father, the latter has remarried and started a new family and is not highly motivated to take on responsibility for a child whom he may not even have seen for many years. If the father does sue for custody, the Indian courts may nevertheless decide that it is in the best interests of the child to remain with the mother. In practice, most such cases are dealt with outside of the judicial system.And the fact that the husband may legally claim the child and not infrequently subjects his ex-wife to repeated threats to do so, is the cause of much pain and distress for divorced young mothers. A divorced Muslim woman can still file (under section 125 of the Criminal Code) for an award of maintenance from their father on behalf of any minor children in her custody, though she is not entitled to claim maintenance for herself. 24 Since passage of the MWA in 1986, there has been much controversy and a number of conflicting High Court decisions over the issue of whether a divorcing husband can be required to provide financially for his former wife even beyond the ciddat period: cf. Agnes (2001). In 2001 this question was answered in the by the Supreme Court in Danial Latifiv. Union of India (AIR 2001 SC 3958). However, it is not yet known how much difference this has made for the average Muslim divorced woman or even for those who have actually approached the lower courts to demand that their husbands provide for them over the longer term. In

unlikely

Procedure affirmative

under some misapprehension about what the law actually requires, routinely instruct their female clients to offer it. Reasons

for

Divorce

There is little information in these documents about the reasons for divorce. Although the divorce registration form has ample space for ‘comments’, it is usually left blank or filled in with only one minimally informative sentence. Case narratives in family court petitions as well as my own interviews suggest that domestic dowry disputes, and sexual jealousy are some of the major issues associated with marital breakdown in this society (Vatuk 2006a). However, there is rarely any mention of any of these kinds of conflicts in the qâzîs’ divorce records. When I asked why they recorded so little information about the events leading up to the divorce, both qâzîs responded that Islamic law does not require party to provide a reason for wanting a divorce. And since what goes on between a married couple is a very private matter about which no outsider should enquire, they consider it both and unwise to ask someone to justify his or her decision. If a man makes an allegation against his wife (or vice versa) and this is committed to writing, it could exacerbate the hard feelings between the spouses or new ones could be created, making future impossible.25 One qâzî also mentioned the possibility of false allegations. If one party became aware that the other had made unfounded charges, he suggested that these might be used as a basis for a libel suit!

violence,

either

inappropriate reconciliation

order to shed some light on this, I have recently completed collecting data from the Hyderabad magistrate’s court on suits filed by divorced women under the MWA since 1995. Many of these women have asked for— and in numerous cases received —lump-sum payments as ‘reasonable and fair provision’ for their future. Details from these investigations will appear in a future publication. 25 The logic of this is unclear, since with few exceptions the divorces being registered are of the ‘irrevocable’ kind (talâq-ul bâin), after which reconciliation is impossible in any case. There seems to be considerable confusion, however, in the minds of all the Hyderabad qâzîs whom I interviewed, about the true meaning of the phrase talâq-ul bâin. Whereas in Arabic its literal meaning, as I have noted, is ‘irrevocable talâq’, the qâzîs whose records I examined both insisted that it signifies a single divorce! One of them further explained that he always tells clients to say talâq-ul bâin, rather than ‘triple talâq’ or ‘three times talâq’, in order to ensure that, if they later change their minds, they can revoke it! They firmly dismissed my feeble attempts to correct them. The professional local translator whom I employed to render Qazi A’s divorce register

In any event, most of the ‘reasons’ that are provided in the files for pronouncing talâq or asking for khulc take a very repetitive and conventional form. This is understandable, since they are not written by the parties themselves but by the official who fills out the Though doubtless composed on the basis of the clients’ oral statements, they are not a verbatim record. A typical statement goes like this: ‘For some unavoidable reason it has become impossible for us to continue our married life and so I have given my wife talâq on [such-and-such] a date.’ Occasionally a man makes more specific charges of ‘disobedience’ or other faults against his wife. For example, ‘My wife is stubborn and her nature is opposite to mine. I have lost my mental peace. It is difficult to maintain our relationship and therefore we have separated.’ Or, ‘My wife is adamant about not wanting to live with my parents. She wants to live separately. So, as she wishes, she is living with her own parents.’ Sometimes a hints at events that preceded the divorce. Thus in one case it is implied that the wife has filed criminal charges of some kind against the husband: ‘Due to some unavoidable circumstances I was not able to manage my married life. I deposited Rs 20,451 at the police station and handed over all the dowry (jahez) items.’ Only occasionally is the wife the one permitted to explain. For ‘After marriage I immediately came back to live with my parents and until this day I am under their guardianship. Owing to these circumstances, my husband gave me talâq on 30th of March 2000 and we have separated.’ And in another statement, this time

document.

statement example,

into English made a similar but not identical error, translating talâq-ul bâin not as ‘single’ but as ‘twice talâq’! For a long time I was at a loss to explain this apparent confusion, which clearly has important implications for how one interprets the documentary evidence on talâq found in their records. Later, however, I accidentally found in the second edition of Macnaghten (1890) a passage suggesting that this particular ‘misperception’ has a very long history in southern India. In an appendix entitled ‘Divorce, According to Ordinary Custom’, Macnaghten cites an 1832 account of marriage and divorce practices in the Deccan which ‘does not profess to treat of legal subjects, but ... is held in high repute as an authority on Mahomedan customs’ (1890: 395; italics in original). The work to which he refers is Shurreef (1832) (see Vatuk 1999). According to Shurreef, there are three forms of ‘divorce by repudiation’. If the phrase ‘I divorce you’ is spoken only once, the divorce is called ‘tulaq-e-byn’. The husband may retract this divorce and the couple resume married life without any ceremony within the wife’s subsequent three menstrual periods. After a second talâq, Shurreef’s ‘tulaq-e-rujaee (rajâî)’, the couple must renew their marriage vows before resuming conjugal relations. But after a third pronouncement of talâq (‘tulaq-e-mootuluqqa [mutalaqa]’) the divorce becomes irrevocable (Shureef 1832: 146-47).

justifying a divorce by khulc, the wife explains, ‘I had three children from him, two daughters and a son. Now the son is four years old and is in my custody. Due to unavoidable circumstances we have been living separately for the past four years and my husband has married a second wife.’

Granting Khulc vs. Pronouncing Talâq: Social Considerations From the man’s point of view, granting khulc has distinct advantages, both social and financial, over pronouncing talâq. One of the main costs of pronouncing talâq is the risk of social disapproval from his kin, peer group, community members and others in his social circle. Divorce is of course permitted in Islam and is even recommended if a couple find it impossible to live in peace with one another. Yet, Muslims in India, unlike those in some Muslim-majority countries,26 tend to share the high-caste Hindu idea that marriage is a life-long commitment, a bond that should not be broken no matter how the parties are to one another or how difficult it is for them to continue living together. Thus I was often told that while divorce is sometimes the only way out of an unbearable situation, it is one of the things that God most dislikes and should therefore be avoided if at all possible. The stigma of divorce generally falls more heavily upon the wife, as it tends to be assumed that a really good woman would be so obedient and amenable to her husband’s wishes as to ensure domestic harmony. However, a man who has divorced his wife, unless it is well known that she was clearly at fault, cannot entirely escape social disapprobation. At the very least, questions will be raised about his character and his credentials as a good Muslim. And from a more practical point of view, he may have persuading the parents of other young women that he is a suitable candidate for remarriage. However, if he can put the onus of initiating the break-up on his wife and cast himself as the innocent victim of an immoral woman who insisted he release her, he can largely avoid social opprobrium.

unsuited

difficulty

26 This is true of Egypt, for example. See Rugh (1984: 175-82). In countries where divorce is not strongly disapproved of, both divorce rates and rates of remarriage for both sexes tend to be correspondingly relatively high, though still much lower than in Western countries. In Egypt in 1994, for example, there were 1.55 divorces each year per 1,000 population, in comparison with 0.46 in Turkey and 4.57 in the United States (Simon and Altstein (2003: 23-24)).

Granting Khulc vs. Pronouncing Talâq: Financial Considerations There is also, in theory at least, an obvious financial advantage for a man when the marriage is dissolved by khulc rather than by talâq: it frees him from the obligation to pay his ex-wife her mahr and also her allowance during ciddat. When men and women try to explain why a husband would pressure his wife to initiate a khulc divorce, they most often cite these monetary considerations. an exclusively economic explanation of the preference for khulc is not entirely convincing. In the first place, mahr amounts are often quite nominal. 27 Second, many women have been pressured to ‘forgive’ (mocâf karnâ) their husbands of the obligation to pay mahr, long before the question of divorce arises. Finally, even if a man his wife by talâq, it is usually quite easy to evade the payment of mahr and ciddat expenses.28 Most talâqs are pronounced in private, out of sight and hearing of any religious authority. If the man fails to pay his wife her mahr, he usually has little to fear beyond possible harassment from her natal family.29 Only if he pronounces talâq in the presence of— or wishes to obtain a ‘divorce certificate’ from— a qâzî or other religious authority who is committed to seeing that divorcers comply with the law, might he find it difficult to evade his financial obligations. While, as I have noted, qâzîs have no enforcement powers, the ones I have interviewed (and whose work I have observed) in both Hyderabad and Tamil Nadu apparently do make some effort to see that men who divorce their wives by talâq pay whatever is due them. To this end they use the only leverage they have, refusing to issue the desired divorce certificate until the man has handed the

perhaps

However,

divorces

27 For example, in my sample of 260 marriages registered in 1990-91 by Qazi A, the amounts ranged from Rs 500 to Rs 51,000, with a mean of Rs 8,200. Half the women sampled had been promised less than Rs 5,000. Ten years later the average amount of mahr had almost doubled. In order to properly assess the significance of this increase it would of course be necessary to take into consideration the rate of inflation during the period. 28 A third option, if one wants to avoid paying the mahr, is to simply abandon the wife or expel her from the marital home, without giving her a formal divorce. This way of freeing oneself from an unwanted wife is extremely common, perhaps more so than the ‘triple talâq’, especially among the poor and less well-educated. 29 It should be noted that a Muslim woman is entitled to sue under the MWA or in a civil court for her unpaid mahr, but unless the amount sought is substantial it is rarely worth her while to do so.

money over to the wife or has deposited it in the dâr-ul quzat for safe-keeping. This suggests that class or economic standing may be a relevant factor in explaining why some men prefer khulc over talâq. Since men of the middle or upper classes are more likely to approach a qâzî at the time of divorce, the financial benefits of pressing the unwanted wife for khulc rather than divorcing her by talâq are much more compelling for them than for the poor. A few sociological studies have attempted to investigate the

question of the extent to which women succeed in obtaining their mahr

after talâq. All the samples surveyed in these studies are small and in no case were the respondents randomly chosen, so the results are in no way statistically significant. But in the absence of any other more reliable or more comprehensive quantitative data on the their findings are worth citing. Not surprisingly, the overall pattern seems to be one of low compliance on the part of men. The most favourable outcomes are those reported by Munira Merchant, who interviewed 100 divorced women clients of various women’s NGOs in Mumbai. As many as 66 per cent of those who had been divorced by talâq said that they had received what was due to them.30 In sharp contrast, however, Moinuddin found that only two out of 128 divorced women surveyed in two rural Bengal had received their mahr ( Moinuddin 2000: 146; 2003). Similarly, according to Zakiya Rafat (2003: 89-92), only three out of the 44 women divorced by talâq whom she interviewed in the town of Bijnor had received any monies at all from their exhusbands. Some of these women had never made any effort to claim their mahr, either because they were determined to avoid any further dealings with their ex-husbands or because the amounts were so small that it was not worth their while to pursue the matter. Some women told the investigator that they did not even know how much mahr had been promised when they married or said that they had been persuaded, early on in their marriage, to ‘forgive’ it. Others said that since their ex-husband had no money, there was no point in

subject,

districts

30 Thirty-eight women in her sample had initiated their own divorce, 35 of them through a qâzî or ‘marriage council’; Merchant (1993). Thus, of the 62 women who could legitimately have claimed their mahr, almost two-thirds (i.e., 40 women) did in fact receive it. Indeed, the actual success rate for those eligible to obtain their mahr may have been even higher than this, inasmuch as some of those who did not get it may have already ‘forgiven’ it earlier in the marriage and therefore no longer had a valid claim.

trying to get him to pay up. As for my own investigations in Chennai and Hyderabad, I too found that very few of the women I who had been divorced by talâq had received their mahr and ciddat expenses. The only exceptions were those whose husbands had divorced them in the presence of (or had registered the divorce after the fact with) a qâzî.

interviewed Mahr in Qâzîs' Divorce Records

About two-thirds of all entries in the two sets of qâzîs’ divorce I examined note both the amount of mahr and ciddat expenses owed to the wife and the amount actually paid. The qâzî’s usual procedure is to add to the mahr amount (which he verifies by the client’s siyâhnâma) whatever sum he considers sufficient to support the woman during her ciddat. While one might expect that this amount would vary with the husband’s economic standing and ability to pay, the documents indicate that this is not usually the case. For example, the 2001 divorce records of Qazi B show that, with very few exceptions, he consistently assessed the sum of Rs 700/month for maintenance during ciddat, whereas in 1993 Qazi A considered Rs 1,000 adequate for the entire period.

records

consulting

Usually when a man comes to register a divorce or to pronounce

talâq in the presence of the qâzî, the wife is not with him. Even if she is present, he typically has not brought enough money to pay her mahr and ciddat allowance. In either case, the qâzî will tell the husband what he owes and instruct him to come back as soon as possible with cash or a money order. Only then will the desired talâqnâma be issued. The qâzî then sends the woman a registered letter, notifying her that she has been divorced and her to come and collect the funds for her mahr and ciddat allowance that are being held in his office. Qazi B told me that in order to ensure that the money does not fall into the wrong hands, he requires the divorcing husband to submit a photograph, which he keeps in the case file to use for identification purposes when the wife appears. All the pictures that he showed me appeared to have been cut out of the couple’s wedding portrait, presumably to verify that it was really the man’s ex-wife, not his mistress or some other woman, who was collecting the funds!

immediately

instructing

One cannot always tell from the records that I was allowed to

see whether the woman has actually received her mahr. Ideally there is a signature or thumbprint as proof of receipt. But not infrequently

the space in which the receipt is supposed to be entered is blank. This could mean either that the husband had never deposited the funds or that the wife had never collected them. Or it could simply mean that, for one reason or another, the register had not been to the wife for her signature when she came to get her money. In order to confirm whether or not the funds had been received, it would have been necessary to examine each individual case file, which I was not allowed to do. In any event, in 31 per cent of the talâq entries in Qazi A’s divorce register there is no information at all about the payment of mahr. In 23 per cent it is noted that the man had either handed over the amount owed to the wife in the presence of the qâzî or had provided him with satisfactory documentation that he had already paid it on some earlier occasion. In another 30 per cent cases it is indicated that the man had deposited the amount, either with the qâzî or with his advocate, for the wife to retrieve later. The remaining 16 per cent of men had simply signed an ‘undertaking’ or ‘promise’ to pay what they owed in the future. For example, ‘Mahr Rs 1,100 “prompt” already paid in cash. Promised to pay Rs 1,000 as ciddat expenses of the lady and signed [by the husband].’ Or, ‘Man has promised to pay through his advocate the mahr of Rs 25,000 and Rs 500 for the ciddat expenses. Signed [by the husband] and recorded’. Thus, at least to the extent that this qâzî’s records are to be relied upon, it seems likely that in at least half of the cases of talâq that he the wife did receive all or part of the mahr and ciddat expenses due to her. This figure is much higher than is reported by most other researchers. However, it must be stressed again that those men who go through the process of registering their talâq with a qâzî are a self-selected group, whose representativeness of the total population of divorcing men in the city is questionable.

presented

required

sometime

registered,

Mahr and other Payments in Cases of Khulc As is to be expected, in most instances of khulc divorce the notation was made in the records that the wife is waiving the entire amount of ‘deferred’ mahr along with her ciddat expenses. In these cases, no cash changed hands. And even in the few cases where the wife had been given ‘prompt’ mahr at the time of her marriage, there is no indication in the records that she was required to pay it back. In a few cases the husband paid some money to his wife. Such payments

were rarely explained: they may have involved a return to the wife of money or goods that she had brought into the marriage as ‘dowry’ (jahez).

Khulc

Initaed by

the Husband

When a couple is having severe marital problems there is an extended period of intense conflict between husband and wife.31 At some point, the husband may simply pronounce ‘triple talâq’. But not infrequently there is a period of contestation between the two about how to go about ending the marriage, i.e., whether the man will pronounce talâq or the woman will ask for khulc. I became aware of this first when examining case files in the Chennai Family Court. In several maintenance petitions or responses to petitions filed by men for ‘restitution of conjugal rights’, women described being threatened and psychologically and/or physically abused for refusing to approach the qâzî for khulc. Their husbands had no desire to remain married but hoped to avoid the necessity of pronouncing talâq by getting their wives to take the initiative instead. Some of the women wanted to preserve their marriage and were seeking some kind of compromise that would make it possible. Others were resigned to the dissolution of the marriage, but resisted the idea that they should assume the burden of initiating the divorce. It from their testimony that the women’s motives were mainly social, not financial: they feared the loss of reputation that they would incur, once it became known that they had been responsible for breaking up the marriage. As one young woman who had been caught in a similar quandary explained in an interview, ‘I didn’t want to be the one to get the bad name!’

usually

appeared

I heard similar stories from more than one women’s activist in

Hyderabad. One of these claimed that it had become a regular for a man to get a blank divorce form from a qâzî, bring it home and threaten his wife with a beating if she didn’t sign it. Once she did so, he would sign it himself, take it back to the dâr-ul quzat and

practice

31 Contrary to the popular stereotype, my investigations suggest that most divorces are not pronounced on the spur of the moment on an unsuspecting wife who is still living together with her husband. In most cases there has been a lengthy period of persistent marital discord, into which other members of the family, and often community leaders, the caste panchâyat, the jamâcat of the local mosque, social workers and even the police may be drawn to mediate. And by the time the man has decided to pronounce talâq, the couple is often already informally separated.

submit it. Jameela Nishat likewise calls attention to this of ‘male-initiated khulc’ in Hyderabad’s Old City. She reports, as have I, that among all divorces registered with qâzîs, khulc are more prevalent than talâqs. But she cautions that

phenomenon

[t]hese figures disguise the fact that in many cases where the wife asked for a divorce, the reason might not be that she actually wanted to be free of the marriage bond. She may have been by her husband to ask for khula, as this would enable him to escape legal liabilities ...… [or] the husband may have created a situation where the wife or her parents might have agreed to secure her freedom by agreeing to apply for a khula...… (Nishat 2003: 30-–6).

pressurised

Not surprisingly, none of the qâzîs whom I asked about this would admit that it was a credible scenario. They insisted that— just as I had observed on more than one occasion in their office— they themselves always filled out the relevant forms and these had to be signed in person by both parties, in their presence or that of one of their office staff. One qâzî did not rule out the possibility that some ‘unscrupulous’, ‘unauthorised’ qâzî might be found to engage in this kind of practice if the price were right.32 But, such protestations notwithstanding, a couple is in fact free under MPL to make their own private agreement for khulc: the resulting divorce is considered valid, unless one party can demonstrate before the court that she (or he) has entered into it under duress or as a result of fraud. The practical likelihood of such a divorce being challenged by the victimised wife is, naturally, extremely small. So there is actually nothing except the qâzî’s own conscience or sense of propriety to prevent a husband from bringing in an already signed agreement and asking that the necessary forms be filled out and a khulcnâma issued. When I discussed this matter with two of the qâzîs they

admitted that they were aware that men do sometimes force their wives

to take khulc by threatening them with various forms of harm. But 32 I got the distinct impression that relations among the various sadr qâzîs of the city are highly competitive. Their discourse about other qâzîs was replete with negative innuendos and outright accusations of inefficiency, impropriety, deviousness, deceit, dishonesty and various forms of corruption or criminal wrongdoing. I was in no and had little inclination to investigate the truth or otherwise of their mutual recriminations.

position

both assured me that if they personally have reason to suspect such a thing, they will try to prevent it. Indeed, I happened to be present when a couple came into one of these dâr-ul quzat, each accompanied by several male and female relatives and friends. When called up to his desk by the qâzî’s office superintendent, the wife explained that they had come because she wanted to take khulc. She intended not only to forego her mahr but also to allow their daughter to remain with her husband. The superintendent took some pains to question her about whether she understood the between talâq and khulc and whether she realised that it would be more advantageous to her if her husband pronounced talâq. When she insisted that she was doing this knowingly and of her own free will, he turned to the man and said to him, ‘Why don’t you simply divorce her?’ But after some further discussion, during which he made no headway with the husband and learned that it was the wife’s intention to go ‘abroad’ (bâhar), he went ahead and wrote up the khulc contract. Later, when they had all left, he admitted that he had his suspicions about this case. But since both parties had stuck to the story that the khulc agreement they were presenting was mutually acceptable, he had no choice but to process it to their wishes.

difference

according

I asked each of the qâzîs whom I interviewed what they would

do if a woman came in asking for help in arranging a khulc but the husband failed to appear when summoned or came but refused to cooperate. They all said that there was nothing further that they could do, pointing out that whereas in a society ruled by Islamic law it is possible for the qâzî to dissolve a marriage even against the husband’s wishes, assuming that he is persuaded of the legitimacy of the wife’s grievance,33 the Indian state does not grant them such 33 This procedure is called faskh. In Hyderabad and Chennai there was unanimous agreement among the qâzîs I spoke to that they do not have the authority to dissolve a marriage in this way. But the procedure is apparently used by qâzîs elsewhere in India, including those associated with the Imârat-i Sharicat, an institution established in Bihar in 1921 and since spread to some other states (including Bengal and Orissa) for the purpose of providing an alternative religious venue for the settlement of Muslim disputes, outside of the state-run judicial system. Its officers settle cases involving issues of personal law according to what they consider the ‘original Islamic juridical’ principles. See Hussain (2003). In August 2005 the existence and legitimacy of this and other so-called ‘sharicat courts’ was challenged by a public interest petition submitted to the Supreme Court of India. See ‘India: Supreme Court to Rule on Religious Courts’, New York Times, 18 August 2005, A12; Pradhan (2005).

powers. If a wife is determined to extricate herself from the marriage but the husband is adamantly opposed to releasing her, the qâzî can only suggest that she turn to the civil courts for relief. The

Dis olution

of Muslim

Marriages

Act

1939

The DMMA was enacted in 1939 in response to pressure from the Muslim religious establishment, concerned about a perceived trend whereby Muslim women, desperate to extricate themselves from highly acrimonious or abusive marital relationships, were resorting to the stratagem of renouncing Islam and/or converting to another religion. At that time, the only way that a woman whose husband was unwilling to divorce her could free herself from the bonds of matrimony was by such an act of ‘apostasy.’ Faced by the unpleasant prospect of Muslim women abandoning the faith in droves, a group of prominent clerics determined to draft a law that would provide them another way out while making it no longer possible to void their marriages through conversion.34 There are nine grounds for divorce under DMMA. These include the husband’s lengthy absence from the marital home, his failure to maintain his wife or ‘to perform his marital obligations,’ his insanity or imprisonment for an extended period. Another legitimate ground for divorce is ‘cruelty’: under this rubric fall such offenses as obstructing the wife’s right to practice her religion, of her property without her consent, falsely charging her with adultery or subjecting her to mental or physical abuse. In this list of grounds overlaps in large part that in the Hindu Marriage Act 1955 (HMA), though the wording of the two laws is not identical. One important difference is that the DMMA does not provide for divorce by mutual consent, an option now under the Marriage (Amendment) Act 1976 (MAA), to Hindu couples. But this omission is understandable, since the specific of the DMMA is to meet the needs of women whose husbands refuse consent to a divorce or whose whereabouts are unknown. It assumes that if the husband and wife both want to divorce one another, they will do so extra-judicially.

impotence,

disposing substance,

available, purpose

34 For further details about the events and controversies leading up to the passage of the DMMA, see Mahmood (1983); Lateef (1990); Masud (1996); Minault (1997).

While I have not been able to find any published data on rates of resort to DMMA, my own research suggests that, at least in Hyderabad and Chennai, this statute is not availed of very extensively.35 In all large cities in India (with the exception of Delhi) marital suits are heard in specially constituted family courts, pursuant to central passed in September 1984 as the Family Courts Act (FCA).36 Between January 1988, when the Chennai Family Court began its operations, and December 1997 only 63 petitions were filed under the Act, an average of 6.3 per year. The Hyderabad Family Court was set up in the summer of 1995. From then until the end of 2001, an average of 32.3 divorce cases were filed each year. However, taking into account that Hyderabad has somewhat over four times as many Muslims as Chennai, the difference in rates of resort between the two cities is not very great: an annual average of 2.3 suits per 100,000 Muslim inhabitants of Hyderabad, as against 1.9 in Chennai.37 One cannot conclude from these figures that Muslim women only seldom find themselves in the situation that the DMMA was designed to remedy. There are a number of reasons why, even if a woman is in dire marital distress, she may not choose to file for divorce under this Act. The first reason is the strong social stigma attached to divorce. Second, divorce almost always causes the woman serious economic difficulties. Few women have been gainfully

legislation

35 I base this conclusion on my examination of records from the Family Courts of Chennai and Hyderabad for the periods 1988 to 1997 and 1996 to 2001, respectively. It would be fruitful to explore the question of how rates of resort to DMMA compare with those to the Indian Marriage Act, HMA and the Special Marriage Act (SMA). Due to time constraints, I was not able to gather the data for such a comparative analysis. I did, however, randomly select the year 1992 for recording some basic on every divorce suit filed by a woman in Chennai Family Court. In that year, only six suits were filed (by Muslim women) under DMMA, while 197 suits (excluding suits for divorce by mutual consent) were filed— under one of the three other relevant divorce laws— by women of other religions. This works out to 1.8 divorce suits initiated by women per 100,000 Muslim inhabitants of the city as against 5.5 per 100,000 inhabitants of other religions. These figures strongly suggest that, at least in this city, non-Muslim women file for divorce more frequently than do Muslim women. But the factors contributing to this disparity in rates of resort to the civil statutes governing divorce are complex and varied and cannot be adequately explored here. 36 See Tiwari and Zaidi (1997). By 1994 there were 50 such courts in operation; National Commission for Women (1994: 19). There are somewhat more today. 37 In 1991 there were 1,402,973 Muslims in Hyderabad, whereas the Muslim of Chennai was only 333,672.

information

population

employed during the marriage or possess sufficient education or job skills to be able to support themselves once they are on their own. So, if only for the sake of her reputation and her and her children’s physical survival, an unhappily married woman will almost always choose to remain with an abusive or neglectful husband rather than initiate a divorce. Should her husband abandon her or eject her from their home, or if for some reason she feels compelled to leave of her own accord, she may well seek shelter with her parents or a brother. But even in this case, she may not feel that it is necessary or indeed in her best interests to file for a civil divorce. Typically such a woman has suffered marital discord or abuse in silence for a long time before finally telling her natal family about her problems or, after some crisis event, seeking refuge with them. The family, especially its male members, usually takes charge of the situation then, rather than leaving it up to her to decide what she wants to do. In this matter, as in the negotiations leading up to her marriage, she will usually take a relatively passive role. Her parents may try negotiating with the husband and his parents, call in from among their relatives or from their local mosque (jamâcat) or consult an imâm or the local qâzî for advice. Often they send her back to her husband one or more times, with instructions to try harder to please him and his parents. Their usual goal is to try to preserve the marriage, both because they fear the stigma that will attach to their daughter and ultimately to them if she leaves her husband and because they are reluctant to assume moral and financial responsibility for her and her children for the foreseeable future. This is especially likely if they have recently made major outlays on her marriage for the accompanying display, feasting, dowry (jahez) and cash and other gifts to her groom and his relatives.38 Eventually they may decide that the only solution is to take her back into their household. But unless they very much want to arrange another marriage for her, there may be no compelling reason to seek a formal dissolution of her marriage. It is easier and certainly more socially acceptable for her to remain

mediators committee

ceremonial

38 While Islamic law neither requires nor condones giving a ‘dowry’ to the daughter when she marries, the practice is very widespread among Indian Muslims. In Hyderabad a cash gift to the groom, presented under the guise of covering the cost of his wedding outfit (jore kî raqm or ghorâ jorâ) has acquired increasing importance in recent years. See Vatuk (2006b).

legally married, even if she has no intention or hope of ever resuming conjugal relations with her husband.39 Finally, should such a woman (or her family) decide to seek an end to the marriage, they will not necessarily choose a ‘court divorce’. Filing a civil suit is costly. Though the FMA specifies that litigants in family court do not have the right to be represented by an (except with special permission),40 it is in practice virtually impossible, even for an educated woman or her family, to navigate the system without legal assistance.41 An advocate must be paid to write up the petition (in English) in the proper form and guide one through the subsequent lengthy bureaucratic process. There are also official court fees and unofficial, under-the-table, payments to be made to court staff if the case is to proceed in a smooth and timely fashion. Very few women are in a financial position to cover these expenses without assistance; their natal families may also lack the resources to help, even if they are supportive of the idea of her her husband.42

advocate

divorcing The requirement that litigants must personally attend every hearing in a Family Court— a corollary to the formal ban on third-party

representation— is another severe imposition on the petitioner’s pocket-book, her time and energy, and that of her family members. It is especially hard for the poor, who must travel for long distances on public transportation or on foot, sometimes accompanied by 39 My research suggests that, contrary to popular stereotypes, Muslim divorcées rarely remarry. For example, in only 4 per cent of the 3,515 marriages conducted by Qazi A in 1990-91 and 2001 had the bride been married previously. Of these, only a third were divorcées; the rest were widows. Unless a divorcée is very young and has no children, her chances of remarriage are very poor. She will not attract a groom with the most sought-after qualifications and will probably have to settle for a man who is himself divorced or widowed, considerably older than she and possibly with children of his own for whom he needs a caretaker. Furthermore, few prospective husbands are willing to accept into their home a child from a woman’s previous marriage and women are usually unwilling to give up their children in exchange for the questionable security of a second marriage. For further discussion of this matter see Vatuk (2005). 40 See Chapter IV, 13: ‘Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be by a legal practitioner: Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae.’ 41 In rural areas or in cities and towns that lack specialised family courts, the regular civil courts, where different rules about legal representation apply, handle divorce suits. 42 Some limited financial assistance is available to impoverished women in the form of state-funded legal aid programs. See Mukherjee (1998).

represented

their children, perhaps losing a day’s wage in the process. They must then wait for hours, sitting on the bare floor in the hallway the courtroom— with no access to toilet facilities or drinking water— until their case is called and then, likely as not, continued for another month, either because their husband has not appeared, their advocate is nowhere to be found, or for some other bureaucratic reason whose nature they may not fully comprehend.43 Women are also deterred from filing under DMMA by the strong social stigma attached to involving oneself in any kind of judicial proceedings, especially those that (like divorce) require exposing private family matters to the scrutiny of strangers. There is a reluctance even to be seen on the court premises, a male space, where disreputable people are known to congregate and unsavory matters are publicly aired. Finally, pursuing a court divorce typically takes a very long time, during which the ultimate outcome may seem very uncertain. Many petitioners become in the process. For example, according to Chennai Family Court files, out of the 63 suits filed under DMMA during the period under examination, more than half were dismissed before a had been reached, usually because the petitioner had stopped attending the scheduled hearings. Her reasons can rarely be from her case file but in some cases it was noted that husband and wife had reconciled, at least temporarily. In others the had pronounced talâq, making the proceedings moot. From interviews I learned that women most often stopped attending court either because of mounting legal expenses, because of the of attending monthly court hearings or because they had come to believe that a favourable outcome was unlikely, whether because the husband was seriously contesting the divorce or because he kept failing to appear, out of indifference or out of a desire to harass her by prolonging the process. In all but one of the 29 cases that were eventually pursued to judgement the woman was indeed awarded a decree.44 But most of these cases took months, if not years, to resolve.45

outside

widespread predominantly

discouraged

judgement determined husband inconvenience

43 I base this description mainly on my observations in the Chennai Family Court. Conditions and facilities are somewhat better in some other places. See Vatuk (2005). 44 Twelve of these were ex parte decrees; the others were granted on the basis of an agreement (or ‘compromise’) between the spouses, in which the wife usually gave up the right to receive certain payments rightfully due to her, sometimes in exchange for the husband’s waiving all claims to custody of their children. 45 The average length of time from filing to disposal was one year and four months, but one contested case took three and a half years. Before passage of the Family

I have presented here some of the findings of my current research on how MPL is administered today in India and how the provisions regarding divorce impact those women who are governed by that code of law. In this article I have focused on woman-initiated divorce, something that has received little or no attention from other scholars. I have shown that, contrary to what most scholars and members of the general public imagine, this type of divorce is extremely at least in the parts of India where I have done research. My principal evidence for this is taken from divorce files maintained by Hyderabad qâzîs, in which cases of khulc clearly predominate over cases of talâq. This pattern is confirmed by interviews with other qâzîs I interviewed in both Hyderabad and Tamil Nadu who also agreed— while not providing any figures to support their — that most of the divorces they handled were initiated by the wife. However, I have shown in the preceding analysis that, in fact, all appearances to the contrary, it would not be correct to that most divorces, even in the cities where these figures were collected, are of the khulc variety. A majority of registered divorces may conform to this type, but since most talâqs are never registered, figures showing a predominance of khulc over talâq in qâzîs’ records are misleading. Nevertheless, what these figures do demonstrate beyond any doubt is that this kind of divorce is very common and is therefore worthy of more scholarly attention than it has received to date.

common, assertions conclude

Khulc

and

the

Question

of Gender

Equality

in

Islam

How can we best explain the fact that khulc is as prevalent as it is, in a society where unilateral divorce initiated by the man is so easy to effect and is allegedly so frequently and casually resorted to? And what is the significance of these findings for our understanding of the position Muslim women occupy within marriage in India? I have mentioned above that there are those who assert that man’s right to give talâq and woman’s to take khulc are equivalent, that Courts Act in 1984 all personal law cases were handled in the regular civil courts, where the backlog often made the wait for a divorce interminable. One of the main goals of the Act’s original proponents was to shorten the time which disputing couples would have to spend waiting for a judgement. Anecdotal evidence suggests that the situation has improved somewhat, though statistics on the matter are lacking.

the one balances the other. For example, the eminent Indian jurist Tahir Mahmood writes: As regards divorce ... please do understand that in Islamic law men and women have absolutely the same right in respect of dissolution of marriage ... [It] makes available to either spouse the facility of extra-judicial divorce subject, mutatis mutandis, to the same The wife’s right to khulc is legally analogous to man’s right of talâq ... There is no inequality or inequity in this beautifully balanced law (Mahmood 1986: 11-12; italics in original).

conditions.

