'Brother, there are only two Jatis - men and women.' Construction of Gender Identity: Women, the State and Personal Laws in India

University of Sussex

Maitrayee Mukhopadhyay

'Brother, there are only two Jatis - men and women.'

Construction of Gender Identity: Women, the State and Personal Laws in India Submitted for the Degree of Doctor of Philosophy (Social Anthropology)

August 1994

CC

CUP 1[1 1-K kriT, page

Abstract Declaration Acknowledgements List of tables

i ii iii v

Chap. 1: Introduction 1.1. Preface 1.2. What is the personal law? 1.3. The British as the patrons of the shastras 1.4. The fall out 1.5. Woman as a sign 1.6. Research concerns 1.7. Theory as a tool kit 1.8. Methodology 1.9. Organisation of the thesis

1 1 5 10 14 17 24 26 42 49

SECTION I - HISTORICAL ETHNOGRAPHY

51

51 I. i. What this section is about 52 I. ii. Cultural nationalism as a discourse of power I. iii. Electoral representation and the development of political identities 56

Chap. 2: Building the 'imagined community': Muslim Personal Law Reform in the 1930s

61

2.1. Introduction 2.2. The Muslim Personal Law (Shariat) Application Act, 1937 2.3. The Dissolution of Muslim Marriage Bill, 1934 2.4. Implications for women

61 62 74 88

Chap. 3: Building the nation-state: The Hindu Code Bill

91 91 92 97 108 130

3.1. Introduction 3.2. The women's movement as political actor 3.3. The time-tables 3.4. The debates in the legislature on Hindu Law Reform 3.5. Implications for women

SECTION II- CONTEMPORARY ETHNOGRAPHY



132

II.i. What this section is about

132

Chap. 4: Marriage,property and maintenance

133

4.1. Introduction 4.2. Marriage, property and maintenance: What the statutes say 4.3. Profile of litigation 4.4. The Hindu Marriage Act and husband/wife statuses 4.5. Husbands as criminals 4.6. 'Brother there are only two jatis - men and women' 4.7. Conclusion

133 135 139 142 149 156 170

page Chap. 5: Construction of communalism: Muslim women and maintenance

172

5.1. Introduction 5.2. Revisiting the past 5.3. The context of the Shah Bano controversy 5.4. The Shah Bano controversy 5.5. The aftermath

172 172 174 175 179

Chap. 6: Property and personhood

190

6.1. Introduction 6 2. Hindu and Muslim women and inheritance 6 2.1. Hindu women and inheritance 6.2.2. Muslim women and inheritance 6.3. Hindu and Muslim daughters/sisters and inheritance 6.3.1. Introducing the litigants 6.3.2. Ambiguous heirs 6.3.3. Dispossessed heirs 6.4. Conclusion

190 191 191 193 195 195 200 210 222

Chap. 7: Construction of dependence

224



7.1. Introduction 7.2. The litigants 7.3. Widowhood, male heirs and legal rights -the relationship

224 224 231

SECTION III - THE STATE AND WOMEN

248



III.i. What this section is about

Chap. 8: Gender, Power and the State

248 250

8.1. Introduction 8.2. 'Aurat bhi insaan hai': The women's movement 8.3. The gendered subject strikes back

250 252 267

Chap. 9: Gender, state and nation.

275

9.1. Introduction 9.2. The UCC as a signifier of 'national unity' 9.3. The demise of 'unity in diversity': the UCC in the 1980s 9.4. The construction of national culture as being Hindu: the UCC in the 1990s

275 276 283 291

Chap. 10: Conclusion

304

Bibliography

310

Appendices

323

University of Sussex Maitrayee Mukhopadhyay Thesis submitted for Doctor of Philosophy 'Brother there are only two jatis - men and women.' Construction of Gender Identity: Women, the State and Personal Laws in India Abstract This thesis investigates gender construction in the personal laws in India. The personal laws are family laws which are applicable to people principally on the grounds of their religion. This investigation focuses on the personal law of Hindu and Muslim communities. The personal laws, which were colonial constructions in the 18th and 19th centuries, privileged scriptures, equated tradition with scriptures and made this the basis for the laws. This favoured the rise of identity definitions of putative Muslim and Hindu groups, making gender relations the site on which group identities were forged and state power articulated. This thesis is in three parts. In Section I, I present the formulation of the presently applicable personal laws by Indian legislators in the 1930s - 50s. Although a key theme of the legislative debates was the improvement in women's status, the reforms fell seriously short of establishing gender parity in the family. I find that the main concern of the debates and consequent legislations were to establish Hindu and Muslim identity in the state domain. Gender relations in the family were the central constitutive element in the construction of these identities. The asymmetry in gender relations was thus obscured by these discourses of identity. In Section II, I present the experiences of Hindu and Muslim women litigating for rights to family property via the personal laws in specific social relations, as wives, daughters/sisters and widows. I find that in the context of litigation on marital property and maintenance adjudication constructs wives as ideological and legal dependents subordinating thereby wife statutes and entitlements to husband statuses. Further, Muslim wive's entitlements are being redefined through adjudication by homogenising Muslim identity through the constitution of Muslim marriage as inferior, thus disempowering women. In the context of litigation on ancestral property claims made by female heirs, both Hindu and Muslim, are subject to trials of personhood in which gender and kinship ideologies are critically implicated and these then serve to hierarchies men's claims over those of women's claims to property. Thus as subordinates in the family Hindu and Muslim women, despite differing personal laws, share a common fate. In Section III, I examine, first, the way women's resistance constructs the state, and second, what the constitutional promise of an Uniform Civil Code to replace the system of personal laws means in terms of gender equality. I find that the women's movement construction of the state as the protector of civil liberties is difficult to sustain when the violation of women's rights happens in the family because the state protects the family as a site and ideology. My respondents construct the state as protector by seeking to invert the logic of dependence to their own account thereby reproducing and sustaining domination even at the point of resistance. Second, the meaning of the UCC derives from a discourse of 'national unity' and not gender equality naturalising thereby a Hindu, property-owning, masculinist hegemony which would annihilate minority identity. Women's interests can never be guaranteed in this dispensation. i

Declaration I hereby declare that this thesis has not been submitted, either in the same or different form, to this or any other University for a degree.

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ACKNOWLEDGEMENTS This thesis owes its existence to the active encouragement, assistance and contribution of many people and institutions of whom I can name only a few. First and foremost I would like to thank my parents, Nepal Chandra and Preety Ganguly, for believing in me, supporting my education and always giving me the opportunities that I have needed. In a society marked by such a strong son preference, my parents were exceptional in actively encouraging an only child, who was a daughter, and treating her projects and agendas with seriousness.

I am deeply indebted to my respondents for the trust they imposed in me, the frankness with which they shared their lives with me, and the insights that they provided. I would also like to acknowledge my indebtedness to the women's organisations in Calcutta and to my feminist colleagues in India whose struggle to create a more just world for women fuelled my interest in this research. My only fear is that! may not have done justice to their expectations.

I would like to specially mention my friend and mentor, Dr.Susie Tharu, who first pointed out to me that the production of knowledge was an important terrain of struggle. I am grateful to Susie for pointing the way. My friends in Calcutta had to endure a blow by blow account of my field work experiences on

a daily basis. I would like to particularly thank Rajashree and Sushil for their generosity in meeting the enormous demands that I made on their time and hospitality. Adhrishya, Jhama and all my friends in CSD were equally generous and I owe them a great deal.

I am grateful to the Committee for Legal Aid, Judicial department, Government of West Bengal and to its Chairman, Sri Sailen Talukdar, for allowing me access to official records and introducing me to the legal and judicial world in Calcutta. I am also grateful to a number of officials of the Alipore court who provided information and access to records without tying me up in bureaucratic red-tape. For a mature student and a third-world woman at that, the decision to work on my research in a first-world University was a pipe-dream because of the enormous costs involved. I am, therefore, very grateful to my funders for making it possible to complete my research. I would like express my gratitude to NORAD, Delhi and to the then project officer, Pippi Soegaard, for providing the first grant; to ICCO, Holland, and particularly Nelleke van der Vleuten, for 111

financial asistance to do my field work. My progress would have been halted in 1990 without the timely assistance provided by the ORS scholarship which paid my fees for the duration of my studentship and the FCO and British Council scholarship which provided my subsistence in 1992-94. I am also grateful for the small but critical grants from the Sir Charles Wallace Trust and Oxfam. I am indebted to the faculty members of the division of Social Anthropology, the School of African and Asian Studies at the University of Sussex for the intellectual stimulation and encouragement that they provided. I would like to thank my supervisor, Dr.Hilary Standing, for agreeing to supervise me in the first place and for her unstinting support and consistent guidance, suggestions and comments throughout these four years. I owe Dr.Standing an intellectual debt which I can never hope to repay but also a debt of friendship and understanding. Without the intellectual companionship, moral support, friendship and affection of my friends and colleagues in the University of Sussex, my life as a foreign student in the United Kingdom would have been very difficult to bear. I would like to thank Farzana, Bari, Tazeen and Mavra for providing me with a home away from home and their generosity in making me a part of their family. I thank my friends Sue Reinhold, Ayesha Imam, Farzana Islam, Rehnuma Ahmed and Eva Mackay for many stimulating debates, for sharing my joys and sorrows, for helping me out in moments of crisis, and for the fun-times. Eva and Ayesha had to become honorary Bengalis to accomodate the Bengali mafia comprising Farzana, Rehnuma, Saleha, Nandinee and myself which I am sure was not always an easy task. A special word of thanks to Saleha Begum and Martin Greeley whose friendship and affection knew no bounds and who were always there when I needed them. I would also like to thank Naila Kabeer and Nandinee Bandyopadhyay for their friendship and support. Discovering these friendships and enjoying the camaraderie of these exceptional people was one of the best things about my life in Sussex. I am deeply indebted to Valerie Lipman, my long-standing friend, whose unstinting support and loyalty I was always able to rely on. Coming to Sussex to do my research was a voyage of discovery in more senses than one. I have no words with which to thank Heinz Steingrover, my friend and partner, for all that he has done for me in the past four years. I thank him most of all for the TLC which made my life a better place to live in. I would also like to thank him for the active interest he showed in my work by reading it, arguing with me about it, suggesting editing points and completely taking over the responsibility for formatting and printing it.

iv

LIST OF TABLES

Page lA

Persons representing particular constituencies

84

1B

Views on clause 5 & 6 Hindu Code Bill

85

2

Official committee time-table

98

3

Hindu Code Bill: Legislative time-table

103

4

Hindu Law Reform advocacy; The women's movement

105

5A

Profile of marital litigation - Part 1

138

5B

Profile of marital litigation - Part 2

139

6

Outcome of Sec. 125 cases

158

7A

Profile of respondents in property cases

197

7B

Respondenst and their cases

198

8A

Profile of widows litigating for property

227

8B

Profile of widows' litigation, part 1 and 2

228

CHAPTER 1

INTRODUCTION

1. 1. Preface I am a daughter of independent India, among the first few generations of her children. Both these identities, my gender and the collectivity, are profoundly implicated in the subject of my research. I was brought up by fairly liberal middle-class parents to believe that independent India was one entity, that it was modern and secular, and that discrimination on the grounds of caste and community were anachronistic because we were one 'jati' , we were Indians. (Jati is explained in the section on Theoretical Concerns) We made fun of my grandmother and aunt, both upper-caste Hindu widows, for observing purity and pollution rituals in their everyday interactions with the household helpers. I, on the other hand, was taught to always address the household helpers by kin names as a sign of respect. I suppose this served to attenuate, if it could not erase, the class and caste differences between them and me. It was only much later in life that I realised that the ease and confidence with which I erased difference and declared equality flowed from my privileged positioning. The promises of equality inscribed in the founding text of independent India, the Constitution, was the birthright of people like me. Equality came naturally to us and it meant that differences arising from unequal power relations between people could be subsumed under the rubric of sameness. My upbringing did stress one point of difference, though. My parents' greatest fear, having sent me to an English-medium, convent school, was that I might become westernised. In fact it amounted to a paranoia. The antidote was to always speak the mother-tongue at home, to read the Bengali classics, to dress and behave in a way that befitted an authentic Bengali girl. In every other way I was free to develop myself. Formal education was highly prized and I was always encouraged to pursue my studies. It is only in the last couple of years that I have begun to make the connections between this aspect of my upbringing and what Partha Chatterjee has to say in his The Nationalist Resolution of the Women's Question'(Chatterjee 1989). The nationalist project resolved the 'women's question' by separating the domain of culture into the material and spiritual spheres. In the material world the claims of the western world were superior and had to be imitated. The spiritual world was, however, the preserve of the East, from where the distinctiveness of national culture arose. Translated into the 1

practices of day to day living this dichotomy maintained a ideological separation of the home wherein resides our spirituality, our authentic identity, and the world, which was the treacherous place of material pursuits. The outer, material world was the domain of the male and the inner world of the home and our spirituality was the essence of the woman. But the narrative of resolution did not end here since this separation of the home and the world, male and female spheres merely represents gender roles in any other patriarchy. The distinctively Indian feature (or Bengali, I would say) of this resolution was that since women were protectors and nurturers of this spiritual quality which marked our identity, there would have to be a decided difference in the degree and manner of their westernisation, as distinct from men, in the modern world of the nation. Thus attention to details of her dress, manners, education and role inside and outside the home had to be worked out to maintain this distinction which in turn etched the contours of the national culture. Within these parameters a woman was free to attain by her own efforts the mark of a superior national culture. The modern respectable woman emerged in otherness to lower-class female characters and to westernised women. Formal education became not only acceptable but a requirement of the new woman. Her place in the home was not jeopardised by this. There was no need to keep her in purdah and confine her to the 'home' because inscribed in her person were the culturally determinate codes of socially approved male and female conduct which set the boundaries. Needless to say this process instituted a new form of patriarchy which distinguished itself from the tradition of indigenous patriarchy by announcing that women were free and autonomous, free to develop themselves within the parameters of socially approved conduct which ensured their oneness with the home and the spiritual content of national culture. I was being groomed, I realise, to reproduce this culture. Nay, I was this culture and it gave me certain freedoms even as it held me in its patriarchal stranglehold. That I was not a son but a daughter of independent India did not occur to me till the late 1970s when the women's movement overtook us. The late '60s and early '70s in India were marked by crisis and rebellion, a crisis of the state and rebellion by the people. The promises of independence, of equality and self-sufficiency, had not been delivered by the state. Student unrest coalesced with peasant rebellion. White collar workers made common cause with industrial workers. Middle-class women protested on the streets of India's metropolises. It was impossible not to be politicised in this milieu. And like many in my generation we protested against the existing unequal order by rescinding career opportunities in the establishment and retreating to the villages in search of the authentic India. I became a rural development worker in a nongovernmental organisation. And my experience taught me that the united India was a fractured identity, fractured by class, caste and other divisions. Even as we protested against class, caste and rural/urban inequalities, from the location of voluntary and non2

governmental organisations, what we did was take forward the state's promise of development for everybody and try to make the state work for the people. The state was still the ultimate guarantor of rights and the principal agent of reform. The women's movement rose phoenix-like from the ashes of the earlier social and political protests and struggled for several years to gain autonomy from these. Women's issues and activism concretised into a host of small, autonomous organisations spread over the country by the late '70s. By the mid 1980s the amorphous women's movement had spread to address a number of issues affecting women. These issues included violence against women, the right to employment and equal wages, legal equality, education, health and environment. And the demands for reform and change were always addressed to the state. State response was in many instances immediate. The plethora of protective enactments in the 1980s that resulted from women's campaigns was part of this response. Even as we resisted the state's control we formed alliances with the state typically in the form of seeking recourse to its laws in instituting legal reform or enacting new laws on behalf of women. The state remained the ultimate guarantor of rights and the principal agent of reform. A key concern of the women's movement was and still remains, women's oppression in the family. Violence against women was endemic we found and it cut across class, regional, caste and community barriers. As we engaged with the problem in our small women's organisations run for the most part by volunteers, we were overwhelmed by the appeals for help from individual women. They reported physical violence, mental violence, desertion by husbands, inability to gain custody of their children. Dealing with the emotional and psychological trauma was one of our jobs. But so was dealing with the police and the courts. Overnight we turned into maverick para-legals picking our way through the family laws, which were different for Hindus and Muslims, and the criminal laws which were the same for everybody, to try and find some respite. Don't worry, we told them, there are laws in this country and you are a citizen. The law must work for you. We told Hindu women that the Hindu Code Bill gave them equal rights with men in the family. You have a right, we told them, to an equal share of your father's property and the right of maintenance and alimony from your abusive husband. You don't have to be homeless and indigent if you decide to leave home. We told women who were mercilessly beaten that the state had changed the criminal laws and the police were armed with draconian measures, including arrest of the abusers, to protect them from this. However, in the decade-long struggle to ensure these rights, we found that the state machinery was at best ill-equipped to enforce women's rights as citizens when its violation happened to be in the family. We blamed the inefficiency of the courts, the corruption in the police, the poor education of the lawyers, and our own incapacities. But none of this helped answer a fundamental question that had been 3

lurking in our minds and we were afraid to verbalise. Why was it so difficult to actualise women's rights as citizens? Why was it next to impossible to separate out a woman's identity as subject/citizen imbued with rights from that of her identity as female, as daughter, sister, wife and mother? In 1985 a Supreme Court judgement in a case filed by a Muslim woman sparked off a nation-wide political controversy. The case was one in which the Supreme Court had upheld the application of a Muslim woman, Shah Bano, for lifelong maintenance from her ex-husband. And why did the case of an obscure Muslim woman become a political controversy which literally gripped the country for two years? First, because the Supreme Court's verdict became a rallying point for many Muslims who felt that the court had, by giving Shah Bano life-long maintenance from an ex-husband, violated Islamic law and thus undermined the only legal protection Indian Muslims enjoyed as a religious minority. But second, and more importantly, because this incident gave rise to a nation-wide public debate about a whole gamut of attitudes to Muslim law, Muslim men, and Muslim women as also the position of the community as a whole, its way of life and its right to exist as a religious community in a secular state. The state response in this instance was another piece of legislation, the Muslim Women's Divorce Protection Bill. This Bill changed the access that Muslim women had to Section 125 of the Criminal Procedure Code (promulgated in 1973) which grants a fixed maintenance to divorced women from their husbands ( and was till then equally applicable to all women irrespective of religious affiliation). Many different political constituencies joined the debate. The women's movement, which is not homogeneous and certainly does not speak with one voice, was an active participant in this controversy. The main issue articulated in women's protest was that the promulgation of the Bill deprived Muslim women of the right to take advantage of the laws for maintenance in the criminal code which were equally applicable for women from all religions and, therefore, secular. We demanded a uniform civil code, which would treat all women equally in family laws. (The need for a Uniform Civil Code based on the principles of secularism and which would treat all citizens equally in matters pertaining to family law, irrespective of religious affiliation, has been mentioned in the directive principles of the Indian Constitution. However, no government up to now has been able to legislate it into being). To our surprise, we feminists and believers in emancipation and liberation, found ourselves sharing a podium with our oppressors, the Hindu fundamentalist organisations. They, too, demanded a uniform civil code on the grounds that in order to be one country, one nation and to be equal citizens, we must be governed by the same laws. Coming as it did from Hindu fundamentalists, this demand was a stick to beat their Muslim opponents with. 4

In the aftermath of this experience I added one more identity to my ever-expanding question about women's identity. Why is it so difficult in India to separate out a woman's identity as subject/citizen imbued with rights from that of her identity as female, as daughter, sister, wife, widow, and marker and symbol of community at the level of the public, the politico-jural, the state? It was time, a feminist colleague advised us, for Indian feminists to withdraw, like Marx, to the British Library, not this time to demystify the relations of capital and labour and the nature of class oppression, but to unravel the historically contingent, culturally specific, socially constructed and changing nature of gender relations and patriarchal oppression in India. And so I packed my bags, and with it my questions, and withdrew to a British university for a period of unravelling. What follows in this thesis are the timid and tentative findings of this process of unravelling. But before I can do this, academic convention demands I specify what my research questions were, the theoretical tools I used to unpack the questions, and the methodology I used to find answers to my questions.

1. 2. What is the Personal Law? As the title of the thesis suggests, this research investigates gender construction in the personal laws in India. What are the personal laws? The personal laws are those that in any other country would be referred to as family laws. Personal law in India has two salient features. Firstly, these laws seek to control and regulate social relations in the 'private' sphere of the family. The central concern of the laws is, thus, the definition of the relationship of men and women within the family. Secondly, the Personal law is applicable to people principally on the grounds of their religion. The law is specific to and separate for particular religious communities, namely, Hindu, Muslim, Christian and Parsi. Personal law controls and directs marriage, divorce, maintenance, guardianship of children, adoption, succession and inheritance and as such concerns women intimately. As it exists at present in India, the personal law of all communities position women as subordinate to and dependent on male kin. Under all personal laws the male is the head of the family. Women do not have a right to equal share of property with men.

India is a secular country and it might well be asked: Why is it then that it maintains personal laws which are supposedly based on religious traditions? How is it that a modern nation-state maintains statute laws (as opposed to customary laws) based on religion? This question gets even more complex if we consider the fact that all other 5

laws are secular and equally applicable to all citizens irrespective of religious affiliation, and that the same courts and judiciary are responsible for the application of all laws. So although we have separate personal laws for the four main communities, we do not maintain separate courts and personnel for each of these communities. Any magistrate or judge in a civil court in India is called upon to pronounce judgement in the case of a divorce, family property, adoption or custody of children irrespective of whether the appellants happen to be Christian, Muslim, Hindu or Parsi. So what do the personal laws mean in such a situation? The received wisdom in India on what the personal laws mean differs according to the political location of the speaker. Many Indian feminists, for example, have long held that the maintenance of the personal laws means the maintenance of gender discrimination. None of the personal laws give women the same rights as men in the family. The maintenance of the personal laws, they say, is unconstitutional since the Constitution guarantees sex-equality. For modernists, who hold that the nation-state is the principal architect of social reform and should be interventionist in restructuring social relations, the personal laws are clearly an anachronism and by failing to replace them with a uniform civil code the state is failing in its role. Emphasising the need for a uniform civil code to replace the existing system of personal laws the Committee on the Status of Women (1974) said: 'The absence of the UCC (uniform civil code) in the last quarter of the twentieth century, twenty seven years after independence, is an incongruity that cannot be justified with all the emphasis that is placed on secularism, science and modernism. The continuance of various personal laws which accept discrimination between men and women violate the fundamental rights' (Towards Equality 1974, p.142 emphasis mine). Many in the women's movement would have, in the late 1970s, agreed to the general tenor of this statement, and subscribed to the belief that the nation-state stood for secularism, science and modernity and that somehow the attainment of these goals was consonant with women's emancipation. Political events in the 1980s have, however, made many in the women's movement rather wary of linking women's emancipation with the state's goals of modernity. I will return to this later after briefly touching upon what other constituencies say about the personal laws. For the minority communities, and especially the Indian Muslims who comprise the largest minority community, their personal law represents the distinctive tradition of the community. Its maintenance signifies the only legal protection that they enjoy as religious minorities.

6

Hindus are the majority community in India and inevitably there are many political organisations which specifically represent Hindu interests. These organisations see India as being the homeland of the Hindus which means that other religious communities must live subordinate to the culture and principles of the majority community. For these groups the maintenance of personal laws means the acknowledgement that India is not one unity. This, they claim, is contrary to the spirit of the Constitution which declares that all the people of India are one. Therefore, in order for all citizens to be treated equally before the law, the maintenance of separate personal laws must be done away with. At the level of the state, whether the Constitution, the legislatures, the state officials, the understanding is that there should be a coexistence between secular and personal law till such time that the social and legal system evolves to fulfil the telos of an eventual uniform civil code. The Directive Principles of the Constitution states: "The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India" (art.44). There is a hierarchical relationship between the two, secular and personal law, and there is no doubt that 'secular' is the upper term (Pathak & Sunder Rajan 1989). Personal law is thus being temporarily harboured under the overarching secular law till such time that society and law evolves, till such time as when people will not need to be identified by their separate religious identities, till such time as the secular identity of the Indian subject can be ensured in law. The meanings that emerge from the above positions seem to converge around certain key issues. Identity is one issue that is central in the discussions about the personal law. As is evident from the above, minority identity, secular identity, majority identity, and also gender identity are entangled in a complex net of relationships. The identity of the state also emerges as a key issue. Implicit in the argument that the personal laws are an anachronism in a modern society is that the state, contrary to its claims, is not fulfilling the secular ideals of a modern nation-state. Underlying the argument put forward by the Hindu political groups that not having the same laws for all citizens violates the Constitution is that the state defies the founding text of India. Inherent in the view of the minority communities that the maintenance of the personal laws provides the only legal protection that the minorities have in India, is the assumption that the state should protect and be the guarantor of the distinctive and separate identities of the minorities. Other key issues which are signalled in discussions about the personal law are also related to questions about identity. The most obvious is, of course, religious identity. The maintenance of the personal laws signifies that religion is not only recognised as a 7

personal practice but is established as the basis for community identity and one that is related to the state. In that sense it is a political identity in that it relates to state power. Needless to say the class, caste, gender, regional and other identities of an individual are homogenised under the rubric of religious identity. Which of these identities of the subject will be pre-eminent at a given historical moment depends on the way the subject is addressed or represented (Hall 1992 p.280). Representation is thus a political act in which the battle to mobilise meaning around an identity can be won or lost. Identity, says Kobena Mercer, becomes an issue when it is in crisis (Mercer 1992 p.424). This was best exemplified in the Shah Bano controversy which I have mentioned in the Preface, and which will reappear from time to time throughout this thesis. I will briefly touch upon it now to illustrate, first, how identities become an issue when they are in crisis, and second, how representation mobilises meaning around an identity. Before Shah Bano became a cause celebre, many Muslim women throughout India were quietly approaching the courts and receiving life-long maintenance from divorced husbands under Section 125 of the Criminal Code. The judgement in the Shah Bano case occurred at a point in India's post colonial history when the secular consensus of the 1950s and '60s had broken down. That there was a crisis of identities is illustrated by the escalation of communal conflicts, the resurgence of majority and minority fundamentalisms, caste wars, and regional separatist movements in this period. All this contributed to the creation of what a commentator has described as a current state of civil war (Upadhyay 1992 p.821). The common denominator marking this strife, which extracted a very heavy toll in terms of loss of lives in the 1980s decade, was the articulation of identity in parochial and communal terms. Political mobilisation increasingly relied on particularistic identities and loyalties. It seemed that the vision of the united, homogeneous nation was fractured. In its place were innumerable 'imagined communities', and nations within the Nation. In this political climate the judgement in this case not only upheld Shah Bano's right to maintenance, but also quoted the Shariat to point out that this right was in keeping with Muslim Personal law. It also mentioned that in the absence of a uniform civil code the role of the reformer would have to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is far more satisfactory way of dispensing justice than justice from case to case" (Chandrachud, C.J., Supreme Court of India, Criminal Appeal No. 103 of 1981, judgement dated 23rd April 1985, emphases mine). Thus the courts and the judiciary are posited here as the saviour of victimised Muslim womanhood. In this framework the answer to the question who oppresses Muslim women is unambiguously, Muslim Personal Law. But Shah Bano was a Muslim and 8

not only a woman. A judgement in her favour phrased in this way was also a judgement against the personal law of the Muslims. The identity of Muslims and their right to legal protection was being called to account. The mention of the Uniform Civil Code (UCC) was a further threat in this context occurring as it did in a political climate which had witnessed the phenomenal rise of majority fundamentalism. The fear that a UCC would not be strictly secular but rather would be a way of imposing the reformed code of the majority community on the minorities was a real one. This verdict thus became a rallying point for some Muslims to claim that it violated Muslim Personal Law and by implication their authentic identity and, therefore, their right to exist. The representation of Muslim Personal Law as the authentic tradition constituting Muslim identity had in this instance the power to mobilise a community; to dissolve Shah Bano's other identity, woman; and also mobilise the state. Shah Bano publicly rescinded her right to maintenance and declared her loyalty as a Muslim. The state came up with another piece of legislation protecting this identity. The women's movement, as I have mentioned in the Preface, read this situation as one in which women's rights were at stake. A woman's right to maintenance in the event of divorce was undermined by the new legislation. Furthermore, the legislation deprived Muslim women of a right that they had hitherto enjoyed. All women had the right to be treated equally before the law and that is why a UCC was necessary. The identity of the woman in this instance was represented as that of the citizen via the stress on equality before the law. The power to mobilise meaning in support of a Muslim woman's identity as citizen was, as I have mentioned, appropriated by the Hindu political organisations. This was done by constituting Muslim Personal Law as being backward because it oppressed women, representing Muslim tradition as being retrograde and obscurantist and in need of reform, and projecting the state as being partisan in supporting Muslim identity at the expense of equality before the law of all citizens. The same terms, 'citizen' and 'equality before the law' belonged in both the vocabularies of the oppressed (women), and oppressors (supporters of Hindu chauvinism). As it turned out the contest to represent 'woman as citizen' was lost by women's groups in a field wherein its representation was hegemonised by the antagonism between Hindu and Muslim political identities. What was begun as an argument for women's rights became complicit with patriarchal and communal formulations of the issue. The personal laws are, as can be seen, a veritable minefield of identities. Discussions about the personal law invariably slip into debates about identity, about the antagonism between politicised religious identities (Hindu and Muslim), about their relationship to the state. What is virtually impossible to foreground in these debates is the issue that the personal law of all communities subordinates women to men in the family. To rephrase this statement, it is virtually impossible to discuss women's rights in the 9

family separate from and unrelated to religious identities, their antagonism, and their relationship to the state. Given these circumstances the problematic I would like to pose is the specific conjuncture of the personal laws, religious identities and their meaning in the state, and the boundaries these set in discussing women's rights. What makes for this specific conjuncture? Identities, as we know, are made, made in response to wider social, economic and cultural processes taking place and in the context of the rearticulations of power. Identities are neither unchanging nor is their meaning 'fixed' for all time. Thus, in order to answer the question what makes for the specific conjuncture of identities it is necessary to unravel the complex processes through which we have arrived at contemporary understandings of these. And to do this we need to look back in history in order to arrive at the present.

1. 3. The British as the patrons of the shastras: The making of the personal laws. The first stage in unravelling the present conjuncture with which we are faced is to examine the history of the making of a system of personal laws. And for this we need to go back to the colonial period as the system of personal laws was a colonial construction. The British Raj emerged in the middle of the 18th century in the political context of Bengal. The East India company which until then was a 'mercantile/ warrior' institution operating within the pre-colonial state began to appropriate formal responsibility of government and to develop its own state-craft (Washbrook 1981). The building of the principles of state- craft was dependent on twin imperatives which were first, to extract economic surplus, in the form of revenue, from the agrarian economy, and second, to maintain effective political control with minimal military involvement. Establishing the rule of law and the nature of property right were central principles of this state-craft and find their direct expression in the Permanent Settlement of 1793 which also laid the foundations of the Anglo-Indian legal system. A judiciary was set up independent of the executive. The law defined and protected the private rights of subjects, among which was that to property. These rights were based on a philosophy of 'possessive individualism' whereby the propertied individual was to be freed from external controls which limited his ability to accumulate private property and wealth through the market. 'The Permanent Settlement envisioned a society whose prosperity was underpinned by a free market in all commodities, including and especially land' (Washbrook 1981 p.652). Alongside the development of the principles of 'public' law was also the attempt to define the bases of the 'private' or 'personal law' of the subjects. Contrary to the 10

philosophical underpinning that had gone into the making of the 'public' law which was to free the propertied individual to operate in the market, the basis for the personal law was built on a vision of society wherein the individual was subject to community obligations and morality. And how were these obligations and this morality to be fixed? These were to be fixed by the 'discovery' of existing customary and religious norms (Derrett 1968). The following is the account of the processes that were traversed in discovering existing customary and religious norms. According to Derrett, law in India before colonisation by the British was not a fixed and immutable body of knowledge based on the scriptures. Law in India was always open to influence by jurists and modification and abrogation at the hands of the ruler (Derrett 1968). This was overturned by the British in their voyage of 'discovery' of existing customary and religious norms. The Warren Hastings Plan of 1772 which later became The Administration of Justice Regulation of April 11th, 1780 proclaimed that the Aastris (learned professors of indigenous Hindu law ) would be consulted on matters pertaining to listed subjects only. These subjects were 'Inheritance, marriage, caste and other religious usages'(Derrett 1968 p.232-33). Having decided that sastris ( learned professors of indigenous law) would be consulted on the listed subjects, the British administrators and jurists concentrated their efforts on obtaining an authoritative version of the Hindu law. Successive administrators were convinced that there was a Hindu law (dharmasastra), a fixed code, a known and stateable body of rules, which as they thought, had by the eighteenth century become overgrown by later commentaries. The first effort to compile the Hindu law and make it available to English judges in India was done under Warren Hastings' direction when in 1773 eleven pandits (Brahmin legal specialists) were assembled in Calcutta and were asked to compile a digest. The work was completed in 1775 and was entitled Vivadarnava-setu. The work, which was prepared in Sanskrit, was translated into Persian and then into English. It was then sent to England with an introduction by Hastings, printed as 'A code of Gentoo laws' and became the authentic source for understanding Hindu law. What was even more interesting was that other rulers in India took this digest to their territories and adopted it as a fixed source of the law pertaining to personal matters. Among the topics covered by this digest were included adultery, duties of women, marriage, adoption, property and inheritance. According to Derrett the order of appearance of the chapters and the relative weight given to each does not correspond to anything known to the .sastric work and it is evident that the committee of pandits was working on a list of topics supplied by Hastings or his immediate advisers. However, the digest turned out to be a practical handbook of Hindu law for the administration. Besides compiling a digest in an effort to fix Hindu law, Hastings and his colleagues embarked on a scheme to improve sastric education. Part of this plan materialized in

11

the establishment of the Sanskrit College at Benares and the founding of the Sanskrit college in Calcutta. The British became the patrons of the sastra ( scriptures). The use of such a digest by British judges and consultations with pandits, however, did not end the confusion. Throughout the 18th century numerous attempts were made by successive British administrators to establish and codify a Hindu law. One of the chief architects of the effort at codification was Sir William Jones who was convinced that the multiplicity of interpretations provided by pandits in different courts was a source of corruption. Pandits could favour their own caste and relatives in a dispute by citing scriptural authorities which were not known to the British. The court had to decide on which version to believe. The adequacy and relevance of the sources had to have a Hindu character. Therefore, a new and better understanding of Hindu law was necessary. Between 1783-1788 Jones worked on Islamic and Hindu laws. This led to the compilation of a Digest which was published after his death and translated into English by his successor. However, this did not put an end to the search for the Hindu law. Suspicion regarding the reliability of the pandits grew. In addition to their concern with the possibility of corruption, the British judges became aware of an immense body of commentaries available to the pandits and of what they perceived as a lack of system in the use of the vast number of texts. At the same time that this suspicion about pandits was growing, there was considerable encouragement, in the form of positions and subsidy for publication, for pandits to try and update, summarize, and publish legal texts in Sanskrit. By the 1820s it became obvious to the British that there was in practice no one fixed Hindu law that applied invariably to all Hindus and that in fact quite the contrary was true. The search for certainty continued and in the 1820s the doctrine of stare decisis grew in relation to adjudication of disputes involving personal law. The publication of decisions of the courts from 1840s onwards and with the passage of the Indian Law Reports Act of 1875 made it possible for British judges to consult earlier rulings. By the end of the nineteenth century Hindu law became mainly case law based on published cases.(Cohn 1965 p.112-113). The Hastings Plan had envisaged the task of applying indigenous legal norms 'in all suits regarding inheritance, marriage, caste, and other religious usages or institutions'. Since religion was accepted as the basis of customs and indigenous legal norms, the other great religion of India, Islam, was made the basis for laws governing the personal matters of all those designated as Muslims. So whereas the Brahminic 'shastras' were to be the basis of the laws for Hindus, the Koran would provide the source of the laws for Muslims. Thus Hastings subsumed all indigenous legal arrangements under two categories: Hindu (also Gentoo) and Muslims (Muhammadans).

12

Following Hasting's plan, the limited bureaucratic machinery of the Company state was pressed into service to provide a workable knowledge of indigenous legal arrangements that would apply to the Muslims. Apart from the language difficulties that this entailed, the task was further complicated by the fragmented and contingent quality of the sources of legal precepts. Colonial scholarship drew heavily on pre-colonial legal scholarship. Adapted forms of the shariat had been administered in South Asia for centuries. Under the Mughals the application of the shariat symbolised the legitimacy of imperial rule and its dispensation was regarded as a sacred duty. In the courts the shariat was supplemented by a comprehensive set of imperial regulations and the maintenance of a cadre of officially sponsored 'qadis' (Muslim law officers) drawn from the ulatna (Muslim clerics) (Anderson 1990a). Pre colonial legal scholarship was coupled with an earnest effort to enforce the shariat. Islamic law did not recognise custom as an independent source of law and although the al-Hidaya did grant custom a role in the absence of textual norms, the practice of resorting to custom was looked down upon by the orthodoxy. However, for all its legal scholarship and maintenance of legal institutions which would enforce the shariat, the reach of the Niughal legal system did not extend beyond a small elite. Most communities jealously guarded their autonomy and used imperial tolerance to retain local institutions including legal ones. Here what mattered was local precept and customs which were often in contradiction with textual norms. For the British, however, the problem was how to gather from these myriad forms of legal authority a systematic and reliable body of knowledge that would present an accurate understanding of indigenous social life and would be applicable in all cases. Establishing the rule of law was, after all, an important part of the edifice of maintaining and extending colonial control over the subject peoples. As with the Hindus, the way in which the colonial administrators went about solving their problem, was by arming themselves with indigenous advisors and relying on classical religiouslegal texts, limited as their relevance was to the majority of people (Anderson 1990b). The assumed centrality of legal texts led them to the translation of Islamic texts in English which would then provide the British judges with rules to be applied in court. Here again Sir William Jones insisted that Hastings should endeavour to compile a complete Digest of Muhammadan laws. Hastings appointed three maulavis (Muslim clerics) to translate the al-Hidaya from Arabic to Persian and its English translation was undertaken by Charles Hamilton in 1791 (Anderson 1990b). This text lacked a treatise on inheritance which the British considered the most intractable of Muhammadan law subjects (a similar opinion is expressed by Indian judges in contemporary India). In 1792, therefore, Sir William Jones himself undertook the translation in English of al-Sirajivya, a treatise on inheritance, from the original in Arabic. The translations assumed greater significance as judges relied more directly on 13

them instead of on the indigenous law officers whom they had appointed to advise them. Only one other major translation was added to the list of texts in the nineteenth century and this was Baillie's translation of Fatawa Alanzgiri, named 'A Digest of Muhammadan Law' and published in 1865 (Anderson 1990b). As with the Hindus and their personal law, the British administrators were increasingly frustrated throughout the first part of the nineteenth century by the inadequacy of religious texts that would provide a fixed body of immutable rules. The administrators had reasons to suspect the reliability of native law officers (qadis) on whom they had depended initially because like their counterparts, the 'shastris', they were full of interpretations and local variations. By 1864 the 'qadis' were dispensed with altogether and the courts were relying more and more on case law. Another development was to codify custom as a source of law. This arose from the land surveys done in the Punjab in the 1850s where it was seen that the Punjab Muslims and Hindus emphasised custom. However, in their codification of custom the British administrators again operated on the pre-conceived notion that these were ancient and, therefore, fixed and immutable. By turning custom into statute, as for example in laws governing land and embodied in the Punjab Laws Act of 1872, customs became 'fixed'. In 1868, the Privy Council affirmed that in Hindu Law, custom would outweigh the written text of the law (Anderson 1990b). A similar doctrine was established in limited areas of Muslim law, only much later. 1. 4. The fall-out I have dwelt at some length on the processes through which the personal laws were constructed in the colonial period for a number of reasons, which I will examine in the following discussion. The main reason is, of course, the bearing that this has on the present in terms of discourses about identity. The construction of the Hindu law, as we have seen, relied on scriptural and textual tradition. Commentators investigating the personal law have noted the conservative implications for the development of society that this process set forth. It revived outmoded conventions, and brought in obstructions for change in the future (Washbrook 1981, Derrett 1968). The British reliance on the shastris meant that a more Brahmanical view of society was imposed stressing the immutability of religious principles (Derrett 1968; Cohn 1987). Under its influence the personal law recognised and validated the caste system and the varna theory of social order. The concept of the family followed the ideological norms of the upper-caste in defining the proper relations in the family. The process of personal law construction based on the privileging of Brahmanic tradition was extended via colonial power to groups in 14

society that had not been subject to these traditions and had for long had more localised, non-scriptural customs (Washbrook 1981; Cohn 1987; Anderson 1990b). If we examine the fall-out of this process in terms of the redefinition of proper relations in the family, we find, as Washbrook has investigated in great depth, a contradiction between what the 'public' law sought to do and what the 'personal' law constrained the individual from doing. The legal definition of the family relied on the religious principle which emphasised the infinite jointness of kindred (Derrett 1968). Members of a family were recognised to have rights to shares in, and maintenance from, the collective property which also restricted the rights of other members to use the property as they would wish to. Individual property rights were thus, via their construction in the personal law, deeply entangled in the relations of Hindu joint-family property. The constraints that were imposed on the individual worked to contradict the demands of the market for property exchange and transfer and especially in the case of immovable property such as land. Most land was seen by the courts to be tied up in ancestral holdings held by the joint-family and which the individual could not alienate for his purposes. The 'public' law sought to emancipate the property rights of individual proprietors so that they could operate in the market. Personal law, on the other hand, entrenched the ascriptive status of the individual(family, religion and caste) curbing his freedom to operate in the amoral market. Washbrook concludes that if the intention of the British was to establish a society whose prosperity was underpinned by a free market in all commodities, including and especially land, they were certainly not doing it very well. The redefinition of family relations according to Brahmanic precepts had the effect of suppressing discretionary and voluntaristic elements in family relations and also reversing nuclear family formation (Washbrook cites T.Raychaudhuri as evidence in support of reversal of nuclear family formation). The redefinition of proper relations in the family had implications for gender relations. There is growing evidence to suggest that the imposition of Brahmanical views of society worked to the detriment of localised, custom-based definitions of women's position and independence. The adoption of gender ideologies of the Brahmanical tradition as the norm implied stricter regulation of women's sexuality. Norms regulating marriage, remarriage, divorce and maintenance in the upper-caste were distinguishably different from those of the lower castes. For example, lower caste widows were and are permitted to remarry; in the upper castes they were not. The culture of the pativrata or the one who remains faithful to the husband was propagated as the norm. Divorce initiated by the wife was possible in the lower caste, forbidden among the upper castes until 1950s. Polyandry, levirate and widow-remarriage were common among many tribes and peasant groups. Lower caste women worked outside the home, so seclusion of upper caste women was imperative.(Mazumdar,1990). 15

Hastings' patronage of the shastras earned him the epitaph inscribed on his tomb in Westminster Abbey that (he) gave back to the 'Hindoos' their religion. The Brahmanical hegemony that was established through the process of constructing the Hindu personal law has led Washbrook to conclude that the nineteenth century was the Brahmin century in Indian history. The construction of the personal law of the Muslims, better known as AngloMuhammadan Law, also had the effect of re-establishing the power and hegemony of elite groups. Anderson shows that the actual social impact of the colonial courts was constrained by two factors. First, by their reluctance to intervene in agrarian relations unless absolutely necessary. Second, and following on from the first, this meant that the pre-colonial political systems continued to hold sway and with it the dispersal of authority among a number of entities. Dispute settlement, therefore, took place at local and community level and the legal arrangements sheltered a diversity of norms not necessarily scriptural. However, the establishment of British courts, which followed the Anglo-Muhammadan law, became a source of dispute settlement for landed gentry and other notables. They used this to reinforce their hold over agrarian producers and often to accumulate more land. Furthermore, the Islamic gentry relied for its material subsistence and political authority on property grants made by earlier rulers. With the establishment of Anglo-Muhammadan law their rights over these grants, which earlier had been held under a variety of legal arrangements, became 'fixed' increasing thereby their access to and control over economic and political resources. The system of personal law applicable to putative 'Muslim' groups had the effect of consolidating the power of certain community groups. The colonial state consolidated its hold over society through its reliance on the landed gentry and in this sense the AngloMuhammadan law was more than just a concession to local opinion. The reliance on scriptural traditions in defining the family laws of Muslims had other effects. As for example, it etched the boundaries between those Muslims who considered themselves elite or had aspirations of being elite (ashraf or of noble descent) and the masses of Muslims at the poorer levels of society. At the same time it also wove the texture of a 'cultural' community. As the nineteenth century wore on two important social reform movements of the Muslims, Deoband and Aligarh, emphasised the meaning of the shariat in defining the Muslim community. For many, and not just the ultutui, personal adherence to the shariat took on an increasing importance as a mark of community. Its privileging as the basis for the personal law served to mark it as the touchstone of community (Gilmartin 1991). Gilmartin shows these reform movements aimed towards a 'cultural' definition of Islamic community in an arena largely independent of state authority. These reforms were in fact intended to preserve 16

and extend the local prestige and power of the ashraf even as they sought increasingly to fuse this local power with a 'broader' definition of Muslim community that would justify ashraf leadership in local affairs. 'The tendency, whether at Deoband or Aligarh, was thus for Muslim leaders to seek new 'cultural' definitions of community identity _ forged in the realms of 'community' life independent of the political structures of supporting state authority' (Gilmartin 1991 p.128). This definition of the community, based on cultural autonomy flowing from scriptural tradition and which an individual could acquire through education and the observance of the shariat, 'othered' forms of identity based on custom, local kin and caste. Whereas this expression of cultural identity sought to define itself outside the realm of state control and colonial domination, its emphasis on fixed forms of leadership and authority fitted into the colonial state's definition of Muslims as a particularistic community (which was later to find expression in the 'representation' system set up by colonial state in the early twentieth century which defined Muslim as a homogeneous group with a 'descriptive' status and entitled to separate electorates). The othering of forms of identity based on local, caste and kinship groups had implications for women. The domestic realm became an important arena of reform. Women's education in conformity with the principles of behaviour and values of life, consonant with ashraf status defined by scriptural tradition, became from the mid and late nineteenth century the ground for contests between elite men as they sought to forge a distinctive Muslim identity. For women this meant the negation of the syncretic and popular rituals that they were accustomed to following and increasing male control over their personal autonomy in the domestic realm (See Minault 1993 for more detailed analysis). 1. 5. Woman as a sign. In the

previous section I have alluded to the implications for women of family laws

whose bases were thought to be scriptural tradition. I have also hinted that scriptural tradition became a marker of identity for putative Hindu and Muslim groups and that this process served to extend the power of 'Brahmanical' and 'ashraf elite identity. However, it is not immediately clear from the above discussion as to how women become markers and symbols of the authentic tradition of a particular group and how this relates to state power. In other words, while it is apparent that stricter regimes governing women's sexuality and behaviour were brought in by the hegemony of scriptural tradition, it is not immediately apparent how this relates to the problematic that I began the discussion of the making of personal laws with. In order to do this it is important to investigate the terms on which 'tradition' itself was constituted.

17

How was it that scriptural tradition became for the British the key guide to an understanding of what Indian customs and norms were all about? Cohn, for example, explains this as having stemmed from the views of the orientalists in India, who were mainly concerned with judicial affairs of the Company state (as for example, Sir William Jones, who was one of the most famous of the Orientalists). In their assessment the central principles and institutions of Indian culture and society were based on religion. Religious ideas and practices underlay all social structure and the Brahman was the maintainer of the sacred tradition through his control of the knowledge of sacred texts. They also accepted the Brahmanical theory of the four varnas and saw the origin of castes in the intermixture through marriage of the members of the four vamas. The orientalists were also convinced that the texts were indeed accurate guides to the culture and society of the Hindus (Cohn 1987). We have seen that the material consequence of these ideas was the establishment of personal laws based on scriptural tradition. However, there were other implications connected with this which found expression in the various ways knowledge about Indian society was produced, and, the political and administrative measures that were undertaken by the colonial state based on this knowledge. First, implicit in the view that the central organising principle of Indian culture and society was religion, was the acceptance of the society as static, timeless, and spaceless. In this society the indigenous people gave unreflective obedience to Brahmanic texts. Second, there was also agreement that Hinduism as practised in the late eighteenth and early nineteenth century was filled with 'superstition' and 'abuses'. In other words Hinduism had fallen from grace, from the golden age of ancient and immutable texts. It was by the agency of the British administrators that the original splendour could be restored. And the way to do it was to discover the authentic tradition. It was in the discovering of this authentic tradition that 'tradition' itself was reconstituted under colonial rule, argues Mani. Mani's path-breaking work on official discourse on sati (widow immolation) and its prohibition by legislation in 1829, provides a framework for understanding how women's rights and status in society became the ground on which tradition was reformulated. The abolition of 'sati' is often represented as the triumph of social reform movements in the nineteenth century and one of the positive consequences of colonial rule for some aspects of women's lives. Inherent in such an understanding is also the 'civilising' and modernising mission that colonialism performed. However, Mani's work deconstructs what the underlying concerns of officials and the indigenous elite were in either supporting or opposing abolition and these concerns were not necessarily about women. Mani shows that official discourse on sati was prompted by deliberations among officials as to whether it was safe to prohibit sati through legislation. The concern for 18

safety arose from the understanding that since sati was a religious custom with its basis in the scriptures, its prohibition would provoke indigenous outrage. Supporters and opponents of prohibition among the officials both relied on 'religious' arguments to support their position. In other words both the opponents and supporters were united in their analysis of what Indian society and sati were all about, namely that the brahmanic scriptures were central, the people were passively obedient to these scriptures, and that sati was part of their religion. Scrutinising the processes through which the official knowledge about sati was produced, Mani shows that this was generated through questioning pundits resident at the courts. Analysing the interactions between pundits and judges, pundits and magistrates she plots the connection that the formulation of official questions about sati shaped the responses of pundits and how the answers of pundits were then interpreted in specific ways. Pundits were required to comb the scriptures and produce unambiguous scriptural support. The emphasis on clarity enabled the constitution of 'legal' and 'illegal' satis and established the criteria for an officially sanctioned sati which formed the basis of the only legislation prior to abolition. Although scriptural authority was claimed for this model, such authority was dubious. For one thing, pundits often characterised their replies to the questions as textual readings or as interpretations. Often two pundits could not agree on the interpretation of a particular text or could quote different passages of the same text to support opposing viewpoints. Official response to this heterogeneity took several forms. In all of these responses the urgent need was to reinscribe sati into a scriptural tradition, a tradition generated by the specificity of meaning imposed by official reading of pundit's interpretations. What we get is a colonial version of sati which then sanctioned certain forms of widow immolation. Thus far from abolishing sati because of the horror of it, officials were more concerned with fashioning sati as a practice that would adhere to what they considered was its true form in the scriptures. Mani further shows that the progressive indigenous discourse about sati (which favoured abolition) and whose main proponent was Rammohun Roy, shared key features with official discourse. Rammohun's case for abolition was grounded primarily in a discussion of the scriptures. It shared the same ambivalence as the official discourse about sati in that the act of sati was both read as a mark of women's stoicism and also epitomising their weakness. Opponents similarly grounded their arguments against prohibition in scriptural sanctions. Certain key ideas about sati and Indian society were thus shared by all these participants in the debate as were the procedures for arguing their case. The grounding in scriptural tradition was a common framework for all participants. The ways of 19

ordering the heterogeneous and unwieldy corpus designated the scriptures were also common. As for example, the older it was the more genuine it was regarded to be. This privileging of the ancient refers back to another of the key concepts about Hindu society, that it had fallen from a prior golden age. Thus the task of social reform became to restore Hindu tradition to its golden age by the reinterpretation of the scriptures. This task was made even more urgent by the moral superiority inherent in the British concession that Hinduism was great but only in her scriptural past. Mani labels this mode of understanding Indian society that emerged alongside colonial rule of privileging brahmanic scriptures and equating tradition with scripture, a colonial discourse. This discourse was shared to a greater or lesser extent by officials, missionaries and indigenous elite. This discourse did not emanate from nowhere and historians have pointed out the continuities with pre-colonial discourse. This discourse was produced through interaction with select natives but the important thing to remember is that officials had power over the natives in its production. Thus Warren Hastings could insist that brahmanic and Islamic scriptures were prescriptive texts even though there was evidence to the contrary. These assumptions could then be institutionalised as Hastings did in The Administration of Justice Regulation act making it the basis for the personal laws. This discourse had palpable material consequences of which the constitution of personal law from religious texts is the most significant for women. The colonial discourse not only privileged brahmanic scriptures but also sharply differentiated between 'Hindu' and 'Islamic' traditions which they saw as autonomous and mutually exclusive heritages. In fact resurrecting the Hindu past was read as weeding out the corruptions that had crept into the tradition in the pre-British period in what the British officials were fond of referring to as the Islamic interlude. Mani asks whether this discourse can be seen as a 'modernizing' one. After all the debate on sati, for example, was not based on a secular discourse of reason positing a morality critical of 'outmoded' practices and weighing these against a new conception of the rights of individuals. Well, in this it was not modern except that the concession to the 'voluntary' will of the sati may be interpreted as a recognition of the individual. In every other sense of coui se it bears little resemblance to secular, modern discourse as this is understood in the west. The debate on sati was a debate about scriptural interpretation and the alleged neglect of true tradition. However, Mani insists that this discourse was modern and herein lies the significance of her work because it exposes the contours of a heritage whose contemporary articulations my thesis seeks to understand. Mani says it was modern in that it was a modern discourse on tradition because it exemplifies late eighteenth century colonial discourses that elaborated 20

notions of modernity against their own conceptions about tradition. In other words, this discourse is not about the challenge of pre-existing tradition posed by an emergent modern consciousness. It is about the simultaneous production of both 'tradition' and 'modernity'. And what are the distinctive elements of tradition in this discourse? Tradition is represented as timeless and the structuring principle of Indian society working itself out in everyday lives of indigenous people. Tradition becomes in this discourse interchangeable with religion and culture and is a separate sphere from material life. And how are women positioned in this discourse? Sati was after all about women being burned to death on their husband's pyres. Mani shows that women were denied any agency in the debate which is understandable given the positing of tradition as immutable and as an ubiquitous force driving the every day lives of people. Women were thus either victims of this tradition or heroines because they withstood the flames that engulfed them. Women were thus not subjects of this discourse nor were they the objects since the sati debate was not about women. On the contrary, it was about tradition. Women became in this discourse the sites upon which various versions of scripture/tradition/law were elaborated and contested. And in this contest the actors were the officials and the indigenous male elite. The frequency with which throughout the nineteenth century debates on women (whether in the context of widow remarriage, or seclusion, or education) became debates about tradition testifies to the ubiquity of this discourse and also to the terms on which the indigenous elite engaged with the power of the colonial state. Women became for all sides in this contest representative of tradition 'whether viewed as weak, deluded creatures who must be reformed through legislation and education, or the valiant keepers of tradition who must be protected from the first and be permitted only certain kinds of instruction' (Mani 1989 p.118). The terms of engagement between indigenous elite and the colonial state becomes clearer in this context. Protecting women becomes part of the civilising mission of the colonial state. Equally for the indigenous elite, protection of women's status through reform becomes an urgent task to save the honour of the collectivity, whether Hindu or Muslim, or of the emerging nation. O'Hanlon extends our understanding of this engagement by asking the question why was it that colonial rulers and elite Hindu men concurred in depicting Hindu women in these particular terms - as weak, passive, helpless and pure (O'Hanlon 1991 ps.62-108). O'Hanlon suggests that there were two processes at work in the public debates and colonial law-making as they applied to Hindu social relations. The first was the constitution of woman as a sign for a tradition which was disempowered and objectified in very real ways. And the second, was the simultaneous re empowerment of different groups of elite men as social critics of that tradition. This tradition and its close association %Pi ith femininity or inferiority was not 2_1

contextless. Some of the forms of femininity that both colonial officials and elite men alluded to in these debates were derived from colonial legislation and its consequences for Hindu social relations. As for example, both stressed the durability of this tradition, its domestic and religious character rather than its political nature, its communitarian nature and the interdependence among its members. All of these features are recognisable elements of what had been institutionalised as the personal law and was 'now selected and reflected back as tradition in colonialism's distorting mirror'(O'Hanlon 1991 p.77). O'Hanlon stresses that the assumption of passivity, inertia, extreme religiosity and mutual interdependence of Hindus was an essentialised fiction but what was true was that the colonial state had by means of legislation from very early on, severed the connection between Hindu social relations and ritual practices from its incorporation within the political structure and state in pre-colonial times. Colonial officials justified this disintegrating and depoliticising process as separating the public from the private domains, and after 1858 (1857 was the year of Sepoy rebellion in which British authority in India was challenged), as a measure designed to assure the indigenous people that their religion would not be interfered with. However, the separation of the public from the private was not as in western discourse to protect the individual from the state. Rather in the colonial version these distinctions juxtaposed the realm of the state's competence to, not individuals, but Hindu communities. Within this ideological framework the colonial state enforced collective responsibility, interdependence and management of Hindu social relations by, for example, making religion the basis of the personal laws, which as we have seen, entrenched ascriptive status (caste, religious, and familial) as the basis of individual right. This served to bring a certain fixity in the sphere of Hindu social relations 'most obviously in their drive to define the original and essential in Hindu textual tradition as the basis for law' (O'Hanlon 1991 p.78). In other words, individuals and groups no longer had the political power to contest and change the terms of social relations but had to operate within the fixed parameters of prescriptive scriptural statements which had become law. The process of disempowerment was completed by rendering men at many levels of colonial society incapable of the superior exercise of political authority thus in turn excluding them from access to the main instniments of state power. And what were the strategies the colonial state used in re-empowering groups of men and how did these in turn serve to define the differential power that different groups of men had and women had access to? O'Hanlon shows that it was through the structuring of the social reform debate and the judicial redefining of Hindu law and tradition in the nineteenth century that the colonial state re-empowered different groups of men at different levels of society. Elite and literate men were induced by the colonial state to 22

participate in legitimising the state's civilising mission and drive to fashion a unified Hindu tradition for its subjects. This set up a peculiar relationship between these men and tradition one that was an admixture of authoritative identity and dissociation. However, it opened up for them new sources of power, the power to intervene in moral and judicial discourses, the power to fashion a tradition. Through this interaction a new Hindu tradition was drawn forming the basis of colonial legislations. The most intensely debated issues were those concerning women. And through their participation in the debates, in which woman was employed as a sign, elite men obtained real control in determining the proper status of women and forms of freedom that would be allowed to Hindu women. O'Hanlon also shows that for lower-caste communities the same reconstruction of tradition allowed for other new and material ways of exercising power over their women. She cites, for example, the debate on widow remarriage which allowed for these groups of men to re fashion actual social practice. For women these same processes disqualified them from participation in debates which were crucially about them. Consequently, women became subject 'in new ways to the views and judgements of both elite men, and those within their own families and communities' (O'Hanlon 1991 p.79). Both Mani and O'Hanlon point to the ways in which these discourses of power resonate in debates about women's position and rights in contemporary India. Mani cites the Shah Bano controversy as exemplifying the persistence of colonial discourse in contemporary India. Although she sees in the debates around the Shah Bano case a going over of some of the same issues that were traversed in the sati debate, she nevertheless recognises that the terms of the debate have shifted to some extent by the intervention of new forces. Shah Bano's legal combatism, for example, is one such force as is the fact that women and feminists were active participants in this debate. These interventions have served to shift the parameters of the discussion so that it was not entirely a scriptural issue. I will argue in a later chapter that although these forces helped shift the parameters of the debate from those within which colonial ones were restricted, it was nevertheless about tradition, a tradition constituted through the interaction of new political forces. O'Hanlon points to the fact that just as the intensely contested debates about women in the nineteenth century went into defining, and representing a generalised Hindu tradition which then formed the basis of colonial legislation, similar contests have gone into the making of nationalist efforts to construct a cultural equivalent for India as a political entity. In my discussion of the Hindu law reform (in later chapters) in the 1940s and 1950s I will show how contests over women's position and status defined a new Hindu tradition and identity (some of the ingredients of which were taken from the