In a more recent publication he reiterates and elaborates this point, saying But where a wife insists on khula ... it cannot be denied to her. The husband has to agree. And if ... not ..., third parties can intervene ... In no case will Muslim law keep an unwilling wife tied down to her unwanted husband (Mahmood 1995: 136). If the latter represents his own views on how the law relating to khulc ought to be interpreted by Indian jurists, then, well and good. However, this does not accord with the actual situation in India today, where a long-established precedent is clear on the point that for a woman to obtain khulc the husband’s agreement is essential.46 As Lucy Carroll puts it in a heated rejoinder to Mahmood’s earlier article, equality can hardly be said to exist as long as a man can give talâq unilaterally whereas ‘a woman cannot effect an khulc unless her husband agrees to the divorce’ [italics in original].47 Aftab Hussain, in his book on the status of women in Islam, describes khulc in very much the same terms as Mahmood does. Although, unlike the latter, Hussain does see fit to mention that in order to have her marriage dissolved in this manner the wife must secure

extrajudicial

46 Marium Bibi v. Nur Mahommad, (1882) All. 83.

47 Carroll (1986: 296). In so effectively disposing of the question of putative‘gender equality’ under the Islamic law of khulc and talâq, Carroll leaves open the question of whether the availability of khulc in MPL might not still contribute to the relative bargaining power of wives versus husbands in Muslim marriages. In a personal Carroll has raised the question of to what extent an extra-judicial khulc divorce would be recognised as valid by the courts, if, for example, upon her remarriage it were to be challenged by her first husband. I have not yet had the opportunity to carefully study the relevant case law on this point.

communication

her husband’s agreement, he goes on to minimise the significance of this qualification: The right of divorce conferred on man is counter-balanced by award [sic] to women of the right to seek dissolution of marriage and Khula, a right denied by other religions. Mutuality was thus maintained in matters of absolute separation too ... The right of the wife ... being subject ... to the consent of the husband... [does] not impinge upon the concept of equality (Hussain 1987: 121-22). Clearly both these authorities are, intentionally or not, glossing over the crucial difference between men and women in respect of divorce: that the man can act entirely on his own initiative to dissolve the marriage, while the woman, though she can freely ask for khulc, can succeed in ending the marriage only if she can persuade her husband to act on her request. Yet we might still ask whether the law of khulc, while clearly far short of conferring upon women equal rights with respect to divorce, nevertheless contributes in a positive way to women’s ‘agency,’ ‘empowerment’ or to their relative ‘bargaining power’ vis-à-vis their husbands within marriage. A number of scholars working on issues of law and society in the Middle East have framed the question in this way. In that part of the Muslim world— as in India today— there is, and has been in the past, a relatively high incidence of woman-initiated divorce. For example, Andrea Rugh (1984: 177) reports on an Egyptian social survey conducted in the early 1970s, showing that one-third of all divorces were initiated by women. According to Judith Tucker, more than half of all divorces recorded in sharicat court records from the city of Nablus in Palestine in the 18th and 19th centuries were of the khulc variety. These are figures very similar to those I found in Hyderabad qazis’ records in the 1990s. Tucker (1991: 241) also notes that khulc divorces ‘with some frequency’ in 19th century Egypt. Madeleine Zilfi (1997: 271) similarly found ‘plentiful evidence ... regarding ... hul’ in her examination of marriage and divorce registers from 18th century Istanbul.48

extrajudicial falling

occurred

It should be noted that, unlike in India today, matters of marriage

and divorce were handled by religious courts in the places where these scholars did their research. The petitioner was required to go 48 Hul is the Turkish spelling of the Arabic khulc.

before an Islamic judge to complain against her husband and the judge would make the determination as to whether or not she was justified. If so, he would order the marriage dissolved, regardless of the husband’s feelings on the matter. In this sense the khulc was not an extra-judicial divorce at all, but was more analogous to a divorce granted under DMMA, though in the latter instance the judge is a civil, not a religious, judge. Both Tucker and Zilfi, like some other scholars who have written on khulc in the Middle East, interpret their findings as indicating that the women who initiated this kind of divorce were not totally oppressed and passive in the face of marital distress. In taking of the law’s provisions they exerted independent agency to free themselves from unwanted entanglements. The right of a woman to initiate divorce, Zilfi says, ‘validated the notion that women, too, deserved to be satisfied in their mates [and to that extent it] ... can be thought to have enhanced women’s status.’ However, Zilfi and other historians, to the extent that they are dependent entirely on documentary evidence, have not been in a position to look behind the scenes at the motivations of or the under which the women who brought the khulc cases they examined were operating. My research has some of the same limitations but I do have the advantage of having ethnographic evidence to supplement what I have found in the records. Personal interviews and observational data enable me to put my quantitative findings taken from qâzîs’ records on the incidence of khulc divorce into a broader social and cultural context. On this basis I argue that, although for many women the act of attempting to secure a khulc divorce may indeed represent a form of ‘assertion of self’, for many others it represents a last resort in a situation where other alternatives are lacking. Furthermore, my research suggests that to take khulc is not necessarily a woman’s own choice at all. The decision to take this step is often one that she is pressured by her natal family into making. In numerous other, even more sobering, cases, it is her who forces the decision upon her because, from his perspective, it is preferable to his pronouncing talâq.

advantage

circumstances

husband Conclusion

Does the availability of extra-judicial khulc divorce provide those locked in unhappy marriages a welcome and relatively easy way

out? Does it empower them to exert independent agency and gain control over their lives or does it have a darker side? The answer, of course, is that both are true. There is no doubt that khulc meets the needs of many women who desire to divorce and are prepared to pay the price in financial support and loss of social standing that accompanies a marital break-up. There is no doubt that taking khulc is preferable in many respects to following the cumbersome and expensive route of filing a divorce suit in family court.And there is no doubt that, insofar as being able to obtain a relatively easy divorce is concerned, Muslim women have an advantage over those of other religions. However, this provision of MPL is unfortunately open to a kind of manipulation that puts many women at a serious An indeterminate number of apparently ‘woman-initiated’ divorces are actually initiated by the husband. For many women, instead of providing the opportunity for female ‘agency’ in an oppressive situation, the law of khulc can end up subjecting her to increased force and compulsion. While the qâzîs and other religious authorities that handle khulc divorces are quite aware of this problem, they are not disposed to take a very active role in trying to prevent it. Having in any case no power of enforcement, the most they feel obliged to do is to ask some and then, if they suspect wrong-doing, to try to use their powers of persuasion to convince the man to pronounce talâq instead. But a husband engaged in employing this tactic, motivated by the desire to gain financially and preserve his own reputation, is unlikely to be deterred at this point in the proceedings. For historians and anthropologists who are working with archival records, one lesson to be drawn from this research is the importance of looking beyond the written word when interpreting the significance of what the documents reveal. And in relation to the specific issue of divorce under MPL in India today, it points up the urgent need for further detailed ethnographic investigation.

disadvantage. otherwise

interventionist questions

References

Agnes, Flavia. 2001. Judgement Call: An Insight into Muslim Women’s Right to Maintenance. Mumbai: Majlis. Ahmad, Imtiaz (ed.). 2003. Divorce and Remarriage among Muslims in India. New Delhi: Manohar Publishers and Distributors. Ali, Syed Ameer. 1980. The Personal Law of the Mahommedans. London: W.H. Allen & Co.

Carroll, Lucy. 1986. ‘ Rejoinder’, Islamic and Comparative Law Quarterly, vol. 6: 294-305. Chitaley, D.V. and S. Appu Rao. 1971. The A.I.R. Manual: Unrepealed Acts [Civil and Criminal], vol. 12. Bombay: The All India Reporter Ltd. Fanselow, Frank. Unpublished. ‘ Law and Custom Reconsidered: A Study of Hindu and Muslim Inheritance Laws and Practices in Southern Tamil Nadu’. Fyzee, A.A. 1974. Outlines of Muhammadan Law. Delhi: Oxford University Press. Hidayatullah, M. and Arshad Hidayatullah. 1990. Mulla’s Principles of Mahomedan Law . Bombay: N.M. Tripathi Private Ltd. Hussain, Aftab. 1987. Status of Women. Lahore: Law Publishing Company. Hussain, Sabiha. 2003. ‘ Male Privilege, Female Anguish: Divorce and Remarriage among Muslims in Bihar’, in I.Ahmad (ed.), Divorce and among Muslims in India. New Delhi : Manohar Publishers and Distributors, pp. 263-89. Lateef, Shahida. 1990. Muslim Women in India: Political and Private Realities: 1890s-1980s . London: Zed Books Ltd. Macnaghten, W.H. 1860, rpt 1890. Principles and Precedents of Moohummudan Law . Madras: Higginbotham & Co. Mahmood, (Syed) Tahir. 1980. Muslim Law of India . Allahabad: Law Book Company. ———. 1983. Muslim Personal Law: Role of the State in the Indian . Bombay: The All India Reporter Ltd. ———. 1986. ‘ The Grandeur of Womanhood in Islam’, Islamic and Law Quarterly , vol. 6(1): 1-26. ———. 1995. Statute Law Relating to Muslims in India: A Study in and Islamic Perspectives. New Delhi : Institute of Objective Studies. Masud, Muhammad Khalid. 1996. ‘Apostasy and Judicial Separation in British India’, in M.K. Masud, B. Messick and D.S. Powers (eds), Islamic Legal Interpretation: Muftis and Their Fatwas. Cambridge, Mass.: Harvard University Press, pp. 193-203. Merchant, Munira. 1993. ‘Divorce Among Indian Muslims: Survey Report from Bombay and Pune’, Manushi, vol. 77: 9-12. Minault, Gail. 1997. ‘ Women, Legal Reform, and Muslim Identity’, Studies of South Asia, Africa and the Middle East , vol. 17(2): 1-10. Moinuddin, S.A. H. 2000. Divorce and Muslim Women. Jaipur: Rawat Publications. ———. 2003. ‘Divorce and Separation among Muslims in West Bengal’, in I. Ahmad (ed.), Divorce and Remarriage among Muslims in India. New Delhi: Manohar Publishers and Distributors, pp.161-78.

Central Comparative

Remarriage

Subcontinent Comparative Constitutional

Comparative

Mukherjee, Roma. 1998. Women, Law and Free Legal Aid in India. New Delhi: Deep & Deep Publications. National Commission for Women. 1994. Justice Delivery through Family Courts. Proceedings of the National Conference. New Delhi: National Commission for Women. New York Times. 2005. ‘India: Supreme Court to Rule on Religious Courts’, 18 August, p. A12. Nishat, Jameela. 2003. ‘A Long Way to Go: Divorce Practices among Muslim Families of Hyderabad City ’, in I. Ahmad (ed.), Divorce and among Muslims in India. New Delhi : Manohar Publishers and Distributors, pp. 303-15. Pradhan, Sharat. 2005. ‘Supreme Court Notice on Religious Courts Draws Flak’, Indo-Asian News Service, 17 August, http://www.eians.com/stories/2005/08/17/17sup.shtml, accessed 15 September. Rafat, Zakiya. 2003. ‘Muslim Women’s Divorce and Remarriage in a Town of Western Uttar Pradesh’, in I. Ahmad (ed.), Divorce and Remarriage among Muslims in India. New Delhi: Manohar Publishers and Distributors, pp. 89-92. Rugh, Andrea B. 1984. Family in Contemporary Egypt. Syracuse: Syracuse University Press. Shurreef, Jaffur. 1832. Qanoon-e-Islam, or the Customs of the Moosulmans of India; Comprising a Full and Exact Account of Their Various Rites and Ceremonies from the Moment of Birth till the Hour of Death. Translated by G.A. Herklots. London: Parbury, Allen, and Co. Simon, Rita J. and Howard Altstein. 2003. Global Perspectives on Social Issues: Marriage and Divorce. Lanham, MD : Lexington Books. Times of India. 2005. ‘ Not Many Divorcees Avail Wakf Board Scheme’. 12 December. Hyderabad. Tiwari, Devendra Kumar and Mahmood Zaidi. 1997. Commentaries on the Family Courts Act, 1984. Allahabad: Alia Law Agency. Tucker, Judith. 1991. ‘ Ties that Bound: Women and Family in Eighteenthand Nineteenth-Century Nablus’, in Nikki R.Keddie and Beth Baron (eds), Women in Middle Eastern History. New Haven: Yale University Press, pp. 231-53. ———. 1998. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press. Vatuk, Sylvia. 1999. ‘Shurreef, Herklots, Crooke, and Qanoon-e-Islam: an Ethnography of “the Moosulmans of India”’, South Asia Research, vol. 19: 5-28. ———. 2005. ‘ Muslim Women and Personal Law’, in Ritu Menon and Zoya Hasan (eds), In a Minority: Essays on Muslim Women in India. Delhi: Oxford University Press, pp. 18-68. ———. 2006a. ‘ Domestic Violence and Marital Breakdown in India: A View from the Family Courts’, in Lina Fruzzetti and Sirpa Tenhunen

Remarriage

Constructing

(eds), Culture, Power, and Agency: Gender in Indian Ethnography . Calcutta: Stree, pp. 204–26. ———. 2006b. ‘The “Cancer of Dowry” in Indian Muslim Marriages: Themes in the Popular Rhetoric from the South Indian Muslim Press’, in Mushirul Hasan (ed.), Living With Secularism: The Destiny of India’s Muslims. New Delhi: Manohar Publishers and Distributors, pp. 155-76. Zilfi, Madeline C. 1997. ‘ “We Don’t Get Along”: Women and Hul Divorce in the Eighteenth Century’, in M.C. Zilfi (ed.), Women in the Ottoman Empire. Leiden: Brill .

Hindu Conjugality: 9 Transition from Sacrament to Contractual Obligations

Flavia Agnes This article explores the extent to which family laws in India have transcended the traditional concept of marriage as a sacramental union and been able to weave in contractual obligations in defense of women’s rights. It begins with the traditional remedy of restitution of conjugal rights, which was a marker of indissoluble and Christian marriages of medieval Europe. In 1769, the English jurist William Blackstone laid down: ‘By marriage, the husband and wife are one person in law’, and that person was the husband, and explained further that ‘the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband’ ( Bromley 1976: 107). For the woman, marriage meant a legal death. She ceased to be a person and lost her right to enter into contract, to sue or to be sued against. She was deemed the chattel of her husband, and only death could sever this lifelong bondage. The ecclesiastical courts had the power to bodily restore possession of an errant wife who had escaped from the conjugal bed and hearth, to her husband, her Lord and Master!

sacramental

With the introduction of the ‘modern’ colonial legal order, this

remedy was awarded legal sanction within both the Hindu and the Muslim family law systems in India. This served to validate the and textual anti-women biases inherent within them and convert them into valid and legally enforceable maxims. Rather interestingly, this archaic remedy has been able to withstand the

scriptural

Hindu Conjugality

transition of the Hindu marriage from sacrament to contract during the post-Independence period and has manifested in myriad curious and ironic ways. While examining this provision, both historically as well as in

contemporary judicial discourse, the inherent gender bias is strikingly

obvious. But of equal importance is the gradual tilt in favour of women’s rights, first in recognising the wife’s right to choose the matrimonial residence and later in protecting a woman’s right to reside in the matrimonial home. The husband’s obligation to provide a shelter to his wife as an implied contractual obligation is articulated through judicial pronouncements, initially tentatively, and then unequivocally. More recently, the wife’s right of residence even against a third party in collateral litigation has been affirmed by the Supreme Court whose judicial pronouncements are locations of emerging legal trends. A legal provision has to be judged not just by its legalistic wordings but by its application to real life situations. The dry words of a statute come to life only when they are contested in court rooms. The dynamism between statutes, litigants and court verdicts is what makes legal research and practice an exciting arena of intervention. I have relied upon cases reported in law journals not only within their traditional confines to emphasise the legal principles that were upheld or overruled, but have also used the legal narratives themselves as a source of sociological data. Through this, I have tried to capture the twists and turns, nuances and ironies of adjudication processes and court room intricacies. Indian women have traversed a long and winding path and have endured grueling court battles in defence of their civil and economic rights. This article maps the rich tapestry of this historical struggle. Beneath every legal citation in family law is the tale of individual struggle which needs to be acknowledged as an act of assertion by women. Focusing on these struggles and identifying their locations of resistance is crucial for our understanding of the dynamism of family law in India. Towards this end, I have not only relied upon cases reported in law journals, but drawn from my own experience as a litigating women’s rights lawyer in Mumbai. A Tribute to Rukhmabai

While embarking on a debate on Hindu conjugality and its transition from status marriages to contractual obligations, it is perhaps apt to

Agnes

start by paying tribute to a pioneer who had waged a personal battle in the Bombay High Court in the 19th century and struggled to change the parameters of this discourse. The implications of this struggle can be gauged only when we contextualise it within the framework of the then prevailing status of women in Britain, who were still struggling for their rights to vote, to enter into to divorce, and to be recognised as persons (Sachs and Wilson 1978: 227). A young woman, Rukhmabai, defied tradition and the colonial legal dictates by refusing to be bound to a marriage contracted when she was barely 11 years old. The social drama which unfolded around her legal case has been described as ‘a unique event in colonial India’ by various historians (Chakravarty 1998; Chandra 1998). what was assumed to be natural, she offered a subversive model of assertion by women of their desire, as individuals, in a terrain dominated by family, community, and imperial notions of justice and governance. The social drama was triggered when Dadaji Bhikaji filed a case against her in the Bombay High Court in 1884. It reached its peak in 1885, when Justice Pinhey, in a historical verdict, declined to pass a decree of restitution of conjugal rights in favour of the In a bold and fearless verdict, he declared that since had not been instituted, the question of granting the relief of ‘restoring’ conjugality did not apply to this case.1 ‘It is a misnomer to call this “a suit for the restitution of conjugal rights”, the judge proclaimed. “Restitution of conjugal rights” can only apply to a situation when a married couple, after cohabitation, separate and live apart. Here, the husband has asked the court to compel the wife to go to his house, so that he may complete his with her by consummating the marriage. It seems to me that it would be a barbarous, cruel and revolting thing to do, to compel a young lady under those circumstances to go to a man whom she dislikes, in order that he may cohabit with her against her will. No law or practice justifies such an order. I am not obliged to grant the plaintiff the relief which he seeks, and to compel this young lady of twenty-two to go to the house of her husband in order that he may consummate the marriage arranged for her during her helpless infancy. The practice of allowing suits for the restitution of conjugal

contracts,

Questioning

husband. conjugality

contract

1 Dadaji Bhikaji v. Rukhmabai (1885) ILR 9 Bom 529.

rights originated in England under peculiar circumstances, and was transplanted from England into India. It has no foundation in Hindu law.… For many years after I came to India such suits were not allowed. It is only of late years the practice of allowing such suits has been introduced into this country from England (I think only since the amalgamation of the old Supreme and Sadar Courts in the present High Courts which has brought English lawyers more into contact with the mofussil). It is, in my opinion, a matter for regret that the remedy of restitution of conjugal rights was ever into this country.’

introduced

A strong comment indeed against the colonial legal order by one

of its own stalwarts! Ironically, the revivalists interpreted this as an interference in the sacrosanct arena of Hindu conjugality by the British courts (and a breach of the assurance on non For the reformers, the intervention of the English courts was an armour in their campaign against the upper caste Hindu custom of child marriage.

judgement interference).

The litigation, the judgement and the controversy which followed

were all laden with ironies. The husband’s case was trumpeted by the revivalists and it is with their support that he had approached the English courts, rather than the caste panchayat, for the remedy of restoring his ‘Hindu’ conjugality. Within the customary law, the relief of restoring conjugality was non-existent and the husband could not obtain any relief in this sphere. Also, the parties belonged to the lower caste among whom the custom of the caste recognised the right of the wife to dissolve her marriage. And most Justice Pinhey had declined the relief on the ground that it was an outdated medieval Christian remedy under the English law, and further that the Hindu law did not recognise such a barbaric custom.

importantly,

But in the highly politicised climate, these subtle legal points were

lost: the husband filed an appeal, and the colonial courts succumbed to political pressure. In 1886, the division bench presided over by Chief Justice Sir Charles Sargent and Justice Bayley rejected the argument that there is no authority for a decree for ‘restitution’ of conjugal rights under Hindu law and decreed: ‘The gist of the action for restitution of conjugal rights is that married persons are bound to live together. Whether the withdrawal is before or after there has been a violation of conjugal duty which entitles the injured party to the relief prayed.’ The court ruled in favour

consummation,

of the husband and granted him the decree of restitution of

conjugal rights.2

But how was this decree to be enforced? The civil courts did not

have the power to bodily reinstate conjugality, a power which the European ecclesiastical courts possessed. Hence the only way the decree could be enforced was through civil imprisonment and attachment of property. In a moment of pride and glory for Indian women for centuries to come, in the open court Rukhmabai declared that she would willingly undergo imprisonment rather than let a man she detested ‘enforce’ conjugality. If the court was compelled to execute its own order, it would indeed have been a matter of blemish for the colonial rulers, who had justified their rule on the premise of ushering in modernity and defending women’s rights. The threat of imprisonment was removed only after considerable reformist agitation and the personal intervention of Queen Victoria.The matter was finally ‘settled’ by payment of compensation — by Rukhmabai to her husband. Rukhmabai’s struggle is relevant not only for its times but even for the contemporary international women’s rights discourse. The motif of her defiance of both the verdict of the alien English judges and the patriarchal dictates crouched in national pride, in defense of her right over her personhood, at a time when English women were waging a battle for their right to own separate property as wives, would indeed serve to shift the rigid and fixed binaries of First World feminists/Third World victims. Restoring Hindu Conjugality in Modern Times

It is interesting to explore how the concept of restitution of

conjugal rights (RCR), which Judge Pinhey had described as an ‘archaic

Christian remedy of medieval Europe’ in 1885, has been played out in modern times under the codified Hindu family law.

The Hindu Marriage Act (HMA) which governs Hindu marriages

was enacted in 1955 after a historic debate which spanned over 15 years. The primary aim was to elevate the status of women by transforming sacramental marriages into contractual obligations. It was a modernist discourse based on the concept of equality. So men and women were granted similar rights of divorce, judicial 2 Dadaji Bhikaji v. Rukmabai (1886) 10 ILR Bom 301.

separation, and annulment of marriage. Rather curiously, the remedy of restitution of conjugal rights of an erstwhile era was retained under section 9 of this Act and, under the premise of equality, it was extended to women. So both men and women could enforce this remedy against the errant spouse who had left the conjugal bed and caused ‘desertion’. The cloak of equality was ceremoniously draped around the couple. But this superficial notion of equality only served to strengthen gender inequality between the husband and wife a society seeped deeply in patriarchal values. For instance, both men and women were granted the right to claim maintenance from each other, under sections 24–25 of this Act. The notion of a man’s entitlement to claim maintenance from his wife did not exist under the earlier legal regime rooted in a feudal social structure. The Hindu law, either scriptural or customary, or the Muslim law or even the modern and secular Special Marriage Act (SMA), enacted in 1954, did not recognise this concept. But this was introduced in Hindu law by adopting the emerging Western model of equality in family relations. So, while a basic inequality between men and women persisted within the scheme of inheritance rights, (by the retention of the Hindu Undivided Family (HUF) property through which a male gets a share in the family property by birth) under the perverse logic of equality, the Hindu woman was placed under a legal to maintain her husband. While an 18-year-old boy is not entitled to claim maintenance from his father on the grounds that he had reached the age of majority and hence is capable of earning his own livelihood, an adult male is granted the privilege of a choice of remaining unemployed and claiming maintenance from his employed wife. Ironically, while women were burdened with the responsibility of providing maintenance to the husband under a modern concept of equality, correspondingly, the courts also undermined a woman’s right to retain her job against her wishes by upholding the traditional notion of husband as the ‘Lord and Master’. If the woman was employed at a place away from the matrimonial home, the husband could claim the relief of RCR against her.

conjugal within

obligation

exercising husband’s

For over two decades after the enactment, in a series of decisions,

the courts held that Hindu marriage is a sacrament and it is the sacred duty of the wife to follow her husband and reside with him

wherever he chooses. In all these cases, the women were working and supporting the family. The husbands had approached the courts for restoring conjugality just to spite the women. The courts upheld the husbands’ rights and granted them a decree of restitution. In 1958, in Ram Prakash vs Savitri Devi3 the Punjab High Court held: ‘According to Hindu Law, marriage is a holy union for the performance of marital duties with her husband where he may choose to reside and to fulfill her duties in her husband’s home.’ In 1964, in Tirath Kaur vs Kirpal Singh,4 the wife pleaded that she was willing to carry on with the marriage but was not prepared to give up the job. The court disallowed her plea and ruled in favour of the husband on the ground that the wife’s refusal to give up the job amounts to desertion. In 1966, the Madhya Pradesh High Court held that ‘A wife’s first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection.’5 In 1973 in Surinder Kaur vs Gardeep Singh6 it was held thus: ‘The Hindu law imposes on the wife the duty of attendance, obedience to and veneration for the husband and to live with him wherever he chooses to reside.’ The leading case on this issue is reported in 1977, in Kailash Wati vs Ayodhia Parkash. 7 The wife was employed prior to the After seven years, in order to compel the wife to resign her job, the husband filed a suit for restitution of conjugal rights. The wife stated that she was prepared to honour her matrimonial obligations but was not prepared to resign her job. The Full Bench of Punjab and Haryana High Court held: ‘According to Hindu Law, is a holy union for the performance of marital duties with her husband wherever he may choose to reside and to fulfill her duties in her husband’s home.’ The court reaffirmed that the wife’s refusal to resign her job amounts to withdrawal from the husband’s society, and granted the decree in favour of the husband. So, while under the modern concept of equality the husbands had the right to be maintained by their wives, under the archaic concept of a sacramental bondage, they could restrain them from gainful employment. While their plea that it is the sacred duty

marriage.

marriage

3 AIR 1958 P&H 87. 4 AIR 1964 P&H 28. 5 Gaya Prasad v. Bhagwat AIR 1966 MP 212. 6 AIR 1973 P&H 134. 7 ILR (1977) 1 P&H 642 (FB).

of a Hindu wife to reside under their ‘care and protection’ is not surprising, the judicial affirmation of this plea under a modern is alarming.

statute

It is only in the mid-1970s, two decades after the enactment of

the HMA that the courts gradually began to recognise the woman’s right to hold on to a job away from her husband’s residence. In a significant ruling, the Gujarat High Court, while denying the the relief of RCR declared: ‘In the modern outlook, the husband and wife are equally free to take up a job and retain it. Since there had been a mutual arrangement, it was not a case where it could be said that the wife had withdrawn from the society of the husband.’8 This was followed by a single judge ruling from the Delhi High Court in 1978, in the leading case, Swaraj Garg vs R.M. Garg.9 from the Full Bench decision of the Punjab and Haryana High Court in Kailash Wati,10 the court held that in the absence of a pre-marital agreement between the parties, it cannot be said that the wife who had a permanent job with good income had to live at a place determined by the husband when the husband did not earn enough to maintain the family. Finally, the wife’s right to choose her matrimonial residence received the judicial nod.

husband

Dissenting

But despite this ruling, the practice of filing a suit for RCR as a

defence to the wife’s claim of maintenance continues. In a study of family courts in Maharashtra, Karnataka and West Bengal, conducted by me for the concerned State Women’s Commissions, it was that husbands file disproportionately higher cases of RCR, as compared to any other matrimonial relief. The judges presiding over family courts commented that it was an usual ploy adopted by lawyers defending husbands, to file a suit for RCR to defeat the women’s claim for maintenance.

revealed

Constitutional Validity of Enforced Hindu Conjugality

Would a legal provision which violates the bodily integrity and dignity of a woman be constitutionally valid? Does the right to life under Article 21 of the Constitution not include the right to life with dignity? Does a consensual marriage contract imply consent to sexual 8 Praveenaben v. Sureshbhai AIR 1975 Guj 69. 9 AIR 1978 Del 296. 10 ILR (1977) 1 P&H 642 (FB).

bondage and slavery? These contentious questions were examined by two High Courts and the Supreme Court during the 1980s. The pendulum swung from one end to the other and finally settled to augment the masculine power and authority. The first among these was the judgement of Justice P.A. Choudhury in 1983. The case concerned the marriage of a film actress, T. Sareetha, who had left her matrimonial home. Her husband retaliated by filing a suit for RCR and obtained a favourable order. But like Rukhmabai a century earlier, Sareetha withstood the pressure and, rather than complying with the court order, challenged it in the Andhra Pradesh High Court. It was then that Justice P.A. Choudhury delivered a historical verdict, and held that the remedy is savage and barbaric. He struck down the concerned section and redeemed Sareetha and all women of Andhra Pradesh, from the oppressive yoke of Hindu conjugality. In a clear and unambiguous voice he proclaimed:‘The remedy of restitution of conjugal rights is violative of the right to privacy and human dignity guaranteed by Article 21 of the Constitution. A of restitution of conjugal rights constitutes the grossest form of violation of an individual’s right to privacy. It denies woman her choice whether, when and how, her body is to become the vehicle for the procreation of another human being.’11 With extreme sensitivity, Justice Choudhury addressed the male privilege of marital rape latent in the RCR provision. His is one of the earliest judicial voices to challenge the superficial gender of the HMA: ‘It appears that section 9 of the Hindu Marriage Act does not offend the principle of equality, since it does not between a husband and wife. On the other hand, by making the remedy equally available both to wife and husband, it apparently satisfies the equality test. But bare equality of treatment, regardless of the inequality of realities, is neither justice nor homage to the Constitutional principles.’

decree

neutrality discriminate

His is also one of the earliest voices which declared that women’s

rights are human rights by bringing them within the ambit of Article 21 of the Constitution, and by extending the scope of ‘right to life’ to include right to human dignity of women. But his stand had no takers. Rather unfortunately for Hindu women, the respite granted by Justice Choudhury was short lived. In the following year, 11 T. Sareetha v. Venkatasubbiah AIR 1983 AP 356.

the Delhi High Court examined the same issue and held to the contrary. The wife, Harvinder Kaur, had challenged the decree of RCR granted in favour of her husband Harmender Singh, by the lower court. The Delhi High Court dismissed her appeal and the husband’s right to restore conjugality and declared that Section 9 of the HMA is constitutionally valid. The court further explained: ‘The object of a decree of restitution of conjugal rights is to bring about cohabitation between the estranged parties so that they can live together in amity. It is a two-in-one provision. On the one hand, it enables the court to coax and cajole the parties to marital life and is designed to encourage reconciliation.’12 The court then went even further and provided a perverse logic for its explanation: ‘Introduction of constitutional law in home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution. In the privacy of the home neither Article 21 nor Article 14 have any place. In a sensitive sphere which is most intimate and delicate, the of the cold principles of constitutional law will have the effect of weakening the marriage bond. The introduction of law into the ordinary domestic relationship of husband and wife will strike at its very root and will be a fruitful source of dissent and quarreling. The ‘domestic community’ does not rest on contracts sealed with seals and sealing wax, nor on constitutional law. It rests on that kind of moral cement which unites and produces “two-in-oneship”.’ The controversy created by these two diametrically opposite viewpoints was reconciled by the Supreme Court, by overruling the verdict of the Andhra Pradesh High Court! The case before the court is illustrative of the manner in which superficially ‘gender neutral’ provisions can be manipulated to defeat women’s rights. When her husband had deserted her, Saroj Rani approached the court for a decree of RCR. Her husband conceded and the court awarded a decree in her favour. In the following year, the husband filed for divorce under Section 13(A) of the HMA on the grounds that one year had passed since the passing of the decree and no cohabitation had taken place between them.The wife submitted that when she had gone to the matrimonial home to ‘restore conjugality’, she had been denied entry and had been driven

upheld

resume

introduction constitutional

12 Harvinder Kaur v. Harminder Singh AIR 1984 Del 66.

out. Based on this, the trial court dismissed the husband’s petition. But on appeal he succeeded.The wife approached the Supreme Court for setting aside the divorce decree passed by the High Court on the grounds that the husband cannot be permitted to take advantage of his own wrong. On her behalf it was argued that Indian wives should not be made to suffer at the hands of manipulative and husbands. But the apex court dismissed her appeal, upheld the divorce granted by the high court and ruled that ‘Non compliance of the of RCR does not amount to “taking advantage of his or her own wrong”. Though we cannot rule out the possibility of a party a decree and then not enforcing the same with the sole purpose of getting a divorce after the lapse of statutory period, such abuse can be prevented only by bringing in changes in the legislation to plug the misuse. But as the law stands now, we are helpless.’13 It is rather strange that the highest court of justice declined to rectify an obvious and blatant injustice relying on a tame plea of ‘judicial helplessness’. But in the process, the court also examined the constitutional validity of the provision and held: ‘In India rights, i.e., right of the husband or the wife to the society of the other spouse is not only a creation of the statute. Such a right is inherent in the very institution of marriage itself. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. It is to note that the decree can be executed by attachment of property. A decree of RCR offers inducement for the husband or wife to live together. It serves a social purpose as an aid to the of break-up of marriage.’ This provision is manipulated by husbands in two different ways. When the wife files for maintenance, RCR proceedings are initiated to deny her maintenance. By filing this suit, the husband can throttle the plea of desertion upon which the wife’s claim for maintenance rests. On the other hand, if a deserted wife files for RCR, the husband can consent to a decree in the wife’s favour as it was done by Saroj Rani’s husband, and then prevent the wife’s re-entry into the home. After the lapse of the statutory period of one year, he can get a divorce without the necessity of having to prove any other matrimonial offence. This is how the principal of ‘equality’ gets played out at the ground level.

dishonest

decree obtaining

conjugal

significant

prevention

matrimonial 13 Saroj Rani v. Sudarshan Kumar AIR 1984 SC 1562.

The option of filing for divorce one year after the nonimplementation of the decree of RCR (or judicial separation) under Section 13(A) was introduced into the HMA in 1976, to award limited recognition to the concept of ‘irretrievable breakdown of marriage’ or the ‘no-fault’ divorce. The demand was raised by a within the women’s movement and was meant to save women from the indignity of having to ‘prove’ a matrimonial fault or, in other words, of having to ‘wash dirty linen in public’. But since the HMA is premised on the concept of ‘formal equality’ every pro-women clause can also be used against women. The case of Saroj Rani only serves to highlight this dilemma.

section

perceived Bending the Law to Defend Women

The approach adopted while dealing with women’s dispossession from the matrimonial home can best be explained by borrowing the popular phrase ‘Bend it like Beckham’. There is a misplaced belief among women’s rights activists that rights are located in law and hence great emphasis is laid on statutory reforms. But in the realm of matrimonial laws, which are based on the principle of every legal provision introduced to protect women can also be used against them. If that be so, would be it possible to work in the reverse, and turn anti-women provisions to aid women through innovative strategies? This probing has aided me to push the of law beyond the conventionally accepted parameters. of this approach is the strategy adopted in Seema’s case.14 If the perceived pro-women remedy of ‘irretrievable breakdown of marriage’ can be used by the husband in his favour through astute lawyering, then can the same principle also apply in the reverse by bending the seemingly anti-women remedy of restitution of conjugal rights in defence of women’s rights? Seema’s case helps to convey the fact that with a stroke of luck, this just might be possible. But in order to make my point, I need to descend from the revered plane of legal academia to the messy arena of trial court litigation. Seema approached the legal centre of ‘Majlis’, which provides litigation help to women in crisis situation, in a shattered state when she was thrown out of the matrimonial home. Hers was an

equality,

boundaries Illustrative

14 This was a dispute handled by Majlis, and I was involved in preparing and arguing the brief on behalf of Seema. Details are on file with the author.

inter-community ‘love marriage’ to a man from a higher social strata. After seven years, love had flown out of the window and Seema was subjected to battering and constant threats. The cause was the involvement with a young woman from his own community. This usual story might have ended in the usual way, with Seema losing all her rights when she was thrown out of the matrimonial home. But things worked out differently for her. Fearing arrest in the event that Seema filed a police complaint, the husband absconded with her five-year-old son and left the matrimonial home vacant. Seema had been a home maker, having given up her job at her husband’s insistence. Though homelessness and poverty stared her in the face, like most women in her condition her immediate concern was only to get her son back. But claiming custody when the woman is thrown out of the matrimonial home is not as easy as it seems. Despite the legal provisions favouring women, judges usually adopt the approach of ‘maintain status quo’ as far as children are concerned. The courts are generally not inclined to change the established custody order and disturb the child at the interim stage. So, rather than tamely accepting her fate, Majlis’s advice to her was to take a pro-active and aggressive litigation Since the locked premises constituted her matrimonial home, she was convinced by her advisors that she has every right to break open the lock and enter the matrimonial home, and it would not amount to ‘housebreaking’. The strategy worked. Initially, when Seema approached the local police and was denied police protection, she was scared. It took quite a bit of cajoling to get her to agree to the suggestion of breaking the lock. The next day Majlis was in court with a suit for RCR and obtained an ad-interim order of injunction restraining the husband from dispossessing her. When this was served on the husband at his parental place, to say the least, he was shocked. That the frail and forlorn Seema could bring him to his knees in an aggressively strategised litigation was not something he had bargained for. A second order was also obtained to produce the child in court within a week. The child, who had been separated from the mother for nearly a month, clung to her during access and that clinched the issue of interim custody. An injunction was given restraining the husband from removing the child from her custody. The fourth order secured Seema’s right to the exclusive use of a bedroom and part of the

husband’s

strategy.

kitchen. Later, she was awarded maintenance for her and the child. By now Seema was secure, having protected her rights over both home and child and a reasonably good order for maintenance to take care of her daily expenses. This helped to transform Seema into a self-confident and assertive person. When her husband filed for divorce, she was in a position to dictate her terms. The matter was finally resolved with the husband buying a separate apartment for Seema and the litigation ended with a decree of by mutual consent.

subsequently

divorce

Not every case turns out to be as successful a story as that of Seema.

But the right to matrimonial residence is becoming an important component of matrimonial litigation for women, who are battered, dispossessed and rendered shelterless. The women’s need for a safe shelter is turning the tone and texture of matrimonial litigation in metropolitan cities. Functioning from a legislative void, one is to rely upon seemingly anti-women provision of restitution of conjugal rights. This is a circuitous route to secure the basic and fundamental right of dignity, security and survival. But women’s rights lawyers are left with no other choice but to adopt and innovative strategies to save women from destitution and deprivation.

compelled aggressive Contradictory Claims of Domestic Violence and Matrimonial Residence

Right of residence in the matrimonial home is a crucial right of When there is domestic discord, the vilest whip a husband can use against the wife is to drive her out of her matrimonial and render her destitute. It is this fear of destitution that prevents most women trapped in violent marriages from opting for divorce. Though the legal system has recognised the fact that wife abuse persists, and provided for a remedy under the criminal law (Section 498A of IPC), civil remedies against violence and have not received due attention.

survival. residence dispossession

In popular perception, protection against domestic violence and

the right to matrimonial home are contesting and conflicting claims. The most common advice offered to victims of domestic violence is to relinquish the right of residence in the matrimonial home to secure the right to life, liberty and freedom. A victim of domestic violence is thus trapped between two notions: reconciliation with

the husband on his terms for the sake of preserving the marriage or, alternatively, relinquishing her claim to the matrimonial home, dissolving the marriage and then facing a life of destitution. Judges too view the right of residence in the matrimonial home and allegations of domestic violence as mutually exclusive claims. If the wife apprehends violence in her matrimonial residence, how can she then claim the right of residence in the matrimonial home, they question? The fact that one is a right against bodily injury and the other is a property right as well as a right to shelter and survival is often overlooked. Both these rights are inherent, though in an implied manner, within the contract of marriage and the courts are duty-bound to safeguard both and not one at the cost of the other. Under English law, women’s right to their matrimonial residence is recognised through the legal maxim ‘right in equity’ and ‘constructive trust’. Under these legal maxims, today, it is relatively easy for a wife to obtain an injunction against dispossession and relatively difficult for a husband to drive his wife out. Many other countries have also enacted similar laws to protect women’s right to residence. But our matrimonial statutes do not recognise women’s right of residence and women are systematically deprived of this right. The economic rights of married women are confined to a maintenance dole. Hence for most women, divorce, in effect, brings about destitution. Though the right is not defined under our prevailing matrimonial statutes, ‘injunction against dispossession’ has gradually emerged as a highly contested issue in matrimonial litigation.While it is easy to arrive at an understanding regarding divorce by mutual consent and also to settle issues of custody of children, it is most to arrive at a settlement regarding claims to matrimonial home and property.

matrimonial

relatively difficult Devoid of statutory protection, this right hinges upon astute

lawyering, a sympathetic and sensitive judge and stray innovative judicial

pronouncements. It is interesting to trace how the right has emerged gradually and has been consolidated. Perhaps it is not surprising, given the highly volatile housing situation in Bombay, that the was first articulated through a decision of the Bombay High Court. In 1977, in a landmark decision A v B15 the Court ruled: ‘While passing a matrimonial decree, the Court has the power to

concern 15 1977 Mh.LJ 66.

grant an injunction restraining the husband from entering the matrimonial home….’ The facts of the case tell a tragic tale which started as a ‘love marriage’. Since the husband was not earning well, to improve the economic status, the wife joined college. Apart from household chores and studies, she also had to cope with her husband’s sexual vagaries. When she became pregnant, due to physical and mental torture, she suffered a miscarriage. The husband refused to provide medical aid. Later, her health began to fail and she had to be rushed to the hospital in a critical condition. When she recovered, he threw her out. So she rented a flat and started living independently. The husband then pleaded for reconciliation and they started living together again. But within a few months, the husband reverted to his old ways.