2_3

colonial discourse), albeit an Indian identity, that was institutionalised through legislation. I arrive back at the conjuncture that I had posed initially - the personal laws, religious identities and their meaning in the state, and the boundaries these set in discussing women's rights. By looking at the history of the processes that constructed the personal laws, the ways in which tradition and identity were produced through the emasculating and depoliticising projects of colonial state power, the differential power that these identity definitions made available to different groups of men and women, some clues as to the meanings of the present conjuncture open up for scrutiny. 1. 6. Research Concerns Much water has flown under the bridge since the imposition of personal laws by the administrative fiat of the colonial state. The twentieth century heralded the demise of the colonial state and the establishment of an independent nation-state. After forty seven years of independence the Indian state still maintains a system of personal laws for its subjects. As I have discussed above, in the latter half of the nineteenth century Anglo-Hindu and Anglo-Muhammadan law was primarily case law with some aspects being governed by codified custom. In the 1930s Muslim legislators took the initiative to reform their personal law. Improving women's status was forwarded as a central justification for undertaking the two main legislations in this period. Attempts to reform and codify the personal law of the Hindus began in the 1940s and was completed in the 1950s. Here again the central consideration and the justification for the need for these reforms was to improve women's status in the family laws. In chapters 3 and 4 I have detailed the processes and debates that went into making the new legislations and I have shown that the central concern was not necessarily women's rights to equality with men in the family. These legislations, and the rights they defined for men and women in the family, form the basis on which adjudication takes place in contemporary India. My research investigates the construction of gender identity in the personal laws in India. My research concern arises from the empirical problem that I mentioned in the preface. This problem arose in the context of the difficulties faced in trying to ensure women's rights when their violation happened to be in the family. Why was it so difficult, we asked ourselves in this context, to actualise women's rights as citizens? Why was it next to impossible to separate out a woman's identity as subject/citizen imbued with rights from that of her identity as female, as daughter, sister, wife and mother? In the aftermath of the Shah Bano controversy another complex dimension 24

was added to this empirical problem. The identity of the female subject was further fractured by her identity as symbol and marker of the tradition of her religious community. And so we rephrased the question to ask why it was so difficult in India to separate out a woman's identity as subject/citizen imbued with rights from that of her identity as female, as daughter, sister, wife, widow, and marker and symbol of community at the level of the public, the politico-jural, the state? When the problem is posed in the above manner by asking for answers to the 'why' in the question, certain things are assumed. First, that there is such an entity as the unified subject in law and that it is the domain of the state that gives meaning to this entity. Second, that the identities of wife, mother, widow belong to a different domain to that of the politico jural, the state. This domain is of the private, the family, of kinship and community which give meaning to the identities of female /wife/widow. Third, there seems to be a connection between the two domains because otherwise it would not be so difficult to actualise women's rights as citizens. Establishing what the connection is between the two - the domain of social relations in the private and of the subject/citizen at the level of the public - seemed to be one of the ways of seeking answers to the question but it also gave rise to a host of related questions. First, is there a connection between the two? Second, what is the nature of this connection? Third, how does this connection operate to secure asymmetrical power relations between the genders? In order to be able to investigate the nature of the connection the assertion of the unified subject in law, even as a metaphysic, is necessary because it asserts that men and women are equal before the law and by implication the state and legal institutions are neutral. Starting from this position would make it possible to dismantle how male and female subjects are gradually, materially and progressively constituted in law, which discourses of identity inform these constructions, and from which domains these discourses arise. What issues in the personal law would help to concretise these connections? The claims made by and rights conferred on men and women to family property - marital and ancestral - seem the most concrete place wherein to look for these connections. Property rights signify access to and control over resources, the material means whereby gender differentials are kept in place and women's subordinate status reinforced. The issue of property is most likely to provide insights to what kind of persons men and women are represented as being since bound up in the concepts of property are concepts of the person (Whitehead 1984). In which realms can these connections be best investigated? Presumably at the cutting edge of the law. The cutting edge of the law is both at the point of formulation and 25

adjudication. The point of formulation is the juncture at which discourses about identity, tradition, the correct form of social relations between men and women are institutionalised and inscribed as normative. At the point of adjudication it is possible to make out what the contests between the claimants are about and on what basis entitlements are fixed. This in turn would presumably provide clues as to the identities of the claimants being addressed through the process of hierarchising claims and fixing entitlements. Finally, would an investigation of gender construction in the personal law, which examines the connections between the domain of the state and the domain of social relations at the level of the family, kinship and community, illuminate the problematic presented by the specific conjuncture of the personal laws, religious identities and their meaning in the state, and the boundaries these set in discussing women's rights? The fact that historically in India gender relations have been the site on which group identities were forged, and, which in turn provided the ground for the articulation of state power presents the possible lines of enquiry that such an investigation might follow. 1. 7. Theory as a tool kit. If theory is to be used as a tool kit and not as a grab bag, says Mani, then we have to pay attention to the rigorous politics of translation (in its widest sense), to make translation alert to specificities in order to avoid the pitfalls of conflation, erasure, and elision (Mani 1992 p393-408). Mani's observation arises from the present context of the production of knowledge. The understanding that power is implicated in the production of knowledge, that where we speak from determines the authority of what we say, that the claim that knowledge is universally applicable has made for the conflation, erasure and elision of difference, has become in academic circles something of a new orthodoxy in the post Orientalism and post-Said era of academic production. Mani is here referring to what has followed this understanding, to the inauguration of post structural, postmodern, postcolonial, transnational historiography and ethnography which, according to its claim, is hospitable to the politics of difference. However, the new academic moment thus inaugurated seems already to be in danger of falling into the same traps of homogenisation and hasty globalisation by conflating different orders of historical experience. It is in this context that Mani warns that if theory is to used as a tool kit rather than as a grab bag then we must attend to the way we translate theoretical concepts to address specificities. Thus it is not that theoretical concepts developed in one context are by definition unavailable for us elsewhere. The caution refers to the way we translate the concepts.

26

Taking a cue from Mani's discussion I shall attempt in this section to outline some of the theoretical concepts that I will use and I hope to do so by being alert to specificities of the context. Identity, as I have shown, is central to the discussion of the personal law in India. My research is about the construction of gender identity in the personal laws. Therefore, identity constitutes a central concept which I shall be addressing throughout this thesis. Identity has become a keyword in contemporary politics, claims Kobena Mercer, and like other keywords it bears not one unitary meaning but a range of competing definitions (Mercer 1992). Identity in the Enlightenment subject was based on a conception of the person as a fully centred, unified individual, endowed with the capacities of reason, consciousness and action. Every person was born with an inner core which was the essential self and this remained continuous throughout the individual's existence (Hall 1993). The sociological conception of identity was based on the understanding that the inner core was not autonomous and self-sufficient, but formed in relation to significant others who mediated to the subject the values, meanings and symbols - the culture- of the worlds that he/she inhabited. This conception left the inner core or essence intact except that it stressed the formation and modification of the subject in continuous dialogue with the cultural worlds outside and the identities that they offered. Identity thus stitched the self to the outer world providing stability both to the subject and the world they inhabited. The post modern subject, on the other hand, is seen as having no fixed, essential or permanent identity. Identities, it is claimed, are formed and transformed continuously in relation to the ways we are represented or addressed. The modern subject, as conceived by the Enlightenment project, has, as we know, been de centred by the ruptures created by advances in social theory. The five great moments that Hall, for example, identifies as causing the ruptures need brief mention (Hall 1993). By putting social relations rather than an abstract notion of Man at the centre of historical processes, Marx de-centred the notion of the unity of the subject. Freud's discovery of the unconscious and its implication that identities, sexualities and the

structure of desire are formed on the basis of the psychic and symbolic processes of

the

unconscious which function according to a logic very different from that of Reason

has played havoc with the concept of the knowing and rational subject. Lacan's extension of Freud's theories to show that identity arises, not from the fullness of identity inside us but from a lack of wholeness which is 'filled' from outside, by the ways we imagine ourselves to be seen by others, has further served to overturn the essential core of the unified subject. Linguistic theory, furthermore, has indicated the near impossibility of fixing identity by showing that the meanings of words are not 27

fixed in a one to one relation to objects or events in the world outside language. Meaning arises in the relations of similarity and difference which words have to other words within the language code. The analogy between language and identity lies in that what is T is established in difference to 'the other'. Derrida has argued that the individual speaker can never fix meaning including the meaning of his/her identity. Meaning is inherently unstable and while it aims for closure or identity it is constantly disrupted by difference. Foucault's genealogy of the modern subject sees the 'disciplinary power' of modern institutions as producing the subject. I have briefly alluded to these four moments of disrupture because ingredients of these paradigms constitute my conceptualisation of identity and the way subjects are formed. In the discussion up to now I have shown how the unified subject in law is fractured by multiple identities. I have also shown that far from being a 'given', identities are formed and transformed in relation to wider processes and to the articulations of power, and, that identity is established in difference and similarity. The fifth moment of disrupture, feminism, both as a social and political movement and as a theoretical critique, has contributed profoundly to our understanding of identity and subjecthood. By asserting that the personal is political it has challenged the basis of the inner/outer and private/public distinctions. Further, this challenge has opened up for contestation new areas of social life - family, sexuality, housework, division of labour. It has posed as a political question the issue of how we are formed and produced as gendered subjects. The conceptual and theoretical understanding developed in feminist research that our basic social identities as men and women are socially constructed rather than based on fixed biological characteristics forms the core conceptual basis of my research. Gender refers to a whole set of expectations held as to the likely behaviour, characteristics, and aptitudes men and women will have. It refers to the social meanings given to being either a man or a woman in a given society. (Young 1988). This body of theory further asserts that the organization of sexual difference is central to the social world. Every individual's relation to the world is filtered through gendered subjectivity. Gendering is not a simple nor a unitary process but rather a highly complex set of processes Gender identity is organized through a complex system of social relations, structured by the institutions not only of family and kinship but at every level of the legal, political, economic and social formation. Neither these identities nor institutional practices are fixed or immutable. "Masculinity" and "femininity" are constructs specific to historical time and space. 'They are categories continually being forged, reworked and reaffirmed in social institutions and practices as well as a range of ideologies'(Davidoff & Hall 1987 p.29). Feminists have also

28

shown how gender identity structures and etches the contours of other social identities, as for example, class (Davidoff & Hall 1987; Sangari & Vaid 1989; Bannerjee 1989). One of the basic premises of feminism is that the relation between men and women is essentially a power relation in which, in the majority of societies known to us, women have less power than men. As such the statement that women have less power than men means that, in general, men have the ability to shape women's lives and to oblige women to adapt their lives so as to accommodate men's personal projects and that, in general, women lack this ability or power (Young 1988). This does not mean, however, that women are victims and that no woman is ever able to carry through social and political projects. Power in male and female relations is usually discussed in terms of the concept of patriarchy conceived of as the coercive power of men to command women's bodies, labour and the fruits of their labour (Young 1988). A principal ambiguity arising from the use of the concept of patriarchy to explain the differential power of men and women is whether this power inheres in individual men or in the social structure itself. The explanatory framework which I will use for my research refers to the structural power of men. Thus by asking where men derive their power rather than assuming that it is an inherent characteristic, the research focus will be directed to the wider social and political realms where this power is produced and the institutional mechanisms through which it is reproduced. Men and women have multiple identities - ethnic, racial, national and class constructed by history and culture and which only make sense within it. Thus, there is no essential category 'woman' given the differences in the experience of women of different classes, races, castes and communities. I have attempted to conceptualise identity in the above discussion and particularly gender identity from the literature available to us. I would like to contextualise the notion of identity to India by introducing the reader to the manifold uses of the term 'jati'. This word, as will be seen, has been used in the title of the thesis and also in the Preface and even in these two places it has been used to denote belongingness to different collectivities. My respondent, whom I quote in the title, uses the word 'jati' to denote the collectivity of men as separate from women. I use 'jati' in the Preface to refer to the collectivity of the nation. The fluidity of the term ati' indicates the fluid concept of identity. Jati, as Chatterjee points out, can be used to mean origin (e.g.Mussalman by birth); classes of living species (e.g. human jati, animal jati); varna (e.g. caste as in Brahmin); lineage and clan; and, human collectivities (e.g. English, Bengali, nations etc) among other uses of the term (Chatterjee 1994). I will not even begin to explain the use of the term in technical fields such as logic, grammar, music, 29

rhetoric. I want to point to the fact that the common usage of the term signifies that one could, without contradiction, belong to several jatis, not simultaneously but contextually, invoking in each context a collectivity in which membership was not a matter of self interested choice or contractual agreement but an immediate inclusion by virtue of birth (Chatterjee 1994 p.222). As I have shown this far, the concept of identity underwent momentous changes in the colonial period and in postcolonial India and this struggle to reshape identity is best illustrated by the struggle to fix the meaning of the term jati. As Chattedee points out 'It is a political discourse of the 'modern' kind which insists that these collectivities (denoted by the use of the word jati) have a fixed, determinate, form, and, if there are several to which an individual can belong, that there be a priority among them, so that it becomes imperative to ask: "Are you a Muslim first or a Bengali first?"

'(Chatterjee 1994 p.222-23).

Chatterjee cites the work of Sudipta Kaviraj who has recently argued that a fundamental change effected in the discursive domain of modern politics in the colonial period was the impoverishment of the earlier 'fuzzy' notions of the community and the insistence upon the identification of community in the enumerable sense. In the second half of the nineteenth century the colonial state, as it fashioned the conceptual instruments of its control over an alien people, enumerated the diverse communities that, in the colonial imagination, constituted the society over which it was to rule. As Cohn has shown religion and caste became the sociological keys to numerically describe Indian society (Cohn 1987). In turn this shaped the subsequent forms of mobilisation by the indigenous people seeking representation in the state domain by religion and caste. The constitutional reforms of the late colonial period were informed by this notion of identity as singular, impermeable and bounded, and by the understanding that India was composed of innumerable, parochial communities which only the rationality of the colonial state could order, systematise and, therefore, control. The matter did not end with the demise of colonialism. In independent India political discourse still clings tenaciously to the idea of representation by enumerable communities and finds expression in the discussion of Indian elections where support for a particular party is explained and analysed in terms of the complex political arithmetic of caste and communal alliances. And yet the local and common use of the term sjati' in its fuzzy sense signifying the fuzziness of our identities continues to hold sway refusing to be institutionalised. How do we investigate a concept like identity which is formed and transformed in relation to representation, to similarity and difference? How do we investigate the meaning with which identities are invested? Presumably from the way these are spoken about. In this context the concept of discourse is very helpful. Discourse is characterised by Thompson as extended sequences of actually occurring instances of 30

expression which are indicative of the relation between linguistic and non-linguistic activity (Thompson 1984). Stuart Hall elaborates that a discourse is a group of statements that provides a way of talking about, or representing, a particular kind of knowledge about a topic. Further when statements about a topic are made within a particular discourse, the discourse makes it possible to build the topic in a particular way. It also circumscribes other ways in which the topic can be constructed. A discourse consists, not of one, but several statements working together to form a discursive formation. 'The statements fit together because any one statement implies a relation to all others'(Hall 1992 p.291). The concept of discourse does not split arenas into thought and action, language and practice. Discourse is about the production of knowledge through language. But it is itself produced by practice, a discursive practice, which refers to the act of producing meaning. Hall draws on Foucault's thesis on discourse in his explanation. He points out that the salient points to remember when trying to make sense of what discourse is in Foucault's terms are as follows. First, a discourse can be produced by many individuals in different institutional settings. Its integrity or coherence does not come from the fact that it comes from one place or one speaker or subject. Rather a discourse constructs positions from which one can speak and make sense of what is being said or saying. 'Anyone deploying a discourse must position themselves as if they were the subject of that discourse' (Hall 1992 p.292). Second, discourses are not closed systems. A discourse draws on and feeds into other discourses altering or translating its meaning. Third, the statements in a discursive formation need not all be the same. However, the relationship and differences should be signalled in a regular and systematic fashion and not randomly. What then is the difference between 'ideology' and 'discourse'? Hall contends that what sociologists mean when they are talking about ideology is very similar to discourse, that is, 'a set of statements or beliefs which produce knowledge that serves the interests of a particular group or class' (Hall 1992 p.292). The reason for using 'discourse' rather than 'ideology' has to do with the conceptual baggage that the latter carries. Discussion about ideology in theory have dichotomised the realms of false and true, of ideas and material practice. In other words it makes us choose between statements which are based on 'facts' and, therefore, true, or ideological and thus false. In the real world, however, it is very difficult to draw this distinction between truth and falsehood. This is because 'facts' can be construed in different ways and the language used to describe facts can interfere in the process of deciding what is true. Moreover, certain descriptions which may appear to us as false, can be made true because people act on them believing that they are true, and so their actions have real consequences. The

31

language used when describing a situation has real consequences. Discourse has material effects. What decides that the knowledge about a certain situation, certain peoples' will be accepted as the 'truth', 'true' enough to act upon? Foucault's answer is that it is power which is the main motor in generating this acceptance. The production of knowledge about a particular situation and peoples is dependent on competing discourses about it and each is linked to a contestation of power. 'It is the outcome of this struggle which will determine the "truth" of the situation' (Hall 1992 p.293). Thus while Foucault's use of 'discourse' side steps the problem that the concept of ideology faces, namely, which social discourses are true or scientific and which false and ideological, it accords centrality to the concept of power. Power is thus critically implicated in the production of knowledge. How do we conceptualise power? Power has been conceptualised differently by different commentators. Russell, for example, claimed that power could be defined as the production of intended effects (Russell in Lukes

1986).

In fact this idea of power,

that it has intended effects and lies in securing the outcome intended, has dominated thinking about power. However, this notion of power invalidates situations where outcomes cannot be secured but there is resistance and contestation nevertheless. Weber although agreeing with the notion of intention in the exercise of power nevertheless stresses the capacity to realize it and in so doing suggests that resistance, actual or potential, is relevant to attributions of power (Weber in Lukes

1986).

Weber's

approach has, however, been criticised for stressing the 'power over' factor in conceptualising power. Of relevance to my present discussion would be a notion of power which captures its ubiquity but nevertheless does not deny agency by making individuals into mere victims. Following on from this it also rejects notions of power wherein groups and individuals are always and in every situation under the power of other individuals and groups. In this sense Foucault's notion of power comes in useful for my analysis. Foucault rejects a notion of power seen '...as a phenomenon of one individual's consolidated and homogeneous domination over others, or that of one group or class over others'. Rather, 'Power must be analysed as something which circulates or rather something which functions in the form of a chain'(Foucault in Lukes

1986

p.233). This provides the clue

to the fact that the locus of power does change. Individuals, in Foucault's framework, are 'not only its (power's) inert or consenting targets; they are always also the elements of its articulation. In other words, individuals are the vehicles of power, not its points of application' (Foucault in Lukes 1986 p.233). This signifies two things. First, that subjects are gradually, materially and progressively constituted by a multiplicity of 32

power relations. Second, that agency is involved and, therefore, resistance and recalcitrance is as much an attribution of power. Since all relationships are shot through with power does this then mean that power has no specific location through which its operations can be scrutinised? On the contrary Foucault's contention is that, 'one should try to locate power at the extreme points of its exercise'. This is because power 'is never localised here or there, never in anybody's hands, never appropriated as a commodity or piece of wealth' (Quoted in Lukes 1986 p.13). Studying power means looking at the point at which its intention, if it has one, is completely invested in its real and effective practices. My main research concern is to investigate the construction of gender identity in the personal laws in India. In other words it also investigates the relationship of the state to women. The personal laws are statute laws and their maintenance signifies state involvement in the structuring of gender identity and also community identity. Thus the state is an important area of theoretical concern. Scholarship on the state has mostly been about the nature of the state and the relation of the state to society. This latter discussion has focussed primarily on the degree of state autonomy or the degree to which states may act independently of the interests of specific groups. For the purposes of my research I will use only those theoretical premises on the nature of the state which have direct bearing on the subject of my research. Since all states have complex institutional structures and specific political and economic histories, it would be incorrect to generalise on the nature of states. However, the concept of the 'modern' state encompasses certain common features. The term modern refers to features rather than to any chronological timescale. The presence of a supreme authority ruling over a defined territory represents a salient feature of states. The primary element, therefore, is the notion of the 'powers' of the state - its right to command obedience from its citizens. Although the state has many other functions, fundamentally it is about rule. The powers of the state, then, include the power to employ force to oblige conformity to its rules, laws and regulation. Force is by no means the only way in which states govern. However, according to Weber's famous observation, the state clPims the monopoly of the legitimate use of force within a given territory. The key concern, thus, is the question of legitimacy. The issue of legitimacy covers the whole spectrum of what might be called sanctioned domination - of which physical force is only an extreme case. The legitimacy of the state's powers arises in a number of different ways. One of the chief ways is through the process of embodiment of the state's powers in law - formally stated and claimed, enacted by the formally correct public procedure. This establishes the notion of the state as a separate, public 33

authority as opposed to an arbitrary, capricious one. Further, the notion of public authority is materialised in the institutional apparatuses of the state. Thus the legal institutions, the bureaucratic institutions, the coercive institutions are materialized public authority. Each has real, concrete, social organizational forms with real tasks, using and disposing of real resources. State apparatuses acquire distinctive political and policy characteristics of their own with distinct interests with 'relatively autonomous' effectivity in terms of how the state works. (Hall 1984). The notion of the state as a separate, public authority brings into question the relationship that the state bears to society. This relationship has been historically conceptualised in European thought as that between the public and the private domains. The state is associated with public affairs and society is linked with the private. The private is, by definition, everything outside the purview of the state. The two areas which have been linked to the concept of the private in western thought are the family and the economy and free market transactions. The family, the seat of personal, familial, emotional and sexual relations, has long been deemed to be a 'domestic' matter in which the state should not interfere. The family, with the centre of authority vested in the male head of the household, provided the model for the state in liberal paradigms. This distinction, namely that the domestic is a haven and a retreat from the public world, acquires a gendered character. The public world of employment, business, politics and power is the world of men whereas the domestic haven is where women reside and where feminine virtues prevail. The private/public distinction is therefore rooted in a particular division of labour. The maintenance by the state of the public/private separation is taken to exemplify the patriarchal aspects of the state. The economy, too, was considered to be beyond the purview of the state and the supposition was that economic transactions could be regulated through voluntary contract between private individuals alone (and this premise is increasingly gaining legitimacy in the present era of neo-liberal economics). The paradigm of the private and the public has been critiqued on a number of counts. Marx showed that the distinction is illusory when considering the role of the state in a class society. The key source of contemporary power is private ownership of the means of production. By defending this the state takes sides. The state, then, is not a reified formation outside of society but deeply embedded in its socio-economic relations and particular interests. (Held 1985). In considering the sphere of the family, feminist research has shown that the 'family', in the conventional sense of a private, selfsupporting unit, was to a large extent created, or at least reconstituted, by the modern state. (McIntosh 1978;1979; Zaretsky 1982). Thus far from not interfering in the family, the state has been active in promoting a particular form of sfamilyThousehold structure: the male wage earner, with dependent wife and children. The implication for women is, therefore, a different kind of citizenship status from that of men with differential rights and access to resources. 34

Feminist scholarship has centrally concerned itself with challenging and dismantling the ideological boundaries between the public and the private. Feminist researchers investigating the gender division of labour in the wider economy have pointed out the linkage between gender relations in the family/household, the construction of disadvantage for women, and, the unequal access that women have to the labour market (Pearson, Whitehead, Young 1984). Standing points out in her work on women's employment and the family in Calcutta that labour markets in India are pronounced examples of a more general phenomenon in which low wages, lack of access to skills and promotion and concentration in certain kinds of work or in certain labour processes characterize the average woman worker's situation and render women, as a category, more disadvantaged than men. Despite class differences in women's access to the labour market certain commonalities are discernible which cut across classes to produce disadvantage for women in general. In short women do not command the same resources and status in the labour market as men. Standing further points to the fact that feminist researchers investigating women's disadvantage in the labour market have pointed to the fact that the terms on which women compete for employment are set by the wider social relations into which they are structured. The terms may be dictated by an economic agenda, a cultural agenda, and political considerations. Attribution of gender roles constrain women from competing on the same terms as men in the labour market. These attributions often rest upon assumptions both about women's primary commitments to families and about the presence of relationships with male providers. Women and men are thus seen as different and unequal kinds of labour (Standing 1991). I began the discussion of the theoretical concerns with Mani's warning about the need to be rigorous to the process of translating theoretical concepts because otherwise the specificities of a situation are lost in conflation, erasure and elision. I must bring this to bear on my discussion of the state in India. Scholarship on the state, as I have mentioned, has concentrated on the state-society relationship. As a general principle this is acceptable. However, the state and society here referred to emerged in the west under conditions quite different from that of the emergence of the nation-state in India and the society that it sought to govern. Hall has pointed out that states and societies in the west emerged in a context marked by the birth of a new intellectual and cognitive world, which gradually emerged with the Reformation, the Renaissance, the scientific revolution of the seventeenth century and the Enlightenment of the eighteenth century. 'This shift in Europe's intellectual and moral universe was dramatic, and as constitutive for the formation of modern societies as early capitalism or the rise of the nation-state' (Hall 1993). The ideological history of nation-state formation in the west was embedded in the notion of the 'modern' which made the 'social' a separate and distinct 35

form of reality, open to analysis in entirely 'this-wordly' material terms leading to the Enlightenment critique of traditional authority. This opened up the leading ideas of the Enlightenment project - of progress, science, reason and nature which would lead to an unending era of progress, the abolition of prejudice and superstition and mastery over the forces of nature based on the expansion of human knowledge. Modern societies were thus those which espoused secular forms of political power and authority and had monetarized exchange economies based on large-scale production and consumption of commodities for the market. In these societies the traditional social order and ascribed identities had declined and given place to new dynamic social and sexual divisions of labour, and heralded the rise of secular and materialist culture to replace the religious world view of traditional societies. The ideological history of nation-state formation in India follows a different trajectory as do most nations emerging from colonialism. In investigating why and how I find Chatterjee's framework for studying the ideological history of the Indian state very helpful. Nationalist thought in the non-western countries which emerged from colonialism present what seems to be an insoluble dilemma. It both opposes the dominating implications of post-Enlightenment thought and yet at another level seems to accept it. For analytical purposes Chattedee separates out the claims of this social ideology to look at, on the one hand, that part of it which identifies historical possibilities and the practical and programmatic forms of its realization, and on the other, the justificatory structures in support of this claim. The former part of this social ideology he labels the problematic and the latter the thematic. He shows that there were contradictory pulls on nationalist ideology. On the one hand the framing of the 'problematic' posited a sovereign subject defining himself, and on the other, the justificatory structures or thematic seemingly relied on the representational structures of the post-Enlightenment era. The resolution nationalist ideology offered was the reworking of the notion of 'modern' by being very selective about what it took from western, rational thought. The resolution was built around a separation of the domain of culture into two spheres - the material and the spiritual. The material culture represented the west. Its superior grasp of the material world, as evidenced by its science, technology, statecraft and rational forms of economic organisation, is what gave it the power to subjugate the non-European peoples and dominate the world. In order to overcome this subjugation the colonized people must learn these superior techniques of organising material life. This was the part of the 'modern' that the nonEuropean peoples must emulate. But this did not entail the imitation of every aspect of western culture because then the distinction between the West and the East would disappear. In fact it was unnecessary because the East had something that the West did not possess and which was superior, its spiritual domain. The task, therefore, was to

36

appropriate those aspects of western, material culture which made them successful while retaining the essence of the spiritual core of the national culture. By relating a political theory of nation-state formation with the ideological history of that state Chatterjee arrives at a framework for looking at state-society relations in India. The political theory he adopts is Gramsci's concept of 'passive revolution'. Of interest to us is what Chatterjee extracts from Gramsci's thesis, which was developed in the context of relatively advanced capitalist countries, and the way he builds this into an argument about the historical character of capitalist nation-states which have emerged from successful anti-colonial movements in countries of the non-European world. The aspiring bourgeois in a colonial country faces two kinds of problems. On the one hand is its underdevelopment characterised by a low level of development of the productive forces at home and, on the other hand, the economic and political dominance of advanced capitalism internationally. This problem is aggravated by the presence in these countries of a large, backward agrarian economy. In order to allow for a relatively independent capitalist development to take place, the nationalist bourgeois must fight the colonial power but also those forces at home which impede structural transformation of the economy. It must also give this struggle the stamp of a 'national struggle' in which the overwhelming part of the popular elements in the nation - especially the peasants - are involved. It cannot achieve this by engaging in a frontal assault on the colonial power (characterised by Gramsci as a 'war of movement'). It must resort to a 'war of position' (a kind of political trench warfare waged on a number of different fronts). It must bring under the sway of a nationalist ideology and political programme the overwhelming majority of the masses. 'It is here that the politicoideological problem would get intertwined with a more fundamental cultural problem. The structural 'underdevelopment' of the agrarian economy would be associated with the cultural 'backwardness' of the peasantry - its localism, immobility, resistance to change, subjection to a variety of pre-capitalist forms of domination, etc' (Chatterjee 198, pg.48). The question thus arises as to whether the 'modernisation' of cultural institutions precedes the phase of capitalist development and nation-state formation, or, whether the replacement of the colonial state by a national one sets the pre-condition for capitalist development and 'modernisation'. Chatterjee argues that the second path is the characteristic form of 'passive revolution' followed in colonial countries. The nation-state that is formed out of this process makes the reorganization of the political order its main project. This project is moderated in two important ways. On the one hand, it does not make a clean break with the institutional structures of 'rational' authority set up in the period of colonial rule. On the other hand, it does not 37

conduct a frontal assault on the pre-capitalist dominant classes but seeks to limit their power. The impetus for capitalist development does not come from its hold over civil society but rather from the control over the new state apparatus. This can only be achieved by means of an interventionist state, entering the domain of production and mobilising and managing investible resources. The state thus becomes the main agent of social reform, and its transformative role is moderated to reformist and 'molecular' changes (not requiring a fundamental restructuring of social relations). The reorganisation of the political order which would bring development and 'modernisation', and which became the main project of the new nation-state, had to be realised by servicing both relationships - with the dominant classes, and as well, the subordinate classes and by keeping up the alliance. Thus we get a state which has to maintain a balancing act between the dominant classes and the subordinate and has to service both these relationships in order to keep up the alliance to legitimise its sovereignty. So, on the one hand, we get a state as in India which promises to be the guarantor of rights for all its citizens necessitating reforms to improve the position of women, that of the outcastes, and of economically marginalised groups. We get a constitution which declares the state as secular while preserving a system of personal laws predicated on religious differences. We get the Hindu Succession Act whereby the reform of women's position is encapsulated in discourses of 'equality' for women in their families at the same time as it maintains clauses which restore patriarchal authority over women. We get a land reforms legislation that gets rid of 'zamindari' (large landlords authorised to collect revenue from subject peasants) but cannot ensure land redistribution in favour of the poor. On the other hand we get a state which, by its active role in securing the foundations for capital expansion, has also played a major role in consolidating (and often creating from scratch) the capitalist classes. The autonomy of this over-developed postcolonial state is seen to lie in its mediating role between distinct ruling classes e.g. the industrial bourgeoisie and the agrarian bourgeoisie (Vanaik 1990; Alavi 1989). Research on the Indian state, its power and its autonomy, has been dominated by political economists. The reasons often cited by them to support the view that India has a powerful state and a resilient indigenous bourgeoisie autonomous from foreign capital are as follows. Researchers point to the fact that foreign investment as a total of investment in India's economy is negligible. Long-term debt servicing as a percentage of GNP has risen only marginally. India accounts for ninety per cent of its own fixed investment and foreign banks account for only 9% of total deposits (Vanaik 1990 p.13). The Indian economy has shown a consistent rate of growth even though India's share of world exports has progressively declined which is a significant indicator of the insulated nature of the Indian economy. The main area of India's dependence is in the 38

realm of high technology. The present attempts at economic liberalisation, which will entail infusion of foreign capital and technology, are motivated more to developing the capacities of the indigenous bourgeoisie to compete in the domestic market than as a means to encourage entry of finished goods from abroad or to launch Indian goods into the world market. The strength and autonomy of the state in India is evidenced from the above data. This strength and autonomy relates to the Indian state's relationship to imperial powers and to external forms of control (e.g. foreign capital). But what of its relationship to the dominant classes within India? Kohli has defined state autonomy as a relationship - the state's relationship to society - which is most clearly comprehended by focusing on the state's capacity to restructure social relations and mobilise societal resources (Kohli 1987). Skocpol has argued that the state has to be seen in 'organisational' and 'realist' terms, as actual organisations with certain interests distinct from those of the dominant classes, controlling real peoples and territories. Viewed in this light it is evident that the relationship of the state to society in India has shifted and changed perceptibly since the early decades after independence. Bardhan shows that in the early decades after independence the personnel of the state elite enjoyed an independent authority and prestige that made them both the main actors in and principal directors of the unfolding socio-economic drama of Indian development although class constraints did exist. Over time, however, as the proprietary classes were strengthened by the state's interventionist role, the state's function has become more regulatory and less developmental (Bardhan 1984). Tharu points out that the promises of secularism and democracy promised at the advent of independence bore a double mark. The promises of economic independence were made primarily to the Indian bourgeoisie and actualised by the state's protection of markets and support for indigenous industry. Thus this double mark could be interpreted to mean that the state would endorse only those political and cultural changes that supported the growth of a self-confident, energetic commercial class. Or it could be interpreted as a commitment to egalitarian ideals of socialism and, therefore, to the people as a whole. 'The resultant tension characterizes the Indian state that, • despite its obvious obligations to powerful business and landed interests, has maintained (at least at the level of legislation and government policy) a commitment to social justice and equality' (Tharu & Lalita 1993; p. 45). However, this double act could not hold. The late sixties were characterised by widespread rebellion and disaffection as underprivileged groups who bore the brunt of the failure of the mixed economy and a socialist pattern of society took to the streets. The state responded by imposing a state of internal emergency in 1975.

39

Political economists seem agreed that it was at this point (in the mid and late seventies) that a discernible change in the state's relation to society took place. This change was characterised by the weakening of state mediation and control of the economy. This is often interpreted as signifying the coming of age of Indian capital, of a confident commercial class which could manage on its own terms and did not require the protectionist role of the state. The economic policies of the state in the eighties were premised on this understanding. Left-of-centre theorists acknowledge the relative vigour and independence of Indian commerce and industry while pointing to the fact that state policies backtracked on the anti-imperialist and anti-feudal commitments made at the time of independence. Also this was accompanied by a phenomenal rise in caste and communal conflict as also in incidents of violence against women. My reading of these changes suggests that the state abandoned its leading and central role in restructuring social relations in favour of the poor, the marginalised and the dispossessed. In this sense the state became more closely aligned to the interests of the ruling coalition comprising the industrial and agrarian bourgeoisie and the ascendant urban middle class although it did manage to maintain relative autonomy from the conflicting interests of the constituent elements of this coalition. The above discussion regarding the nature of the state, based as it is on the premises set out by political economists, provides some insights for the purposes of this discussion. The centrality of the state in India has to be acknowledged. This centrality implies the state's ability to restructure social relations as also its capacity to intervene in more and more areas of social life. Political economists' views cited above point to the way in which the state has, since independence, restructured the social relations of production and, therefore, class. That this has increasingly favoured a dominant section of the population has implications for the way in which the alliance between the dominant and subaltern classes will be held in place averting thereby a crisis of legitimacy for the state. Ignoring for the moment the heterogeneity of women in India predicated on differences of caste, class, community and region, one must ask what do women as a group have to do with the nature of the state? There are two dimensions to this relationship. First, the nature of the state, and of the state-society relations obtaining in India posits women as a category, a category of cit:zenship. This is evidenced by the fact that women as a group have, since independence, been targets of social legislation as part of the state's agenda to actualise the goals of social development, modernisation and progress. In this entity women as a category are also seen as a subaltern group, a group lacking power and privilege, a group that needs 'development'. The plethora of woman-centred legislations in the late seventies and eighties decade, the woman-focussed development initiatives of the state in the same period bear testimony to this status. This in turn has 40

impacted on the way women have related to the state. Feminist researchers have argued that the contemporary women's movement has addressed its demands primarily to the state typically in the form of seeking the recourse of its laws in instituting legal reform or enacting new laws on behalf of women. The relationship of women as a group to the nature of the state has another, more critical, dimension. The constitution of the female subject is imbricated in the processes of the cultural construction of the nation. As I have discussed earlier, there has been a shift in state-society relations characterised by political economists as the weakening of state controls over the economy. The resultant alignment of the state to the dominant classes has made it more difficult to maintain the alliance between them and the subaltern classes. This has implications for the way in which the nation will be kept together and subsumed under the 'political roof of the nation-state. A nation is not merely a political entity but something which produces meaning - a system of cultural representation (Hall 1992 p.292). To prevent a crisis of legitimacy for the state in the event of breakdown of such an alliance, the 'nation' has to be 'imagined' anew. As the 'nation' is imagined anew the identities of both 'state' and 'citizen' are redefined. Identities after all are not given but are formed and transformed within and in relation to representation. New forms of Indianness which act as a cement in the process of reworking this alliance are forged. That this reworking has entailed the naturalisation of a middle-class, upper caste, masculinist hegemony is acceded by most commentators (Tharu & Lalita 1993; Sunder Rajan 1993; Vanaik 1989). It is in the process of representation that the female subject emerges in response to these ideological imperatives. As Sunder Rajan puts it 'Our understanding of the problems of 'real' women cannot lie outside the 'imagined' constructs in and through which 'women' emerge as subjects' (Sunder Rajan 1993 p.10). Finally I come to a key theoretical concept in my research which I will use to investigate state-society relations. This is property relations. The investigation of the nature of property relations and its relationship to gender relations indicates a disbalance of power between men and women (Hirschon 1984; Whitehead 1984). And it is only possible to investigate this disbalance if property is conceived, as anthropologists have for long pointed out, as a social relation, a relation between people and people and not merely as a relation between people and things. The notion of equality being contested here arises 'from the separation of property out of social relations so that it becomes a characteristic inherent in the object which can be disembodied from the individuals who now stand in relation to it.'(Whitehead 1984 p. 179). This separation of persons from their social relations and social statuses posits them as legal equivalents. But as the anthropological literature points out, situations in which persons can be separated from their social relations and social statuses such as to 41

make them legal and conceptual equivalents do not occur and, therefore, the capacity to own things in the sense that this separation signifies also does not occur. The examination of 'woman' and 'property' illuminates above all the ascription of status by kinship and family structures which construct differential abilities of men and women to command access and control over resources. Legal and ideological practices articulate these differential abilities. Women, more than men, are less likely to be able to act as fully independent subjects in relation to objects because conjugal, familial and kinship systems appear often to construct women as a subordinate gender. Thus 'bound up in the concepts of property are concepts of the person, and that these concepts of the person in turn can be characterised by their degree of individuation within social relations' (Whitehead 1984 p.180). In illustrating this connection Whitehead cites the examples of the dowry system in India and women's property in contemporary Britain. Dowry property in India as discussed by Sharma illustrates clearly that although dowry is a characteristic form of female property, its control and management is not directly with the woman who is the bearer of this form of property by virtue of marriage (Sharma 1984). Her relationship to it is mediated by marriage relations and the structure and status of the marital family. In discussing women's property in contemporary Britain, Whitehead examines the critical kinship status concerned with the conjugal family and specifically the relationship of marriage. She shows that although the wife today has legally enforceable rights to share in property and the matrimonial home by virtue of marriage and not because she brought property into the marriage, this does not entail equality. The issue here is not necessarily what happens to the gender's relation to property at the dissolution of marriage but the rather the way in which the economic obligations of extant marriages are constructed. Legal treatments of husband/wife statuses construct the financial dependence of one partner on the other. The ideology and legal actuality of wifely dependence within marriage in capitalist society constructs women as less able to act as full subjects than men.

1. 8. Methodology Sandra Harding says that the reason why it is often difficult to point out what is so distinctive about feminist methods of social enquiry is because the issues of method, methodology and epistemology are constantly being intertwined in these discussions (Harding 1987). A method, as she points out, is a technique for gathering evidence and these techniques generally fall into three categories. First, the researcher listens to or interrogates informants; second, they observe behaviour; and third, they examine 42

relevant historical traces and records. There is very little scope for innovation here and it not in the realm of methods necessarily that the distinctiveness of feminist social enquiry is to be found. Most social anthropologists follow these methods and so have I. Methodology, as Harding explains, is a theory and analysis of how research should or should not proceed. It includes accounts of how 'the general structure of theory finds its application in particular scientific disciplines' (Harding 1987 p.3). Thus it is here that we find that feminist enquiry has something distinctive to say. And feminists have done this in a number of ways. They have asked why traditional theories have been applied in ways that make it difficult to understand women's participation in social life and they have in turn tried to apply traditional theories in ways that better explain women's experience. But these applications have raised more questions, and, these have to do with the unsatisfactory and often incomplete explanatory power of traditional theories when applied to questions of gender and women's experience. In other words questions are then raised about epistemology. Epistemology, or a theory of knowledge, answers questions as to who can be a knower, what tests beliefs must pass in order to be legitimised as knowledge, what kind of things can be known etc. Sociologists of knowledge characterise epistemologies as strategies for justifying beliefs. The problems of methodology, as far as I can see from this debate, are inextricably linked to the problems of epistemology. The reason why traditional theoretical resources are unable to meet the questions feminist researchers ask is apparently because the justificatory structures on which these theories depend, do not consider women or other marginalised groups to be knowers, are wary of accepting that their experience can be a legitimate form of knowledge, and cannot lend themselves to looking at how gender difference and ideologies structure and are structured by the wider set of social relations. It is apparent that these epistemological problems cannot be resolved by applying methodological frameworks that tack women on to traditional theoretical enquiry. Rather new ways of knowing have to be forged by using new empirical and theoretical resources. And it is in doing precisely this that feminist scholarship has broken new ground and it is here that the distinctiveness of feminist social enquiry lies. Feminist social enquiry is thus not just about adding women to what we research and how we research. It is about acknowledging that every aspect of reality is gendered. Put in this way, feminist enquiry '...is thus involved in questioning all that we think we know, in a sustained examination of analytical and epistemological apparatus, and in dismantling of the ideological presuppositions of so called gender-neutral methodologies' (Sangari & Vaid 1989). It is not a choice among competing

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perspectives just as it is not about adding women to what we research. Thus it is a choice available to anybody if they have the political will to exercise it. To be able to analyse epistemological apparatuses and question the veracity of genderneutral methodologies, feminist scholarship has forged new empirical and theoretical resources. This, for a researcher like me, who has arrived, as I have, quite late in the feminist academic moment, provides a heritage which I can build on. With this statement, if it was not obvious before, I locate my research within a tradition of feminist social enquiry. Harding points to the fact that one of the methodological leaps that feminist social enquiry has been able to make is by overturning the traditional philosophy of science position that the origin of scientific problems or hypotheses is irrelevant to the 'goodness' of the results of research. It is rather in the context of justification, this tradition asserts, that hypotheses are tested and that is where we should look for the 'logic of enquiry'. The feminist challenge to this position is that the questions that are asked in formulating a research (or not asked for that matter), are just as determinate of the adequacy of our total picture as are any answers that we can discover. In investigating the construction of gender identity in the personal laws in India the question that I ask is how is the identity of women as mother/daughter/widow and marker of community, which seem to belong to the domain of the private, to social relations of family, kinship and community, connected to her identity as citizen/subject at the level of the public, the politico-jural, the state? I also ask how this connection keeps in place or reformulates asymmetrical power relations between the genders. If I did not ask this question in this manner I could not investigate the complicity between the realms of the private (family, kinship) and the public (politico-jural, state) in maintaining gender asymmetry. I could still argue that the personal laws are bad and discriminatory, as much research on the personal law has done in India, but I would have to resort to a 'logic of enquiry' that posits the state as being neutral and progressive as regards women's rights and religious communities as being backward and parochial in insisting on the maintenance of religious personal laws, as also, women's subordination. I would also have had to offer blatantly communal explanations that Muslim personal law is backward and oppresses women and it is the parochialism of the Muslims that keeps in place their personal law while contrasting it with reformed and codified Hindu law which in principle accords equal status to women. Thus, it is not only ; n the context of justification that the 'goodness' of a research can be judged but more critical are the questions we ask. A related distinctive feature of feminist research is that it generates its problematics

from the perspective of women's experience. As I have mentioned in an earlier section, my research concern arises from the context of the difficulties faced in trying to protect women's rights to property, maintenance, freedom from violence, when their violation 44

happened to be in the family. The problematic I have posed arises from the experience that women have faced in trying to use the state laws. Beside the innovations in subject matter that feminist social enquiry has brought in, this scholarship has raised questions about the position of the researcher in the research process. In what ways do the race, class, gender, beliefs and values of the researcher shape the outcome? Should we be up front about it or should we subscribe to the false objectivism that traditional methods of enquiry impose by shutting out the researcher from the product? In a sense this is a rhetorical question because, as Edward Said points out, 'No one has ever devised a method for detaching the scholar from the circumstances of life, from the fact of his involvement (conscious or unconscious) with a class, a set of beliefs, a social position, or from the mere activity of being a member of a society' (Said 1978 p.10). Although a rhetorical question in some quarters, the issue of objectivity is fiercely upheld in most academic circles and, therefore, subjectivity needs reiterating and locating within the epistemological demands of feminist social enquiry. The preface was an attempt to locate my positionality. If I had not been born a few years after independence and brought up to believe that the nation-state was the harbinger of human liberation, had not spent my growing-up years in the midst of social and political upheavals that questioned this belief, had not had the good fortune to participate in the women's movement, which finally de-centred this belief, I am sure that the questions I would have asked would have been different and the ways of going about finding answers would also have been different. Up until 1983 I was still arguing that culture and tradition were 'givens' in women's lives and immutable at that. I was also arguing that although women had done so much for development in India, the state had been negligent of women and that the deterioration of women's status was due to this negligence. Implicit in all this was the understanding that the state was the ultimate guarantor of rights and the principal agent of reform (Mukhopadhyay 1984). The early eighties marked the hey-days of the women's movement when protests led to rapid state response in terms of legal changes and protection. Thus this belief was not unjustified at that stage. The Shah Bano controversy had not happened and there was no 'sati' at Deorala. A decade of experience in women's activism, however, changed the questions we wanted to ask. The preface thus presents the theoretical and political impulses that have helped shape the agenda of my research. A distinctive feature of feminist social enquiry, as I have pointed out earlier, lies in the new subject matter of inquiry. Gender relations as a social construction (little, if at all, constrained by biology) constitutes one such field of inquiry. My research investigates 45

gender construction in the state and it focuses on women's experience to illuminate this relationship. What follows is an attempt to provide a brief overview of the methodological issues involved in such an investigation. Methodology, as Harding explains, is a theory and analysis of how research should or should not proceed (Harding 1987). I have pointed out in the research concerns: - that the broad objective of my research was to find why it was so difficult in India to separate out a woman's identity as subject/citizen imbued with rights from that of her identity as female, as daughter, sister, wife, widow, and marker and symbol of community at the level of the public, the politico-jural, the state. - The specific objectives of the research was to find out first, whether there was a connection between the two? Second, what was the nature of this connection? Third, how did this/these connection/connections operate to secure asymmetrical power relations between the genders? - The issue in the personal laws through which to locate the connections was, the claims made by and rights conferred on, men and women to family property - marital and ancestral. - The realms in which to locate the connections were at the cutting edge of the law. The cutting edge of the law is both at the point of formulation and adjudication. - An investigation of the connections between the domain of the state and the domain of social relations at the level of the family, kinship and community, would illuminate the problematic presented by the specific conjuncture of the personal laws, religious identities and their meaning in the state, and the boundaries these set in discussing women's rights. How should such an investigation proceed? First, by privileging women's experience. The specific experience to look for in this investigation would be the experience that women have had in appealing to the law for rights to property and maintenance. Could they be found in a study which, in the traditions of anthropological field work, situates itself in 'small-scale' societies, in a bounded community? In studies of 'small scale' societies locality provides the primary field within which sociologically significant ties are formed and played out. In such contexts the empirical and theoretical universe is assumed to coincide ( Standing 1990 p.15). However, in the context of my research, the basic unit of investigation is persons with a particular set of characteristics: women who appealed to the law for rights to property and maintenance. Therefore, the empirical universe in terms of a bounded community does not coincide with the theoretical universe. The study of women who have appealed to the law cannot be carried out on a neighbourhood or any other bounded community basis.

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If women who appealed to the law for rights to property and maintenance were not to be found on a bounded community basis, how were they to be located and on what basis were they to be selected? I will deal with the second part of the question first, which is, the basis for selection. Women's entitlement to family property and maintenance arises in particular social relations. A deserted or divorced wife can appeal for maintenance or alimony; a sister or daughter can appeal against her brother or father for share in ancestral property; a widow can appeal for share in the property left by her husband. Each of these identities of women position her in different ways as regards property and the entitlements differ depending on what the personal law has to say about the rights of men and women to property in that particular social relation. Thus an investigation which privileges women's experience in appealing for maintenance and property rights, has to differentiate between women in particular social relations. Women are also differentiated by the fact that they belong to different religious communities and the personal laws are specific to and separate for Hindu, Muslim, Christian and Parsi. Thus the selection of women with experience in appealing for maintenance and property rights would have to differentiate on the basis of religious communities. Would this mean that women in particular social relations and belonging to the four main religious communities for which there are personal laws form the basis for selection? I chose women belonging to Hindu and Muslim communities only for two reasons. First, historically and contemporarily Hindu-Muslim identities and their relation to the state has been a particularly fraught one and best illustrates the problematic presented by the specific conjuncture of the personal laws, religious identities and their meaning in the state, and the boundaries these set in discussing women's rights. Second, in the area in India where I conducted the study, namely, the state of West Bengal and particularly Calcutta city, the two main communities are Hindu and Muslim. Thus I selected Hindu and Muslim women appealing to the state for rights of maintenance and property as wives, sisters/daughters, and widows. I had planned to select as my informants an equal number of Hindu and Muslim women in each social relation. But empirical reality compelled me to do otherwise which I will explain subsequently. How were these women to be located? The choice was between looking for them through the women's organisations who had assisted women to gain access to legal institutions,or, to find them through the labyrinth of official records. Unfortunately I chose the latter which made my task much more difficult. The reason for choosing the official channels to look for the informants was because I wanted to know how these 47

channels dealt with women appealing for maintenance and property. The official institutions where I was likely to obtain records of women appealing for maintenance and property were, first, the district court of Alipore in Calcutta city, the High Court in Calcutta and Committee for Legal Aid, Judicial department of the Government of West Bengal (also in Calcutta with branches in every district town). When I first approached the courts I was told that I would have to obtain special permission from the Registrar of courts to look at court documents. This permission could take up to two years to obtain. Further it would not permit me to look at on-going cases. Since I was experienced in dealing with Indian officialdom, it did not take me long to realise that the door to the records were shut if approached TPC (a slang abbreviation used by activists which means 'through proper channels'. It also means that when you want something done through the bureaucracy never approach it through the proper channels). And so informal networks of friendship, kinship and class had to be pressed into service to help me gain access to official records. I sampled the cases I studied from the records of the Committee for Legal Aid, Judicial department, Government of West Bengal and from the records maintained by the office of the 7th and 8th Sub Judge in Alipore Court. Maintenance and alimony suits brought by women appealing against husbands who had deserted them or divorced them were the most frequent cases available in the Legal Aid files. Women appealing for ancestral property were fewer in these files. The offices of the 7th & 8th Judge dealt primarily with Partition suits which meant that I was able to locate ancestral property suits through this office. I wrote to 50 women after having located them in these files, stating my purpose, and requesting interviews. I received positive replies from 40 women. (Six women arrived at my door step saying that they wanted to tell their stories). Five women refused interviews and five could not be traced. Only one woman withdrew after I had interviewed her. In her letter to me explaining her withdrawal she stated that the context in which she had to go to court (marital breakdown), and, her experiences with the law had been so traumatic that she did not want to be reminded of it by having to go through it with me. I was unable to locate an equal number of Hindu and Muslim widows appealing for property. Hindu widows were not difficult to locate but finding Muslim women who were fighting for rights to inherit their husband's property was very difficult. I do not think that the problem lies with the sources through which I sampled the cases since these did yield both Hindu and Muslim women appealing in different social relations. I am forced to conclude that Muslim women as widows are positioned differently from Hindu widows in relation to property. I have discussed this finding at some length in Chapter VII.