He did not share the household expenses. When she completed her Law degree and started her practice, he accused her of having affairs with her colleagues. Finally, she filed a petition for judicial separation and for an injunction restraining the husband from entering the matrimonial home. While granting her judicial separation, the court held: ‘... a woman, who wants to be economically independent … would be apprehensive that it would be dangerous to live with a husband who is physically abusive and accuses her of having relations with her colleagues….’

extramarital Innovative Judicial Interventions

While the term ‘matrimonial home’ is used both by the Delhi High Court in Swaraj Garg16 in 1978 and the Bombay High Court in A v B in 1977,17 both these cases do not address the concern of a woman’s right to matrimonial residence. Swaraj Garg merely affirms the woman’s right to choose the place of matrimonial residence, and A v B grants woman the right to protect the house purchased by her from an abusive husband. But the wife’s right to reside in the dwelling place which stands in the husband’s name or in the name of his parents, employers or even the landlord emerges later, from the decade of the 1980s. The innovative rulings of various High Courts, in effect, amount to judicial 16 Swaraj Garg v. K.M. Garg AIR 1978 Del 296. 17 1977 Mh.LJ 66.

law making. In a situation of a legislative void, the courts have in to carve out a slender thread of hope for women facing The recent Supreme Court ruling affirmed and endorsed the legal principles upheld by various High Courts. Some of these path-breaking rulings are summarised below. Abdul Rahim vs Padma18 dealt with the right of the wife to dwell in the matrimonial home after a divorce. The parties had contracted an inter-religious civil marriage. When matrimonial conflict arose, the husband pronounced talaq and threw the wife out of the home. Later, he filed a civil suit restraining her entry into the matrimonial home and obtained an ex parte injunction against her on the ground that she was no longer his wife. In appeal, the High Court held that since it was a civil marriage, it could not be dissolved through an oral talaq recognised by Muslim family law. Subsequently, on the premise that the marriage had broken down irrevocably, the court granted a judicial divorce. Meanwhile, the wife also challenged the injunction on the grounds that it was her matrimonial home and she had contributed towards it from her savings. The court ruled: ‘The wife has a right to stay in the home since the husband had not provided her any alternate It is just and fair that the flat be partitioned and the wife allocated a specific portion thereof, for her residence.’ The 1985 ruling of the Andhra Pradesh High Court in the case M/s Bharat Heavy Plates and Vessels Ltd., Vishakapatnamair19 brings into focus yet another aspect of a woman’s right of residence in the matrimonial home. The couple was living together in the quarters provided by the company. When the husband neglected to maintain her and the three children, the wife approached the court for maintenance. As a retaliatory measure, the husband left home and requested the company to terminate the lease. The wife the court for protection. The court granted an interim injunction restraining the company from evicting the wife and the minor children. The company approached the High Court against this order. Upholding the trial court order, the High Court ruled: ‘The husband has an obligation to provide shelter to his wife and children. The husband and the company, acting in different ways, have been recognising all these years the occupational rights of the

stepped destitution.

matrimonial

accommodation.

concerning

approached

18 AIR 1982 Bom. 341. 19 AIR 1985 AP 207.

wife and the children as part of the matrimonial right. No harm, injury or injustice has been caused to the company since the order provided for deducting the amount of rent from the salary of the husband. The “company” is a state instrumentality under an obligation to act in accordance with Articles 14 and 21. By the state instrumentality from rendering the wife and the children homeless, the Court only prevented failure of justice.’ Mala Viswanathan vs P.B. Viswanathan20 is a recent ruling from the Calcutta High Court which affirmed the right of the wife to reside in the matrimonial home in the following words: ‘When a question relating to grant of injunction restraining one of the spouses from entering into the matrimonial house comes before the Court, the Court has to deal with the same with utmost care and caution. Once a person becomes part of the house by reason of marriage, her right to reside in the matrimonial house cannot be denied. confers a right to reside in the matrimonial home on both spouses as well as their offspring. Such a right is a joint and one which cannot be taken away. The marriage carries a liability and the right to maintenance includes residence. Hence the spouse who has title to the house cannot deny the other the right in the matrimonial home.’ In Sunita Salvi vs Shankar Salvi 21 both parties had filed for divorce and subsequently agreed for a divorce by mutual consent, but the dispute concerning the residential premises continued. The wife that the flat was jointly acquired and hence both have an equal right, title and interest in the flat. The Family Court concluded that the wife had not paid any consideration or cost for acquisition of the property. Her name was added at the request of the husband. Hence she did not acquire any right, title and interest in the said flat. The court ruled that the wife’s petition claiming 50 per cent of the share in the flat was devoid of any substance. Against this decree, the wife approached the High Court. The flat was acquired after relinquishing tenancy rights in an earlier flat which was occupied by both the spouses. In view of this, the High Court held: ‘Though there was no tenancy in the wife’s name in respect of the premises vacated by the husband, the same was for the benefit of the family. The wife was also occupying the premises

injunction

preventing

Marriage indivisible

contended

20 II (2003) DMC 809 (DB) Cal. 21 I (2003) DMC 700 (DB) Bom.

along with the husband as a member of the family. The husband has also admitted that at his request, the wife’s name was added as co-owner. The admission is unambiguous and unequivocal. He specifically admits that the wife was to be treated as co-owner. Hence he is precluded from contending contrary to his admission. The flat is in the joint names of both spouses. From the very fact that the name of the wife was joined as one of the owners in the title deed, it will have to be presumed that the wife is entitled to an equal share in the said flat. The Family Court was not justified in refusing to recognise the wife’s 50 per cent share in the right, title and interest in the flat.’ The Family Court order was set aside and the wife was declared as a joint owner having an equal share in the matrimonial home. The court directed that if the property cannot be divided, it should be sold and the proceeds should be divided equally between the spouses. In February 2005, a Bench presided over by Chief Justice R.C. Lahoti pronounced a landmark ruling in the B.P. Achala Anand vs S. Appi Reddy case 22 which affirmed the rulings of the various High Courts since the 1980s and breathed new life into the right of women to the matrimonial home. It also incorporated into the Indian law, the legal dictum of the English law, ‘deserted wife’s right in equity’. Where a husband who was a statutory tenant of the matrimonial home, deserted his wife and left the house, the apex court held that the landlord could not turn her out so long as she paid the rent and performed the conditions of the tenancy. In its opening comments, the ruling reiterates the power of the judicial law making: ‘Unusual situations posing issues for resolution is an opportunity for innovation. Law, as administered by Courts, transforms into justice.’ The court referred to the legal principles under English law and approvingly quoted Lord Denning: ‘A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common Thus the husband can no longer turn her out of the matrimonial home. She has as much right as he to stay there even though the house does stand in his name.… Moreover it has been held that the wife’s right is effective, not only as against her husband but also as against the landlord’ (ibid.).

concern.

22 AIR 2005 SC 986.

The court further held that ‘we are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold — and we do so — that a deserted wife continuing in of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband. The tenant having lost interest in his tenancy rights as available to him under the law, the same right would devolve upon the wife so long as she continues in occupation of the premises. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution’ (ibid.).

occupation

protecting responding Statutory Recognition under the Domestic Violence Act

The Protection of Women from Domestic Violence Act 2005 has finally awarded statutory recognition to the judge made law the right of residence in the matrimonial home. This enactment is an important marker for the women’s movement in India which has confronted the problem of domestic violence for well over two decades. Its positive feature is that it frees the movement from the malaise that has plagued it for a long time, of attributing all categories of violence suffered by women within their families to ‘dowry’. It acknowledges that domestic violence is a widely prevalent and universal problem of power relationships rather than the culturespecific ‘dowry death’ and ‘dowry harassment’ phenomena. More importantly, it marks a departure from the penal provisions which hinged on stringent punishments and arrests without warrant, to the positive civil rights of protection and injunction. The Act provides the scope for protective injunctions against violence, dispossession from the matrimonial home and alternate residence. It also provides the scope for claiming economic including maintenance. The wide definition of domestic violence — physical, mental, economical and sexual, brings under

regarding

protection,

its purview the invisible violence suffered by a large section of women and entitles them to claim protection from the courts. The Act will lend greater credence to the woman approaching the courts for civil injunctions and restraining orders to protect her from domestic violence. Hopefully, it will also lead to a greater sensitivity towards women among the judiciary, and women approaching the courts for relief under it will no longer be viewed through biased lenses. The scope of protection against violence extends beyond ‘wives’ in legal marriages to not only daughters and sisters but even women in informal relationships. The entire gamut of women whose are suspect due to some ‘legal defect’ on the grounds that essential ceremonies were not performed or that the man or the woman has an earlier subsisting marriage can no longer be used to deny women the crucial rights of residence and maintenance. How this Act will unfold in the court rooms and whether it will open up floodgates of sexual promiscuity and weaken the premise of monogamy which governs the Hindu Marriage Act is yet to be seen. But for any matrimonial lawyer concerned with protecting women’s rights, be they wives, maidens or mistresses, the Act opens up new portals of hope.

marriages

In Conclusion

I have sketched the path that women have traversed from the time when marriages were deemed sacramental and indissoluble and the legal systems acknowledged the total dominion of the husband over the wife including the right to chastise her. Under English Common law, the husband had a right to whip the wife with a stick not thicker than his thumb, under a legally accepted notion called thumb rule ( Martin 1976: 30–32). Similarly several ancient smritikars had sanctioned chastising an errant wife through physical beatings. The transformation of marriages as dissoluble contracts provided the scope for women to negotiate their rights and enforce upon the husband contractual obligations including the right to shelter and human dignity. But the shift has been slow and painful and the new edifice of contractual marriages could be erected only through the personal struggles of women who staked their claim and endured gruelling court battles.

(lawgivers)

The legal strategies are formulated and legal battles are either

won or lost in the lowest court, termed as the ‘trial court’.A silent, yet significant, revolution takes place when victims of patriarchal

prejudices initiate legal proceedings to enforce their rights. The trial courts are the dynamic terrain where rights are constantly negotiated, interpreted and evolved. Very few cases reach the High Courts or the Supreme Court and even fewer get reported in law journals. So what we finally read in law journals is a mere tip of the proverbial iceberg. But they are important markers of the prevailing social reality and emerging legal trends. I have used them merely to etch the history of this struggle. In the section on the matrimonial home, I have confined the discussion to positive rulings. But these are few and far between, just a faint ray of hope. Mingled along with the success stories that culminated in positive case law, there are millions of others, of shattered dreams and lost hopes. While Rukhmabai’s case provides us a glimpse of the courage and conviction required to defy the patriarchal structures couched in nationalist pride and the colonial legal order, Seema’s case is an example of the aggressive legal strategy that a women’s rights lawyer is compelled to adopt in contemporary litigation. These two form the two ends of this wide spectrum. It is the endurance of Seema, and hundreds of women like her, who are willing to with their lives to push the boundaries of law beyond the realm of conventional parameters, that has helped to expand the scope of women’s rights. Their willingness to gamble within the legal arena from the shadows of their marginal existence has helped to refine our legal strategies. But not every case is a success story like Seema’s. The edifice of contractual obligations within relationships is built upon the tears, the pain, the despair and the desolation of these women. Upon these ashes, a newer has gradually emerged. To them I owe my understanding of family law litigation. I end this essay by acknowledging this debt and by paying tribute to these unsung heroines.

narratives experiment matrimonial structure References

Bromley, P.M. 1976. Family Law. London: Butterworths. Chakravarty, U. 1998. Rewriting History. New Delhi: Kali for Women. Chandra, S. 1998. Enslaved Daughters. Delhi: Oxford University Press. Martin, D. 1976. Battered Wives. New York: Pocket Books. Sachs, A. and J.H. Wilson. 1978. Sexism and the Law. Oxford: Law in Society Series.

Family, 10

Work

Matrimonial

and Property:

Implicatons

for and

Women

Children

Kamala Sankaran B. Sivaramayya’s illuminating book Matrimonial Property Law in India (1999) was perhaps the first comprehensive study of the in India. The book bears the imprint of his scholarship, the years of insight in the area of family law which many of us as former and later as colleagues, were fortunate to witness. Elaborating on the concept of matrimonial property, Sivaramayya (1999) went on to describe and analyse the different regimes of matrimonial that exist in India and also focused on the way forward for a gender-just development of this key area of family law in the country. In the Introduction he highlighted the low ownership of property by women in the world. ‘This position has arisen because of the social and legal failure to recognise marriage as an economic partnership also. The disproportionate holding of assets occurs primarily for three reasons: (1) Law and policies of the states do not recognise ‘domestic work’ as ‘productive work’ — even Marx does not. (2) Nature and nurture burden women with bearing and rearing of children. They are frequently forced to give up their careers to look after their homes. (3) Even when women take up jobs, they are confined to relatively low-paid ones’ (ibid.: xiii).1 In this article, I explore these

subject students,

property

1 I use the term ‘matrimonial property law’ in the sense in which Sivaramayya used it, namely, the ‘appropriate principles that should guide the division of assets on the termination of marriage’ (Sivaramayya 1999: 1).

Family, Work and Matrimonial Property

themes further, and examine in particular the gendered nature of work and the implications this has for women’s and children’s rights in matrimonial property. Importance

of Property

for

a Women's

Well-Being

It must be made clear at the outset that the issue of matrimonial property and its equitable division is a matter that concerns those families that have property; and that number is not small in India.2 It is well-documented that the ownership of property, in the form of land and other assets, is highly skewed in favour of men worldwide. In 1980, the International Labour Organisation (ILO) calculated that women do two-thirds of the world’s work for 5–10 per cent of the income, and own one per cent of the assets. The importance of enhancing women’s property ownership is for the sake of the of the woman, and also for the improved well-being of the family, particularly children. The link between women’s agency and social change has been forcefully brought out by Amartya Sen in recent times: he notes that ‘[t]he ownership of property can also make women more powerful in family decisions’ (1999: 189– 203; 192).3 The importance of wealth, in the sense of property ownership, to a person’s quality of life cannot be underestimated. Access to and control over property is a vital factor that determines a person’s standard of living, avenues of future income and sense of economic security. Ownership of a piece of land, however small, would often permit a family to eke out a livelihood. Thus it has been noticed that access to land is linked to incidence of rural poverty. In addition, it has been noted that having access to land ‘serves as collateral for credit and as a mortgageable or saleable asset during crisis, and bargaining position with employers ( Agarwal 1997: 39).’ Owning a ‘field of one’s own’ is not important for the family alone as a unit but particularly for the woman. Her social status and

empowerment

improves

2 Agarwal (1994: 362) notes that in 1982, the percentage of landless (i.e., owning neither agricultural nor homestead land) to total rural households in India was 11.3 per cent. However 62.4 per cent of these land-owning households had merely between 0.002–1.00 hectares (ibid.: 364). 3 Sen draws attention to the overlap between the ‘agency’ approach and the ‘well-being, welfarist’ approach while maintaining the distinction between the two conceptions.

Sankaran

well-being are directly connected to this ownership (Agarwal 1994). Of course, ownership of land by women may not necessarily lead to improved economic status. Often decision-making over the land is in the hands of men. Brahmanical customs and social taboos women from handling tools and means of production (such as the plough) needed for tilling land. In urban areas, access to housing is critical for survival. Huge sums are paid to gain the ‘right’ to set up a shop or slum on a pavement or plot of land. Access to housing implies that women who otherwise may not be able to venture out to work because of the need to look after small children or the aged, can engage in home-based work. Therefore the right to live in the matrimonial home (even if she does not have ownership rights over it) is an important right for the woman. Ownership of income-creating assets is also a source to future incomes. The micro-finance movement in the country shows that loans of even small sums of money generate significant amounts of capital, and this is used by women and men to buy some incomecreating asset or is used as seed money to set up a small livelihoodsustaining enterprises.4 In times of crisis, any asset owned by the woman can be sold or mortgaged. This provides her with a buffer and a fall-back option in times of need. In sum, ownership of is an important, though not complete, guarantee against poverty. It is also important to recognise that having a source of regular may often be an inadequate substitute for the sense of equality and empowerment that is provided by property ownership in an increasingly insecure environment.

prohibit

property income

Several writers have pointed to the positive link between women’s

access to property and enhanced bargaining positions both within the community and the family (cf. Jain and Banerjee 1985; Sen 1990). Thus, for instance, Bina Agarwal notes that this bargain both cooperation and conflict, and that ‘[t]he person who has a stronger fall-back position (better outside options), and/or whose claims enjoy greater legitimacy, would emerge with a more favourable outcome, although both parties would be better-off than if they did not co-operate (Agarwal 1994: 54–55).’ It has been noticed that women who have property are given greater respect and looked

involves

4 See, for instance, the First Report of the Committee on Empowerment of Women (2004–05) cited in ‘The Promise of SHGs’ (2005).

after better by their relatives. In the case of widows it has been noticed that those with access to property or income have a better status within the family and in society (Chen 1998). A recent study carried out in Kerala has shown that women owning immovable property (land or house) are found to face a significantly lower risk of marital violence than women with no property (Panda and Agarwal 2005). This would point to the need for women to have access to both property and incomes in order to improve their positions within the family and outside. Property rights for women are important in another sense too.

The extent to which their labour within the household and outside is rewarded with wages is also important given the manner in which household income is spent. It is well-documented that women’s earnings often go towards meeting food and other basic need of family members.5 For instance, it has been noted that in 1989–99, ‘one out of nine households [was] dependent on women’s earnings to meet half or more of her expenditure (Kishor and Gupta 2004: 694).’ Giving control over this income/property and thus also a voice in decision-making then may be beneficial not only for the woman but other members of the family too. Personal

Law

and

Matrimonial

Property

Ownership of property is primarily obtained through inheritance. Women who inherit property from their fathers usually waive this right in favour of the male kin, generally brothers, in order to good links with their natal family (cf. Jaising 1997; Kishwar 1994: 2145–67). Property could also be acquired through acquisition of savings out of one’s earnings. This is the backdrop within which the concept of matrimonial property becomes crucial and its and devolution critical to the position of women within the family and outside. The manner in which the property of spouses is controlled and its ownership determined, during marriage and at its dissolution, lie at the core of the debate over matrimonial Broadly speaking, in the regime of matrimonial property that we have for most communities in India, spouses continue to treat the property they bring into the marriage as their separate property.

maintain

disposition property.

5 The greater responsibility of women towards maintaining the household has been noted in Sardamoni (1991) and Menscher (1988), cited in Kodoth (2004: 1914).

The property acquired by either spouse during the period of continues to be the individual property of the spouse that the property. The valuation of the matrimonial property that may take place at the time of the death of the husband or at the time of the dissolution of marriage follows what Sivaramayya referred to as the ‘separation of property’ model. Under such a there is no corpus of ‘matrimonial property’ over which both spouses can exercise a claim, and related to that, there is no of an economic partnership between the spouses that would come into existence upon marriage. (While most of the country follows the separation of property model, in Goa, the Civil Code of Goa has elements of all these regimes (cf. Sivaramayya 1999: 10–11).) As a result, for many women, the initial corpus of wealth that they have at the time of marriage (including stridhan), together with accretions to their property that are made by their own effort or through gifts or inheritance, alone constitute the property over which they exercise ownership at the time of the dissolution of marriage. In many families in India the ‘breadwinner’ is the male and the woman, even if educated, gives up her job in order to run the house and look after children. It comes as no surprise that women’s chance of increasing their share of property during marriage (which also coincides with the bulk of their possible working life) is nil. In other cases, where the man is engaged as a self-employed businessman, small-scale entrepreneur, shopkeeper or farmer, the wife or child may well be engaged in helping out in his work. their role is perceived as that of a family helper and their to the eventual income from the business/land is never separately calculated or credited to them. The property of the husband (except for ancestral property in the case of Hindus belonging to the Mitakshara school) is treated as his exclusive property over which he has exclusive control.6 In the case of communities like the Hindus, the man can even of his property freely through his will and testament to the complete exclusion of his family members. Marriage not being an ‘economic partnership’ results in the limited capacity of the wife to claim rights over the property of her husband at the time of

marriage acquired

system conception

practically

However, contribution dispose

6 This discussion does not take into account the matrilineal systems of property devolution we have in some parts of India.

divorce.7 This has profound implications for the rights of the wife over matrimonial property. Assets such as the matrimonial house or movable assets purchased by the husband are treated to be his exclusive property. The contribution of the wife in creating his savings in the first instance through performing (unpaid) household work is not a relevant factor in India.8 One of the most important properties over which the woman would like to exercise some control usually is the matrimonial home. In case of breakdown of marriage or otherwise, it is this matrimonial home which is her only place of residence, her shelter. Given the fact that most marriages in India are patrilocal, with the woman moving to the residence of her husband, dissolution of marriage or her leaving the husband’s home because of domestic violence and her consequent loss of matrimonial home would also render the woman homeless. The Protection of Women from Domestic Violence Act 2005 now grants rights of residence (though not ownership) in the matrimonial home or shared household to the battered and estranged wife. The residence order passed by a magistrate under the Act can extend to restraining the respondent from alienating, disposing of or renouncing his share in the shared household or encumbering it. In certain cases, the magistrate can direct the respondent to provide the same level of alternate as enjoyed by the aggrieved person in the shared or to pay the rent for such accommodation if the circumstances so warrant.9 While this is no doubt a major step forward, we must

necessarily

accommodation household

7 The wife’s right to inherit the husband’s property is, of course, not under dispute. However, the fact that the husband is free to treat his property as entirely his own is borne out by the unlimited right to will away his property defeating claims of his wife in many religious personal law systems. And this right to inherit is not relevant when the marriage ends in dissolution. 8 Cf. Sivaramayya (1999) for a comparative perspective on this issue. 9 Thus, the Protection of Women from Domestic Violence Act 2005 provides for the rights of women to secure housing. It provides for the right of the woman to reside in the matrimonial home or shared household, whether or not she has an right or title to reside in such home or household. This right is secured through a residence order passed by a magistrate. Perhaps, in a notional sense then, the Act provides for each woman to ‘have a room of one’s own’ in the sense mentioned by Virginia Woolf (1929) given the small size of the dwelling units in most Indian homes. It must also be borne in mind that the Domestic Violence Act 2005 deals not only with the wife as the aggrieved person, but extends to those related by consanguinity, marriage or those living in a joint family.

not overlook the fact that the entitlement of the wife to the property in the matrimonial home remains an unfulfilled demand. We must also note the implications of another recent amendment that has enhanced the residence rights of women. The limited rights of residence for daughters (married or unmarried) in their family home have been reversed with the recent amendment to the Hindu Succession Act 2005.10 Thus, despite the rights to residence which have been enhanced in recent times, given the separation of property model that exists in India, with no acknowledgement for the household work put in by the wife, she is not a joint owner of any assets acquired during marriage by the husband. In case of the dissolution of the marriage through the husband dying intestate, the widow would be eligible for a share of his property according to the rules of the personal law governing them. The personal law for most communities accords the wife a status no higher than that of the children, thus completely ignoring her contribution to the household and family in the form of unpaid work. She is treated as a ‘beneficiary’ with no claims over the deceased husband’s estate, and could be willed out of his estate should he wish to do so. Even the provisions of Section 27 of the Hindu Marriage Act 1955 (HMA) that speaks of distribution of property received at or about the time of marriage fall far short of incorporating equitable principles of distribution of matrimonial property. Explaining Section 27 of the HMA, the Supreme Court had clarified that ‘[t]he expression “property presented on or about the time of marriage” used in Section 27 has to be properly construed to include such property which is given at the time of marriage as also the property given before or after marriage to the parties to become their “joint property”, implying thereby that the property can be traced to have connection with the marriage. All such is covered by Section 27 of the Act.’11 In a recent case, the Bombay High Court has cited this decision to clarify that property not given to the couple as their joint property cannot be the subject matter of an order under Section 27 of the HMA. Thus, property

matrimonial

property

10 The Hindu Succession (Amendment) Act 2005 has deleted Section 23 and now given all daughters — whether married or unmarried — the equal rights of residence, and to demand partition in the family dwelling home as sons. 11 Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam AIR 1997 SC 3562.

acquired by the couple by their own individual efforts and not given to them at or about the time of marriage to be held jointly, would not be property covered by Section 27 of the Act.Thus, it is necessary that for an order under Section 27 to be passed, the property must have been presented at or about the time of marriage to become their joint property.12 In the event of the dissolution of marriage by divorce, the wife would no doubt be entitled to maintenance. However, the right to maintenance is at best only a right to a regular payment, and cannot be equated with a right to property. Even this right to maintenance is subject to many conditions being imposed upon the wife which she has to scrupulously fulfil in order to continue receiving Maintenance is normally not granted as a capitalised sum in India, and thus, in the absence of a claim over matrimonial the woman usually has no means of using a lump sum to purchase any income-creating asset. In fact, the provisions for maintenance of the spouse (usually the wife) have to be understood in the of the legal position that any property owned/acquired by a spouse continues to be the sole property of the spouse (usually the male). Maintenance claims by the wife could thus be rationalised as the claims that the wife could make on the husband for the ‘matrimonial duties’ performed in marriage. Note however, that her claims upon the property of the spouse are restricted to a claim of maintenance, and never go so far as to claim a share in the owned/acquired by the husband in the marriage. Again, in the case of the claim to maintenance, she must perform her wifely duties in order to maintain her claim. The same may be the case for right to maintenance. The notion of a ‘good wife’ who performs her ‘matrimonial duties’ is a motif writ large in the different provisions of personal law in India. What exactly do these ‘matrimonial duties’ entail? Amongst other things such as the duty to engage in marital sexual (marital rape is not an offence in India), it would certainly include her duty to perform domestic work and run the household

maintenance. property context

property

children’s intercourse

12 Kamalakar Ganesh Sambhus v. Master Tejas Kamalakar Sambhus AIR 2004 Bom 478. In this case, even though the wife showed that she had made half the contribution for the construction of the house property, the Court held that this could not be the subject matter of an order under Section 27 of the Act, and set aside the order of the Family Court on these grounds.

by performing all the household labour expected of a ‘good wife’.13 Added to this is the idea that the man is the breadwinner and has the duty to maintain the wife,14 and coupled with that the right to determine the location of the matrimonial home.15 The notion that the man is engaged in production and the woman in reproduction, forms the basis of the notion that sexual division of labour is a universal truth. 16 This gendered understanding of the roles each spouse is traditionally expected to perform has never been seriously challenged by the courts. On the contrary, the failure to cook and look after children has been regarded as cruelty and constituting grounds to obtain divorce in India. This — that there is an inherent division of labour within the — appears to have been implicitly internalised by the courts. Further, the performance of matrimonial duties only gives the wife a right to claim maintenance/alimony, but the law has not been willing to recognise this as giving rise to a right on the part of the wife who undertakes the bulk of the domestic and care (whether with outside assistance or otherwise) to claim part of the husband’s property upon divorce as a claim she has upon the ‘matrimonial property’. The limitations in providing for the rights to maintenance alone when a marriage breaks up reveals itself in the greater impoverishment of women after divorce. It has been noted that marriage, for the woman, is an ‘economic arrangement for life’, and failure of the marriage often leads her into a life of poverty and dependence (cf. Mukhopadhyay 1998: 35–76).

therefore

understanding household

responsibilities

Unpaid

Work

and

the

Sexual

Division

of Labour

The gender stereotyping of women and the roles ascribed to women in the household is not unique to the personal law or the manner in which the private domain is constructed alone. Domestic work is 13 See Kalpana Srivastava v. S.N. Srivastava AIR 1985 All. 253 where the court held that failure by the wife to prepare tea for the husband’s friends, among other factors, amounts to cruelty. This could be read to be sufficient grounds to allow him to divorce her. 14 See, for instance, the gender unequal duty to maintain the wife that is cast upon the husband alone under the Hindu Adoption and Maintenance Act 1956. 15 See Kailashwati v. Ayodhya Prakash (1977) 79 PLR 216, Tirath Kaur v. Kirpal Singh AIR 1964 Punj. 28, Swaraj Garg v. K.M. Garg AIR 1978 Del 296. 16 It has been shown that, in agriculture, it is women who do the actual work in several communities in India. See Mazumdar and Sharma (1990: 185–97).

often monotonous, repetitive and physically taxing work. Cooking, taking care of children, and other arduous physical activity such as walking long distances to fetch water, or to collect firewood needed for cooking, to purchasing things from the weekly rural market are the kinds of chores most women perform on a daily basis. In urban areas it may entail being up all hours of the night for water, in queues for ration, dropping and collecting school-going children, etc. They could also be engaged in maintaining a kitchen garden or looking after household poultry and dairy activities (Kodoth 2004: 1914).

standing

Sociologists have distinguished between ‘family’ and ‘households’

in India and use the term ‘family’ for a wider group connected to each other through kinship and marriage whose members may live in more than one household, whereas members of a household live together, sharing a common hearth and worship. For the present purpose, we are using the term ‘household’ while describing the work performed by women within it, while retaining the term ‘family’ to describe the property division between the spouses since ‘family law’ or ‘personal law’ are the expressions used in legal discourse. A serious debate among scholars in different countries has the question of how women’s unpaid work within the should be viewed from the point of view of whether they contribute to the national economy, and whether this constitutes ‘work’. Traditionally, only paid work was considered as gainful The economist Alfred Marshall made the point that if he hired a woman as a domestic help the national economy would increase, but if he married her it would go down! In the 1961 Census, economic data collection was based on the definition of ‘work’, as ‘any person whose main activity was participation in any economically productive work either by his/her physical or by his/ her mental activity’ (Shimray 2004: 1698, 1702; Sen and Sen 1985: WS 49–56).’ In the 1971 Census, a ‘worker’ was one whose main activity in the reference year was economically meaningful work. In the 1981 Census it was recognised that people could work for different durations, and therefore two categories of workers emerged: main workers (working 183 days or more) and marginal workers (employed for less than 183 days). In all these cases, productive or meaningful work was understood as either work that was i.e., in a context of an employer–employee relationship or self-employment outside the household for profit (Shimray 2004).

concerned household employment.

defined

remunerative,

In the earlier censuses, the unpaid work done on farm and in family enterprises did not get included as economically productive or work. However, in the 1991 Census those workers who did un-paid work on farms or family enterprises were included even though they did not receive wages for the work done. Subsistence activities, i.e., production for own consumption was also included in the case of certain crops. The scope of the definition of work was expanded in the 2001 Census to include production of milk for domestic consumption.17 The Nairobi Forward-Looking Strategies for the Advancement of Women (1985: Para 120) stated that ‘remunerated and, in the unremunerated contributions of women to all aspects and sectors of development should be recognised, and appropriate efforts made to measure and reflect these contributions in national accounts and economic statistics and in the gross national product. Concrete steps should be taken to quantify the unremunerated contribution of women to agriculture, food production, reproduction and activities.’ The Copenhagen Declaration and Programme of Action: World Summit for Social Development (1995: Para 46) recommended, ‘Worldwide, most of this work is done by women who often face the double burden of remunerated and work. Efforts are needed to acknowledge the social and economic importance and value of unremunerated work … and to accord social recognition for such work, including by methods for reflecting its value in quantitative terms for possible reflection in accounts that may be produced separately from, but consistent with, core national accounts.’ The Platform for Action adopted at the World Conference on Women in Beijing

meaningful

particular,

household

unremunerated developing

17 In the 1991 Census, cultivation of certain crops even for self-consumption was treated as economic activity. The scope of the term ‘cultivation’ was expanded in the 2001 Census to include certain other crops such as tobacco, fruits, all types of flowers, roots and tubers, potatoes, chillies and turmeric, pepper, cardamom, all types of and fodder crops, etc. This meant that activities related to production of all the above-mentioned crops for domestic consumption has been classified under ‘plantation’ in the Census of India, 2001. See http://pondicherry.nic.in/open/depts/ecostat/ census/population.htm. The National Sample Survey Organisation also provides data on women’s employment. These surveys are conducted once every five years. They adopt a broader notion of work — it encompasses all activities pursued for pay, profit or family gain. Thus its data about the extent of women in the labour force is higher than that reached by the Census data. For further details see Report of the Study Group on Women and Child Labour (2001).

vegetables

in September 1995 indicated that efforts should be made in the direction of devising ‘suitable statistical means to recognise and make visible the full extent of the work of women and all their contributions to the national economy, including their in the unremunerated and domestic sectors, and examine the relationship of women’s unremunerated work to the incidence of and their vulnerability to poverty’ (The Beijing Declaration and the Platform of Action, 1996: Para 68). Despite these international efforts, the position in many countries continues to fall short of granting visibility to women’s unpaid work. The United Nation’s System of National Accounts (SNA) what could be considered productive in order to be counted towards the national accounts. These mainly correspond to what is considered ‘productive’ for the market (SNA activities). It ‘lists a large number of productive activities undertaken within the which are not included in the production boundary. For example, the production of domestic and personal services for consumption within the same household: preparation of meals, care and training of children, cleaning, repairs etc. (Unni 2001: 2360, 2370).’ These activities have been termed ‘extended SNA’ activities, while ‘activities related to learning, social and cultural activities, mass media and self-maintenance are categorised as non-SNA activities (ibid.).’ Thus, domestic work and ‘care work’ or what is also termed the work of ‘reproduction’ as opposed to production have been treated as extended SNA activities. In order to ascertain the amount of time spent by women on these extended and non-SNA activities, the National Sample Survey Organisation carried out a large-scale survey spread across six states in 1998–99.18 Observing the time-use pattern of respondent they were able to assess the time-use pattern of members over the span of a week (168 hours). On an average, women spent 19 hours a week on SNA activities (rural women spending up to 23 hours a week) while the corresponding figure for men was 42 hours. This can be understood in the context of the national

contribution

elaborates

household

households

18 A ‘Time-Use’ Survey was conducted in 18,591 households spread over six selected states, namely, Haryana, Madhya Pradesh, Gujarat, Orissa, Tamil Nadu and Meghalaya between 1998 and 1999. The main objectives of the survey were to collect data for properly quantifying the economic contribution of the women in the national economy and to study the gender discrimination in the household activities. For details see http://mospi.nic.in/t5_2.htm .

accounts treating ‘productive’ work for the market alone as

contributing to the national income. However, when it came to extended

SNA (domestic work and care work), the situation completely changed. Women spent longer hours, almost 35 hours a week to a low of less than four hours a week for men (roughly onetenth the time spent by women) in these activities. Women reported that they spent about 2.1 hours per day on cooking food, about 1.1 hour on cleaning the household and utensils. Participation of men in these activities was just nominal. Taking care of children was also mainly the women’s responsibility as they spent about 3.16 hours on these activities as compared to only 0.32 hours by males. In nonSNA activities, which pertain to learning, leisure and personal care, males spent about 8 hours more as compared to females.19 What are the implications of this for women? We can note from the data relating to SNA and extended SNA activities that women work longer hours a week compared to men. The view that women’s work never ends is borne out. The proportion of women’s work to the total of men and women’s work works out to roughly 55 per cent.20 Thus, if extended SNA activities were treated as activities the share of women would be greater. It must be noted that while there is a need for more activities by women to be treated as economic activities for the purpose of assessing their contribution to the household and the national income, much of the work of this nature that is performed is unpaid (even though an economic value may be imputed to it). Such may be performed either by family labour or through exchange labour. For the six states combined, payment was not made for about 38 per cent of the time spent in SNA activities. The amount of unpaid activities was higher in the case of women (51 per cent) as compared to men (33 per cent). The predominance of females in unpaid activities, which was visible in all the states, had great regional variation too. The percentage of time spent by women in unpaid

compared

compared economic performed

activities

19In order to place this data in an international context, we can compare the Indian data on time use with the data provided for selected developing countries. Women worked 116 percentage of the time worked by men. Of the total work time the proportion of time spent by men on market and non-market activities was 72 and 21 respectively. On the other hand women spent proportionately less time on market activities (40) and more on non-market activities (60) on an average. 20 The Human Development Report 1995, UNDP, notes an average figure of 53 per cent world-wide.

activities was highest in Haryana (86 per cent) and the lowest for Tamil Nadu (32 per cent). No doubt social, cultural and economic factors play a role in the regional variations. Where time has been used as a unit for measurement, as in the time-use surveys mentioned above, the amount of time spent by women to do domestic work has been a factor to incorporate unpaid work as economically productive work.Another way to do so has been to impute a monetary value to this work. According to experts, the most accepted method for this is the ‘third-party principle’ to which ‘domestic production refers to unpaid activities that can be performed by a third person for pay. Clearly this criterion includes tasks such as shopping, cleaning, food preparation and it does not include leisure or personal activities such as television or getting dressed (Beneria 1999: 295).’ What is very clear is that what Marx had referred to as the needed for the ‘reproduction of labour’, i.e., those activities carried on within the household for the worker to recoup and report for work the next day, are also now getting acknowledged as having value. Not just use-value, but these can have a monetary value ascribed to them as well. Thus, while examining the quantum of minimum wages payable under the Minimum Wages Act 1948 we can observe that while the law is silent about what elements the minimum wage should seek to cover, policy prescriptions and judicial decision have filled this lacuna. The minimum wage should at least meet the bare sustenance of an employee and his family. It also includes expenses necessary for his other primary needs, such as medical expenses to meet some education for his children,and in some cases transport charges, etc. The Supreme Court has approved the norms for fixation of minimum wages approved by the Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957.21 The five norms have been emphasised and enhanced in cases. The Court has held that in calculating minimum wage (i) the standard working-class family should be taken to consist of three consumption units for one earner, the earnings of women, children and adolescents should be disregarded; (ii) minimum food requirement should be calculated on the basis of a net intake of calories, for an average Indian adult of moderate activity; (iii) clothing

according childcare; watching activities

expenses,

further

21 Standard Vacuum Refining Co. of India v. Its Workmen 1961 2 LLJ 227 (SC), AIR 1961 SC 895.

requirements should be estimated as per capita consumption of 18 yards per annum which should give, for the average worker’s family of four, a total of 72 yards; (iv) in respect of housing, the rent corresponding to the minimum area provided for under the Industrial Housing Scheme should be taken into in fixing the minimum wage; and (v) fuel, lighting and other ‘miscellaneous’ items of expenditure should constitute 20 per cent of the total minimum wage. The Supreme Court added the following additional components as a guide for fixing the minimum wage (vi) children’s education, medical requirement, minimum including festivals/ceremonies and provision for old age, marriage etc., which should constitute 25 per cent of the total wage.22 The Court emphasised that the above six components are nothing more than a minimum wage at subsistence level which the employees are entitled to at all times and in all circumstances. It may be noted that no amount has been set aside for the cost of processing of food, as the cost of the purchase the required calorie intake in its unprocessed form is provided. The cost of cooking, cleaning, care-work and other domestic work performed by the woman is left out of minimum wage calculations. It may be argued that the minimum wage fixed by assuming that the invisible work is cost-less in effect results in the woman’s domestic work subsidising the cost to the employer in employing a worker at the (reduced) minimum wage. It is in this sense that the links between patriarchy and capitalism may be understood. What implications does this debate have upon the law of property? No doubt the family members’ perception of women’s contribution to the household income would be coloured by popular and economists’ conception of what constitutes ‘work’. Thus, invisibility of women’s work in the public domain would have serious implications for under-valuing the share of women in property. While the question can remain open about whether household work like cooking, cleaning and child-care contribute to the national income, there can be no doubt that they contribute to the family income and well-being as well, the two being There are many aspects to this argument. The subsistence work put in by women due to the sexual division of labour has been shown to be the basis that allows males to go out to work and