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I compiled thirty case studies of women appealing for maintenance and property of which 17 were Hindu women and 13 Muslim women. The largest number of cases were those of wives appealing for maintenance (8 Hindu and 8 Muslim). The case studies include information derived from interviews with the informant, her immediate family, her lawyers, details of the legal case including details of the proceedings and court documents (if these were available), attendance at court hearings. I also compiled four life histories. How does one locate the state empirically through such an investigation? Charlton et al. see the link between states and gender as existing at three levels (Charlton et al 1989). The first is that of the level of state elites who occupy the official positions of the state. At the second level is state action through policies which affect strategic and practical gender interests. And finally at a more complex level, and the most critical for women, the collectivity of norms, laws and ideologies, and patterns of action that shape the meaning of politics and the nature of political discourse. Taking my cue from this I interviewed state officials of the law at every level. These included four magistrates at the district court level, two High Court judges, the judicial officer in-charge of statesponsored legal aid, and the senior-most officials of the Department of Law in the central government. The other most obvious level to empirically locate the state was the laws with particular reference to their operation as evidenced in court procedures and documents. However, I found that the most critical location is in the continuity and equivalence of discourses, at the point of formulation and adjudication, at the levels of the legislature and judiciary, about men and women and their claims to family property and this as representing the authentic traditions of Hindu and Muslim communities. Thus when a magistrate in a district court pronounces in the case of a Hindu woman that she cannot claim partition of property on which there is a family dwelling house, it is not the voice of a conservative male who is an individual speaking. He speaks within a discourse of tradition which has been institutionalised as law and inscribed as normative in defining gender relations. I began working on this thesis in April 1990 with the preparation of a research proposal. The period of field work was from April 1991 to April 1992. The time between May 1992 and July 1994 was spent on analysing the data and writing-up. 1.9. Organisation of the thesis This thesis has three sections. The first section presents the historical ethnography. The historical period covered in this section is the troubled and turbulent period of the decades preceding Indian independence. Two major historical events dominate the historical scene in this period and take shape simultaneously. The first is the national movement for independence, and the second, the growth of Hindu-Muslim rivalry in 49

Indian politics. It is against this backdrop that the initiative to reform Muslim personal law and to codify Hindu law was undertaken by Indian legislators. The debates and formulation of the laws bears the imprint of the struggles for identity and power that the national movement and the Hindu-Muslim rivalry represented. The second section presents the contemporary ethnography. I examine the contests for family property that Hindu and Muslim wives, sisters/daughters, and widows wage in the courts, the outcome of these contests and the basis on which entitlements are fixed. It is through these contests that I dismantle the connection between the realms of the private (family, kinship) and the public (politico-jural, state) and their role in maintaining gender asymmetry. The third section lays out the relationship of women to the state. The two main discourses by which the relationship of women to the state is framed are, first, that women as a category of citizenship are implicated in the state's goal of modernisation, progress and development. I explore this by looking at the way women construct themselves as subjects and the discursive formations within which they do so. Second, the relationship of women to the state is imbricated in the processes of the cultural construction of the nation. I explore this process by examining the meaning of the Uniform Civil Code and what this signifies for the meaning of equality between men and women.

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SECTION I HISTORICAL ETHNOGRAPHY

I. i. What this Section is about I have shown in the previous chapter that Anglo-Hindu and Anglo-Muhammadan law in the late nineteenth century was mainly case law with some parts of these governed by codified custom. This situation began to change in the 1930s. From this period onwards Indian politicians took the initiative to reform the personal laws. These reforms were both for the Muslim personal law and the Hindu personal law. The processes and debates that went into the making of these legislations are significant for my work because these represent the point of formulation of the Muslim and Hindu personal laws which are presently applicable. Since the point of formulation is a realm wherein I will locate the state, by pin-pointing the discourses about men and women's rights to property that were institutionalised as laws, an analysis of the situation which gave rise to the debates and the debates themselves form the subject matter of the chapters in this section. Legislative reform of the personal laws coincided with the phenomenal changes in Indian politics occurring at the time. In fact the period of Indian history in which these legislations were debated and passed was a period of enormous political transition and turmoil. By the 1930s constitutional arrangements, which set up an electoral system and consequent representation of Indians in the legislatures, were in place. From 1919 onwards anti-imperialist movements against the British had gained ground both at an elite and popular level. Political activity expressed itself in both constitutional and agitational forms. The period between the First World War and immediate post-war years witnessed the emergence of a qualitatively new all-India mass nationalism. Initially led by the Congress under the leadership of Gandhi, the all-India nationalist movement was at no point a seamless web of homogeneous interests. Indian nationalism was composed of many strands of disparate political interests and ideological leanings which vied with each other for supremacy. In the ensuing battle new political identities were formed, others were dismantled, and some sharpened. In looking at the legislative debates on personal law reform, whether Muslim or Hindu, I find that the political situation obtaining at the time informed the debates and shaped the outcomes. A key theme of the debates was the status and position of women which the reforms sought to improve. A cursory review of the legislations from the point of view of the gains accruing to women, however, shows that the gains were limited. The 51

reforms fell seriously short of establishing parity between men and women. To understand why this was so, why these legislations were mooted in the first place, what the debates were about and who the principal actors and agents were and the positions they represented, the historical and political context becomes more than just a back drop to the debates. This context was a major determinant of the parameters within which the legislations were conceived, debated and fought about. From 1922 onwards Hindu-Muslim rivalry came to dominate Indian politics. The legislations under review were debated and enacted in an era when this rivalry grew and ended in a full-blown crisis when it was no longer possible to contain what had become two nations - Hindu and Muslim - under the political roof of one nation-state. In reviewing the legislations it becomes apparent that this political antagonism informed the debates as also the outcomes. Before discussing the legislations I will briefly allude to the social and political context in which these legislations took place. The main feature of this context that I wish to emphasize is the sharpening of identities, Hindu and Muslim, their growing boundedness, and the struggle to make these identities the basis for power in government and for government itself. I will begin with the making of cultural nationalism in the late nineteenth century which equipped the new Hindu and Muslim identities for power and relate how these identities were inscribed in the constitutional reforms brought in by the colonial state. The personal law reforms of the Muslims and Hindus occurred in the context of the struggle to establish the supremacy of one identity over the other in government under the colonial state, and, in defining the new nation and state that the independence movement promised to bring in. I limit the discussion of identities and their struggles for power to the arena of elite politics in the legislatures and government. By concentrating on the realm of elite politics in the legislatures and government I am better able to understand the terms on which this was set up, the political alignments which this gave rise to, and the terms of the debate on the personal laws.

I. ii. Cultural Nationalism as a discourse of power In the previous chapter I discussed the colonial construction of the personal laws. I indicated the discourses that went into the making of a generalised Hindu tradition and the ways in which women were a sign of that tradition. This tradition, as we have seen, was constantly identified with the feminine by its association with weakness or inferiority. The discursive strategies of colonial power made gender a central category through which this construction of tradition was given shape. The masculinity of

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Anglo-Saxon imperial culture thus stood juxtaposed to a Hindu tradition embodying peculiarly feminine qualities. In the second half of the nineteenth century a second wave of British orientalism and German romanticism combined to not only rediscover and reify the essential Hinduism of the scriptures but to also draw links between the culture of the Vedas with Aryan origin (Chakravarti 1989). The work of German Orientalist Friedrich Max Muller was vastly influential in constituting this link. His research in philology led him to establish linkages between the Aryans, who he believed spoke an Indo-European group of languages, and the writers of the Vedas whose language, Sanskrit, seemed the closest to this group of languages. From this he went on to make a distinction between two main races - the Aryans and the Semitic. The Aryans, who now inhabited Europe, were of course superior. He had, via the vedas, the construction of Aryans as a superior race, the common features of Sanskrit and the Indo-European group of languages, established a common heritage between the colonisers and the colonised. This second wave of orientalism thus served to transform the Hindu golden age into an Aryan golden age. In this mythical age the men were free, brave, noble, vigorous, civilised and civilising others. The women were learned, free and highly cultured. 'Additionally they represented the best examples of conjugal love, offering the supreme sacrifice of their lives as a demonstration of their feeling for their partners in the brief journey of life' (Chalcravarti 1989 p.46). This became an enduring legacy for womanhood in India. The common origin of the colonisers and the colonised, that Max Muller had popularised, gained currency amongst the indigenous intelligentsia. All Indians of the upper-strata could, by owning Aryan origin, construct for themselves a common tradition, a 'national' identity. The Aryan was an important ingredient in the construction of a sense of identity because of its association with vigour, conquest and concomitant political and cultural achievements. These qualities helped to counteract the image of the weak, passive and effeminate Indian (and particularly the Bengali). Since the loss of independence was associated with effeminateness, regeneration required the forging of a new identity. This was done by projecting heroes of an earlier era and valorising their actions to build an alternative Hindu male. Thus what we get is the emergence of a trans-regional Hindu identity forged through a mix of elements drawn from folk-lore and history asserting a Hindu-Aryan heritage. This image of valour and masculine vigour had been anticipated by the British in their construction of certain groups of people, namely, the Marathas, the Rajputs and Sikhs, as martial races to facilitate recruitment to the British Indian Army. The emerging nationalists adapted the notion of martial races using it for their own ends in outlining the heroic nature of resistance by Indians to foreign rule (primarily Muslim). This 53

creation of a tradition for the construction of a new Hindu identity which was vigorous, valorous and at the same time spiritual was selective in its reinterpretation of the past. The process of selection was also a process of exclusion. In defining the 'self' the 'other' had also to be defined. In Bengal the Aryan identity made for a straightforward division along class and caste lines. The upper-caste, upper-class Hindus were the Aryans and the lower caste, lower class the non-Aryans. Thus in one fell swoop the Muslims and the lower-castes had been excluded in this identity definition. The construction of the new Hindu male had a straightforward objective which was to rescue masculinity from its effeminate image. However, the construction of Hindu womanhood in this new tradition, and for the future, was complicated by the fact that the debates on their status and the minimum protection of their rights in the present continued unabated (casting aspersions on a tradition which treated its women badly). Thus the way out in this dilemma was to construct models of womanhood in the past. Women of the past were valorised in two different ways. First, for their spiritual potential and their role as shahadharmini (partners in religious duties). Second, as heroic resistors who braved death rather than be captured by aggressors. Various legends of Rajput women committing communal sati rather than surrender to the Muslim aggressor were staples in Bengali literature of this period. The Aryan Hindu became the central motif for the Hindu reform/revivalist movement, the Arya Samaj, centred in north India and the inspiration for the Hindu political parties of the twentieth century. Dayanand Saraswati, its founder, stressed the superiority of the Vedic religion above all others. The women's question occupied a central role in Dayanand's world view and his formulation was unique among the nineteenth century revivalists. Dayanand held the view that in the Vedic past women were free and participated in public life and it was Muslim influence which led to their incarceration in their homes. Motherhood for Dayanand was the sole rationale for women's existence because their role lay in the procreation of a special breed of men. What is unique about Dayanand's twist to women's role as mothers was in its treatment of women's sexuality. For Dayanand women's sexuality was of fundamental importance in order for them to procreate healthy progeny. The traditional hostility to women's sexuality was thus transformed in Dayanand's work and channelised to regenerating the Aryas. Women too were actively involved at many levels, especially in Bengal, in identifying with Aryan values and with other aspects of cultural nationalism. In the period of the Swadeshi movement (1905-8) in Bengal, women were militant participants and formulated through this a female identity which was associated with bravery, boldness, physical fitness which would serve a political purpose. Chakravarti points out that the 54

mother-centred rhetoric of Hindu nationalism had, by its use of women as political symbols of national awakening, created a political space for women to enter politics and this was most evident in the Swadeshi movement. However, this served to pose the women's issue in a way as to render it meaningless except in the service of the larger cause of nationalism (Chakravarti 1989 p.64-65). The culmination of cultural nationalism in political nationalism was epitomised by the furore generated by the Age of Consent Bill in 1891. The Bill sought to raise the age of marriage of girls from 10 years (a ruling that already existed in the statute books) to 12 years. In Bengal and Maharastra the polarisation between supporters and opponents were not about the rightness of the bill but whether a foreign government had the right to legislate for a people demanding the right to govern themselves. Tilak, for example, argued that the bill was a religious one and in so doing set off all the danger signals that rallied Hindu nationalists. The women's question became a casualty in this era caught as it was in this cross-fire between the emerging nationalists and the colonial government. Similar trends were discernible in the construction of Muslim political identity in the late nineteenth and early twentieth century. The colonial belittling of Indian tradition, both Hindu and Muslim, focused on the way these treated women. Thus for Muslim reformers and revivalists the ground on which tradition had to be reinterpreted was women. The two main Muslim reform movements in the 19th century, Deoband and Aligarh, represented different traditions and had differing relationships with the British. The views of the Deoband group were orthodox, opposed in a muted way to British rule and it attracted relatively poor students who could not afford a western education. The Aligarh school under the leadership of its founder Sir Sayyid Ahmed , on the other hand, tried to convert upper-class Muslims of western UP to the benefits of English education through the establishment of a scientific society, the publication of a Urdu journal and the establishment of the Anglo-Muhammdan college (in 1875). Sir Sayyid always stressed the need to import western education to upper-class Muslims to foster in them a sense of corporate unity. What both these traditions stressed, however, was the idea of a cultural community in which the knowledge of the Koran and hadith was central. As Minault points out in looking at the movement for women's education among Indian Muslims in the late nineteenth and early twentieth centuries, that these occurred in the context of the emergence of a Muslim middle-class out of literate elites that traditionally served government. The term 'ashraf in this context changed meaning from its original 55

connotation of 'noble' to 'respectable'. The maintenance of this status was contingent upon the nurturance of literary and religious culture and governmental association while at the same time coming to terms with the changing institutions of government under the British. Gender relations was a central category in the new redefinition of identity. Men sought to impose external standards of high culture based on scriptural standards of religious observance and also Victorian standards of companionate domesticity on the domestic and religious lives of women. The aggressive cultural nationalism of the Hindu/Aryan, which had sought to redefine masculinity and femininity to gear it to the exercise of power, also excluded from its ambit the Muslims who, in a reinterpretation of history, were imaged as foreign aggressors. Muslim rule, it was argued, had depressed Hindu women's status. In this era of identity definitions, reinterpretations of history were both in relation to the British and as well to other 'communities'. Thus Muslim identity definition relied for renewal on scriptural sources that excluded other religious traditions and historic syncrestic accommodations (Minault 1993). It is remarkable how often in the treatises on women's education that Minault cites, the assertion of the superiority of Islam in giving women rights in inheritance, marriage and in the family; as individuals, whose relationship with god was unmediated by a priestly class, are upheld. Against this tradition is contrasted the prevalent corrupt and derogatory practices in custom. (We will meet this assertion of the superior tradition of Islam as against custom again in Chapter II in the context of Muslim Personal Law reform). Sarkar points out that from the 1870s onwards a discernible shift, inconsistent and incomplete, occurred within the whole universe of discourse and action of the intelligentsia, towards various forms of nationalism (Sarkar 1989). Muslim and Hindu identity definitions were occurring in the contexts of real shifts of power threatening to dislodge a traditional elite. As for example, in UP, the Muslim landlords who provided the social basis for Sayyid Ahmed's movement, were increasingly threatened by Hindu trader, moneylender and professional groups buying up land, capturing municipalities and obtaining jobs at its expense (Sarkar 1989 p.77). The Arya Samaj revivalism was, on the other hand, gaining ground in the Punjab in the context of a Muslim challenge to earlier Hindu domination in business and the professions.

I. iii. Electoral representation and the development of political identities. The identity formations described above were taking place in the late nineteenth and early twentieth century. I have noted the separate traditions that each set as the boundaries to define themselves and others.

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Constitutional reforms and the subsequent setting up of the electoral representation system from 1909 onwards resulted in a different kind of politicisation than that signified by the rise of cultural nationalism. The political identities that were being formed in the process of the revivalist movements now found expression in the struggles for power in government and also in the emerging nationalist movement. Three main strands crystallised in the subsequent decades of the 1920 & '30s. The Indian National Congress represents a major strand and indeed initially all the other strands articulated their politics within this broad-based formation. By the late 1920s, however, the politicians owing allegiance to a Hindu nation separated out as did those Muslims who sought to make their identity the source of political power. The Hindu Mahasabha, which owed its origins to the tradition of Hindu nationalism in the late nineteenth century (especially Dayanand's Arya Samaj) was formed in 1915 and was revived as a political party in 1922-23. The Muslim League formed in 1906 by the traditional elite of United Provinces subsided as a political party in the 1919-22 period but was revived in 1924 and again in the 1930s to make it the sole spokesman of Muslim interests. (For a more detailed discussion of the three main political actors see Appendix). This does not mean that the Congress had no Hindu nationalists or Muslims left in its ranks. The boundaries between these groups within the Congress were extremely unclear. The Congress claimed throughout to represent everybody, a claim that was seriously challenged in the 1930s. Indian nationalism, as represented by the Congress, always contained the seed of 'majoritarian' politics, a form of politics, which while accepting that there are many communities in India and that they should co-exist, nevertheless subordinated others to the nationalism of the majority community (Upadhyaya 1992). The limitation of my topic does not permit me to give a detailed analysis of the electoral representation system set up by the British in successive doses of constitutional reforms. I will limit the discussion to the terms on which this system was set up, the effect it had on Hindu-Muslim relations and the nationalist movement. Indian representation in government at the provincial level, based on elections, was first introduced by the Morley-Minto reforms in 1909. Elections were not based on universal adult franchise. Property ownership, and particularly ownership of land, formed the basis for enfranchisement. Subsequent constitutional reforms extended the electorate but did not introduce universal, adult suffrage in British India. As analysts have shown, these constitutional reforms were necessitated for two reasons (Page 1982, Sarkar 1989, Jalal & Seal 1981). First, was the need of the colonial state to extend the system of control by extending and broadening the base of its rule. Second, the rise of the Congress from the 1880s onwards meant that collaboration in maintaining colonial rule would have to be sought through successive doses of constitutional reforms. (The 57

Congress at this time was far from being a political party. Its core was formed by the educated, urban, professional elite who were seeking entry into the system of power). Through successive constitutional reforms the system of control was extended in two ways. First, by extending the power of the traditional allies of the colonial state, the landed gentry. The second method, inaugurated by the Morley-Minto reforms, by putting power not into the hands of those who had demanded reform, but those on whose cooperation the Raj had relied, was by the introduction of separate electorates for separate interest groups, as for example, the Muslims. In order to harness the enthusiasms of the growing body of educated Muslims to their own cause the Muslim elite of the United Provinces founded the Muslim League in 1906 and made a representation to the colonial government for separate electorates(Page 1982 p.14). The granting of separate electorates appears to have been an attempt by the Raj to shore up crucial parts of its system of control. As in the case of the general electorates, it was an attempt to extend and broaden the base of its rule by extending and broadening the support of its traditional allies (Page 1982, Sarkar 1989). I have already discussed in Chapter I that the colonial understanding of Indian sociology was based on the belief, sharpened by the conceptual instruments of its control, that the population was a melange of communities. If the colonial state was to seek legitimacy, it had to do so by picking out and bringing over to its side the 'natural leaders' of the various communities. The granting of separate electorates has to be seen in this light because the theory of representation that was inscribed in the constitutional reforms was informed by this understanding. That this understanding did not reside only in the colonial imagination is evidenced by the fact that it shaped the forms of mobilisation of the Indian elite seeking representation in the state domain. Suffice it to mention here that as Indian politicians tried to work the reforms in the 1920s and '30s there was a growing polarisation between different interest groups, especially Hindu and Muslim. The growth of this communal divide seemed to lie in the very logic of the political structure. In order to establish a lien on the resources of the government elected representatives at the provincial level had to work within the political interest groups that had ensured their representation. Another important implication of the reforms was that it changed the terms of an all-India confrontation with the Raj. Politics was locked into the provinces and alliances on an all-India level to confront the Raj were considerably weakened by the logic of constitutional collaboration in the provinces. By the time the Government of India Act, 1935 came into being inaugurating responsible government in the provinces, it was clear that the Congress claim to represent everybody had been seriously challenged by Muslim politicians in the 58

Muslim-majority provinces. What the Muslim majority provinces wanted was to consolidate their position (through the constitutional system which gave them separate electorates, reservation of seats in the provincial councils etc.) and then enter into a more equal partnership with the Hindu majority provinces in a loose federation (Jalal & Seal 1981 p.438). The Congress leadership, on the other hand, held throughout that 'swaraj' (self-rule) was the main issue that the Indians should try to obtain in the constitutional reforms and that the solution to how India's many communities would be represented in government should be achieved by a 'swaraj' constitution and not form its basis. The Congress won an overwhelming majority in most provinces in the 1937 elections. This meant that it could make a bid for power at the centre of an united India. Muslim politicians, especially Jinnah, realised the importance of Muslims having a strong party to represent their interests at the centre to articulate Muslim demands. In addition to this the Muslims needed a different basis by which to be represented at the centre. Political representation based on numbers could never serve this purpose for the Muslims because they were hopelessly outnumbered. Even the Muslim-majority provinces were likely to become an ineffectual minority at the centre. 'Asserting that Muslims were a nation avoided the logic of numbers. As a community, they were consigned to being a perpetual minority in united India. As a nation they were entitled to equal status, irrespective of their numbers, since the family of nations contains the big and the small' (Jalal 1994 p.52). The idea that Muslims were a nation was not entirely new but in its earlier incarnations in the 1920s and 1930s it was more a cultural than a political idea. With the changed political situation in which the Congress had won the 1937 elections and was about to make a bid for power at the centre, the idea of Muslims as a political nation began to gain leverage. In March 1939 the All India Muslim League had appointed a special committee to look into schemes which had little in common with each other except the assertion that, explicit or implicit, Indian Muslims, whatever their differences, were a nation. What emerged as the famous Lahore resolution of 23 March 1940 has since been widely interpreted as the demand for a separate state of Pakistan. In fact the Hindu communal press at the time made a great deal out of this labelling the Muslims as traitors to the cause of nationalism. In fact it made no mention of partition, and certainly none of 'Pakistan'It read: ' that no constitutional plan would be workable in this country or acceptable to the Muslims unless it is designed on the following basic principles, viz, that geographically contiguous units are demarcated into regions which should be so constituted, with such territorial adjustments as may be necessary, that the areas in which the Muslims are numerically in a majority, as in the North-western and Eastern zones of India, should be grouped to constitute Independent States in 59

which the constituent units shall be autonomous and sovereign' (Quoted in Jalal 1994 p.58 footnote 51; quoted in Sarkar 1989 p.379). The resolution made no mention at all of the centre, its future shape, and how it was to be arrived at. By apparently repudiating the need for any centre, and keeping quiet about its shape, Jinnah (whose main political objective had always been to share power at the centre) assumed that when the time came for negotiating with the Congress and the British government, they would have to concede to organised Muslim opinion in order to create or retain a centre. This resolution, so clumsily worded and ambiguously spelt out, was meant to be a bargaining point with the other arbiters of Muslim destiny, the British and the Congress. Muslim personal law reform was initiated in 1937 in the central legislatures under the new dispensation of the Government of India Act, 1935 and in a political climate when it was very important for Muslim politicians to assert that Muslims were a nation. The move to reform Hindu law began in 1940 at a time when the Lahore resolution had been made public and the Congress was boycotting the colonial government in a final bid to oust it. In the first chapter in this section I will discuss the enactment of the two legislations, The Muslim Personal (Shariat) Application Bill, 1937 and The Dissolution of Muslim Marriage Bill, 1939. This discussion of the legislations will chart their history and draw out the underlying themes in the debates. It will look at the outcomes of the debates in terms of actual gains for women, and also, outcomes in terms of discourses that have subsequently framed the discussion about the personal laws. The second chapter in the section will look at the chequered career of the Hindu Code Bill as it made its contested way through the legislatures set up by the colonial state to the first Parliament in independent India where it became the priority in the legislative agenda of a new nation-state.

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SECTION I CHAPTER 2 BUILDING THE 'IMAGINED COMMUNITY': MUSLIM PERSONAL LAW REFORM IN THE 1930S.

2. 1. Introduction In 1937 and 1938 two important legislations were tabled in the Central Legislative Assembly both of which had to do with Muslim Personal Law. As I have shown earlier, attempts by the colonial state to codify Muslim Law was given up as being too difficult and complex. Colonial courts, therefore, had relied on case law in most instances when adjudicating in family disputes or allowed local custom to overrule scriptural tradition. What emerged from this judicial practice was a phenomenon known as Anglo-Muhammadan law which in the social and political context of the 1920s and 1930s came increasingly to be criticised by Muslim politicians. This chapter will discuss the enactment of these two legislations, The Muslim Personal (Shariat) Application Bill, 1937 and The Dissolution of Muslim Marriage Bill, 1939. This discussion of the legislations will chart their history and draw out the underlying themes in the debates. It will look at the outcomes of the debates in terms of actual gains for women, and also, outcomes in terms of discourses that have subsequently framed the discussion about the personal laws. A cursory review of the legislations, from the point of view of the gains accruing to women, reveals that the gains were limited. The legislations did reform women's access to family property but the reforms fell seriously short of establishing parity between men and women. In order to understand why this was so, why these legislations were mooted in the first place, what the debates were about, and, who the principal actors and agents were and the positions they represented, these debates will have to be placed in their historical and political context. This context was a major determinant of the parameters within which the legislations were conceived, debated and fought about. The legislations were tabled at a juncture when the new dispensation of the GOI Act,1935 had come into being. The provinces had gained autonomy and responsible government. The central legislatures were, however, still operating under a kind of dyarchy and the ultimate control in the federal legislatures remained in official hands. The distribution of seats at the centre ensured that no one party could claim majority.

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The only group that had obtained a reasonably fair representation at the centre were the Muslim majority provinces. The late 1920s and early '30s had witnessed the emergence of all-India Muslim politics which to a great extent challenged the Congress claim to represent everybody. Muslim politics in this period was usurped by the Muslim majority provinces, specifically the Punjab, from where it had begun, namely the United Province. The all-India Muslim Conference was successful in stone-walling the proceedings of the Round Table Conferences till the point that it was able to ensure the 'Punjab version' of a better deal for the Muslim majority provinces. However, despite the all-India claims being made by Muslim politicians at this time, there were serious divisions among them. Jinnah's attempts to revive the AIML and make it the sole spokesman for Muslim politics had failed miserably. The Muslim majority provinces, quite content with the new political dispensation, had rejected his overtures for an all-India umbrella. There were grave disparities in the interests of the Muslim minority and majority provinces which defied resolution. Propped up by their separate electorates, the advantageous distribution of seats, and their ability to rule by factional alliances in their provinces, the Muslim majority provinces were in no mood to pay attention to the difficulties of their coreligionists in the Muslim minority provinces. It was at the centre, rather than in the provinces, that the need and significance of an united Muslim demand was most strongly felt. In order to uphold Muslim interests they needed to speak with one voice and have a commonality of purpose. In 1937 Jinnah had extracted the dubious privilege of speaking for the Punjab and Bengal at the centre in return for the promise of noninterference in their provincial affairs. Thus Muslim politics at this juncture was a curious and contingent mix of all-India aspirations coupled with strident provincialism.

2. 2. The Muslim Personal Law (Shariat) Application Act, 1937. This Bill was tabled for discussion on 1st April 1937 in the Legislative Assembly, the day that the GOI Act,1935 became operative . The passage of Bills followed a definite procedure. A Bill was first tabled for discussion and referral to a Select Committee. After its return from the Select Committee, the Bill was discussed again in the light of the changes and amendments brought in by the Select Committee. At the conclusion of this debate, a show of hands and a simple majority determined whether the proposed bill would become law. If major controversies arose at the stage of final debate, the bill could then be referred to solicit opinion.

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The Bill was moved by H.M.Abdullah, the Muslim member representing the constituency of West Central Punjab. The object of the Bill was to ensure that 'in all questions regarding succession, special property of females, betrothal, marriage, divorce, maintenance, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions etc. the rule of decision in cases, where the parties are Muslims, shall be the Muslim Personal Law (Shariat) although there may be a custom, usage, or law to the contrary' (H.M.Abdullah, LAD Vol.III 1937 p.2528). He explained that although in most provinces Muslims were subject to Shariat law, there was a great deal of variation in the Law of Succession followed by Muslims depending on the local, customary and tribal regulations. Among those provinces which followed the Shariat Law when deciding succession were the eastern districts of Bengal, Assam, Bihar, Orissa and parts of UP. In the Punjab, on the other hand, the agricultural classes followed customary law whereas their urban counterparts followed the Shariat. The aim of the Bill was to bring about uniformity in laws relating to family matters of the Muslims. In H.M.Abdullah's words: 'The Bill aims at securing uniformity of Law among Muslims throughout British India in all their social and personal relations. By so doing it also recognises and does justice to the claims of women for inheriting the family property who under the Customary Law are debarred from succeeding to the same. If Shariat Law is applied they will automatically become entitled to the same' (H.M.Abdullah, LAD Vol.III 1937 p.2528). Although the object of the Bill was to secure uniformity of law among Muslims in British India by bringing these under the rubric of the Shariat, certain important exceptions would have to be made. With the introduction of provincial autonomy from the day on which this Bill was tabled, all matters relating to agricultural land (including succession) had come under the purview of provincial governments. It was no longer possible for the Central legislatures to enact a law covering agricultural land which would then apply to all the provinces. H.M.Abdullah, when introducing the Bill, mentioned this handicap and expressed his frustration that when this Bill had been introduced in the previous session of the legislature (1936), opposition by certain members had delayed proceedings till the session lapsed and with it the proposed Bill. The main objection to the Bill in its former incarnation seems to have been that, because it would give women the right to inherit land according to the principles of the Shariat, it would result in the fragmentation of landholdings. The customary laws followed, particularly in the Punjab, did not give Muslim women the right to inherit land. The appeal to custom by Muslim landlords was their way of ensuring that land could be kept within the family and not alienated through the marriage of daughters to another family. The colonial state had given legal recognition to this principle. Thus official members of the government had opposed the previous Bill along with others. Since agricultural land now did not fall within the purview of the Bill, this particular 63

objection had no validity and H.M. Abdullah hoped that it would receive the support of Government members. In the debate that followed at this particular session of the Assembly, there were important points of consensus regarding the need for this Bill and equally important points of dissension regarding the implications of this Bill for particular interest groups and specific provinces. It is by examining the areas of consensus and as well the dissensions that we can arrive at what the agendas were and the implications of these agendas for women. In total nine members, all Muslims, spoke in the debate on the 1st April, before the Bill was sent to the Select Committee. This tally of nine leaves out Henry Craik, the government member, who made an important contribution; the President of the House who directed proceedings; and the Muslim representative from Bengal who made a one line statement informing the House that in his province Muslims followed the Shariat. What were the points of consensus in this debate? The points of consensus, or rather the reason why members said that they supported the Bill, can be organised around particular themes which interconnect with each other. The themes can be arranged in the following manner according to the number of speakers who referred to them directly in their speeches. This does not mean that they did not allude to the other themes in their speech. - The Bill is necessary to secure uniformity among Muslims (2) - Because Muslims have the right to follow their own Personal law.(1) - The degradation of Muslims as a community is because of the progressive abandonment of the code of Islam. (2) - Islam was the pioneer in having progressive laws which gave women equal rights, recognised their right to inherit as individuals. Islam as a social and religious code is vastly superior. (4) - Islamic law is a boon for the community and customary law a bane, a blot on the reputation and pride of the community. (5) - The Bill is necessary because by following the Shariat women's rights can be secured, it will benefit women, 64

it will answer the just claims of women to succeed to property. (5) (Note: The numbers in brackets refers to the number of members who referred to this theme.)

The points of consensus, or rather, the reasons that members who spoke in the debate gave for supporting the motion, delineate a discourse about community. In his introductory exposition H.M.Abdullah had outlined the object of the Bill as being the need to secure uniformity of law among Muslims which in turn would benefit women and secure their justified claim to inherit property. Sir Muhammad Yakub, Muslim member representing rural districts of UP, spoke next and upheld the right of Muslims to be governed by their personal law. He argued that by a proclamation of Queen Victoria in 1858, the Mussulman were given a solemn pledge that they could follow their personal law. But the government had receded from that promise and the result was the corrupted Anglo-Muhammadan law. However, Muslims all over India now demanded the need for such a Bill because the Islamic law was their own. I quote what Muhammad Yakub says in this connection: '... during the last 20 or 25 years, there has been an awakening among the Mussulman and they have realised that the best law that can govern their family relations is their own Islamic law' (Muhammad Yakub LAD Vol.III 1937 p.2530). It is all very well to ensure uniformity and demand the right to practise the personal law but surely this must occur in the context of a well-defined community. The other themes, therefore, delineate the contours of that community. The Muslims are a community because their common heritage is the vastly superior code of Islam. By straying from this code the community has been degraded. The code of Islam is superior because, first, it is progressive in that it pioneered women's rights. Second, because Islam gives women their justified rights whereas custom deprives them. Islam is for equity as opposed to custom which is discriminatory. Custom fragments, sets up differences between peoples who should be the same, it is divisive. Islam provides coherence to identity by the certainty, and uniformity of its principles. Thus it is only by returning to the fold of Islam, via the Bill, that women's rights can be secured, that justice can be done to women. Alternatively, it is via women's rights, given to them by the social code of Islam, that Muslims can assert their right to be a community, a collectivity, and to speak with one voice.

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The points of dissension, however, occurred along the fault lines of specific interests which seemed to create fissures in the otherwise monolithic idea of community. Sir Henry Craik, the government member, injected a note of serious doubt about the acceptability of what the Bill hoped to achieve to all Muslims. In his position as the government member he could afford to be singularly unconcerned about the assertion of community that speakers before him had outlined. In his speech he mentioned that when a similar Bill had been tabled the previous April, he had voiced a note of caution. This caution had been that in relation to specific interests and for certain parts of the country, the Bill heralded revolutionary changes. For the Punjab, Sind and Baluchistan the proposed Bill would demand significant changes in the lives of a great many Muslim landowners. In the case of the Punjab, particularly, the suggested changes would not be acceptable to the vast majority of landowners and if a genuine plebiscite could be taken, his point would be proved. However, since the Government of India Act, 1935 had restricted the ability of the Central legislature to make laws regarding agricultural land, the proposed Bill did not look as revolutionary as before since it would leave agricultural land out of its jurisdiction. Under these circumstances he was willing to go along with it. He reminded the members from the Punjab that a similar Bill in the Punjab Legislative Council was not proceeded with because it failed to get the support of Muslim agriculturists. His suggestion was that the Bill be made optional so that individuals could choose whether to follow the Muslim Personal law or any other. Two other voices articulated a cautionary note to the provisions being brought in by the Bill. Both were from the United Provinces where, as we have seen, Muslim politics was hegemonised by large landowning interests. Sir Muhammad Yamin Khan, the Muslim representative from the Agra rural division of the UP, could not afford to treat the assertion of community lightly. After all his claim to fame was via his position as a Muslim leader. He began his speech, therefore, by berating the customs of the Punjab where Muslims were governed by customary laws which deprived women. Islam, he said, had recognised women's rights 1,300 years ago and Muslim law had been the pioneer of advance in law in the world. The British could not introduce women's rights to property till 1870 and the Hindus had not given their women this right till now. Thus he was for the principle that gave women equal rights, which was the law of Islam. However, the Bill as it was drafted was defective, defective because it did not take into consideration provincial legislations which protected the rights of large landowners. The Taluqdari system, for example, was protected by the United Provinces' Landholders' Act. By the provisions of this Act it was not just women who were singled out for discrimination, but both men and women had limited right to inherit because inheritance was settled by primogeniture. But since these legislations were limited to protecting the rights of an elite class, they were not meant for the general 66

public. So for the general public the law of Islam was fine, but for the taluqdars and large landlords the protective legislations would have to stay and the present Bill should ensure that it did. The logic of his argument is best illustrated by quoting what he said in this regard. 'You cannot call upon a ruling Prince that because he is the ruler of a country, therefore his daughters must have equal shares with the son who comes to rule. In the same manner the taluqdari system was made separate from the general Muhammadan personal law and with the same object which gave to a certain class of zamindars in the United Provinces the United Provinces Landholders' Act, which was enacted to give protection under certain circumstances' (Sir Muhammad Yamin Khan, LAD Vol.III 1937 p.2531) The other voice of quiet dissent was that of Muhammad Azhar Ali, representing the rural divisions of Lucknow and Fyzabad in UP, who while supporting the spirit of the Bill nevertheless felt it necessary to mention the special legislations in Oudh regarding property alienation and transfer. He wanted these to be taken into consideration in the Select Committee as it would have significant effect for his constituency. The fault lines were thus beginning to emerge and were drawn along the axis of women's rights as Koranic heirs versus the vested interests of large Muslim landowners, the pet constituency of the colonial government. The Bill was referred to the Select Committee for further debate and clarification, along with the fault lines. The Select Committee presented their report in September 1937. This report was tabled for discussion on 9th September 1937. Summarising the report, H.M.Khan mentioned the changes brought about and the following points of dissent and controversy which would require further debate. The main change suggested by the Select Committee had to do with agricultural land. As has been mentioned before, agricultural land was now the purview of provincial governments. Another change was the amplification of the term 'divorce'. Since the Shariat recognised different forms of dissolution of marriage, the change suggested by the Select Committee was to include all of them within the purview of the Bill. Thus neither of these changes amounted to very much. The point of dissent was more critical. It had to do with the wording of Clause 2 of the Bill which read that Shariat law would be applicable to Muslims '...although there may be a custom, usage, or law to the contrary'. The note of dissent tabled by Sir Muhammad Yamin and Muhammad Azhar Ali (both representatives for UP and both of whom had expressed guarded dissent in the previous debate), asked for the omission of the words 'or law' in the definition of the Bill. This suggested amendment was thus put on the agenda of the debate in the House.

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Supporting H.M.Abdullah's motion to consider the Bill with the report of the Select Committee, the Muslim representative from the North-West Frontier Province, Abdul Qaiyum, discussed the amendment that he had proposed in the Select Committee which was to leave out the NVVFP from the ambit of the proposed legislation. His speech laid the ground rules for the impending discussion of controversial amendments. He welcomed the Bill because it answered the need of Muslims all over India for a better, more progressive life-style. This feeling had been expressed in public meetings and, particularly, in the opinions expressed by Muslim women's forums and the Jamait-ulUlemi-Hind. Following custom had meant unspeakable misery for women in his province as elsewhere. He asserted that once people who believed in progress realised that this Bill was primarily intended to improve the status of women, they would gladly welcome this measure. Custom, after all, was a very indefinite term which from his experience as a lawyer he had personal experience of. Lawyers resorted to all sorts of chicanery and malpractice to cite custom which differed from tribe to tribe and region to region. It was in order to overcome the indeterminacy of custom and restore Muslim women's rights as heirs that his province had passed a law to make the Shariat applicable in matters of succession. He reiterated that it was very important for Muslims, who were an influential minority community numbering almost 80 million people, to move in the direction of following their own personal law. This would enhance the status of the Muslims and also better the position of women. It would be a good thing for the Indian nation. In this connection he also added that the principles of the Bill, once it was law, should not be extended to his province. The reason was not because provincial legislations protected special privileges but because the provincial legislation regarding the application of Muslim Personal Law covered more aspects than the present Bill intended to do. For example, the present Bill would leave out agricultural land and religious trusts because of the provisions of the GOI Act,1935. However, in the NWFP Act both agricultural land and religious trusts were covered and had to comply with the Shariat. Thus for his province the extension of the legislation might mean a step backward. He appealed to all the members to support the Bill to rescue Muslims from the dead hand of custom and to restore to them their pride as a community which believed in equity. He ended on a note, which was difficult to ignore in the rest of the debate, by saying, 'I hope, Sir, that the day is not far off when other communities will also bring similar measures and when in India women and men will be treated equally in the eyes of the law in the matter of property, political rights, social rights and in all other respects. I have, therefore, great pleasure in supporting the principles of the Bill' (LAD Vol. V 1937 p.1429 emphasis mine). The principle of the Bill, therefore, was the coming together of a community which believed in justice and gender equality. The community is characterised here by its

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belief in equity and justice and by its role as the pioneer of progressive change in India which other communities would emulate. Despite the spirit of accord and harmony expressed in the opening speech by Abdul Qaiyum, differences did not take long to surface. Sir Muhammad Yamin Khan fired the first salvo in this regard. Although he began his speech with the salutary nod to the aspirations of the Muslim community to be one, he soon opened up the cracks that fragmented this identity. His first quarrel was with the inclusion of the word 'Shariat' in the title of the Bill. The stated reason for his objection was that the word 'Shariat' did not mean the same thing to all sects of Muslims. As a Sunni, Hanafi Mussulman he understood the Shariat as laying down the principles of inheritance and succession in one way. But for the Shia community of Muslims the Shariat meant laying down the principles of succession and inheritance in quite a different way. The implication of these differences between different sects of Muslims interpreting the word Shariat in their own terms was that the shares given to men and women were completely different. Whereas the Shariat of the Sunni, Hanafi Muslims laid down that the only daughter of a Muslim who dies should get half his property, the Shia law dictated that she should get the whole property. It was to avoid misunderstandings of this sort in a court of law that he suggested that the word Shariat be dropped from the title. It was sufficient to entitle the Bill 'Muslim Personal Law Application Bill'. Having used the dispute around the title as his introduction, Sir Muhammad Yamin Khan went on to stating his real objection. This was to the inclusion of the word 'or law' in Clause 2 of the Bill. He had suggested in the Select Committee that this be amended and he now brought it up for debate in the House. The core matter of his objection was that the inclusion of the word 'or law' would nullify the effect of other laws which had been legislated in provinces with the full concurrence of the Muslims and applied to Muslims and non-Muslims alike. The United Provinces Zamindari Act which gave protection to the zamindars so that property could not be divided was the example he wished to cite. Being a good Muslim he would have objected to this if it had discriminated only against the inheritance rights of women. But as it stood, and as he had explained earlier, such acts merely safeguarded the right of a person to enjoy a life interest in the property and prevented him from disposing of it. This law was equally applicable to Hindu and Muslim zamindars. With the introduction of the clause 'or law' the laws protecting the zamindars could be nullified and it would affect all zamindars, whether Muslims or non-Muslims. He claimed that if the Mover of the Bill had merely mentioned that his aim was to do away with custom and usage, he would have happily concurred (because the United Provinces Landholders' Act was not a custom but a law). Since M.A.Abdullah, the mover of the Bill, was from the Punjab where the greatest injustice was being done to women because of customary law, it was 69

understandable that he should bring a Bill to correct this wrong. However, he should have been aware of the legislations existing in other provinces which could be jeopardised by using terms such as 'or law'. Sir Yamin Khan's statement served to bring out in the open the divisions in the Muslim ranks. It posed for the House the critical question as to which interests the proposed Bill should serve. Should the Bill be framed in a way as to protect the interests of Muslim landlords, a powerful and privileged constituency in the political dispensation obtaining in India at the time? Or should the Bill serve the purpose for which it had been mooted, which was to assert a sense of an all-India community of Muslims (also an important political constituency) by bringing the laws governing Muslims in personal matters under the Shariat? Were these interests mutually exclusive or could they be reconciled. There were other divisions too. An important division was based on provincial interests. Yamin Khan, for example, found it expedient to support the principle of the Bill as long as it referred to the situation in the Punjab. Bringing the principle of the Bill closer home seemed to hurt. Later in the debate the representatives from Bengal, and Bihar were to also to assert their provincial interests. The initial reaction from Muslim members to Yamin Khan breaking rank was predictable. They heckled him. They found fault with his knowledge of the Shariat (which immediately put him in a position of being a bad Muslim). Jinnah, the consummate lawyer-politician, engaged him in word play, which quibbled on the words Muslim Law and Shariat, and soon had him tied up in knots. The House resumed serious business after this and it was left to others to rally support for the principle of the Bill. Muhammad Anwar-ul-Azim, Muslim representative from Chittagong Division in Bengal, said the Bill was beneficial for the Muslim community in his province. The critical point that he raised was, however, the following. He said that one of the amendments given notice by the Government was to keep the provincial laws already in existence on the subject of custom and usage intact. Muhammad Anwar-ul-Alim queried this amendment on the ground that if by this law Muslim women, who had been denied their justified claim to inheritance, and Muslims denied status for 150 years of British rule, were to be benefited, it would be counterproductive to allow provincial legislations to stay the way they were. These would result in custom and usage remaining intact. He expressed doubts as to the fate of the Bill if the provincial governments were given the choice of adopting it or not. This was a valid point, and coming as it did from a representative of a province which purported to follow the Shariat laws for inheritance, one that expressed the nagging doubts of many others. However, by expressing this doubt in the context of a Government amendment what he successfully did was to demonstrate the keenness of Muslims to abide by their 70

own personal law and cast the Government in the role of the enemy. So it was the Government, and not Muslims with their mix of provincial, land-owning and disparate interests to preserve, that stood in the way of ensuring for Muslim women their justified rights and Muslims their status. The significance of Anwar-ul-Alim's intervention becomes all the more important as we learn from the next speaker the nature of the amendments to make this Bill optional and the sources from which they arose. Khan Bahadur Shaikh Fazl-i-Haq Piracha, Muslim member representing north-west Punjab, expressed his unalloyed support for the principle of the Bill. Cunously enough he dubbed this Bill a most harmless one which only affected those who professed Islam as their religion and that too in the matter of personal property and marital laws. Who could possibly object to such a simple and honourable measure? Apparently there had been objections to this simple demand in the Select Committee. For this reason Jinnah had tabled an amendment which would make the Bill entirely optional. Piracha, while criticising this amendment because it would take the sting out of the Bill, nevertheless rescued the intent of Jinnah's proposed amendment as being the only way out to facilitate the passing of the Bill without opposition. He pleaded with the Government to support the Bill because by doing so, it would simply be doing its duty by the Muslims. The Government, therefore, was the main impediment. Whereas these two members laid the blame for the opposition to the Bill squarely on the Government, Maulvi Muhammad Abdul Ghani, Muslim member representing the Tirhut division, brought it back to the division among Muslims. He ridiculed Sir Yamin Khan for making bombastic speeches about equality of the sexes while making sure that this principle was not extended to his home constituency. This, the Maulvi alleged, was because Yamin Khan was more keen to protect his taluqdars at the expense of his Muslim heritage. So far as he had understood the Bill he had taken to mean that by its passage all that was custom, usage, and anti-Islamic practice, that had passed into law to the detriment of the Islamic law of inheritance, would disappear. The Maulvi ended by saying that he was for the Bill as long as it was carried without amendment but was against the amended form. He did not want it said that he, the Muslim representative from Bihar, a province which followed the Shariat in matters of inheritance, supported the amendments that would make the Shariat entirely optional for Muslims. This, he said, would harm the interests of the Muslims of his province. The time for conflict management had arrived to ensure the passage of the Bill without too much opposition which was likely to break the tenuous unity of purpose among the Muslims. Qazi Muhammad Ahmed Kazmi, Muslim representative from the Punjab, took on this role initially by taking Yamin Khan through each of his points of dissent 71

and juxtaposing these with the real intent and purpose of the Bill, its principle. He pointed out to Yamin Khan that he was probably unaware of the reason why this Bill had been brought before the House. He was unaware that it had been brought before the House because of the existence of provincial legislations - the Punjab Laws Act, the Oudh Laws Act and others - which made the custom of the country override the personal law of the Muslims. For precisely this reason the words in Clause 2, 'Notwithstanding any custom, usage or law to the contrary' had been retained in the Bill. If the word 'or law' was deleted it would mean that custom and usage would stand repealed but it would not ensure that those customs and laws which had received recognition as law would be repealed by this Bill. If Yamin Khan understood that the need for this Bill arose from the fact that in the Punjab and NV/FP and at other places, there were enactments to the effect that custom and usage would have preference over the Muslim personal law, he would not have objected in the tone that he did to the inclusion of the word 'or law'. (Yamin Khan murmured his surprise at this stage). Driving the point home, Muhammad Ahmed Kazmi cited the example of the Punjab Laws Act of 1872 which was precisely such an enactment. If the present Bill did not include the word 'or law' it would mean that in the courts of the Punjab, enactments which had recognised custom and usage as law would be given precedence over and above the personal law. Muhammad Ahmad Kazmi continued to dissect Yamin Khan's objections by singling out the latter's quarrel with the word 'Shariat' in the title. He clearly pointed out that Yamin Khan did not know what he was talking about when he raised this objection. The word Shariat means to any good Muslim, the law. It was immutable, it was one and, therefore, most appropriate under the circumstances. To quarrel with the word 'Shariat' was to repudiate what each and every Muslim stood for. Having demolished Yamin Khan's points of opposition he went on to say that when the Bill was introduced it was supposed to cover a very large field. However, with the passage of the GOI Act, 1935 agricultural land had to be left out of the body of property that was been legislated about. Agricultural land constituted 99.5 per cent of all property in India and thus leaving it out meant that the House was legislating on 0.5% of the property available in the country. Then why was there such an urgent need to legislate when it involved such a small body of property? It was urgent, Kazrni pointed out, because the passage of the Bill signified the acceptance of a principle. I quote, '...but the idea of seeking the sanction of the House is that in addition to giving some relief to the females of the country, we may get this principle accepted by this House, this being a representative House for the whole of India; the principle being that the Muslim personal law should be applied to Muslims and the difficulties and troubles that have come upon the women of India on 72

account of the customary law should be removed. So Sir, it is in this spirit that this Bill is being proceeded in this House' (Qazi Muhammad Ahmad Kazmi LAD Vol.III p.1443 emphasis mine). The stage was now set for M.A.Jinnah to patch up the differences and ensure support

for the Bill along with the amendments. The support for the Bill was necessary, as will have become evident, to assert the unity and identity of Muslims as a community. By stressing the principle of the Bill, unity cohering around a common heritage, the heritage of Islam, as opposed to the disunity and divisiveness of custom, this support would be forthcoming. The amendments were necessary to appease and cajole the conflicting interests which constituted the reality of the Muslim world. Yarnin Khan's amendments went against the principle of unity and, therefore, had to be laid to rest once and for all. Thus in his speech Jinnah stressed that the principle underlying the Bill was to secure to female heirs their due share according to Muhammadan law. Custom and usage had rendered their position precarious and, therefore, ought to be rejected. The Islamic code was the most just because the shares were definite and women were the sole mistresses of the property they inherited. A woman's economic position, he asserted, was the foundation of her being recognised as the equal of man and sharing his life to the fullest extent. By accepting an advanced law, like the Shariat, Muslims were accepting progress. Therefore, he supported the principle of the Bill. However, he then went on to demolish Yarnin Khan's objection to the use of the word Shariat by reference to learned texts and commentaries. This was not necessary at this juncture since Yamin Khan already stood defeated. However, we must remember that the political objective of demolishing Yamin Khan was to clear the way for part acceptance of the proposal to make the Bill optional. This Jinnah did achieve in part. The Bill emerged from the House with the full acceptance by the Muslim members of the principle of the Bill, but with the proviso that individuals could exercise an option to be governed either by the shariat or by their customary law only with regard to matters of adoption, wills and legacies. Muslims were to be governed by the Shariat in all other matters mentioned in the Muslim Personal law. Since agricultural land was out of the reckoning it meant that the Bill merely pointed to the principle to be followed by the provinces in future legislation. By keeping certain matters optional it ensured that Muslims whose material interests were in conflict with the Shariat law could have their identity and eat their material cake too. This might look like a singularly toothless piece of legislation but if we remember the need for this Bill, which was to create the community, it was eminently successful.

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2. 3. The Dissolution of Muslim Marriage Bill, 1938 At about the same time (i.e. in 1936) that the Shariat Application Bill was first introduced in the central legislature, another important piece of legislation, which had to do with Muslim personal law, was also proposed. This was the Dissolution of Muslim Marriage Bill. This Bill, introduced in the Assembly in 1936 was drafted and circulated for opinions and comments in the early part of 1938. In mid 1938 the Federal Assembly spent four days debating whether the Bill should be referred to a Select Committee. The Select Committee members were appointed in December 1938 and tabled their report in the Assembly by February 1939. In the same month and year the Assembly then debated the report of the Select Committee for two days. The bill was finally passed with many amendments on 14th February, 1939. The background to this Bill is as follows. As I have shown in the earlier section, one of the objectives of the Shariat Application Bill was to bring about uniformity in the marriage and divorce laws of the Muslims. To this end the Select Committee had, in its recommendations, included all the different forms of dissolution of marriage the Shariat recognised to make these acceptable to the majority of Muslims (whose practices differed according to their sects). Apparently this was not sufficient to ensure the uniformity that the framers of the present Bill were seeking. The concern that this Bill addressed was not just that all Muslims should follow the same practices with regard to divorce, but that they should not follow certain practices that had become the convention when seeking divorce. The convention that had developed was that Muslim women were converted to other religions and cited this as a ground in the courts for obtaining divorce. This convention had been accepted as part of Anglo-Muhammadan law which took its cue from one of the major schools of Muslim law, namely the Hanafi school. Most Muslims in India followed the Hanafi law. There was a great deal of controversy as to whether the Hanafi law actually stated that women who converted to another religion should be divorced (as a sort of punishment for abjuring Islam) or whether it said that women could claim divorce by converting to another religion. This controversy was not settled by the lengthy debate on this bill in the House and it really depended on the political persuasion of the speaker as to which authority they cited in order to prove the point either way. What is clear, however, is that Muslim women were converting to other religions to get out of difficult marriages and that this was the only legal premise on which the Anglo-Muhammadan law would permit a Muslim woman to seek divorce. It was not clear either as to what the extent of the problem was - i.e. how many women were actually doing this, which provinces had the maximum number of cases. The point is that Muslim women resorting to conversions to get out of 74

difficult marriages had become a political problem for the Muslim leadership. It signified a rejection of the very basis for forming a political community, which was the distinctiveness and particularity of their religion. The Bill, as it was first tabled before referral to the Select Committee, was divided into three parts. The first part laid down the grounds for dissolution of marriage (on the application of a married Muslim woman) and the method of dissolution. The second part dealt with the effect of apostasy on the marriage tie. The final part recommended the structure of personnel who would be authorised to try these suits. In the debates that ensued in the Assembly the second and third part aroused the most controversy. The Bill, as I have indicated above, took many hours of debate in the House before its referral to the Select Committee and many hours after its return from the Select Committee before its finalisation. This Bill thus took much more time of the House than the previous Bill, the Shariat application Act. This was due to the controversy that raged around the second and third part of the Bill. The debates on the Shariat Bill had clearly shown up the points of consensus as well as dissension among the Muslim politicians which reflected more or less the reality of the Muslim world in India. In this debate, on the other hand, the points of dissension were more numerous and the contenders were not limited to the Muslim ranks. In the second and third part of the proposed Bill the framers of the Bill were seeking the consensus of the House to impose strict boundaries to delineate the Muslim community. This immediately brought them into conflict with the other group which was defining political community in religious affiliation terms, the representatives of the Hindu nationalist parties. Since the debates were long drawn out and full of claims and counter claims, in my account I will limit the discussion to the main controversies. I will follow the development of the controversies along the axis of the political divides. There were three main political constituencies who each expressed some measure of internal unity and coherence of views despite individual differences. The first group was the Muslim politicians who differed among themselves at the outset on a number of clauses of the Bill but were drawn into a consensus as opposition from the others set in. The second group comprised what I have termed the Hindu nationalists for want of a better term. This group had representatives of the Hindu Mahasabha, and as well, the Sanatan Dharma Sabha (for the similarities and differences between these group see Appendix). The middle ground was held by representatives of the Congress. Another important political actor in the debates was the government.