Government’s consideration

recreation minimum

domestic

matrimonial

matrimonial

interlinked. 22 Workmen v. Reptakos Brett & Co. Ltd. 1992 1 LLJ 340, AIR 1992 SC 504.

for their employers also to absorb the surplus value created. Thus patriarchy — which sustains the sexual division of labour within households — also creates the basis for the creation of surplus value for the capitalists (cf. Dalla Costa and James 1972; Mies 1982). Women often increase their burden of housework and caring

in times of crises and as a coping, survival strategy for the family in times of poverty and unemployment. It has been argued that the presence of a large pool of unpaid workers in the form of women act as ‘shock absorbers’ for the family to respond to the cyclical crises of capitalism (Glazer 1980: 259). The effect of the position of women in the economy also has an impact on the position of women within the family. I have already noted that under the separation of property model that we have for matrimonial property in India, the woman’s consists of the property she brings into the marriage and made to it. Assets purchased during the marriage usually by the husband are often times because of the unpaid work put in by women that contribute to the husband’s savings. If we were to use the ‘replacement cost’ model to ascertain the economic of the woman in the household, we would no doubt arrive at a figure that captures her share in the ‘separate’ property acquired by the husband during the marriage. This has in fact been the basis for the laws of many countries accepting the notion of matrimonial property. There is urgent need for the Indian law to incorporate some such similar system of matrimonial property (see Pradhan Saxena 1993; Sivaramayya 1999). The care-work performed by women also reduces the burden that families place upon support services provided by the state. Thus women’s labour allows the abdication of its duties to its citizens by the state. Poor hospital care, lack of adequate and affordable child-care and care services for the sick and aged add to the burden of women within the household. Caring labour which provides personalised attention and care to members of the family may be by feelings of love and compassion, but as feminist thinkers have pointed out it is also a gender-specific responsibility borne by women alone. (We see, for instance, that paternity leave is granted in limited circumstances in India, mainly to government employees.) While it may or may not have an economic value assigned to it, caring labour is essential for the proper development of members

property additions contribution

motivated

of the household, most particularly children and the aged.This is done often at the cost of personal careers or at the expense of other income-generating activities, but is difficult to reduce to an economic worth, particularly at the time of divorce. The debate over property is only now beginning to take into account the caring labour performed by women, while the domestic unpaid work component has been incorporated in several jurisdictions.

matrimonial

It is not just women who perform unpaid work within households

but also very often children, particularly the girl child. For instance, it has been pointed out that statistics on child labour frequently show a preponderance of boys rather than girls engaged in child labour. However, if unpaid activities are included under child labour, more girls than boys are engaged in child labour (Greenwork 2002). According to NSS data, the incidence of child labour was 3.8 per cent in 1999–2000 whereas it was 5.1 per cent according to the 1991 Census data. However, based on time-use surveys 20 per cent of boys and girls in the age group of 6–14 years participate in activities. They are engaged in unpaid or subsistence activities such as animal grazing, collection of fuel and fodder, farming and other services (Dev 2004: 741). This brings us to the obvious question of whether matrimonial property should be a matter that is an issue only between spouses? How do we assign shares for the unpaid work performed by children in the family, and how do we take care of their independent to economic assets in matrimonial property at the time of divorce? Unpaid family labour is an integral part of the lives of many children growing up in India. The Child Labour (Prohibition and Regulation) Act 1986 specifically acknowledges this work and makes clear that it is outside the scope of legal regulation. 23 This is, in fact, the basis for the distinction that is often made between child labour and child work (Sankaran 2004). This is an area that the developing law of matrimonial property must acknowledge and make provisions. The models of matrimonial property regimes that we have of other countries focus on the division of matrimonial property among the spouses. This does not take into account the contribution that of the house have made towards the corpus of ‘family’ property.24 Both where children perform paid employment outside the home

economic

contribution

children 23 Section 3 of the Child Labour (Prohibition and Regulation) Act 1986. 24 I do not use the term ‘matrimonial’ property here for obvious reasons.

and in cases where they perform unpaid work for the household or household enterprise/farm, there is a definite contribution household income and hence property.

towards

It may, no doubt, be argued that the parents are responsible for

the welfare and upbringing of the children and therefore it would not be correct that the children be allotted a share in the division of matrimonial property. However, in the event where the in the family perform paid or unpaid work, the situation could change. In order to give agency to the child it would be necessary that the child too be allotted a share commensurate with his/her contribution to the family property. To deny them their due would in fact constitute unjustified enrichment of the property of the father (and mother) in the case of a division of matrimonial propriety in the event of a divorce, or other heirs in the event of the death of a parent. Such a position would protect the child’s interest and be in conformity with the Convention on the Rights of the Child 1989.

children

Occupational Earnings

Segregation

by

Sex

and

the

Gap

Women’s property holdings within the family are currently low for reasons related to their (lower) employment levels and wages as well. Their capacity to obtain paid employment is lower than that of men, hence their earning —and therefore savings — capacity is reduced. The Labour Force Participation Rate (LFPR) is uniformly lower for women as compared to men. According to the Census 2001, rural LFPR for woman was 30.98 compared to 52.36 for men, and the corresponding figures for urban areas were 11.55 and 50.85 respectively (Dev 2004: 736). Even when women work outside the house, they work in low-paid jobs, their work is systematically and thus their earning capacity is reduced. Women workers are often found as agricultural labourers, construction workers and domestic workers — all of which are low paying (ibid.: 739). In fact it has been commented that ‘women are found to own and control so remarkably fewer assets and income than men, and are so less educated that it has been suggested that their class positions are uniformly lower than men (Harriss-White 2004: 27).’ The common feature of the work performed by women is that they work in low-paid occupations.

undervalued significantly

Women are often to be found in the lowest paid jobs that are repetitive, and often replicate the kind of work they perform at home. Thus domestic workers, who are invariably women, perform for remuneration the work they undertake within their own households. This aspect alone helps to keep the wages for domestic work low, as it is perceived as women’s work and thus not as valuable. The low significance and economic value ascribed to it within the household and the economy is mirrored in the lower levels of wages earned for similar kinds of work outside. It could be speculated that, in the long term, acknowledging the work done within the house by women as having economic worth would reflect in the higher comparable worth ascribed to work involving similar levels of skill, effort and responsibility in the workplace. The clustering of women into low-end jobs is also not entirely

attributable to their lower educational qualifications, indicating strong gender-based segregation at work in the labour market (Anant and Sankaran 2003). The gender segregation of women into lowend jobs is a feature that is to be found in all countries in the world. A law to deal with gender discrimination such as the Equal Act 1976 can deal with discrimination between men and women who are differentially paid for performing same or work; yet this law cannot cope with occupational segregation where women are clustered in low-status and law-paying jobs.25 Women are often concentrated in those jobs that reflect the carework they perform at home such as in nursing and teaching. It has been noted that women’s earnings, as compared to men’s, reflect an earnings gap in India. This is despite the fact that occupational by sex is lower in countries in Asia in comparison with the rest of the world ( Anker 1998). The gender gap in earnings and the persistent payment of lower wages in jobs where women are employed has been a feature of women’s employment world-wide.26

Remuneration similar

segregation

25 India does not yet have a legislative framework dealing with comparable worth allowing us to compare jobs performed by men and women. One reason for this is the reluctance of the government to bring about an amendment to the Equal Remuneration Act 1976 to replace the expression ‘same or similar work’ with the ILO mandated ‘equal pay for work of equal value’ contained in the ILO’s Equal Remuneration Convention No. 100 (1951). 26 The Equal Remuneration Act 1976 in India mandates that men and women should be paid equal wages for ‘same or similar work’. The ILO’s Equal Remuneration Convention 1951 (No. 100) uses the concept of equal pay for work of equal value — a formulation that has the potential to deal with occupation segregation by sex.

Thus it seems that women’s wages seem uniformly lower than those of men everywhere, and in agriculture for instance women on an average earn only 71 per cent the wages of those earned by men (Harriss-White 2004: 28). The implication of this earnings gap is that even where women work, their contribution to household income, and therefore to matrimonial property, is diminished. This is a factor that should be borne in mind while developing models for the of matrimonial property. While working women may bring in lesser amounts into the family kitty due to diminished wage levels at the workplace, we often find that their contribution to domestic and care-work is in no way diminished or shared because of their status as working persons. The double, nay triple, burden cast upon working women has often been commented upon. Thus the future or present earning capacity of women should not be a factor to the amount of matrimonial property they ought to be entitled to receive upon the dissolution of marriage. Not only do women earn less, their earnings are almost entirely spent on the household, leaving them with little or no savings. Thus, even within the family the working women’s capacity to create assets is far lower than that of men; yet at the time of the dissolution of this imbalance is not taken care of. Should the aspect of occupation segregation and the earnings gap be taken into consideration while deciding issues of the division of matrimonial property during a divorce? This does not appear to be the case internationally. Some of the problems that would law-makers and judges would be the difficulty (in the absence of empirical data) of determining by how much to compensate a working wife for such factors. While the gendered nature of work outside the house is a factor adversely affecting women, we must not lose sight of the fact that working women often increase their bargaining positions within the household. Characterising these as ‘co-operative’ conflicts, Amartya Sen (1990) points out that a woman’s ability to obtain employment outside the home considerably the perception of her contribution within the family to its economic resources. Restrictions that are placed by cultures in not allowing a woman to seek employment outside the home constitute an infringement of her liberty and quest for gender equity ( Sen 1999). Should such deprivations be compensated while dividing the corpus of matrimonial property at the time of divorce?This is

accretion distribution

discount

maintaining

marriage,

confront

improves

another issue that merits consideration. Thus, the economic factors that typically cast women into low-paying jobs, and the cultural prohibitions that prevent women from entering employment should be distinct factors that need to be kept in mind while developing a regime for matrimonial property division. Those who engage in care-work and domestic work within the house reduce their future earning capacity should they ever enter the labour market. The skills required for housework and care-work are not recognised as highly skilled, and they also have lower value ascribed to it. This is especially the case should there be a divorce, and women have to support themselves. ‘The human capital that housewives and/or househusbands acquire is less transportable than that of a partner who specialises in market work, leaving them in a weaker bargaining position in the family and economically to separation or divorce (Lee Badget and Folbre 1999).’

vulnerable Conclusion

There is a lacuna in the law inasmuch as it does not recognise a notion of matrimonial property in India. Barring the limited case of the Civil Code of Goa, the personal laws in India have yet to this gap. Section 27 of the Hindu Marriage Act 1955 does not suffice, as Sivaramayya himself convincingly argued. Given the limited rights to inherit property that women have in many religious personal laws and their lower levels of participation in the labour force, it comes as no surprise that the property ownership of women is limited. There can be no debate that ownership of assets is in the process of empowerment of women (cf. Agarwal 1994). Developing a suitable regime of matrimonial property in India would clearly require a close examination of the function of marriage and the role played by women in establishing, nurturing and caring for the members of the household. There is an urgent need to broaden the concept of what constitutes matrimonial property and develop a true recognition of a woman’s contribution to the and wealth of the household.27 The sexual division of labour within the household and the so-called ‘natural’ roles cast upon women to perform these tasks must be subject to close scrutiny.

acknowledge

invaluable

wellbeing

27 For an account of the legislative attempts relating to married women’s property, see Agnes (2000: 184, 255), and Menski (2003: 468).

While women may freely wish to continue to perform these roles, the question of the democratisation of relations within the and ascribing adequate worth, and therefore respect, for the women who perform this work is a matter of great importance for women’s equality. The skewed nature of the distribution of domestic and care responsibilities cast upon women in the household has to be recognised and made visible. Further, the close connections the perceptions of the nature of this work in the ‘public’ domain, the lack of adequate recognition of its economic worth and its invisibility in national accounts, on the one hand, and the reduced value ascribed to such work in the ‘private’ domain of the family by economics and personal law must be highlighted. Economics and law must inform each other in order that a real and correct of the contribution of women’s work to the well-being of the family is incorporated in a matrimonial property law in India.

household between picture References

Agarwal, B. 1994. A Field of One’s Own. Cambridge: Cambridge University Press. ———. 1997. ‘A Field of One’s Own: Gender and Land Rights in South Asia, Salient Features of the Book’, in Nitya Rao and Luise Rurup (eds), A Just Right: Women’s Ownership of Natural Resources and Livelihood

Security. New Delhi: Fredrich Ebert Stiftung, pp. 37–43. Agnes, Flavia. 2000. Law and Gender Equality. Delhi: Oxford University Press. Anant, T.C.A., and Kamala Sankaran. 2003. ‘ Economic Growth, Generation and Fundamental Principles and Rights at Work’, Background Paper for ILO-CIE Conference on ‘Globalisation, Decent Work and the ILO Declaration on Fundamental Principles and Rights at Work’, Kolkata, 24–25 February. Anker, R. 1998. Gender and Jobs: Sex Segregation of Occupations in the World. Geneva: International Labor Office. The Beijing Declaration and the Platform of Action. 1996. New York: The United Nations. Beneria, Lourdes. 1999. ‘The Enduring Debate over Unpaid Labour’, Labour Review , vol. 138: 287–309. Chen, Martha Alter (ed.). 1998. Widows in India. New Delhi: Sage Publications. The Copenhagen Declaration and Programme of Action: World Summit for Social Development. 1995. New York: The United Nations.

Employment

International

Dalla Costa, Mariosa, and Selma James. 1972. The Power of Women and the Subversion of the Community . Bristol: Falling Wall Press. Dev, S. Mahendra. 2004. ‘ Female Work Participation and Child Labour’, Economic and Political Weekly, vol. 39( 19): 736–44. Glazer, Nona. 1980. ‘ Women and Household Labour’, in Susan Fenstermaker Berk (ed.), Women and Household Labour. Beverly Hills : Sage Publications. Greenwork, Adriana Mata. 2002. ‘ Gender Issues in Labour Statistics’, in Martha Fetherholf Loutfi (ed.), Women, Gender and Work: What is Equality and How Do We Get There? Geneva: International Labour Office, pp. 3–20; rpt Rawat publications, Jaipur. Harriss-White, Barbara. 2004. India Working: Essays on Society and Economy . New Delhi: Foundation Books. Jain, Devaki, and Nirmala Banerjee (eds). 1985. Tyranny of the Household: Investigative Essays in Women’s Work. New Delhi : Vikas Publishing House. Jaising, Indira. 1997. ‘ Women’s Inheritance Rights in Contemporary ’, Nitya Rao and Luise Rurup (eds), A Just Right: Women’s Ownership of Natural Resources and Livelihood Security. New Delhi: Fredrich Ebert Stiftung, pp. 110–21. Kishor, Sunita and Kamla Gupta. 2004. ‘ Women’s Empowerment in India and its States’, Economic and Political Weekly, vol. 39(19): 694–712. Kishwar, Madhu. 1994. ‘Codified Hindu Law: Myth and Reality’, Economic and Political Weekly, vol. 29( 33): 2145–161. Kodoth, Praveena. 2004. ‘ Gender, Property Rights and Responsibilities for Farming in Kerala’, Economic and Political Weekly, vol. 39(19): 1914–920. Lee Badgett, M.V., and Nancy Folbre. 1999. ‘Assigning Care: Gender Norms and Economic Outcomes’, International Labour Review, vol. 138(3): 311–26. Mazumdar, Vina, and Kumud Sharma. 1990. ‘ Sexual Division of Labor and the Subordination of Women: A Reappraisal from India’, in Irene Tinker (ed.), Persistent Inequalities: Women and World Development. New York: Oxford University Press, pp. 185–97. Menscher, Joan P. 1988. ‘ Women’s Work and Poverty: Women’s to the Household in South India’, in Daisy Dwyer and Judith Bruce (eds), A Home Divided: Women and Income in the Third World. Standford: Stanford University Press, pp. 99–119. Menski, Werner. 2003. Hindu Law. New Delhi: Oxford University Press. Mies, Maria. 1982. Lacemakers in Narsapur: Indian Housewives Produce for the World Market . London: Zed Books. Mukhopadhyay, Maitrayee. 1998. Legally Dispossessed: Gender, Identity and the Process of Law . Calcutta: Stree Publications. The Nairobi Forward Looking Strategies for the Advancement of Women. 1985. New York: The United Nations.

Jurisprudence

Contribution

Panda, Pradeep and Bina Agarwal. 2005. ‘Marital Violence, Human and Women’s Property Status in India’, World Development, vol. 33(5): 823–50. Pradhan Saxena, Poonam. 1993. ‘ Concept of Matrimonial Property’, in Kusum (ed.) Women March Towards Dignity: Socio-Legal Perspectives. Delhi: Regency Publications, pp. 74–86. Report of the Study Group on Women and Child Labour. 2001. Government of India: National Commission on Labour. Sankaran, Kamala. 2004. ‘ Strategies to Eliminate Child Labour’, in Ved Kumari and Susan Brooks (eds), Creative Child Advocacy. New Delhi: Sage Publications, pp. 301–14. Sardamoni, K. 1991. Filling the Rice Bowl: Women in Paddy Cultivation. New Delhi: Sangam Books. Sen, Amartya. 1999. Development as Freedom. Delhi: Oxford University Press. Sen, A.K. 1990. ‘ Gender and Cooperative Conflict’, in Irene Tinker (ed.), Persistent Inequalities: Women and World Development. New York: Oxford University Press, pp. 123–49. Sen, Gita and C. Sen. 1985. ‘ Women’s Domestic Work and Economic Activity’, Economic and Political Weekly, vol. 20: WS 49–56. Shimray, U.A. 2004. ‘Women’s Work in Naga Society’, Economic and Political Weekly, vol. 39(19): 1698–711. Sivaramayya, B. 1999. Matrimonial Property Law in India. Delhi: Oxford University Press. The Human Development Report 1995. United Nations Development Project. ‘ The Promise of SHGs’. 2005. Economic and Political Weekly, 40(9): 696–97. Unni, Jeemol. 2001. ‘ Gender and Informality in Labour Market in South Asia’, Economic and Political Weekly, vol. 36(19): 2360–377. Woolf, Virginia. 1929. A Room of One’s Own. New York: Harcourt, Brace & Co.

Development

Suc es ion 11

Laws Gender

and

Justice

Poonam Pradhan Saxena The power structure in a civilised world is primarily governed by the control over material assets, the acquisition of which is largely contributed to by inheritance laws and family patterns. From times immemorial the framing of laws has been the exclusive prerogative of men, which they used to their advantage and extracted subservience from women. Women were necessary to maintain and continue the family but paradoxically an institution whose existence depended on their presence became the very place where they suffered maximum oppression.

unquestioned constitute,

The rules laid down by the patriarchal set-up did not permit her

to either acquire a roof of her own, or to own property. With no property of her own, her survival became her first problem because what her husband owned went to his collaterals. A widow’s in the Hindu community (legalised later) operated as a of her rights to acquire something from her husband’s estate. Her inability to be economically independent was due to a blanket denial of even a chance of self-development and ownership of to her. A lack of property rights maintained her dependence as her independence could strike at the root of the orthodox and discriminatory institution of the patriarchal family.

remarriage forfeiture

property

Contemporary Indian society has refused to give up traditional

ideologies and continues to emulate and perpetuate the age-old pattern of stereotyping of roles and ownership pattern of material assets. Men continue to be the owners, and women financially dependent on them. Despite some respite coming their way via

Succession Laws and Gender Justice

inheritance laws, granting women the right to inherit the property of the father or the husband, men are still perceived as the natural inheritors of property and women— with their now-not-so-new rights of inheritance— are perceived as share-snatchers even if what they want is their own share. Inequitable family laws, especially inheritance laws, buttress such societal attitudes. Patriarchal

Set-up

and

the

Culture

of Dependency

The passionate outbursts from parliamentarians at the time of the discussion on the Hindu Succession Bill 1954 are sufficient of the deep-rootededness of the stereotyping of roles within the family structure of India.While a daughter is to be married and compulsorily shift to the matrimonial home, the permanent place of the son is with his parents, as he is not expected to change his and move away from that of his parents even after his In this extended family system, he is visualised as an old age security for the parents, according them monetary, emotional, physical and spiritual support, and a son-centred economy ensures retention of the property within the family primarily for his benefit. These basic vectors are primarily responsible for the preference for sons. Unfortunately, the first lesson in sex discrimination and subjugation is given to the girl child by her own parents. This pattern also perpetuates a culture of dependency, whereby the son remains dependent on his parents for a home and they, in old age, become a burden on the sons. This vicious circle even the sons of a chance of flourishing and developing, and their sedentary lifestyle makes the onset of old age early. Parents are branded old the moment they get a grandchild and are expected to give up the charm of worldly pleasures, with life virtually stopping at the age 65 for an average person. The joint family system is in fact a hindrance to the healthy and natural development of women and the younger generation as it ties one generation to heavy and unnecessary duties, and ushers in a lazy and laid back, relaxed lifestyle for the other. It is very harsh on women and strengthens and perpetuates her subordination. It is a fact that men and women who move out of their homes in search of better avenues of employment or better prospects of life flourish in comparison to the ones who remain tied to their parental homes and are afraid to challenge the stereotypes. Yet the supporters of

indication

residence marriage.

economic deprives

Pradhan Saxena

this patriarchal set-up are plenty. It is seen as inherently desirable, and is even associated with religion and India’s ancient culture, so much so that a threat to the patriarchal joint family system is as a threat to culture. In modern India, the concept of gender equality is enshrined in the basic law of the land, the Constitution. The central question for this article is whether the institution of the Hindu Joint Family (HJF) is compatible with this fundamental guarantee of equality.1 Furthermore the very injunction laid down by the Article 14, i.e., prohibition on grounds of sex and religion, is flagrantly violated by a majority of inheritance laws in India. In light of Article 13, a of these laws even on the face of it could not have passed the test of constitutional validity; however, whether at all they have to pass the constitutional validity or not is in itself a subject of debate! Second, time and again the courts have justified the continuation of the laws not in principle but in the name of it being for the peace and harmony of the society. This article will analyse the diverse forms of discrimination against women supported by the multiplicity of succession laws.

perceived

majority discriminatory necessary Multiplicity

of Suc es ion

Laws

in

India

A number of succession laws are validly and simultaneously in India.2 This variation in the application of succession laws

operative

1 Article 14 ensures equality before law and equal protection of laws (meaning unclear) to all its citizens, while Article 15 prohibits the state from discriminating only on grounds of religion, race, caste, place of birth or sex. Article 15(3) dilutes the rigour, and permits the state to positively discriminate in favour of women and children, to make special provisions for them to ameliorate their social, political and economic status, and to accord them justice. 2 A predominant section of Hindus are presently governed by the general scheme of inheritance laid down under the Hindu Succession Act 1956. However, this Act is inapplicable to Hindus domiciled in the state of Jammu and Kashmir, Goa, the Union Territories of Daman and Diu, Renocants of Pondicherry, and Hindus who are members of scheduled tribes enjoying constitutional protection of their culture and identity. These groups are subject to different laws. Muslims are governed by the Islamic law of inheritance and Indian Parsis are governed by a separate law that is specified for them in the Indian Succession Act 1925. Christians in India also display wide variation. Goan Christians are governed by the Portuguese Civil Code 1867, while the general scheme laid down under the Indian Succession Act 1925 governs succession to the property of other Indian Christians, Jews, and all Indians who get married under the Special Marriage Act, and to the property of the issue of such marriages.

is linked with the religion of the parties, domicile and sect in the community to which the deceased belonged and even his form of marriage. The Hindu Succession Act 1956 has been amended in 2005 and has been hailed as a harbinger of equality. Without wanting to underplay the advances I will discuss some of the anomalies that still remain.

Concept of Joint Family Hindus legally recognise the Hindu Joint Family. In law, every Hindu family is presumed to be a joint Hindu family till the contrary is proved. Originally the property which the joint family owned was in the name of the male coparceners, but each and every member of the joint family had one or the other right over the corpus of the joint family property. These rights included the right of maintenance and of marriage expenses in case of unmarried daughters. Upon marriage a daughter ceases to belong to the father’s joint family and becomes part of her husband’s joint family as his wife. Within the joint family is the coparcenary, a narrower body of persons traditionally comprising only the male members. The senior-most male member and his lineal male descendants up to three immediate generations, i.e., father, his son, son’s son (grandson) and son’s son’s son (great-grandson) constituted a coparcenary. This of coparcenary was based on the son’s birthright in the joint family property. The legal ownership therefore was with the coparceners but with a moral obligation upon them to maintain the other members of the joint family out of this property. Under the classical law, no female could be a coparcener and consequently the owner of the coparcenary property and her rights over the joint family property were therefore reduced to a right of maintenance. Till a partition took place, all the coparceners owned the property and on the death of one of them his share was taken immediately by the rest of the coparceners under the doctrine of survivorship even in the presence of his female descendants. This ancient law was first modified in 19373 by granting rights to a coparcener’s widow in the property that he owned prior to his decease. These rights were not absolute and were terminable on her death or remarriage. Even during her lifetime her rights to enjoy the property were limited to enjoyment of the property and its

concept

jointly

3 The Hindu Women’s Right to Property Act 1937.

usufruct and her rights of alienation of the same were severely This Act was repealed with the enactment of the Hindu Succession Act— and by virtue of Section 14 of the later Act— the limited estate or ‘women’s estate’, as it was popularly, called was abolished and full ownership was conferred on a Hindu woman. The rule of survivorship was first modified by the 1937 Act, and then in 1956, by introducing in the Act, the concept of notional partition. Accordingly the undivided share of the coparcener on his death, and in presence of the female class I heirs or the son of a daughter, was deemed to be his separate property. This property was to go as per the general laws of inheritance and not in accordance with the classical law of doctrine of survivorship. This was done primarily to ameliorate the inequitable position of the daughter whereby she was denied any right over the ancestral Instead of abolishing the distinction and pattern of inheritance of ancestral and separate property, the legislature— while keeping the concept of the joint family intact— sought to give women a share of the ancestral property. The result, however, was still an distribution. 4 The much-publicised notional partition did give some comfort to the females but failed to bring in gender parity. The 2005 amendment Act has corrected this anomaly by making daughters coparceners and abolishing the doctrine of survivorship totally for male coparceners. However, it does not have anything in store for female heirs who enter the family through marriage, and all such Class I female heirs’ shares have dwindled as the available property of the male Hindu is now divided between the daughters and sons. This anomaly can be avoided by abolishing the HJF. Hindu joint family The Hindu Code Bill of 1948 had no room for the joint family system. It recognised only one kind of property, i.e., separate property, and had expressly abolished the right by birth in the coparcenary property available to the son.5

curtailed.

predeceased

property. unequal

4 For example, if the joint family (Hindu Undivided Family) consists of the father, son and daughter on the death of the father, the son will get half the property at the time of effecting the notional partition, the other half being the share of the father. Out of this half belonging to the father, the son and the daughter will share equally so that the son will get three quarters, while the share of the daughter will be a quarter only. 5 Sections 89, 90 and 91 provided for the abolition of the right by birth, replacement of joint tenancy by tenancy in common, and abrogation of pious obligations of the son, grandson or great grandson respectively.

However, the original Hindu Succession Bill (No. 13 of 1954, as well as No. 13 B of 1954) did exempt from the purview of the Act, properties governed by the Mitakshara coparcenary. During the debates on the Hindu Succession Bill in 1954–55, the views on the retention of joint family system were diverse, though ultimately those in favour of its retention were successful. Some members raised an apprehension that with the abolition of the joint family system the rights of the son will be adversely For instance, it was said, ‘in upper India the economy of every Hindu family is son-centered economy. I am not on whether it is right or wrong. This is a question of fact that the position of the son in a joint family is totally different from the daughter. The son will continue the lineage and will carry on the name. The father and the son live with each other day and night, work and earn together, to maintain the family. For the girl it is her re-birth after marriage. Her self is merged with her husband and she works for the betterment and prosperity of that family’.6 Some members expressly said that a girl and a boy are primarily unequal and it is therefore futile to talk about economic equality. Although a woman is respected in the same manner as a man within the family, it is primarily a man who shoulders the responsibility of maintaining the family. As no female is accorded with this burden it is therefore not proper that for a little money or property such a situation should be created which can end only in disputes. The present social set-up is entirely different from that of the time of the Dharamshastras. Accordingly, either the joint family set-up should be abolished or the distinction between the separate and the ancestral property should be done away with. The seriousness of the legislature in pursuing gender equality is doubtful when in spite of the opposition, they allowed the of the joint family system. There is a pervasive social view that a right to inherit the joint family property belongs to the son and a contrary wish will lead to uprooting of the family structure. Long and continuous adherence to the inequitable principles is no justification for their retention or perpetuation. The abolition of the division of joint family property into separate and ancestral property will help to correct the injustice to the widow and will be in tune with the constitutional principles of equality.

parliamentarian’s affected. commenting family

continuation

6 Lok Sabha Debates, Part II (1955: 8107–212).

The only purpose served by a statutory recognition of the HJF is to enable the Karta, to claim tax benefits. Otherwise, if members of one family want to live together as a unit, they don’t require any legal permission to do that. The extended family system is an feature of South-East Asian society cutting across religions and communities and this system would never disintegrate only because the joint family system is abolished in theory for Hindus. The Kerala legislature abolished the HJF in 1976.7 Other states have introduced unmarried daughters as coparceners.8 The best step for the central legislature would be to abolish the joint family and ancestral property system altogether.

inherent

The Amending Act of 2005 By retention of the joint family system and introducing daughters as coparceners, the legislative efforts to usher in gender parity have resulted in abundant confusion. Under the classical law, a female could not be a coparcener, but a daughter born in the family was a member of her father’s joint family. Upon her marriage she ceased to be a member of the joint family as well and joined the joint family of her husband. Presently, under the amending Act 2005 a daughter has been made a coparcener in the same manner as a son, i.e., irrespective of her marital status she would be a member of her father’s joint family. The anomaly is on two counts. First, a daughter who was married on the day the amendment came into force would not be a member of her father’s joint family as upon marriage a daughter ceases to be a member of her father’s joint family, but due to the amendment would become a member of a narrow institution within this undivided family, i.e., coparcenary. Second, this of the HJF system with a superimposition by way of of daughters as coparceners, without fundamentally altering the basic structure, is perplexing. A daughter who is born in the family will be a coparcener and a member of the joint family of her father. She retains her rights to be coparcener even after her marriage, and consequently, upon her marriage she would be a member of two joint families at the same time, one of her father, and the other

retention introduction

7 The Kerala Joint Family (Abolition) Act 1976. 8 The Andhra Pradesh Hindu Succession (Amendment) Act 1975; The Tamil Nadu Hindu Succession (Amendment) Act 1989; The Maharashtra Hindu Succession (Amendment) Act 1994; and the Karnataka Hindu Succession (Amendment) Act 1994.

of her husband. Further, her own daughter would be a member of two joint families by birth, one that of her own father and the other of her maternal grandfather, and third upon her marriage of that of her husband. This incongruous situation could have been avoided by a simple abolition of the joint family system. Another myth is that a female under Hindu law inherits in a double capacity. She inherits as a daughter from her parents and also inherits as a daughter-in-law from her husband’s family. As far as the rights of a daughter-in-law are concerned, she has to be a widowed daughter-in-law.9 If she remarries before the day of the opening of the succession she forfeits her rights of succession and if her husband is alive she is his wife, and the primary right of inheritance is with him and not with her, and therefore a daughter-in-law simpliciter is not eligible to inherit at all from any of her relatives. Succession for male and female intestates Under the Hindu Succession Act the provisions for two entirely different schemes of succession on grounds of the sex of the intestate creates a distinction between the male and female intestates.10 There is a further in case of female intestates linked with the source of the property that is the subject matter of inheritance. Thus, where a woman inherits property from her parents, and dies issueless, this property on her death does not go to her own heirs but goes to the heirs of her father. Similarly, where she inherits the property from her husband or her father in law, on her death this property goes to her husband’s heirs from whom or from whose father she had inherited the property. The subdivision of the schemes of succession in case of female intestate is outdated and irrational. The heirs are not described as brother, sister, her brother-in-law etc., but as heirs of her parents, and heirs of her husband. She is perceived as having no identity of her own. The legislature while framing this scheme was very much influenced by the whole Mitakshara law, its concept of stridhana and inheritance by a female in a double capacity. This reversion of the once-inherited-property back to her father’s or her husband’s heirs shows a desperateness on the part of the legislature to treat her only as a temporary occupier.

divergence

9 The Hindu Succession Act, Section 24. Although this section has been deleted by the Amending Act of 2005, yet the effect remains the same. 10 Sections 8–13; 15–16.

The present amendment continues the trend of saving the

property acquired by a female for the natal relations in case she dies issueless. As pointed above, in case of female intestates the inheritance scheme is linked with the source of acquisition of the property

left by her. As she has become a coparcener now, the legislature has avoided giving a straight rule with respect to devolution of the interest in case of her demise without children. Does this mean that now a fourth category has been added to the kind of properties available for succession in case of female intestates, or do hints have to be taken from the language of the Amending Act? Section 6(2) provides that

coparcenary

Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

coparcenary

One of the inherent features of coparcenary is the doctrine of i.e., on the death of a coparcener, his/her interest is taken by the surviving coparceners, and nothing is left for the other legal heirs. In the absence of the children, the only legal heir of a married female intestate would be her husband, and of an unmarried female her mother and father, but coparceners who would be entitled to the benefit of the doctrine of survivorship would be her brothers and father. While the doctrine of survivorship has been expressly abolished in case of male intestates it seems to remain applicable in case of female intestates. This appears to be an attempt of the to conserve the interest that a female holds as a coparcener in favour of her natal relations, and therefore neither her husband (in case she is married) nor her mother (in case she dies unmarried) would get her property. This scheme of succession 11 ignores the primary purpose of laws, i.e., in the absence of any express or specific instructions of the deceased such a distribution should be effected of her property that she in normal course as a reasonable person would make of

survivorship,

legislature

succession

11 Where a married woman dies issueless her property devolves on the heirs of her husband and not on her own blood relations.

her own property. A person normally is bound to be influenced more by consideration of blood than of marriage. A woman would therefore prefer her blood relations to her husband’s relatives to be her heirs. This provision goes against the reciprocity of as well. The entire group of husband’s heirs howsoever remote have been made her heirs, but she is not entitled to inherit from them. Among the remoter heirs of a male intestate, all those related to the intestate through a male are preferred to those related through a female. An analysis of these provisions shows the relegation of the inheritance rights of a woman to a very inferior position.The laws have created inequities in the context of fast-changing social needs. These laws might have been acceptable to the social of bygone times but reviewed in light of the present situation, i.e., gradual replacement of undivided families by nuclear families and social and political awareness, and the resultant change in the status of women has made them totally outdated. If a woman has her independent economic existence then it is not possible to subject her to social oppression with that amount of ease with which it is possible to subject her to that oppression if she has no economic existence. Succession may not be the whole of emancipation but there is no gainsaying the fact that the rights of succession are at least 90 per cent of the economic and the other factors would be largely affected and influenced by the fact that a woman has the right to succeed to the property of her father or to her relatives in the same manner as a man. As India relies heavily on legislation to bring in social reform and ensure removal of inequality and discrimination, the necessity is to review the present succession laws and to bring the position of women at par with men.

inheritance

conditions

economic emancipation independent Multiplicity

of Rules

of Suc es ion

Multiplied

Hindus in the Union Territories of Daman and Diu Under the laws relating to Hindus in the Union Territory of Daman, the widow surviving her husband has only a life interest in his terminable after her remarriage or death, and under the Diu code, she has only a life interest over the usufruct of the property of her deceased husband. In converse situations, whatever little

property

property she may leave behind in the event of her death goes to her husband absolutely. Further, as a general rule all female heirs and their descendents are excluded by the male heirs present in the same degree of to the deceased or their male descendants. For example, a daughter or a sister and likewise their descendants will be completely excluded from inheritance in the presence of the son or brother or male descendants. If the father dies and is survived by one son, one daughter and children of a predeceased daughter, the son will be to the total property while the daughter if living, and the children of the predeceased daughter, will be totally excluded having no claims over the property of the intestate.

propinquity entitled Muslim Law

Indian Muslims are governed by the uncodified quranic principles of inheritance coupled with the traditions of the prophet, legislative enactments and the judicial decisions. Muslims are broadly divided into two sects, Sunnis and Shias. Sunnis divide the heirs of an intestate into three categories: sharers, who have fixed shares (also called the quranic sharers); residuaries, who get the residue left after the satisfaction of the sharers of the sharers; and distant kindred, whose turn to inherit comes only when none of the other heirs of the intestate besides the spouse is present. ‘Distant kindred’ is a term that refers to those blood relations of the deceased who are related to him through a female link. Under Shia law the heirs are divided into two categories, sharers and the residuaries, and thus apparently the sex-linked is less severe. An additional feature of Islamic law is that there is a general prohibition on the testamentary powers of a Muslim, and normally only one-third of the property can be bequeathed unless the heirs whose share is likely to get adversely affected give their consent to the excess bequest. Thus, normally at least two-thirds of the property must go by succession. Under Hanafi law of Sunni Muslims not just females but their offspring and other are also relegated to an inferior position in comparison to their male counterpart. Here, except the intestate’s daughter, son’s daughter, sister, mother and true grandmother, all the female agnates and all cognates are excluded by the male relations howsoever remotely related they may be. For example, if a Muslim dies leaving

discrimination

descendants

behind a son and children of a predeceased daughter, the son will take the whole property to the complete exclusion of the daughter’s children. Further, if a Muslim intestate is survived by the predeceased daughter’s children, and son of a predeceased son of the deceased father’s brother’s son’s son. In this case also the daughter’s children being female descendents will be completely excluded by this remoter male agnate who will inherit the total property. It is but natural that the need of the orphaned children of the daughter for financial will be greater than the descendants of the grand-uncle as their upbringing can be drastically affected in the absence of a financial provision made for them. Contemporary society is vastly different from the 7th century set up where these rules might have been suitable, and today, to make a remoter collateral an heir over the second generation of does not seem to be appropriate. Under the Ithna-Ashari law of Shia Muslims a childless widow is not entitled to succeed to the immovable property, such as land of her husband whereas on the death of a woman, the childless husband does not suffer from such a disability.12 Such a disparity between their rights is irrational and should be done away with. Further, Islamic law gives to the females in general a share equal to half of the share of the male counterpart standing in the same degree of propinquity.13 Under Muslim law— both Sunni and Shia— a daughter though a quranic sharer can be excluded by customs and statutes.14 Though at variance with the quranic principles, these customs and statutes are valid and treat a daughter as non-existent at the time of the of the succession. In some communities in Jammu and Kashmir, a daughter can succeed only in the absence of all male agnates of the deceased, while in others she can inherit only if she is a Khananashin. A daughter is also not entitled to inherit the watan land under the Watan Act 1886 (Bombay). The Oudh Estates Act 1869 that follows the rules of primogeniture for devolution of the taluqdari properties also excludes the daughter and her heirs.15

assistance

descendents

opening

12 Diwan (1985: 208). A childless widow, in absence of all other relations of the deceased, only can inherit his total property following the doctrine of radd; see Abdul Hammed Khan v. Peare Mirza AIR 1935 Oudh 78. 13 Tandon (1984: 298); Hidayatullah and Hidayatullah (1977: 66); Diwan (1985: 169). 14 See Aziz Dar v. Fazil, AIR 1960 J&K 26; see also The Watan Act 1886. 15 Ghulam Hassan v. Saja, AIR 1984 J&K 26; Mohammad Zia-ullah v. Rafiq, AIR 1939 Oudh 213; Abdul Latif v. Abadi Begum, AIR 1934 PC 188.