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The Mover of the Bill was Qazi Muhammad Ahmad Kazmi, the Muslim representative from the Meerut Division, and the member who played a critical role in the debate on the Shariat Application Bill. Introducing the Bill, he explained the main tenets of the three parts and also presented the opinions that had been received on these. The first part, the grounds for dissolution of marriage, had received favourable reviews. The aim of this part of the Bill was to ensure that the provision that Muslim Law made to give women equal rights as men to get a divorce should be fulfilled. In the present situation the two main impediments preventing women from using this right were, first, the faulty provisions regarding the procedure to obtain divorce, and second, the absence of appropriate personnel in the courts who could enforce these rights. Some constructive criticisms were received regarding the first part of the Bill all of which had to do with making the provisions more definite. Kazmi explained that the provisions had been arrived at by putting together all the provisions for divorce under both the Hanafi and Malik.' law so as to make it possible for all sects of Muslims to identify with them. However, because he had mentioned in the Bill which provisions had been drawn from Hanafi and which from Maliki, some confusion as to which sect of Muslims these provisions were applicable to (whether only to the Hanafis) persisted. This could be ironed out by the Select Committee by making the provisions more definite. He reminded the House that the Bill had become necessary because of the appalling condition that Muslim women found themselves in because they were unable to obtain divorce. Having elucidated the purpose of the first part of the Bill, he jumped to the third which had to do with the kind of Court personnel that would be necessary to implement the Muslim personal law of divorce. A word is necessary here about the courts existing in British India. The courts were joint courts and the personnel part of the all-India judiciary. There were no special courts for Hindus or Muslims and the tradition initially adopted with regard to cases under the personal laws, in the late 18th and early 19th centuries, of consulting the shastris and Qazis had been discontinued by 1864. Kazmi pointed out that part three of the Bill had suggested that Muslim judges and personnel should be responsible for implementing Muslim personal law of divorce. He also said that this part of the Bill had received near unanimous opposition. In fact it had led to many misunderstandings as to the intent of the Bill. Some had complained that by insisting on Muslim personnel to oversee cases of divorce, the framers of the Bill were expressing distrust in the ability of the judiciary to read, comprehend and implement Muslim personal laws. Others had insinuated that this was an underhand way of seeing to it that the judiciary had an over representation of Muslims. Kazmi was at pains to correct these misunderstandings. He pleaded that Muslim women were finding it difficult to exercise their right to divorce in the absence of court personnel authorised by Muslim Law to grant them divorce. This was the main reason why this part of the 76

Bill had been devised. However, he did not stop at this explanation. He went on to say that the right that Muslims had enjoyed up to 1864 of having cases decided by the Qazis had been discontinued. It was essential if Muslims were to have the freedom to practice their religion, and the personal law was an integral part of the religion, that they should have this right restored to them. Informal and voluntary appointments of Qazis by Muslim communities would not serve this purpose because this was not strictly acceptable by the tenets of Muslim Law. In other words what he was arguing was that Muslim Law only recognised those Qazis as having the power to dissolve marriages who were invested with the authority of the state. He was asking the state to recognise that Muslims were a separate community, with separate laws, and thereby entitled to an unique relationship with the state. Kazmi, however, was a pragmatist and knew that this would not cut much ice with the government nor with the other members of the House. Therefore, he suggested a compromise on this question. The compromise was one that had been suggested by the District Judge of Salem in his comments on the Bill. It suggested that a way out could be found by authorising Qazis to enforce decrees passed by the courts. Alternatively the judges could be helped to arrive at decisions in these matters with the appointment of Muslim assessors or jurors to the courts. The second part of the Bill, clarifying the effect of apostasy on the marriage tie, had received a very divided opinion. Kazmi said that Muslims themselves were divided on the issue as to whether apostasy dissolved marriages or not. However, he added, that most Muslim opinion was of the view that it did not dissolve the marriage tie. It was clear from what he said that although he was willing to give the pros and cons as to whether apostasy did or did not dissolve a Muslim marriage, the stand taken by the framers of the Bill was that it did not and that it should be done away with as a ground for seeking divorce. This part of the Bill, Kazmi conceded, had also provoked much criticism. A criticism that had been levelled was that by insisting that apostasy did not dissolve marriages and could not be a ground for Muslim divorce, the framers of the Bill were being communal. They were being communal because they were making sure that nobody went out of their religion. This, the adverse opinions alleged, infringed on the rights of other communities. (This allegation is very difficult to understand at this stage but becomes clearer as other parties who brought up this allegation join the fray). Kazmi appeared seriously hurt by this accusation. In order to counter this charge he proceeded to present the opinions of the Muslim community, both for and against, on this question. Kazmi said that the law as it stood then recognised apostasy as dissolving marriage. His contention was that the courts had refused to look into the motives for conversion and thereby given divorces on false grounds. This was not in keeping with the spirit of Muslim Law. In order to show why this was not in keeping with the spirit of Muslim Law, he went into a lengthy discussion of the sources of the law, citing the works of the main commentators and jurors in the process. This lengthy explanation, he 77

said, was necessary to find a way out for the Muslim community from the mess created by the operation of the Anglo-Muhammadan law. The discussion was aimed at persuading the House that the spirit of the Muslim Law did not support a woman's conversion to another religion as a ground for divorce. With Kazmi's presentation of the contents of the Bill the battle lines were immediately drawn. In order to give this account of the debate some coherence I have had to select the main speakers who represented the three political constituencies I have mentioned above. The representatives of a particular constituency spoke at different points in the four- day debate before the Bill went to the Select Committee. In presenting the debate I will follow the order in which members spoke in the House rather than present the opinions of the speakers of a bloc at a time. The first member to react to Kazmi's presentation was Bhai Parma Nand, a nonMuhammadan representative from West Punjab. He was also an important member of the Hindu Mahasabha in the Punjab and represented its views in the House. Bhai Parm Nand was a member of the Select Committee appointed to review the Bill. He opened the debate by saying that although Kazmi's Bill on the face of it looked noncontroversial, at closer examination it seemed more complex and difficult. According to him nobody could object to the main tenet of the Bill which was to give Muslim women the right to divorce their husbands. If the Muslims wanted to revive an old practice, or to reform it, it was surely their business and it did not affect any other community. On the point of whether apostasy dissolves the marriage or not, he was of the opinion, judging from the responses received from Muslim associations, that the Muslims themselves were divided. On the final part of the Bill,(Clause 6 in the Bill and henceforward) which was to have only Muslim judges trying such cases, the opinions received were not favourable. Bhai Parm Nand found fault with the way the first part was framed because it created a great deal of confusion regarding the actual grounds on which Muslim women could seek divorce. He relied on the comments received on the Bill for this criticism. His opinion was that in the matter of the divorce law for Muslims, the Bill should settle once and for all what the uniform principles were. Having said the above in the way of introduction, Bhai Parm Nand arrived at his main criticism of the Bill, which was primarily to the second part (referred to as Clause 5 in the Bill and henceforward). On the one hand there were criticisms to this part of the Bill, that apostasy did not dissolve the marriage tie, from Hindu Associations who claimed that this would affect them adversely. On the other hand, Muslim opinion was itself divided as to whether such a clause was tenable in Muslim Law. He then proceeded to cite the Muslim opinions that had come in regarding the legality of such a clause. At this point an irate member asked him to state his opinion on this clause and 78

not merely rely on other opinions. Provoked in this manner, Bhai Parm Nand stated his position. His position was that as long as this clause referred only to Muslim women who were born Muslim, he was willing to accept it. According to him, non-Muslim women were daily being abducted and forcibly married to Muslims resulting in endless litigation to rescue them. His allegation was that Muslims were forcibly converting non-Muslim women by marrying them. To further substantiate his point he said that it was not only the Hindu Sabhas in various provinces which had alleged this, but it was an opinion held by no other than the Advocate's Association of Western India. He quoted from their written statement: 'Before laying down that the conversion of a married Muslim woman would not in itself operate to dissolve the marriage tie is passed, attempts must be made to prohibit or check forcible conversions' (cited by Bhai Parm Nand LAD Vol.V 1938 p.1109). The translation of Bhai Parm Nand's allegation from pure Indianspealc to plain English is as follows. He was saying that since non-Muslim women were being forcibly converted via abduction and marriage to Muslims, their only way of getting back to their original religion was through divorce via apostasy. This avenue would be closed to them if the present Bill disallowed apostasy as a ground for divorce. As a result the Muslims would win and the Hindus would lose. Ridiculous as this may sound, this was precisely the stuff that communal politics was made of. We must remember that the antecedents of the Hindu Mahasabha were in the Arya Samaj and Hindu revivalist movements in the late 19th century particularly in North India. For this group it was not enough to be an Indian, one had to be consciously Hindu. This aggressive assertion of Hindu identity espoused by groups like the Hindu Mahasabha was bound to come into conflict with the assertion of Muslim identity. This Bill was interpreted by the Hindu nationalists precisely in this light - that its main intention was to convert Hindu women and keep them chained to Islam. To oppose the Bill was to uphold the rights of the Hindus. Bhai Parm Nand's speech thus shifted the discussion from the main purpose of the Bill - which was to grant Muslim women the right to divorce by stipulating the conditions - to a debate about the relationship of the Hindu and Muslim communities to the state. The next speaker, a Congressman, tried to bring back the debate to the issue at hand which was to ensure through the Bill, Muslim women's rights to divorce. M.Asaf Ali, representing the Delhi general constituency, a Congressman and a Muslim, spoke first. He lent qualified support to the Bill but clarified that his party's position was that till it emerged from the Select Committee, his party was unable to state an opinion on the Bill. However, he stated the Congress position on social legislations of the sort that the Bill represented. The Congress position was, and it was enshrined in the list of fundamental rights that it had drawn up, that the party would not interfere with the profession or practice of any religion, subject to public order and morality. Flowing 79

from this commitment was the corollary that the Congress would respect the personal laws of all communities and the decisions with regard to reform or change of the personal law would be left entirely to the community concerned. However, he also pointed out that the exception to this general rule would be if there was significant division within a community on particular points. In such a case the Congress would be free to decide on the issue based on justice, equity and good conscience. Having stated the Congress position, Asaf Ali then went on to state his personal position which was that he was in agreement with the Bill only so far as it affected the dissolution of marriage on the application of a Muslim woman. He had grave legal doubts about the other clauses which he needed to clarify before he assumed his role as member of the Select Committee. As regards Clause 1 (first part of the Bill) he argued forcefully that the title should be changed to 'The Dissolution of Muslim Women's Marriage Act' because the Bill only affected the rights of women and did not in any way change men's position regarding divorce. Regarding the clauses which specifically referred to the grounds being laid down for divorce, he was in agreement with the principle. However, he did suggest that these be made more clear. Coming to the disputed Clause 5, Asaf Ali found it very difficult to support the wording as given in the Bill which was: 'The conversion of a married Muslim woman to a faith other than Islam shall not by itself operate to dissolve her marriage' (cited by Asaf Ali LAD V 1938 p.1113). The reason he proffered for being unable to agree with this was as follows. According to Muslim Law the marriage between a Muslim and a non-Muslim who was an idolatrous, fire-worshipper, polytheist or atheist was considered void. It could not be legalised by saying that conversion to such a faith would not operate to dissolve the marriage. Therefore, Clause 5 could not operate in all cases. If Clause 5 did come into operation what would the woman's rights be? Would she be allowed to inherit, be the guardian of her children, and have the right to claim her dower? Under the Muslim Law she would have no rights once she converted. But if the marriage was not dissolved (as Clause 5 proposed) she would retain the rights. Were the Muslims prepared to allow a mother who had changed her religion to nurture minor children, to claim inheritance etc? Asaf Ali went further in pointing out that marriage in Islam was a contractual relationship aid, therefore, if any condition of the contract expired, the whole contract came to an end. Taking issue with Bhai Parm Nand's statement that he would have no objection to Clause 5 if it related only to the rights of Muslim women who were born Muslim, Asaf Ali said that he was against Clause 5 because he believed in the Muslim school of opinion which would dissolve marriage on the ground of apostasy. He took exception to the reference to Hindu marriages in the Bill (where it

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was mentioned that Hindu marriages were not dissolved by conversion) by saying that Muslims were not bound to follow other communities. On Clause 6 he said that he was certain the Government would not allow it because it presented administrative difficulties. He appealed to the members of the Muslim League, who were the primary movers of the Bill, and to his other co-religionists to rethink the need for this Clause. After all the machinery of arbitration was open to them. There should be no need to make a legal compulsion to make people go to the courts. He suggested that Muslims appoint their own Qazis voluntarily and encourage Muslims to abide by their decisions in personal matters. Furthermore, if Kazmi's suggestion to have assessors or jurors advising the courts did hold, then he suggested that women be appointed to such posts because it was primarily women who were supposed to benefit by this arrangement. Asaf Ali's clarification regarding the Congress party's position on religious freedom and the personal laws was a statement of the broad consensus on what 'secularism' meant in the Indian context. This brand of secularism did not represent the separation of religion from politics, and the attenuation of community-based political identities. It accepted the colonial notion that India was communally compartmentalised. The ideal of this form of secularism was cooperation among India's 'communities' and is most aptly summed up in the creed 'Sarva Dharma Sambhava' (let all religions prosper). This broad consensus is evident in the statements made by Bhai Parm Nand and as well the Muslim politicians. Where the constituencies differed is in defining how the 'communities' would live together. Evident in Asaf Al's statements also are the 'modernist' assumptions of a section of the Congress. This is evident in his appeal to his co-religionists to appoint their own Qazis voluntarily. What he is saying is that personal matters, like religious laws, should be kept within the arena of the private and out of the realm of the state. He does not deny the need to be a good Muslim, however. He acknowledges the fact that this is a legitimate identity that one can be proud of by taking exception to the comparison of Clause 5 to the situation obtaining in Hindu marriages. Asaf Ali's suggestion that the name of the Bill be changed because it only affected women, or that the assessors or jurors should be women because women were supposed to be the main beneficiaries of the Bill, also shows up his 'modernist' position in which women's rights and equality play an important part. Interestingly enough no other speaker actually took up his suggestion that the Bill be renamed because in doing so there would have had to be an acknowledgement of the fact that Muslim men were allowed to divorce their wives with the unilateral pronouncement of 'talaq' and that this Bill in no way changed that situation. Asaf Al's statements express the classic median position in Indian politics at the time and one which was to persist. On the one hand there was acknowledgement that there were communities and that they had a right to a 81

distinctive way of life. On the other hand, the supposition was that differences between them should not be aired in the realm of the political and could be sorted out at the level of the social. This position was not very different from the colonial state's understanding that caste and religious identities belonged to the domain of the 'social' and 'custom'. As O'Hanlon and Washbrook have pointed out, by consigning these identities to the domain of the 'social' and 'custom' the colonial state took away the essential political dimensions that had kept these identities open and mobile in the immediate pre colonial era (O'Hanlon and Washbrook 1991 p.125). Bhai Parm Nand's and Asaf Ali's statements followed each other serially. The next speaker that I have chosen to represent did not follow immediately on from the other two speakers. However, his statements were significant in that they continued and made more pronounced the allegations raised by Bhai Parm Nand in his criticism of the clauses of the Bill. Babu Baijnath Bajoria, representing the Chamber of Commerce in Calcutta, a professed Sanatan Dharmaite (association of conservative Hindus who lent their support to the politics of the Hindu Mahasabha party) was against divorce because it was irreligious, opposed to inter-caste marriages because it was against Hinduism, unwilling to grant that the imprisonment of a man and his consequent non-maintenance of his wife could be a ground for divorce because women were supposed to be 'pativrata' (faithfulness of the wife to the husband and this as her primary duty and meaning in life). It was no surprise, therefore, that his main objection to the Bill was Clause 5. He saw in this Clause an insidious conspiracy being hatched by the Muslims to take over Hindu women and keep them chained to Islam. He alleged that in Bengal there were everyday occurrences of rape, seduction and abduction of Hindu women where the perpetrators were Muslim men. He cited the Law member, Sir Nipendra Sircar's statement to vouch for the fact that this was happening, as also newspaper reports. There was an immediate uproar in the House following these statements and Syed Ghulam Bhik Naraing, Muslim politician and deputy leader of the Muslim League in the House, raised the point of order that the member was casting serious aspersions on a whole community. Undeterred by this Babu Baijnath Bajoria then went on to savage the Congress whose claim of religious neutrality (as stated by Asaf Ali) was suspect because it did nothing for the Hindus. Babu Baijnath Bajoria was treated as something of a buffoon in the House. The cries of 'shame, shame' from members when he spoke, the caustic comments about him when he was absent, all bear witness to this. Nevertheless, his intervention in the debate is important for two reasons. First, his representation of Muslim men as abductors, seducers and rapists delineated the Muslim community as the aggressors and the Hindus as the victimised. This discourse was to persist and resonates today in the cultural construction of Muslims as the 'other' of 82

Hindus with pernicious consequences. Second, his position on religious neutrality is part of the heritage from which present discourses in political Hinduism about secularism and the state emanate. In Bajoria's terms, as also for Hindu politicians, 'religious neutrality' is an aspersion because it signifies siding with the Muslims at the expense of the Hindus. After independence, and especially in the past decade, in the discourse of political Hinduism this came to mean that the state in supporting secularism was appeasing minority sentiments while victimising the majority. At this point Syed Ghulam Bhik Nairang, Muslim representative from western Punjab and the deputy leader of the Muslim League in the House, rescued the debate on the Bill from deteriorating into acrimonious communal altercations by returning to the need for the Bill. He said that a lamentable feature of Muslim social life at present was that Muslim women were not being properly treated by their husbands and were often being held in marital bondage. Approaching the courts for redress had been difficult for women because of the different interpretations of the grounds available for divorce in the several schools of Muslim jurists. For example, a Hanafi Muslim woman who complained of desertion by her husband could not get redress in a court because the courts followed the Hanafi law which did not recognise this as a ground for divorce. However, the Hanafi law did make the provision, which was unknown to the British courts, that if the application of this law caused hardship for the individual case, recourse should be taken to the principles of other schools of law - Shafai, Maliki and Hambali. This was precisely what Kazrni's Bill sought to do. In order to give women relief in instances where her marriage had become untenable, the provisions of Maliki law were to be applied. The present state of affairs was entirely due to the faulty interpretation of Muslim law in what was practised as Anglo-Muhammadan law. The Bill hoped to remedy this situation. By the end of the first day of debate the following were clear. First, the lines of argument for and against the Bill followed by each constituency were crystalising. Second, Clause 5 & 6 emerged as the contentious clauses. The debate on the two other days (in September 1938) was mainly around Clause 5 & 6 and whether the Bill should be referred to the Select Committee along with these clauses or whether these should be deleted before submission to the Committee. I will summarise the debate on Clause 5 & 6 in the debate by presenting the main arguments from the point of view of four persons representing the four different constituencies, namely, Muslim politicians, Hindu politicians, Congress and the government. Table 2A introduces who the speakers are, their constituencies and their position in the House. Table 2B represents each one's views on Clause 5 & 6 of the Bill.

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Table lA - Persons representing particular constituencies. Sr. No.

Person

Constituency

1

Ghulam Bhik Nairang

Muslim politician and dy. leader of Muslim League in the House.

2.

M.S.Aney

Hindu politician representing Berar constituency.

3.

G.V.Deshmukh

Congress, representing Nagpur Division, wellknown social reformer and architect of social legislations affecting Hindu women.

4.

Sir Muhammad Zafrullah

Leader of the House Khan

(Source: LAD Vol.V 1938 9th Sept.; LAD Vol.6 1938 20th Sept.)

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Table 1B - Views on Clause 5 & 6.

Sr. No.

Clause 5

1.

Forced conversions do

Muslim jurists necessary to

not constitute Muslim

advise on Muslim law of

marriage. This Clause applies to a bona fide

divorce to ensure that the grounds available in

Muslim woman who is born a Muslim and is

different schools of law can be applied to a specific

married to a Muslim.

case.

2.

Clause 6

The Clause is designed

Strongly condemn this Clause

to keep women tied to

If the law is clear then the

the Muslim religious fraternity. This robs

court personnel should be immaterial. Restrictions on

women of the freedom

the personnel is tantamount

to practice whichever

to creation of a communal

religion they want to. This contravenes the

court for the sake of deciding communal matters.

fundamental principle of freedom of faith for women. How can the government support this? 3.

At present divorce on

Does not benefit Muslim

apostasy is a right enjoyed by Muslim

women. Complications that would arise outweigh any

women. The framers of

advantages. If the grounds

of the Bill have not

are made clear why are the present court personnel not

clarified in what way this right prejudices the interests of the Muslim community. Any women should be designed to make their life easier and not deprive them o 85

competent to handle Muslim divorce?

rights they already enjoy. Clause 5 should be deleted. 4.

Clause 5 has to be rethought because

Government will not accept this Clause because is is unworkable administra-tively beside contravening

it applies Muslim Law to a person who has ceased to be a Muslim.

principles. The same court personnel should administer all forms of law.

(Source: LAD Vol.V 1938 9th Sept.; LAD Vol.6 1938 20th Sept.) As can be seen from the above table, Ghulam Bhik Nairang's main aim in explaining Clause 5 is to give a fitting reply to the Hindu politicians. Apparently they were his main interlocutors. As a result he already indicates the compromise that would be necessary if the Clause was to be approved by the Select Committee which was that it would apply only to Muslim women who were born Muslim. In his explanation of Clause 5 he also did address Asaf Ali's grounds for objection to the clause, first, that there were two viewpoints in Muslim law and one of these did support that apostasy ipso facto dissolved marriages, and second, the complications regarding guardianship of children and inheritance that would arise when a married woman converted to another religion. It has not been possible to present Ghulam Bhik Naraing's response to Asaf Ali in the table because of the need for brevity. The need to represent the reply to Asaf Ali does not seem as significant also because Ghulam Bhik Naraing gave this much less weightage than he did the reply to the Hindu politicians - Bhai Parm Nand, Bajoria & co. This left unanswered in the House the question as to why the framers of the Bill wanted to do away with apostasy as a ground for divorce, a point that was brought up by Deshmukh. Deshmukh used, throughout his speech, a single parameter in judging the utility of the Clauses. This was in what way did each Clause benefit Muslim women. This provided a refreshing change to the way in which the general tenor of the debate was conducted which had very little to do with Muslim women's interests and much to do with the control over their interests to be exerted by the community. The Bill was referred to the Select Committee after this. It emerged from the Select Committee with many changes. First, the Clauses which dealt with the grounds for divorce, had been streamlined. Nevertheless these were again discussed threadbare in the debate that ensued. Second, Clause 5 had been amended to apply only to Muslim 86

women born Muslim. Clause 6 was deleted by the Select Committee. However, this did not prevent members from bringing both these clauses up for discussion once again. The Hindu politicians brought up Clause 5 and the Muslim politicians argued the need for the retention of Clause 6. I will give a brief resume of the main arguments given by the Hindu politicians for retaining apostasy as a ground for divorce. Muslim politicians also revived the demand for Muslim judges and I will briefly mention the point they were trying to make in doing so. In the final round before the Bill was passed Bhai Parm Nand sought to bring in an amendment to Clause 2 (which laid down the grounds for divorce) which would include the provision that on the renunciation of Islam or conversion to a faith other than Islam, a woman could seek divorce. It took all the Muslim politicians by surprise as is evident from their reactions. His opposition to Clause 5 (which was now Clause 4 in the amended Bill) had led to the addition of the proviso suggested by him that only women who were born Muslim could not cite conversion as the only ground for seeking divorce. Bhai Pann Nand's reasoning for reintroducing this amendment was that apostasy was the key question in the Bill and was accepted in principle by Islam and practised in the courts. Therefore, in acknowledgement of the ground reality he wanted the provision that apostasy was a ground for divorce to be mentioned in the Bill. Lalchand Navlarai, another Hindu politician in the House, supported the amendment on the ground that since there were two schools of opinion among Muslims as to the effects of apostasy, those who believed apostasy to lead to divorce should be given a voice in the Bill. What Parm Nand was attempting to do by bringing in this amendment was to try and annul Clause 5 (Clause 4 in the amended Bill) by the back door. If his amendment had succeeded then this clause which sought to prevent the resort to conversions as a way of seeking divorce would be contradicted. As it turned out, his amendment was defeated. Maulvi Syed Murtuza Bahadur, Muslim politician representing South Madras, attempted to revive the clause to appoint Muslim judges to try cases of divorce. This clause was deleted by the Select Committee because of the opposition from the government. His justification for reviving this clause was that only Qazis or Muslim judges were allowed to dissolve Muslim marriages in Muslim Law. This provoked an angry reaction from the Law member of the Government, Sir Nripendra Sircar who claimed that this clause cast aspersions on the intelligence and honesty of the judiciary. Other angry outbursts followed and it was again left to Ghulam Bhik Naraing to placate everybody and still see to it that the Bill was passed. The clause did not find a place in the final Bill.

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The final Bill was passed at the end of this debate, on 14th February 1939. It laid down the grounds on which women married under Muslim Law could move the civil courts to obtain divorce. The grounds on which they could ask for divorce are given in Appendix 1. The grounds incorporated all the tenets that were acceptable to different sects of Muslims. In that sense it was successful in drawing Muslims into a legal definition of an all-India community. Muslim women, who earlier could not sue for divorce in civil courts on any other ground but apostasy, attained the right to go to court on the grounds laid down in the Bill. The Muslim politicians, for whom women's apostasy had become a political problem, were able to ensure through the Bill that the renunciation of Islam would not by itself operate to dissolve her marriage. Women could, however, after renunciation still appeal on the grounds laid down for divorce in order to dissolve their marriages. Hindu politicians were appeased by the inclusion of the proviso that this clause would not apply to a woman converted to Islam from some other faith and who re-embraced her former faith. 2.4. Implications for women The Shariat Application Act was proposed to secure uniformity of law among Muslims throughout British India in all their social and personal relations. By so doing it also recognised the claims of women to inherit family property. Under the customary laws followed in some provinces, they were deprived of the right to inheritance due to them as Koranic heirs. Support for the motion, as I have shown, was argued within a discourse of community. This discourse delineated the contours of the community. Muslims were a community because their common heritage was the vastly superior code of Islam. By straying from this code the community had been degraded. The code of Islam was superior because, first, it was progressive in that it pioneered women's rights. Second, because Islam gave women their justified rights whereas custom deprived them. Islam was for equity as opposed to custom which was discriminatory. Custom fragmented, set up differences between peoples who should be the same, it was divisive. Islam provided coherence to identity by the certainty, and uniformity of its principles. Thus it was only by returning to the fold of Islam, via the Bill, that women's rights could be secured, that justice could be done to women. Alternatively, it was via women's rights, given to them by the social code of Islam, that Muslims could assert their right to be a community, a collectivity, and to speak with one voice. Real divisions within the Muslim ranks which signified differences of material interests and provincial claims sought to challenge the seamless nature of this community. However, this challenge was successfully fended off by making the Shariat optional to individuals in certain critical matters. The law in principle gave women the right to inherit property. However, this could not be actualised in British India because the

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constitutional arrangements had made the most important form of property, agricultural land, out of bounds for the central legislatures where this Bill was enacted. The Shariat Application Act continues as a statute in independent India. Muslim women in Bengal had rights as Koranic heirs before independence and they continue to do so now. The important implication of this Act for women was really the close association drawn between women's rights/status/position and 'community'. In fact it is impossible to conceive of the need for this legislation except in the light of the fact that there was a political need at the time to assert 'community'. That this was actualised by the equation of women's status to 'community' aspirations has had implications for the way in which discussion about the personal law has since been framed. This discourse of community, and women's position being emblematic to it, has meant that women's rights in the family cannot be discussed separately from the fate of their community. Muslims were reduced to the position of a minority in India from the claims to be a nation in the 1940s. The loss of power entailed in this reversal has meant that the emblems of the community, in this case its personal law which is the distinctive marker, have to be protected to defend identity. The implication for women, as I have mentioned, is that their rights cannot be discussed from the point of view of gender equality and are always displaced on to debates about the Muslim community. The Dissolution of Muslim Marriages Act gave Muslim women the right of divorce which had hitherto been denied in Anglo-Muhammadan Law. The most contentious clauses in the debate were those that sought to lay down strict boundaries to delineate Muslim identity. One of the concerns that this Bill addressed was not just that all Muslims should follow the same practices with regard to divorce, but that they should not follow certain practices that had become the convention when seeking divorce. The other was that Muslim judges were needed to dispense justice in these matters. Taken together we can see how important the regulation of a woman's marital status had become in defining the distinctiveness of the 'community'. If women were abjuring Islam to get out of difficult marriages, this signified that they were breaking ranks and the 'community' would fall apart. In order to ensure that women, while claiming their right to divorce did not do so by abjuring Islam, Muslim judges had become necessary to police the process. As it turned out all parties to the conflict got something for themselves out of this legislation and most importantly women got the legal right to divorce. But here again we find that the close association of woman's position to 'community' limited, and has since limited, the discussion of women's rights in marriage. In my field work I found that poor women rarely, if ever, use this Act to secure divorce. Rather they were more actively using those legislations which enabled them to secure economic rights in the event of divorce or desertion by the husband. As we shall see later, Muslim women's use of legislations which secure the economic 89

obligations of extant marriages, and which were common to both Hindu and Muslim women, has been the subject of a major controversy in Indian politics in the 1980s. This controversy, more than any other, highlighted the difficulty of separating out woman as subject/citizen imbued with rights from their identity as markers and symbols of 'community'.

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Chapter 3 BUILDING THE NATION-STATE: The Hindu Code Bill

3. 1. Introduction The Hindu Code Bill, comprising separate Acts and enacted piecemeal by the Indian Parliament in the 1950s, represents the most comprehensive attempt to codify the personal law of the majority community of Hindus. At present its applicability extends to two-thirds of India's population of 850 million people. The process of codification spanned a time period of more than a decade in which the Hindu Code Bill made its laboured and contested way through government committees set up to frame and amend the provisions, through the legislatures where members debated the concept and the clauses, and through the most difficult and politically divisive period of modern Indian history. In order to disentangle the complex weave of events and processes that went into the making of the HCB, I will divide the discussion into three parts. In the first part I will introduce an important political actor, the women's movement. The women's movement played a significant role in Hindu law reform. In the second part I will outline, first, the time-table followed by the official committees set up to study the need for the HCB and frame the provisions. Second, I will set out the time-table that the legislatures followed in debating the provisions. Third, I will trace the efforts of the women's movement to advocate Hindu law reform. In the third part, I will examine the legislative debates on the HCB in the Central Legislative Assembly in 1943-44, the Constituent Assembly and Provisional Parliament in 1949 & '51, and 1955-56 in the first elected Parliament of the Republic of India. My aim in detailing the debates will be to examine the political controversies that arose in trying to ensure equal rights for women in the family, the political reversals that this suffered, the compromises that had to be made to ensure passage of the bill, and finally, what these compromises signify for women's position in the reformed and codified laws.

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3. 2. The women's movement as political actor A discussion of Hindu Law reform which began in the 1930s, cannot be undertaken without making the acquaintance of another important political actor, the women's movement. The women's movement not only played a critical role in Hindu law reform specifically but more importantly articulated the concept of 'sex equality' as a principle of citizenship within the context of the national movement leaving a rather ambiguous legacy for the 'women's question'. The genesis of women's associations and organisations in the early 20th century was in the social reform and revivalist movements of the nineteenth century. The lynchpin of the nineteenth-century reform concerns was women's 'uplift', which included the fight against such social practices as dowry, child marriage, purdah and the prohibition of widow remarriage. They also called for an education that would enable women to perform their roles as wives and mothers in an enlightened and socially useful mode. The Brahmo Samaj in Bengal Presidency and the Prarthana Samaj in Bombay Presidency were the forerunners in the 1870s and 1880s in organising women's education and helping form women's wings of these socio-religious organisations. These efforts were both reformist and revivalist in content as they relied on a redefined Hindu past to legitimise their concerns. Similar trends were discernible among the Muslim elite. Minault shows that articulate Indian Muslim reformers in the late nineteenth and early twentieth centuries were unusually preoccupied with the status of women in their community and with the need for women's education (Minault 1993 p.4). As the emergent Muslim middle-class sought to redefine itself in the context of colonial consolidation after 1857, the markers of high status shifted from being 'ashraf as in nobility to 'ashraf meaning respectable. The core of this respectability was the maintenance of their literary and religious culture and advancement of their professional positions. Thus, women's roles in the household economy and as transmitters of culture increasingly became matters of concern. The answer was women's education, an education that would make women better companions to their husbands and better mothers to their children, and also, better Muslims. This meant that the ideologies of renewal relied on scriptural sources negating thereby the syncretic and popular rituals that women followed. In the process of developing a fitting educational programme that relied on scriptural traditions to produce the new Muslim woman, clearer delimitations of boundaries around religious identities also took place. By the early twentieth century we see the emergence in different pockets of the country of women's organisations and associations which had similar characteristics. The 92

women were educated and they were representative of the elite. The agenda for the most part was composed of activities that promoted women's upliftment - education, health care, the fight against superstition and 'socially backward' customs such as purdah and dowry. They developed very similar strategies for influencing public policy to better women's lives which were to represent women's interests at elite political and policy forums (Everett 1981 p.67). Tharu points out that the strength of this discourse, women's upliftment, reverberates to this day in government policies and programmes. In a sense what was being implied is that women's oppression arose from pernicious customs and social practice which could be corrected by enlightened policy interventions. Women's subjugation as a political issue was invisibilised by this discourse. If women did not take advantage of the opportunities that were to be provided through women's uplift, it was entirely their fault (Tharu 1993 p.84-88). As a consequence this approach fed directly into ideologies of liberal nationalism represented by the Congress. Implicit in these ideologies was the notion that liberation and emancipation meant freedom from colonial rule. Thus a national government and the nation-state were the principal vehicles of human liberation. Liberation consequent on a structural transformation of social relations - whether gender or class - was ruled out by this discourse. The resultant effect on the women's movement by and large was that it exerted considerable influence when its interests worked in tandem with liberal nationalist concerns but was limited in terms of social transformatory potential involving the masses. After 1910, national and provincial women's associations were formed by women across the country who had earlier been schooled in public work through their participation in local women's associations. I will mention a few of the more important organisations that played a significant role in the movements for enfranchising women and in pushing Hindu Law reform. The Women's India Association (WIA) formed initially by three western women and centred in Madras, was to play a very important role in the women's suffrage movement. The Bombay Presidency Women's Council (BPWC) founded by Lady Tata later merged with the National Council of Women in India (NCWI) and had branches in many Indian cities and also played an important role in women's suffrage. By far the most influential in the long run was the All India Women's Conference (AIWC) which as we shall see played an active part in Hindu law reform and in leading the women's suffrage movement. Although it was initially set up to hold a one-time conference of the all-India women's associations to coordinate work on women's education, the AIWC became a permanent body by 1928. By the 1930s it had spread its branches to cities all over India, its leadership comprised women who enjoyed a great deal of prestige through their public and political activities, and developed close links with Indian political and professional leaders. The sub committees set up by the AIWC on such wide-ranging subjects as rural reconstruction, 93

national education, women's health and employment, untouchability and illiteracy, studied the problems, made recommendations to the government and demanded that women be represented in all decision-making bodies. An important influence on the women's movement was the Gandhian movement. Gandhi's approach to the women's question was ambivalent to say the least. Although he advocated that men and women were equal, women's roles in the fight for 'swaraj' and in opposing western domination should be modelled on the Hindu traditional figures of Sati, Savitri and Parvati (the eternal passive, self-sacrifing, husbandworshipping images of Hindu mythology). Gandhi's main political weapon Satyagraha (passive resistance) was often likened to the figure of the suffering, self sacrificing woman and Gandhi extolled the feminine qualities of non-violence and passive resistance and urged satyagrahis to adopt these. On the other hand, Gandhi was against women's participation in the civil disobedience movement limiting their role to spinning and picketing liquor shops. Gandhi's support for the women's movement remained well within the contours of a patriarchal social order. However, the mix of popular belief and traditional motifs that were characteristic of the Gandhian political style was far more accessible to ordinary women than the strategies adopted by the elite women leaders. As a result we find that his campaigns mobilised thousands of ordinary women. It served to break down opposition to women's participation in public activities and to their entry into social service and nationalist associations. His campaigns also served as the training ground for the most important women leaders of the time - Hansa Mehta, Durgabai, Kamal Devi Chattopadhyay, Renuka Ray, and Jayashri Raji to mention but a few. By the 1930s, women's organisations at the national level had begun to make their presence felt not only in addressing 'social uplift' questions but in the sphere of demanding political equality. As early as 1917, women's organisations raised the question of women's suffrage. A delegation of twenty women spearheaded by WIA placed a memorandum before the secretary of state, Edwin Montagu, asking that women be enfranchised on the same basis as men. Apparently Montagu did not take them seriously and the record in his diary about this meeting referred to Drioshi as 'one very nice looking doctor from Bombay' and Sarojini Naidu as 'a revolutionary at heart' (mentioned in Everett 1981 p.104 & Tharu & Lalita 1993 p.84). The demand was not mentioned in the Montagu-Chelmsford report of 1918. The women leaders did not stop at this. They actively lobbied Indian political leaders throughout 1917 at provincial and national conferences of the major political groups. They had no difficulty in getting their demand accepted by the leaders and by the end of 1918 the Congress, Muslim League and the Home Rule League passed resolutions in support of women's suffrage. Representatives from all the important political groupings testified 94

in favour of women's suffrage at the hearings of the Joint Select Committee on the GOI Bill 1919. The outcome was that the GOI Act 1919 left the question of women's suffrage to the Indian provincial legislatures to decide. The proposal was passed in most of the legislatures by 1929. Women's movement leaders then campaigned for the removal of a ban on women members in the legislatures. As in the earlier case, the government left it to the legislatures to decide. This happened without too much difficulty and by 1927 the necessary resolutions were passed allowing for the entry of women into the legislatures. In the 1923 elections (after the Montagu-Chelmsford Reforms), women were enfranchised on the same basis as men. As I mentioned in Chapter II this was not universal suffrage. Rather enfranchisement was based on property and income qualifications and other complicated quotas (religion, urban/rural etc). Since fewer women possessed property in their own name, the female electorate was much smaller than the male electorate. Women, predominantly from the Presidencies of Madras and Bombay, held positions in local government during the 1920s and most of these women were WIA members. The second phase of the campaign for women's suffrage began with the appointment of the all-white Simon Commission in 1928. At this stage we see a split in the women's movement. The common objective of the campaign was for an extension of women's franchise and increased representation of women in the legislatures. The differences in opinion had to do with what kind of conditions should be pressed to extend women's franchise and whether separate electorates and reserved seats for women should be on the agenda. Those women leaders aligned to the nationalist movement boycotted the Simon Commission and the first Round Table conference. However, Radhabai Subbaroyan (an advocate of Hindu law reform in the 1930s) and Begum Shah Nawaz attended the Round Table conference demanding extended franchise for women by the use of wifehood qualifications and seats to be reserved for women in the legislatures. The ideological schism in the women's movement was deep and related to profound questions about women's strategy for emancipation. For example, the difference of opinion regarding the reservation of seats for women raised the question of whether women's emancipation should be seen as having its own autonomy or should be subsumed by the nationalist project. Those boycotting the Simon Commission and the first Round Table conference prepared a memorandum endorsing the Nehru Report of 1928 (abolition of separate electorates etc.) while also demanding adult suffrage, the . removal of all sex disqualifications in voting etc. They also said that they refused 'to accept special expedients for securing the representation of women in Legislative and Administrative Institutions' (mentioned in Tharu & Lalita 1993 p.86). Amrit Kaur, 95

AIWC member, writing in 1938, presented two reasons to support adult suffrage and to oppose reservation of seats for women in the legislatures. These reasons were, first, that it endorsed Congress policy, and second, that it was in women's interests to compete on the same terms as men. Radhabai Subbaroyan, a prominent AIWC leader argued on the other hand that women's presence in decision-making bodies was essential for the shaping of educational and social policy and, therefore, reserved seats were needed to put women into power. Muthulakshtni Reddy, member of WIA and with impeccable nationalist credentials, pointed to the fact that there were contradictions between the interests of women and the interests of the Congress nationalists. While the men had welcomed women into the movement because they wanted their help at present, when women came forward to contest seats the fight would be between the sexes, and, given the social system it would be an unequal fight. The theoretical equality between men and women could be maintained in a system of adult franchise but the position of women on terms of equality could not be guaranteed. It was not fair, she insisted, 'to ask women to wait or to struggle for some years before they secured their legitimate rights' (mentioned in Tharu & Lalita 1993 p.87). The outcome in the GUI Act 1935 was that women's franchise was extended on the basis of wifehood qualifications but the communal principle was applied to women's franchise and representation. In the provincial legislatures, all seats, including those reserved for women, would be allocated to members of specific communities. The government reserved 2.5 per cent of seats in the provincial legislatures for women. The outcome in terms of the debate within the women's movement about the autonomy of the movement and its relationship to the nationalist project is far more critical, however, for my project. This ideological difference is critical because it constitutes the heritage of women's relationship to the nation-state. As we shall see in the discussion on Hindu law reform, legal equality was difficult but not impossible to achieve once the project of reform had been designated as being necessary for national development. Indian women did not face undue opposition from male politicians in the struggle for women's suffrage which is quite contrary to the experience faced by women suffragists in the west. Furthermore, the women's movement was able to insert the clause for sex equality in the 'Declaration of Fundamental Rights' which was part of the Nehru Report 1928 without too much trouble. Why was this so and what does it signify? Why is it that legal resolutions to the women's question were far easier to come by than real equality between men and women? The answers must surely lie in the way the problem was posed and the resolutions that the nationalist project offered at the time. The women's question, like that of the peasants, workers and untouchables, clashed with the interests of the national 96

movement on many occasions, as Talwar points out in his study of the women's movement in the Hindi belt in 1917-18 (Talwar 1989 p.224-25). However, the issues raised by the women's movement, unlike for the peasants, workers and untouchables, were more successfully absorbed and neutralised by the national movement. This is because 'the problem of women' was, since the 19th century posed in the rhetoric of reform. Women's position had to be reformed, reformed in relation to men and reformed in order to construct the Hindu and Muslim nation that had a glorious past but was degraded in the present because of colonialism. Those individual women who did not make it despite the generous accommodations being made had only themselves to blame. Equality in this discourse was thus equivalent to 'sameness'. This necessarily closed off gender as a political question for many years to come. The absence of the women's movement as political actor in the debates to reform Muslim personal law has to be seen in the light of its close association with the nationalist movement led by the Congress. This association made it impossible in the 1930s (at a time when Muslim politics had carved out a space to articulate its interests outside the Congress nationalist project) for the women's movement to articulate an autonomous position regarding women, whether Hindu or Muslim. 3. 3. The Time-tables Hindu law reform began in the 1930s in the Central legislature. The advocates of Hindu law reform inside and outside the legislature were lawyers and liberal politicians. In fact the Indian Liberal party took a great deal of interest in advocating Hindu law reform. Prior to the initiation of the process of Hindu law codification, a number of unsuccessful attempts were made by these legislators to put up private members' bills seeking codification. Hindu law reform began very cautiously with G.V Deshmukh's bill in 1937 which sought to ensure that Hindu widows would inherit their dead husband's property (according to Hindu law they only had a right to be maintained by the property). The bill had to be limited to the rights of widows only because of the opposition it faced in its passage. The Hindu Women's Right to property Act,1938, as this bill became, caused a great deal of confusion in its implementation. A number of bills seeking to clarify women's position regarding inheritance crowded the legislative agenda subsequently. It was at this juncture that the decision to appoint a committee to look into the feasibility of the proposed bills was taken. The first Hindu Law Committee, or the Rau Committee (named after the chairman, B.N.Rau, a retired Chief Justice of the Calcutta High Court), was appointed in 1941 to undertake this task. The Rau Committee presented its report the same year (1941). It recommended that instead of undertaking piecemeal legislation addressing various bits and pieces of 97

Hindu law, Hindu law should be codified once and for all. It further suggested that Hindu women should be granted absolute estate (the alienable right to property) and that marriages should be made monogamous by law. A Hindu Code should be enacted in gradual steps and bills on inheritance and marriage should be framed first. In 1942 the Rau Committee completed the revised draft of the Hindu Code. It was divided into two parts - Part I addressed Intestate Succession and Part II related to marriage. After Part I was debated in the Central legislature, it was referred to a Joint Select Committee which recommended in 1943 that the bill be recirculated for opinion as major changes had been made. In 1944 the Rau Committee was reconstituted. Its task was to prepare a Hindu Code. In August of the same year the Rau committee produced the draft Hindu Code. Between January and March of 1945 the Committee toured the country to hold hearings in nine cities in order to solicit opinion on the draft Hindu Code. The Committee was met with unprecedented hostility. Black flag demonstrations took place in five cities. The majority of witnesses were opposed to the draft code. The main opposition was to the concept of codification. The provision to grant women divorce aroused vehement antagonism. The main supporters of the Code were the women's organisations. However, women belonging to orthodox Hindu associations and to the Hindu Mahasabha opposed the Code. In its report the Committee played down the extent of opposition dismissing it as conservative reaction. It went ahead to finalise the Hindu Code Bill (revised draft) which was then presented for consideration to the Constituent Assembly in 1947. Political events in that year (Indian independence and partition, communal riots and mass killings) prevented consideration of the bill. In 1948 the newly formed Law Ministry revised the Hindu Code Bill, introduced it in the Constituent Assembly from where it was referred to the Select Committee (Ambedkar Committee after its chairman, the Law Minister B.R.Ambedkar). The motion to debate the bill took place in 1949 in the Constituent Assembly after which Ambedkar had to propose new amendments to satisfy the opponents of the Bill. Presented yet again in 1951, the Bill was not passed but rather abandoned by the government due to opposition. It was not taken up again till 1952 when the Law Ministry again revised the Bill, splitting it up into component Acts. The following Table details the Time-table of the official committees and their main recommendations.

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Table 2- Hindu Code Bill: Official Committee Time-table Year 1941

1942

1943







Activity



Outcome

Rau Comm. Report

Recommended codification of HL -Absolute estate for women -prohibition of polygamy -Hindu Code to be enacted in gradual steps. Bills on inheritance & marriage to be framed first.

Rau Comm. completes revised draft of Hindu Code Part I (Succession) & Part II (marriage)

Part I:Intestate Succession 1.Establishment of unified HSL 2.Introduction of the daughter as a first class heir with the son (one-half of son's share) 3.Grant of absolute estate to women. Part II: Marriage 1.Prohibition of polygamy. 2.Removal of religious disabilities of civil marriages celebrated by Hindus.

Joint Select Comm. on Part I presents report

Recommends that bill be recirculated for opinion as changes had been made.

1944 (Jan.)

Rau Comm. reconstituted

to prepare a Hindu Code.

1944 (Aug.)

Rau comm. draft Hindu Code

Recommended that a widow should get a share of her husband's property equal to a son. -daughter should get one half of son's share. -polygamy to be prohibited -inter-caste marriage legalised -ground established for the dissolution of marriage.

1945 (Jan-Mar)

Rau Comm. toured the country to hold hearings in in 9 cities to solicit opinion.

-majority of witnesses opposed the draft code. -black flag demonstrations in 5 cities -strongest opposition was to divorce provision. -women's organisations supported draft code. -women who opposed represented orthodox Hindu associations and the Hindu Mahasabha.

1947 (April)

Rau Comm. presents the Hindu Code Bill (revised draft) to Constituent Assembly.

not immediately considered due to political events.

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1948

1951



-Law Ministry revises draft of HCB.. -Introduced in Const.Assembly on April 9. -Referred to Select Committee (Ambedkar Comm.)

I.Marriage A.Sections added on restitution of conjugal rights and judicial separation. B.Divorce-new grounds added - A 2-year non-compliance with with a decree of restitution of conjugal rights. - A 2 year period of not resuming intercourse after a judicial separation. II.Inheritance & Succession A.Transformation of Mitakshara coparcenaries into tenancies in common. B.Extension of uniform succession laws to areas of south India previously unaffected. C.The fixing of a daughter's share as equal to a son's. D.Determination of order of succession based on 'natural love and affection'.

Ambedkar proposes amendments after consultations with opponents of HCB.

Important amendments were: - retention of Malabar laws on succession & marriage. - reintroduction of Mitakshara Joint family. - provision for daughter's share to be compulsorily bought out by brothers. - prohibition of divorce in first three years of marriage.

Abbreviations: Comm..committee; HL = Hindu Law; HSL=Hindu Succession law; HCB= Hindu Code Bill. Mitakshara coparcenary - Hindu law recognised 2 distinct types of joint families, Dayabhaga & Mitakshara. The Mitakshara joint family is based upon the Mitakshara coparcenary which consists of a male Hindu and his three male descendants. All the coparceners hold the property jointly and their interest fluctuates with deaths and births. The son takes an interest in the joint property at birth. No female can be a coparcener. Most property belonging to Hindus has been governed by the Mitakshara school which does not recognise women as heirs. As can be seen from the above Table, there were many changes in the recommendations in successive committee reports. If we follow the recommendations regarding inheritance and succession, and, marriage, through the main outcomes in the reports, we notice incremental changes in women's rights and also sudden reversals. In 1942 the revised draft of Part I cautiously introduced the daughter as a first class heir to a father's property but only entitled to half the share of the son. Part II introduced the principle of monogamy in marriage but did not introduce divorce. In the draft HCB of 1944 a widow's share of property was equal to that of the son although the daughter still got half. Divorce was introduced for the first time. 100

The revised draft produced by the Law Ministry in 1948 goes further in the matter of inheritance and succession but takes two steps back where rights in marriage are concerned. In the matter of inheritance and succession, this present revision made significant departures. It sought to abolish Mitakshara coparceneries (see footnote on Mitakshara) through which most property in India was held and which did not recognise women as heirs. It tried to impose uniformity in succession laws by bringing within the ambit of the proposed legislations, the regional and community based property laws obtaining in South India. It gave the daughter the same share in the father's property as the son for the first time. And, finally, it tried to dissociate religious obligation from the right to succession by insisting that the order of succession would be based on 'natural love and affection' (in other words to all members of the family irrespective of gender). This was to counter the argument put forward by the Hindu lobby that son preference in the order of succession was because in Hinduism sons fulfilled important religious duties on the death of the father. The new sections added to marriage reform signify a reversal. The addition of a new section on restitution of conjugal rights meant that either partner could demand in court that the other was living separately from him/her and should be forced by the court to live with him/her. This implied, of course, that marriage and the maintenance of the conjugal relationship was being given primacy over and above the individual right of the person to live separately. That this clause had important implications for women is evident since women had less autonomy to lead individual lives as wives (e.g. hold a job in a different town to that of the husband). The introduction of the clause for judicial separation also signifies the same trend of giving primacy to marriage and the conjugal relationship. On this clause Renu Chalcravarty was later to argue in the first Parliament (Lok Sabha) that it would affect women most adversely. At this stage cruelty and desertion were being made a ground for judicial separation and not divorce. Renu Chakravarty argued that since women were likely to take recourse to courts only in extreme circumstances, the distinction would mean that they would have to go there twice (mentioned in Parashar 1992 p.118). The Committee which drafted the 1948 revisions was composed of 17 legislators, none of whom had been members of the Rau Committee, and three of whom for the first time were women. It was headed by B.R.Ambedkar. Everett attributes the more radical clauses relating to inheritance and succession to the presence of Ambedkar and the three women legislators, all of whom were veteran leaders of the women's movement which had campaigned so assiduously for equal rights (Everett 1981 p.171). B.R.Ambedkar was a controversial figure in Indian politics. He was born into an outcaste family, was its first graduate, was a lawyer and Constitutional expert and a 101

leader of the outcastes. His Independent Labour Party won the majority of seats reserved for Harijans in Bombay in 1937. He was opposed to the Congress and particularly to Gandhi's campaigns for the untouchable castes. The Gandhian campaign made the upliftment of the untouchables an important issue for his followers. He renamed them 'Harijan' meaning people of god but his approach did not critique the caste system as being the basis for the discriminations and indignities suffered by the outcastes. Ambedkar, on the other hand, attacked the caste system and Hinduism and built his political programme on this ground. In his first cabinet Jawaharlal Nehru, the first Prime Minister of independent India, had included eminent politicians from different political persuasions and Ambedkar was one of them. He was made the Law Minister and one of the tasks he took up on assuming office was the passage of the Hindu Code Bill. Given this background it is not difficult to interpret the influence on the revised draft. However, several of the legislators on the Committee were opposed to the idea of codification of Hindu law while also dissenting on individual clauses, as for example, divorce. The 'one step forward and two steps back' in the 1948 draft has to be seen as a compromise. The amendments proposed by Ambedkar in 1951 after his consultations with the opponents of the HCB should be interpreted as a definite reversal for women's rights. The Malabar laws on succession and marriage had to be retained as part of the bill which meant that the impartible estates covered by these laws could not be touched. The Mitakshara joint family was reintroduced and in return for giving daughters the same share as brothers the price that had to be paid was the inclusion of the clause that brothers could buy out a sister who wanted to dispose of her inheritance. And in order to safeguard marriage, a clause to prohibit divorce in the first three years of marriage was introduced. The official committees were responsible for framing the bills. However, the real power to pass the bill lay with the legislature especially after 1947. The HCB had a rough passage in the legislatures. The following table details the legislative time-table of the HCB.

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Table 3- Hindu Code Bill: Legislative Time-Table Year

Forum

Outcome

1943

Central Legislative Assembly.

Debate on PartI -Intestate Succession - Opponents tried to recirculate Bill - Government used its bloc vote to secure referral to Joint Select Committee.

1944

(same)

Debate on Part II - Marriage (same outcome as above)

1949

Constituent Assembly.

- Ambedkar's motion was to consider the Bill. - Opponents motions were to recommitt the bill to the committee, recirculate the bill, adjourn the House. - Ambedkar's motion was voted on after 9 days of debate and accepted.

1951

Provisional Parliament

- Third reading of the Bill with clause by clause consideration and voting. - Only first four clauses of bill were passed before government abandoned the Bill. - Law Minister Ambedkar resigns in protest.

1952

Parliament of the Republic of India.

- Government reintroduces the HCB as separate Bills. - the least controversial bill, the Special Marriage bill introduced first and becomes an Act.

1955

Parliament of the Republic of India.

Hindu Marriage Act passed - Inter-caste marriage legalised. - Monogamy established. - Divorce allowed for women & men.

1956

(same)

Hindu Succession Act passed - Mitakshara coparcenary retained. - In absence of will, estate deemed divided and passed to heirs. - Widow, daughter, mother & son get equal shares (except under Mitakshara where women get a share) - Female heirs become absolute owners.

(The following Acts were also passed thus completing Hindu law reform and codification: Hindu Minority & Guardianship Act (1956) & Hindu Adoptions and Maintenance Act (1956) ). As can be seen from the above Table the first draft of the Hindu Code, which at the time had only two parts, namely, Intestate Succession Part I and Marriage Part II, was

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debated in the Central legislature in 1943 and 1944. The main strategy of the opponents of codification and reform of Hindu law was to recirculate the Bill in the expectation that this would delay matters and the bill would be dropped. As we have seen in Chapter II, the elected representatives did not have the final say in matters and could not carry through any legislation or prevent it unless it had the support of the government. In this case the government used its block vote to ensure referral of both parts to Joint Select Committees. This meant that the ball was kept rolling and the codification process entered a new phase in the committees. By 1949, however, the political situation had changed and with it the nature and responsibility of the legislature. The legislators now had the final say in the passing of bills or their refusal. The national government did not have recourse to bloc votes. As a result we see that the opposition to the bill among the majority of legislators delayed its passage. It took nine days of debate to consider the motion tabled by the Law Minister that the revised HCB be considered. The opponents did not want codification and used every conceivable parliamentary tactic to either recommitt the bill, to recirculate it once more for opinion gathering, and to adjourn the House. Ambedkar's motion was finally carried but with the proviso that he would consult with the opponents before tabling the bill again. This took till 1951 when it was presented to the Provisional Parliament shorn off many of the more radical steps to ensure equal rights for women. In 1951 Nehru had decided that it would be safer to consider that part of the bill dealing with Marriage first. The decision was prompted by the understanding that this was less controversial than the sections of the bill relating to succession and inheritance (Sarkar 1990 p.94). The latter, by granting women equal shares to men in family property, struck at the very heart of the patriarchal, patrilineal structure of property-owning Hindu families. As it turned out the opposition far outweighed the government's political will to see the bill through and after the first four clauses had been ratified, Nehru abandoned the bill. (The reasons are discussed in the following section). This prompted the resignation of the Law Minister, Ambedkar who mentioned the government's withdrawal from the HCB as reason in his resignation letter. When the first elected Parliament met in 1952, the HCB was reintroduced as separate bills. These became the Special Marriage Act, the Hindu Marriage and Divorce Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Maintenance and Adoption Act which were all passed within four years and by 1956. The passing of these legislations occurred in a vastly different political context from that of previous legislatures. This was the first Parliament to be elected on the basis of universal adult franchise. The Congress had won an overwhelming majority in the elections and in Parliament. It had achieved a broad consensus to govern. This was interpreted by the Nehru government as a political mandate and made it more confident 104

in setting the agenda for reform. It is significant that one of the first pieces of legislation addressed by the new government was the reform and codification of Hindu law. The reasons why this was so will be deciphered in the later section when I look at the debates. But before going on to the debates, I will briefly examine the women's movement advocacy for Hindu law reform. The following table presents the main activities and points of advocacy undertaken by the women's movement. It does not purport to be a comprehensive account of the women's movement advocacy of Hindu law reform. Table 4- Hindu Law reform advocacy: The women's movement

Activity

Advocacy

1930-33

AIWC resolutions

Supporting bills in provincial legislatures to do with women's legal rights.

1934

AIWC resolution

advocating the establishment of an unofficial commission to investigate and reform Hindu law.

All-India Legal Disabilities of Women Day organised by AIWC

- under Renuka Ray's leadership. - the demand for a commission to to investigate and ameliorate the legal position of women in personal law. - activities involved petitioning and public meetings. - although women's position in

1939/40

AIWC and women members of the Congress in sub-committee, 'Woman's role in Planned Economy', part of the National Planning Committee set up by the Congress.

- equal rights in citizenship - equal rights of inheritance - Muslim members did not want interference in their personal laws.

1941

AIWC Standing Committee meets to draft statement to the Rau Comm. and answer its questionnaire.

- protested the absence of women in the Rau Committee. - urged expansion of the scope of of the Comm. to include all areas of Hindu law so that these could be codified. Specific demands were for equal inheritance rights, marriage and guardianship rights and legalisa-tion of divorce.

AIWC members Renuka Ray &

Argued for Part I & II of Bill.

Year

1934



1943/44



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Radhabai Subbarayon participate in Central Legislative Assembly debate. 1944

AIWC drafts memo on draft HCB.

1945

AIWC member testify to the Committee in four cities.

1945

1945

1949

1951





-Draft HCB does not go far enough -daughters should inherit equally with sons. -Divorce should be allowed.

AIWC members in Constituent Assembly to draft Constitution.

- pressed resolutions to guarantee that personal law reform should be part of Constitution.

AIWC 'Indian Women's Charter of Rights'

- personal law reform given top priority. - equal inheritance rights - monogamy - right of divorce - inter-caste marriage - equal rights of guardianship.

Women's movement leaders in Constituent Assembly debate on HCB.

- Main proponents of HCB

Women's movement leaders in Provincial Parliament debate on HCB.

- Main proponents of HCB

According to Everett there were three distinct phases in the development of the women's movement position on the issue of personal law reform (Everett 1981 p.147). Women's organisations first turned to Hindu law reform as another strategy to achieve women's uplift. The campaigns against child marriage and for raising the age of consent have to be seen in this light. The second phase was when it turned its attention to legislative reform of Hindu law. As can be seen from the table, in the period 1930-33 the women's organisations supported legislations that had to do with women's legal rights. This support was couched in characteristic women's uplift terms and called for reform to relieve women's suffering so that they could contribute more effectively to society. They were not asking for equal rights but were calling for an increase in women's rights. From 1934 onwards women's advocacy entered a new phase in that it supported the idea of a Hindu Code which would remove the legal disabilities women suffered in marriage and inheritance rights. From this phase onwards the women's organisations stressed the achievement of equal rights for women in future legislation.

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The women's movement used a number of forums to press their demand for a Hindu Code. They lobbied government officials and legislators, held meetings with lawyers and prominent citizens in urban areas, and wrote extensively about Hindu law reform in the national dailies as also in their own journals. The other forum that they utilised was the Congress. In 1939-40 the Congress set up the National Planning Committee to plan for post-independence economic and social development. A sub committee on 'Women's role in a planned economy' was part of this planning exercise. Prominent members of this sub committee were the leaders of women's organisations who had been associated with the women's suffrage movement including Sarojini Naidu, Laksmi Pandit, Lakshmibai Rajwade, Hansa Mehta, Radhabai Subbarayon, Begum Shah Nawaz and Begum Hamid Ali. The sub committee began its deliberations in 1939 and submitted its report in 1940. The principal demand in the report was for equal rights of citizenship which cited the Karachi Congress resolution 1931 guaranteeing sex equality as its basis. They called for a uniform civil code to be optional at first and to gradually replace the personal laws. A Muslim member, however, clarified that the Muslims did not want interference in their personal laws. Most of the recommendations concerning personal laws dealt with Hindu law. The demand here was for equal rights of inheritance and other demands of sex equality. Although this particular report was never systematically utilised, it secured Congress support for Hindu law reform. From 1939 onwards women's movement representatives were very active in the legislatures in supporting Hindu law reform. In 1943-44 when the Congress was boycotting the legislatures, Renuka Ray and Radhabai Subbarayon, both members of the AWIC and Congress, attended Assembly sessions when the Hindu Code was discussed and their contribution was extremely important. In 1949 and '51 when there were more opponents than proponents of the HCB in the legislature, women leaders put up a strenuous fight to save the HCB from extinction. By 1952, however, women's activism for Hindu law reform was on the wane. With the achievement of independence and the installation of a popularly elected national government, it seemed as if the task of the women's movement was over. The AIWC became relatively inactive after 1954 devoting itself to being the project holders of government social welfare programmes. This is not at all surprising given the understanding of the women's question within which it operated and its subsumption by the liberal nationalist project.

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3. 4. Debates in the Legislature on Hindu Law Reform. Debates in the legislature - 1943-44 In 1942 the Rau Committee submitted the revised draft of the Hindu Code. At this stage, the Hindu Code was divided into two main parts, namely, Intestate Succession (Part I) and Marriage (Part II). The first part was debated in the central legislative assembly in 1943 and the second in 1944. In the 1940s the political scene in India was extremely turbulent. As we have seen in Chapter II, the British government had in 1939 announced that by declaring war on Germany, Britain had automatically turned India into a belligerent in the allied cause. The Congress had demanded complete independence in the same year and had asked all its provincial governments to resign from office. The Muslim League had in 1940 passed the Lahore resolution by which Muslims were a nation. This had evoked considerable anger among Hindu politicians (particularly the Hindu Mahasabha). In 1942 Gandhi was in 'strange and belligerent mood' (Sarkar 1989 p.388). He asked the British to leave India to its own devices and if the orderly anarchy of the war-time economy and governance were to be replaced by utter lawlessness, he was prepared to countenance it. It was in this political atmosphere that the Congress passed its famous 'Quit India' resolution in August 1942. Although the need for non-violence was stressed, the resolution called for mass struggle on the widest possible scale. And what ensued was rebellion on an unprecedented scale followed by massive repression and the jailing of all the top leaders of the Congress. The war economy had caused untold hardships for the majority of people. Blackmarketing in food grains and profiteering in basic commodities was rife and especially in the eastern front which faced the war with Japan. The government not only seemed to be doing little to check it but many of its measures contributed to shortages. Consequently, a terrible famine broke out in Bengal in 1943 when thousands of people simply starved to death. It was in this political climate that the debate on the Hindu code took place in the Central Legislative Assembly. The Congress legislators were absent from the House boycotting the government. Their absence was mentioned by both opponents and supporters of the bill to prove differing points. The opponents of the bill also cited the extraordinary conditions in the country, war and famine, as reasons for not proceeding with the debate of such an important bill, as also the absence of the Congress.

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Hindu Code (Part I) Intestate Succession. I will take up the debate on Intestate Succession first. The debate took place on three days in March 1943 before it was referred to the Select Committee. Since there were many speakers and the debates were intense, I will summarise the main points for and against the bill. In the debate in 1943 the main opponents of the bill were the Hindu parties - the Hindu Mahasabha and its affiliate organisations like the Sanatan Dharma Sabha. The main proponents of the bill were liberal legislators and the representative of the women's movement. Although B.R.Ambedkar was present in the House, he did not participate in the debate. The Muslim League took an interesting stand in that it supported the principle of the bill but also clarified that its support for reform of personal laws would be dependent on whether the majority of the affected community wanted change. Ultimately all the Muslim politicians voted to refer the bill to the select committee and against the motion of the Hindu politicians that this be recirculated for opinion. I have had to select the speakers whom I see as representing both sides. On the side of the opponents were two legislators whose acquaintance we have made in the debate on the Dissolution of Muslim Marriage bill. They were Bhai Parm Nand, legislator from the Punjab and a Hindu Mahasabhaite, and Baijnath Bajoria representing the Marwari Association and Chamber of Commerce from Calcutta and an ardent Sanatan Dharmaite. Another spokesman of the Sanatan Dharma group whose views I will represent here was Pandit Nilkantha Das, a legislator from Orissa. On the side of the proponents of the Bill was G.V. Deshmukh, legislator from Nagpur, and the architect of the Hindu Women's Right to Property Act, 1938. Deshmukh was very active in most legislations affecting women. N.M.Joshi, another liberal legislator was present but not very active in this debate. Another important proponent whose point of view I have chosen to represent was Renuka Ray, a leading member of the AIWC, who had always been active in Hindu law reform initiatives, and a Congress worker. Renuka Ray was present in the House in her capacity as AIWC member. Sir Sultan Ahmed, the Law member, introduced the bill. He gave the background that led to the appointment of the Rau Committee before laying out the salient features of the bill. These were, as we have already seen, first, that the bill embodied a common law of intestate succession for all Hindus in British India; second, that it removed sex disqualification as a means for precluding women from inheritance; and third, that it abolished the Hindu women's limited estate.

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The common themes emerging from what the opponents said is as follows. (Reference here is made to the speeches of Bhai Parm Nand, Baijnath Bajoria and Pandit Nilkantha Das in LAD Vol.II pg. 1406-1426, 1546-1579, 1599-1631). - The bill is unrepresentative. Only a few people have been consulted when framing it. The majority of Hindus have not been consulted. The absence of the Congress from the House means that there are fewer Hindus present. The request for such a bill should have come from the provinces in which case it would have involved a broader consultation process. As such the bill represents the views of a narrow elite of lawyers and experts and women brought up on modernistic principles which emphasize the rights of the individual over and above that of the family. Does the state have the authority to proceed with legislation in an important area like religion without consultation of the majority? - The bill comes at a time when there is war and famine. People have no time to devote interest to what the bill represents. The bill should have been postponed till the next elections which should be held as a referendum on whether Hindus want this change or not. - The bill interferes with our religion. People who do not want interference with their religion should not have this thrust on them. Religion is a scientific expression of organised relations in society. Religion unites us, we are a nation because we are Hindus. Hindu law stems directly from religion and the laws of inheritance are, therefore, based on religious principles. - Central to the tenets of Hindu law which is based on religion is the concept of the Hindu family which the present bill dismantles (destroys). The question before us is whether the individual or the family should be the unit of society. The Hindu tradition sees the husband and wife as one body. Separate property interests will cause rivalry between men and women, between husband and wife whose interests are joined. Separate property interests will cause rivalry between brothers and sisters. According to Hindu tradition the daughter becomes part of another family through marriage and has nothing to do with the father's family. Giving daughters property rights will mean that they will get a double share - from the father and the husband. This will result in jealousy between brothers and sisters. It will be the end of social morality on which Hinduism is based. This social morality dictates that parents are responsible for their daughters' maintenance, that men are responsible for maintaining their brother's widow. If Hindu widows are maintained what more can they want? If they remarry then the problem of their maintenance is resolved. Fathers have a responsibility to give their daughters 110

dowry which is their inheritance. Brothers have a responsibility to see that their sisters are married and this obligation will end through jealousies brought about by simultaneous inheritance. The result will be that the position of Hindu girls will worsen because they will not be able to get married and will become destitute. If sisters are given the right to inherit immoveable property like land it will be the end of the Hindu family. They will bring an outsider into the family, her husband. If he cannot manage the land, he will sell it resulting in the demise of the family. Further, giving women the right to property will lead to land fragmentation. - Giving women an absolute interest in property will mean that the property will be frittered away. At present women can only sell the property out of necessity. Given absolute ownership they will say 'we are the masters of the property'. They can defy their husbands, they can defy their parents and say 'we do not care for you'. - Women's organisations who support this bill believe in individuality, only want status for themselves, they want to be modern, western and socialistic. For us Hindus on the other hand, the woman/wife/mother is the mistress of the household. She cannot but use the resources made available to her by her husband except for the good of the family. We believe in the family, they believe in the individual. We represent the majority, the Hindus, the Indian tradition. They represent an elite out of touch with Indian tradition, inauthentic and alien. G.V.Deshmukh mainly addressed himself to countering the arguments made by the trio represented above. It went as follows: - They allege that the bill will lead to the breaking up of Hindu society. Implicit in this argument is Hindu society has remained the same from time immemorial. That this is not so is evidenced by the fact that the present legislators are sitting in the House instead of being in 'vanaprastha' (retirement) as ancient Hindu society would have them do. Society changes and that is why it lives on. The principle of any legislation is to see to it that the common good is served. The opponents have failed to demonstrate how it goes against public good. - The opponents allege that there are not enough Hindus in the House to speak for the Hindus. They are obviously referring to the Hindus in the Congress party. A party is known by its principles, and the Congress is progressive in politics and progressive in social reform. Those who are in the vanguard of politics can never be in the background of social reform. They have worked in cooperation with women and they would never deny women their legitimate rights. (He mentioned the National Planning Committee resolutions in support of his claim that Congress supported women's rights reform).

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- This bill is the culmination of many attempts to reform the position of women in Hindu law. Therefore, it is not new and it is not right that consultation has not taken place on this issue. To say that those who advocate reform do not have the interests of the Hindu society at heart is to show little consideration for the views of the reformers. They are not westernised. They have lived all their life in India. - The bill should be supported because women want it. The bill should be supported because it provides a uniform law governing the whole community. It will create a sense of unity among the Hindus. One of the necessary things which go to make a nation is one uniform law. - The fear that by giving women shares in property will lead to fragmentation ignores the fact that when brothers partition property, land is fragmented. Beside, this can be prevented by introducing the necessary pre-emptions. Renuka Ray, too, felt obliged to answer the allegations made by the opponents in her speech. the themes she addressed were as follows: - A narrow suffragist outlook and a theoretical claim of rights is not the motive power behind the Indian women's movement. The Indian women's movement arises from the awakening of women to their responsibilities to the society and state. - It is not true that opinions have not been vetted regarding the bill. The Rau Committee has widely distributed questionnaires and circulated the bill. The women's movement has widely publicised it. The women's organisations since their inception have agitated, worked for, created public opinion in support of and tried to rouse the conscience of legislators to the need for reform. - Women have been concerned about the legal disabilities they suffer which is evidenced by the huge turnouts at the meetings organised to discuss this matter. Just because women are less educated and therefore sometimes inarticulate does not mean that silence can be interpreted as consent to the existing order of things. - The first principle of the bill is to have a uniform law of succession for Hindus. Whatever may have been the reasons for differing laws in ancient India, the fact is that today Hindus in India are culturally, socially and economically alike. They need a common law. - The texts (meaning scriptures) do not disqualify women from owning property. This is a misinterpretation which the bill seeks to correct. This bill, removes sex disqualification but does not bring in sex equality. It is quite a conservative measure. - One of the bogeys raised when discussing women's right to property is that it will result in disintegration of estates. When sons go in for partition the same argument is never forwarded. Therefore, this excuse is not a valid ground for objecting to women having a share in the father's property. - The opponents argue that Hindu law is of divine origin. Do they know that the doctrine of women's limited estate is the creation of the courts of law, of man made 112

courts of law? Hindu law was never static. It changed with changing times. In the Vedic and post-Vedic period women were given a great measure of equality. Later, due to a multitude of causes, women gradually lost these rights. Their rights were further curtailed by the advent of British colonialism. British common law did not allow women to hold property at the time and so the administrators were only too willing to listen to the pandits and priests who gave the most reactionary interpretations in this regard. Some of the finest and most progressive elements of Hindu law was thereby lost. - The opponents have mentioned the unrepresentative character of the Legislature. If they were referring to the absence of the Congress then it needs to be reiterated that those who are now in the vanguard of the struggle for freedom for the nation can never be against the freedom of women. (She mentioned the National Planning Committee and that its recommendations went beyond those made by this conservative bill). Further evidence of Congress support for the women's cause is that the first woman Minister in India and the only woman elected Member of this House came in on the general ticket of the Congress constituency. - Women are grateful to the Rau Committee for this bill even though it is a conservative one. It must be remembered that the Committee has done nothing more than put forward what is there in Hindu law. There is a tendency in the literature on Hindu law reform to treat the debates as representing tradition vs modernity (See for example Derrett 1968; Everett 1981; Parashar 1992; Sarkar 1990). In this framework the conservative Hindus are the traditionalists and the social reformers, the women's movement and the nationalists are the modernists. Followed through, this framework implicitly acknowledges the hierarchy of the modern over tradition and the nation-state as the principal harbinger of modernity. The persistence of gender inequality can then be attributed to the backwardness of the masses, and pernicious social customs of which women, especially, are a victim. In the context of Hindu law reform, and especially, the reform of women's property rights, this framework does not take us very far. It does not take us very far because there is no place in this paradigm for thinking through why neither tradition nor modernity won out in the legal definition of women's right to property. I think that the place to begin looking for answers are in the discourses, about gender relations and their place in the architecture of political identities, which framed the discussion of these rights in 1943, which persisted in the 1949-51 debates (when the House was full of Congress nationalists), were inscribed into the legal definition of women's rights as embodied in the Hindu Succession Act 1956, and are echoed today in state institutions and by state officials.

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What were these discourses about gender relations and how were these constitutive of the architecture of political identities? Alternatively how was the architecture of political identities etched through the essentialisation of gender identities and relations? The place to begin the search is in what the opponents to the Hindu Code (Part I) were saying. First, they were saying that the Bill was unrepresentative. Why was it unrepresentative? Because Hindus, who were the subject of this bill, were not consulted when framing it and there were very few Hindus in the House to consult with in the debate. They were referring to the Congress legislators. Were not the framers of the bill and the proponents themselves Hindus? They were not, not in the sense that the opponents were defining Hindu. Every assertion of identity needs an 'other' as the foil. In this case the reformers, the women's movement and the Rau Committee represent the 'other'. They represent the 'other' because they are westernised, modern, give primacy to the 'individual'. So who are the Hindus? The Hindus in this discourse are those who believe in the family, in a specific form of family. It is a family where the interests of the members are joined. It is a family where women are protected by subsuming their identity in that of the collectivity. In return the male members' obligation is to see that daughters get married and are transferred into another family, that brother's widows are maintained. The seamless fabric of this family is undisturbed by jealousies between brother and sister, by separate material interests of a man and his brother's widow. This family constitutes the Hindu society and gives meaning to the Hindu nation. It is this family, this community, this nation, this identity, that the bill to give women separate property rights seeks to destroy. The essentialised gender relations that constitute the Hindu family and identity also serve to etch the boundaries of an upper-caste, upper-class, propertied, patrilineal male identity. Hindu thus becomes an identity hegemonised by upper-caste, property-owning males. The equation of community and nation with family and gender relations is so compelling and exclusive that in their reply both G.V.Deshmukh and Renuka Ray seemed on the defensive when legitimising the need for Hindu law reform. Deshmukh was at pains to point out that the reformers were not western and had lived all their lives in India. He was at pains also to point out that Hindu law had always changed, that legislation was for public good, and that the Congress members were not Hindus but nationalists, and therefore, social reformers and would support women's rights now as they have done in the past. He even suggested ways out of land fragmentation (which may result from giving women property rights) as a way to appease the opponents.

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Renuka Ray drew legitimacy for Hindu law reform by equating women's concerns with that of society and the state. She had to distance herself and the women's movement from a 'narrow suffragist outlook and a theoretical claim of rights'. Thus women deserved rights when they were seen to be working for a collectivity and not merely for themselves. The collectivity of the society and the state replaced that of the family. She was also at pains to point out that it was not Hindu law, or being Hindu, that was being called to question by the reforms. The reforms merely removed the anomalies of Hindu law and restored its progressive elements, elements which existed in the golden age of Hinduism when women had rights. In substantiating further that the bill does not deviate from the tenets of Hinduism she showed that it was actually quite conservative because although it removed sex disqualification in inheritance and succession, it did not establish sex equality. This should have placated the opponents and defused their arguments. It did not defuse their arguments because their position was built around a coherent account of identity which her legitimisation did not dismantle. The most intelligent challenge to this identity, built around the seamless fabric of the family, was provided in the debate by the Law Member of the House, Sir Sultan Ahmed. Most of the opponents referred to the giving of dowry to daughters as the Hindu father's way of giving her share of inheritance. After hearing them out patiently Sir Sultan Ahmed retorted, 'I know that within the last six months, I had to collect Rs.5,000 in order to get an educated girl married, as the demand of the prospective father-in-law was Rs.4000. The daughter herself does not get the dowry. I know the Hindu customs. I do not come from Timbuctoo. The exact point is that the money does not go to the girl, but to her father-in-law' (LAD Vol.II p.1610 emphasis mine). and 'I say that dowry has been the curse of Hindu society. If dowry means payment to the girl in cash or jewellery, certainly it is most welcome. But this dowry which we have been hearing about for a long time is not really an item which goes to the girl but goes to the prospective father-in-law' (LAD Vol.II p.1610) Sir Sultan Ahmed's interjection at this juncture served to defuse the coherent narrative of identity that the opponents had been building up centred on the Hindu family as a collectivity, bound together by mutual obligation, the women protected by belonging. He was a Muslim but he located himself squarely within the 'insiders' by referring first to his involvement in raising dowry money to get an educated Hindu girl married, and second, by pointing out that he did not come from Timbuctoo but from the society where fathers do not give their daughters a dowry as their inheritance. Dowry, far from being a Hindu father's way of looking after his daughter was a curse of Hindu society. It had nothing to do, he pointed out, with intestate succession.

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As we shall see in the debates 1949-51, Deshmukh and Renuka Ray were wrong in assuming that Congress legislators, because they were nationalists, were also social reformers supportive of women's rights. Much of the opposition in the later debates came from Congressmen and it turned on a narrative of Hindu identity built on the family and its jointness of interests. The opponents were right in assuming that there were Hindus among the nationalists. Hindu Code (Part II): Marriage The motion to refer the Hindu Code (Part II) to the select committee was debated in the central legislature for two days in March 1944. There were two main provisions in this part of the bill. The first was to prohibit polygamy by law, and the second, to remove the religious disabilities of civil marriages celebrated by Hindus. I will examine the debate on prohibiting polygamy and also the general discussion around the need for the bill. In this instance as in the earlier discussion I present the views of the opponents and proponents. The identity of the opponents remains more or less constant in that Bajoria and Bhai Parm Nand are in their ranks. The other legislators who join the opposition are R.R. Gupta, a legislator from UP and Ananga Mohan Dam, legislator from Shillong in Assam. The proponents of the bill I have chosen to represent were two women, Renuka Ray, representing the AIWC, and, Radhabai Subbarayan, Congress legislator, the only woman member of the House elected on a general ticket. Since the Congress was boycotting the councils, she voted against the government in other matters except in the case of this bill.

The themes that the opponents addressed are summarised below. [Source: LAD Vol.II 1944 Bajoria: 819-27, Dam 831-833; LAD Vol.III 1944 Parm Nand: 1895-99, Gupta: 1899-1901] - The Bill has not been circulated properly. The opinion of the people of this country has not been solicited. The only people involved were judges and lawyers who are mostly imbued with western ideas and thoughts. If the Bill is a social reform measure, then all reform must be preceded by some kind of agitation. There was no agitation. If Hindu women are concerned they should have started an agitation. There is no demand for this bill. In place of a popular demand we have a government appointed committee giving the lead in changing the laws. These people have nothing to do with Hindu law. They are motivated by ideas of sex equality. What is this sex equality? As far as the Hindus are concerned, Hindus believe that a woman must be honoured. Not only that they think she is a mother and an object of worship by her husband and children and the other members of the family but she is the other half of the whole. 116

- Polygamy is abhorred in Hindu shastra, monogamy is the general practice. We support monogamy but the abolition of polygamy has gone too far in the bill. It is an English version of monogamy that is brought in by the bill. It should not be so strict. Marriages should not be invalidated as a result of polygamy. The shastras tell us to be monogamous but not in every case. If a man does not have a son, he is allowed to marry again because a son fulfils religious rites on his death. Strict monogamy has led to concubinage in societies where this exists. - Hindu law has been administered in India for thousands of years without a uniform code. If there are changes necessary these can be introduced by special legislation than by comprehensive code. Because of differences in practice among Hindus an ideal code which would be applicable for all denominations of Hindus in all parts of India is difficult to come by. Since polygamy is not prevalent in Hindu society what is the need for such a drastic bill? - Compulsory monogamy is bound to bring a proposal for divorce in Hindu law to complete the picture. We have to see whether in European societies where contractual marriages and dissolution exist, whether family life is happier. If divorce is allowed in Hindu society then it will be the complete abolition of the Hindu law as we know it. This concept of marriage is based on an a western ideal. Hindus respect motherhood and modern Europeans and their ultra-modern Indian followers respect wifehood of women. - Why should a government pledged to religious neutrality interfere with the religion of the Hindus? The same will happen to our Muslim brothers tomorrow if this continues. - If the state thinks that the introduction of monogamy is the way of all-round development of society, the GOI should introduce a law calling upon Muslims to discard the rule of polygamy from their law. Why should the effect of this legislation be confined to Hindus only? India is composed of many communities, they should all follow the rule of monogamy in marriage. - Introducing monogamy for Hindus only will result in their political death. At present seats in the legislature ar based on numerical strength of different communities. If the Hindus are numerically smaller their seats will be less. Hindus will be committing racial suicide by introducing this monogamistic law. - There should only be Hindu members in the Select committee.

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The arguments that the proponents put forward are summarised below. [Source: Renuka Ray, AIWC member (LAD Vol. 11 1944 pgs. 828-30)1 - We need a law making marriage monogamous. This is because although polygamy is rare in India and is not the common fate of Hindu women, nevertheless a legal loophole does permit men to remarry if they want to. Legislators should support this because they would not want their sisters to face the situation that women, whose husbands have remarried, face. Hindu society cannot tolerate this injustice any more. The AIWC has received many reports that polygamy is on the rise. For the good of Hindu society we should support this bill. - The bill makes no provision for the dissolution of marriage. We do not advocate light divorces but we do support that the reasons men were allowed in ancient times to remarry are taken and made available to both men and women as grounds for seeking dissolution of marriage. - We support Hindu law reform because we want Hindu society to be built on solid foundations. We are striving for a democratic society where differences between people will be the stumbling block for the unity we desire. India with the rest of the world is thinking in terms of post-war reconstruction. We hope to be free and have a National government in which a decaying and outworn system of laws will have no place. If we want to preserve the best in Hindu law then we must remove the deadening weight of outworn customs now so that in the force of circumstances all is not swept away. We have always fought for a comprehensive codification which will derive its authority from our ancient laws but will be in conformity with our times.

[Source: Radhabai Subbarayan, legislator, (Vol.III 1944 pg. 1891-95)] - Political freedom is vital for the country but so is social reform to ensure real happiness and peace for our people. We need social reform because the dead weight of custom weighs heavily on women and retards their advancement. It is imperative to change to suit modern conditions. - We need a law prohibiting polygamy and it should be extended to permit divorce. The dissolution of marriage on certain definite conditions and for the residence and maintenance of the divorced partner and for the custody of children should be made part and parcel of this bill. - We need to prohibit polygamy because it causes suffering and is highly detrimental to the peace and happiness of family life. - Even though polygamy is uncommon it should be suppressed like other evils which are also uncommon - e.g. thieving, murder etc. 118

- We need to prohibit polygamy because of the happiness of the family. The strength of a democratic nation is believed to lie in their enlightened and happy homes. How can India be sure of having such homes when the canker of polygamy can mar their happiness and entail much suffering to women and children? How can children develop a strong national character? What kind of influence will a mother have on children when she is deserted and neglected? - Congress is pledged to work for the removal of social evils which do not afford freedom and equality to all classes of people alike. Practical reforms like this bill will make our homes happier places not only for women but also for their children and ultimately for their husbands. The opponents had a difficult time in the debate on this bill. On the one hand, they realised that by agreeing to refer it to the Select Committee they would be giving their tacit consent to the principle of the bill which they did not want to do. On the other hand, there was little scope in the recommendations put forward in the bill which could be condemned as being an affront to Hindu identity. Monogamy was, as the opponents conceded, normal practice among the Hindus and even the shastras spoke highly of monogamy. The bill had not recommended provisions for the dissolution of marriage although this did not prevent the opponents making it an issue around which to build the notion of community. The only bone of contention was that sacramental and civil marriages had more or less been put on par in the bill. Bajoria and Bhai Parm Nand did make this an issue saying that Hindu marriage was sacramental and did not recognise civil marriages. However, only Bajoria made it a central issue in his speech by claiming that if sacramental and civil marriages were put on par then the children of these marriages could intermarry which would then lead to inter-caste marriages which would pollute Hindus. But Bajoria was not supported in this by others because the days of claiming Hindu status via support of untouchability and caste distinctions were clearly numbered. The new Hindu identity that was being claimed could not afford to differentiate between Hindus on these terms as this would be divisive and deprive them of numbers. Caste distinctions and privileges were to be maintained, instead, via the assertion of Hindu identity built on upper-caste, male hegemony. So the opponents had to resort to other strategies to prevent the project of codification. First, they questioned the unrepresentative nature of the bill. Some of the arguments put forward in the earlier debate were rehearsed in this one too. However, the opponents did not mention the absence of Congress members in this debate. My guess is that this is because they had less meat in their arguments on which to construct a 119

Hindu identity which was under threat. The new alibi in this argument about unrepresentativeness was the people. The 'people' had not been consulted. There was no popular demand. This gave them people who had been consulted. The latter were westernised, given to borrowed European concepts of sex equality. Sex equality was not a Hindu concept. Hindus honoured their women as mothers and as half of the whole that is the family. The efforts of the women's organisations to mobilise support for codification was completely invisibilised by this discourse. Second, they raised issues connected with introducing monogamy by law which were seen as threatening to Hindu identity. Monogamy was fine since it was prevalent practice and the shastras enjoined people to monogamy. But strict monogamy via legislation was uncalled for. This would mean that second marriages would be invalidated and this would result in women suffering. In the shastras, they claimed, a second marriage is permissible on certain grounds, as for example, when a man does not have a son by his first marriage. A son was necessary for Hindus to perform specific rituals on the father's death. One opponent even cited literature to prove his point that the introduction of strict monogamy led to the rise of concubinage (as if concubinage and prostitution were uncommon in India and would only arise when monogamy was brought in by law). None of the above arguments helped the opponents to construct a community under threat. So they had to resort to building the 'other' in order to explain the 'self. This they did by first raising the spectre of divorce. If divorce was going to be permitted then it would be the end of Hindu law. As Bhai Parm Nand said, 'If divorce is allowed in Hindu society, then it means the complete abolition of the present Hindu law and the substitution in its place Rau committee law in the country' (LAD Vol.III 1944 pg.1897). And who were these people who would recommend divorce? The committee members, the women's organisations who were elite and given to new fangled ideas and views about women's equality. Were marriages in European contexts where divorce was allowed happier? On the contrary, family life was far less happy in these countries. The concept of marriage that was being put forward under the circumstances was a western ideal. Hindus respected motherhood and modern Europeans and their ultra-modern modern Indian followers respected only the wifehood of women. (Of course all this ignores the fact that under customary laws 80% of Hindus, who were low caste, were permitted divorce). The second 'other' was the Muslims. The government was introducing a bill to prohibit polygamy in Hindu marriage. This meant that the government was of the opinion that the introduction of monogamy was the way to all-round development of society. That being the case the GOI should introduce a law calling on Muslims to discard the rule of 120

polygamy. Why should this legislation affect Hindus only since India was composed of many communities? Beside, the introduction of monogamy for Hindus only would result in their becoming politically less powerful. Seats in the legislature were based on numerical strength of different communities. If the Hindus were numerically smaller their seats would be less. Hindus would be committing racial suicide by introducing this monogamistic law. (The argument refers to the idea that polygamy results in more off-spring and since Muslims were not prohibited polygamy they would outnumber the Hindus. This argument is used to great effect in the 1990s in a political climate that has witnessed the phenomenal rise of political Hinduism). Finally, in order to protect Hindu interests the opponents called for only Hindu members to be nominated to the Select committee. They were rebuffed by Ghulam Bhik Naraing of the Muslim League who argued that Muslim members on committees dealing with matters that affected Hindus had never interfered in what the majority wanted. He also pointed out that Hindus had been present in committees dealing with Muslim personal law. Further, he added, Muslims were necessary on the committees to ensure that Hindus were not up to anything that would prejudice Muslim interests. The two women speakers, who were proponents of the bill, shared some arguments in common. They both recommended that divorce be included as part of the bill. While conceding that polygamy was uncommon they nevertheless considered it necessary to prohibit it by law. They both called for reforms in Hindu law to keep in step with changing conditions and referred to national development, a new and free society based on equality as the lodestars that should guide changes. Renuka Ray's support of divorce provision was hedged, hedged so as not to arouse more allegations that women's organisations were westernised and flippant and wanted to break up the family. So she recommended divorce, but not light divorces, and the grounds were to be based on those that existed in Hindu law. Subbarayan did not need to be apologetic. Her support for Hindu law reform, for prohibiting polygamy, for divorce with adequate maintenance for the divorced partner, were all based on the ideal of a free and new democratic nation that was on the verge of being born. And what was at the heart of such a nation? Enlightened and happy homes. Nobody could deny that first, a new nation built on democratic principles was to be born, and second, that happy and enlightened homes were the cornerstones of a strong and democratic nation. Practical reforms which would make homes happier were not only in women's favour, but in the children's' and husbands' interests. By making women's advancement work in tandem with national interests, Subbarayan was making a point that the opponents could not refute.

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Debates in the legislature - 1949 & '51. As we have seen in Table 3, the Hindu Code was not discussed in the legislatures between 1944 and 1949. In the meantime the Rau Committee had submitted the Hindu Code Bill (revised draft) to the Constituent Assembly (see Table 2). This draft was then further scrutinised by a committee appointed by the Law Department in 1948 which produced a more radical bill with regard to property rights of women and a more compromised one with regard to marriage provisions. This was then presented in the Constituent Assembly in 1949, further amended and again placed in the Provisional Parliament in 1951. (See Table 3 and explanation for details). The end result in 1951 was that the bill had to be abandoned. The political situation obtaining at the time became a key factor in the debates that took place in 1949 and '51. In 1947 India gained independence from Britain. The price that was paid for freedom was the Partition of India and the formation of a separate homeland for the Muslims, Pakistan. The violence that accompanied partition traumatised the nation. But more importantly what lived on was the feeling that somehow the Muslims had betrayed the nation. Congress, which took power from the British, and formed the first provisional government, was always an organisation which had grown accustomed to absorbing and often accommodating a wide range of political views. These ranged from a liberal centre which wished to establish a state with a constitution which was secular and parliamentary in character, to the left of centre which hoped for the formation of a socialist state in which collectivist principles governed social and economic organisation, to the right of centre which was working to realise a state which embodied Hindu traditions and values (Graham 1990 p.5). Each of these groups exerted considerable influence in the Congress. Outside the Congress were, of course, others who favoured a Hindu oriented state, such as the Hindu Mahasabha and the RSS. Thus within and outside the Congress there was a very strong lobby of Hindu nationalists although among themselves there were differences of outlook. (These differences are best exemplified in the difference between Bajoria who was a Hindu purist and wanted to retain untouchability and caste differences and Bhai Parm Nand who was a Hindu nationalist taking his cue from revivalism). These different groups had differing approaches to Pakistan and to Indian Muslims who comprised the largest single minority group. The liberals and left of centre in 1947-48 had accepted Pakistan as a fact and wanted a period of reconciliation in which a secular state could be built guaranteeing protection and a place for the minorities. The Hindu nationalists, on the other hand, questioned the sincerity of Pakistan and challenged Indian Muslim to prove their loyalty to the country. According to Graham, Nehru the first Prime Minister represented the liberal centre which had secularist 122

aspirations for the future state and society. Rather than challenge secularist ideas directly the Hindu nationalists within and without the Congress tried to make a positive case that the policies of the Indian government should reflect to a large degree the sentiments of the country's Hindu majority (Graham 1990 p.9-10). Throughout 1947 the Hindu nationalists in the Congress made many conciliatory gestures towards the Hindu Mahasabha and RSS and believed that once it had been accepted that Indian government policies should reflect the sentiments of the Hindu majority, these organisations could work together. At this juncture the unthinkable happened. Gandhi was assassinated on January 30, 1948. His assassin was found to have connections with an extreme group of the Hindu Mahasabha and the RSS. The RSS was banned and the top leaders of both the RSS and Mahasabha were jailed. These groups stood discredited in the eyes of the public. However, what was not discredited for long was the aspirations of the Hindu nationalists who worked hard to ensure that policies would reflect Hindu values and give special treatment to the Hindus. The first two public policy making exercises in which the tension was played out were in the Constitution bill and the Hindu Code bill. Whereas in the Constitution bill certain basic secularist objectives were ensured paving the way for future reform, many compromises nevertheless had to made which secured the concept of a homogeneous, Hindu-oriented national community. Fierce controversies ranged over the Hindu Code Bill in 1949 and '51 and as I have mentioned above, it had to be abandoned at the end of this period. The reasons are not difficult to understand. Reform of Hindu law represented the quintessential discourse about identity. I move on to the debates inside and outside the legislature in 1949 and '51. I will deal with the two debates together since the arguments forwarded were very similar. Conflict over the HCB existed in the heart of the Congress organisation and especially within the top ranks of the Congress leadership after independence. Whereas Nehru was a strong proponent of the HCB, all the other top leaders were against the HCB. They were such important and influential persons as Dr. Rajendra Prasad (Congress President 1947-48; President of India 1950-61), Vallabhbhai Patel (Home Minister until his death in 1950), B.Pattabhi Sitaramyya (Congress President 1948-50) and Puroshottamdas Tandon (Congress President in 1950). The majority of the Congress Parliamentary party was against the HCB. The proponents were small in number compared to the opponents. They were the Prime Minister, Nehru, the Law Minister Ambedkar, the women's movement leaders and women leaders of the Congress (11 in total), and liberal legislators within the 123

Congress. Ambedkar who, as I have mentioned was a controversial figure in Indian politics, was responsible for piloting the Bill. Most of the arguments of the opponents rehearsed the ones made in the 1943-44 debates. First, was the question of representativeness of the bill. There was no public demand for the bill. The bill had been framed by reformers who were un-Indian in their orientation and, therefore, western and elite. Thakur Das Bhargava (Congress Punjab) declared, 'Those who want to deal with Hindu law and the place of women in Hindu society should look at the questions not through western glasses but through the glasses of our own civilisation' (mentioned in Everett 1981 p.178). The women's organisations who supported the reforms were once again singled out for attack. They were unrepresentative of the majority of Hindu women. L.K.Maitra (Congress, West Bengal) contrasted his 'humble wife married according to shastric rites..., nurtured in the ideals of our Hindu homes' with women supporters of the HCB whom he characterised as being 'the lavendar lipstick and vanity bag variety' (mentioned in Everett 1981 p.176). Second, was the contest over defining who was an Indian. This contest too traversed some of the same grounds that defining Hindu had traversed in the 1943-44. The narrative in this instance, as in the former, that constructed the authentic identity of Indian and Hindu was the jointness of the family and the essentialised gender relations obtaining therein. The Hindu joint family was claimed as the proper unit of society and it provided for women's needs in a manner superior to the individualistic basis of Western society. Giving women property rights was tantamount to separating out women as individuals which was all very well in an individualistic society but was anathema in the Hindu concept of family. A corollary of the collectivity of interests that the joint family represented, was the differing but complementary roles that men and women fulfilled in such a structure. Differing roles also meant having differing obligations and, therefore, it was but natural that men and women should have different property rights. Giving women the same property rights would mean that they would be entitled to shares both in the father's and husband's house. Congress President Pattabhai Sitaramyya opposed the HCB on the ground that it would replace the socialistic structure of the joint family with an alien individualistic civilisation (mentioned in Everett 1981 p.178). The proponents too went over much of the same ground that Renuka Ray, Deshmukh and Subbarayan had crossed in their defense of Hindu law reform and their role in 1943-44. Many supporters - including Renuka Ray, Durgabai and Sucheta Kripalaniargued that political equality was meaningless without economic and social equality provided by female inheritance (Everett 1981 p.178). They pointed out that the reforms had their basis in the equal rights clause to which the majority of legislators had agreed 124

in the Constituent Assembly. In the debates in 1951, when the Constitution of India had been passed, reference to the Fundamental Rights (which enshrined equality before the law as a fundamental principle) was cited more often. Ambedkar, for example, denounced Hindu sacramental marriage as not supporting the ideals of the constitution. In defending the women's movement and its espousal of Hindu law reform, proponents tried to point out first, that it was not unrepresentative of the opinions that many women held, and second, that the women's movement had been an integral part of the nationalist movement and not a narrow suffragist movement. The sub-text in this assertion was, as in the previous debates, that women who had struggled for the collectivity of the nation and the new state were working for others and not for selfish, individualistic goals. They were the equals of men through participation in the national struggle and Hindu law reform was a way of ensuring that equality. As in the previous debates many proponents tried to make out that the reforms were in keeping with the spirit of ancient traditions and were necessary to root out the corruptions that had crept in over the centuries. The women's movement was unable in this instance to divest itself of the image of being unrepresentative. Everett arrives at the conclusion that this was because the women's movement leaders were elite, had little contact with the masses, and their methods of mobilisation relied on elite participation (Everett 1981). All these shortcomings have to be acknowledged but this does not tell us the whole story. Everett's explanation is too reductionist. The contest in 1949 and '51 in the legislature, as it had been in the 1943-44, was over identity. Who was the authentic Hindu and, therefore, the authentic Indian. Implicated in the construction of this identity was the hegemony of the upper-caste male. Thus the assertion of this identity had to take place by the 'othering' of identities which sought to challenge this hegemony. The women's movement provided the perfect foil in this instance. The women's movement challenge relied on the equation of its interests with that of the nationalist struggle to provide it the authentic identity that would legitimise the struggle for equal rights. Working in tandem with liberal nationalist concerns, however, has its own pitfalls as Muthulakshmi Reddy had pointed out in the 1930s. It subsumes the 'woman's question' in its own project. Thus when identities are at stake, once the immediate struggle for national liberation is over, it is those identities which ensure male privilege that will be protected. The Hindu identity which secured this privilege was thus pre-eminent. Bhai Parm Nand and co. were vindicated in this instance because they had rightly assumed that there were Hindus among the nationalists. Renuka Ray, Subbarayan and Deshmukh were betrayed because they had invested the nationalists with more powers than they possessed, the power to rescind Hindu identity and with it upper-caste male privilege.

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Everett shows that in both 1949 and 1951 opponents used every single parliamentary manoeuvre to oppose the HCB. Although they were unable to get the HCB rejected on procedural grounds, they were able to delay the Bill. As I have shown, the opposition in 1949 forced Ambedkar to seek a compromise on many of the tenets of the bill, but especially those which had to do with property rights. As a result the 1951 version of the bill retreated from giving women equal property rights. Nehru, as I have said before, wanted the Marriage bill to be introduced first because it would cause less opposition. However, by 1951 Nehru showed several signs of wavering in his commitment to the HCB. As for example, he allowed Congress members a free vote on the bill. Worn down by the persistent opposition, Nehru wavered even further. In September 1951 President Rajendra Prasad threatened a constitutional crisis by writing to Nehru that he would refuse to sign the HCB if it was passed. Other members of the Cabinet too suggested to Nehru that they were against the passage of the bill. Broken down by this resistance Nehru allowed he bill to die during that session.

Debates in the legislature 1952 onwards. The first Indian election based on universal suffrage and joint electorates was held in 1952. The Congress won this election with an overwhelming majority. The Hindu Mahasabha and the newly formed Hindu rightist party, the Jana Sangh, and other smaller Hindu parties were more or less routed in the elections. The first Parliament reintroduced the HCB except that this time it was placed in Parliament as separate bills. By 1956 all these bills, which were part of the HCB, were passed without too much opposition. (See Table 3) A number of political realignments had taken place within and outside the Congress which are important because to a great extent these contributed to the passage of the bills. In 1950 Nehru had survived an important leadership challenge. This had to do with whether the Congress President or the head of the government would have the last say in matters of policy. The incumbent for the post of President at the time was Purushottamdas Tandon. He was a veteran Congressman from UP and a strong Hindu nationalist whose politics were often indistinguishable from that of the Mahasabhites. Nehru opposed his candidature on the grounds that his politics were openly communal and this would jeopardise Nehru's position. Tandon's candidature was supported by Patel (the Home Minister and known for his Hindu nationalist views). Tandon did win by a slim margin but Nehru refused to work with him. Patel died in 1950 and left the Hindu wing in the Congress leaderless. Throughout 1951 Nehru and his allies regained the initiative and Tandon finally resigned from the Presidentship and was replaced by Nehru himself. The election results further strengthened the position of the liberals and 126

secularists within the Congress. Although this did not mean the end of the careers of Hindu nationalists in the Congress, the impact of their political views were to some extent attenuated. The centre of gravity within the Congress thus shifted towards the liberal and secular aspects of its character (Graham 1990 p.4-1). This shift meant a more liberal dispensation for women and the minorities. Throughout the 1950s, for example, Nehru particularly but also the Congress, made efforts to ensure the security, representativeness in politics, and recruitment in jobs of Indian Muslims (Gopal 1988 p.2463-66; Hasan 1988 p.2467-78). In fact the Congress has since been charged by the Hindu parties with appeasing the minorities. For women, Hindu women, this meant the passage of bills constituting the HCB, which in the ultimate instance did not ensure equality in family matters but gave them some rights. The women's movement became less active in the last phase of the passage of the HCB. Everett reports that there were immense demands from the party and government on the women leaders in the Congress who had led the Civil Disobedience movement in the 1930s and '40s. This prevented them from taking a leading role in the HCB. The women's organisations were, on the other hand, going through a period of selfexamination debating their role in the post-Independence era and whether they should retain separate women's organisations. Clearly then the initiative for the passage of the bills rested with the new government. In fact this was the beginning of a new phase in state-society relationship by which the state became the main architect of social reform. Women have claimed this heritage ever since. In reviewing the debates I will only point to the salient features in the marriage and succession debates. I will give primacy to the views of the proponents which in this instance were within the government. Opposition, though it existed, was defused by the new spirit of conciliation in nation-building. The passage of the bills was led by the new Law Minister, H.V.Pataskar who in 1951 had opposed the HCB. On a more general note the government spokesperson introduced the bills claiming that the elections had provided the mandate from the people for changes in Hindu law. Further, the provisions in the bills were drawn up, the spokesperson claimed, to bring these closer to the tenets of the Constitution and its principles of equality. Throughout the debates eclectic use was made of Hindu tradition. While on some occasions Hindu shastras were cited, on others Pataskar claimed that there was little need to rely on the shastras in the context of a modern India. Parashar reports that in the debate on the

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Hindu Marriage bill, when opponents claimed that certain tenets were not in keeping with the shastras, Pataskar retaliated by saying 'why is it necessary to go to the length of finding out what was said in certain smritis two thousand years ago? The ancient law, as it prevailed several centuries back, is not in existence and in no case can it be resurrected' (cited in Parashar 1992 p.98). On the whole the government proponents tried to dissociate the religious connection from Hindu law. As for example, in defining to whom these laws would be applicable the word Hindu had to be defined. The Law Minister claimed that the word Hindu did not connote any particular religion or any form of worship or any particular community. Therefore it would be a mistake to equate Hinduism with religion, instead it should be called a culture - a synthesis of the varied beliefs, customs and practices of different people (mentioned in Parashar 1992 p.104).[This argument is a double-edged one. In its more progressive sense it denotes the plurality of peoples in India. In its worst sense, and one which is currently hegemonic, it means defining national culture as being Hindu and annihilating minority identities.] Two other important reasons were cited over and over again by government spokespersons for supporting the bills. First, that important as the specific provisions of the bills were, their real significance lay in the fact that they represented an essential aspect of national development, namely social progress. In fact, Nehru opened the debate on the Hindu Marriage

by citirig national development based on social

progress as the main reason for the bill (cited in Parashar 1992 p.87). He explained that the Constitution was aimed at achieving social and economic justice and the bill was designed to give social equality to Hindu women in one area, namely, marriage. All aspects of women's lives could not be reformed at the same time and the bill on marriage provided a beginning. Similarly the Hindu Succession bill was also projected as a measure concerned with questions of social emancipation and progress. It was argued by one of the proponents that a society cannot progress if half of it was reduced to the position of bond-slaves and although reform of succession law would not achieve total economic emancipation it was of substantial consequence (cited in Parashar 1992 p.99). The second reason often cited was the need to achieve uniformity in order to unify the nation. Pataskar explained that Hindu law reform was brought up with a specific ideology in mind which was to bring together what were termed as Hindus. The colonial government, he claimed, had allowed diverse practices to reign because it was against their interest to consolidate the society. However, a national government could not afford to do this and it would be tantamount to the neglect of its legislative responsibilities if it did not ensure uniformity through law (cited in Parashar 1992 p.109).

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The Hindu Marriage bill proposed to make monogamy the rule for marriages, remove restrictions on inter-caste marriages, and introduce the right of divorce. The support for monogamy was argued from the point of view that it was normal practice among Hindus and by making it law the government was only doing justice to the mothers of the race. The right of divorce was introduced on the grounds that it was good for the country generally and for women because 'men in such matters have been enjoying disproportionate rights and privileges as compared with women' (Pataskar cited in Parashar 1992 p.117). What were the real gains for women in the Hindu Marriage bill? The right to a monogamous union did give women some respite. The right to divorce on the other hand was not such a significant step as was being made out throughout the debates on marriage. In the bill after 1952, customary marriage and divorce were retained as part of the bill. This meant that 80 per cent of women already had the right of divorce. The present bill was merely extending this right to the upper-caste women who comprised 15-20 per cent of the population. The bill included a clause for maintenance in the event of divorce. Basing their views on the concept of sex-equality which meant 'sameness', the framers made this available to either partner, man and woman. If we consider that at this stage women did not have the right of absolute ownership of property, did not have equal shares with men in inherited property, were clearly not on the same economic terms as men, this clause was clearly not in keeping with ground realities. Finally, as I have pointed out before, clauses which were detrimental to women's interests, such as the 'restitution of conjugal life', were retained as part of the bill to safeguard marriage. What were the benefits for women in the Hindu Succession Bill? The issues here were three-fold. First, the quantum of shares to inherited property of men and women; second, the granting of absolute ownership of property to women; and third, the retention of Mitakshara coparceny. As we have seen the Ambedkar Committee first gave women and men the same shares in inherited property. However, when the bill was reintroduced in Parliament after 1952, the government gave the House the option to decide on the quantum of shares. As it turned out, however, women and men did get equal shares because the Rajya Sabha (upper House) insisted that they should. But there was a compromise involved and it had to do with the debates about property that we have seen were mostly about identity. The compromise was that Mitakshara coparcenaries were retained in the interests of not dismantling the Hindu joint family. This meant that the sons at birth took an immediate interest in the joint family property whereas the daughters could only inherit that part of the property that constituted the share of the father once he died. Other compromises were also made to keep women's hold over property at bay. First, the unlimited right to make a will was recognised and 129

also proposed as a remedy to keep property within the family by making wills in favour of sons. Second, the right of pre-emption was introduced whereby members of the family had the first option to buy out property that members were selling. This provision was also explained as a way of retaining property in the family. Finally, in an effort to appease the opponents and ensure them that the jointness of the family and the maleness of property were being safeguarded, one other clause was introduced. This was that if the property to be divided contained the dwelling house of the family, female heirs could not ask for partition. They would get an equal share if the males decided to partition but not oth6-wise. However, women did get the right to hold property as absolute owners. Women's rights in the Hindu Succession Act are at best, compromised ones.