Parsi Law Parsis came to India around 716 AD to escape religious persecution from Persia, adopting the custom of the place where they first took shelter: a panchayat-administered civil and criminal matters while in personal matters they were governed by the decision of the priests. During British rule, a parallel system of administration governed the Parsis residing in the moffussil area and those residing in the Presidency areas. For moffussil Parsis, their customary laws applied but those living in the Presidency areas were subject to the rules of the British common law, where the widow had an absolute right over one-third of the property in the presence of the descendents in the Presidency areas (a woman in the moffussil area had only a right of maintenance over the property of her deceased husband). This dual system continued till 1865, when a uniform law was enacted for all Parsis, i.e, the Parsi Intestate Succession Act 1865. Till 1939, under the Paris Intestate Succession Act 1865, the share of the widow of an intestate was half of the share of the son, and the daughter’s share was one-fourth of the share of the son. After the consolidation of this Act in the Indian Succession Act 1925, the later Act was amended in 1939, and the share of the daughter was increased to and made half of the son’s share.16 A move from the Parsi Anjuman themselves led to equalisation of shares of the son and daughter by the Parliament in 1991.17 The Amending Act of 1991 effaced the long-standing discrimination against women under the Parsi law of intestacy. Section 5(1) (a) of the Indian Succession Act now reads: ‘subject to the provisions of sub-section 2, the property of which a Parsi dies intestate shall be divided where such Parsi dies leaving a widow or a widower and children, among the widow or widower and children so that the widow and widower and each of the child share equally.’ Commenting on the above provision, B. Sivaramayya observed that ‘legislative indifference to discrimination against women is so deep-rooted that one should feel thankful to small mercies.’18

Goan Laws Goa was a Portuguese colony till 1962, when it was liberated and annexed to India. The Portuguese Civil Code was passed in 1867, 16 See the Indian Succession (Amendment) Act 1939. 17 See the Indian Succession (Amendment) Act 1991. 18 Sivaramayya (1991).

and as early as in 1868, it was promulgated in its overseas colonies including Goa, Daman and Diu. Based on the Napoleonic Code, it codified almost all of civil law on the substantive side, and with its application, the existing laws in the provinces were repealed. Presently, the Christian community in Goa, Daman and Diu is governed by this Code. Under this Code, the widow is placed in an inferior position. She inherits only when none of the intestate’s lineal descendants, ascendants, brothers, sisters and their is present.

descendants Unequal Rights of Parents

Another drawback is related to the unequal rights of parents under two major succession laws and their consequences. Under the Indian Succession Act 1925, for succession to the property of an intestate the father is preferred to the mother,19 whereas under the Hindu Succession Act 1956, both under the general scheme and the special rules relating to Marumakkatayam and Aliyansantana laws, a opposite situation is provided. Here the mother is to the father.20 The provisions are puzzling and the unequal placement, devoid of any rationale, can lead to totally incongruous results. For example a Christian couple could separate from each other under a decree of divorce with the mother getting the custody of the child. The father remarries and is totally engrossed in his new family. The mother brings up the child, educates him/her and sees him/her well-settled in life. If this offspring dies without getting married, and with both the parents surviving, due to the operation of the Indian Succession Act 1925, the property will go to the father with complete exclusion of the mother. The provisions excluding one parent in presence of the other appear to be irrational and illogical. To exclude the mother in the presence of the father ignores the role that the mother plays in the upbringing and settlement of the child from the beginning to the attainment of maturity. in majority of cases she is financially dependent while the father would be economically secure. Hence the rule should not be that one has to be preferred to the other but both should be treated at par.

diametrically preferred

Additionally, 19 Sections 41, 42 and 33(b). 20 Section 8, The Schedule I.

Relegation of Uterine Relations at an Inferior Placement Except under the Indian Succession Act 1925 and the Portuguese Civil Code 1867, as is applicable in Goa, Daman and Diu, all other laws relegate the uterine blood relations21 to an inferior footing in comparison to the half-blood relations.22 The distinction between the rights of the two is again a preference to the paternal relations over the maternal relations. Both the uterine and the half-blood relations share one common parent, the mother or the father, but half-blood relations are some times treated at par with the full blood but are always preferred to the uterine relations,. The latter are sometimes totally excluded in presence of not only the full blood but also by the half blood relations.23 Devolution

of Agricultural

Property

in

India

In India, more than 75 per cent population lives in villages and an approximate equal quantum of land, if not more, is agricultural land. Succession to the agricultural land is not uniform. Rather than based on the religious criteria, it is more in line with state-being wise variations and the kind of interest in agricultural property that is available for devolution. A major development in the 2005 amendment of the Hindu Succession Act is that the provision under Section 4(2), providing that the Act did not apply to agricultural property, was deleted. However, there is no express provision in the Act that extends the application of the Hindu Succession Act 1956 to agricultural property. The opening words of Section 4(2) were, ‘For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural 21 Two persons are said to be related to each other by uterine blood when they are descended from a common ancestress (mother) but are from different fathers. 22 Two persons are said to be related to each other by full blood when they are from a common ancestor by the same wife, and half-blood when they are descended from a common ancestor but by different wives. 23 An exception to this is the Islamic law where the uterine brother and sister are sharers. However, see the Hindu Succession Act 1956, Section 18, and explanation to the schedule; The Indian Succession Act 1925, Section 54(d) and the schedule.

descended

holdings or for fixation of ceilings or for the devolution of tenancy rights of such holdings’ (emphasis added). By removing this the doubts have resurfaced: can the application of this Act be extended to agricultural property or not? The problem arises because ‘Land’ is a state subject, and the Hindu Succession Act is a piece of central enactment. The normal rule of preference of central legislations over state legislations in case of a conflict cannot be applied in cases where the competency of the Union to legislate on a particular subject is doubtful. Presently, it is not clear whether the Act applies to agricultural property or not. If it does, then there is again a peculiar situation. The laws vary with the states, but within a particular state all the land is subject to a uniform rule irrespective of the religion of the holder. Now if the Act, after amendment applies to agricultural property, it would mean that land belonging to Hindus would be governed by the Hindu Succession Act, while land of people belonging to other communities would be governed by the state legislations. The Muslim Personal Law Shariat Application Act 1937 also provides for exclusion of agricultural property from the purview of the Act. The guiding factors here seem to be the autocratic principles passed off in the name of redistributive justice but which expressly inculcate the patriarchal notions of invisibility of female in the ownership and control of land rights.

provision

participation Multiple Rules of Devolution for Agricultural Property

For the purposes of understanding succession to agricultural the interests in agricultural property can very broadly be in two categories: agricultural property that is owned like any other property by an individual and property in which a person has legal and heritable cultivating rights (also called ‘tenancy rights’). In the latter category the practical ownership is with the cultivator. He is the owner for all practical purposes, but the reason why he is called a ‘tenant’ is that instead of paying revenue to the state, he pays rent. Agricultural land or the tenancies can be governed by any of the three following laws:

property, classified

(i) by the respective personal laws where the religion and the tribe of the owner are the predominant considerations for determining which law will govern succession to the property;

(ii) the land is subject to the rules of a special law that is passed by the relevant state; (iii) neither the state nor the center provides for any law, and the presumption applies that it is the personal law of the holder of the land that governs its devolution. In several states, even though the land is subject to the rules of an enactment tenancies, these laws do not provide for its devolution in the event of the death of the holder.

governing

The first set of laws governing agricultural property is the personal laws. The term ‘personal law’ here denotes the respective religion-based laws of the cultivator or the holder of the land, i.e., Hindu Succession Act 1956 for Hindus, Islamic law for Muslims, and so on. The majority of the laws governing tenancies display a marked variation in the order of succession of the land. North Indian states prefer agnatic succession, i.e, property going to the male descendants in the male line of the holder of the property. Females are either totally excluded or are relegated to a very inferior placement. property goes in accordance with the personal law of the parties in the state of Rajasthan, 24 Madhya Pradesh,25 and some parts of Andhra Pradesh.26 Though under the Hindu, Parsi and Christian laws the share of the son and the daughter is equal, for the Muslims the daughter’s share is half of the share of the son in these states.

Agricultural

In the second category are states subject to a specific law providing

for devolution of agricultural land or tenancies.27 Here, the property in the first instance goes to only the male heirs in the male line of descent.28 The third category are states that do not have either a law providing for the devolution of agricultural tenancies nor a specific mechanism for the application of relevant laws, and therefore there 24 The Rajasthan Tenancies Act 1955 (Act 3 of 1955). 25 The Madhya Pradesh Land Revenue Code 1959 (Act 20 of 1959). 26 The Andhra Pradesh (Andhra Area) Tenancy Act 1956 (Act 18 of 1956). 27 Delhi, Haryana, Jammu & Kashmir, Punjab and Uttar Pradesh. 28 While in Delhi and Uttar Pradesh the turn of daughters and sisters to inherit is very low in the hierarchy of heirs, they are totally excluded in Haryana, Jammu & Kashmir and Punjab. The turn of the widow to inherit comes only in the absence of these male heirs. Further, the females— whatever may be their eligibility criteria or category— can have only a lifetime’s interest in these lands terminable on their death, or remarriage or if she abandons it, i.e., fails to cultivate it for a specified period (usually a year or two).

is only a presumption that in the absence of any other law, it is the personal law of the parties that will govern succession to agricultural tenancies as well.29 Another problem that compounds the confusion is the fact that

the term ‘tenancy’ does not have a general definition that applies to land of every state. It has been defined differently under different tenancy laws. This also leads to another complication when, in of a clear directive from the legislature, the presumption of ‘sons as the natural inheritors of the land of the father’ continues to be applied in several states.

absence Discriminatory Ceilings on Agricultural Land Holdings

Primarily prompted by the egalitarian concept of prevention of of economic power in the hands of a few individuals to the detriment of the majority, the maximum agricultural land that a family of up to five members can hold is fixed by the respective state government. These legislations fixing the ceiling on land are uniform in application, i.e., they apply irrespective of the religion of the parties and the personal law they might be adhering to. Thus, the discrimination in allotment of land resources among the rural sector cuts across the caste and religious lines. In majority of these laws, families with adult sons are allowed to keep additional land, or an adult son on his own as distinct from the family gets the status of an independent family unit and can hold land that can be held by an entire family as a unit. However, families with adult daughters, married or unmarried, are neither allowed to keep additional land, nor do the majority of such laws treat daughters as even members of the family. In many land even minor married daughters cease to be a part of the family on marriage. It is extremely unfortunate that the term ‘family’ in itself has been defined almost uniformly as excluding adult married daughters. The inequalities start with the definition of the term ‘family’ In general, with some minor variations, the family is defined as consisting of the cultivator, his/her spouse, minor sons and unmarried minor daughters. Here the husband is counted as an independent unit while the wife is not counted as an independent unit.Families

concentration

legislations

itself.

29 West Bengal, Kerala, Tamil Nadu, Karnataka, Orissa, Maharashtra, Bihar and Gujarat.

having adult sons get additional land in some states (Delhi,30 Punjab,31 Haryana32 and Uttar Pradesh33) while adult sons are treated as separate units in other states (Haryana, 34 Himachal Pradesh,35 Rajasthan,36 Bihar,37 Gujarat,38 Madhya Pradesh,39 Maharashtra,40 Andhra Pradesh, 41 and Tamil Nadu42). It is only in the state of Kerala that an adult unmarried daughter is treated as a separate unit.43 It is surprising that even in the states where unmarried daughters

have been introduced as coparceners, the definition of the family in the agricultural laws remains unaffected. 44 It is a clear indication of the legislature and the judiciary’s intention to treat the joint family property as distinct from the agricultural property. The Land Reform Acts therefore are, as a rule, gender-unjust more so as the fixation of ceilings that were primarily meant to ensure equitable distribution of land reflects the stereotypes denying ownership in the land by women. 30 The Delhi Land Holdings (Ceilings) Act 1960 (Act 24 of 1960). 31 The Punjab Land Reforms Act 1972 (Act 10 of 1973). 32 Haryana Ceiling on Holdings Act 1972 (Haryana Act 26 of 1972). The son here is counted as a separate unit only if he is living separately from his father. 33 The Uttar Pradesh Imposition of Ceiling on Land HoldingsAct 1960 (Uttar Pradesh Act 1 of 1961). 34 Haryana Ceiling on Holdings Act 1972 (Haryana Act 26 of 1972), the family gets additional land only where the son was living with his parents. 35 Himachal Pradesh Ceiling on Land Holdings Act 1972 (Act 19 of 1973). 36 Rajasthan Imposition of Ceiling on Agricultural Holdings Act 1973 (Rajasthan Act 11 of 1973). 37 Bihar Land Reforms (Fixation of Ceilings and Acquisition of Surplus Land) Act 1961 (Bihar Act 12 of 1962). 38 The Gujarat Agricultural Lands Ceilings Act 1960 (Gujarat Act 26 of 1961). 39 Madhya Pradesh Ceiling on Agricultural Holdings Act 1960 (Act 20 of 1960). 40 Maharashtra Agricultural Lands (Ceilings on Holdings) Act 1961 (Act 27 of 1961). 41 Andhra Pradesh Land Reforms (Ceiling onAgricultural Holdings) Act 1973 (Act 1 of 1973). 42 The Tamil Nadu Land Reforms (Fixation of Ceiling on Land Holdings)Act 1961 (Act 58 of 1961). 43 Kerala Land Reforms Act 1963 (Act 1 of 1964). 44 In B. Chandra Sekhar Reddy v. State of Andhra Pradesh, the Supreme Court held that a major daughter is not to be treated as a member of the family unit and would not be entitled to hold a land unit independently even though she is a and her land will be declared surplus land. The court specifically said that the amendment to the Andhra Pradesh Hindu Succession Act 1956 will not affect the Andhra Pradesh Land Reform (Ceiling on Agricultural Holding) Act 1973.

coparcener,

The inconsistency of legislations with the fundamental rights can survive validly where the Constitution itself accords them from judicial challenge. According to Article 31 B, where an enactment is placed in the Ninth Schedule of the Constitution, its validity cannot be challenged on the grounds that the enactment or any of its provisions are inconsistent with Part III of the It is noteworthy that out of the total of 286 legislations included in the Seventh Schedule, 248 are related to land. While the exclusion of the court’s scrutiny is in itself unjustified, 45 it is all the more disheartening to note the attitude of the courts and their hesitation to interfere in the ownership pattern of landed property. Two illustrative cases are discussed here.

immunity Constitution.

Ambika Prasad Mishra, Petitioner v State of U. P.46 was a challenge

to the validity of the UP Imposition of Ceiling on Land Holdings Act 1960. The question of gender justice arose as a collateral issue but was taken up by the Supreme Court. The court not only the general presumption of sacrifice of women’s rights at the altar of community welfare and family consolidation, but also held that agrarian legislation, must be judged, not meticulously for every individual injury but by the larger standards of abolition of

reiterated

45 For decisions justifying the immunity from judicial challenge see Golak Nath v. State of Punjab (1967) 2 SCR 762: AIR 1967 SC 1643: (1967) 2 SCJ 486) decided

by a Bench of 11 Judges, has held Article 31-A valid. See also Kesavananda Bharati v. State of Kerala (1973 Supp SCR 1 : (1973) 4 SCC 225) State of Bihar v. Kameshwar Singh (AIR 1952 SC 252: 1952 SCR 889: 1952 SCJ 354) (1952), Kanan Devan (Kanan Devan Hills Produce Co. Ltd. v. State of Kerala (1973) 1 SCR 356: (1972) 2 SCC 218: AIR 1972 SC 2301) (1972) to Gwalior Rayons (State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. (1974) 1 SCR 671: (1973) 2 SCC 713) (1976). The very purpose of the land legislation providing for the ceiling of holding was given by the apex court as Constitution Bench in theState of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., (1974) 1 SCR 671: (1973) 2 SCC 713), as ‘The professed goal of the legislation is to maximise surplus lands for working out distributive justice and rural development, with special reference to giving full opportunity to the agrarian masses to become a major rural resource of the nation. How to maximise surplus lands? By imposition of severe ceiling on ownership of land-holding consistently with the pragmatics of rural economics and the people’s way of life. The pervasive, pivotal concepts are, therefore, ceiling on holdings and surrender of surplus land. The working unit with reference to which the legal ceiling is set is the realistic So, the flexible concept of ‘family’ also becomes a central object of legislative definition. See also State of Bihar v. Kameshwar Singh (AIR 1952 SC 252: 1952 SCR 889: 1952 SCJ 354. 46 1980 (3) SCC 719.

family.

fundamental inequalities, frustration of basic social fairness and shocking unconscionability.47 Two basic arguments were put forward before the court, first, that the presence of the son enables the father to retain more land while the presence of the daughter does not, and second, that a daughter is therefore left totally unprovided for. The court rejected both the contentions and treated the legislation as gender-just. The reasoning of the court suggests that the father is entrusted with the task of providing for the daughter as she does not have any land of her own, but the son’s maintenance can be provided from the land that the father gets in his presence. Thus, while the son’s maintenance is in his own right, the daughter is reduced to being a burden on the father. Second, the reasoning of the court that the ceiling legislations do not give land to the daughter or the son, but permits the father to hold on to the extra land in the presence of the son is also seriously flawed. The extra land on account of the presence of the son — goes only to the son on the death of the father along with any other land that the father may have owned or held. So if not directly, indirectly it comes to the son. But the daughter is entitled to nothing either in her own right or by inheritance. Such agrarian land legislations can be a direct contributor to the reasons for showing a clear preference for sons by the rural One of the most unfortunate things is the unfair treatment that the parents give to their own children based on their sex and in the rural setup such treatment is actually being legitimised by such laws. Any legislation that strengthens the position of the parents in getting benefits by having sons is in a way promoting sex selection. Thus, all three aspects are closely connected: the definition of the

community.

47 Section 5(3)(a) of this Act provides for the addition of two hectares of irrigated land for each of the (tenure holder’s) sons where the family has a strength of less than five. Section 5(3)(b) similarly provides for two additional hectares of irrigated land for each of the (tenure holder’s) adult sons where the strength of the family is more than five. The father is allowed by Section 5(3) to hold an extra two hectares if the unmarried major is a son. Section 3(7) defines ‘family’ as: ‘family’ in relation to a tenure holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters); Section 3(17) makes the husband tenure holder even when the wife is the owner. These imply that the expression ‘adult son’ in clause (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure holders or who hold landless than two hectares of irrigated land.

family, which is represented by a male; the fixation of ceilings that give an advantage to families having males; and succession of land that favours males. If this is the legislative treatment given to females in India with respect to more than 75 per cent of the property, it is no wonder that women’s economic subjugation is the rule in India, and it is only a miniscule of women who can have the security that comes with the ownership of landed property.

agricultural

In Madhu Kishwar vs Union of India,48 Madhu Kishwar along with

two tribal women from Singhbhum District of Bihar, challenged the constitutional validity of the provisions of the Chhota Nagpur Act 1908. They contended that the customary law operating in Bihar and other parts of the country excluding tribal women from inheritance of land or property belonging to their father or husband and conferment of right of inheritance to the male heirs or lineal descendants should be declared discriminatory. The usufructory rights conferred on a widow or an unmarried daughter become illusory due to diverse pressures brought to bear on them at the behest of lineal descendants. The primary occupation of the people living in this area is Only men own the land but both men and women do the tilling. According to the Act, on the death of the male member who is the owner of the land, only his sons would inherit the tenancy rights. In the absence of sons but in the presence of widow, or even the mother, the land passes to the male collaterals. In the absence of male collaterals, but in the presence of the females, the land passes to the village and becomes community property. The complete exclusion of the son-less family takes place the moment the male member dies.

Tenancy

agriculture.

daughter abovementioned

The three member bench which heard the matter refrained from

striking down this offensive provision of the Act, but did come to different conclusions. The minority view was that as the statute to be directly in conflict with the Constitution, the same can no longer be permitted to continue as such. However, the majority view was different. The court first directed the Bihar government

appeared

48 1996 5 SCC 125. Only some of the provisions of the Chhota Nagpur Tenancy Act 1908 have been placed in the Ninth Schedule of the Indian Constitution (Entry 206; Chapter VIII, Sections 46, 47, 48, 48A, and 49; Chapter X, Sections 71, 71A and 71B; and Chapter XVIII, Sections 240, 241 and 242.) Those relating to devolution of the tenancies are not included in the Schedule and therefore may be called upon to pass the constitutional validity test.

to look into the matter and explore the feasibility of possible changes in the Act. The state-level Tribal Advisory Board reported that the time was not ripe for any change in the statute. The only concern shown to women was the admittance of their right to sustain To that extent they did modify the statute introducing in it something that did not exist previously. The court granted a woman the right to hold on to the land till her life-time but only as a limited owner, and held that the tenancy rights of male collaterals would be suspended till the immediate female relative of the original tenant dies. This single concession the court showed towards women was not a recognition of her right of ownership but her right to feed herself; to be given just about enough to prevent them from starvation, but nothing more that could make them self-sufficient or economically independent. Deprivation of property rights is the root cause of the secondary status of women in India. The government may come up with several schemes for their upliftment and they may get education, but if they do not have the capability to secure a roof over their heads or own land for agricultural purposes (with more than 75 per cent of land in India being agricultural property), are not given a chance to take decisions relating to their own lands, these schemes are not going to benefit them. The domestic courts are under obligation to give due regard to the international conventions and norms for construing domestic laws when there is no inconsistency between them. Human rights are derived from the dignity and worth inherent in any human. Human rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, and respect for human rights and fundamental freedom are interdependent and are mutually reinforced. The human rights for women including the girl child are therefore inalienable, integral and indivisible parts of universal human rights. All forms of on grounds of gender are violative of fundamental freedom and human rights.

themselves.

development

discrimination Conclusion

The legislature and the judiciary in India are the primary institutions entrusted with the task of correcting the imbalance perpetrated on the disadvantaged section of society by outdated laws. Women who

constitute half of the population have been deprived of the basic right to live a life of dignity as nearly all the family laws and land legislations contain gender discriminatory provisions. Living a life of complete dependency, their life is not going to improve if the judiciary does not shed its rigid stand and come up with rational judgments paying real homage to the principles of the Constitution. Property is one of the important endowments or natural assets to accord opportunity, a source to develop personality, to be and a right to equal status and dignity of a person.Therefore the state should create conditions and facilities conducive for women to realise the right to economic development, including social and cultural rights. In India, agricultural land forms the bulk of the property. In most of the agricultural and tenancy laws as aforesaid, women have been denied the right of succession. The discernible reason in support of this denial seems to be to maintain the unity of the family and to prevent the fragmentation of the land, agricultural holdings or diversion of tenancy rights. These reasons whether tenable or not in present times have to be seen by courts from the angle of the effect they have on a woman and not merely from the point of view of a family or its unity. For how long will Indian women’s quest to live a life of dignity continue to be sacrificed for the sake of the unity of the family or for the convenience of the other family members and the institution of the family as such?

independent,

economic

References

Diwan, P. 1985. Muslim Law in Modern India. Allahabad: Allahabad Law Agency. Hidayatullah, M. and A. Hidayatullah. 1977. Mulla Principles of Mohamedan Law . Bombay: N.M. Tripathi. Lok Sabha Debates . 1955. New Delhi: Government of India Publications. Sivaramayya, B. (1991). ‘ Women and Law’, Annual Survey of Indian Law , vol. 27. Tandon, M.P. 1984. Textbook of Mohammedan Law . Allahabad: Allahabad Law Agency.

'Bargain g', 12

Gender

Equality

and the

Case

Legal of

Change: India's

Inheritac

* Laws

Bina Agarwal Few legislative changes have embodied as notable a shift in the vision of gender equality in Indian society as the Constitution of India 1950 and the Hindu Succession Act (HSA) of 1956. The Constitution promised equality before the law and no discrimination on the basis of sex as a fundamental right; the HSA attempted to transform the major inheritance systems governing the Hindus, from a situation of gross gender inequality to quite substantial equality. Earlier the majority of Hindu women could only inherit their fathers’ (or property after four generations of agnatic males, and even then only as a limited interest; the HSA gave them rights of on par with brothers (or sons) in relation to most property. Both enactments envisioned equality between women and men, even though the HSA, as formulated, fell rather short of that aim. How can we understand such shifts in legal rights and more generally the process of legal change?

husband’s) inheritance *

This is an abridged and substantially updated version of Agarwal (2002]. I am grateful to Peter Houtzager, Janet Seiz, S.M. Agarwal and Patricia Uberoi for their helpful comments on the earlier version; and Wendy Singer for sharing with me from her research on women and elections in colonial India. They bear no responsibility, however, for the final product. More generally, I am deeply indebted to the late Professor Sivaramayya for his guidance, encouragement, and the enormous

insights of time and attention he gave law and legal change in India.

amount on

to comment

on

many aspects of my

writings

‘Bargaining’, Gender Equality and Legal Change

Analytically situated in the interfaces of law, political economy and gender studies, this article outlines a conceptual framework — the ‘bargaining’ framework — as a way of understanding legal change. It illustrates the working of this framework by analysing the process by which a major inheritance law in India, the HSA, was formulated, moving inheritance substantially but not fully toward gender equality in the first half of the 20th century. It also examines why subsequent progress was so slow, bringing to bear on the discussion debates in India on reforming ‘personal laws’. In broad terms, I suggest that such legal change (or its lack) could be understood as the outcome of contestation or bargaining between different interest groups enjoying varying degrees of bargaining power vis-à-vis the State.1 The complexity of factors likely to affect a person’s or a group’s bargaining power are also outlined. Among these factors, I argue that social norms and social perceptions need particular attention. Although this analytical approach is applied here to Hindu inheritance law, a similar analysis could be attempted for laws governing other religious and regional groupings in India, where inheritance laws vary by religion and (for some religious also by region and type of property. While focused on the HSA, it is my hope that the bargaining framework will prove useful for understanding legal change in other contexts as well. This article is confined to the formal aspects of law and does not address the equally substantive issue of the gap between law and practice which is dealt with extensively elsewhere (Agarwal 1994). However, analysing the process of legal change reveals a great deal about gender relations that is also relevant for understanding why gender-progressive laws, once passed, remain so limitedly The article does not seek to theorise about social movements — a subject on which there is considerable literature.2 Rather, it seeks to theorise about what factors might impinge on gender-progressive shifts in law. In this, a collectivity constituting some form of social movement might be one factor among several. Below, I briefly spell out the bargaining approach; outline the gendered inequalities in Hindu inheritance systems prior to the HSA and the broad features of the Act; examine the process by which

contemporary

communities),

implemented.

1 ‘State’ is used here in the political economy sense of the word,while ‘state’ relates to administrative divisions within the country. 2 See, among others, McAdam et al. (2002); Tarrow (1994); Marwell and Oliver (1993); Morris and Mueller (1992); Larana et al. (1994).

Agarwal

the HSA was formulated; and analyse that process in light of the bargaining framework. Finally, I focus on contemporary struggles for, and some successes in, attaining gender equality in inheritance laws, again assessing these in terms of the factors that would affect women’s bargaining power vis-à-vis the State. Bargaining

with

the

State:

An

Analytical

Framework

A promising analytical framework for understanding the process of legal change is that of bargaining. Broadly, within the economics literature, a bargaining situation is characterised as one in which interaction between two parties contains elements of both and conflict. Both parties cooperate insofar as cooperative arrangements make each of them better off than non-cooperation. However, there can be many different cooperative outcomes that are beneficial to both parties relative to non-cooperation. But among the set of beneficial outcomes, some would be more favourable than others to each party — hence the underlying conflict between those cooperating. Which outcome emerges depends on the relative bargaining power of the parties. Insights into what determines power can thus be key to understanding why some parties stand in persistent disadvantage and how that disadvantage could be overcome.3 Traditionally, economists have formalised these concepts within game theoretic models, applying them largely to market interactions or to employer–employee relationships, and with little attention to gender. In recent years, an emerging interest in intra-household gender dynamics has yielded some interesting formulations of bargaining models.4 But these ideas have been applied rather little to gender-related bargaining with the State; and inadequate attention has also been paid to qualitative and historical factors that can affect bargaining outcomes. As elaborated in Agarwal (1994, 1997), for extending the bargaining framework to gender in extra-household arenas and for incorporating qualitative factors, it appears necessary to move beyond formal modeling. Here, distinguishing between a ‘bargaining approach’ and game-theoretic

cooperation

bargaining

household

interactions

3 See also Agarwal (1994, 1997); Sen (1990). 4 For an overview of these models, see especially Haddad et al. (1994); Doss (1996); Katz (1999); Seiz (2000).

bargaining models is useful. A bargaining approach that is not constrained by the structure that formal modeling requires would allow us to develop and apply more freely, the concepts of cooperation– conflict and bargaining power to the noted extra-household arenas. It would also allow a freer engagement with the complexities of gender analysis and with qualitative factors (such as social norms and perceptions) that impinge on bargaining outcomes. It needs emphasis that the process of bargaining need not always involve explicit contestation or open discussion. A given party could arrive at a favourable outcome simply because the other party, say, by social norms, is unable to contest, indicating the former’s considerable implicit bargaining power. How might we apply the bargaining approach to interactions between citizens and the State? Take the State’s relationship with gender-progressive organisations (including women’s organisations). The former has the power to enact laws and formulate policies in favour of women; to increase women’s access to productive to promote social objectives that gender-progressive individuals might value, such as enhancing women’s education, empowering poor women as a necessary element of development, increasing women’s participation in political governance; and so on. All these are potential reasons for gender-progressive groups to cooperate with the State.

constrained,

resources;

The State on its part would have an interest in cooperating

with and responding sympathetically to the demands of genderprogressive groups for several reasons. Such groups could build up political pressure, perhaps with the support of opposition and the media. The State might fear losing the votes of such groups and the votes of others that such groups could influence, or it may wish to avoid ‘disruptive’ activities such as demonstrations, pickets and strikes. There could also be international pressure, through donor agencies and international women’s networks, as well as a concern with the nation’s image abroad. Moreover, the State might need such civil society actors for furthering certain social objectives that it is unable to fulfil effectively on its own, such as increasing female adult literacy or reducing poverty. At the same time, the State may be more willing to cooperate with civil society actors over certain types of programmes, such as those seeking to deliver better health care and education to the and less willing to cooperate on programmes that call

parties

disadvantaged

for a significant redistribution of economic resources such as land, in so far as these programmes could adversely affect other political constituencies that the State values. This latter situation would be one of potential conflict between the State and gender-progressive groups. Other such situations could arise if, for instance, the State — while passing gender-progressive laws — fails to implement them; or launches micro-level economic programmes for benefiting women while pursuing macro-policies that reduce women’s options; or reinforces, through its policies, existing genderretrogressive biases within the family and community. The State might also seek to balance demands by different civil society groups depending on their perceived importance within the polity.

livelihood

Moreover, the State itself can be seen as an arena of cooperation

and contestation between parties with varying degrees of to gender equality. These contestations can be between State officials within a department, between different tiers of the State and/or between different regional elements of the State structure, with some arms of the State pursuing gender-progressive policies, even if the overall State structure is gender-regressive. there can be key gender-progressive individuals within State departments who, driven by personal convictions, play important roles in this respect. The elements of the State more committed to gender equality would be the ones that a group of women (or a group representing women’s interests) could effectively cooperate with, even while being in conflict with other elements.

commitment apparatus,

Similarly,

Such a conceptualisation implies that the State is not seen here

as a monolithic structure which is inherently, uniformly or transhistorically ‘patriarchal’, as characterised by some scholars.5 Rather, it is seen as a differentiated structure within which and through which gender relations are constituted, via a process of contestation and bargaining. This conceptualisation also underlines the possibility of the State being subject to challenge and change. What factors might affect a person’s bargaining power with the State, in a generalised sense, including but not specific to legal change? I would like to suggest the following as being especially important: Whether s/he acts as an individual or through a group, and the size and cohesiveness of the group 5 E.g., Mackinnon (1989); Sangari (2000).