3.5. Implications for women. As will have become evident, Hindu law reform in its final phase was argued on the basis that it was necessary to achieve what the new nation-state stood for, namely, social progress. The references to the Constitution, the eclectic use of references to the shastras and the ancient tradition, are all part of the same narrative of legitimation. This, combined with the fact that the proponents tried to dissociate the new law from religion, and that the state was actually able to carry through the legislations, has meant that the HCB acquired a very special meaning in the life of the nation. First, it became representative of state capacities to restructure social relations. Second, it has come to be regarded as secular law, secular as in modern and, therefore, progressive and also separated from religion. Both of these have had implications for women. The implications are that the state became the main interlocutor in women's demands for change. This meant that women's fate was tied to the state's projects of progress and modernisation reducing thereby the autonomy of the woman's question. The pervasive notion that the HCB is a secular code has been strengthened in otherness to Muslim Personal law. In the present milieu in which the antagonism between the political identities, Hindu and Muslim, has gained ground, the HCB has been reified as the secular code which the minorities should emulate. The implication for Hindu women is clear. The asymmetry between men and women's rights in the family, inscribed in the law, has been obscured as a result. The debate to give women property rights in the new code was a debate about identity. The Hindu identity was constructed through these debates via the assertion of the jointness of the family, the corporate nature of its interests, and the essentialised gender relations which characterised this unity of the family. The essentialised gender relations 130

that constituted the Hindu family and identity also served to etch the boundaries of an upper-caste, upper-class, propertied, patrilineal male identity. Hindu thus became an identity hegemonised by upper-caste, property-owning males. This identity was not dismantled in the debates after 1952. In fact, as we have seen, this identity was inscribed in the text of the laws. The power of this discourse about identity lies precisely in the fact that it operates to fix entitlements when women appeal to the state to support their rights to marital and ancestral property.

SECTION II CONTEMPORARY ETHNOGRAPHY

I. i. What this section is about. In the previous section I presented the point of formulation of the Personal laws, Hindu and Muslim, laws which are applicable in the present. The formulation of the laws occurred in the context of momentous social and political movements in which identities and their relationship to the state were shaped. I have traced the growth of Hindu-Muslim rivalry for power in government and for government itself occurring in the context of the colonial constitutional reforms, which privileged separate and bounded identities of Hindu and Muslim as the bases for representation in the electoral system, and, also in the context of the national movement which sought to overthrow the colonial regime. I have indicated that the colonial predisposition for organising Indian society in terms of its innumerable, parochial communities was taken on by the indigenous elite in their struggles for power. India's problem of 'communities' based on religious identity and how these were to find place in a new nation and state was not settled once and for all in the struggle to give birth to a new nation-state. Occurring as the reforms did in the context described above, the debates over Muslim and Hindu personal law were framed by the discourses of identities taking place at the time. I have shown that the debate on Muslim personal law was a debate which primarily focused on fashioning the 'community'. Since women's rights were centrally implicated in drawing the contours of the community, the significance for women was that discussions of their rights were inextricably linked to the fate of their community. The debate over Hindu law reform, and especially property rights, etched the boundaries of an upper caste, property-owning, male identity which became representative of the Hindu identity. Hindu law reform was seen as representing the Indian state's first attempts at modernising the nation. As a result the Hindu Code Bill, which institutionalised an 'authentic tradition' which privileged property-owning male identity, came to represent Indianness. The unitary structure that the new nation-state adopted had implications for the way India's politicised religious communities were henceforward to be organised. Were they to be equal in terms of power in the state and how would this be ensured? The unitary structure of the state was built on the concept of the homogeneous unity of the nation. Homogeneity, the assertion that we are one 'jati', has many problems as I have discussed in Chapter I. In this section I explore the point of adjudication of family property via the personal laws. I investigate this through the experiences of women who appeal to the state to support their statutory laws to property. As I have mentioned in Chapter I, women's 132

entitlement to family property and maintenance arises in particular social relations, as a wife in the context of the conjugal relationship, as a daughter/sister in the context of ancestral property, and as a widow in the context of her deceased husband's property. I will examine women's experience in appealing for maintenance and property rights in the different contexts set by the social relation that women find themselves in. Chapter IV explores the experiences of Hindu and Muslim women in trying to obtain maintenance and property rights from their husbands in the courts. I argue that despite differing laws relating to marriage and divorce, Hindu and Muslim women share a common fate in the way they are produced as subjects by the state institutions. Chapter V details the changing nature of Muslim women's entitlements from their husbands in a wider situation in which Muslim identity and its relationship to the state and nation has become a bone of contention. Chapter VI presents the experiences of Hindu and Muslim women appealing for ancestral property and Chapter VII, the experience of Hindu and Muslim widows to secure their rights to their deceased husband's property.

SECTION II CHAPTER 4 MARRIAGE, PROPERTY AND MAINTENANCE Hindu wives and Muslim wives.

4. 1. Introduction. It is generally accepted that the Hindu Marriage Act, 1955 gave Hindu women equal rights in the matter of marriage and divorce. This chapter argues that the outlawing of polygamy and the creation of provision for the dissolution of marriages, which were the main provisions brought in by the Hindu Marriage Act (HMA henceforward), do not in themselves constitute measures to promote parity in gender relations in the critical kinship status concerned with the conjugal family and the relationship of marriage. Rather it is by examining the legal construction of the economic elements in the husband-wife relation that the asymmetrical relations between men and women in marriage can be discerned. Further, the mode in which the economic obligations of extant marriages are constructed by adjudication provides the key to an understanding of the nature of asymmetrical relations in marriage. The ideology and legal actuality of 133

wifely dependence informs legal treatments of husband/wife statuses. Consequently men and women are constrained to act differently as subjects. This understanding serves as a basis for another dimension of my argument which relates to the status of Muslim wives in India. It is argued that since polygamy is not disallowed by the Muslim personal laws in India, Muslim wives are more disadvantaged than Hindu wives. My contention is that the construction of the financial dependence of one partner on the other, which lies at the core of legal treatments of husband/wife statuses, disadvantages both Muslim and Hindu women equally. This chapter will be in two parts. In the first part I will discuss the general principles of the laws that govern maintenance and property division in the event of divorce or desertion in each of the Personal laws, Hindu and Muslim. In the second part, I will present case studies of Hindu and Muslim women litigants who have approached the courts in support of their rights to maintenance and property from their husbands. The discussion of the court cases will be embedded in the life histories of litigants to understand more fully the ways in which legal treatments of husband/wife statuses is informed by discourses of wifely dependence. I will argue that despite differing laws relating to marriage and divorce, Hindu and Muslim women are equally disadvantaged in gender relations in the critical kinship status concerned with the conjugal family and the relationship of marriage because the construction of the dependence of one partner on the other serves as the basis of legal treatments of husband/wife statuses. Almost everyone in India gets married at least once. Marriage constitutes a 'natural' state for women and a single or divorced woman is considered an anomaly or a failure. Marriage is seen to provide women with protection and is an economic necessity for most women since most are unlikely to be able to earn enough to keep themselves at the same standard of living as they enjoy as the wife of a man from the same class. Almost all girls in West Bengal are brought up to consider marriage as their first career. Ideologies of domesticity as these have changed and developed historically provide a powerful model for 'respectable behaviour', a careful partitioning of the public and domestic, which has discouraged families from contemplating employment for their daughters unless in situations of extreme necessity. Furthermore, the theme of purity and chastity for women is constantly emphasized and treated as coterminous with their duties to the home and family. The implication for women is that those who entered the public domain were considered 'impure' in the double sense of sexually impure and not fulfilling their rightful destiny within the home (Standing 1991: 68-69). These ideological imperatives, and as well, the fact that most women are unlikely to be able to compete with men on the same terms in the labour market which positions them in low-paid and ill-paying jobs, have made marriage the first career choice for most women. The protection provided by marriage is, however, illusory. Women are most 134

likely to be assaulted in their homes by their husbands or husband's kin; in the event of marital breakdown relatively few ex-spouses pay even the low maintenance awarded.(Gandhi and Shah 1991; reports on violence against women in Manushi , a feminist journal). Most marriages, Hindu and Muslim, take place in the observance of religious and social rites particular to the communities. They are rarely registered with the state authorities although there is provision for this. However, it is at the point of separation, divorce or desertion when either party appeals for maintenance that the validity of a marriage comes under state scrutiny. State definitions of what constitutes a valid marriage is available in the law. Because of this it is less immediately apparent how the state via the legal system regulates marriage and husband wife statuses therein. The fact that there is nothing written down about the rights and duties of husbands and wives in the law (as there is, for example, in the Civil Code of Switzerland) does not mean that there is no judicial consensus about the general nature of the marital relationship. The judicial perspective on what the marriage relationship is and what each gender's duties, obligations and entitlements are has to be worked out through a scrutiny of cases. By examining the case histories of women who have brought maintenance and property litigation against husbands I aim to illustrate the link between states and gender: first, at the level of state officials (judges/magistrate, police) and, second, at the level of the collectivity of norms, laws and ideologies which shape discourses on gender and fix the meaning of husband/wife statuses and entitlements by gender. Judicial consensus about the general nature of a marital relationship operate to define the rights and obligations of husbands and wives. Implicated in this process are conceptions of what sort of persons women and men should be and what they are entitled to by their gendered positioning.

4.2. Marriage, property and maintenance: What the statutes say. Since women appeal in court for alimony and/or maintenance rights at the point of divorce or desertion, some discussion about the provisions available to them is necessary. Divorce under the Hindu Marriage Act is not a no-fault divorce. There are seven grounds on which either partner can institute a case for divorce (See Appendix

1). An amendment of the Hindu Marriage Act in 1976 brought in the facility for divorce by mutual consent whereby both partners agree to a divorce without having to cite the grounds. They must have lived separately for a year at the time of application. The facility for divorce is extended to a Muslim wife petitioner on seven grounds and 135

is also not a no-fault divorce (See Appendix). Muslim husbands, however, can divorce their wives by communicating 'talak' either verbally in the presence of witnesses or by registering a 'talaknamma' (divorce contract). The Hindu Marriage Act provides for both pende lite alimony (temporary alimony) pending the disposal of the divorce suit and permanent alimony at the time of divorce. Either partner, man or woman, can ask for temporary or permanent alimony from the other. The main ground on which it will be considered is whether the person is able to prove that he/she is dependant on the other. Women far outnumber men as applicants for alimony. Marital property is not treated as a community of property in the Hindu Marriage Act, to be divided equally between partners at the time of divorce. Therefore, it is up to the presiding officer in each case to decide what will be awarded in terms of alimony. Furthermore, section 27 of the Hindu Marriage Act also stipulates that the court can decide on what to do with property presented at or about the time of marriage which may belong jointly to both husband and the wife. This presumably allows for women to ask for properties to be returned that were gifted to them at the time of marriage by their parents and relatives. Muslim women can ask for the 'mehr' fixed at the time of marriage and all gifts and properties given to her at the time of marriage. Economic arrangements of extant marriages can also be fixed legally by special provisions in the Criminal Procedure Code. Section 125 of the Criminal Procedure Code (Cr.PC henceforward) was created in 1976 for the specific purpose of providing maintenance to wives, dependant children and parents. It replaced an older ruling, Section 488 of the Cr.PC of 1898, which also made a provision for the maintenance of wives and children. The ostensible aim of this Section 488 was to prevent destitution in the event of a man not supporting his wife and children. In 1973 this section of the Cr.PC was revised and the new section 125 to 128 were brought in. Section 125 to 128 lay out the order for maintenance of wives, children and parents. The main points of departure from the earlier section 488 covering maintenance are both in terms of content and procedure. In terms of content the law on maintenance now covers the right of elderly parents who are unable to support themselves to maintenance from their sons who have sufficient means. In this new law a 'wife' who can demand maintenance is not only one whose marriage subsists hut who has been divorced. In terms of changes of procedure it simplifies the application of maintenance by wives and allows them to apply at a court near which they are residing. The court has the authority to grant up to a maximum of Rs.500 per month to the applicant. It can also attach the property of the man who defaults on payment and in the final instance to imprison him if the maintenance dues are not realised from the attachment and sale of his property.

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At the time when Section 125 was being debated in Parliament, Muslim legislators asked for Muslims to be exempted from this provision. A Muslim marriage terminates at the point of divorce, it was argued, and thus the provision for maintaining a divorced wife violated Muslim Personal Law. The government satisfied the objections of the Muslim legislators by saying that if the post-divorce entitlements under the personal law had been realized by the divorced wife, this would be taken into account when settling cases under Section 125. This meant that both Muslim personal law and the common secular identity of the female subject were given recognition in law. (In 1973 the matter ended here but in 1985 this particular point aroused a nation-wide controversy. Why this was so and what it implied for women is the subject matter of the next chapter). A wife appealing under section 125 has to prove that her marriage was valid, that she does not possess sufficient means to support herself, that her husband does possess the means, that she has been subjected to cruelty and neglect which make it impossible for her to live with her husband, and that she has not been living in adultery. The decree of maintenance obtained by the wife is terminated if she remarries or if she is found to be living in adultery. According to commentators the reason for providing this section for maintenance under the Cr.PC was deemed necessary because the procedures under the Personal Laws for obtaining maintenance were so dilatory, time-consuming and inconsequential. The amount granted under this section, as I have mentioned before, is upto Rs.500 per month. Although the Section was designed to prevent destitution among wives, dependant children and parents caused by the withdrawal of support from the male breadwinner, it no longer serves this purpose because of the paucity of the amounts granted. As I have mentioned before, both Hindu and Muslim wives could avail of the sections 125-28 Cr.PC up until 1987. Since then and with the passing the new legislation, Muslim Women's (Protection of Rights on Divorce) Bill, Muslim women have now to appeal under section 3 of this new Bill. In 1977, women activists in Delhi reported the growing incidence of deaths of young brides allegedly in household accidents. Investigating some of these deaths, which looked like suicides and accidents, women's groups found that these were in fact murders. In 1978 Mahila Dakhshata Samiti, a Delhi-based women's organisation, published a report of their investigation of these incidents showing that the women's deaths were not accidents but that they had been murdered. This received widespread publicity. Women's organisations in all the major cities and towns in India began their own investigations. The nature and content of the investigations, the articulation of the findings in agitational strategies, the manner in which it was represented in the media all seemed to point to the fact that these women were being done to death because of 137

the demands by the husband's family for dowry. This crime was then named. 'Dowry murder' (sometimes referred also as 'bride burning') as it came to be known became a synonym for Indian, Hindu women and a unique form of violence that only they suffered. (Significantly Muslim women did not seem to face this problem). Official response to the naming of this crime was swift and immediate. The antiquated and useless Dowry Prohibition Act, 1961 came up for review. The Act was amended first in 1984 and then further amended in 1986. The amendments of 1986 made punishments for the offence of taking or demanding dowry more stringent and the burden of proving the offence was shifted to the accused. Procedures for filing a complaint were simplified. The Act also amended the Indian Penal Code and created new categories of offences to deal with cruelty to wives, dowry harassment and dowry deaths. Since the mid 1980s, therefore, women who have had problems in their marriage and have had to leave their marital homes because of cruelty, have been appealing under the new Criminal provisions instituted to protect women from dowry harassment and cruelty. These provisions also contain provisions to recover the property and valuables belonging to the wife that were left in the marital home when she was forced to leave. The new provisions in the Criminal Code, therefore, have opened up areas of contestation for marital property.

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4. 3. Profile of litigation In the previous section I have outlined the main legal provisions available to women when they appeal as wives for marital property and maintenance. This section investigates the experience of Hindu and Muslim wives who appeal to the courts for maintenance and property from their husbands in the event of divorce or desertion. The following table presents in summary form a profile of the litigation that the respondents are involved in and their outcomes.

Table 5A: Profile of marital litigation - Part 1 Total respon -dents

Divorced at time of study

Hindu women 8

4

Muslim Women 8

7



Permanent alimony



1



none



Sec. 125 decree awarded

Receiving payment at present

4

2

8

2

Table 5B: Profile of Marital Litigation - Part 2 Applied under new

Decree

Decree

Cr.PC provisions

Awarded Refused

for return of

Secured return of some valuables after court decree.

valuables. Hindu women 4

3

1

2

None

None

None

Muslim women None

139

As can be seen from the above, 16 women were involved in maintenance and property cases relating to marriage. Of these 16, an equal number were Hindu and Muslim women. Eleven women out of the sixteen were legally divorced at the time of the study and five were not yet divorced but had sued either for maintenance or return of valuables and property from their husbands, who had either deserted them or evicted them from the marital home. Of the 8 Hindu women involved in maintenance and property suits relating to marriage, 4 have been divorced. Only one received a permanent alimony settlement and is receiving alimony payments. The other three were divorced without permanent alimony settlements, the reasons for which are discussed subsequently. 12 women, four Hindu and eight Muslim, have hitherto been awarded temporary and permanent decrees in their favour under section 125 Cr.Pc. The amounts range from Rs.150 per month to Rs.500. Of these ten women, only 2 women, are receiving the maintenance payments on a regular basis (both Hindu) and another two have received some payment which was discontinued (both Muslim). Two Muslim women have received part payment of the amounts fixed according to section 3 of the Muslim Women's (Protection on Divorce) Bill although seven women are involved in cases under this section. Five Hindu women appealed for return of property, four of whom were granted decrees and one was refused a decree in her favour. Of these five women one appealed under Section 27 of the HMA and the rest under the Cr.Pc. Although four women received favourable decrees only two were able to recover some property and only one of them recovered her jewellery which constitutes the most valuable part of a woman's property. Fifteen of the sixteen women were rendered homeless by divorce/desertion and had to depend on natal families for shelter. Nine of the sixteen women have children. One woman had to give up her child when she left the marital home and none of the others receive any support for their children from the husband. Of the eleven women who were divorced, only three were able to remarry (all three were Muslim women) and they rescinded their right to maintenance as a result. The profile of litigation indicates the different provisions that Hindu and Muslim women resort to in order to secure some form of maintenance and property from their husbands. Since the HMA has a provision for permanent alimony at the time of divorce, Hindu women can obtain this by filing for alimony as part of the divorce suit. However, only one of the four Hindu respondents who were divorced appealed for permanent alimony under HMA. Muslim women do not have this provision although they do have a arrangement for securing the payment of 'mehr' (an amount settled at the 140

time of marriage for divorce payment). As can be seen from the above Table, none of the Muslim women applied under this provision. The reason is that the procedures for obtaining 'mehr' under the personal law are so dilatory and complex that Muslim women prefer to use the provisions under Section 125 which gives them speedy relief. This facility has now been withdrawn for Muslim women and most of my Muslim respondents were caught between litigation under Section 125 and the Section 3 of the new Bill which is specifically applicable to them. As the Table also indicates, only Hindu women applied under the new provisions brought in by the changes to the Cr.PC to secure return of their valuables and property left behind in the marital home. This is because these provisions are seen as relating specifically to dowry, which includes moveable property and jewellery, and generally only Hindu women are given these at the time of marriage. Gifts are also given to Muslim women at the time of marriage but this is rarely construed as dowry in the legal definition of the term. Since the construction of the legal concept of 'dowry' occurred in the context of a problem affecting mainly Hindu wives (i.e. dowry deaths), gifts given to Muslim women are not seen as being part of this construction. In the specific context of my respondents, the question of receiving 'gifts' did not arise for the Muslim women. All my Muslim respondents were from very poor backgrounds. Although none of the Hindu women were from affluent backgrounds they did belong to lower middle-class Bengali families among whom there is a tradition of giving some valuables to the daughter at the time of marriage. The Tables also give some indication of the outcomes in these litigations. I have also mentioned that the women among the litigants who have children are not receiving support from their husbands for the children. Also, I have referred to the fact that the majority of these women were rendered homeless as a result of desertion or divorce by their husbands. The overriding impression that one is able to get from all this is that the outcomes in terms of securing maintenance and rights to property in the event of a breakdown of marriage, are very difficult to come by for women. There is also further ambiguity involved in the outcomes. As for example, when women appeal under the Cr.Pc (whether Sec. 125 or the new provisions) they seem to get favourable decrees from the court. However, the decrees are not realised in terms of actual outcomes which means that they may not actually get the maintenance nor are they able to recover their property. How does one explain both the unsatisfactory nature of outcomes and their ambiguity? The question that arises is whether these unsatisfactory outcomes can be attributed primarily to a combination of factors which have to do with the inefficiency of the legal machinery, the ambiguity of the laws, to the women's ignorance of the law. Or whether, in addition to all these factors, it has to do with the way women's positioning as wives constructs the nature of their entitlement in law. It is

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in order to explore these questions that I present case studies of selected litigants who have appealed under the different provisions.

4.4. The Hindu Marriage Act and husband/wife statuses As I have shown in Table 5A, only one of my respondents appealed for permanent alimony under Section 25 of the HMA. Namita Ghosal appealed for permanent alimony when she applied for a divorce from her husband. She also applied under Section 27 of the HMA for the return of her valuables and property gifted to her at the time of marriage, but which she forced to leave behind in the marital home. I will deal separately with each of these legal steps taken by Namita to illustrate how wives and husbands are constructed in adjudication, how these constructions shape the differential nature of entitlements for wives and husbands. As has been mentioned above, the Hindu Marriage Act allows either partner to seek a divorce on specific grounds. One such ground is physical or mental cruelty and is most often cited as a ground in divorce cases brought by women. Namita Ghosal applied for dissolution of marriage in 1983. In her application for dissolution she claimed that her ground for requesting this dissolution was cruelty by the husband. She was married in 1972 and went to live at her matrimonial home in a suburb of Calcutta immediately after the marriage. Her husband was an Assistant head teacher in the local High School and he was reasonably well established at the time of their marriage. Her husband had been married before but his wife died. Namita was, therefore, his second wife. Namita claimed in her petition that she was treated with extreme cruelty by her husband. Within fifteen days of the marriage her husband declared that she was not a fit companion for him. He abused her, beat her up on many occasions and tried to strangle her in August of that year. She was saved by the intervention of neighbours. She was finally driven out and had to return to her natal home the same year. Negotiations between Namita's relatives and her husband took place on a number of occasions to try and find an amicable resolution. According to her petition Namita returned to her husband's house in the month of June in 1982, stayed for two months under very difficult conditions and finally had to leave on being severely assaulted in August of that year. It was under these conditions that she filed for dissolution of the marriage. In the written statement given to the court in reply to Namita's application, the husband denied all her allegations. He counter-alleged that she was not physically fit to have sexual intercourse (something about her vaginal opening being too small), was of a shrewish temperament and used abusive language with her husband and on occasions assaulted him. He further claimed that she left the matrimonial home in 1972 and took 142

all her belongings with her including her ornaments. The husband was, therefore, requesting dissolution of the marriage on the grounds of desertion by his wife. The judgement given in the divorce suit turned in Namita's favour on the following points. First, the fact that Namita returned to her matrimonial home despite the illtreatment she had received and tried to work out a reconciliations, is favourably mentioned in the judgement. As such she had fulfilled her duty as a wife and had not deserted her husband even though he had been very cruel to her. Second, the magistrate held that the husband's allegation that Namita had not returned to her matrimonial home as she claimed, was not believable. Nor was it believable that she had deserted him or that she was guilty of the other allegations he had brought against her. The reason the magistrate gave in the judgement for not believing the husband was as follows. The husband had alleged in his petition that Namita was physically unfit to have sexual intercourse. If this were true, the magistrate surmised, then it would have been expected that a husband would have taken the initiative to file a suit against his wife for dissolution of marriage in order to "rehabilitate himself in sexual and social life" (Judgement in Mat Suit No.12 of 1983 dated 28th Nov. 1983). Since he was unable to answer why he had not done so the magistrate stated in the judgement that the "testimony of the petitioner of her being treated with cruelty and driven out by the respondent is worthy of credence "(Judgement in Mat Suit No.12 Namita Ghosal vs Bejoy Krishna Ghosal). Therefore the divorce was granted to the petitioner (Namita) on the ground that she was treated with cruelty. In other words the magistrate vindicated Namita's stand that she had been treated with cruelty Namita, in her interview with me, said quite clearly that she had never returned to her matrimonial home. Her advocate had told her, however, that she must mention this in her petition and defend it in her cross-examination in order to demonstrate her willingness to live with her husband. The reason given by Namita for not returning to her husband's house was that she was afraid that he might kill her. In the period that she had lived with her husband and had faced hostility, physical violence and ill-treatment, she learned from her neighbours that her husband's first wife had died under mysterious circumstances which she interpreted as meaning that the husband had been responsible for her death. According to Namita the first wife was educated, was a school teacher, and beautiful and as such had many more resources than she did. If she had not been able to hold her own against this man then Namita was much less equipped to be able to do so. Namita also said that she underwent a medical examination while she was living with her husband to disprove his allegation that she was physically unfit for sexual intercourse and had obtained a medical certificate to this effect to appease her husband (and which she finally produced in court when allegations were made). The reason she offered for the long delay before applying for dissolution (even though all 143

the ten years she was getting nothing out of the marriage) was that she kept hoping that everything would be all right eventually. It was a last resort. None of this features in the litigation as important or central to the allegation of cruelty. This gives rise to questions about legitimacy/illegitimacy of claims made in the court which as can be seen has a gendered dimension to it. For Namita as a wife it was clearly not sufficient to claim that she had been treated with cruelty. She had further to prove that she had been faithful, was not deserting her husband on 'light' grounds by showing that she had returned to her marital home to effect a reconciliation. Clearly if Namita's husband had initiated divorce proceedings first on the grounds that she was physically unfit to have sexual intercourse, and what is more had deserted her husband, her claim that she found it impossible to live with him because of his cruelty to her and her genuine fear of him would not have proved to be a legitimate argument. Her husband's evidence was disbelieved by the magistrate because he, as a person, was unbelievable. His identity as a husband could not be fixed because he had not done what his husband status entitled him to do, which was to apply for dissolution of marriage alleging that his wife had failed to provide sexual services. Such an action would have been believable because a husband would have done it in order to "rehabilitate himself in sexual and social life" (Judgement in Mat Suit No.12 of 1983 dated 28th Nov. 1983). It is only in the context of his failure to act out his husband status that his wife's claim of cruelty was worthy of credence in the court. The judgement has to be seen as an indictment of the husband's failure to live up to his status and the differential power in the marital relationship by virtue of this status. During the litigation for dissolution of marriage Namita, applied for and obtained, temporary alimony under Section 24 of the Hindu Marriage Act. The amount granted her was Rs.200 per month. Since she was clearly the aggrieved party in this instance the granting of temporary alimony was seen as a temporary and immediate relief given by the court. In 1985 Namita applied for permanent alimony under section 25 of the Act. The amount she requested was Rs.600 per month. Her appeal for permanent alimony was based on the following grounds. She claimed that she did not have any income of her own and was dependant on her brother for support. She further claimed that her husband had the means to provide for her since he was employed and earned a salary. He was a senior teacher and, therefore, also earned money through private tuitions. He owned a house and renting out part of it brought in additional income. In his reply the husband contested all these claims. He claimed that Namita was gainfully employed in a social work institution and, therefore, was not a dependant. He further showed that his take-home pay was much less than the petitioner had claimed and that as the male breadwinner he had a number of obligations to fulfil. He had to maintain his old and ailing mother, his daughter by the first marriage and his nephew, on the 144

income from his salary. He had no other sources of income. He also mentioned that Namita had signed an affidavit in court disclaiming maintenance. In the judgement on this case it was stated that as the granting of permanent alimony was public policy Namita had not revoked her right to it by signing the affidavit. Namita's claim, that she was a dependant because she has no income of her own, was borne out by the fact that she worked in a social work institution which could not afford to give her a salary. The husband had not produced any evidence to show that she actually earned anything. As such, by virtue of her having no income, she was entitled to permanent alimony. However, the magistrate noted in the judgement that the respondent husband had, as the male breadwinner, a number of dependants and obligations. Therefore, although permanent alimony was granted to Namita it was not at the rate that she had requested (Rs.600 a month) and was fixed at Rs.200 per month. "Considering the evidence on record I am satisfied that in the context of the present day cost of living and the income of the respondent, the petitioner is entitled to permanent alimony at the rate of Rs.200 per month." (Order no.30 dt. 23.3.85) It should be noted that the minimum wage for daily wage labourers in West Bengal in 1985 was fixed by the government at Rs. 18-20 per day (Rs.540-600 per month). Furthermore, those with incomes below Rs.350 per month were considered to be living under the poverty line. The economic arrangements of this extant marriage as fixed by the court are interesting for a number of reasons. Section 25 of the HMA does not specify what percentage of the income of the respondent should be set aside for alimony. It only sets the conditions under which a judge should make a decision about the amount granted. A central consideration is the respondents's own income and property and the income and property of the applicant. It also states that payment of alimony in some instances can be secured by a charge on the immovable property of the respondent. Since the percentage or amounts are not fixed by law, the discretion to fix the amount granted lies entirely with the judge. It is in this decision-making that gender ideologies are most critically implicated as can be seen from Namita's case. Although by her dependant status Namita was entitled to alimony from her husband, it was her husband's status as male breadwinner with dependants which determined the amount she received. It did not bear any relationship with what his income and asset ownership status was or with what her needs were. It is clear that the claims made by the male breadwinner status have more legitimacy than those of a dependant wife, although her dependant status is granted legitimacy by some kind of award. The amount awarded does not enable Namita to live an independent life and in fact is made on the assumption that, as a woman, she will be dependant on male kin (as a Hindu woman on brothers or father). In Namita's case her husband's immovable property (he owns a house) does not feature as an asset to be distributed. The provision made in the Act of securing alimony 145

payment by putting a charge on the immovable property of the respondent is not addressed in the judgement. This cannot be construed as an oversight since the Namita's petition had mentioned the house as property which yields income. Rather it has to be seen in the light of the differential entitlements of husband/wife statuses arising from the legal and ideological construction and actuality of wifely dependence. Further, although a wife is constituted as a dependant, wife statuses have lesser claims as dependants than other members of the husband's kin/household. In 1987 Namita's case under Sec. 27 of the HMA for return of her property came up for hearing. In her application she stated that her mother and brother had presented her with properties (household articles and gold ornaments) at the time of marriage and which were in the custody of the husband. In his reply the husband contested this on the ground that at the time of the marriage Namita's mother and brother did not have the capacity to give her ornaments or other articles. Rather he had presented her with jewellery and clothes which she had appropriated along with articles belonging to his former wife and to his daughter when she left his house. Further her claim was contested by him on a legal point that the application under Section 27 should have been disposed off along with the decree in the matrimonial suit. In the judgement given in this case the legal disability mentioned in the husband's written statement was dismissed. The husband's case that Natnita did not receive jewellery and other property from her mother and brother and that she had instead appropriated jewellery and other articles gifted to her by her husband and also those belonging to his former wife and daughter, was also dismissed by the magistrate. The magistrate mentioned that in the husband's reply in the original matrimonial suit he had said that Namita had taken all her belongings with her when she left his house. This proved, according to the magistrate, that she had property which was gifted to her. The court order, therefore, states on the basis of information provided by witnesses, that the list of articles and jewellery given by Namita as her property was valid and should be returned by the husband. The matter did not end there, however. Bejoy Krishna Ghosal took the case for appeal to the High Court. He appealed to the same point of law that had been mentioned in his reply in the lower court in the hearing on section 27. In other words he claimed that the order under this Section should have been disposed off along with the decree in the matrimonial suit. Bejoy Krishna Ghosal lost the case and the High Court upheld the decision of the lower court in July 1990. The matter still did not end there, however. In 1992 Namita had still not received her property, and, the order of execution of the original order under Section 27 had still to 146

be filed in the lower court. The delay was been caused by the lack of interest on the part of Namita's advocates in the lower court who were appointed by the Committee for Legal Aid, Judicial Department, Government of West Bengal, and, in part by Namita not knowing what to do. In 1992 Namita's advocate asked me to arrange a meeting with her to decide on what could be done. At the meeting the advocate said that the husband's lawyer had told her that Ghosal was willing to make an out of court settlement for Rs.20,000 in lieu of the property, if she agreed to withdraw the cases. The advocate proposed that she should agree on a sum of Rs.30,000 and in addition ask for an enhancement of her alimony amount. Namita claimed that the amount being suggested was too little and it would not see her through her life nor give her independent means. She was willing to settle for Rs.50,000 (which would ensure her a monthly income of Rs.675 if kept in a Fixed deposit in the bank). The advocate clarified that the Order given to her under Section 27 was specific and related to the listed properties only and not money in lieu of property. Going back to court would entail endless legalities. She suggested that Namita and I approach Ghosal's lawyer and explain to him 'nicely' Namita's point of view. Although Namita agreed to do this at the meeting she later changed her mind saying that it was her lawyer's job to get her dues through the due process of law and it was not her job to appeal to the opposite party lawyer. By deciding to be uncompromising in this matter Namita seemed to have lost the only power she has to effect a compromise in her favour. According to the law an execution order has to be filed within a time frame and is not valid after that. The validity of Namita's order expires in 1993 and if her advocate does not move within this time she will have lost the opportunity to obtain anything. If the Order expires she cannot force an out of court settlement either. The Hindu Marriage Act constitutes sex equality as being implicit in monogamous marriages and the availability of divorce for either partner. It is apparent that the principle of equality on which the HMA is premised sets men up as the norm against which women's capacities and needs are judged while maintaining the epistemological neutrality of the legal system. As the above case discussion illustrates, however, the economic obligations of extant marriages are constructed via the legal treatment of husband/wife statuses which position wives as subordinate to and dependent on the husband. The law apparently is 'fair' to Namita as a person because all the judgements in the cases she filed have upheld her claims on the basis of evidence that she and her husband have provided. It seems as if she provided the more trustworthy evidence and, therefore, was entitled to favourable judgements. She claimed that she was treated with cruelty and thus was entitled to a dissolution of marriage, which was upheld. She claimed that she was a dependant and that her husband had sufficient means to provide for her. The judgement upheld her claim on the basis that it was public policy that a dependent wife must be supported. All this obscures the fact that in each judgement the 147

status of wife, to which Namita lays claim, is constituted by discourses of conjugal relations which position her as subordinate to and dependent on the husband. Namita and her ex-husband are not positioned as equals by their life-situation. Namita Ghosal was married at the age of 28 and is now 48 years old. She lives at present in a household with her mother, brother, an unmarried sister, a widowed sister and her two teenage children. Namita completed school but was unable to do further education because of the death of her father and consequent financial problems. The present income sources of this household are difficult to make out. The brother has been unemployed for two years, Namita too is unemployed. Her unmarried sister works parttime as a Corporation health worker and does not earn very much. Her widowed sister has some income from her husband's savings and from her own tailoring and embroidery activities. She supports her two children primarily but probably also contributes to the household since they all eat together. Namita did try to learn a vocation (tailoring) but the quality of training was so poor that she could not set herself up as a tailor. Besides to be self-employed requires capital which she did not have. The only income of her own that she now has is the Rs.200 per month given her in alimony payment. The ex-husband makes sure to deduct the postal expenses from this amount and so she gets Rs.190 in hand. And even this amount is not regularly paid. She keeps most of this money for her personal expenses (which does not include food). She has shelter because the house that the family at present resides in was built by her father. It has one large room which Namita shares with her mother, brother, and unmarried sister. Her widowed sister lives with her two children in a room attached to the main room which she built when she came to reside here. Namita blames the failure of her marriage on the fact that she was guardianless at the time. By this she means that she had no male kin to look after her interests. Her father had died and her brother was very young. She would never have married a widower except for the fact that a male relative told her that since her family was unable to give her much she was unlikely to be able to contract a better marriage. Marriage for Namita was supposed to be an economic arrangement for life and nothing in her circumstances had prepared her for the eventuality that it would not be so. She waited for ten years for the marriage to work and finally went for divorce as a last resort. The alternative she chose was a life of poverty and dependence, the loss of property (her jewellery), the loss of rights in people (Bengali Hindu women rarely remarry). Her ex-husband, Bejoy Krishna Ghosal, has a post-graduate degree which entitles him for promotion in his job which is that of the Assistant Headmaster of a High School. With the recent rise of salary scales and fixing of tenures of teachers in governmentaffiliated schools, his position is both well-paid and secure. He has a house of his own 148

and extra incomes both from rent and from private tuition. He has remarried and has rights in people. There is virtually no comparison between his unassailable position and Namita's dependant one. Bejoy Krishna Ghoshal's unassailable position is buttressed by the law. First, the salaries that men are paid in the organised sector (and as a school teacher in a government-affiliated school he is in the organised sector) is based on the requirements of a family. The minimum wage is worked out on the basis of three units - one unit each for the man and his wife and half a unit each for two minor children. Second, a man's earnings and his dwelling house has a certain sanctity under the law. A basic premise of civil law is the protection of a percentage of a man's salary, dwelling house and provident fund against the claims of creditors. This is done ostensibly to protect the family (Agnes, 1992). However, when the creditors happen to be his own family, as is the case in the present litigation, the same laws serve to protect men against their creditors who are their estranged wife (and children). Under the circumstances a man can protect his salary and property from being attached by the court to pay maintenance or alimony dues to wives. 4. S. Husbands as criminals - The Criminal Acts and husband/wife statuses. As I have shown in Part I, changes to the criminal acts made in the 1980s brought in new categories of offences for cruelty to wives, dowry harassment and dowry deaths. The three major Acts governing criminal trials and punishments are, first, the Indian Penal Code (IPC) which lays down categories of offences and stipulates punishment; second, the Criminal Procedure Code (Cr.Pc) which lays down procedural rules for investigation; and, finally, the Indian Evidence Act which prescribes the rules of evidence to be followed in a trial (Agnes, 1992). A complaint brought to the criminal court is treated as a criminal offence. Here the case is conducted between the state on the one side, and, the accused on the other. Though the original complaint may have been filed by an individual, it is the state, through the Police and Public Prosecutor, which brings the offender to the court. Unlike civil wrongs, criminal offences are seen as offences against the entire society and, therefore, both the court and the police are involved in dealing with such cases. Thus when wives register complaints under the Criminal Acts, the husband is positioned as a criminal whom the state has to proceed against. I have shown in the discussion on the profile of litigation, that since the late 1980s, women as wives have been using the new provisions in the criminal law to try and obtain some form of property from their husbands. In this section I will analyse the experiences of four women who have used these provisions. I should mention at the 149

outset that when women complain to the state authorities about ill-treatment and torture in the marital home, a battery of provisions come into operation to try and fix the crime. Thus in all the case studies mentioned in this section, the court cases were filed under different sections of the criminal code. A particular section which needs mention here is Section 498A which refers to cruelty to wives. Appealing under this section means that the police are authorised to, arrest and detain for a period of twenty-four hours, the husband against whom the charge has been brought. The police then has to present a case in court against the offender. Most women use this Section as a last resort and often to force their husbands to negotiate with them. Thus the cases rarely ever proceed through court because women withdraw them once they have achieved their short-term goal. But there is another side to this story which also needs mention here. Section 498A has been very difficult to operationalise because of the resistance to its use from the law implementing agencies. The police, for example, refuse to register cases under this provision unless the act of cruelty has led to bodily harm. They also advice women that they should not use this provision because it would break up the marriage. There is no going back, they say, once a wife's complaint has led to the arrest of the husband. A court case under this section can only proceed, as I have mentioned, if the police prepare the case. The foot-dragging and delay on this count from the police has to be read as part of the resistance. Why and how this manifests itself becomes clearer through the case studies. The case-studies which I examine here are all of Hindu wives. As I have explained, the new provisions brought in by changes to the Criminal Acts occurred in a context in which Hindu wives were seen as facing these problems, of cruelty and harassment, because of 'dowry'. This explains why there is a preponderance of Hindu women appealing under these provisions. Gita Dey used these provisions in conjunction with her suit for divorce to reclaim her property from her marital home. Among the four women who have taken resort to these provisions in the criminal courts, Gita's attempt can be described as somewhat successful in its outcome if one looks only at the effect of this particular litigation and police action in support of the decree. However, if one examines the context in which the claims were made (a divorce case which left little or no choice for the petitioner to make claims to maintenance or alimony), the outcome is seen to be mediated by her powerless position as a wife. Gita was married in 1979. The marriage was arranged and she was 21 years old at the time of marriage. Although her father was an ordinary worker in a public sector manufacturing unit, the family invested considerable amounts in her marriage as she was the only daughter (she has four brothers). The four years that she spent in her marital home was an endless tale of violence and oppression in which the mother-in-law colluded with her husband. She was tortured and underfed 150

and even diagnosed as being malnourished. This finally culminated in her husband's family making her sign a declaration that she did not wish to remain married and that no one was responsible for her death. Gita ran away to her parent's home after this. All her belongings were left in her marital home. The first case that she filed was for divorce, and since the opposite party did not appear for the hearings, she was given an ex parte divorce in 1983. Since there was no other way of bringing her husband to court, she appealed in the criminal court for return of her property. Her husband was forced to appear at one hearing. The magistrate granted the police a search warrant in 1987 to enter the husband's house and recover her property. Gita accompanied the police and her brothers also went with her. The family resisted the police entering the house but had eventually to permit them because they had a search warrant. What they were able to get back were a few pieces of jewellery. They were unable to recover the other household articles gifted to her by her parents, which included furniture which had entailed an equal amount of expense if not more. For the police officers who accompanied them the recovery was successful since Gita was able to recover some of her jewellery (which is seen as the most valuable asset a woman can hold and legitimately a woman's) and pressing for the other articles in the hostile environment was somehow illegitimate. Implicit in the police official's inaction regarding the other articles was clearly the notion that household articles constitute property in which there is jointness and merger attributed to it by the nature of the conjugal relationship. The police reported to the court that the search warrant had been executed and that all of Gita's 'dowry' articles had been recovered in the search. This experience dissuaded Gita's family from pursuing an alimony suit which would have been time-consuming, entailed expense and would have, furthermore, necessitated having to legitimise claims. Gita is today 35 years old, is unemployed, does not have any skills or training and is single. At present she has a home because her father is still alive and he owns the tworoomed flat in which they live. Her only unmarried brother is the main income-earner of the family at present. This is likely to change once he marries and has a family of his own. Gita and her family members were both of the opinion that her only hope of rehabilitation lay in remarrying. However, the proposals she has received so far were unacceptable because they were generally from older men and widowers with children. In other words Gita is no longer a prime candidate in the marriage market and she does not have the possibility of entering the labour market on terms which would ensure her an independent life. Lakshmi Chakravarty (Bannerjee) married in 1986 was eighteen years old at the time and was about to appear for her final B.A. examinations. It was an arranged marriage and as the economic prospects of the boy's family seemed all right, Lakshmi's lower 151

middle-class family invested a great deal of money in the gifts given to her to ensure her place in the marital household. The husband's family consisted of his parents, younger sister and a distant relative. Within a few days of the marriage ceremony Lakshmi realised that there was something wrong with her husband. It was only after a month of living within this household that she was told by a relative that he was a drug addict. What followed was a saga of torment for Lakshmi. Her drug-addicted husband abused her and his family members harassed and tortured her. Within two months of the marriage the husband was so seriously addicted that he had to be hospitalised. His family members had him released before the treatment was completed. Lakshmi returned to her natal family and stayed for a month. They persuaded her that she should return and try to live with her husband. She went back and the situation deteriorated. Her husband's condition grew worse and his relatives tortured and beat her to make her conform to their demand that she live with this man and not tell anybody about his illness. Finally unable to bear the physical and mental torture she left the house and went to stay with her parents taking only the clothes she was wearing. She returned to the marital home six months later on hearing that her husband had an accident. She was beaten and thrown out. It was at this stage that Lakshmi first came up against the state. She filed a report in the local police station under Section 498A. According to the case files kept at the offices of the Committee for Legal Aid (Lakshmi was a legal aid recipient), the case against the accused under Section 498A was discharged on 28th March 1989 by the court at the request of the police since evidence against the husband and his family had not been given in the court. The advocate reopened the case and Lakshmi testified in court that she had not been served notice by the police to appear in court to give evidence. The magistrate issued an order requesting the records from the police station. Despite constant reminders to the police these records did not appear in court and finally on 30th April 1990 the magistrate discharged the case against the accused. Lakshmi then filed a case in the criminal court for return of her property. She was granted a court order and the police were authorised to enter the husband's home and assist her in recovering her property. Lakshmi had to go back to the same police station, which had behaved so tardily in the case under section 498A, to seek their assistance to implement the court order. Because of the instructions from the court, the police station was forced to give her an escort to the matrimonial home. Once inside the premises, however, the police official stood by and watched as members of the husband's family abused her verbally and refused to hand over anything to her. Finally they threw a burnt mattress at her claiming that was the only piece of property she was entitled to. (It is customary for the bride's family to gift bedding at the time of marriage. Lakshmi's husband had in an addicted state set fire to 152

the mattress). The police official claimed all along that there was nothing to be recovered. Lakshmi left without recovering anything. She lost property worth Rs.50,000 (of which her jewellery alone valued at current prices was Rs.30,000). How do we explain the inaction of the police in this instance? Can it merely be attributed to inefficiency and corruption in the police? The frequency of such instances of police inaction in the context of cases alleging domestic violence seems to indicate that there is more to this (See Gandhi & Shah 1991; Agnes 1990 where this inaction at an all-India level is discussed). We have to examine the context in which Lakshmi claimed in the court that her property was left behind in the marital home. It was in the context of her case under section 498A which alleged that she had been tortured and illtreated in the marital home. The case under section 498A could not be proceeded with because the police did not prosecute the criminal. Who was the criminal? It was Lakshmi's husband? Can a 'husband', a status and an identity which is given meaning by its superordinate position in the conjugal relationship, be treated in the same manner as an ordinary criminal? When the state machinery, the police in this instance, prosecutes a burglar its relationship to the accused is straightforward. It is acting on behalf of a citizen whose inviolable right to own, which is the fundamental constitutive element of the legal person, is jeopardised. The procedural rules for investigation are clear cut and what constitutes evidence is also within the recognised parameters of reason and fairness. But when the police prosecutes a husband for harming his wife the relationship to the accused is, needless to say, less clear. One major area of ambiguity lies in ascertaining at a conceptual level on whose behalf they are prosecuting. In other words who is the subject? After all, it is only the unified freely choosing subject that can be invested with rights. The simple answer would be that she is a person, a citizen invested with rights. But she is also a woman. More importantly she is also a wife and the harm to her person (the crime) takes place within the context of the social relation which ascribes to her the status of wife. The status of wife, as we have seen in the earlier section, is subordinated to husband statuses not only at the level of family and kinship but in law by the constitution of the wife as subject through discourses of conjugal relations which position her as subordinate to and dependent on the husband. Is it possible to extricate the woman/subject from the social relations of wife so as to invest her person with rights which then makes her the conceptual and legal equivalent of the 'accused' who is also her husband? La.kshmi's case seems to illustrate that women's rights as individual citizens can at best be imperfectly enforced when their violation happens to be in the family. I say imperfectly because in this instance the court, by its admission of the case, recognised that her rights as citizen had been violated. The case nevertheless had to be discharged by the same court because of lack of evidence. Thus while there seems a contradiction between the implementing

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agencies (the court and the police), public discourses about Lakshmi as a subject invested with rights are not undermined by this contradiction. Lakshmi applied for dissolution of marriage under the HMA on grounds of cruelty. Initially the divorce case was contested by the husband's family who brought a counter case of fraud against her to subvert the claim to alimony. In order to buy peace and to extricate herself from a relationship which had cost her so much, Lakshmi negotiated a mutual divorce settlement which was agreed to because she gave up her right to fight for alimony. Thus Lakshmi lost property which she brought into the marriage and as well the right to permanent alimony which to some extent would have compensated for her loss of property. Ashoka Mitra's application to the criminal court for return of her valuables/poperty from her husband's home was dismissed by the magistrate. It was dismissed on the grounds that Ashoka had waited for four years between her ejection from the matrimonial home and application to the court for return of her valuables/property. If the valuables/property were really there, the order given by the magistrate inferred, it was unlikely that a person would wait for four years to retrieve it. Ashoka's explanation in the court was that for four years she had run from pillar to post approaching various welfare and counselling organisations to seek their mediation to get back to her matrimonial home or at least get her husband to agree to give her some resources for survival. She had approached the court for maintenance under section 125 Cr.Pc.and return of her valuables under the new Criminal Act provisions only when all other attempts had failed. The magistrate did not accept this explanation proffered by Ashoka. "....it is not believable that for such a reason a reasonable person will wait for 4 years" (Order of 7th J.M.'s Court, Alipore dated 18.7.90). Another reason for disbelieving Ashoka was also that no other witness except her brother came forward to vouch for her in court. The magistrate's order states that her brother was bound to narrate the same story as the petitioner herself. Further, the fact that Ashoka was unable to produce a witness from the area in which she had lived in her matrimonial home for ten long years made her version of the truth unacceptable. Thus the circumstances of her life arising from her positioning as a subordinate in the marital relationship cannot be accepted as evidence in the public sphere of the state. Inherent in the court's notion of a 'reasonable' person is the concept that all legal subjects stand in equal relationship to each other. As a subject Ashoka is the legal equivalent of her husband and enjoys the same power, the same degree of individuation in her relationship to property. Her rights as an individual can be asserted against the rights of other individuals. This entails, as Whitehead has explained, the separation of property out of social relations so that it becomes a characteristic inherent in the object which can be disembodied from the individuals who now stand in relation to it. However, as this case study shows and 154

Whitehead further asserts, a woman's relation to property is structured by the degree of individuation from social relations (as is a man's). A wife is not a 'reasonable' person in the sense implied. Ashoka Mitra as a wife and carrier of conjugal status was more circumscribed in her ability to act in relation to things than was her husband. The net outcome, as the discussion of the details of Ashoka's case will show in the following section, is that she has lost her property. The experiences that women have had in using the new provisions in the Criminal Acts can be summed up as follows. First, these legal actions are undertaken along with other cases related to the marital relationship. The aim is to recover some part of a woman's property. However, in each case the outcome of receiving an order and being able to recover some/all of the property and valuables was dependant on the legitimacy/illegitimacy of claims ascribed by virtue of a woman's status as wife at levels both of the court and the police. Second, the main outcome in all these cases has been a loss of property for women. A woman's natal family generally incurs considerable expense in buying gifts for the groom and bride at the time of marriage. In Bengali Hindu families a woman will customarily be gifted gold ornaments at the time of marriage and this is looked upon as her security. Beside this she will be given household articles (often this includes furniture if the natal family can afford it), clothes and other personal effects. Thus when the marriage breaks down and a woman is forced to leave her marital home (most often because it is no longer safe to live there), she generally stands to lose the only property that her natal family is likely to gift her in her lifetime. Third, and related to the point about loss of property entailed in the process of criminal litigation, is that state provisions for establishing that property/valuables belonging to a wife and in the custody of the marital family, and, state procedures for recovery assume the existence of the legal subject (an individual whose rights are asserted against all other individuals) in relation to property (objects disembodied from the individuals). A woman who is a wife does not fit this definition of legal subject as her subordinate position in the conjugal relationship mediates her relationship to property limiting her ability to act as subject in relation to objects.

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4. 6. 'Brother, there are only two jatis - men and women': Section 125 Cr.Pc. and the trial of wifehood As has been mentioned in Part I, Section 125 of the Cr.Pc (1973) was created for the specific purpose of providing maintenance to dependant wives, children and aged parents unable to maintain themselves. Its main purpose is to prevent destitution and vagrancy. The maximum amount that can be fixed as maintenance amount under this Section is a payment of Rs.500 per month. Of relevance to this section are the provisions for wives. According to this a wife is not only one whose marriage subsists but also one who has been divorced. Until 1987 both Hindu and Muslim wives, whether divorced or not, could appeal to this Section for maintenance. Since 1987, however, and with the promulgation of the Muslim Women's (Protection on Divorce) Divorce Bill, Muslim wives who have been divorced have generally to appeal to Section 3 of the new Act when seeking settlement of economic arrangements for extant marriages. Applications under Section 125 for maintenance can be made by Hindu women alongside their application for temporary alimony under HMA. In fact up until 1987 this Section of the Cr.Pc. was seen to work in conjunction with the personal laws. Section 125 stipulates the fulfilment of certain conditions before a decree for maintenance can be passed in favour of the applicant wife. The main conditions are as follows. The wife applicant must be able to prove that there was a valid marriage. It must be agreed that the husband-respondant has sufficient means to maintain the applicant. It should be established that the respondant-husband refused or neglected to maintain his wife. It ought also to be determined in court that the wife is unable to maintain herself. And finally, a wife applicant loses the right to maintenance if she is found to be living in adultery. A wife's remarriage also entails the loss of her right to maintenance. The court hearings, therefore, are woven around proving/disproving the fulfillment/non fulfilment of these conditions. The applications under Section 125 Cr.Pc. are made in the Criminal court. Nonpayment of maintenance dues decreed by the court is, therefore, considered a criminal offence. The court can and often does authorise the police to arrest the husband for his failure to pay the maintenance dues. This particular Section for maintenance has been very popular with wives seeking some kind of economic settlement of extant marriages. One of the reasons may be that it is not unusual for the applicant wife to get a decree in her favour from the court. Another reason is that the court can authorise the arrest of the husband to recover the maintenance dues. Since a wife is in most circumstances powerless to lay claim to her husband's property or income once the marriage ties are severed (either by desertion or divorce), this provision is a reassurance that the state at least is more powerful than the husband. Also, the 156

proceedings under this Section, because it is held in the Criminal court, should be disposed off faster than in the Civil court. Of the 16 women who comprised the sample of women appealing for marital property, 12 applied for maintenance under this Section. Eight of the 12 applicants were Muslim women and the remaining four were Hindu women. The following table lays out the status of each applicant's case for maintenance. As can be seen from Table 6, the outcomes of the maintenance cases have been varied and contradictory. It is contradictory because, on the one hand, almost all the applicants (barring those whose cases are still to be decided) have received favourable decrees. This gives the impression that the judicial arm of the state works in women's interests. On the other hand, a negligible percentage of women with favourable decrees have been able to secure maintenance payments. This gives the impression that the enforcement arm of the state, the police, works at cross-purposes to the decisions of the courts and is against women's interests. Since some women do get something through the courts, women persist in the belief that state intervention is useful. For the most part obtaining favourable decrees seems to validate a wife's claim to economic rights from her husband. However, most women appeal to the state for economic rights from their husbands from a position of great disadvantage. Women's actions to seek state intervention in securing economic rights is to a large extent motivated by the belief that the state is, unlike kin and community level authorities, a just and final arbiter. It is assumed, therefore, that people are invested with rights irrespective of their gender, class, caste, and communal differences. However, as the case studies in the previous sections have tried to illustrate, men and women are constituted in law and in adjudication as different kinds of persons with differential rights. Further, the status of wife is invested with less power than husband statuses and a wife's claim as dependant has less validity than claims by other dependant kin.

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Table 6- Outcome of Sec. 125 cases Respondent Anjana (Hindu)

Case Sec.125

Status Obtained Decree

Recovery of dues. No recovery**

Ruma (Hindu)

Sec.125

Case pending

No recovery****

Shanaz (Muslim)

Sec.125 Sec.3 MWDP

Obtained decree under Sec.3

No Recovery

Tahera (Muslim)

Sec.125

Obtained decree

No recovery**

Marjina (Muslim)

Sec.125

Obtained decree

No recovery*

Safia (Muslim)

Sec.125

Obtained decree

No recovery** & ****

Taslima (Muslim)

Sec.125 sec.3 MWDP

Obtained under Section3

Recovered dues.

Ohidenessa (Muslim)

Sec.125

Obtained decree

Recovered part of dues

Asma (Muslim)

Sec.125

Obtained decree

No recovery Remarried. Withdrew claim***

Noor (Muslim)

Sec.125

Obtained decree.

Recovered dues Remarried. Withdrew claim.

Arati (Hindu)

Sec. 125

Temporary order.

Receiving payment

Ashoka

Sec.125

Temporary

Receiving payment

(Hindu)

order

Note: MWDP - Muslim Women's (Protection on Divorce) Bill of 1987 * cases where husbands have been arrested for non payment of maintenance dues. ** issue of Warrant of Arrest against husband by the court but failure of execution by the police. *** issue of Distress Warrant by the court for attachment and sale of husband's property to recover maintenance dues. **** refers to arrest of husband under Section 498A.