Support from elements of the State Support from civil society groups, social reformers, the media, etc. Entrenched property and political structures Social perceptions Social norms. For women, we would expect change (including legal change) to be more possible where there is a large and cohesive genderprogressive group negotiating change. Such a group’s bargaining power would be the greater the more support it can muster from elements of the State and from other civil society actors seeking reform; the fewer the entrenched interests wanting to maintain the status quo; and the more conducive social perceptions and social norms are to gender equality. The importance of the first four factors is largely self-evident. Social perceptions and norms need some elaboration (as attempted below, using property-related examples). Perceptions can affect outcomes in many ways. For instance, they can affect the social legitimacy of a person’s claim to property. Social understanding of who deserves to inherit a person’s property is mediated not just by ties of blood and kinship, but also by regarding the potential heir’s ability to contribute to the of the property owner, her/his ability to manage the property, her/his need for such property (which would relate to the person’s actual or potential role in society); her/his likelihood of minimising property dispersion; and so on. Gender, age and marital status can all impinge on these perceptions. For instance, in societies where women marry out patrilocally and at a distance, they are often seen as less able to contribute to the well-being of parents and therefore less deserving of inheritance than sons. This gender difference clearly has more to do with perceptions than with the practical difficulties of providing parental support, since job-related migration by sons is seldom seen as constituting a similar constraint;6 or women are constructed as dependents rather than as managers of families and therefore perceived as less in need of property in general, and property such as land in particular; or women’s abilities to deal with extra-household institutions, including legal institutions for managing property are often perceived to be less than their

perceptions wellbeing

immovable 6 See also Sen (1990) on ‘perceived contribution response’.

actual abilities; and younger, unmarried women are often seen as less able in this respect than older married women. Similarly, norms can impinge on the social legitimacy of women’s

claims. Norms of female seclusion, for instance, or norms which women to marry outside the close kin network and in distant villages (as is common in rural north India) reduce women’s ability both to manage property, and to look after parents in old age. And negative perceptions, as noted, compound this disability. Again, parents would be less willing to give women an inheritance share where social norms forbid then from accepting material help from married daughters (as among upper-caste groups in north-west India). Moreover, norms can give considerable implicit bargaining power to particular parties. Hence, for instance, women in communities practicing high female seclusion are more dependent on mediation and support from male relatives such as brothers, and thus less likely to contest their claims in family property against those of their brothers. That women in South Asia often give up their claims in their father’s property in favour of brothers, even without the brothers asking, underlines the latter’s considerable implicit bargaining power.

require

Norms and perceptions can be both enabling and disabling. For

instance, norms that allow in-village marriages, or give women of movement and interaction with men, can be seen as enabling, and norms which forbid such marriages or which insist on female seclusion are disabling. Similarly, social perceptions that women are capable of independent action (economic and political) are and perceptions that women are dependents are disabling. In which direction norms and perceptions bend can vary culturally across regions and religious groups, as well as historically. Also they shape attitudes not just among families and communities but also among legislators and legal institutions. Challenging and changing disabling norms and perceptions would thus be an important part of the process of legal change. Consider how these aspects were played out in the formulation of the HSA of 1956.

freedom enabling,

Inheritance

Laws

Before

and

Under

the

HSA, 1956

Prior to British colonial rule and for much of that rule, Hindu women’s property rights were extremely restricted. Basically, local

customs — influenced in varying degree by the Dharmashastras7 and the many commentaries on them — formed the basis of Hindu law. The most influential of these commentaries were the Mitakshara and Dayabhaga legal doctrines, dated around the 12th century AD. These also strongly influenced British interpretation of Hindu law and the subsequent formulation of the HSA. It is thus pertinent to examine these two systems. While their complex details cannot be spelt out here, their broad features are outlined below.8 The Mitakshara system distinguished between separate property and joint family property. Over his separate property a man had absolute rights of disposal.9 In this property, the widow had an claim, but only in the absence of sons, agnatic grandsons, and agnatic great-grandsons, and if she remained ‘chaste’. Moreover, she could receive only a limited estate, that is, she could enjoy the during her lifetime but after her it reverted to her husband’s heirs. She could not alienate the property except under highly circumstances. Daughters (unmarried ones coming first) could inherit only in the absence of the widow and again as a limited estate. Joint family property, by contrast, was held jointly by (a maximum depth of) four generations of male members — a man, his sons, son’s sons and sons’ sons’ sons — all of whom were designated as coparceners. Devolution was by survivorship, and property alienation was subject to strong restrictions. But each coparcener could demand partition unilaterally at any time. Women could not be coparceners in joint family property. They only had rights of maintenance as wives, widows, or unmarried daughters.

inheritance

property restricted

Under the Dayabhaga system a man was absolute owner of all

his property and could dispose of it as he wished. Division took place only at his death, and the property went in the first instance equally to his sons. The shares of predeceased sons went to the sons’ sons, 7 Ancient legal treatises dated sometime between 200 BC and AD 300, cf. Kane (1930). 8 For details, see Agarwal (1994: chap. 3). 9 This included self-acquired property (if acquired without detriment to the ancestral estate); property inherited from persons other than his father, paternal grandfather, or paternal great-grandfather; specified categories of gifts received by him; and his share of ancestral property on partition, provided he had no son, son’s son, or son’s son’s son. In the presence of any of these members, the partitioned share was deemed as ancestral property in his hands.

or failing this to the sons’ sons’ sons. A ‘chaste’ widow could inherit in the absence of these male heirs, but again took a limited interest, with the right to manage but not to alienate the property. Daughters came after the widow, unmarried ones coming first and inheriting only a limited interest. Female property rights were recognised to some extent by both systems, in the concept of stridhan (literally, a woman’s property), but its scope was limited. Under Dayabhaga, although a woman had absolute control over her stridhan, this effectively included only movable gifts received from parents, brothers, relatives and others at the time of marriage, and from her husband after marriage. And under Mitakshara, although (by some interpretations), in addition to such movable gifts over which a woman had absolute control, stridhan could include immovables received as inheritance or on partition of the deceased husband’s estate, these could only be held by her as a limited interest (for details, see Agarwal 1994). Under both systems, therefore, Hindu women could inherit property such as land only in very restrictive circumstances, and (with some regional exceptions) at best enjoyed a limited in it. Men, in contrast, had a primary right to inherit and control immovable property, and although they too faced restrictions in their power of disposal over joint family property, these restrictions related to their rights as individuals and not to their rights as a gender. As detailed in Agarwal (1994), actual practice deviated from the noted shastric prescriptions to some extent. For instance, women in wealthy patrilineal households in some regions (e.g., in south and west India) sometimes possessed and transacted in landed property, as revealed, for instance, by temple inscriptions of land donations by women especially between the 10th and 15th centuries. But women’s extent of control and degrees of freedom over the use of such property outside the religious context were severely limited. 10 In addition, there were small pockets of matrilineal and bilateral systems in the south (especially Kerala) and the north-east. The HSA of 1956 constituted a substantial shift. The Act sought to unify the Mitakshara and Dayabhaga systems, and to establish a

immovable interest

10 Donations to temples were for the spiritual benefit of specific persons (e.g., husbands, sons or brothers). This did not imply freedom to use the wealth for any purpose the woman desired.

more gender-equal law of succession. Under the Act (with some exceptions for prior matrilineal communities), for a Hindu male dying intestate, all his separate property devolves equally on his sons, daughters, widow and mother. If previously governed under Dayabhaga, this rule applies also to his ancestral property. However, for those previously governed by Mitakshara, the concept of joint family property has been retained. In the deceased man’s ‘notional’ share in the Mitakshara coparcenary, sons, daughters, widow and mother are entitled to equal shares. But sons, as coparceners, also get a direct share in the joint estate, which women do not. All heirs (male and female) have full rights of control and disposal over the property they inherit. While the Act substantially enhanced women’s inheritance rights, two major sources of inequalities persisted (see Table 1; and Agarwal 1994, 1995): Unequal shares The Act gave females rights in a smaller part of the property. Since aspects of the Mitakshara joint family property were retained, sons as coparceners received a right by birth to an independent share in the joint family property, in addition to their shares in their father’s portion, while female heirs (daughter, mother, widow) received a right only in the deceased man’s ‘notional’ portion of the joint family property. Moreover, a man could declare any part of his separate property as joint family property, thus reducing women’s potential shares. Agricultural land The Act exempted from its purview significant interests in agricultural land: it left untouched the provisions of tenurial laws which deal with the fixation of ceilings or the of agricultural holdings, or the devolution of tenancy rights with respect to such holdings (see Section 4(2) of the HSA). Hence, interests in tenancy land devolved according to the order of devolution specified in the tenurial laws. Since agriculture is a state subject, these tenurial laws vary by state.11 In the southern states, as well as in most of the central and eastern ones, these laws are silent on devolution, so it could be presumed that inheritance would be according to the HSA.12 In a few states the tenurial laws explicitly

fragmentation

11 The division of legislative jurisdiction by subjects, between states and Centre, is discussed further on. 12 These include Andhra Pradesh (Andhra area), Karnataka, Kerala, Tamil Nadu, Bihar, Gujarat, Maharashtra, Orissa, and West Bengal.

In a

Man's Separate Property

Rights under Mitakshara*

Hindu Women's Inheritance

woman

could receive stridhan over

which she had absolute

highly

not

In Joint

Family Property

woman

a

gets her portion as an

dispose

off

or

equal shares.

inherit landed property except in the case of is subject to state-level tenurial laws that supersede the HSA. woman can

a

In Joint

Family Property

'tenancy' land, the devolution of which

A

can

estate.

inherit

She

absolute

son can

Man's Separate Property

daughter, mother, and

In

woman has full rights of alienation. bequeath her property as she wishes.

A

A

The widow,

of 1956

as a

a

coparcener, has

joint family property, while

The son,

some

in the

critical

an independent right by birth daughter does not.

man's 'notional' share of the undivided joint family property, the widow, daughter, mother and son have claims to equal shares. But women cannot ask for partition of the joint estate. In

•

•

•

•

Note: (*) The Hindu Women's Right to Property Act of 1937 expanded widows' rights from those listed here, but with limitations, and benefiting only a small percentage of women, since it did not cover daughters.

be coparceners in such property. They only had maintenance rights as wives, widows or unmarried daughters.

property.

control, but typically stridhan could not include landed property. And the interpretations of Mitakshara that allowed stridhan to include immovables, only gave women a limited interest in such

A

A woman could not alienate the property except in restricted circumstances.

A woman could get only a limited interest in this property. After her death it reverted to the source.

under Mitakshara and the HSA of 1956

Hindu Women's Inheritance Rights under the HSA (for those previously governed by Mitakshara)

Rights

Women could inherit as widows and daughters only in the absence of four generations of agnatic males. The chaste widow came before the daughter and the unmarried daughter came before the married daughter.

Women could

•

•

•

•

Hindu Women's Inheritance

Table 1

say that the HSA or the ‘personal law’ will apply.13 But, in six states (Delhi, Haryana, Himachal Pradesh, Punjab, Uttar Pradesh and Jammu & Kashmir) the tenurial laws do specify the order of devolution, and these are highly gender-unequal. Here is given (as under the ancient Mitakshara) to male lineal in the male line of descent and women come very low in the line of heirs. Also, a woman gets only a limited estate, and loses the land if she remarries (as a widow) or fails to cultivate it for a specified period (usually a year or two). Moreover, in two states (Uttar Pradesh and Delhi) a ‘tenant’ is defined in such broad terms that this unequal order of devolution effectively covers all land (Agarwal 1995).

northwestern

primacy descendents

agricultural

In addition, the First Amendment to the Constitution of India,

enacted in 1951, provides under Article 31b that none of the Acts mentioned in the Ninth Schedule of the Constitution can be void on the ground that they infringe on the fundamental rights granted by the Constitution, such as the right of no on the basis of sex. All the major tenurial laws fall under the Ninth Schedule. This constitutional amendment, enacted to protect the validity of land reform legislation, effectively also such legislation from being challenged on grounds of gender discrimination! Moreover, while the Act gave sons rights of both residence and partition of the parental dwelling house, it gave unmarried daughters only rights of residence and denied married daughters even residence rights, unless widowed, divorced or separated. Moreover, the Act gave a person unrestricted testamentary rights over his or her property. Although in principle gender-neutral, in practice the provision tends to be used to disinherit female heirs. After the HSA was passed, Andhra Pradesh, Tamil Nadu and Karnataka (all in south India) and Maharashtra (in west India) amended it (in 1986, 1990, 1994 and 1994 respectively) by including daughters as coparceners; while Kerala (also in south India) abolished joint family property altogether in 1976. But in the northern states the original Act, with all the noted inequalities, continued to apply, up until August 2005 when, under civil society pressure, a more

declared discrimination protected

13 These include Madhya Pradesh and Rajasthan. The term ‘personal law’, as used in these laws, means that for Hindus, the Hindu Succession Act of 1956 will apply; for Muslims, The Muslim Personal Law (Shariat) Application Act 1937 will apply; and so on.

comprehensive amendment was passed by the central government, covering all the states. A large part of the analysis below traces the initial passing of the Act while the subsequent section incorporates the recent changes as well. Despite its less-than-equal nature, the HSA represented a

dramatic improvement over the situation prevailing before (Table 1).

How did this come about and why did it not move to full equality? Also, what underlies the regional differences in legal amendments toward gender equality? The section below describes how the HSA was formulated, and the subsequent section analyses the process in the light of the bargaining framework and also focuses on the regional dimensions, before moving to a discussion of the current situation. Formulation

of The

Hindu

Suc es ion

Act

1956

Contemporary inheritance laws in India emerged through a complex process of interaction between the colonial and pre-colonial systems and different segments of the population, the interplay of varying ideologies and interests, and the conflicting pulls of scriptural rules and local custom ( Agarwal 1994). Around the early part of the 20th century these interactions increasingly took the form of explicit contestation — a process revealed most prominently in the of the Hindu Code Bill which formed the basis of the HSA. 14 Among the principal actors in this contestation were several women’s organisations that emerged in the early 20th century and that concertedly took up the issue of women’s property rights. The notable ones were the Women’s India Association (WIA) in 1917, the National Council of Women in India (NCWI) initiated in 1925, and the All India Women’s Conference (AIWC) set up in 1927. These organisations worked systematically for reform legislation, opened schools for girls, and campaigned for women’s suffrage. After extended efforts at getting the Child Marriage Restraint Act of 1929 successfully passed, they focused more directly on women’s rights to divorce and to inherit and control property (see also Forbes 1981). During the late 1920s and 1930s these organisations expanded both numerically and geographically. According to Everett’s

formulation

established

social

14 See also Parashar (1992) for an insightful discussion of the complex interplay of reformist goals, religion and political pressures that underlay this process.

(1979: 71–74) figures, by 1927 WIA had 80 branches and 4,000 members, and during 1926 it organised 22 conferences attended by over 5,000 women. The NCWI, by 1934 had 8 provincial councils, 180 appointed societies and some 8,200 members. The AIWC was, however, the most prominent, with close ties with political and professional leaders. In 1941 it established a quarterly newsletter, and by 1945 had 177 elected delegates, 41 constituent organisations and 25,000 members. Apart from these national-level organisations, a large number of women’s organisations also emerged in the mostly to join the nationalist cause, but some subsequently worked for women’s emancipation. In some provinces, such as Bombay, a notable number articulated what Forbes (2000: 155) terms a distinctly ‘feminist nationalism’. More particularly, while the national organisations were constituted largely of educated middle-class, urban women, women in the national movement a wider constituency (Forbes 2000).

provinces, represented

This was also a period when the colonial government was allowing

greater Indian representation in government. The complex history of these times is fairly well-covered by historians,15 but the broad parameters need mention to help understand the arenas in which gender-progressive legal change was battled. Although the latter part of the 19th century saw some limited move towards Indians in legislative and executive bodies, the substantive changes took place only in the early 20th century. The 1919 of India (GOI) Act enlarged the Central and Provincial bodies, and established a form of parliamentary government in which Indians could participate in elections, even if limitedly. The Central Legislature was divided into a Council of State and a Legislative Assembly, both of which were to have elected and members. The elected members were largely Indian, as were a number of those nominated. Hence, of the 60 members in the Council of State, 30 of the 33 elected members were to be Indians. Given that some of the nominated non-officials were also Indians, this constituted an Indian majority. Similarly, in the Provincial Legislatures (Provincial Council) at least 70 per cent of the members were to be elected. However, the Governor-General and Provincial Governors retained overarching powers, and the electorates were extremely restricted (based on property ownership and taxes

constitutional

including Government Legislative nominated

15 See especially Brown (1994); Robb (1986); Sikri (1960).

paid, etc). The Act thus did little to satisfy Indian aspirations for selfrule. The period was also marked by the launching of the Movement, led by Mahatma Gandhi. Nevertheless, over time, the Act had an impact — elections in the 1920s brought a fair number of Indians into both the Provincial Legislative Councils and the Central Legislative Assembly, where they could debate policies.16

Noncooperation

government

Indian participation in governance expanded further with the

Government of India Act of 1935. Enfranchisement, while still based heavily on property ownership, was enlarged and over 14 per cent of the population of British India, relative to about 3 per cent earlier, could now vote for provincial assemblies. Indian presence in the central government also grew. For legislation, a three-fold of subjects was made (Sikri 1960: 144–45): a federal list on which the Federal Legislature could enact laws; a provincial list on which the provinces could legislate; and a ‘concurrent list’ on which both Federal and Provincial Legislatures could enact laws. In case of conflict, the federal government law would prevail. Subjects such as agriculture and land tenure came under the provinces while marriage, divorce and succession fell within the concurrent list. This division of legislative jurisdiction by subjects later played out when the HSA was formulated, and continues to affect attempts at since under the Seventh Schedule of Independent India’s Constitution this three-fold division of subjects was retained (with some changes in the original 1935 lists). The Act, however, stopped far short of the Indian aim of swaraj or self-rule. The nationalist demand was now for a Constituent composed entirely of Indians for framing a Constitution for Independent India. This only came about in 1946, but, in the interim, the 1935 Act drew an increasing number of Indians into a form of restricted parliamentary governance, some of whom proved supporters of women’s causes. Parallel to this, women campaigned for enfranchisement and for representation in the legislatures. In the 1920s Indian women won the right to vote in several provinces (Forbes 2000: 101). And in the 1937 Provincial Legislative Assembly elections, 4.2 million women were eligible to vote, constituting 14 per cent of the 30 million

division

amendment, Assembly important

16 By 1940 Indians also constituted 50 per cent of the Indian Civil Service (Brown 1994: 247).

electorate. Enfranchisement was, however, based either on their tax status or on being literate, and efforts by women’s groups for universal adult suffrage failed ( Singer 2007). 17 Finally about 1 million women voted — largely for women candidates in specially designated constituencies. But for most women it was a new and ‘the number of [eligible] voters was numerous enough that most villages and urban areas became the site of campaigning’ (ibid.: 39), thus providing political experience to large numbers of women. Equally important, in the 1920s, women gained restricted eligibility to membership (through election or nomination) in some of the Provincial Councils. Especially in Madras and Bombay women held positions in local government. Many of these were WIA (Everett 1979: 112). The scope for women’s entry into the legislature expanded further under the 1935 GOI Act. A number of provinces reserved seats for women, although some women also stood from general electorates. In the 1937 elections, 56 women entered the Provincial Legislatures, making up 3.7 per cent of the members 138). Some women also entered the Federal (Sikri 1960). These changes — albeit limited in scope — were important since they gave women direct experience in voting and political and some voice in legislative debates. It also linked women more directly with potential supporters for their causes in the Assemblies.

husband’s

experience,

members

Legislature (ibid.:

campaigning, Legislative By the mid-1930s the national women’s organisations had initiated concerted efforts to enhance women’s legal rights in property.

They received support from a group of liberal male lawyers elected to the government’s Central Legislative Assembly. Concerned with social and legal reform, these male legislators introduced bills supporting Hindu women’s right to divorce, and a Hindu widow’s right to a share in her husband’s property. The bills, however, strong opposition from the orthodox Indian members of the Assembly and were defeated several times. To by-pass this opposition the reformers sought support from members of the colonial Ultimately the Hindu Women’s Rights to Property Act of 1937 was passed, but with critical limitations. It gave additional inheritance rights to widows but not equal to men’s. It explicitly

encountered government.

17 For the 1937 elections, some 43 per cent of adult males and only 9 per cent of the adult females were enfranchised (Everett 1979: 137).

excluded agricultural land. And it excluded daughters altogether from the purview of the Act. This was far from the comprehensive legislation that women’s organisations were seeking. To push for more wide-ranging reform, women’s organisations called upon the government to set up a that would suggest measures to make existing ‘personal laws’ governing Hindus more gender-equal. These were laws relating to inheritance, marriage, divorce, guardianship and adoption which were specific to different religious groups, and at times specific even to region and community. Women mobilised public opinion by articles in English-language periodicals, meeting with attending Legislative Assembly sessions when bills on women’s status in Hindu law were introduced, and presenting resolutions to government officials. Individual male reformers also furthered this process, such as V.V. Joshi, who wrote an influential pamphlet arguing for comprehensive legislation on women’s property rights (Basu and Ray 1990; Everett 1979). In 1941, the government set up the Rau (Hindu law) to suggest how the Hindu Women’s Rights to Property Act of 1937 could be amended to enhance women’s rights (GOI 1941). Women’s organisations supported the move, even while women’s absence on the committee. The timing of the appointment was far from ideal. Soon afterwards, the Congress party intensified its Civil Disobedience Movement and boycotted the legislatures, and large numbers of Congress members were jailed. Supporting a committee appointed by the British was interpreted as cooperating with the colonisers. Women faced a difficult choice between their struggle for gender equality and the call of nationalism. This posed a special dilemma for the women who were members of both the AIWC and the Congress. The AIWC members had, however, realised that not many among the nationalists were their allies when it came to codifying Hindu law, since giving women legal rights to property and divorce posed a serious threat to male authority. As some women argued: ‘Today our men are clamouring for political rights in the hands of an alien government. Have they conceded [to] their wives, their own sisters, their daughters, “flesh of their flesh, blood of their blood”, social equality and economic justice?’ (Forbes 1981: 74). Many women went on to support the Rau Committee.

commission

publishing politicians,

committee protesting committee’s

government

The Rau Committee, however, felt that the 1937 Act was deeply flawed and recommended the preparation of a new comprehensive Hindu code (GOI 1941). In January 1944, the government the Committee, this time for preparing a Hindu Code. AIWC launched a countrywide campaign favouring codification and submitted a draft memorandum to the Committee. In August 1944, the Committee produced a draft Code. Its main provisions on inheritance were equal property shares for the sons and widow of the deceased; half the son’s share for the daughter in all intestate inheritance; and an absolute estate for the widow. Agricultural land was, however, excluded from the scope of the Code on the grounds that this issue came under provincial jurisdiction, after the passing of the 1935 Government of India Act. There were ‘black flag’ demonstrations against the draft Code in five cities. The AIWC, the NCWI and several other women’s organisations and individual women supported the Code, but orthodox women’s associations, such as the All India Hindu Women’s opposed it. Among men, some supported the Code, but the majority argued against it on grounds such as: women are incapable of managing property and are likely to be duped by male relatives if given an absolute estate; married daughters already receive a share as dowry; unmarried daughters only need maintenance and provision for their marriage expenses; and so on. Only about 7.5 per cent of those whose views were recorded by the Second Rau Committee were women or women’s organisations, but there was a marked gender divergence in those views: 71 per cent of the women (or women’s organisations) and only 35 per cent of the men (or organisations other than women’s) supported the bill (figures compiled from GOI 1947: 82–181).

reconstituted

Conference,

property

Despite orthodox opposition, the Rau Committee’s revised draft

of the Hindu Code Bill was introduced in the Central Legislative Assembly in April 1947. Four months later, India became In April 1948, a further revised Bill was introduced and intensely debated in the Constituent Assembly (set up in 1946 to draft the Constitution of Independent India) and subsequently in the Provisional Parliament. In 1947, 15 of the 296 elected (5.1 per cent) of the Constituent Assembly were women,18 a number that fell to 11 thereafter. Seven of them subsequently

independent.

members

18 Numbers calculated from information given in Rao (1966: 302–10); Banerjee (1947).

became members of the 1950 Provisional Parliament. Many male legislatures opposed the Bill, seeing it as misguided and as the views of a minority. One Congress legislator from West Bengal even characterised those supporting the Bill as ‘a few ultra modern persons who are vocal, but who have no real support in the country’ and argued that only women of ‘the lavender, lipstick and vanity bag variety’ were interested in the Bill (GOI 1949: 996–97).

representing

Fears were also expressed that Indian families would break up if

women received substantial rights in parental property. In 1948, at an All India Anti-Hindu Code Convention, it was argued that ‘the introduction of women’s share in inheritance’ would cause a ‘disruption of the Hindu family system which has throughout the ages acted as a cooperative institution for the preservation of family ties, family property and family stability’ ( Kumar 1993: 98). Similar fears were expressed in the Constituent Assembly debates in 1949. For instance, Pandit Lakshmi Kanta Maitra, Congress legislator from West Bengal, asked: ‘Are you going to enact a code which will facilitate the breaking up of our households?’ (GOI 1949: 1011); and Pandit Thakur Das proclaimed that giving property shares to daughters would ‘spell nothing but disaster’ (GOI 1949: 917). Two years later, in the 1951 Parliamentary debates on the Code, Mr M.A. Ayyangar, Congress Legislator, argued similarly, even suggesting that if daughters inherited property they would choose not to marry at all:‘May God save us from … having an army of unmarried women’ (GOI 1951: 2530). This was a sad and ironic commentary on the Indian family since it implied that family stability depended on maintaining sharp gender inequality. It also suggested that with the economic independence promised by property ownership, women would either choose not to marry at all or abandon their spouses forthwith! In September 1951, of the legislators who spoke on the Bill, 10 supported it and 19 (all men) opposed it. At that time, only 3 per cent of the 335 legislatures were women and only 6 of the 11 women legislators participated in the debate, one or two acting as spokespersons for the rest. However, as argued further below, at that juncture the ‘politics of ideas’ overcame to some degree the disadvantages associated with the sparseness of women’s presence.19 And although most top male Congress leaders of Independent India were against the Bill, including the Home Minister Vallabhbhai Patel, 19 On the ‘politics of presence’ vs the ‘politics of ideas’, see Phillips (1995).

and India’s first President, Rajendra Prasad, several influential in particular Prime Minister Jawaharlal Nehru and Dr B.R. Ambedkar (then Law Minister and one of the principal architects of India’s Constitution), were strongly committed to the Bill. In 1949, Nehru had stated: ‘We stand committed to the broad approach of the Bill as a whole and the Government will stand or fall on it’ (cited in Som 1994: 181). Nehru’s commitment stemmed from the belief that the reform was critical for national development. He also personally believed in women’s claims to equal property rights. On inheriting his father’s considerable property after the latter’s death, for instance, he wrote to his sister Krishna that he saw himself only ‘as a joint sharer’, ‘the other sharers being mother and you… Indeed mother and you are the real sharers. I am a trustee for the family property …’ (ibid.: 183). For Ambedkar (who belonged to the dalit Mahar caste), the caste angle was also important. According to Som (ibid.: 185–86), he ‘took upon himself the task of getting the bill through as a crusade against the bastions of the tyrannical upper caste stranglehold over Hindu society … [which] enslaved both Sudras and women, who had to be rescued by law so that society could move on.’

leaders,

However, faced with the hardcore conservatives within the

Congress, and giving in to the argument that the Bill might jeopardise

the Congress party’s chances in the forthcoming general election, Nehru temporarily shelved the Bill. Ambedkar resigned in protest. But later, riding on the strength of a Congress electoral victory, Nehru finally won passage for the important aspects of the Hindu Code Bill in four separate Acts. Of these, the HSA of 1956 forms the basis of Hindu inheritance today. Some scholars, such as Som (1994), argue that the HSA was

basically a symbolic victory. I disagree. Som’s point of reference was

full gender equality, rather than the situation prior to the HSA. Although the Act stopped short of full equality, it was a significant step forward, compared with the weak property rights Hindu women enjoyed earlier. What factors enabled this change? Equally, why did change not go further? Bargaining

Power:

The

Enabling

Factors

I have already suggested above that vis-à-vis the State the following factors, in particular, are likely to affect the bargaining power of

those seeking legal changes: acting as a group; the size and

cohesiveness of the group; the support they receive (on balance) from

the State,20 and from non-traditional agents such as civil society groups, social reformers, etc; the extent of entrenched political and property structures; social perceptions; and social norms. These factors are clearly revealed in the story of the HSA’s formulation. Acting as a group, and the group’s size and cohesiveness To begin with, women’s organisations, especially the AIWC and WIA, formed a fairly large, cohesive and well-organised collectivity, in women’s interest. In the early part of the 20th century, they clearly played a crucial role in bringing women together as a force in this respect. They strategised and campaigned consistently in favour of codification, sought to widen their support base by carrying the debate across India, attended Legislative Assembly debates, and mobilised support from sympathetic external agents such as liberal lawyers and social reformers. All in all, they mounted a relentless campaign for women’s property rights. Most notably, they upheld their gender interests in the face of attempts by Congress nationalists to argue that women were being divisive and anti-national, by pushing for reform with help from the colonial government at a time when the Congress had launched a civil disobedience campaign against the British. This aspect is important, since the argument that gender is a divisive issue has been made time and again to undermine gender interests in mass movements. Left-wing political parties and groups, for instance, have often argued that raising gender concerns in the face of class struggle is divisive. Minority groups (based on religion or ethnicity) have argued similarly during their movements for autonomy and identity. In other words, class, religious, or ethnic identities have typically been given primacy and women have often been unable to deflect or oppose the argument. The experience of peasant such as the Tebhaga and Telangana movements of the 1940s also reveal this (Agarwal 1994). However, for the Hindu Code Bill, as noted, many women in the AIWC challenged this argument, revealed its digressive nature, and upheld gender interests by the Rau Committee at a critical juncture. There was also a lesser-known but significant mobilisation by some prominent women when the Constitution for Independent India was being drafted. Hansa Mehta, in her presidential address

acting

especially

movements

supporting

20 ‘On balance’ because the State can contain elements both for and against reform.

to the AIWC in December 1945, argued for a ‘Charter of Indian Women’s Rights’. Such a charter was subsequently formulated, that equality between the sexes should be the basis of in India, and demanding, among other things, equal inheritance rights for women and men (Mehta 1981). As a member of the Assembly, Mehta also noted that there could be between the proposed constitutional clause promising freedom of religious practice (which could be read as including religiously sanctioned inegalitarian property and marriage laws), and the aim of social reform toward gender (and caste) equality. This was again contested. The matter was finally resolved in favour of women by the Constitutional recognition (and through the First Constitutional Amendment of 1951, Article 15), that freedom of religion did not preclude measures for social reform. Support from the State Here the picture was a mixed one. On the one hand many elements of the State, members of the Legislative and Constituent Assemblies, and prominent individuals, including India’s first President, strongly opposed the Bill. On the other hand, there was notable support from specific elements of the State, sections of the colonial government, liberal Indian lawyers elected to the Legislative Assembly, and major political figures such as Nehru and Ambedkar. As noted, both Nehru and Ambedkar played pivotal roles. For Nehru, strongly influenced by both socialism and liberalism, progress towards gender equality was integral to building a modern India.And his commitment did not waver opposition, although political considerations impinged on the Bill’s timing and its final form. He assured the women leaders and women’s organisations seeking reform that he would see the Bill through. Nehru’s support, as a towering figure in India’s freedom movement and the first Prime Minister of Independent India, was clearly crucial. Waiting till after the Congress electoral victory helped as well, since Congress opponents to the Bill could no longer use political risk as an excuse for stalling it. Also, as Parashar (1992: 98) points out, ‘The State [had] made it very clear [during the framing of the Constitution] that religious laws were not beyond the control of the Constitution and all religious personal laws would eventually conform to the Constitution. From now on the State claimed the authority to reform Hindu law on the ground that the Constitution demanded that all laws be in with its principles.’ In addition, in 1952, when the first

advocating citizenship Constituent contradictions

including despite

conformity

Parliament met and the Hindu Code Bill was introduced in

individual bills, Parashar argues that ‘although the State continued with

its stand that the authority to introduce these changes was derived from the Constitution, it also now claimed a mandate from the people for the changes.’ At that point in time this clearly played out in favour of legal reform, but in later years the ‘mandate from the people’ argument proved to be double-edged, given the State’s susceptibility to political pressures from conservative religious elements. The Parliament’s composition, in terms of the occupational

background of those elected, was also more favourable in the 1950s than it is today. For instance, in the first Lok Sabha some 64 per cent of the members belonged to professional/legal/service ( Table 2).21 Agriculturists, and ex-Princes, that is those who could have a particular stake in maintaining existing property structures and were likely to be especially reluctant to include new claimants (women) to that were in a relative minority — 36 per cent. In addition, the overall climate of reform, the vision of building a modern society in a context, the fact that the treatment of women was an issue that loomed large during the colonial period, a concern for India’s image abroad, and women’s substantial visibility in the freedom struggle (which gave their claims social and moral legitimacy), were all factors that, on balance, enhanced women’s political bargaining power vis-à-vis the State (notwithstanding the opposition from some elements within the State).

backgrounds traders/industrialists/businessmen, property, postcolonial

These enabling factors, nevertheless had their limits, as revealed

by the HSA stopping far short of granting full gender equality. Support from civil society groups, social reformers, etc.

To

begin with, the social reform movement of the late 19th and early 20th centuries created a climate favourable for women. Several male reformers pushed for female education, the legalisation of widow remarriage, condemnation of sati and child marriage, and so on. Although most did not see women moving beyond hearth and home, the steps they took and the debates they generated, as Forbes (2000: 31) argues, ‘linked improving women’s status with the agenda’. It also laid the ground for women themselves to

modernisation

21 This includes all the categories in Table 2 other than agriculturists, traders/ industrialists/businessmen, and ex-Princes.

Occupation (prior)

-

-

-

-

1.4 0.2 1.0

0.2 0.2

3.2

2.1

0.9

4.8 4.2

0.4

-

3.4 0.4

6.8 7.1 6.3 3.0

19.0 20.4

33.2

1971 5th

-

1.7'

0.6

1.7

2.9

2.1

8.4

3.3

23.4

20.0

36.0

1977 6th

0.8 0.4

0.2

1.0

2.9 3.0

6.7

6.3

22.2

17.2

39.3

1980 7th

1.1

1.3

3.0 0.6

6.8 7.7 1.3 4.8

19.0

16.0

38.3

1984 8th

1.0

0.4

0.4

1 -8

5.5

§

original source were

incorrect.

7**

0.8 3.0

-

3-2 §

4.7

1.5

Q

8.4

12.2

19.4

38.7

1996 11th

3.1

2.1

0.4

2.3

§

3,7 5.5** 1.3

10.3*

18.0

49.1

1998 12th

of the percentages in this

2.2

0.8

0.6

4.0§

6.3

2.2

7.7 9.6

16.3

18.1

32.1

1991 10th

some

3.6 8.1** 2.7

15.4

17.1

44.1

1989 9th

1952-1998 (percentages)

Note: * includes a judge; ** includes an economist; *** includes a veterinarian; § includes diplomats Sources'. Recalculated from the absolute numbers of members given in Lok Sabha Secretariat (2000), since

1.1

3.9 1.4

3.9

3.5

3.7

5.7

10.3

6.6

10.4 4.9

7.5

5.7

11.3

10.0

17:5

22.9

30.6

1967 4th

10.6

10.3

12.0

and Businessmen Educationists Writers and Journalists Doctors and Engineers Policy Civil & Military Service Ex-Princes Industrial Workers & Trade Unionists Others

18.7 24.5

21A

1962 3rd

Lawyers Traders^ Industrialists

30.2

-

29.0

22.4 -

1957 2nd

1952 1st

Occupational Background of Lok Sabha Members,

35.4

Political and Social Workers

Agriculturists

Lok Sabha Number

Table 2

further this project, by defining their own priorities for their enhancement. In addition, in particular regions, significant (such as V.V. Joshi, mentioned earlier) played important strategic roles on the issue of women’s property rights. Entrenched property and political structures This was clearly a notable disabling factor as indicated in the compromise that were passed of both the HinduWomen’s Rights to Act of 1937 and the HSA of 1956: in the former, daughters as claimants and all agricultural land were excluded; in the latter, tenancy land was excluded, and vestiges of the Mitakshara joint family property were retained. For the majority of the population, agricultural land was the most significant form of property, both to economic and political power and to social status. Interests in joint family property were also deeply entrenched. This made for strong opposition to including women particularly in agricultural landed property. In Parliament, although agriculturists were in a minority, they were still a significant minority (22.5 per cent; cf. Table 2). Hence while they could not entirely dominate the proceedings, they could certainly influence the outcome in critical ways. Also men politically dominated all rural institutions and levels of decision-making down to the village level; this provided them significant advantages over women in the voice and power they had to push their preferences at the state and national levels. For instance, in village, block and district level institutions, women had little or no presence.22 Social perceptions Social perceptions impinged on this process of legal change in various (sometimes contradictory) ways. They shaped understandings of the likely impact of property ownership on women’s roles in society; fuelled fears that if women inherited property the family would break up; and caricatured the women who advocated gender equal property rights. To begin with, the supporters and opponents of the Bill held contrasting views on the ideal Hindu woman. Everett (1979: 166– 67, 181) provides some interesting insights on this:

individuals

versions Property contributing

From the [1940s and 1950s] debates [on the Hindu Code Bill] two different images of ideal Hindu women emerged. The image resembled the view of women presented in the

opponents’

22 This has since changed, after the passing of the Constitution (73rd Amendment) Act 1992, which reserved one-third seats for women in the panchayats.

Manusmriti: she needed the protection of men during all the periods of her life (thus never capable of independently looking after property) … The proponent’s image … was [of] a competent, autonomous human being interacting with others on the basis of equal rights and individual freedom. The Hindu Code Bill opponents believed that the interests of men and women were better served when women occupied a position and men and women played different social roles. The Hindu Code Bill supporters believed that everyone’s interests were better served when men and women were independent and enjoyed equal rights… The Hindu Code Bill operated within the equal rights perspective which had emerged as the dominant women’s movement ideology since the 1930s.

dependent

Such divergent views apart, many among the orthodoxy perceived the women who were advocating gender equality in law as westernised, privileged, superficial and self-seeking: the ‘lavender, and vanity bag variety’. Such a woman, it was argued, could not understand the needs of the majority of Indian women. This perception was at sharp variance with the personas and of the women who actually constituted the women’s organisations; who campaigned across the country for women’s rights; and who in myriad ways demonstrated their long-standing commitment to India’s freedom struggle.23 This contrast comes across strongly, for instance, in Padmaja Naidu’s passionate plea during the debates over the Hindu Code Bill in 1951:

lipstick

contributions Parliamentary

[T]housands of sensitive Hindu women … for the first time in their lives left the precious sanctuary of their sheltering homes [during India’s freedom struggle]. They came to the battlefield and stood beside their brothers and faced jail and lathi charges and often enough, humiliation worse than death. If today … [they] who fought for the independence of India are to be denied their just rights, then our hard-earned freedom is no more than a handful of dust. Perceptions (rather than actual evidence) again underlay the pervasive fear expressed by many legislators that Indian families 23 See, for example, Forbes (2000); Everett (1979).

would be beset with conflict and break-up if women gained property rights. Social norms Although the effect of social norms on the of the HSA is revealed less directly than that of social perceptions, it can still be pinpointed. For a start, social norms guided social perceptions in that those who supported the HSA clearly had in mind different norms from the traditional ones regarding women’s potential and desirable roles in society. More strikingly, variations in social norms are an important factor underlying regional differences both in traditional inheritance laws and in the amendments to the HSA since 1956. For instance, social norms regarding acceptable marriage partners and post-marital residence among Hindus are quite different in north and south India. In the south, marriages with close kin, especially cross-cousins, are accepted, and among some communities even preferred. In the northern states, marriages with close kin are forbidden among most communities. Again, in south India in-village marriages are allowed, while in the north such marriages are forbidden or strongly (Agarwal 1994). Both close-kin and in-village marriages reduce the potential for property dispersion outside the family and geographically, if the daughter inherits land. Middle India, including the western state of Maharasthra, presents a mixed picture: here a number of communities have marriage practices similar to those in the south.24 These features have impinged on both the traditional and contemporary patterns of inheritance. Traditionally, for instance, it is largely from south India and in lesser degree from west India that we find evidence of women (even if in limited degree) possessing landed property,25 such as the noted evidence from temple inscriptions of the medieval period. And even today opposition to daughters inheriting is much less in the southern and western states. It is significant that the south Indian states were the first to amend the HSA by bringing the rights of daughters on par with sons in joint family property. Moreover, in these states the

independent formulation

disapproved

24 In northeast India also, close-kin and in-village marriages are allowed among most communities, but I have not discussed the northeast here since the region is predominantly tribal, and the HSA does not apply to tribal communities of the northeastern states. 25 Again I am not including the northeastern states in this discussion.Here, in what is present-day Meghalaya, there are a number of tribes which traditionally practiced matriliny, and among whom women possessed land.

amendments appear to have been carried out with no notable public opposition. In other words, enabling social norms in the southern states appear to have given women considerable implicit bargaining power; while disabling social norms in the northern ones have had the opposite effect. Maharashtra falls somewhere in between — here too the HSA was amended but this required substantial efforts by feminist lawyers and progressive lawyers’ groups, among others. In sum, an analysis of the process by which a significant legislative

change — the enactment of the HSA of 1956 — was brought about, suggests a rather good fit with the bargaining framework, and the factors identified as likely to affect the bargaining power of those seeking such change. Let us now turn to the contemporary period to examine how enabling these factors have continued to be. Contemporary

Efforts

at Reforming

Inheritance

Laws

The challenge of reforming inheritance laws, to make them fully gender-equal, has continued. To examine this within the bargaining framework, consider again the six broad factors noted above as women’s bargaining power vis-à-vis the State. Here I am assuming that these factors matter (having demonstrated their relevance in the previous section). In which direction have these moved? I will address this question in two parts. The first part will cover the situation as I had analysed it in late 2004, and the second part will examine the process of subsequent change and the situation as it stands, after the landmark amendment of the 1956 Hindu Act in August 2005.

affecting

Succession The Pre-December 2004 Situation

Consider first the situation vis-à-vis each of the six factors as of late 2004. Acting as a group, and the group's size and cohesiveness Since the 1930s, when the first major women’s organisations emerged in India, the women’s movement has changed in form, substance and strength. From one perspective, today there are several enabling features. In particular, especially since the 1970s, there has been a marked swell in the number of women’s organisations. Indeed, by one estimate, if rural women’s self-help groups and women’s other community groups are counted, there are over a

mentioned,

million women’s groups.26 Alongside, the major national women’s organisations have grown.27 The AIWC today has 555 branches across India and 0.1 million members; the National Federation of Indian Women, founded in 1954, has 22 branches and 1.7 million members; the All-India Democratic Women’s Association (AIDWA) initiated in 1981 has 26 units and 6.2 million members; and the Young Women’s Christian Association established in 1896, while having relatively fewer members (10,000 members and 75 branches) has, since the 1980s, played an important role in national campaigns for women’s rights. In addition, many mixed gender groups are actively committed to improving women’s situation. Moreover, since the 1970s, a number of international women’s rights initiatives and networks have emerged, one of the most important being CEDAW (Convention for the Elimination of All Forms of Discrimination Against Women) which came into force in 1981. Over the years many campaigns by Indian women’s organisations,

academic research on gender, the impact of international conventions and organisations (including those of the United Nations), and processes stemming from the World Congresses for Women (starting in Mexico, 1975), have led to widespread recognition in India today of the need to address gender inequalities, even though a large gap remains between acceptance of gender equality as an idea and its realisation in practice. From another perspective, however, the picture at the end of 2004

looked less cheerful. Groups in India concerned with gender justice embody a diversity of issues, approaches and strategies in which legal reform is only one element, and reform of property laws a subelement. Despite some recognition that women’s ownership of land and homestead is important for their economic and social security, there has been no systematic mobilisation for the reform of laws. (Recent reform of these laws, outlined further below, was spearheaded by a small number.) The stronger unifying force for legal change within the women’s movement has been around violence against women. Indeed, the issue of women’s property rights has failed to occupy centrestage in the way it did in the pre- and post-Independence period. One important reason

inheritance immediate

26 Personal communication from a senior office-bearer of the Voluntary Action Network India, Delhi, June 2002. 27 The figures given here were obtained through personal communication in June 2002, from the office-bearers of these various organisations.

for this (detailed in Agarwal 1994) is that most women’s organisations concerned with women’s economic situation have been largely preoccupied with wage employment and small incomegenerating schemes, and more recently with micro-credit, as the means of enhancing women’s economic well-being. Women’s lack of property ownership has received rather little attention, especially from the national women’s organisations. Even in the recent reform process, except for the Left-associated women’s organisations, such as AIDWA, others took rather little initiative on this front. Meanwhile, the reform of ‘personal laws’ has become enmeshed in questions of religious and community identity, and become politicised within ‘identity politics’. This is especially apparent in the debate over the Uniform Civil Code (UCC), namely a code that would apply uniformly to all religious groups and communities in the country, which are today governed by multiple laws. The demand for the UCC first put forward in the 1930s by the AIWC remained prominent till India’s independence. In the Constitutional Assembly, women representatives sought in vain to have the UCC included as a justiciable right. It was incorporated into the Constitution only within the Directive Principles of State policy, that is as nonjusticiable and as something that the State would ‘endeavour’ to secure, in effect putting it in the back burner (see also Parashar 1992). Within pre-Independence feminist discourse, the UCC was viewed as a code for providing gender equality irrespective of religion and community, and so help bypass the inequalities that would persist if religion and custom continued to define personal laws. Today, however, the UCC is overlaid with additional meanings,

which were dormant earlier. In particular, it is seen as a means of promoting national unity, and of integrating diverse communities, deflecting it from the central question of gender equality (see also Hasan 2000). The UCC has also increasingly become associated with the agenda of the Hindu right-wing political groups in the minds of many intellectuals who have, as a result, distanced from the demand for an UCC (Sangari 1995, 2000; Working Group on Women’s Rights 1996). Basically, as noted, this discussion has sharpened political divisiveness with a rather unfortunate mingling of legal reform with issues of religious and ethnic identity and conservative political agendas. In the process, it has resurrected the old presumed conflict of interest between freedom of religion and gender equality. It has also been argued that the State, while

themselves

retaining the authority to modify aspects of religious personal laws, has not put consistent emphasis on curtailing the authority of religion (Parashar 1992: 272). From these complex debates it is possible to broadly glean four

positions held by individuals/groups interested in gender equality in personal laws: (i) those that argue that personal law reform should proceed from ‘within’ each religious group, with each group being left to pursue legal reform separately;28 (ii) those that argue for a package of gender-just laws (rather than an UCC) which applies to all citizens by birth, but which coexists with personal laws, so that on adulthood each person can choose whether to be governed by the one or the other ( Working Group on Women’s Rights 1996); (iii) those that argue for a gender-just/gender-equal civil code that applies to all citizens without option, and which is based on the Constitutional promise of gender equality, rather than on religious decree or custom; and (iv) those that see the last position as their long-term goal but accept the first position as an interim measure for strategic reasons, arguing that once the limits of reform have been reached within the personal law framework the discussion could then be taken toward position three. The first position, however, has persisted by default, since, until

recently, there was little mobilisation for (ii), (iii) or (iv). And the absence of consensus among women’s groups, in addition to the of a concerted focus on this issue, meant that there was no critical mass of women to push this demand forward or propel it to the level of a national debate. Vis-à-vis the first position, Sangari (1995: 3297) notes: ‘Apart from the risks of isolation and failure, a struggle to reform personal laws from within puts the onus on a small number of persons.’ Also, given that decision-making within communities is typically male dominated and women’s interests seldom get primacy, we might ask: what would propel each to work for such legal reform in a gender-progressive Moreover, this position artificially divides women by religion (see Sangari 1995: 3294). Empirical research into women’s situation in South Asia reveals that cultural geography, rather than religious difference, explains variations in women’s social and economic status (Agarwal 1994), and the markers of divisions among men, in class and political ideology, do not divide women in the same

absence

community direction?

particular 28 See also Gandhi and Shah (1991).

way (Agarwal 1994; 2000). It is however the fourth position which largely underlies the spearheading of the significant recent outlined later in this article. All said, despite a vibrant women’s movement in India today, whose scope, reach and influence has grown since the 1940s and 1950s, the very diversity of concerns, approaches and ideologies that the movement embodies has often reduced its cohesiveness and undermined its effectiveness on particular issues. Indeed, the Indian women’s movement has many different ‘centres’ with several tendencies at work. This has tended to reduce women’s collective bargaining power since it has lacked the unified thrust necessary to pressure the State into eliminating persisting in the inheritance laws. That recent amendments have taken place despite these weaknesses has been due, at least in part, to the forging of new alliances beyond women’s groups, and the support provided by significant elements of the political parties currently in power. Support from the State For reforming inheritance laws, support from the State needs to be examined both at the level of the central government and the state government. Both levels impinge on the gender inequalities which persisted till recently, especially unequal rights in agricultural land and unequal shares in joint family property. After Independence, India adopted a federal structure of with a division of power and responsibilities (both executive and legislative) between the centre and the states. And, as noted earlier, under the Constitution, legislative jurisdiction was divided by subjects into three parts: a union (or centre) list, a state list, and a concurrent list. Agriculture and land-related matters, other than succession, fall under the ‘state list’, while laws on property (with no exceptions for agricultural land) fall under the ‘concurrent list’.29 Modification of laws on topics in the concurrent list, which have already been passed by an Act of Parliament, further needs the assent of the President of India. The HSA of 1956 is such a central government enactment.

amendments

centrifugal

inequalities

government,

succession

29 In this respect (as on some other counts) the Constitution of India differs from the Government of India Act of 1935. The latter, in entry 7 of its List III — List — which covered succession, had a clause ‘save as regards agricultural land’. However, in the Constitution of India, the equivalent entry 5 of List III — List — does not have any such clause that exempts agricultural land from its purview.

Concurrent Concurrent

Legal reform at the state level would require each state to amend its tenurial laws to remove inequalities in the devolution of land, and amend the HSA for removing inequalities vis-à-vis joint family property. The latter amendment would first have to be passed by each state legislature separately and then sanctioned by the President of India. In contrast, if reform were initiated by the central government, it could, at a stroke, amend the HSA by bringing agricultural land on par with other forms of property, and abolish the Mitakshara coparcenary system altogether. This would remove both types of inequalities comprehensively, at one go, and for all states simultaneously. Until recently, reform initiatives came from the states rather than the centre, and the pattern of reform reflected variations in cultural geography and women’s status across India. Both historically and today, women’s social position has been much better in the southern states than in the northern, with other states coming in between (Agarwal 1994). On average, the southern states, compared with the northern, have higher female literacy levels, lower total fertility rates, an absence of purdah and hence higher female mobility among most communities (compared with a strong emphasis on purdah in the northwest, even among Hindus), higher female work outside the home, and social norms that permit women to marry within the village and within the extended family, which strengthens their fall-back position and hence intra-marital power. These cultural patterns also influenced inheritance laws. For example, as noted earlier, inequalities in the devolution rules for agricultural land persisted basically in the tenurial laws of the states. Elsewhere, the tenurial laws either did not specify any order of devolution, so that by default the HSA applied also to agricultural land, or they specified that the HSA (or personal law) applied. Similarly, cultural geography helps explain to a large extent why certain states amended the HSA and others did not. The five states that amended the HSA to make rights in joint family property more gender-equal, all lie in southern and western India. Kerala went the farthest by abolishing joint family property altogether. The other three southern states and Maharashtra followed, although through a different route, by including daughters as coparceners on par with sons in the Mitakshara coparcenary. Whatever their form, however,

agricultural

participation bargaining northwestern

all the amendments occurred in southern and western India, and none in northern India. In the states where gender inequalities in the HSA persisted,

efforts at reform required measures dealing with both joint family

property and agricultural land. These measures, as noted, could be taken by each state individually, or by the central government For instance, the remaining states could follow the lead of the southern ones in amending the HSA. On agricultural land, similarly, state legislatures could have amended their tenurial laws. Reform at the state level, however, proved difficult on at least four counts. First, most states lack the gender-progressive groups that have either shown a systematic concern for the property issue or that have the numerical strength to mobilise effectively on it. As noted, in Maharashtra — the only non-southern state to amend the HSA — there were progressive lawyers and women’s groups who took up this cause. Two, since the HSA amendments proposed by state governments require the President’s sanction, this extra step could be subject to delays. Three, especially for agricultural land, locally entrenched landed interests could obstruct amendments. Four, the north-western states, with the highest gender inequalities, were likely to resist the most, given the prevailing marriage and strong male bias. For all these reasons, clearly reform through the central government rather than through the state governments, was the more effective route.

comprehensively.

patterns

On the positive side, there were some central government moves

that suggested a willingness to reform Hindu inheritance laws in a gender-equal direction. In 1997, for instance, the Ministry of Rural Areas and Employment set up a Committee for Gender Equality in Land Devolution in Tenurial Laws (chaired by me, with Sivaramayya and Sarkar as members). Our Report (Agarwal et al. 1998) amending existing tenurial laws to bring about full gender equality in the devolution rules. While the recommendations did not get the response that we had hoped for from concerned state I understand that in UP, as a result, widows were brought on par with sons as first order heirs. Again in 1999 the central government mandated the Indian Law Commission to recommend changes in the HSA. Based on the Report (Law Commission 2000), the Hindu Succession (Amendment) Bill 2004 was introduced in the Rajya Sabha on 20 December 2004. This Bill’s recommendations, however, were

recommended

governments, Commission’s

very similar to the amendments introduced by the four states other than Kerala. It recommended that the then-unmarried daughters be made coparceners like sons in the Mitakshara coparcenary and was silent on agricultural land and on the freedom of testation. Basically, the 2004 Bill reproduced the shortcomings of the Law Commission’s Report. Interestingly, in 1999, the Commission had fielded a questionnaire to NGOs and individuals seeking their to alternative proposals for amendments, such as whether or not to bring all agricultural land under the HSA, and whether to abolish joint family property altogether or make daughters coparcerners on the same basis as sons. Eighty-eight per cent of the responses favoured bringing gender equality in the inheritance of agricultural land, 73 per cent supported the abolition of joint family property altogether and 63 per cent supported restrictions on testamentary rights. But on each count the Commission took the conservative route.

responses

In some ways the Law Commission’s efforts were akin to those

of the 1945 Rau Committee, which too solicited public opinions on aspects of the Hindu Code Bill. However, unlike the Rau which went beyond the received opinions to recommend radical changes in women’s favour, the Law Commission’s were conservative, although the questionnaire responses favoured radical change.30 There was little comment or protest from women’s groups on the restricted nature of the Law Commission’s recommendations, or initially even on the 2004 Bill introduced in the Rajya Sabha in December 2004 which reproduced all the lacunae in the Law recommendations. And there the matter might have rested but for mobilisation for comprehensive reform initiated by some of us soon thereafter, as described further below. Support from civil society groups In numbers, India’s civil society groups have burgeoned in the past two decades. There are an estimated two million citizen’s organisations in India today (Mitra 2001), while estimates of development NGOs range from 3,700 (Development Alternatives 1998), to 25,000 (VANI 2000). But on taking up the cause of inheritance laws the picture is a mixed one. On the one hand, until very recently (as noted above) apart from some women’s groups and key individuals, few civil society actors

Commission recommendations Commission’s

30 See Agarwal (2002) on the justification provided by The Law Commission Report for this recommendation, and a discussion on some weaknesses in that justification.

explicitly focused on amending inheritance laws. On the other hand, some notable civil society actors have, in recent years, become deeply interested in enhancing women’s access to land (although through means other than inheritance) for strengthening their livelihood options. For instance, since 1989, the Deccan Development Society in Andhra Pradesh has been helping poor, low-caste women purchase or lease in land in groups and cultivate it collectively, using the state government’s scheme of subsidised credit for this purpose (Agarwal 2003). There are also ongoing efforts by NGOs and movements in some other states, including UP, Rajasthan and Gujarat, to increase rural women’s land access in various ways.31 Earlier some peasant movements too had taken up the cause of women’s land rights, such as the Bodhgaya movement in Bihar in the late-1970s, and the Shetkari Sanghathana Andolan in Maharashtra in the 1980s (for details see Agarwal 1994). In addition, there are urban groups seeking to enhance women’s rights in dwelling houses, some of them linked with international initiatives through the United Nations Centre for Human Settlements, and the Housing and Land Rights Network in Delhi. While these groups had not come together earlier for amending inheritance laws, some of them proved important forces of support in the mobilisation around the 2004 HSA Bill. Entrenched property and political structures Rural families continue to have high stakes in agricultural landed property, as they did when the HSA was framed. Indeed, since the HSA was passed, some north-western states sought to amend it retrogressively to exclude daughters altogether from agricultural land. For instance, in 1969, a Bill tabled before the Punjab Legislative Assembly argued that daughters should have no share in agricultural land since this would cause fragmentation and daughters received a dowry anyway. This attempt was strongly opposed by women in Punjab and by the then President of the AIWC, Tara Ali Baig, who noted that took place even when sons inherited (and had other and that dowry had been legally banned since 1961. The Bill was not passed (Mies 1980). The Haryana state legislature sought a

fragmentation solutions), 31 A notable example is the ‘Ekta Parishad’ which began as a movement for

livelihood rights in 1991, but linked this specifically with land rights around 1999–2000,

and took up the issue of women’s land rights through its Ekta Mahila Manch in 2001. Jill Carr-Harris, in particular, has been working on women’s land rights within the Parishad, to which I have also provided inputs from time to time.

similar amendment around 1979, but the President of India refused his assent.32 Although unsuccessful, these Bills represented an unfavourable bent. Moreover, members with a rural base have grown in the Lok Sabha ( Table 2). The First Lok Sabha in 1952 had 22.4 per cent By 1998, in the Twelfth Lok Sabha their percentage had more than doubled to 49.1 per cent. In contrast, persons with backgrounds had declined dramatically. The percentage of lawyers, for instance, had fallen from 35.4 to 10.3 per cent. A large percentage of members from rural backgrounds, many with strong stakes in landed property, could be seen as potential opponents to changing property law, especially in relation to agri-cultural land. Social perceptions and social norms In terms of mass of gender inequalities there have been substantial strides. There is also a growing social acceptance of the idea of gender equality in some spheres, such as education and access to occupations that were earlier the preserve of men. But this acceptance has not yet extended to equality in property.

agriculturalists. professional/legal/service

awareness

Given this, it could not be predicted for sure how the Parliament

would respond to gender-egalitarian amendments to the HSA. the gendered attitudes encountered by women in their for reservation of seats in the Parliament suggested that HSA reform too could prove difficult. Indeed, some comments made by male parliamentarians during the 1997 parliamentary debate on the Women’s Reservation Bill strongly echoed those made by male MPs in the 1940s debates on the Hindu Code Bill. For instance, echoing the noted ‘lavender and lipstick bag variety’ comment in 1949 by a male MP during the Hindu Code debate, one male MP in 1997 caricatured the women supporting the Reservation Bill as women of the ‘short hair variety’ who were incapable of leading the nation. Ironically, as one journalist, reporting on this 1997 debate, pointed out, India’s only woman Prime Minister belonged to this ‘short hair variety’.33 There was also the larger question of the link between the of gender-progressive legislation, such as on inheritance, and women’s presence in the legislatures. Some argued strongly for the

Certainly, demand

precisely passing

32 Personal communication from B. Sivaramayya, 1992. 33 See e.g., Sharad Yadav’s comment, reported in The Indian Express, 17 May 1997, p. 9; and Ananya Chatterjee’s response in The Pioneer, 27 May 1997.

‘politics of ideas’, others for the ‘politics of presence’. In the for the Hindu Code in the first half of the 20th century, women had to rely quite substantially on the politics of ideas, since their direct presence in the legislatures was extremely sparse. But at that historic juncture such reliance served them reasonably well, since the idea itself had some highly influential male supporters with the commitment and stature to carry it forward. Today, women’s presence in the legislatures remains equally sparse. In addition, there have been the noted shifts in parliamentary composition and the politics of religion, so it could not be assumed that similar support through the realm of ideas would emerge. Much would depend on what ideas were held by the parties in power and their willingness to take up legal reform, as indicated by the post-December 2004 developments.

campaign

Developments since December 2004 The period since December 2004 has seen some significant

developments which bear description and analysis. On 29 August 2005 the

Hindu Succession (Amendment) Bill was passed by Parliament and subsequently ratified by the President. It is now the Hindu Succession (Amendment) Act (HSAA) 2005. This has brought the HSA close to gender equality and is the most significant amendment of inheritance law since the 1950s. By deleting Section 4(2) of the HSA, the HSAA has brought gender parity in the inheritance of agricultural land across all states (overriding any contradictory state laws). It has also made all daughters, including married daughters, coparceners in joint family property; and it has given all daughters the same rights as sons to reside in or seek partition of the parental dwelling house (see also Table 3). Some anomalies remain due to the retention of the Mitakshara

joint property system which many of us had wanted abolished altogether.34 But such abolition needed to be dovetailed with restricting the right to will. 35 Otherwise women could end up

partially

34 Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased’s widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. This is a cause for concern in the southern states where the wife takes no share on partition. Abolishing the Mitakshara system altogether would have been more egalitarian vis-à-vis different categories of women (see Agarwal 2005b). 35 Such restrictions are common in several European countries. Islamic law also restricts testamentary freedom.

especially

In

a

dwelling house wholly occupied by members of the deceased's family, no female heir can claim partition, "until the male heirs choose to divide their respective shares". Daughters only have rights of residence, and only if unmarried, or deserted, separated or widowed.

Family Dwelling

Inheritance of agricultural land is subject to state-level tenurial laws and not to the HSA. Many of the tenurial laws specify inheritance rules that are highly gender unequal.

(Section 23)

Section 23 deleted: Now daughters (unmarried or married) have the same rights as sons to reside in and to claim partition of the parental dwelling house.

House

rights in all agricultural land are subject to the HSA (overriding state laws inconsistent with the Act), and so, effectively, are now gender equal.

Inheritance

Agricultural Land (Section 4 (2))

daughters both have independent birth rights (and liabilities) as coparceners in joint family property. [These shares cannot be willed away by the father.]

Modified Section 6: Sons and

gender

of class I heirs (see further

list of class I heirs for

specification

Sons have additional independent birth rights in joint family property as coparceners. Daughters cannot be coparceners.

except in the

No change, below).

in

Class I heirs (male and female) as specified above have equal claims a man's "notional" share of the undivided joint family property. A man can, however, will away his "notional" share.

The Mitakshara Joint Family Property (Section 6)

change.

No

The heirs of both

have full rights to alienate inherited property.

change, except for expanding the equality (see further below).

sexes

No

The Deceased Man's Separate Property

Hindu Succession (Amendment) Act 2005

Hindu Women's Inheritance Rights: Unamended HSA, 1956 and Amended HSA, 2005

Equal shares for class I heirs, viz. son, daughter, widow, mother and specified heirs of predeceased sons and daughters.

Hindu Succession Act 1956

Table 3

Source:

Agarwal (2005b).

to

Section 8)

can

inherit

daughters.

Schedule modified to include as class I heirs the children of predeceased children, going down to two generations for both sons and

No

change

Testamentary Rights (Section 30) and women have full rights to will away their property, their shares in joint family property.

men

including

Both

(Amendment) Act 2005

Section 24 deleted: The mentioned categories of widows if they have remarried.

even

Definition of Class I Heirs (Schedule: Reference

The class I heirs of a Hindu male include the children of pre-deceased children, but these are recognised up to two generations for predeceased sons, and only upto one generation for predeceased

daughters.

Hindu Succession Certain Categories of Widows (Section 24)

The widow of a pre-deceased son, or of a pre-deceased son of a predeceased son, or of a brother, is not entitled to inherit the intestate's property as a widow, if on the date the succession opens she has remarried.

Hindu Succession Act 1956

inheriting little, as wills often disinherit them. However, since the HSAA did not touch testamentary freedom, retaining the Mitakshara system and making daughters coparceners, while not the ideal at least provides women assured shares in joint family (and if we include landholdings, which many hold jointly, the numbers benefiting could be large). In other words, despite some anomalies, the HSAA can be seen as a landmark step towards gender equality. While the history of this substantial change awaits writing, a brief outline of the course of events is presented below to flag some of the enabling factors, despite the noted disabling ones.36 In my view, at least three factors were significant in the passing of the HSAA. The first was government support, in particular from a ruling party and its allies which had the will to reform and the commitment to promoting laws to enhance gender equality.37 This intent was apparent in the introduction of the 2004 Bill to amend the HSA, whatever the Bill’s actual flaws. It was also apparent in the role played by the Parliamentary Standing Committee on Law and Justice chaired by Mr Natchiappan, whose Report ( Natchiappan 2005) incorporated many of the suggestions and arguments that some of us from civil society made for correcting the Bill’s flaws. And it was apparent in the role that some of the MPs of the Congress and its allies played behind the scenes to see the revised Bill through in the monsoon session of Parliament in August 2005. These aspects, despite the less than favourable overall social composition of were significant in terms of support from the state. The second factor was the concerted civil society effort to bring the Bill’s flaws to the government’s and to the public’s attention and to outline exactly what changes should be made to rectify the Bill, including indicating the specific legal sections and articles in the HSA which needed to be deleted or reworded. In other words, the demands stemmed from clear legal knowledge and research and were framed in precise language, and not in terms of vague or

solution, property

Parliament,

36 This outline is written with the caveat that this narration and analysis could be partial and somewhat personalised, given my involvement in the events, and more probing could add nuance and further substance to it. 37 Both Sonia Gandhi (President of the Congress Party and Chairman of the National Advisory Council) and Prime Minister Manmohan Singh have shown a keen interest in progressive legal reform, and 2005 has seen the passage of more legislation in favour of women and the disadvantaged than possibly seen in the entire previous decade.

generalised recommendations. This helped focus the amendment agenda. These civil society efforts involved several steps and elements. (i) To raise wider public awareness, generate debate and mobilise support, the issues were raised in newspaper and newsletter articles and disseminated via email. Hence, for instance, in December 2004, three days after the introduction of the 2004 Bill in the Rajya Sabha, I wrote an op-ed piece in the The Indian Express asking for comprehensive reform, identifying the partial and flawed amendments proposed in the Bill (Agarwal 2005a). Subsequently, the Supreme Court lawyer, Kirti Singh, published a similar piece elsewhere (Singh 2005). (ii) In January 2005, some of us spearheaded a national consultation on and endorsement of a memorandum to be submitted to the government, asking for comprehensive reform to ensure gender equality. For this purpose, I contacted the Human Rights Law Network (HRLN), and the Housing and Land Rights Network (HLRN) and in January 2005 we first held a small consultation of the major women’s organisations in Delhi to elicit their response to the draft Memorandum. We followed this, again in January, by organising a national-level meeting in Delhi, which was attended by a fairly wide representation of grassroots groups and individuals, most of whom endorsed the Memorandum after small modifications; many others did so via email. The final Memorandum was endorsed by 50 organisations and 122 individuals from across the country. We were able to muster support not simply from women’s groups, but from a wide range of civil society groups, including those on legal reform, human rights, housing and land rights, widow’s rights, poverty alleviation, people’s rights and and so on. It also included people from all religious communities. These strategic linkages helped us gain a large number of endorsements for our Memorandum within a fairly short period of time. In January 2005, the Memorandum was submitted to the Prime Minister, to Mrs Sonia Gandhi, to the Law Minister, to the Parliamentary Standing Committee on Law and Justice, and to every single Member of both houses of Parliament. Another memorandum submitted to the Law Minister at around the same time was initiated by AIDWA,

working livelihoods,

and endorsed by five women’s organisations, including some national level ones. Both Memorandums demanded gender equality in rights to agricultural land, the abolition of the Mitakshara coparcenary system altogether, and some on the freedom to will away all property (although the Memorandums differed in the nature of restrictions sought). (iii) There was scope for direct dialogue between civil society and the government on the modification of the 2004 Bill through depositions before the Parliamentary Standing Committee for Law and Justice, to which the Bill was referred for Some of us were invited to depose at length before the Committee and to submit additional clarificatory notes to questions raised during the deposition. The chair of the Committee, Mr Natchiappan, with whom I had occasion to speak several times even after the formal deposition, is a particularly open-minded man, committed to comprehensive reform. Some lawyers and MPs were also supportive. The Standing Committee’s Report drew on our Memorandum and deposition as well as on the material and deposition ofAIDWA, and some others (Natchiappan 2005). It incorporated many of our suggestions and arguments almost verbatim; overrode some of the arguments to the contrary put forward by the Law Ministry; and provided additional justifications where needed. The Standing Committee’s Report formed the basis for a revised Bill subsequently introduced and passed in Parliament. (iv) After the Natchiappan Report’s submission, efforts were again made by some of us to have a revised Bill tabled in Parliament at the earliest. It was finally tabled and passed in the Lok Sabha (the lower house of Parliament) on the last day of the 2005 monsoon session of Parliament.

restrictions

modification. Standing

The third factor (entirely fortuitous) was that since the

amendment on agricultural land simply involved deleting a section, many

MPs who might have opposed the amendment, possibly did not realise the full import of the deletion, when the Bill came to the Lok Sabha. There could be at least two reasons for the failure to recognise the import. One, some of them may have been unfamiliar with the full HSA and what that section stood for;two, there was

a widespread and incorrect impression that agriculture is a state subject and therefore would not be affected by a central government legislation — this impression would have obscured the true nature of the amendment. As noted earlier, the correct position is that issues relating to succession of all property are in the concurrent list of the Constitution and can be legislated on by the Centre. The Central government amendment overrides any contradictory state level laws, including those relating to agricultural land. In other words, at least three of the six factors outlined earlier as

important for legal change were favourable (viz., group support and acting as a group, support from critical elements of the State, and support from civil society groups, social reformers and the media). A fourth factor, namely entrenched property interests, was neutralised by the support from significant State actors, by the over agricultural land, and by the speed with which the legislation was passed, which prevented disabling factors (including those linked with social norms and social perceptions) from kicking in. That the amended Bill was tabled on the last day of the monsoon session no doubt helped, since there was rather little time for to build up. It is also worth noting a point I had emphasised in an earlier and longer version of this article, namely the importance of drawing on a wide range of civil society support, and focusing attention on this issue ‘not just from the perspective of gender justice but also from the perspective of livelihoods, given the critical link economic security (especially food security), reduced risk of poverty, and possessing a piece of arable land’ (Agarwal, 2002: 33). In other words, for reforming the HSA, I had argued that the rights-based approach with a livelihood approach could prove more effective. This assessment proved correct. Indeed, it was in keeping with this understanding that in the campaign that my colleagues and I initiated for the comprehensive reform of Hindu succession law, we sought endorsements for our Memorandum from a wide range of organisations and individuals, including those on people’s land rights and livelihoods. The concerns of these groups will be well-served by the HSAA which, if effectively has the potential for enhancing the economic and social security of millions of women.38

confusion

opposition

centrally between supplementing

working implemented, 38 For elaboration see Agarwal (2005b, 2005a).

In

Conclusion

This article has presented a framework for understanding both legal change and the process by which such change may be furthered. As outlined here, for reforming laws in a more gender-equal direction it will be necessary to improve women’s bargaining power with the State (where the laws are largely formulated), as well as with the community (where the legal changes need legitimising). A number of factors are likely to determine women’s bargaining power, not least of which are women’s group strength and cohesiveness and the socially recognised legitimacy of their claims. Indeed, women’s collective functioning and sense of group identity are likely to be critical elements in affecting change towards gender equality, both by giving weight to women’s claims and by challenging genderdisabling norms and perceptions. In the formulation of the HSA in 1956 the enabling factors came together and helped overcome the strong opposition from elements of the State and from men’s entrenched economic and political Today, some of these factors are more favourable, such as more positive attitudes to gender equality, the proliferation of women’s groups and gender-progressive grassroots groups overall, and support from within the ruling party and its allies. But some other factors are less favourable, such as a lack of single-minded focus on the issue by such groups, and a more conservative parliamentary composition. During 2005, as in 1956, the positive factors helped overcome the negative ones in enabling the passage of the HSAA. The next steps in inheritance law reform, while still keeping within the personal law framework, would relate to laws governing Muslim and tribal women. For the former, legal reform is needed to bring agricultural land within the purview of the Muslim Personal Law Shariat (Application) Act 1937; for the latter codifying a new gender just law is required (see Agarwal 2005c). As with the HSAA, the prospects for such change are likely to depend in substantial part on the ability of divergent women’s groups and the wider civil society to mobilise nationally, to continue linking up with the more elements of the State apparatus, and spearheading the not just through arguments for justice and rights, but also through arguments for livelihood enhancement.

interests.

supportive campaign

However, more substantive change, such as establishing a gender-

equal inheritance law that would apply equally to all communities,

would depend on the complex and potentially conflictual interplay between legal reform, gender justice, and identity politics. At the moment there appears to be little scope for optimism on prospects for such a substantive move. Conceptually, however, the bargaining framework, applied here

to the laws governing Hindu succession, could prove useful and to other contexts, such as for examining past processes and future prospects for change in other gender-unequal laws as well.

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About the

Contributors

Bina Agarwal is Professor of Economics in the Institute of Economic

Growth, University of Delhi. Educated at the universities of Cambridge and Delhi, she has held distinguished positions at Harvard, Princeton, Columbia, Michigan, Minnesota, and Sussex, and lectured world-wide. Her publications cover a range of subjects: land, livelihoods and property rights; and development; the political economy of gender; poverty and inequality; law; and agriculture and technological change. She is the author of A Field of One’s Own: Gender and Land Rights in South Asia (1994); and has co-edited (with Alessandro Vercelli) Psychology, Rationality and Economic Behaviour: Challenging Standard Assumptions (2005); and with Jane Humphries and Ingrid Robeyns, Capabilities, Freedom and Equality: Amartya Sen’s Work From a Gender Perspective (2006). Flavia Agnes is a women’s rights lawyer. A prolific writer, she has provided incisive analysis of many social trends and legal reforms including domestic violence, gender and identity and minority law reforms. Her primary engagement has been to provide quality legal services to women and children through Majlis, an NGO co-founded by her. She is the author of Law & Gender Inequality (1999). Damini Bhalla graduated from the National Academy of Legal Studies and Research, Hyderabad, India. She has a special interest in questions of discrimination. She is an Associate with Luthra and Luthra, Mumbai. Amita Dhanda is Professor of Law at the National Academy of Legal Studies and Research (NALSAR), Hyderabad, India. She has been studying closely the legal processes which contribute to conditions of exclusion and marginalisation, and exploring legal strategies that can reverse the process. She has written on the legal position of persons with psychosocial and disabilities. She is the author of Legal Order and Mental Disorder (2000); co-author of On Their Own (2005); and jointly revised Bindra’s Interpretation of Statutes (2007). She has also

interrelated environment

extensively intellectual

co-edited (with Archana Parashar) Engendering Law: Essays in Honour of Lotika Sarkar (1999). Prabha Kotiswaran has a Masters and Doctoral Law degrees from Harvard Law School and an undergraduate law degree from the National Law School of India University, Bangalore. She is lecturer in the Department of Law, School of Oriental and African Studies, University of London. Archana Parashar is Associate Professor in Law at Macquarie Sydney, Australia. She has an abiding interest in Western Feminist theory, its presence in contemporary legal theory, and its relevance for women in the third world and immigrant women in Australia. She has published many articles on the subject of women’s position under the personal laws, the relevance of legal pluralism, and its implications for gender justice in the Indian family laws. She is the author of Women and Family Law Reform in India (1992) and has co-edited (with Amita Dhanda) Law: Essays in Honour of Lotika Sarkar (1999). Kamala Sankaran is currently Research Professor at the Indian Law Institute, New Delhi. She taught for several years at the Faculty of Law, University of Delhi, and the Faculty of Law, Jamia Millia Islamia at New Delhi. Her areas of interest include international labour standards, constitutional law, and gender and the law. She is the author of the Industrial Law and Employment Law volumes of Halsbury Laws of India (2003 and 2006). Supriya Sankaran has graduated from the National Academy of Legal Studies and Research, Hyderabad, India. She has a special interest in questions of human rights and gender discrimination. She is an Associate with Amarchand Mangal Dass, New Delhi. (Late) S.P. Sathe was one of the leading teacher-scholars of India. In his long career he taught at Banaras Hindu University and the University of Bombay, and worked at the Indian Law Institute, New Delhi. He was Principal of ILS Law College Pune until 1991, and was the Honorary Director of the Institute of Advanced Legal Studies, Pune till his death in March 2006. He wrote in the field of public law and judicial process; his include Constitutional Amendments 1950–1985 Law and Politics (1989); The Tribunal System in India (1997); Judicial in India: Transgressing Borders and Enforcing Limits (2002); Administrative Law (2004); and Right to Information (2005).

currently University,

Engendering

extensively publications Activism

Poonam Saxena is Professor at the Faculty of Law, University of Delhi,

and has been teaching Family law and property law for the past 24 years. She is currently Senior Fulbright Scholar and Visiting Lecturer at the University of Baltimore, Maryland, USA. She is also the recipient of Shastri Indo-CanadianWomen and Award Fellowship (2000). She is the author of Family Law Lectures Family Law II: Property Law; and has contributed two volumes Trusts and Charities (2000) and Property and (2002) for Halsbury’s Laws of India. Patricia Uberoi is Professor of Sociology at the Institute of Economic Growth, University of Delhi, and concurrently Honorary Director of the Institute of Chinese Studies (Delhi), and co-editor of to Indian Sociology. Her publications include two edited volumes entitled Family, Kinship and Marriage in India (1993); and Social Reform, Sexuality and the State (1996); and two Tradition, Pluralism and Identity (1999); and Freedom and Destiny: Gender, Family and Popular Culture in India (2006). M. Vasudevacharya is an author, translator, and commentator of a number of books and articles related to the Advaita tradition. He has an M.A. in Religious Studies from the University of Sydney and a PhD in Classical Indian Philosophy from the Australian National University (ANU). After a long career as an academic, which included his instruction of Sanskrit and Indian Philosophy in the departments of Religion and Indian Studies at ANU and the University of Sydney, he now works as an researcher and teacher. He is the author of Advaitamoda (1988); Extracting the Essence of the Sruti (1996); and The Method of Early Advaita Vedanta (2000). Sylvia Vatuk is Professor Emerita of Anthropology at the University of Illinois at Chicago, USA., where she began teaching in 1970. She received her BA in Sociology and Anthropology from Cornell University, her M.A. in Cultural Anthropology from the School of Oriental and African Studies, University of London and her PhD in Anthropology from Harvard University. She has published widely in scholarly books and journals on issues of family, gender, marriage and the law, among Hindus and Muslims in north and south India, respectively. Since 1998 she has been focusing mainly on questions of Muslim Personal Law and its impact on women.