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awarding Ashoka temporary alimony the court was thus not doing anything extraordinary in her favour). The present status of the case is that Ashoka's evidence and that of her witnesses has been recorded and they have been cross-examined. Her husband's evidence was being heard in court till March 1992. His witnesses' evidence and the cross-exmination remains to be heard. Ashoka was married in 1977. She was educated upto the first stage of University at the time of marriage. She has five brothers and five sisters. Her mother is still alive. Ashoka's husband, Swapan Kumar Mitra, is a qualified engineer and a senior executive in the Calcutta Electric Supply Corporation. The couple have a son born in 1979. Ashoka lived in her matrimonial home with her husband, son, parents-in-law and Swapan's youngest sister. According to Ashoka, marital conflicts began within two years of the marriage and had mainly to do with the frictions between her and the inlaws. However, Swapan always supported his relatives. In 1983 for the first time she was physically assaulted by her husband and subsequent to that quarrels in the family generally resulted in her being punished physically. In early May 1986, for the first time, Ashoka retaliated to this by registering a case against her husband in the local police station. The versions of what happened subsequently vary according to the informants. Ashoka claimed her husband was arrested. The husband's advocates stated in his petition that the police officer, aware of the domestic problems of the Mitra household, called the husband to the police station to effect a compromise. In a sense this version is more plausible since as subsequent events indicate, Ashoka's allegation of cruel treatment was at every juncture disbelieved by the police which worked against her in court and helped construct Ashoka as the unfit wife and mother. On 13th June 1986 Ashoka was evicted from her matrimonial home by Swapan and his relatives (the brother-in-law brought in specially for the purpose). There is a great deal of discrepancy between Ashoka's account and the information contained in court documents and hearings in the description of the events which led up to this and whether she was actually evicted or she left of her own accord. The importance of establishing events either way is in order to determine whether her husband wilfully neglected her and, therefore, she would be entitled to maintenance, or, whether Ashoka wilfully left the house, refused to return and, consequently, would not be entitled to maintenance. What is critical here is which claims to truth received recognition and why.

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Ashoka's version was as follows (which is also more or less the version she gave in court). A quarrel had ensued between her and Swapan's mother on the morning of 11th June 1986 when she requested her mother-in-law to take out her ornaments. The mother-in-law complained to her son when he returned from work. Swapan did not ask for her explanation. He called his married sisters and their husbands and together they locked the gate of the house to prevent Ashoka leaving. They went to the police station and lodged a complaint against her. The sister-in-laws shouted at her and abused her and called in neighbours to do the same. After everybody left her brother-in-law stayed back. He asked her for the keys to her cupboard which she refused to give. Ashoka spent the night on a sofa in the living room. When she awoke she found that her cupboard was broken into by the brother-in-law and he was checking each and every possession of hers. They confiscated her mark-sheets and certificates. They were looking for incriminating evidence (e.g. love letters). They went to Barrackpore court, registered a vakalatnamma (court document authorising appointment of an advocate) and forced her to sign it. They then took her to the police station, withdrew their complaint against her, and told the Officer-in-charge (0.C. henceforward) of the police station that Ashoka wanted to return to her mother's home. The O.C. dictated a statement which said that she was going to her parents house for a few days and would return. She signed it. They then took her to her husband's distant relatives' home. The next day the husband arrived and announced that he would not live with her. She was bundled into a taxi by her brother-in-law and deposited at her brother's house. The institutional version is as follows. The account is taken from the ad verbatim recording of Swapan Mitra's evidence dated 4th February 1992 in the court of 9th ADJM, Criminal Court, Alipore. Advocate : When did your wife leave your house? Swapan : On 13th June 1986. Advocate : Did you and your family throw her out ? Swapan : On 11th June my wife verbally abused and insulted my mother. My father tried to protect her (mother). After this my wife wanted to leave the house. I took her to the Officer-in-charge of the police station where she said that she would return in 6 months time. Advocate : This means that after the incident on 11th June your wife left your house of her own accord. Could you relate the incidents of that day. Swapan : That day my wife abused my mother in filthy language. She caught my mother by her hair, dragged her on to the road and continued to hurl abuses at her. The neighbours rushed to my mother's rescue. My father came forward to protect my mother and he was in turn assaulted by my wife, fell down and injured himself. Advocate: How old was your father at the time ? 161

Swapan : 82 years. Advocate: And your mother ? Swapan : 70 years. Advocate: Did they need medical treatment as a result? Swapan: Yes, they were treated at the Barrackpore hospital. (Produces papers, prescriptions). Advocate: What was you wife's reaction after this incident ? Swapan: She was extremely anxious to go back to her mother's house. The neighbours were extremely upset by my wife's behaviour. (Magistrate dictates to clerk - She was violent by nature). Advocate: Did you do anything else before she left the house? Swapan: I went to the police station. Advocate: Why? Swapan: I suspected that my wife would lie about the whole incident. Beside, the Officer-in-charge was well aware of the problems in our relationship - he had often mediated on my behalf before this. Advocate: What happened at the police station ? Swapan: The O.C. Kabir Khan addressed my wife as 'sister' and tried to reason with her. He even reminded her of the story of Shakuntala.1 Advocate: Did your wife change her mind as a result? Swapan: She gave in writing in the presence of the O.C. that she was leaving for home and would return. Advocate: (showing a piece of paper) Do you recognise your wife's writing? Swapan: Yes it is her writing. (The letter was filed as an exhibit in the court). As can be seen from the above there is a great deal of discrepancy between the two accounts. Swapan Mitra's evidence clearly establishes Ashoka as a violent, irrational and shrewish woman given to fits of bad temper. She is reported as having committed the ultimate crime in Bengali society - assaulted her parents-in-law who are her superordinates because of their age and the relationship. The husband produced medical certificates as proof but even without this she would under the circumstances stand condemned. Note also the difference in the versions regarding the role of the O.C. Swapan's reporting of what transpired helped to fix Ashoka as the irrational woman whose versions cannot be believed. The police officer's cajoling of Ashoka, his mediation in earlier incidents clearly sets Swapan Mitra up as the wronged husband 1The story of 'Shakuntala refers to the Sanskrit epic poem by Kalidasa in which a king, Dushmanta, falls in love with a beautiful woman while he is out hunting in the forest. She is beautiful because she is like the natural environment she lives in. After a brief affair the king departs for his kingdom and forgets all about her. He presents her a ring before leaving. Shakuntala, unbeknown to him, bears him a son and many years later travels to his kingdom in search of the king. On the way she loses the ring in a pond and a fish swallows it. At the court the king does not recognise her and when she is about to be hurled out, a fisherman arrives with the ring that he has found in the morning's catch. This proves Shakuntala's identity and the lovers are reunited. The main moral of the story is that the bond of true love is deep and that a woman's love persists through everything.

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who wanted to live with his wife except that the wife refused to oblige despite intervention by the officer-in charge of the police station. Swapan Mitra used the statement written by Ashoka in the police station in his favour by showing that, although she had given in writing to the state authorities that she would return, she had not. (It should be mentioned here that since the institution of the case Ashoka's advocates had written numerous letters to the police station requesting a copy of the statement she signed but had not received it. If Ashoka had received this or had the resources (of status/power) to obtain it from the police station she could have argued that she had expressed in writing (sanctioned by the police station) that she wished to return but had not been taken back. Had he attempted to bring her back thus expressing his willingness to maintain her? In his evidence in December 1991, February and March 1992 he showed documentary proof of letters written by him and his friends and relatives asking her to come back. Ashoka, on the other hand, was unable to provide any documentary evidence to show her willingness to return. Further evidence was given by Swapan Mitra in his evidence at the court hearing cited above to prove that Ashoka was an unfit wife and mother. Advocate: How was your wife's behaviour towards the members of your family? Swapan: Her behaviour right from the time we were married was crude and uncivilised towards them. Advocate: You have a son? Swapan: Yes. Advocate: What was the attitude of the mother towards her own son? Swapan: She never fulfilled her maternal role, used to torture him mentally, did not love him. Advocate: She did not behave in a maternal fashion? Swapan: No. Advocate: What was the child's mental state? Swapan: He was so depressed that he became mentally ill. Advocate: Did you arrange for his treatment? Swapan: Yes, he had a number of sessions with the child psychiatrist Dr.Debabrata Bannerjee. Ashoka never mentions her child unless asked. Her pragmatic reply to queries about her son was that since she had no resources nor a roof over her head she had no option but to accept that he was being cared for by the father. Evidence regarding a woman's lack of maternal feelings features importantly in the determination of her worth as a 163

person. The lack of paternal feeling does not, on the other hand, feature as evidence in court in the same way. This is demonstrated by the fact that paternal feeling or lack thereof was not made an issue in any of the cases studied, although many of the women who appealed under section 125 had children whose maintenance was also at stake in the cases. Ashoka was literally shelterless after her eviction from the matrimonial home. She initially lived at her brother's home and has since lived with friends, acquaintances and her sister. This too became evidence against her. She was so quarrelsome, it was alleged in court, that she could not live with anybody. Between 1986, when she was evicted from her matrimonial home, and 1989, when the case for maintenance was instituted, Ashoka attempted to seek the mediation of a number of welfare and counselling organisations to sort out her problems with her husband. Two of these welfare organisations actually conducted investigations and arrived at the conclusion that Ashoka was at fault and ought to compromise with her husband. Her husband, the reports said, was a perfectly reasonable man, and was willing to take her back. Finally a third organisation (of lawyers) tried to bring about an out of court settlement whereby Ashoka would be paid Rs.60,000 in return for a mutual divorce case. Ashoka refused and asked for Rs. 150,000 before signing a divorce document. She put this in writing. This letter now constitutes evidence in court. Her husband's lawyer produced as proof in court that she was not interested in keeping the marriage going. She was a greedy, opportunistic woman maligning her 'good' husband in order to get money out of him. On 11.3.92 when this letter was produced in court by Mitra's advocate, it was followed up with the question as to whether he had filed for divorce. He replied in the negative. His patience, tolerance and willingness to live with his wife despite everything was thus proved beyond a doubt. One of the key witnesses in Swapan Mitra's favour is the counsellor of one of welfare organisation which investigated the case when Ashoka appealed for help. Such was the intensity of feeling generated by this case that all the parties interviewed (Swapan Mitra's lawyers, the counselling organisations, the police) were united in the effort to defeat Ashoka's claim to maintenance. This intensity of feeling can only be explained by looking at the stakes involved. If failed wives like Ashoka can have their claims to truth heard and accepted by state institutions then the institution of marriage as understood by Bengalis with its clear demarcation of the roles and responsibilities of husband and wife, its hierarchisation of husband statuses over wifehood, is in jeopardy. Although the case was not decided it was evident by March 1992 that Ashoka stood to lose her claim to permanent maintenance or at least have the amount reduced from that 164

given her in temporary alimony. As Ashoka's advocate wisely remarked after the final session of Swapan Mitra's evidence in court" The magistrate is a human being. He will be influenced by the portrayal of Mitra as a good, responsible husband and a good man. He has done everything correctly and you have not. Who will believe your story?" The question is as to what was happening in this trial. As I have said before, the court proceedings in a case under section 125 is supposed to decide on the eligibility of the woman/wife for maintenance by establishing that she is without means of support, that her husband does have the means to support her, and, that he has wilfully neglected to do so. Instead, as the above case illustrates, the court proceedings revolve around determining whether the husband should pay the maintenance. And the main criteria in determining whether he should or should not pay maintenance becomes whether he wilfully neglected her or not. Disproving the husband's 'wilful neglect' is then constructed via the elaboration of the woman/wife's fitness/unfitness as wife. In other words the proceedings become a trial of wifehood. And what are the ideological ingredients that constitute the make-up of this 'wife'? At its core is the notion of the wife as the 'sahadhannini' and as 'pativrata'. We have met both these concepts before and both these refer to the faithfulness of the wife to the husband and this as her primary duty and meaning in life. We have met these concepts in the context of cultural nationalism where the construction of the new Hindu male from his glorious past also meant the construction of the woman from a similarly glorious past wherein her faithfulness to her conjugal relationship was reified. Further, I have shown that in the legislative debates on Hindu law reform, divorce was a contentious issue. It was a contentious issue because the opponents claimed that divorce was alien because it was premised on a notion of equality between the husband and wife which was western and modern. In the Hindu conception of the conjugal relationship women were respected and a wife's interests were completely joined to that of her husband's. Add to this the nationalist resolution of the women's question whereby women's freedoms were assured within the contours of the culturally determinate codes of conduct which ensured their oneness with the home and the spiritual content of the national culture. These discourses about wifehood, therefore, do not arise from nowhere and are now articulated through court proceedings to determine a woman's eligibility for maintenance from her husband. Ashoka's case best illustrates the policing that goes into maintaining this notion of wifehood. Whether it is the family, the neighbours, the police officer, the courts or the welfare organisations - there is an equivalence of discourses about wifehood in all these realms. Ashoka was not alone in facing this trial of wifehood and it did not refer only to Hindu women. All the women who applied under Section 125, Hindu or Muslim, had to prove neglect by their husbands, and this generally meant proving their credentials as wives. 165

Proving her credential as good wife meant for most applicants providing evidence that she made every attempt to live in the marriage despite mental and physical cruelty and was forced to leave the matrimonial home under conditions of physical danger to her. In some instances the husband's failure to appear in court to disprove this was taken as testimony of his neglect. Thus in Safia's case she had to prove that she had lived in her matrimonial home despite physical torture for over four years, had returned to her matrimonial home on two occasions after being thrown out and had finally to leave because she was mercilessly beaten. At the time of her final eviction she went to the police station and complained. As a result a case under 498A was registered and the husband arrested. This served as proof of physical torture for the case under Section 125. It was not she who alleged cruelty and her inability to live in the matrimonial home as a result, but also that the law enforcement agency had recognised/legitimised her claim. Similarly for Shanaz, Asma, Taslima, Anjana and Ruma the ability to face physical and mental cruelty and yet remain steadfast, constant and devoted to their marriage and husbands was seen as test of their wifehood. The trial of wifehood on the terms described above is so central to the claims of maintenance under Section 125 that advocates often refuse to fight cases in court for women if they cannot provide instances of facing upto cruelty, and proof of the husband's violence. To authenticate their claim to violence and ill-treatment, claim the advocates in the criminal courts, they should report the matter to the police. Noor Afroze Rana, a Muslim woman, appealed for maintenance under Section 125 in 1984 and won the case. She was granted maintenance, received seven instalments of the dues, withdrew further claim to maintenance in 1990. Her husband divorced her at this stage. Noor actually withdrew because she was remarrying (and would have had to give up her right to maintenance from her first husband under the circumstances). Her second marriage, however, ran into trouble within two years because her husband's grown-up sons by his first wife resented Noor laying claim to their father's income, and eventually, property. Unable to prevent his sons from breaking into his house, illtreating Noor and stealing his things, Noor's husband removed her from his house and set her up in a rented house in a village on the outskirts of Calcutta. Initially he visited her, gave her money. When his visits became infrequent and stopped altogether, Noor had nothing to subsist on. Fun.hermore, it was dangerous for her to live alone in this way. She went to the police station, made a report that she was leaving because her husband had stopped supporting her and returned to her mother's house. She then went to the advocate who had fought her first case to ask him to help her. At their meeting on 23.2.92, Noor tried in vain to tell the lawyer the whole story step by step of what had happened to the second marriage. The lawyer behaved very badly with her. He kept interrupting her and saying that what she was recounting were mere stories, 166

fabrications and they were no use in a court of law. She should have come to him when the sons of Taher Ali (second husband) had stolen her things and were troubling her. He criticised her for not having stayed on in the house (in the husband's house). It would have been better if she had been assaulted there as then the case under sec. 125 would have had some foundation. Noor tried to explain that Taher Ali refused to complain against his own children to the police as he would have had to bail them out if they were arrested. As his wife, and keen to keep the marriage going, she was powerless to do anything against his wishes. She said that she had registered a complaint at Mahestola police station in which she said that he was not supporting her and that she was forced to leave the house because she had nothing to eat. The lawyer said that the complaint at the police station was of no use for the case. If she had complained of torture or of being beaten up then it would have served some purpose. Under instructions from the lawyer Noor and I went to Maheshtola police station to register a 'proper' complaint. At the police station Noor's written complaint was much more elaborate than her first report but again did not mention physical violence by the husband. Noor's explanation to me was that since Allah was her witness she could not lie that her husband had beaten her. He had neglected her and refused to maintain her. An interesting sequel to Noor's interaction with the lawyer is as follows. At the meeting on 23.2.92 the lawyer harangued Noor about the ease with which Muslim men divorced their wives. She should have married the Hindu man who had shown interest in her when her first case was in court. The case for maintenance would have been easier because he could not have divorced her so easily. Noor explained that she was afraid that she would have been ostracized by her community if she had married a Hindu. The lawyer expansively claimed that all jatis were the same, we were all Indians. Noor,who hitherto had listened patiently to the lawyer's harangue, said quietly but firmly, "No, dada (elder brother). There are two jatis' - men and women." Noor's statement is in essence a recognition of the unequal status of women as compared to men, and wives as compared to husbands in their relationship to the state as also in civil society. Section 125 both in its intentions (protecting women from destitution) and in adjudication (protecting the ideal of the good and wronged wife) is embedded in a discourse of 'protection'. Pathak and Sunder Rajan point out in a discussion of the Shah Bano case and the promulgation of the MWDP Bill that all parties to the discourse shared the common assumption that they were protecting Muslim women (Pathak and Sunder Rajan 1989). Similarly in cases under Section 125 the discourse of protection is ubiquitous. 'Protection' confers on the protector the right to intervene in arenas hitherto considered out of bounds and also to speak with authority for the victim. Thus in all the cases under Section 125 we find that state 167

institutions, both the judiciary and law enforcement, intervene in family and conjugal relations hitherto out of bounds because of the private nature of the family. Women/wives are victims whom the state in offering to protect also defines by the authority invested in the role of the protector. In the process of offering and seeking protection an alliance is set up between the protector and protected. This in turn conceals the opposition between protector and protected which is a hierarchical one. Thus in a relationship of protector and protected, as between state and woman/wife, it is the first which bears more value. By virtue of this relationship the state then defines what wifehood means, and what forms of violence by husbands will be construed as cruelty or neglect legitimising thereby her right to be maintained by him. As can be discerned, this discourse of protection shifts the discussion of women's right to maintenance from being about what women are entitled to, to one which looks upon it as a privilege conferred on women who fall within the parameters of victim status defined by the protector. The apparent contradiction between the judiciary and the law enforcement agencies in implementing the maintenance rights of women can only be understood in the light of the problematic of protection. Despite the existence of Warrants of Arrest for husbands in 6 of the 12 cases in the study, only two were implemented and that too partially. As for example, in Marjina's case the Warrant of Arrest resulted in arrest for a short period of 39 days (whereas the sentence was for 34 months) giving her husband enough time to appeal to the High Court against the judgement of the lower courts. He lost in the High Court, has not paid the maintenance dues and there is still a Warrant of Arrest against him since 1988 which has not been implemented. In order to understand the apparent contradiction one needs to broaden the argument to encompass the relationship between the family, law and state. The family is a site and ideology which is protected by the state. Its right to autonomy and privacy is widely recognized and granted. The demarcation of the spheres of the family and the state as private and public enables these to work in a collaborative hegemony. This means that women's rights as individual citizens granted by the state can only be imperfectly enforced when its violation happens to be in the family. This is evidenced by the fact that when women appeal against victimisation in the family, as in Lakshmi and Ashoka's case where reports of violence by husbands did not result in arrests, the state agencies (read police) are more than reluctant to step in to prevent and punish the crime. Does Section 125 serve the purposes for which it was created? The need to give women the right to maintenance arose out of a recognition of their dependant status in marriage both because they are unlikely to be independent income earners and also because most women do not have property. A principle tenet of Section 125 is to protect women becoming destitute in the event of withdrawal of the husband/breadwinner. However, 168

as the experiences in the above twelve cases indicate, there is little to support the view that this is what is happening. The appalling record of outcome in these cases is that seven women out of the total 12 applicants have not recovered any maintenance dues at all despite the existence of favourable decrees. Only one woman, Noor, actually did recover her dues and withdrew the case when she remarried. Ohidenessa was able to recover part of the dues until her husband appealed to the High Court against the order (for a fuller discussion see following Chapter). For the two women receiving temporary maintenance at present the future is uncertain. Ashoka's right to maintenance is jeopardised by her failure in the trial of wifehood. Arati's husband is paying at present because failure to do so might result in a Warrant of Arrest. Being a petty government functionary arrest in a criminal offence would cost him his job. If women were to receive the amounts granted in permanent maintenance it would still not save them from destitution. Marjina received a maintenance award of Rs. 175 per month for herself and her two daughters. Ohidenessa's award was Rs.100 for herself and Rs.50 for her son per month. The ostensible reason for such low awards was that both these women live in rural areas where the cost of living is less. The real reason is that the court assumes that these women have natal homes willing to give them shelter, and natal families willing to bear the cost of maintaining them and their children. The urban women did not fair any better although the amounts awarded were higher than that of Marjina and Ohidenessa. On an average most women living in urban areas were granted Rs.200 -Rs.300 with the single exception of Ashoka who received a temporary order for payment of Rs.400. Women with children were given on an average Rs.50 Rs.100 per child. The amounts granted are insufficient to meet the average woman's expenses on food alone. Other expenses like shelter cannot even be considered in these amounts. Women who have been divorced or deserted, therefore, have no other alternative but to depend on natal families, kin and sometimes friends or fictive kin for shelter on whatever terms they may dictate. The time taken to obtain a favourable decree also works to the disadvantage of women. Marjina instituted a case for maintenance in 1977 and was granted a decree in 1984. Discounting the fact that till 1992 she had not received any payment from her husband, Marjina spent a total of 12 years between 1977 and 1989 in and out of court. Ohidenessa applied in 1982, was granted a decree in 1983, waited till 1987 to file the execution order and till 1992 was in and out of court waiting for a settlement. Ruma applied under Section 125 in 1989 and till 1992 had not received even a temporary order of maintenance. Although the other women have waited for less time to obtain a decree, on an average it has taken three years for the case to go through court even in Calcutta city.

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The inability to secure payment despite the existence of favourable decrees, the low amounts granted in maintenance, and the time that these cases take to be decided in court, all point to the fact that Section 125 does not serve its principle purpose which is to protect women from destitution. Agnes mentions that suggestions made by the Law Commission to overhaul this law by removing the ceiling of Rs.500, ensuring a woman's right to her matrimonial home, and measures for enforcing payment have not received any attention from the legislature (Agnes 1992). Section 125 represents the state's unwillingness to restructure property relations in marriage. By denying women equal rights to marital property in the event of dissolution of marriage or desertion by the husband, women as wives are posited as lesser citizens than men as husbands. It is in this entity that Muslim and Hindu women share a common fate and are equally disadvantaged. 4. 7. Conclusion It is generally accepted that the Hindu Marriage Act gave women equal rights with men in marriage. Marriage under this Act is a monogamous union and the facility for divorce is available to both partners. This is cited as evidence in support of the widely held belief that the Act gives equal rights to men and women in marriage. The data from my field work examines the experiences of women/wives, both Hindu and Muslim, who have gone to court in support of their economic rights from their husbands. My findings indicate, first and foremost, that the claims of sex equality made by the Hindu Marriage Act have little foundation in reality. The rhetoric of equality has helped obscure the fact that the mode in which the economic arrangements of extant marriages are constructed in adjudication is based on the ideology and legal actuality of wifely dependence. Husbands and wives are constituted as different kinds of persons with differential rights. The status of wife is invested with less power than husband statuses and a wife's claim to resources has less validity than claims by other dependants. Further, the experiences of Hindu women indicate that they stand to lose property that they bring with them into the marriage once these ties are severed. Women as wives do not fit the legal definition of 'subject' in relation to 'objects' (property) because their relationship to property is mediated by their subordinate position in the conjugal relationship giving them little access to and control over resources. Divorce or desertion is calamitous for both Hindu and Muslim wives. It entails a loss of economic support and right to shelter. State provisions for securing maintenance for Hindu and Muslim wives from their husbands is wholly inadequate and the record in actualising these rights is dismal. Further, the centrality accorded in adjudication to proving/disproving a woman's 'fitness' as wife shifts the discussion of a woman's rights 170

to maintenance from that of an entitlement to that conferred as a privilege. By this process the status of wife is subordinated by state institutions to that of husband statuses. The unequal treatment of husand/wife statuses posits women as lesser citizens and it is in this entity that Muslim and Hindu women share a common fate and are equally disadvantaged.

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CHAPTER 5 CONSTRUCTION OF COMMUNALISM: Muslim women and maintenance 5. 1. Introduction In 1987, a new legislation entitled Muslim Women's (Protection of Rights on divorce) Bill (MPWD henceforward) was enacted by the Indian Parliament. The need for this legislation arose because of the controversy raised by a Supreme Court judgement which upheld the application of a Muslim woman, Shah Bano, to life-long maintenance from her ex-husband. This legislation changed the previous access that Muslim women had to section 125 CrPC. I argue in this chapter that in the aftermath of the Shah Bano controversy and the MPWD Bill profound changes have taken place in the way Muslim identity is being constituted, the contests about Muslim identity in a secular state, in the definition of 'nation', and, that these changes have made gender identity, and particularly Muslim female gender identity, the site on which these changes are being debated and formulated. In a sense this argument is not new and many commentators have analysed the aftermath in this manner (See for example, Mani 1989; Sunder Rajan and Pathak 1989). What is new about my argument is that these reformulations are occurring at the expense of women's material interests not, as others have argued, because the new Bill changed Muslim women's access to section 125, but because Muslim women's entitlement under the MPWD Bill is being structured at the point of adjudication by communal discourses. I further argue that the Muslim identity, and the 'tradition' in which this identity is sought to be embedded, emerging in this context is 'new', new in the sense that it emerges most clearly in the 1980s. 5.2. Revisiting the past I have shown in Chapter II that Muslim personal law reform was argued within a discourse of community in the 1930s. This discourse delineated the contours of the community. Muslims were a community because their common heritage was the vastly superior code of Islam. By straying from this code the community had been degraded. The code of Islam was superior because, first, it was progressive in that it pioneered women's rights. Second, because Islam gave women their justified rights whereas custom deprived them. Islam was for equity as opposed to custom which was discriminatory. What we get from this discourse is the positing of a tradition which is vastly superior, just, and woman-friendly at that. Muslims could be proud of this 172

tradition which set them apart as a community from those following customary laws. In fact at the historical juncture in which this tradition was being formulated, Muslim personal law enjoyed an unassailable position in terms of superiority. Most people followed customary laws and the Hindu law had not been codified or reformed and was extremely discriminatory towards women. All this changed with independence in 1947. The other of Muslim personal law, Hindu law and custom, were reformed and codified. The reforms posited sex-equality as the basis for their formulation. The new Hindu law was formulated by dissociating the tenets from religion. Furthermore, the enactment of the Hindu Code Bill was seen as the first state attempt at modernisation. All this contributed to the notion that the Hindu Code Bill was secular and modern and, therefore, superior. By contrast Muslim Personal law was imaged as orthodox, conservative and religious. However, there were other important changes taking place at this time which formulated Muslim identity and tradition in particular ways. At independence in 1947 Muslims were reduced to being a minority community. As Mercer points out, 'A member of a "minority" is literally a minor, a subject who is in-fans, without a voice, debarred from access to democratic rights to representation: a subject who does not have the right-to-speak and who is therefore spoken-for by the state and its "representatives"' (Mercer 1992 p.429). In their position of being a minority the only distinctive right that the community enjoyed was the right to maintain the traditions of the community. And this right had to be protected by the state according to the promises of the Constitution. As I have pointed out in Chapter III the Congress which took power from the British at independence was always an organisation which had grown accustomed to absorbing and often accommodating a wide range of political views. These ranged from a liberal centre which wished to establish a state with a constitution which was secular and parliamentary in character, to the left of centre which hoped for the formation of a socialist state in which collectivist principles governed social and economic organisation, to the right of centre which was working to realise a state which embodied Hindu traditions and values (Graham 1990 p.5). These different groups had differing approaches to Pakistan and to Indian Muslims who comprised the largest single minority group. The liberals and left of centre in 1947-48 had accepted Pakistan as a fact and wanted a period of reconciliation in which a secular state could be built guaranteeing protection and a place for the minorities. The Hindu nationalists, on the other hand, questioned the sincerity of Pakistan and challenged Indian Muslim to prove their loyalty to the country. According to Graham, Jawaharlal Nehru, the first Prime Minister, represented the liberal centre which had secularist aspirations for the future 173

state and society. Rather than challenge secularist ideas directly the Hindu nationalists within and without the Congress tried to make a positive case that the policies of the Indian government should reflect to a large degree the sentiments of the country's Hindu majority (Graham 1990 p.9-10). Throughout 1947 the Hindu nationalists in the Congress made many conciliatory gestures towards the Hindu Mahasabha and RSS and believed that once it had been accepted that Indian government policies should reflect the sentiments of the Hindu majority, these organisations could work together. The first two public policy-making exercises in which the tension was played out were in the Constitution bill and the Hindu Code bill. Whereas in the Constitution bill certain basic secularist objectives were ensured paving the way for future reform, many compromises nevertheless had to made which secured the concept of a homogeneous, Hindu-oriented national community. Fierce controversies ranged over the Hindu Code Bill in 1949 and '51 and as I have mentioned before, it had to be abandoned at the end of this period. A number of political realignments took place in the early years of independence within and outside the Congress which shifted the centre of gravity within the Congress towards the liberal and secular aspects of its character (Graham 1990 p.41). This shift meant a more liberal dispensation for women and the minorities. Throughout the 1950s, for example, Nehru particularly but also the Congress, made efforts to ensure the security, representativeness in politics, and recruitment in jobs of Indian Muslims (Gopal 1988 p.2463-66; Hasan 1988 p.2467-78). In fact the Congress has since been charged by the Hindu parties for appeasing the minorities. The late '50s and the 1960s were relatively free of communal strife. It seemed as if the new nation had settled down to building a society based on progress and modernisation. Progress and economic growth had become the cement for national integration. 5.3. The context of the Shah Bano controversy As I have pointed out in Chapter I, the decades of the late '60s and '70s in India was marked by crisis and rebellion, a crisis of the state and rebellion by the people. The promises of independence, of equality and self-sufficiency, had not been delivered by the state. I have also pointed out that by the mid-seventies, state-society relations in India were undergoing a perceptible change. This change was from the state fulfilling an interventionist role to assuming a more regulatory and less developmental one. Political economists point out that this change was characterised by the weakening of state mediation and control over the economy. But this change can also be characterised in terms of the attenuation of the state's role in restructuring social relations and moving away from a commitment to social justice and equality. This was 174

accompanied by a phenomenal rise in caste and communal conflict as also the incidents of violence against women. The shift in state-society relations characterised by political economists as the weakening of state controls over the economy has meant an alignment of the state to the dominant classes. This has made it more difficult to maintain the alliance between them and the subaltern classes. This in turn has implications for the way in which the nation will be kept together and subsumed under the 'political roof' of the nation-state. A nation is not merely a political entity but something which produces meaning - a system of cultural representation (Hall 1992 p.292). To prevent a crisis of legitimacy for the state in the event of breakdown of such an alliance, the 'nation' has to be 'imagined' anew. As the 'nation' is imagined anew the identities of both 'state' and 'citizen' is redefined. Identities after all are not given but are formed and transformed within and in relation to representation. New forms of Indianness which act as a cement in the process of reworking this alliance are forged. That this reworking has entailed the naturalisation of a middle-class, upper caste, masculinist hegemony is acceded by most commentators (Tharu & Lalita 1993; Sunder Rajan 1993; Vanaik 1990). The reworking of Indianness has also meant the assertion of Hindu identity as superior and contests to hegemonise this in defining citizenship. I have analysed the contests taking place in the 1980s and '90s to achieve this hegemony in Chapter IX in a great deal of detail which I do not wish to anticipate here. What I do want to point out here is that this assertion of Hindu identity in the present draws on earlier traditions of political Hinduism but, nevertheless, signifies the rise of a new genre of political Hinduism. As I have explained in Chapter I, the situation in India in the 1980s and early '90s has been described as a current state of civil war in which the escalation of communal conflicts, the resurgence of majority and minority fundamentalisms, caste wars, and regional separatist movements challenged and fractured the image of the nation as a 'homogeneous' unity. The phenomenal rise of political Hinduism has meant a less secure environment for the minorities, and especially, Muslims. But more importantly the assertion of Hindu identity is taking place through the representation of Muslim identity and tradition as being foreign (this is not new), backward and obscurantist. It was in this context that the Supreme Court judgement in Shah Bano's case aroused so much controversy. S. 4. The Shah Bano controversy There were two moments in this controversy. The first moment was the debates that were generated as a result of the judgement. The second moment was the public 175

debates on the Indian Parliament's decision to frame a new law for divorced Muslim women. In the present discussion I will only highlight the first moment of the controversy and I have deal with the second moment in Chapter IX. As I have explained in Chapter I, the judgement in the Shah Bano case not only upheld Shah Bano's right to maintenance, but also quoted the Shariat to point out that this right was in keeping with Muslim Personal law. It also mentioned that in the absence of a uniform civil code the role of the reformer would have to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is far more satisfactory way of dispensing justice than justice from case to case" (Chandrachud, C.J., Supreme Court of India, Criminal Appeal No. 103 of 1981, judgement dated 23rd April 1985, emphases mine). Thus the courts and the judiciary are posited here as the saviour of victimised Muslim womanhood. In this framework the answer to the question who oppresses Muslim women is unambiguously : Muslim Personal Law. But Shah Bano was a Muslim and not only a woman. A judgement in her favour phrased in this way was also a judgement against the personal law of the Muslims.

I have also raised the question in Chapter I as to why this particular judgement became so controversial. Muslim women all over India were applying for and receiving maintenance under section 125 for almost a decade prior to the Shah Bano controversy.

I have attempted to answer why this was so by placing the moment in which the judgement occurred in the context of the crisis of identities taking place at the time. In this discussion I will concentrate on how this judgement was made into a controversy. And in order to do this I will rely on the way the judgement was imaged in the media and the debates and polarisations that this gave rise to. I will mainly rely on Nasreen Fazalbhoy's seminal work on the way the media represented the issue of Muslim personal law during this controversy (Fazalbhoy 1986) as also my own reading of the debates occurring at the time. In studying the debates occurring at the time I find that issues were not limited to the discussion as to whether the Koran and the Shariat allow the life-long maintenance of a divorced wife. Rather the Shah Bano case became the ruse which set off a debate whose main ingredients were attitudes to Muslim law, Muslim men and Muslim women, the position of the community as a whole, its way of life and its right to exist as a religious community in a secular state. Fazalbhoy, for example, shows that the central issue that was picked up by the media was that the judgement had said that a 176

husband was responsible for maintaining his wife after divorce. This issue was then reduced to a simple fight between those who were 'for' and 'against' the judgement. 'As the debate continued, the semantic field surrounding the two positions expanded so that the progressives were associated with the modern, secular, rational, humanitarian characteristics, while the fundamentalists were orthodox, rigid, angry, male chauvinists' (Fazalbhoy 1986). The fight between the 'for' and 'against' the judgement was totally confrontational and this sense of conflict was reflected and developed in the language used in the media to depict the two sides. The 'Urdu' Press, which is the cultural medium of many Muslims in India, also took a 'for' and 'against' stand regarding the judgement but gave it a different twist to that in the English language media. As for example, they showed that those against the judgement were protectors of Islam and the Shariat and were fighting to remove the distortions that had been brought in by the judgement in the Shah Bano case. And those against the judgement were out to destroy Islam. The people who were entirely left out in this debate were those Muslims who supported the judgement because they were considered to be outside the pale of Islam. The protagonists here were thus Muslims and non-Muslims. The highlights of the judgement, as depicted in the media, formed the first round of debates. The debate was soon extended to include attitudes to Muslim personal law. This was done through reporting from different parts of the country of cases, lifehistories showing the pathetic life of Muslim women denied maintenance at the time of divorce. In the English language press these stories served to prove the need for section 125. But more significantly the stories of deserted and divorced Muslim wives highlighted the oppressive and retrogressive nature of Muslim personal law. More often than not the issue of maintenance was not the primary objective of the story-line. Rather Muslim women were shown as victims of a personal law that allowed men to divorce them on flimsy grounds by the triple pronouncement of 'talak'. The plight of deserted and divorced wives as a plight common to many women across religious communities was successfully obscured by this association of divorce and desertion with Muslim personal law. For those who had never come across section 125 in operation, were unaware of the gender discriminatory nature of all laws on maintenance, whether Hindu or Muslim, the problem of divorce on flimsy grounds, non-maintenance of wives all became connected with Muslims and their religious traditions. The Urdu press, as Fazalbhoy points out, also joined the debate about Muslim personal law. The way in which they did it was by pointing to the deterioration of western society where the concept of alimony, they claimed, had given rise to confusion about 177

the marriage tie. In order to circumvent alimony demands men and women in western society were resorting to common law relationships. Thus common law relationships were replacing marriage and this was seen to be the inevitable outcome of the introduction of the burden of life-long maintenance imposed on husbands. The problems of Hindu society, and particularly dowry deaths, also featured in arguing the case for Muslim personal law. It was argued that murders were an inevitable consequence of alimony since divorce did not release the man of the responsibility of looking after an unwanted wife. The polarisation into 'for' and 'against' positions made it very difficult to move out of the framework set by the judgement and the media. The immediate consequences were that, first, Muslim women became pathetic figures who had to be saved, and second, that a wider discussion of the problems of women's property rights in marriage, whether Hindu or Muslim, was eliminated from the agenda of political debate. Certain themes kept recurring in the debates. These were national integration and secularism. At this point what was being stressed was that section 125 represented secular law because it was in the criminal code and was available to everybody irrespective of religious affiliation. Muslims, by refusing to abide by section 125, were against secularism. In the interests of national integration we should all follow the same laws. Muslims, by separating themselves out from secular laws, were against national integration, were therefore not patriotic. (I will deal in Chapter X with the debate about the UCC that the association of secular law with section 125 made inevitable). The MPWD Bill was rushed through Parliament in 1986. In 1985 the government (the ruling party being the Congress) supported the Supreme court judgement in the Shah Bano case in Parliament. In by-elections held the same year the Congress party, which still headed the central government, suffered heavy losses in predominantly Muslim constituencies. This was understood as being the reaction of the aggrieved Muslim community who saw in the government's support of the judgement the ruling party's failure to uphold minority concerns. In 1986 the same ruling party reversed its earlier stand to support the judgement and instead supported the MWDP bill which ostensibly was to save Muslim personal law. This was a gesture designed to win back Muslim support. As can be seen the debate on the Shah Bano controversy served to frame Muslim identity in particular ways. Muslims who were opposed to the judgement were fundamentalists and were orthodox, rigid, angry, male chauvinists. In contrast those who supported the judgement were associated with progressive, modern, secular, rational, humanitarian characteristics. Muslim Personal law became oppressive and 178

retrogressive. Muslim women were thus victims of a personal law that allowed men to divorce them on flimsy grounds by the triple pronouncement of 'talak'. I would like at this point to revisit history and remind the reader that in the debates in the 1930s, Muslim Personal law represented a tradition which was vastly superior, just, and woman-friendly. The code of Islam was superior because it was progressive in that it pioneered women's rights. Islam was for equity. After 1947, and in the first decades of independence, Muslim Personal law lost some of its gloss by its association with religion in opposition to the association of the Hindu Code Bill with secular and modern. But it was not retrogressive, obscurantist and did not victimise women. This Muslim tradition which is retrogressive, obscurantist and is oppressive of women is a new tradition that is being constituted by the rise of majority fundamentalism, the contests to rework the form of Indianness which will naturalise a Hindu, middle-class, upper caste, masculinist hegemony. And the debates around the Shah Bano controversy contributed in a significant way to the constitution of this new Muslim tradition and identity. This Muslim tradition and identity was on the way to becoming common sense when I conducted my study in 1991-92 and in the following section I detail how this articulates itself at the point of adjudication. S. 5. The Aftermath The enactment of The Muslim Womens'(Protection of Rights on Divorce) Bill in 1986 by the Indian Parliament continues the process of codifying Muslim Personal law. The debates in the context of the Shah Bano controversy, however, claimed that Muslim Personal Law has been left untouched and unaltered since independence. The claim is made by different quarters for differing reasons. As for example, the claim is made by 'modernists' to press their case that it is because they have been left untouched that Muslim women are the victims of the obscurantist traditions and laws of Islam. Hindu fundamentalists and the rightist political organisations make a similar claim to point out that the minorities in India are allowed special privileges (maintaining their personal law) whereas the majority (Hindu population) is not (since Hindu personal law was reformed in post colonial India and religious tenets did not necessarily form the basis for the codification). State authorities make this claim in order to protect the 'secular' image of the state which in a particularly Indian way means safeguarding the interests of religious minorities. This section presents data from my field work about the actual impact of this new Bill on women's lives. I will do this through an analysis of case studies of women litigants who have gone to court to demand maintenance in the event of desertion or divorce.

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But before I do this I should explain what the MPWD Bill says about women's property rights at divorce. As I have mentioned before, the Muslim Women's (Protection of Rights on Divorce) Bill enacted in 1986 changed Muslim women's access to Section 125 CrPC. But what are the new provisions that govern women's property rights at the point of divorce? Section 3 of the MPWD Bill lays down these provisions. According to these provisions, a Muslim woman who is divorced must be paid the "mehr" (dower) agreed upon at the time of marriage. She is also entitled to 'fair provision and maintenance to be made and paid to her within the itidat period (calculated as three menstrual cycles from the date of divorce) by her former husband'. If she is maintaining the children then her husband has to pay two years of maintenance for them from the respective dates of their birth. She is also entitled to the return of all properties that she brought with her to the marriage, and anything gifted to her during this time by husband, friends or relatives. As is the case in section 125, under this new law also, a woman must prove the validity of marriage and that her husband has sufficient means. Furthermore, under this new law also, the magistrate may sentence a person to imprisonment if he fails to pay. My contention is that the operationalisation of the Muslim Womens (Protection of Rights on Divorce) Bill has led to changes in the legal definition of relations between men and women in the Muslim family and particularly in the social relation of marriage. As can be seen from the case studies I present below, a profound change that is in the making has to do with the construction of Muslim men's responsibilities in marriage, and particularly to their divorced wives. In the process there is also a corresponding construction of Muslim women's entitlements in marriage. Implicated in these processes is the homogenisation of Muslim identity through the constitution of Muslim marriage as unstable and inferior and Muslim women as victims of contentious traditions. What is at stake here is the question of women's property rights in marriage. As will be evident from the case studies, the most crucial need for all these women is the redefinition of their rights to property in marriage. Five years had elapsed between the promulgation of the Muslim Womens (Protection of Rights on Divorce) Bill and my study, which was undertaken in 1991-92. In this brief span of time, half a decade, the legal construction of Muslim men's responsibilities in marriage had been undergoing considerable change. A noticeable feature of all these cases, and one which is indicative of the constructions taking place, is that half way through the maintenance suits initiated by women under section 125, all the men involved have resorted to appealing to section 3 of the Muslim Womens

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(Protection of Rights on Divorce) Bill. The case studies should make the significance of this trend clearer. 1. Marjina Ithatun, married for 10 years to Sk.lsrail, was thrown out by her husband in 1976. She was pregnant with her fourth child at the time. She went away to her mother's house in a small village in Hooghly district in West Bengal with the older daughter. In 1977 she applied to the lowest court in Chandenagore for maintenance under Section 125. In 1984, seven years after she initiated the case, Marjina obtained a decree from the court allowing her maintenance. Her husband immediately filed a suit in the court of the District Sessions Judge to appeal against the decree given to Marjina. In May 1986 Sk.Israil lost this case and Marjina's decree was upheld. Within a few months Marjina appealed to the court for the realisation of the payment due to her. Sk.Israil then declared that he had divorced Marjina in 1976 and, therefore, his case should now be tried under Section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill which had just come into force. The case for realisation continued, however, and in January 1987 a Warrant of Arrest was issued by the court for Sk.Israil because he had failed to pay the maintenance dues. He appealed to the SDJM (Sub-divisional Judicial Magistrate who heads the criminal court in a district) but was refused and there was an order for his arrest in May 1987. He was arrested. He appealed to the District Sessions Judge who ordered his release on the payment of a Fine Bond. The terms of the Fine Bond stated he would be granted bail on the condition that he deposited double the amount of money that he owed in maintenance which he stood to forfeit to the Government if he did not pay Marjina her dues within two months. The amount Sk.Israil deposited was Rs. 13,000. He was released on bail and went straight to the High Court to appeal that as a Muslim man who was divorced he was not entitled to pay Marjina maintenance and that his case should now be tried under section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill. ( The judgement in this case is mentioned in a later section of this chapter). 2. Mst.Ohidenessa was married for eleven years to Abu Bakar when she was divorced by him. Her son was 18 days old at the time. She returned to live with her brother in Arambagh, a small town in Hooghly district in 1974. In 1982 Ohidenessa appealed to the court for maintenance under section 125 Cr.P.C. In 1983 she was given an ex parte order for maintenance amounting to Rs.150 per month (Rs.100 for her and Rs.50 for her son). She filed a case for execution of the order in 1987 since Abu Bakar had failed to pay the dues. This came up for hearing in 1988. Between February 1988 and November 1989 the magistrate could not proceed with the case because the original records of the case were not available from the court records office. Although on February 20, 1988 the magistrate ordered the issuance of a Distress Warrant against Abu Bakar (which means that his property could be attached and sold to realise the 181

dues) it was not administered till almost a year later. On August 10, 1990 Ohidenessa's advocate appealed for arrest of the husband. The magistrate issued a Warrant of Arrest and on September 9 of the same year Abu Bakar was arrested and his prayer for bail rejected. He was released the next day on bail on the condition that he paid a first instalment of Rs.500 and subsequent amounts till the entire sum of Rs. 12,490 due to Ohidenessa (up to then) was paid back. Between September 10, 1990 and September 25, 1990 Abu Bakar paid a total of Rs.5000 in arrears payment. His interim bail was extended till October 26, 1990. On that date he prayed for time which was allowed and the bail extended. On October 30, 1990 his advocate presented the court with a letter from the High Court lawyer to stay proceedings in this case on the grounds that Abu Bakar had appealed to the High Court that as a Muslim man who was divorced he was not obliged to pay Ohidenessa maintenance. His case should now be tried under section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill. (The High Court judgement in this case was still awaited when I left Calcutta in April 1992). 3. Taslima Banu was married to Md.Ishaque in 1981. It was his second marriage and her first. She lived with him for two years in which she was subjected to so much violence that afraid for her life she ran away with her infant daughter and came to live with her parents. Taslima is a resident of one of the largest slum areas in Calcutta city. In 1985 Taslima went to the Committee for Legal Aid (run by the Judicial Department of the Government of West Bengal) to find out whether she could get maintenance for herself and her daughter. The CLA called Md.Ishaque and drew up a contract for payment of monthly maintenance. He paid her once and then rescinded. On December 5, 1985 with help from CLA, Taslima applied to the court for maintenance under section 125 Cr.P.C. Throughout the first half of 1986 the hearings for the case were held without Md.Ishaque ever appearing. Finally on June 16, 1986 when the ex parte order for maintenance was to be given, Md.Ishaque appeared and appealed for a hearing. The case then continued and on April 4, 1987 Ishaque's lawyer said that a compromise was in the making and the court should give him time. On June 20, 1987 Ishaque said that he would live with his wife and would set up a separate residence for her. On three subsequent dates Md. Ishaque appealed for time. In April of 1988 Md Ishaque filed a petition to stop the proceedings of the case saying that he had divorced Taslima and that as a divorced Muslim man his case should now be under section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill. (He produced a registered Talakanamma dated March 30, 1988). On September 1, 1988 Md.Ishaque paid Rs.2000 as 'mehr' and in October another Rs. 1500 for the Iddat period. That was the end of the case and in the CLA files it is labelled 'amicably settled'. 4. Shanaz Begum married Md.Taher in 1985, lived with him for a year and had a child. When she returned to her parentsin-law's house after her delivery she was ill182

treated and thrown out. In April 1989 she instituted a case for maintenance under section 125 Cr.P.C. On April 7, 1990 a decree of maintenance was given in her favour. She was awarded Rs.500 for herself and Rs.300 for her son per month. On May 26, 1990 Taher communicated to the court that he had divorced Shahnaz and on subsequent dates prayed for time to file an objection to the judgement given. On July 10, 1990 the magistrate issued a show-cause notice to Taher in response to Shahnaz's advocate's appeal for a Distress Warrant. On September 14, 1990 Taher's advocate filed a petition in court which said that as a divorced Muslim man his case should now be under section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill. The

case then proceeded according to section 3 and Shahnaz claimed Rs. 999 as 'mehr', Rs.10,000 for Iddat period and Rs. 10,000 as the amount which is entitled 'fair provision and maintenance' in section 3 of the Bill. In November 1990 the magistrate's order directed Taher to pay a total of Rs.7001 to Shahnaz in 20 equal instalments. (Mahr=Rs.999;Iddat—Rs.1001;Fair provision=Rs.5001). Up to April 1991 she had been paid Rs.800 as the first instalment. 5. Shaheeda Begum married Musthaque Ahmed in 1985 and was more or less thrown out in 1988. In July of 1989 she instituted a case under section 125 Cr.P.C. for maintenance. On March 30, 1990 Musthaque Ahmed maintained that the case under section 125 was not permissible as he had divorced Shaheeda and that it should now be under section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill. He claimed that he had divorced her on 28.3.89. In the next court hearing

Shaheeda's advocate argued that according to the Muslim Personal Law in India italale or divorce was not operative without it being communicated both to witnesses and to the wife. Therefore, Musthaque Ahmed was not divorced and could

not apply under section 3 of the Muslim Womens (Protection of Rights on Divorce) Bill. In April of 1990 the magistrate dismissed Musthaque Ahmed's petition and the case hearing under section 125 continued. On February 1, 1991 a decree was given in Shaheeda's favour and she was granted maintenance at the rate of Rs. 400 per month from the date of institution of the case. Up to the end of 1991 she did not get maintenance. The advocate appealed and on 16th March 1992 an order of arrest and payment was given by the court. (According to the personal communication from the advocate, Musthaque Ahmed was arrested and paid the first instalment of the arrears). What is happening in these cases and what does it say about the changing nature of legal definitions of Muslim men's responsibilities to their divorced wives, and about the way Muslim women's entitlements are being 'fixed' in the court? I have mentioned the dates of the legal events in minutest detail because these help to locate a pattern in what is happening. The first and most obvious conclusion I draw from this data is that Muslim men are being advised by advocates to appeal to section 3 as a way apparently 183

of getting out of paying maintenance to divorced wives. The tenets of the new Bill are being interpreted in the lower courts to mean that Muslim men have, by resorting to this section, greater ability to deny their wife's claims. The issue here is not whether section 125 is more advantageous for women than section 3 (since neither really protects women's claim to a share in their husband's property). What is happening here is that the claim that Muslim men do not owe their wives anything once they have divorced them is being constructed here. The authority behind this denial flows from the evocation of the tradition of the Muslims. Tradition here, as in the 'colonialist discourse'', is in the making, but not this time by the privileging of scripture and the textual tradition, at least not in the courts, but as enshrined in the new law and as interpreted in the courts. Where it resembles the colonialist discourse is in the fact that this tradition is interchangeable with 'religion' and 'culture'. A Muslim man, therefore, is one who does not have to pay maintenance if he is divorced and it is their religion that says that they do not have to. At this point note the contestation that took place in Shaheeda's case where her advocate argued that she had not been divorced according to Muslim Personal Law and has, therefore, found a way out of being tried under section 3 of the Bill. In Ohidenessa's case her husband's appeal in the High Court was on the grounds that she had admitted to the lower court that she had been divorced by him. The High Court, which is the Appeals court, has been contradictory in its judgements regarding such appeals by Muslim men. As for example, in the petition submitted by Abu Bakar's lawyer in the Ohidenessa case, a ruling of the Division Bench of the court is cited as saying that having noted the provisions of the Act it is clear that '...no divorced Muslim woman will be entitled to get maintenance under the provisions of section 125 of the Code. There cannot be any dispute with regard to this law'. On the other hand, in Marjina's case in the High Court the ruling given turned in her favour over a technical point which contradicts the Division Bench. It said ..'this Act makes no retrospective provision and under the circumstances the orders for maintenance already passed in favour of the wife cannot be reversed by seeking the provisions of this Act when the Act itself does not make any provision for having any retrospective application' (Khastagir & Sengupta 1988 p.11) There is also a corresponding construction of Muslim women's entitlements in marriage as can be seen from the cases. A reading of section 3 of the Bill does not leave one any the wiser as to 'what the law says' (which is a question I was always being asked in the course of my field work). According to this new legislation a '...this privileging of and the equation of tradition with scripture is, I suggest, an effect of 'colonial discourse' on India. By colonial discourse I mean a mode of understanding Indian society that emerged alongside colonial rule and over time and was shared to a greater or lesser extent by officials, missionaries and the indigenous elite, although deployed by these various groups to different, often ideologically opposite ends (Mani 1989:90).