Development Easements

Contributions monographs,

independent

kinship,

Index

1919 Government of India (GOI) Act, 319 1935 Government of India Act, 321, 323 Abduh, Muhammad, 17 ibn Abd al-Wahhab, Muhammad, 13 activists, women’s rights, 247 Adi Shankaracharya, 20 adoptee, curiosity of, 105 grown-up, 105 adoption, 93, 101 acceptance for the practice of, 109

against the will of the child, 92 child, in India, 95 child-friendly, law, 89, 106–109 and child rights, 90–92 of children of unwed mothers, 108 by a couple, 163 of daughters, 96 definition of, inducted in the JJA, 108 difference in the, relationship, 95 domestic, 87, 104 between families, 97 foreign, 104, 108 guidelines, 97, 102 hybrid system of, 101 Indian law of, 89 information on the place of, 104 institution of, 88 institutional care and, 91 inter-country, 91, 104 —, choice of, 91 —, procedure for, 104–106 as a mechanism of rehabilitation, 98

—, enactment of a uniform, 86 —, in India, 86–109 legal model of, 100 married Hindu male taking a child

in, 98 non-familial, 99, 107 —, closed, 107

—, Hindu Adoptions and Act, 1956, 100 open, 107 parent-driven, 99 rights, 158 shastric Hindu law of, 95 socio-cultural model of, prevailing in Hindu society, 101 visualised in Hindu Adoptions and Maintenance Act, 1956, 97 agricultural land, 315 Air Corporations Act, 194 Air India International, 193 al-Azhar University, 17 Aliyansantana, 295 al-jizya (poll tax), 16

Maintenance

All India Anti-Hindu Code Convention,

324 All India Hindu Women’s Conference, 323 All India Women’s Conference (AIWC), 318–319, 322–323, 326, 334 All-India Democratic Women’s (AIDWA), 334–335, 348 Ambedkar, Dr B.R., 325 Andhra Pradesh State Wakf Board, 208 asset, income-creating, 260

Association

Australian Family Law Act 1975 (FLA),

as a strategy of rehabilitation and

126

social reintegration, 101 Juvenile Justice Act (Care and of Children) model of, 108 law,

amendments to, in 1995, 126

Protection —, consensus for a uniform, 89

terminology of, 126 Australian family law, 123 awareness, mass, of gender inequalities, 342

Index

social, and movements by the sexual minorities, 175 Ayyangar, M.A., 324 B.N. Rau Committee, recommendation of, 62 Baig, Tara Ali, 341 bargaining power, collective, 337 intra-marital, 338 basti (begging), badhai (performances at birth and wedding ceremonies), 166–167 behaviour, appropriate, 143

sexual, 166 Bhagavad Gita, 1–2, 19 Bhargava, Pandit Thakur Das, 72 Biblical monotheism, 5 Best Interests of the Child, concept of, 122, 124, 126, 134, 136 —, criticism of, 124

—, historical origin of, 122 —, suitability of, 123 biological mother or father, 123 birth control, coercive methods of, 193–199 brahmana class, purity of, 23

British Matrimonial Causes Act, 1950, 70 capitalism, 34 emergence of, 33

late, 38 tourism-driven, 37 and wage labour process, 33 care-work, and domestic work within the house,

278 housework and, skills required for,

278 performed by women, 273 Catholicism, 8

Charter of Indian Women’s Rights, 327 Chhota Nagpur Tenancy Act 1908, 303 Child Labour (Prohibition and Regulation) Act 1986, 274 Child Marriage Restraint Act of 1929, 318 Child Welfare Committee, 101 child, abandoned, 101 adopted under Hindu Adoptions and

Maintenance Act, 1956, 102 adoptive, 100 biological reality of, 107 differences between adopting a, and giving birth, 92 girl, birth of, 179

Indian courts and the concept of the best interests of, 112–124 labour, 274 long-term welfare of, 126 lost, procedure for tracing the

parents of, 104 marriage, 239

rights of a, interpretation of, 128 upbringing and development of, 90 wishes of, 113 child-care, 272 facilities, 104 child-rearing practices, 134 Children’s Rights Movement, 111 Christian community in Goa, Daman and Diu, 295 Christianity, 3–4, 11, 26 and Islam, 18

medieval, 5 ciddat, 201, 212, 216, 218 expenses, 209, 219 Civil Code of Goa, 278 Civil Disobedience Movement, 322 Civil Partnership Act, 2004, 157 civil society groups, support from, 340–

341

Central Adoption Resource Agency

Classical Common Law theory, 128

(CARA), 101, 105 Central Government Guidelines on InCountry Adoption, 103

co-existence, peaceful, 18 cohabitation between the estranged parties, 245 Committee for Gender Equality in Land Devolution in Tenurial Laws, 339

Chamber of Representatives of the

Parliament, 158

Redefining Family Law in India

common law, artificial reason of, 129 conflict, matrimonial, 252 Congress, 322, 327 conjugality, 238, 240 Hindu, 236–237, 239, 244 —, constitutional validity of

enforced, 243–247

—, Hindu, in modern times, 240– 243 conscience, liberty of, 9 conservatism, sexual, 190 constitutional law, introduction of, in

home, 245 Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), 167, 180, 334 Article 3 of, 180 Convention on the Rights of the Child

(CRC), 89–90, 105, 108, 111, 127, 275 counselling, pre-adoption, 93 couple, same-sex, 153, 157–159, 161 —, existence of, 164

homosexual, 164 Criminal Tribes Act, 149 criminalisation of homosexual behaviour, 154 Criminal Tribes Act (CTA), 149 Section 29 of, 149

Deccan Development Society, 341 demarcation, theoretical, between and secular spheres, 9

religious Homosexual Offences and Prostitution,

Departmental Committee on

191

desertion, 241–242

Deshpande, V.G., 72 devolution, 313, 317 of agricultural property in India,

296–297 rules for agricultural land, 338

of tenancy rights, 297, 315 dharma, 25

dharmashastra, 19, 287 recognition of, 65 discrimination,

in allotment of land resources, 299 between the classes, 21 exclusion, violence and exploitation,

170 on the ground of gender 167 legislative indifference to, against women, 294 and persecution against specified groups, 141

stereotyping,

sex-linked, 292

against sexual minorities, 191 against women, 284

cross-cousins, 332

Discriminatory Ceilings on Agricultural

cross-referencing, 71 custody, of child, 118 —, minor, 116, 118–119

Land Holdings, 299 dispossession, injunction against, 250 women’s, 247

—, minor, on remarriage, 118

disputes, child related, 135

disputes, 134

under Hanafi Law, 117 custom, allowance of, 71

saving of, 71 status and definition of, 79 dâr-ul quzat, 206, 217, 220–222 Das, Pandit Thakur, 324 dasi communities of south India, 31 daughters, adult married, 299 Dayabhaga, 313–315

Dissolution of Muslim Marriages Act (DMMA), 202, 223–228 dissolution, of marriage, 262–263, 277 —, by divorce, 265

divorce, ability of women to initiate, 203 Bills supporting Hindu women’s right

to, 321 certificate, 216

certificates (talâqnâma or khulcnâma), 205–206

court, 226 disputes in the context of, and applications, 113 division of matrimonial property during, 277

maintenance

extra-judicial, 203

files maintained by Hyderabad qâzîs, 228 granted, —, under Dissolution of Muslim

Marriages Act (DMMA), 231 —, by the high court, 246 grounds, —, under Dissolution of Muslim

Marriages Act (DMMA), 223 —, to obtain, in India, 266 by khulc, 202–207

liberalization of, 78 by mutual consent, 249, 253 no-fault, 247 provisions regarding, 228 reasons for, 213 —, wanting a, 214

records of, 205–206 registered, 228 —, with qâzîs, 221 and remarriage, 58 unilateral, initiated by the man, 228–

229 at the wife’s initiative in Muslim

Personal Law, 200–232

woman-initiated, 228, 230, 232

—, civil, 203 domestic community, 245

domestic laws, international conventions and norms for construing, 304 Domestic Violence Act, statutory

recognition under, 255–256

domestic work, 258 domestic workers, 276 donations, temple inscriptions of land, by women, 314 dowry (jahez), 225 death, 255

harassment, 255 marriage in the north, prevalence

of, 57 Draft Code, black flag demonstrations

against, 323

duties, to maintain the wife, 266

matrimonial, performance of, 266 to perform domestic work and run the household, 265 wifely, 265 economy, son-centered, 287 education, access to, 166 Emigration Hijrah of the Muslim

community

to Medina, 15 Employees Provident Fund Scheme 1952, 165 employment, free, capitalist definition of, 40 gainful, 242, 267 —, access to, 190 paid, outside the home, 274 empowerment, women’s, 196

endogamy, caste, 67 —, abolition of, 64

enforcement, discriminatory, of anti-sex work laws, 40 enfranchisement, 320–321 enlightenment, 2 equal parenting, 135 Equal Remuneration Act 1976, 165,

276 equality, 242 economic, 287

principle of, 2 —, constitutional, 287 estate, limited, 286

women’s, 286 European Convention on Human Rights (ECHR), 153 exclusion, from the family, 151 of shudras from the Vedic religious life, 22 exogamous group, boundaries of, 66 exogamy, north Indian customary rules

of, 57 exploitation, labour desertion and, 35

extended family, 123, 338 system, 288

extended United Nation’s System of National Accounts (SNA), 270 activities, 269 extortion, 169

extremism, modern Islamic, 12 Family Court, 224, 226 Family Courts Act (FCA), 224 family law, implications of the work position for,

48–52 in India, 236 family,

adoptive, 100 definition of, 165, 299 —, in the agricultural laws, 300

and households in India, 267 joint, —, concept of, 285

—, continuation of, system, 287 —, division of, into separate and ancestral property, 287 —, father’s 288 —, Hindu, retention of, system, 288–289 —, property, 274, 313, 338 —, property, abolition of, 340 —, system, 283, 286 —, system, abolition of, 287 —, system, retention of, 288 work and matrimonial property, 258 female, autonomy, 59–60

education, 328 foetus, 179 intestates, 290 literacy, 60 mobility, 338 predominance of, in unpaid activities, 135 rights, 315 —, property 314

work participation outside the home, 388 feminity, 144, societal norms of, and maternalism,

135 feminism, 44

middle-ground, 44–46 postmodern, 37–40 radical, 35, 45 socialist, 28, 47 —, classical, 31 —, insights from, 44 feminist dependency theory,

postcolonial,

32 fidelity, lack of, 50 First God, 4 forgive (mocâfkarnâ), 216 fragmentation, of agricultural holdings, 315 and commodification of labour, 34 freedom, fundamental, and human rights, 304 of sexuality, 179, 180 struggle, 328 fundamentalism, modern Islamic, and extremism, 12

reproductive

Gandhi, Sonia, 347 gay, couples, 159

lesbians and transsexuals, 190 gender, age, and marital status, 311

bias in Muslim Personal Law, 200 conflict between the physical sex and the, identity, 145 difference, 311 discriminatory provisions, 305 equality, 134, 168, 322, 335 —, commitment to, 310

—, in the devolution rules, 339 —, and legal change, 306 —, in personal laws, 336 —, seriousness of the legislature

in pursuing, 287 equity, 277 expression, 144 hierarchies, 134 identity, 154, 162 justice, 282–305 neutrality, —, of family law, 135 —, of the HMA, 244

parity, 137, 288 politics of prohibited relationships, 78 segregation of women, 276 and sex, 143–146 gender-progressive individuals, 309 genealogical connection between

tradition

and religious personal laws, 3 Goan Laws, 294 God, revelation of, to the Prophet, 17 good custom (sadacara), values and, 26 good wife’s dharma, 31 gotra, and pravara affiliation, 66 exogamy, 67 Government of India Act of 1935, 320 Government’s Industrial Housing Scheme,

272 Guardian & Wards Act 1890 (GAWA), 112–113, 115–116, 118, 123, 163 Section 19 of, 117 Guardianship and Wards Act of 1898 (GAWA), 87 guardianship, 125

concept of, 125 —, confusion between, and

custody, 116

—, distinction between, custody

and, 125 preferential right of any person to, under the Personal Law, 120 principle of, 120

Guardianships and Wards Act 1890, 113

heirs, 164 heterosexuality, 141 and monogamy, 147 hijras, 142, 146, 151, 160, 167 and kothis, 164–165, 168

categorising, as a woman, 161 choice of becoming a, 167 sexual acts of, 150 status of, 149–150 Hindu Adoption and Maintenance Act

(HAMA) 1956, 62, 87, 95, 163 Hindu Code Bill in 1951, Parliamentary debates over the, 331 Hindu Code Bill, 286, 323, 326, 328,

331, 340, 342 formulation of, 318 Hindu Code, 323, 62 Hindu family, disruption of, system, 324

law, 240 Hindu inheritance law, 307

Hindu Joint Family (HJF), 284, 286 Hindu Law Code, 62 promulgation of, 64 Hindu Law, 242 authority to reform, 327

British interpretation of, 313 of succession, adoption and 71 traditional, 96 Hindu Mahasabha, 72 Hindu Marriage Act (HMA), 62, 64–65, 68, 78, 204

maintenance,

clause on prohibited relationships,

hamams, 167 discord in, 167 Hanafi Law, 118 of Sunni Muslims, 292

Hanafi Muslims, 118 harassment, exploitation and discrimination, 40 fear of social oppression and, 167 police, 169 sexual, 168 —, of a working woman, 185

—, at workplace, 168 Haryana Panchayat Raj Act 1994, 194 health care, promotion of, 196

72 enactment of, 243 scheme of prohibited relationships,

69 Section 9 of, 245 Section 13(A) of, 245 Section 27 of, 54, 63, 155, 264, 278 Hindu Minority and Guardianship Act, 1956, 114–115 Section 26 of, 115 Hindu Minorities and Guardianship Act 1958, 115 Hindu Minority and Guardianship Act, 62

Hindu personal law, uniform, for India, 67 Hindu right-wing political groups, 335

independent

joint, —, patrilineal, 58 —, prevalence of, in the northern

zone, 58

Hindu Succession Act (HSA), 59, 164,

285, 289, 295, 297–298, 306–307, 314, 325, 337 amendment of, 296 enactment of, 286 formulation of, 1956, 318–325, 350 gender inequalities in, 339 Hindu Succession (Amendment) Act (HSAA) 2005, 343 Hindu Succession (Amendment) Bill 2004, 296, 339, 343 Hindu Succession Bill,

productive activities undertaken

within, 269 shared, 263 housewife, lower middle-class, 51 Housing and Land Rights Network, 341,

347 human rights and fundamental freedom,

304 Human Rights Law Network (HRLN),

347 human rights, 304

No 13 of 1954, as well as No 13 B of

1954, 283, 287 Hindu Succession Bill, 287 Hindu Succession Law, comprehensive

reform of, 349 Hindu Succession laws, 325 Hindu translators, and commentators, 2 of the Bhagavad Gita, 2 Hindu Undivided Family (HUF), 241 Hindu widow’s right to a share in her

husband’s property, 321 Hindu Women’s Inheritance Rights, under the HSA of 1956, 316 under Mitakshara, 316 Hindu Women’s Rights to Property Act of 1937, 321–322, 330 Hindu, 223 in the Union Territories of Daman and Diu, 291–292 Hinduism, 18–19

Inter-Country Adoptions Guidelines, 106 identity, child’s, 90, 92, 94 of the parent, 90 illegality and criminality, 172

imâm, 225 Immoral Traffic Prevention Act 1956, 169 imperialism, cultural, 172 Indian Christian Marriage Act, 1872, Section 60 of, 155 Indian Divorce Act 1869, 116, 204 Indian Evidence (Amendment) Act,

2003, Section 3 of, 181 Indian Evidence Act, 1872, Clause (4)

of Section 155 of, 181 Indian Law Commission, 339

homosexual interaction between two

Indian Muslims, 292 Indian Penal Code, Section 377 of, 149

consenting adults, 191 homosexuality,

Indian Succession Act 1925, 294–296 Indian Succession Act, Section 5(1)(a)

consensual, decriminalisation of,

192 law against, 190–193 law punishing, 192 —, between consenting adults, 191 homosexuals, 190 household, income, 261

of, 294 Indian women’s movement, 337 Indians, non-Muslim, 202 inequality and intolerance, 25 infant, unattended, 104 inheritance, 342 by a female, 289 intestate, 323 laws, 333, 337, 341

—, cause of, 340 —, challenge of reforming, 333 —, and family patterns, 282 —, before and under the HSA,

1956, 312–318 —, in India, 284, 318 —, traditional, 332 primary right of, 289 of property, ancestral and separate,

286 quranic principles of, 292 rights, —, conferment of, 303

—, to widows, 321 —, of a woman, 291 scheme, 290 women’s rights, 315 —, in arable land, 59

Inter-country Adoption Guidelines (ICA Guidelines), 87, 163 intercourse, anal, 184

carnal, 183 sexual, —, dictionary meaning of, 184 —, duty to engage in marital,

265 International Covenant on Civil and Political Rights (ICCPR), 167 Article 7 of, 183 Article 17 of, 179 International Declarations and on Human Rights, 179 international human rights instruments, 179–181 International Labour Organisation (ILO), 259 intolerance,

Conventions

problem of inequality and, 18, 19

religious, in Christianity, Islam and Hinduism, 1–26 within Reformation Christianity, 25 and violence unleashed by Christians,

7 Islam, intolerant version of, 12 propagation of, 18 Ithna-Ashari law of Shia Muslims, 293

jihad, reason for, 18 judicial activism, 198 in relation to the law of rape, 189 judicial interventions, innovative, 251– 255 judicial paternalism, 111 judicial separation, 251 Juvenile Justice (Care and Protection of

Children) Act (JJA), 87, 101–104, 163 kalivarjya, 25 kanyadana, 67 Kaur, Harvinder, 245 Kazi Act of 1880, 205 Khan, Sayyid Ahmad, 18 khulc, 202, 210, 217, 220 agreement for, 211 cases of, 228 divorce, 206, 209, 219, 231 —, availability of extra-judicial,

231–232 extra-judicial, 204, 229 initiated by the husband, 220–223 law of, 230 male-initiated, 220 negotiations for, 211–212 predominance of, over talâq in qâzîs

records, 228 private agreement for, 221 and the question of gender equality in Islam 228–231 religious authorities that handle,

divorces, 232 talâq and, difference between, 222 khulcnâma, 221 kinship, differences in, and marriage practices, 57 differentiation in, practices, 57 Dravidian, 69 —, correlation between, and

marriage practices, 61

—, de-legitimisation of, 82

—, practices, 67, 79 —, recognition of, 82 evidence of, terminologies, 56

Indo-Aryan, —, patrilineal emphasis of the

rules and practices of, 82 —, terminologies, 56 and marriage, 55 —, regional patterns of, 59 north and south Indian, 55–62

north Indian, 56 south Indian, 59 —, system of, and marriage, 60 southern, system, 57

Kishwar, Madhu, 303 L.K. Pandey Guidelines, 89, 105 Labour Force Participation Rate (LFPR), 275 labour, activities needed for the

reproduction

of, 271 domestic, 39

—, economy of, 39 organisation of women’s, 38

reproductive, sexual elements of, 47 sexual, —, division of, 278 —, of third world women, 47 unpaid family, 274 of women, 38 women’s reproductive, 32 Land Reform Acts, 300 land, agricultural, or the tenancies, 297 law, against child marriage, 49

against child prostitution, 49 anti-discrimination, enactment of, 176 bending the, to defend women, 247– 249 gender-progressive, 310 gender-unequal, 351 governing agricultural property, 298 practice of Anglo-Hindu, 65 relating to inheritance, marriage, guardianship and adoption, 322 relating to marriage, adoption, and property rights, 166

divorce,

employment

relating to succession in India, 164 legalisation, 40 of sex work, 40 of widow remarriage, 328 legislations, agrarian land, 302

life expectancy, male and female, 160 litigation, acrimonious, 116

matrimonial, for women, 249 local mosque committee (jamâcat), 225 Locke, John, intellectual heirs of, 11 Luther, Martin, 6 Maharashtra Adoption Act 1995, 86 Mahatma Gandhi, 320 mahr, 201, 208–209, 211–212, 216–218, 222 and ciddat, —, allowance, 218 —, expenses, 217–219 and other payments in cases of khulc,

219 deferred, 219 obligation to pay, 216 payment of, 219 —, and ciddat expenses, 216 in Qâzîs’ Divorce Records, 218–219 waiver of, 212 maintenance, claim, 265 —, man’s entitlement to, from his wife, 241 —, by the wife, 246, 265 limitations in providing for the rights

to, 266 son’s, 302 Maitra, Pandit Lakshmi Kanta, 324 Manusmrti, 19, 23 marital suits, 224 Marriage (Amendment) Act 1976 (MAA), 223 marriage, assets purchased during, 273

breakdown of, 263 —, irretrievable, 247 certificates of, 205

Christian, of medieval Europe, 236 close kin, 59, 332

—, and in-village, 332 consanguine, 75 consensual, contract, 243 of convenience, 36 cross-cousin, 81 —, matrilateral, 79

—, preferential, 56 shastric endorsement of cross-cousin, 77 Dravidian, 70, 76 —, collapsing, 37 —, cross-cousin and uncle–niece,

70 —, practices, 61, 66, 71, 77 —, practice of cross-cousin, 66 —, practices, delegitimisation of, 61 —, practices, legitimacy of, 70 —, practices, outlawing of, 76 —, practices, struggle for the legal

recognition of, 78 existing definition of, 191 between hijras and men, 154 Hindu, 79, 241 —, approved and unapproved

forms of, 65 —, sanctity of, 64 homosexual, 157 institutions of, —, family and, 152 —, and sex work, 39, 50 inter-community love, 248

inter-religious, 72 —, civil, 252 in-village, 332

laws, changes in the, of England, 122 legal, —, construction of, 40

—, regulation of, and sex work, 40 matrimonial duties performed in,

265 matters of, and divorce, 230–231 parallel cousin, 56 between persons within the

prohibited degrees of relationship, 69

post independence, law and Dravidian

marriage practices, 54–83 prevention of break-up of, 246

problems in, 49 responsibilities of spouses as to, during marriage and at its dissolution, 180 rules under classical Hindu law, 64 and sex work, —, bargain between, 41–43

—, collapsing, 37 —, on a continuum, 37–40 —, difference between, 34 —, opposition between, 39 same sex, 158, 191 —, in Massachusetts, 159

—, recognition of, 191 South Indian, practices, 63 status, 237 traditional concept of, as a

sacramental

union, 236 transformation of, as dissoluble 256

contracts,

transsexual, 154

uncle–niece, 81 unhappy, 231 valid, 64 —, conditions of a 154 validity of, 78 —, between a male to female transsexual and a male, 161 —, of transsexual, 159 work and, 37 Marumakkatayam, 295 masculinity, 144 matriliny, future of, 61 matrimonial home, 263 woman’s right of residence in, 252

matrimonial residence, women’s right to, 250 Mehta, Hansa, 326 micro-credit, 335 migration, job-related, by sons, 311 Minimum Wages Act 1948, 271 minority groups based on religion or

ethnicity, 326 misinformation and ignorance relating to transgenders, 172 Mitakshara, 314–315 coparcenary, 287, 338, 340 —, system, abolition of, 348

and Dayabhaga, —, legal doctrines, 313 —, systems, 314 differences between the, and

Dayabhaga Schools, 65 joint family property, 315, 330 law, 289 retention of, joint property system, 343 system, 313, 346 modernity,

National Council of Women in India (NCWI), 318–319, 323 National Federation of IndianWomen, 334 natural guardian, 113, 116–118, 120, 123 claims of, 119 Natural Law, 11

Locke’s legacies to, 10

natural religion (Deism), 10 Naz Foundation, 191 Nehru, Jawaharlal, 325 Neo-Platonism, 4, 5

rise of, 3

Noncooperation Movement, launching

monogamy, 64, 98, 107

enforcement of, 64 mother,

petition of the, for guardianship of her minor son, 120 preference principle, 118 movement, women’s, in India, 337

Muhammad, 15 Muslim, brotherhood, 11 couple, 204 divorce law, 202 intestate, 293 law, 292–294 marriage contract, 201 testamentary powers of a, 292 woman, 202, 222 —, divorced, 186 Muslim Personal Law Shariat

Application Act 1937, 297, 350 Muslim Personal Law, 186 Muslim Women’s (Protection of Rights

on Divorce) Act, 1986, 186 Muslim Women’s Act, 187 Muslim, and unbelievers, 16 in India, 214 South Asian, legal authorities, 202 Nairobi Forward-Looking Strategies for the Advancement of Women, 268 Nairobi, Malaya form of sex work in, 30 Nandy, Seema, 51 Nasser, Gamal Abdel, attempt to 11

assassinate,

of, 320 non-sex workers, 42 norms, social, 312 —, on the formulation of the

HSA, 332 —, perceptions and, 307, 311,

342 offences, unnatural, 183, 184 oppression, elimination of institution-

alised domination and, 173 ostracism, social, 170 Oudh Estates Act 1869, 293 overlap, definitional, 31 functional, 32 of marriage and sex work, 30–37 ownership, importance of enhancing women’s

property, 259 of income-creating assets, 260

of land, 259 —, by women, 260, 300 of property, 259, 260, 261 —, by women, 258

pattern of landed property, 301 paedophiles, distinction between, and homosexuals, 193 papayonayah, 1, 2

parent, 105 adoptive, 93–94, 106

—, single, 102 alternative, 93

biological, 94 displacement from the birth, 94 separating, 135 parentage, 99

parenting, biological, 93 —, constraints of, 94

Paris Intestate Succession Act 1865, 294 Parsi Law, 294–295 Parsi Marriage and Divorce Act, 1936,

154 Parsis, 294 partition, notional, concept of, 286 partnerships, civil, 158–159 Patel, Vallabhbhai, 324 paternal grandparents, 120 paternalistic law, autonomous child and

the responsible judges, 111–138 patriarchal set-up and the culture of dependency, 285–286 patriarchy and capitalism, 147

Payment of Gratuity Act, 1972, 165 Peace of Westphalia, 7 penetration, 188 Personal Law, 264, 298 governing Hindus, 322 in India, 278 philosophers, non-Christian, of 4

antiquity,

placement, in-country, 104

politics, of ideas, 343 of presence, 343 population, control, 198 —, coercive methods of, 193 stabilisation, 198

Portuguese Civil Code, 294, 296 poverty, abolition of, 196 homelessness and, 248 rural, 259 Prasad, Rajendra, 325 privacy, violation of an individual’s right

to, 244 productive work, 258

prohibited relationships, 54, 72, 75, 77–78

clause of the SMA, 69, 82 clauses of the HMA, 71 clauses of the SMA and the HMA, 71 provisions of the Special Marriage Act (1954), 61 under the Special Marriage Act

(1954) and the Hindu Marriage Act (1955), 67 property, access to and control over, 259

alienation, 313 coparcenary, 285 division between the spouses, 267 entrenched, and political structures, 330, 341 importance of, for a woman’s 259–261 individual, of the spouse, 262 matrimonial, 261–62, 274, 277 —, in India, 278 —, law in India, 279 —, personal law and, 261–266 —, valuation of, 262

wellbeing,

—, women’s and children’s rights

in, 259 ownership, 260, 320 —, of women, 278 retention of, within the family, 283 rights, —, deprivation of, 304

—, Hindu women’s, 312 —, for women, 261, 318, 334 women’s, 273 —, access to, 260

—, legal rights in, 321 —, holdings within the family, 275 —, rights, prostitutes, 31

prostitution, in Nairobi, 33 secret, 31, 48–49 protected person (dhimmi), 16 Protection of Women from Domestic

Violence Act 2005, 255, 263 Protestant Reformation, 5–7 Protestantism, 6, 8

contribution of, to modernity, 6 individualistic character of, 9 Provident Fund Act, 165 purdah practices, 59 ibn Qayyim al-Jawziyya, 12 qâzî, 205–206, 211, 218–219, 220, 222 local, 225 marriage records in Hyderabad, 207– 208 office of, 205 role of, as registrars of marriages and divorces, 206 role in facilitating khulc, 204 quasi-siblings, 56 quranic principles, variance with, 293 Qutb, 11, 12 and like-minded Muslims, 12 radical dualism, 16 rape, definition of, 182 —, as contained in Section 375,

188 law of, 181–183 —, strengthening of, 43 marital, 189 of minor girls, 183 victim, moral character of, 181 rational criticism, 10

Rau (Hindu law) Committee, 322 Rau Committee, 322–323, 326, 340 reasoning, conventions of legal, 137 —, and interpretation, 112 reform, comprehensive, 347

in female domestic labour, 38 of inheritance laws, 334 legal, at the state level, 338 of personal laws, 335 of property laws, 334 refusal, wife’s, to give up the job, 242 Regulation of the Economies in Sexual

Labour, 28 rehabilitation and the provision of employment, 36 relations, of adoption, 88, 96, 98

alternative

adoptive, 96 creation of, by adoption, 102 employer–employee, 308 between gender inequality and

employment,

168 between guardianship and custody, 123 between marriage and sex work, 29, 44, 46, 48 between the Guardians and Wards

Act 1890 and the Muslim Personal Law, 117 parent–child, 90 parental, 122 prohibited, —, breach of, 78 —, clauses on, 79 —, controversy over, 61 —, definition of, 55 —, degrees of, 71, 79 —, list of, 69 sexual, —, of a man with an unmarried

woman or a divorcee or a widow, 190 —, with a married woman, 190 State’s, with gender-progressive or-

ganisations (including women’s organisations), 309 violation of the prohibited, 55 Relegation of Uterine Relations at an Inferior Placement, 296 religious war (jihad), 4 remarriage, freedom of divorce and, 59 Representation of the Peoples Act 1951,

195, 197 repression of female sexual choices, 178

residence, matrimonial, wife’s right to choose her, 243 Restitution of Conjugal Rights (RCR), 236, 238–242, 244 247 right, of the child, 124 conjugal, —, institution of, 239 —, anti-women provision of

restitution of, 249

cultivating, legal and heritable, 297 of daughter, 332 of daughter-in-law, 289 to claim maintenance, 241 claimed, of the parents, 114 to consent, 190 of disposal, 313 to enjoy the property, 285 economic, of married women, 250 father’s, 118 fundamental, to freedom of speech, 188 to human dignity of women, 244 husband’s, 242 to inheritance, 102, 283 to life, liberty and freedom, 249 of maintenance, 265, 285 to marry, 180 to matrimonial residence, 249, 253 of mother and father under the Guardians and Wards Act 1890, 114 natural, 5 of parents, 114 —, unequal, 295 to personal liberty, 192, 195

to privacy, 157, 192, 195, 244 property, creation of, for the adoptive child, 99 recognition of the mothers, 122

of refusal, 190 of residence, 263 —, limited, for daughters married or unmarried, 264 —, in the matrimonial home,

249–250 to retain temporary custody (hizânat), 212 to sex work, 44 of sex workers, 44 to shelter and human dignity, 256 substantial, in parental property, 324 of succession, 305 tenancy, 255 —, of male collaterals, 304 of the wife, —, over matrimonial property,

263

—, to dwell in the matrimonial home after a divorce, 252 —, to reside in the matrimonial home, 253 women’s, 322 —, contractual obligations in

defense of, 236 —, to hold on to a job away from her husband’s residence, 243 —, to matrimonial residence, 251

—, violation of, 183 Rukhmabai, 240, 244 tribute to, 237

rules, of devolution for agricultural 297

property,

of marriage, 65

of post-marital residence, 59 of primogeniture for devolution of

the taluqdari properties, 293 of religious personal laws, 138 sacramental bondage, 242 sadr qâzîs, 208–209 Sakshi, 182 petition, 183 salvation (moksha), 1 sapinda or shared body relationship, 66 sapinda-ship, invocation of the concept of, 70 limits of, 70 Sareetha, T., 244 Saroj Rani, 245 sati, condemnation of, and child

marriage, 328 self-employment outside the household

for profit, 267 self-help groups, rural women’s, 333 separation of property model, 262, 264 sex, bias, anti-female, in natality and

postnatal child mortality, 60

choice,

—, between criminalised and

maternalised, 40 —, between terrorised and

maternalised, 40 commercial, 33

consensual, between adults, 192 —, private, between adults, 191

for consideration, 37 couples, 158 determination, 161 exchange of, for material

considerations, 36

industry, —, emergence of, in Thailand, 33

—, scrutiny of, 50 lack of consent and the of, 43

commodification

non-marital, 35, 42

normative theory of, 35 occupational segregation by, 276 —, and the earnings gap, 275 opposite, siblings, 56

oral, 183 package tours, emergence of, 34 ratios, 60 substantive and temporal aspects of paid transactional, 41 tour packages, 30 trafficking, 46 with reference to

genitals/chromosomes, 162

sex work,

abolition of, 37

debate on, 35 definition of, 30, 35 efforts by non-sex workers, 42 exploitation in, 40 feminist understanding of, 40 invisibility of, 33 —, as a form of labour, 45 material dimensions of, 45

nature of labour involved in, 45 practice of, 30 recognition of, as a form of labour, 50 regulation of, 43 remuneration for, 47 sex worker, 32, 50 abuse against, 40 availability of, 42 campaign for workers rights for, 46 decriminalisation of, 43 dependency between, and their

employers, 33

flying, 31 lives of the secret, 50 minimum conditions for sexual access

to, 43 in Nairobi, 33 social discrimination against, 40 wives and, 42–43 Sexual Offences Act 1967, 191 sexual orientation, 146 sexuality, 178 development of, 179

freedom and the Law, 178–199 as a human right, 178–179 procreative and non-procreative, 39 without procreation, 178 of women, 178 Shaltut, Mahmud, 17 shares, of predeceased sons, 313 unequal, 315 sharicat court records, 230

sharia, 12 Shayakh al-Azhar, 17 Shia law, 292 Shias, 292–293 Shiva, Mira, 198 shudras, women and, 1 siblings, same-sex, 56 Singh, Harmender, 245 siyâhnâma, 208 social disharmony, 3 social equality, 2 social justice, 138 social legitimacy of women’s claims, 312 social security, economic and, 334 Special Marriage Act (SMA), 54, 62–63, 68, 78, 154, 204, 241 de-secularisation of, 55 enactment of, 63 Special Marriage Bill, 62, 73 State Women’s Commissions, 243 sterilisation, mass, 194 stigmatisation, social, 146 stridhana, 289, 314 structuralism, paranoid, 47 subjugation, women’s economic, 303 succession, 291 to the agricultural land, 296

to agricultural tenancies, 299 gender-equal law of, 315 laws and gender justice, 282–305 for male and female intestates, 289 multiplicity of, —, laws, 284 —, laws in India, 284–285 —, rules of, 291–296 provisions of the Hindu laws of, and maintenance, 71 Sunnis, 292–293 survivorship, 313

adoption

classical law of doctrine of, 286

doctrine of, 285–286, 290 rule of, 286 swaraj, Indian aim of, 320 talâq (divorce), 200, 206, 210, 217, 252

entries, 219 man’s right of, 228–229 men who divorce their wives by, 216 triple, 200 talâqnâma, 218 ibn Taymiyya, 12–13, 17 teachings of, 13 tenancy, 299 diversion of, rights, 305

tenant, 317 testation, freedom of, 340 thumb rule, 256 trafficking, of children, 87

—, in the guise of adoption, 89 transexuality, 160–161

transgenderism, 143 transgenders, 141, 146, 165, 168, 173– 174 equal treatment of, 174

exclusion and discrimination of, 143 existence of, 163 hate and exclusion faced by, 170 horrifying experiences of, 174 information relating to, 175 issues surrounding, 173 life of, in India, 142 oppression of, 170 violence against, 174 transsexuals, 145, 190

categorisation of, 159 male-to-female, 162 transsexualsim, 162

Tribal Advisory Board, 304 Tripartite Committee of the Indian Labour Conference, 271 two-child norm, consequences of

enforcement of, 198

Uniform Civil Code (UCC), debate on, 3 desirability of enacting a, 63–64, 200, 335 United Nation’s System of National Accounts (SNA), 269 United Nations Centre for Human 341 United Nations Human Rights 157 Universal Declaration of Human Rights, 1948, 179, 304 UP Imposition of Ceiling on Land Act 1960, 301

Settlements, Committee,

Holdings

Veda, 22 initiation upanayana into, 22 violence, and abuse, 170 civil remedies against, and dispossession, 249 domestic, 255–256, 263 —, allegations of, 250 —, contradictory claims of, 249 —, definition of, 255 —, protection against, 249 —, victim of, 249 protection against, 256 Voluntary Coordination Agency, 105 Voluntary Health Association of India, 198 Wahhabi movement, Sayyid Qutb and the, 12 Wahhabi revolution in Saudi Arabia, 12 Watan Act 1886 (Bombay), 293 wealth, importance of, 259 welfare, of the child, 114–115, 118, 120–121, 123–124, 126

and upbringing of, 275 West, Islamic prejudice against the, 11

widow, absolute estate for the, 323 wife, chastising an errant, through physical beatings, 256 deserted, 255

—, in occupation of the tenanted premises, 255 entitlement of the, to the property, 264 good, 265–266 and sex, 43 and whores, 29

matrimonial

woman,

anti-women provisions to aid, through

innovative strategies, 247 economic contribution of the, in the household, 273 empowerment of, 278 good, 181 married, sexual choices of, 190 outraging the modesty of a, 182 owning immovable property, 261 —, within the family, 273 —, within the family and outside,

261 status of, —, in Britain, 238

—, in Islam, 229

time spent by, in unpaid activities, 270 unhappily married, 225 with easy virtue, 181 working, 277 Women’s India Association (WIA), 318– 319, 326 members, 321 women’s organisations, left-associated,

335 Women’s Reservation Bill, 342 work, definition of, 267 subsistence, put in by women due to the sexual division of labour, 272 unpaid, and the sexual division of

labour, 266 women’s unremunerated, 269 workers, unpaid, in the form of women,

273 Workmen’s Compensation Act 1923, 165 World Conference on Women in Beijing in September 1995, 268 World Congresses for Women, 334

World Summit for Social Development, 268 Young Women’s Christian Association, 334