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Muslim woman who is divorced must be paid the "mehr" agreed upon at the time of marriage. She is also entitled to 'fair provision and maintenance to be made and paid to her within the iddat period by her former husband'. It is wide open to interpretation. And my finding is that the function of the lower courts has been to 'fix' what women's entitlements mean. In Taslima's case the advocate argued for and obtained a payment of "mehr" and an amount which constituted the payment for the iddat period (calculated as three menstrual cycles). It was this particular advocate's first case of this kind. The same advocate then took up Shanaz's case. Apparently by this time there was more precedent available in such cases. Therefore, beside arguing for "mehr" and the amount for the iddat period, he also put down an amount for 'fair provision and maintenance'. Although he was not able to obtain the amount he asked for 'fair provision and maintenance' he nevertheless got something. The difficulty arises in understanding the basis of the difference in the amount the advocate asked for (Rs. 10,000) and the magistrate 'fixed' (Rs.5001). In Shahnaz's case, for example, the original decree under section 125 had granted her a monthly maintenance of Rs.500. If this had been fixed as the amount that she required, and what was within her husband's means to pay, it should have formed the basis for determining 'fair provision and maintenance'. If the amount of Rs.500 per month is taken as a basis and it is argued that she be paid a sum equivalent to the number of months that she was married, then Shahnaz should have been entitled to Rs.30,000. (Her husband declared that he had divorced her in 1990). If on the other hand the amount was to be equivalent to what she should have got for one year, the magistrate should have granted her Rs.6000. Either way Shahnaz was the loser. The question then arises as to what accounts for this arbitrariness. Can it merely be put down to the fact that the law is not specific? The fact that the law is not specific means that the interpretation of what constitutes a wife's entitlement can either favour the wife or go against her. If we look at the all-India precedents in interpreting this new law the first two legal verdicts under this new law went in women's favour. Rekha Dixit, a woman magistrate in the Luc'mow court, ordered Shafat Ahmed to pay his divorced wife Fatima Sardar Rs.30,000 as 'reasonable and fair provision' plus Rs.3000 as iddat and Rs.52,000 as mehr. Eight days later she directed Mohammad Khalid Ahmed to pay his divorced wife Shahida Khatoon Rs. 11,000 (mehr), Rs. 1500 (iddat), and Rs.69,000 as 'reasonable and fair provision'. Rekha Dixit was, by making these generous awards, interpreting the law in women's favour and in keeping with the reality of their lives (mentioned in Pathak & Sunder Rajan 1989) Thus the supposed arbitrariness of the lower courts in Calcutta has to be examined more closely to disentangle the discourses imbricated in the making of these entitlements. I have shown in the previous chapter that the maintainance of wives is 185

seen not as a right but as a privilege conferred on the woman/wife by positioning her as a material and ideological dependant. Thus as a divorced woman Shanaz is expected to be a dependant on her natal family (or to remarry and be dependant on another man). The maintenance allowance, therefore, is a sort of 'pin' money. It is not an entitlement in the sense of a right but a favour. Furthermore, communal discourses have also mediated Shahnaz's entitlement. The reason why I say this is best illustrated by the investigation I did of why in Tasli ma's case the advocate did not argue for 'fair provision and maintenance'. According to Taslima's advocate this case was settled in Taslima's interest. "We reached an amicable solution quickly because her father wanted her to remarry. We wanted to safeguard her marriage proposal" (Interview with Alok Kumar Basu, advocate October 1991). So according to him Taslima's interest lay in remarrying which he said was the common practice of Muslim women. According to Abdul Suban, Taslima's father, who was very active in Taslima's case, they had gone to court in the initial instance because they wanted maintenance. After having fought in the courts for almost two years the magistrate and the advocate told him that since now there was a new law for Muslims, Taslima would not get maintenance. They further told him that ....we are Hindus. We do not like this law and it is repugnant - we don't know why there is this new legislation but we have to give judgements according to this new law. Abdul Suban says that he cannot understand why the magistrate did not pass an order of maintenance for the period 1985-88 when Taslima was still married but was dependant on her father for her and her daughter's support. He is of the opinion that the whole process was unfair to Taslima. The difference in the versions of the advocate and the father as to why Taslima did not get maintenance needs explanation. Taslima's father and Taslima herself said that they went to court to get maintenance and were surprised that they did not. The advocate, on the other hand, said that the case had been settled in Taslima's favour and it was settled quickly because there was a marriage proposal for Taslima. According to the father, therefore, maintenance was a right which he sincerely believed that Taslima had. According to the advocate, however, the maintenance was an 'extra' because she was a Muslim and her future lay in remarrying. What does this say about the way Muslim marriages are interpreted by common-sense knowledges about Muslim tradition and the way Muslim women's entitlements are fixed based on this knowledge? This connection becomes clearer if we examine the discourses about Muslim marriage that are constantly drawn on by state officials. These discourses indicate that implicated in the construction of Muslim men's responsibilities and women's entitlements is the homogenisation of Muslim identity through the constitution of Muslim marriage as unstable and inferior and Muslim women as victims of contentious traditions. The 186

court officials (magistrates and advocates) see problems with the Bill not because it does not ensure in any way women's right to marital property, but because they claim that Muslim marriage is unstable because polygamy is prevalent among Muslims because it is permissible in Muslim law, and divorce by pronouncing 'talak' unilaterally weakens a woman's position. Therefore, what is at fault here is Muslim marriage regulations 'sanctioned' by their religion and culture. As one magistrate said in his interview ..."When a Muslim comes to our court we are already biased

their 3-4

marriages is repugnant to us". Thus common sense knowledge about what Muslim tradition constitutes draws on a communal discourse about the essentialised characteristics of the Muslims as a race which 'fixes' in particular ways what Muslim marriage is all about (unstable because of easy divorces), what Muslim women are (no better than prostitutes because they remarry). The Sub Divisional Judicial Magistrate of Alipore criminal court, who refused a formal interview but nevertheless aired his opinions on the subject of my research, said "For them marriage is nothing. They get married, have a few children and then they leave their wives" and" Muslim women are worse off than the household dog". 2 The power underwriting this discourse about Muslim tradition, Muslim men and women, and Muslim marriage is because it comes from state officials and this ensures its increasing normativity. [have discussed in Chapter I that a central justification of British colonial rule was the criticism of the "degenerate and barbaric" social customs of the Indian people, sanctioned, it was believed by their religious tradition. And nowhere was this more evident than in the way tradition, derived from religion, treated women. Colonialism, therefore saw itself as performing a 'civilising mission'(Chatterjee 1989 p.622 ;Mani 1989 p.120). It is difficult not to see parallels between what was happening then and the present. There is a similar equation here between the law and religious identity. The civilising mission is being carried on and this time by the Hindu majority lamenting the fate of Muslim women who are oppressed by their religious tradition. In all the cases cited the women have children and they have had to take the entire responsibility for their maintenance. Marjina has two daughters, now aged 14 and 16. Ohidenessa has a handicapped son v. ho is 17 years old. Taslima's daughter is now seven and Shahnaz's son just six years old. In the two cases which have been settled under section 3 of the Bill, namely Taslima and Shanaz, there is no provision made for the maintenance of the children by their fathers (although this is provided for in a most unsatisfactory fashion in the Bill). Interestingly enough, hov.eNer, in Shahnaz's application under section 125 and in the original decree she obtained, a case is made

1 - It should be noted here that the Committee on the Status of Women in India (1975) shot; cd that according to Census reports the incidence of pol) gam) as 5 8 per cent among Hindu men and 5.7 percent among Muslim men. Polygamy is not legal for Hindu men (cited b) Kisim ar 1987).

187

out for maintenance of the child. The maintenance for the child is entirely left out later in the petition submitted and order given under section 3. Thus in the lower court's interpretation of Section 3, the responsibility for the maintenance of children does not lie with the father in Muslim families. This also means that on the one hand women are positioned as family dependants, and on the other, have to bear the entire responsibility for the care of their children. As has already been noted earlier what is at stake here is the question of women's property rights in marriage. The most crucial need for all these women remains the redefinition of their rights to property in marriage. Consider the case of Marjina who best exemplifies what the situation is for all these women. Marjina lives at present in her mother's house. They own a small patch of land part of which had to be tenanted out to pay for repairs of the house. The produce of the land is used for consumption and does not last the whole year. Marjina and her daughters are able to share this with her brother and mother because the brother has not married. Marjina works as a wage labourer in agriculture to support herself and her daughters. Her older daughter, who is now sixteen, had to leave school at the age of thirteen to work and help support the family. She was good at studies. She says that she did this also to prevent her sister from having to work which would ruin her health and good looks, the only assets that such girls can have for a future career in marriage. Marjina has fought an incessant battle in the courts for more than a decade to obtain a share in her husband's property. She has won every single case without being able to obtain anything. Marjina says that she is interested in is a settlement of Rs.20,000 for her daughters which will enable them to be married and start off life with some capital. In the process of being deprived of a share of the husband's property, she and her daughters have been condemned to a life of extreme poverty. (An unintended effect also is that the brother cannot marry because he, as the male income earner, feels responsible for his nieces). What is more crucial is the fact that disadvantages that Marjina faced in her generation are being reproduced in the next. Her daughters could not be educated or trained for jobs/careers and have little or no option but to depend in the future for their sustenance on marriage. This chapter has argued that the Muslim Women's Divorce Protection Bill (1987) constitutes a major attempt at codifying Muslim personal law, setting up boundaries delineating what Muslim women are entitled to in the event of a divorce.ln the process Muslim women's 'entitlements' have been redefined and men's responsibilities to their divorced wives 'fixed' disempowering Muslim women. The construction of Muslim men's responsibilities and women's entitlements is occurring through the homogenisation of Muslim identity by constituting Muslim marriage as unstable and inferior and Muslim women as victims of contentious traditions. Both cormnunal and gender discourses are implicated in the construction of Muslim women's entitlements. 188

On the one hand, maintenance of wives is seen not as an entitlement but as a prvilege because women as wives are positioned as material and ideological dependants. On the other hand, the construction of Muslim marriage as being unstable and inferior further prejudice s the notion of maintenance. Furthermore, the process has led to the production of Muslim male and female identities as distinct from and in 'otherness' to the Hindu. I have argued that the creation of community identities, the delineation of entitlements in the family, and the 'fixing' of male, Muslim responsibility to divorced women has taken place at the expense of Muslim women's material interests.

189

CHAPTER 6 PROPERTY AND PERSONHOOD Hindu and Muslim sisters/daughters and inheritance.

6.1. Introduction It has been generally accepted that the Hindu Succession Act, 1956, which is part of the Hindu Code Bill, established parity between women and men in the matter of inheritance rights. It has also been widely acknowledged that Muslim women in West Bengal have established rights of inheritance in the Muslim personal law but that this right is less than that of Muslim men since, as heirs, Muslim women are entitled to half the share that men can claim. The juxtaposition of these statements sets up a hierarchy of rights whereby Hindu women's rights to inheritance are privileged over those of Muslim women's rights as heirs. This chapter reviews the experience of Hindu and Muslim women litigants claiming, through the courts, their rights to inheritance from their natal families. As a result it takes issue with this uncritical hierarchisation. Inheritance rights are most critically about awarding or withholding control over family resources which affect the life chances of the future generation. Inheritance laws thus constitute material practices whereby family authority relations are maintained. By focussing on women and inheritance we are able to consider more closely the gendered nature of authority relations in families. The central issue to be addressed in looking at women's inheritance rights in law and in adjudication, therefore, is the ways in which state institutions articulate notions of personhood constituted by forms of familial and kinship relations. It is these which keep in place authority relations hierarchising men's claims over that of women's claims. Viewed from this perspective it becomes clear that the courts view both Hindu and Muslim women's relationship to male siblings as one of subordination and dependency in relation to claims on ancestral property. The claims of women as daughters are subordinate to those of brothers. This chapter will be in two parts. In the first part I will discuss the general principles of the laws regarding inheritance and succession for each of the Personal laws, namely, Hindu and Muslim. In the second part, I will present case studies of Hindu and Muslim women litigants who have approached the courts in support of their claim to ancestral property. The discussion of the court cases will be embedded in the life histories of litigants to understand more fully the ways in which kinship and gender ideologies inform legal treatments of claims to ancestral property made by daughters/sisters. 190

6.2. Hindu and Muslim women and inheritance 6.2.1. Hindu women and inheritance The Hindu Succession Act, 1956 gave women the right to hold property as absolute owners, the status of co-heirs with brothers in the father's property, and made a daughter's inheritance share equal to that of brothers. The debate to award daughters a share in the father's property lasted for more than a decade in the legislatures. The proposal to give daughters an equal share in inheritance as their brothers was opposed at every step on the ground that it would result in the destruction of the Hindu joint family which was patrilineal in orientation.(For fuller discussion of the history of this Act see earlier chapter). It would

seem, therefore, that since 1956 Hindu women have had the same right as

their brothers in inheritance. The hegemonic public discourse about Hindu women's rights is that Hindu women, unlike Muslim women, have an equal share in inheritance to that of their brothers. However, as the historical debate shows, and the operation of the present

Act indicates, women's rights to inheritance are not as unequivocal as the

hegemonic public discourse seeks to establish. Hindu women's inheritance rights are mediated by their kinship position, by the acknowledgement in law that a daughter does not

belong to the natal family but rather to the marital one. The equivocation

regarding women's rights to inheritance in the present law arises from the inability of the State

to dismantle via social legislation the concept of succession and inheritance

underlying the tenets of Hindu law. Central to the tenets of the religious Hindu law is the concept of joint family property. Hindu law recognised two distinct types of joint families. These were the Mitakshara and Dayabhaga. which consists

The Mitakshara joint family is based upon the Mitakshara coparcenary

of a male Hindu and his three male descendants. The members of a

coparcenary cannot be removed more than four degrees from the last holder of the property. All the coparceners hold the property jointly and their interest fluctuates with deaths and of a

births. The son takes an interest in the joint property at birth. On the death

coparcener his share devolves on other coparceners by survivorship. No female

can be

a coparcener, although wives and unmarried daughters of coparceners can be

members

of the Mitakshara joint family which is a broader body than the coparcenary.

In the Dayabhaga school, the father holds the property in his individual capacity. His sons acquire but have

an interest in his property on his death. The sons take a defined share each

a unity of possession and thus it is on his death that a coparcenary comes into

existence. The interest in property devolves by succession and not by survivorship. Significantly females can be coparceners under Dayabhaga law (Parasher 1992 p. 304). 191

Most property belonging to Hindus has been governed by the Mitakshara school which does not recognise women as heirs. However, in Bengal the rules of the Dayabhaga school obtained which gave some, although limited, rights to women in the coparcenary. The Mitakshara coparcenary was not abolished by the new Succession Act, 1956. As a consequence the father and sons (among other possible combinations) held the joint family property to the total exclusion of the daughters and mother. Unlike the son the daughter did not get an immediate interest in the joint property at birth. She was only entitled to inherit a part of the property that constituted the share of the father once he died. The son in addition to being the joint owner of the coparcenary property takes an equal share with the daughter and the widow of the deceased (Parasher 1992). Thus the quantum of a daughter's share in inheritance is not the same as that of her brothers. The Hindu Succession Act, 1956 also retains two separate schemes of succession for men's and women's property. The scheme of succession for the heirs of women gives much importance to the source from which the woman has acquired her property. The preferential heirs under this scheme are a Hindu woman's husband and children. In cases of women not survived by husbands and children the property inherited from her mother and father would go to the heirs of the father. If the property is inherited from the husband or father-in-law , it would devolve on the heirs of the husband. Significantly the Act does not provide for the transmission of property acquired by the woman herself. It is assumed that she is unlikely to acquire property and that whatever she holds should go back to the rightful owners, namely, the family. In this sense women are not seen as rightful owners of property. A further concession made by the Hindu Succession Act, 1956 to those who were opposed to the idea of awarding women inheritance rights on the grounds that it would break up the Hindu joint family (and men's interests therein) was the stipulation regarding the division of property on which there is a dwelling house. The Act clearly stipulates that daughters do not have the right to seek partition of property on which there is a dwelling house. They can seek shelter there in the eventuality of being widowed or deserted by husbands but they cannot ask for partition of the property. This signifies that women cannot own this kind of property and do not have rights of alienation (which is the ultimate test of whether or not an individual is an absolute owner). Partition of such property can only take place at the instance of the brothers. A sister will get an equal share as her brothers if they choose to partition the property. The explanation given when making this stipulation, which is discriminatory towards women (and actually violates Constitutional guarantees of equality), was that a daughter after marriage was more likely to be under the influence of her husband and 192

could not be trusted to be prudent with regard to this form of property. Women's interests in property were thereby subordinated to the interests of males. A further handicap that women face in exercising their right to parental property is the provision in the Act for making wills. Given the cultural context of property rights in Hindu families wherein ancestral property is seen as rightfully belonging to male heirs, this clause has provided a loophole to family heads to disinherit daughters in favour of keeping the property within the family. Hindu women's inheritance rights as guaranteed by the Hindu Succession Act, 1956 are at best, a compromised one, positioning them as family dependants and reiterating their 'natural' location as being the marital family and not the natal one. The oftrepeated claim of parity in men and women's inheritance shares guaranteed by the Hindu Succession Act is limited to that aspect of property which is acquired by the father (or mother) and which excludes from its ambit most property that is tied up in coparcenaries. The right to shelter in her parental home for a daughter is also a mediated one dependant to a large extent on the goodwill of her brothers. 6, 2. 2. Muslim women and inheritance. Muslim women's inheritance rights are governed by Muslim Personal Law. In 1937 the Legislative Assembly enacted the Muslim Personal Law (Shariat) Application Act. This piece of legislation was mooted and supported on the grounds that in many of the then north Indian provinces of British India (particularly the Punjab) customary practices had taken precedence over Islamic law in deciding matters of succession and inheritance (See Chapter III for a fuller discussion). As a result Muslim women were being deprived of inheritance rights which were guaranteed by Islamic law. Although the Act

was passed with the express purpose of protecting Muslim women's inheritance

rights given

them by Islamic law, a significant proportion of property was left out of

the jurisdiction India at

of this Act. Agricultural land which constituted 99.5% of property in

the time was left out making the applicability of this bill a severely limited one.

However, as was evident in the debates that took place at the time of the enactment (and contemporary women in

data seems to bear this out at least for West Bengal) Muslim

the states of Bengal, Bihar and Orissa had for a long time enjoyed

inheritance rights

stipulated by Muslim law. (Legislative Assembly Debates,

1939:1854 mentioned in Lateef 1990). Consequently, in Bengal a Muslim woman's inheritance rights

The rules of

include the right over agricultural land.

succession in Mohammedan Law (Islamic law is referred to as such in the

Indian courts)

are very sophisticated. Therefore, the discussion here will limit itself to 193

those aspects of the law which are distinctively different from Hindu concepts of succession and inheritance. The first and most interesting difference in the concepts regarding inheritance and succession is the fact that Muslim law does not recognise coparceners who are joint in estate. The heirs of the deceased Muslim are separate, entitled to hold the property as tenants-in-common, each having a share in the whole property. The shares of the heirs are definite and known before partition of the property and specified in law. Therefore, all that happens at the time of partition is a division by metes and bounds and separate possession and enjoyment of specified items of the property, the specific share of each heir being already determined by the law itself. Muslim succession is thus individual succession. Since the basis of the laws of inheritance and succession in Muslim law is not the joint family, for the purposes of inheritance no distinction is made between moveable and immovable property or that between ancestral and self-acquired property. The right of inheritance to the estate of a deceased Muslim vests in his or her heirs at the moment of the person's death. Thus no heir gets right by birth unlike in the Mitakshara system where certain heirs get a right by birth in the ancestral property. All property inherited by Muslim women is their absolute property, a right which Hindu women have only recently acquired by the enactment of the Hindu Succession Act, 1956. Because Muslim heirs are separate co-sharers the principle of survivorship is not known to Muslim law. As there is no such thing as joint-family property, acquisition by one member of the family cannot be presumed to belong to the family. Members of a family succeed as heirs and not as members of the family. The principle of individual succession holds good even in the case of a will. Muslim women's rights, under Sunni law are derived from four schools of jurisprudence: Hanafi, Hambali, Shafi and Maliki. Shias follow a different set of laws, as do the many sects who follow separate practices depending on their regional environment in India (Lateef 1990 p.57). Of pertinence here is the Hanafi school of law followed by Sunni Muslims since this is the most widely followed. According to Hanafi law the possible heirs are divided into four main categories, namely, sharers, residuaries, distant kindred, and unrelated successors. The first step in the distribution of the estate of a deceased Muslim is to allot to the class of sharers the shares to which they are entitled after the payment of funeral expenses, debts and legacies. After such allotment the residue should be divided among the residuaries if there be any. All sharers cannot succeed at one and the same time. Some may be excluded by others and some may be converted into residuaries. The principle of exclusion is based on nearness of relationship by blood. The nearer in degree excludes the more remote. This therefore, sets up an order of succession. The quantum of shares are fixed by law and follow the general principle that for each class of heirs the shares of all males and 194

females in that line are separately collected, the collected share of each group is then divided according to the rule of a double share to the male, and finally, if the sexes differ in any lower line the same rules are applied over again without mixing up the shares already separated. The implication for Muslim women's inheritance rights is as follows. First, daughters and sisters cannot be excluded from inheritance because they are Koranic heirs. The concept of 'waris' or heir positions sisters and daughters firmly in the order of succession and is protected by law and by tradition. Second, this right of heirship applies to all kinds of property left by the deceased and applies equally to women as to men. Third, the main disability faced by Muslim women in the matter of inheritance is the quantum of shares allocated to them which is based on the principle of a double share for men.

6.3. Hindu and Muslim daughters/sisters and inheritance 6.3. 1.Introducing the litigants En the previous section I have outlined the main principles of the inheritance and succession laws governing the rights of Hindu and Muslim sisters and daughters. This section investigates the experience of Hindu and Muslim sisters and/or daughters who appeal to the court in support of their right to inheritance. I present case studies of eight women, four Hindu and four Muslim. Litigation regarding property, particularly in situations where inheritance and succession are involved, has long gestation periods in the Indian courts. Delays caused by procedures, shortage of judicial personnel to handle the volume of litigation, and the inevitable delaying tactics resorted to by lawyers and litigants, all contribute to the long gestation periods. As a consequence most of the case material in this study refers to on-going cases which are yet to be resolved or to cases which, although resolved in the lower courts, are the subject of appeal in higher courts. On an average a case involving partition of property can take up to ten years but many take even longer. Table 7A introduces the profile of the litigants under study. As can be seen from this table, the age range of the respondents varies widely. However, they are all past their mid-thirties. The age profile seems to indicate that the women studied came to court in support of their rights to inheritance at a point in their life-cycle when there is a critical break in support systems provided by other institutions, as for example, marriage. The data on the marital status of the litigants seems also to corroborate this observation. Only one among the eight respondents was married and living with her husband at the time of

the study. The rest were either widowed or deserted. The case studies, which 195

also look

at the life-histories of these women, seem further to confirm this conjecture.

Further, if we look at the data on the present location of these women we find that most of them have a problem of shelter. This problem of shelter refers to two things. First, it refers they

to the precariousness of the right to live where they are living which means that

can be thrown out at any point and, second, that living there means constantly

negotiating terms with those on whom they are dependant for shelter. The occupational profiles

of the respondents seem also to indicate that these do not provide the necessary

support. Most of the respondents were either not in waged work or were engaged in waged work

which is inadequately compensated. In other words inheritance becomes a

critical resource and the tight to inheritance or lack thereof a significant factor affecting the life chances of these women.

I%

TABLE 7A: PROFILE OF RESPONDENTS in property cases

NAME

HINDU/

AGE

PRESENT

MARITAL

OCCUPATION

LOCATION STATUS

MUSLIM Manorama

Hindu

50

Natal home.

Deserted after 2 years of marriage

Maid servant

Juthika

Hindu

36

Natal home

Widow

Clerical job in private firm.

Kundabala

Hindu

70

Son's home.

Widow

Housewife.

Debika

Hindu

40

Has forcibly occupied a flat in one of the properties left by father.

Deserted after 2 years of marriage

Self-employed

Nehar Balm Bewa

Muslim

60

Living with fictive kin in mother's natal village.

Widow

Maid servant

Momena

Muslim

65

Marital home.

Widow

Housewife

Roush-enara

Muslim

40

Marital home.

Married

Housewife

Rahatun Bibi

Muslim

40

Own home built on father's land.

Widow

Housewife

Bibi

197

TABLE 7B: RESPONDENTS AND THEIR CASES NAME Manoram a

NATURE WHEN AGAINST PRESENT OF CASES FILED WHOM STATUS Case for 1987 Brother Brother partition of died in father's 1990 property on making it which there is possible to a dwelling legally place. get partition Case for partition of father's property on which there is a dwelling place. Criminal case against brothers for torture and harassment.

1988

Kanda- bala

Partition suit for land and property left by father.

1989

Brother

Partition suit stalled temporarily by legal problems.

Debika

Partition suit for share in property left by father.

1989

Brother

Partition suit is temporarily stalled by legal complications

Nehar

Title suit 1983 claiming that defts. had fraudulently usurped her share of property inherited from mother.

Maternal uncle

She won the case in the lower court but lost in the appeal brought by defdts.Has appealed in High Court.

johika

Momena Bibi

Partition of mother's property.

Brother

Has withdrawn temporarily from partition suit because of intimidation by brothers Criminal case was in her favour.

Cousin brothers

1987

Nephews

198

Interim injunction refused by court.

TABLE 7B: RESPONDENTS AND THEIR CASES (cont.) NAME

NATURE WHEN AGAINST OF CASES FILED WHOM

PRESENT STATUS

Roushen- ara

Partition suit for her share in father's property.

1989

Mother

The court granted an interim decree to prevent alienation of property before completion of partition suit.

Rahatun Bibi

Partition suit in which she claims that her share of her father's property was usurped fraudulently.

1987

Brother

Injunction plea brought by her has been allowed. Application to appoint Receiver for properties disallowed by the court.

Table 7B presents in summary form the nature of the cases brought by the litigants in the study, the present status of these cases, and, the relationship with those against whom the cases have been brought. As can be observed from this table, all except one of the cases was filed after 1986. The table indicates a difference between Hindu and Muslim women with respect to their relationship to the defendants. All the Hindu women have brought these cases against their brothers whereas for Muslim women their defendants include nephews, maternal uncle and mother. The difference has to do with the nature of inheritance laws and women's positioning therein. Whereas Hindu women are litigating for inheritance rights to their father's property as a member of the family, Muslim women's litigation is from the point of view of their status as heirs against other heirs. As can be perceived from the nature of cases, for all four Hindu women the struggle is to prove their right as inheritors and the outcomes to date in these cases indicate that this right is not unambiguous. For Manorama and Juthika the problem lies in the fact that the nature of the property they are litigating about positions them, in terms of the law, as subordinate heirs to their brothers. In the case of both Kundabala and Debika their partition suits have run into legal problems precisely because their status as sisters who are heirs is not clear cut as far as the law is concerned. For the Muslim women, on the other hand, the nature of cases seems to indicate that it is not their status as heirs which is at stake. Rather it is their ability to 199

possess and enjoy this property as a sharer which is at stake. It is significant that in three of the four Muslim cases the opponents have argued that the legal share of the woman in question was gifted to them by her (which is the only way they can validate how they came to possess this property in the first place) and that the litigants themselves have argued that this was done by fraudulent means. The outcomes in these cases so far seem to indicate that in the process of adjudicating entitlements the judiciary has developed its own conceptions of social structure - its forms of knowledge about the way in which group life is constituted and reproduced. And this plays a central role in deciding the validity of claims to truth made in the court. As the case studies attempt to show (in the details that this Table cannot) gender as a form of social differentiation is a central constitutive element in the construction of judicial conceptions of the social structure.

6.3.2. Ambiguous heirs - Hindu sisters and/or daughters and inheritance. This section discusses the problems encountered by Hindu women in exercising their rights to inheritance in the law. As can be seen from Table II, all four women have brought these cases against their brothers and in support of their right to be inheritors of their father's property. Kundabala, the oldest litigant, seeks partition of her father's property on the grounds that the new law (HSA, 1956) gives her a right to an equal share along with her brothers. Her case is that her brothers partitioned the father's property in 1971 and did not mention her as a co-sharer in this suit. As a result she has been deprived of her share of the property. Her brothers have claimed in court that she is not entitled to a share of the father's property because the property devolved on them as heirs on the death of their father in 1946 much before the new Act came into being. According to the Dayabhaga rules of inheritance the right of heirs comes into existence immediately after the death of the father and this is the situation that obtained in their case. The partition of the property in 1971 was undertaken to decide on the nature of property to be controlled by each of the heirs. This partition, therefore, was not undertaken to decide on the number of sharers which had already been established by the devolution of the property on the heirs on the death of the father in 1946. Judicial opinion seems to support the brothers' claim as is evidenced from the Issues framed by the magistrate

in this case. Thus Kundabala's right to her father's property remains to be

established by the outcome in this case. Debika has also applied for partition of her father's property which includes both moveable and immovable property. The main defendant in this case is her brother although are all

her mother, who is alive, and her sisters are made a party to the case as they

co-sharers. The brother's case in court is that the main property, a house in north 200

Calcutta, cannot be the subject of partition since his father signed a deed of settlement before he died handing over ownership to him. He also indicates that Debika was given jewellery at the time of marriage and this constitutes her share of the inheritance. Debika has replied that she does not accept the Deed of Settlement. However, the validity/invalidity of the deed of settlement has still to be proved/disproved in court by both the parties. The issue of partition of the property cannot be taken up until the evidence on both sides regarding the validity/invalidity of the Deed of Settlement is heard in court. Thus Debika's right to inherit her father's property remains to be established by the outcome of this case. Manorama and Juthika find themselves in similar legal situations. In both these cases the women have applied for their share in their father's property. However, it is the nature of the property which makes their positioning as female heirs very ambiguous in terms of the law. In both these cases the property includes urban land on which there is a dwelling house. According to the HSA, 1956 a female heir cannot ask for partition of such property although she is entitled to an equal share as that of her brothers in this property if they decide to partition it. As can be observed from the above discussion the common ground in all these cases is that the women's claim to be heirs has not been established in unambiguous terms by law. The point of adjudication, therefore, is to establish their right as inheritors. The process of establishing the right of heirship entails hierarchising claims made by both parties. In the discussion that follows I will look at the ways in which claims are hierarchised. This will mean establishing how women's positioning as daughters/sisters is implicated in this process of hierarchising claims on heirship. Since a common disability with regard to inheritance rights faced by Hindu women is Section 23 of the HSA which debars female heirs from seeking partition of property on which there is a dwelling house, I propose to use this as an instance in examining women's positioning as sisters/daughters in relation to inheritance rights. I propose to do this by examining one case history in detail, that of Manorma, and referring to Juthika's case.

Manorama Das is fifty years old, is barely literate and supports herself by working as a maid servant in middle class homes in her locality. Manorama is not married at present and should be considered as single. She does not have any children. Manorama has lived almost all her life in her natal home. She was married off at the age of eighteen, lived for a brief two years in her marital home, and left for reasons which she does not discuss. Her verdict about her marriage is that her husband did not maintain her. She lost touch with him after this brief encounter. In recent years she learned that he had died and so at present she dresses like a Bengali widow. 201

Manorama's father was a petty government official. The family comprised two daughters and a son. Manorama's elder sister is married, has children and lives with her husband. Manorama's father was able to accumulate sufficient resources to invest in purchasing land in what was then the outskirts of Calcutta (and is now right in the centre of an expensive suburb). During his lifetime he built a house on this land (temporary structure with clay flooring and tiled roof). He died after a prolonged illness. As a result part of the land was at one stage mortgaged to a private person to raise money for his treatment. During the time of her father's illness and up to the present her brother-in-law has played a central role in supporting them. He repaid the loan and released the land, took her mother to his house after the father's death and still supports her. Manorama's father died intestate (which means that he did not leave a will directing the future succession of his property). Manorama's brother, Dulal Das, was according to the respondent irresponsible and never performed the duties of a son of the family. By this she means that none of the family members were ever supported by him. He did not even pay for his father's death rites. Her mother has since her father's death been supported by Manorama's brother-inlaw. And yet he got many resources by virtue of being a son. When her father was ill his job was offered to his next of kin, which was his son. Dulal apparently got this job but finally could not keep it because he shirked work and was often absent. During his lifetime the father tried to educate his son but Dulal did not try very hard and barely finished school. Dulal married a few years after his father's death and told Manorama that he would not support her. It was at this stage that Manorama first went out to work. She has since been working and supporting herself for over twenty years. Since she was barely literate and was not trained in anything but household tasks she had to take jobs related to such tasks. Initially she was able to get jobs as a housekeeper cum nanny in middle-class households. This meant that she lived with the family for whom she worked. When she left home for the first time she kept her few household possessions in her brother's care but she never got them back. Manorama returned home at a point when the house that her father built was collapsing and an alternative arrangement had to be made for the family. In 1969 it was decided that a piece of the land would be sold to raise money to build the new house. The sale of the first plot of land was, therefore, undertaken in 1969 and with this money a new house was built. The new house had two rooms facing a common verandah but treated as two units with separate entrances. According to both the respondent and the legal papers, the joint owners of the property, namely, the mother, brother and sisters, all contributed in the construction of this house and were in joint possession of it. The brother lived in one room with his family and the mother and 202

daughter shared the other. However, since Manorama was away a lot of the time on jobs, her mother occupied the second room and Manorama stayed there whenever she came home. In the 1980s Manorama found it more and more difficult to find jobs where she could be a housekeeper and nanny and, therefore, have a place to stay. She felt that she was growing older and did not have so much energy any more. She returned home unable to maintain herself the way she had done for the previous ten years. At first she requested her things back from her brother which he did not return. She realised that she would have to fend for herself and could not rely on him even in times of illness. It was at this stage that she requested for the first time for her share of the father's property. In relating the story Manorama emphasizes that she would never have asked for this unless she was entitled to it. She also stresses that she asked for her share because she could not depend on her brother for maintenance. She adds that she realised that she was growing older and soon would not be able to look after herself. If she had access to property she would have the material means to obtain care. As for example, she said that if her brother's son agreed to look after her when he was older, she would leave him her share of the property. Her request for her share of the property was treated with utter disdain by her brother. She attempted for five years to negotiate with him for a settlement. She took her case to the community leaders in the area who had numerous sittings with her and her brother but failed to convince him to make a settlement. She approached the existing community organisations in the area to intercede. Her request for her share provoked quarrels in the household and in the month of February in 1987 Manorama was severely beaten. Afraid for her life she asked the 'elders' in the area for a settlement. When they failed they suggested to her that she should go to court to obtain partition of the property. Her sister was not interested in obtaining partition of the property through the court because she had her own property in her marital home. However, she gave Manorama the go ahead to seek partition of the property in court. Manorama approached her employer for advice and help. He wrote out her application for Legal Aid. The case was filed in 1987 with assistance from the Committee for Legal Aid. The property which is the centre of the dispute consists of a house with two rooms (as described earlier) situated on four kathas (1/8th of an acre) of land. The house occupies one corner of the land and the plinth area is not more than 1000 sq.ft. It is bordered on the eastern side by high rise apartment houses belonging to the upper and middle classes and on the eastern side by the street. The house is on the south-eastern edge and a portion of the north-western edge is taken up by the debris of the collapsed house. One

of the rooms is at present occupied by the brother's family and the other by 203

Manorama and her ageing mother. Since the commencement of the case the brother has attempted in every way to evict her from the room and she has tried equally hard to remain in possession. Manorama spends all day working and is, therefore, out of the house most of the time. Since the brother would not allow her to use the common facilities - water, access to kitchen etc. - Manorama uses the courtyard of a neighbour's house for preparing her meals. She has fenced a section of this courtyard and roofed it with tiles to serve as makeshift kitchen. Dogs and cats often stray in. She spends the rest hours during the day here and returns to her room only at night to sleep. All she owns in the room is her bed and a few personal belongings. But she nevertheless maintains her stubborn hold on it. Manorama's petition was filed in the month of July 1987. Her brother did not file his Written Statement for nine months from the date of Manorama filing the case. It was only at the stage when the court had finally decided to undertake ex parte hearings that he gave his Written Statement. In the Written Statement submitted by him the main argument was that Manorama's case is not legal because according to Section 23 of the Hindu Succession Act, Manorama as a female heir could not claim partition of property on which there is a dwelling house. He further argued that the expenses for the construction of the new house were entirely borne by him. He had permitted his mother to stay in the house but not Manorama. Manorama, he claimed, lived in her father-inlaw's house and stayed with her mother occasionally when she visited and that too with

his consent. In June, 1988 the Judge framed the Issues of the case after hearing the lawyers representing the two sides. In the Issues the main point raised by the Judge is the validity of Manorama's case since according to Section 23 of the HSA a female heir cannot claim partition of a dwelling unit. Furthermore, she does not even have a right of residence according to the HSA if she is married. At this stage both parties were

required to provide documentary evidence regarding the nature of the property. Manorama was expected to produce the official documents for the land and the house which were in her brother's possession. She had to pay to obtain duplicates from the court because there was no question of getting these out of her brother. Further,

Manorama would have to prove that she was in possession of the property, that she did not reside in her father-in-law's house, that she was deserted by her husband. The main onus of proving that she is a legitimate heir falls on Manorama as the sister who was married for only two years, an event which then disqualified her in the eyes of the law from her entitlement to her father's property.

Both parties resorted to delaying tactics at this stage on the ground that the documents had to be found. In early 1989, after a delay of six months, the documents were

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produced in court. There were no further hearings till the end of 1990, at first because dates were not available from the court, and then because Dulal was ill and finally died. The procedure of substituting the heirs (brother's wife and children) began in mid 1990. The law is not specific as to whether property deemed to be a dwelling house can be partitioned on the death of the male heir. However, Manorama's advocate seems to think that there is a precedent for this in case law. Consequently, the case was expected to be over in 1992 with Manorama most probably being able to obtain partition of the property through the court. Juthika, like Manorama, was married but for longer. Her husband committed suicide. Widowed and without any means of support for her and her three children, Juthika returned to her father's house. Both her parents were dead by this time and she had to negotiate for shelter with her three brothers who were at the time all resident on the property left by the father. Her two sisters were married and living with their husbands. Juthika was given one room to live in. The rest of the rooms were occupied by the brothers and by tenants. Within two years of her living there the brothers realised that this was becoming a permanent arrangement. What followed was a series of threats, physical harassment and finally assaults on Juthika to try and evict her. The physical assaults resulted in police complaints and criminal cases having to be launched against the brothers. Juthika approached her local MP with her problems and he suggested to her that she should try and get her share of the property through the court. Juthika's decision to appeal for partition of the property came up against two sets of problems. First, Juthika had to live in the same place and pursue the case against her brothers which meant that she left herself open to harassment and intimidation. Second, her appeal in the court came up against the special provision of sec.23 of HSA. It was up to her to prove that the property was not merely the dwelling unit of the brothers. As can be seen from the above case histories the law (in this case the HSA) positions women, who are sisters, in a subordinate position in relation to inheritance to their male siblings. It is apparent that what is happening in Manorama and Juthika's cases, is that the law articulates notions of personhood constituted by forms of familial and kinship relations, thereby hierarchising men's claims to ancestral property over those of women's claims. A Hindu daughter is a transient member of her natal family. She has a right to be maintained by it as long as she is unmarried. The most crucial event in her life cycle is marriage. At marriage she becomes an 'outsider' to the natal family and is seen to belong to her marital family. Her interests are joint to those of her marital family.

She can no longer be relied upon to act in the interests of her natal family. If

her marriage fails (e.g. if she is deserted or widowed) she can return to her natal family but only

as a dependant. Kinship norms dictate that brothers maintain and support

sisters but

only within the context of family authority relations wherein men's interests 205

and authority are superordinate. The present law under consideration disqualifies oncemarried daughters from seeking partition of parental property considered to be a dwelling house. In so doing it sets up material practices whereby family authority relations which privilege male control over women, are firmly kept in place. These cases give a lie to the claim of parity between men and women's inheritance rights apparently achieved by the enactment of the Hindu Succession Act, 1956. However, judicial opinion regarding Hindu women's rights to inheritance is uncritically supportive of parity claims. Representatives of the judiciary at the various levels of the system (Muncefs court, Judges court and High court) were unanimous in their opinion that, first, Hindu women were given the right to own property by this Act, and second, that their inheritance share was equal to that of Hindu men. So overarching was the discourse about parity that it tended to obscure the particular disability posed by Sec.23 of HSA. The consensus was that this section was not discriminatory. The reasons cited for this opinion emanated from assumptions about the difference between a son and daughter as being part of the 'natural' order of things as also the differential positioning of sons and daughters to the family and the lineage as 'natural', 'normal' and almost primordial. The following statements by judicial officers construct a world and a 'natural' order in which a daughter is inevitably an outsider, who on marriage is a transformed psyche bent on destroying the harmony and unity of the natal family and where there is a conflation of the right of inheritance and the definition of maleness. "The revolutionary change that was introduced was by the HSA by which she has the right to inherit the father's property but restriction has been imposed only in respect of the residential house.... But you will appreciate that if it is a residential house and unless the brothers themselves want the partition a woman has no right to claim for partition. Because the daughter being married to some other family it does not cost her anything to break the family where the brothers are staying and ask for partition....I do not think that this poses any disability because sisters always have a right to residence but they cannot ask for partition." (High Court Judge, Calcutta) As can be seen, women's location is her marital home and she becomes an outsider to the natal family on marriage. Furthermore, women as married daughters are also imaged as wreckers of the filial bond that keeps the Hindu joint family in place. This image recurs

in other statements made by judicial officers as we can see below.

I As! have shown in Chapter III, the Legislative debates on Intestate Succession in 1944, 1949-'51, and after

1952, all stressed the natural location of the daughter as being her marital home. Thus giving the same rights a a son in ancestral property did not arise. This, it was argued, was the arrangement of Hindu families and thus emblematic of Hindu tradition. a daughter

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The Member-Secretary, CLA, Judicial department, Govt. of West Bengal said, there are so many adverse possibilities. Women after marriage....her sentiment is different. For no reason she will come and ask for partition. It all depends on the relationship of the family members. She gets married today and tomorrow for no rhyme or reason begins to assert her rights in her father's family, gets partition, paves the way for the entry of outsiders. Brothers stay together. Suppose there is no mishap in her married life, perfectly smooth... but she is a property grabber - she is interested to grab the property - she is a greedy type - she will come and ask for partition. Even if she does not stay she can sell it out, she can let it out so it will create a lot of unnecessary inconvenience for the brothers." Here again we meet the married sister as wrecker of the corporate nature of the Hindu joint family The Additional District Judge, Alipore court, Calcutta was less equivocal about women's place once they are married and the meaning of that place in constructing the interests of male heirs. "She has a total right. Inheritance under HSA means an equal share for men and women. Unmarried women have residential right. If a daughter is married she is debarred from asking for partition. If a lady is married she has gone into another family, she has another perspective. The joint family protects male heirs. This is cogent and desirable specially in the context of the joint family and to prevent fragmentation of ancestral property. We are Hindus, our mental preparation is for Hindu laws, Hindu succession... .generally people say that this is the best, some will say that this is what is meant by uniform." So far this is the most cogent explanation provided as why women's place is in her marital home and not in her natal family. It is unequivocally to protect male interests to ancestral property. And this cannot be questioned because it is part and parcel of Hindu tradition. There is a continuity and equivalence of discourses here between the point of formulation and the adjudicators about men's and women's rights to property and this being emblematic of Hindu tradition. The debate to give Hindu women property rights was, as I have shown in Chapter IV, was a debate about identity. The Hindu identity was constructed through these debates via the assertion of the jointness of the family, the corporate nature of its interests, and the essentialised gender relations which characterised this unity of the family. The essentialised gender relations that constituted the Hindu family and identity also served to etch the boundaries of an upper-class, upper-caste, propertied, patrilineal male identity. This identity was inscribed in the text of the laws. As I shall show in the following discussion, the power of this discourse about identity lies precisely in the fact that it operates to 'fix' entitlements when Hindu women appeal to the state to support their rights to ancestral property. At this point it is necessary to return to the empirical world in which Manorama and Juthika appeal as sisters to the final arbiters, the state institutions of law, for share in 207

their father's property. Since it is the nature of the property that positions both their claims as subordinate to that of their brothers, it is necessary to look at what this property means. Juthika's father's property is located in one of the most expensive areas of south Calcutta. It consists of a large tract of land bordered on the east and west by high rise apartment buildings. The living quarters of the brothers, their tenants consists of single-storeyed barrack-like structures bordering the north and south. One of the rooms in this structure was given to Juthika as a temporary shelter for herself and her children. As in Manorama's case, here too the space occupied by the living quarters, or what may be termed the residential house, is only a small part of the total property. For the purposes of the law, however, in both these cases the entire property is constructed as one which primarily serves as a dwelling unit for the brothers. And there is much to be gained from this construction since it ties up with the political economy of urban land in large cities like Calcutta. The generation represented by Manorama's and Juthika's fathers acquired land in Calcutta city in the nineteen fifties when these areas were sparsely inhabited and urban land was cheap. They did not belong to the propertied class as such but their salaried positions enabled them to acquire property with the intention of building a family home. Neither was able to do so as is evident from the nature of the structures that they left behind and which now serve as dwelling houses. However, the value of the land which they acquired has risen enormously in the past forty years reflecting changes in land use patterns and the growing needs for housing for the burgeoning middle-classes. As a result the land market is entirely cornered by real estate agents (known in Calcutta as Promoters) who buy up land at enormous prices, build apartment houses and sell these at astronomical rates to the upper and middle-classes. Very few families can afford to buy land and build a house in Calcutta city on their own. House construction is prohibitively expensive and it is unlikely that Juthika's brothers (who are petty salariats), and Manorama's brother (when he was alive) would have the resources to build on the land even though they do not have to purchase it. Their next best alternative is to wait for the highest bidder to the land, negotiate both the amount to be paid in exchange for the land and in addition the ownership of a flat in the new high-rise building that is likely to be constructed. In the meantime the brothers must form

a corporate unity to prevent partition of the land. And Section 23 of HSA

provides them with an excellent alibi with which to do this. (In Juthika's case all three sisters will benefit from partition and, therefore, what is now property between brothers will be

divided into seven shares in the event of partition). It is no wonder then that

brothers have tried to prevent partition at all costs including the use of physical intimidation against the sister who, because of her present life circumstances, has taken the unpopular

and risky decision to appeal for partition of the property. (Juthika has 208

temporarily withdrawn from the case because she could not face up to the constant harassment and also because she has nowhere else to go). There is in these cases a coalition of interests resulting in disadvantages for women who are sisters. On the one hand the nexus between brothers in possession of expensive urban property and land speculators has resulted in the reassertion of the corporate ideology of joint family property. This in turn has support and recognition in law. On the other hand, judicial opinion seems generally inclined towards a conception of society and social relations that positions daughters and/or sisters as 'outsiders' to the natal family and their interests as being inimical to the harmony and unity of the family. This in turn has serious consequences for the way in which sec.23 of HSA is interpreted in court. Under the circumstances the implication for women like Manorama and Juthika is that it positions them as ambiguous heirs and has considerable effect on their future. Manorama and Juthika have both applied to the court for their share of inheritance at a critical point in their lives. For both (although in differing ways) inheritance constitutes a resource which can save them from poverty and dependence. For Manorama getting her share represents an insurance against poverty and helplessness in her old age. Since she does not have children, and therefore no rights over people, her inheritance is the only means by which she can secure her own future. For Juthika it embodies the material means with which to ensure that disadvantages she faced will not be reproduced inter-generationally. She can provide for herself and the children a secure shelter and most importantly, education which will affect their future life-chances.

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6. 3. 3. Dispossessed heirs - Muslim sisters/daughters, heirship and the courts. As has been shown in Table II, of the four Muslim litigants in my sample, three have come to court to seek a clear title of possession for the property that they have inherited. In all three cases the defendants are other heirs who also have an interest in the property and are related to the respondents by blood. The need to seek a clear title of possession has arisen in at least two of these cases, namely Nehar and Rahatun's, because their property has been usurped by the other heirs. Both Nehar and Rahatun have claimed in court that they have been dispossessed of their property by being made to sign a deed of gift in favour of the defendants in the case. Neither of these women realised at the time of signing these papers that they were gifting away their property. In other words they claim that they were duped into signing deeds of gift when they assumed they were signing papers to give the power of attorney to their relatives. Momena, on the other hand, seeks a clear title to her inherited property by demanding partition of her mother's property. Her relatives claim that she is not entitled to her share because she had, like Rahatun and Nehar, given her share to her nephews by making a deed of gift in their favour. It will be observed that in all three cases the commonality lies in two things. First, that neither the court nor the defendants dispute the women's claim that they are heirs. Their legal heirship, therefore, is not in question and is not the point of adjudication. Second, in all three cases the only way in which possession of the property is being denied to these women is by claiming that they have willingly, voluntarily made a deed of gift in favour of the defendants. Therefore, the point of adjudication is whether or not they have willingly and voluntarily made this gift. This in turn entails that the presiding officers in the court (muncif and judges) weigh the evidence given by both sides and, therefore, ultimately the case comes under the purview of the Evidence Act. The Evidence Act applies to all Indians irrespective of the personal laws that they follow. It is seen as a neutral instrument in that it positions all parties to a dispute on the same level of having to prove by presenting evidence in support of what they claim is true. The final arbiter of the merits/ demerits of the evidence presented in court is the presiding officer. The presiding officer, consequently, has to hierarchise the claims to truth being made in court. Implicated in this process is thus decision-making about whose claims to truth has more validity. In this section I aim to follow the process of adjudication in these cases to interrogate how and why claims to truth are being validated and hierarchised. Further, by doing this I aim to investigate how women as sisters and/or daughters are positioned regarding claims to truth made in court. I propose to do this by looking in detail at one case history, that of Nehar Banu, and referring to two others, namely, those of Rahatun and Momena. Nehar Banu's case has 210

been through three levels of the judicial system and, therefore, lends itself to substantial analysis. Nehar Banu is sixty years old and is illiterate. She is a widow and has two children, both daughters. Both her daughters are married and live in their husband's homes. One of her daughters is also widowed. Nehar Banu was widowed when she was in her early twenties. Her husband, a jute mill worker, was killed in the Hindu-Muslim riots which took place in the latter half of the nineteen fifties (she is unclear about the exact date). After she was widowed she returned to Nabasan which was her mother's village. She returned here because all her maternal kin lived here. Her brothers too were living in this village. She did not remarry because she had two daughters to look after. She brought them up by working for her living. She husked paddy and sold rice in the market and also did odd jobs in peoples households. In the late sixties Nehar came into property on the death of her maternal grandmother. This property consisted of small pieces of agricultural land distributed over several plots, share in village ponds and homestead land. Although the total productive land she inherited was very small it was sufficient to meet Nehar's subsistence needs. Nehar managed this property and was able to obtain her annual food requirements from this while doing odd jobs brought her some cash income. All in all Nehar enjoyed a certain degree of autonomy by being in control of what she earned and consumed. Nehar's relationship with her brothers was somewhat strained. Besides other things that came between them, her ownership and possession of her inheritance caused ill-feeling. Her brothers did at some point pressurise her to give over her share of the property to them. This tension between the siblings made her rely more and more on her other kin resident in the village. She formed an alliance with her maternal uncle (mother's brother) and his family. Her uncle was a powerful person in the village community who owned land and other productive assets. He was also politically influential as many landed people are. In a sense this was to counteract the pressures being exerted by her brothers on her with regard to her land. In the nineteen seventies this alliance obviously grew stronger with Nehar spending more time in this family and exchanging gifts and favours. It was on the basis of this relationship that her uncle suggested to her that the only way to protect her property from her brothers was to give the power of attorney for the land to someone related to her and who would look after her interests, namely, her cousin brothers (his sons). They would cultivate the land on her behalf and give her share. Once they had the power of attorney her brothers could not object to them managing her land. Nehar agreed and in 1977 she went with them to the court to register the deed giving them the power of attorney for her land.

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According to Nehar's version she went to the court with them on the fateful day, 8th January 1977. They made her wait in the shade of a tree while they went and had the deed written. They returned and made her put her thumb impression on it. They also told her that when the document was presented to the magistrate she should nod her assent to the questions he put to her. She did this and the deed was signed and sealed. A year later at the time of harvest when she went to her uncle to ask for her share, he told her that she was no longer entitled to a share since she did not own the land and had gifted it to his sons. After this she kept demanding her share which was refused. She quarrelled with them but they were much more powerful than her. Finally in desperation she went to her brothers and told them what had happened. They took her to the court and obtained a copy of the registered deed only to discover that it was not a 'powernamma' (power of attorney) but a deed of gift. The brothers suggested that she should take the matter to court since arbitrating through the village community leaders was next to impossible because of her uncle's powerful position. It was decided that they would not act on her behalf in court as this might prejudice her case. Since they were co-heirs of the property it might look as if they had prevailed on her to deny the deed of gift. The responsibility of helping her was entrusted to a person in the village (Ismail in whose house Nehar is at present taking shelter). The first case was initiated in 1983 at the district court and the judgement given in the same year was in Nehar's favour. The cousin brothers then appealed against the order of the lower court in the Judges court. In 1988 the Additional District judge of Alipore court dismissed the earlier judgement of the lower court and affirmed the validity of the deed of gift. In the same year Nehar filed an appeal case in the High Court with assistance from the Committee for Legal Aid. This case was still pending in the High Court in April 1992.

Nehar Banu is at present a pauper. Besides losing her agricultural land she has also lost her 'bastu' land (homestead plot). The house she had built on this land collapsed in the monsoon of nineteen ninety. She has at present taken shelter in Ismail's verandah. Since she cannot do as much work as before (she is much older) she lives on charity and payment in kind for odd jobs she does for her neighbours. Neither of her daughters are well off enough to look after her. One of her brothers had died in the meantime and the surviving brother helps her from time to time but is himself not very well off. What I have discussed hitherto is Nehar's version of her life and the circumstances that gave rise to her dispossession. In the following section I will discuss the institutional level of information available regarding her life, the circumstances of her dispossession and whether or not she qualifies for state protection. The institutional level of information is derived from the two judgements given at two levels of the judicial 212

system, namely, the lower court at the district headquarters of the rural areas where Nehar resides, and, the Judges court at Calcutta where the case came for appeal. The first case was brought by Nehar as plaintiff against four defendants. The following diagram clarifies the relationship of the defendants to the plaintiff. Nehar (Plaintiff) vs Defendant 1 (cousin brother, son of maternal uncle. He is mentioned as one of the beneficiaries in the deed). Defendant 2 (cousin brother, son of maternal uncle. He is the second beneficiary of the deed). Defendant 3 (maternal uncle. He is not mentioned in the deed) Defendant 4 (Resident of village. Related to both Nehar and to her maternal uncle. He witnessed her signature on the deed). Defendant 5 (professional deed writer and the scribe who wrote the deed)

The judgement in the first case was given in the month of September 1983. In his preamble to the verdict the magistrate first lays out the details of the plaintiffs case and defendants' rejoinder. Of importance here are the following features that the magistrate highlights. - The plaintiff inherited the suit properties from her maternal grandmother and has been in possession of the same. - After her husband's death Nehar came back to her maternal grandmother's village and resided with this family. - Nehar is an illiterate and pardanashin Muslim woman who claims that taking advantage of her helpless position the defendants made her sign a deed of gift while all the while the agreement between them was that she would sign a deed giving them the power of attorney. - The defendants admit that the suit properties belonged to the plaintiff and she inherited this from her maternal grandmother. However, they claim that on the death of her husband Nehar came to reside in this village and lived in their father's family and that she made this deed of gift out of love and affection for them. They also claim that 213

she executed the deed after due consultation with her relatives and this is borne out by the fact that her son-in-law accompanied her to the court when the deed was signed. They further claim that Nehar herself purchased the stamp for the deed and with the help of the son-in-law appointed the scribe who wrote out the deed. The deed was written according to her instruction, it was read over to her. Her signature was witnessed by one of her relatives. All this goes to prove that her gift was voluntary and no undue influence was exerted on her. The plaintiff has filed the present suit at the instigation of her brothers who are jealous that the gift of her property was made to her cousin brothers and not to them. On the basis of the above points the magistrate then framed the main Issues on which the trial should proceed and the verdict be based. The Issues are: 1.Is the suit maintainable in law in its present form? 2. Is the suit property valued? 3. Has the plaintiff any right, title and interest in and possession over the suit land as claimed? 4. Is the plaintiff entitled to get a decree for declaration of title and permanent injunction? 5.What relief is the plaintiff entitled to? 6.Is the alleged deed of gift voluntary and the mental act of the plaintiff or vitiated by fraud, under influence and misrepresentation? Issues 1 & 2 were at the outset decided in the plaintiffs favour because neither of the parties make these the central point in their cases. The magistrate then takes up discussion of Issues 3 and 6 together because they are interconnected. The plaintiff owned the suit land because she inherited it from her maternal grandmother. She is an illiterate, Mohammedan lady. She lost her husband and thereafter resided with her two daughters in her maternal grandmother's house. She had four brothers, two of whom predeceased her maternal grandmother. At present she has two living brothers. With one of them she has a strained relationship and the other is a simpleton and does not understand property matters. Both the brothers also reside in the suit land under dispute. The plaintiff has alleged that the deed of gift was not read over to her and the contents were not explained to her. The magistrate goes on to explain the legal position that he is using in judging the evidence presented by the two parties and why he reframes Issue 6 and makes this the main point on which the case should be arbitrated. Section 16 of the Indian Contract Act lays down the special provisions and protections to be given to pardanashin women when a contract made by them is under dispute. This rule is further amplified to include 214

within its scope those who are not strictly in purdah but whose circumstances resemble those who have been in seclusion, as for example, an illiterate woman. "The purdah with its inhabitations may be an additional feature or element in the case but the real reason behind the rule is lack of understanding and appreciation of what an illiterate woman without independent advice is about" (Pg.10). He decides, therefore„ that where ignorance and illiteracy are proved exposing the woman concerned to the danger and risk of an unfair deal, it would be a perversion of the above rule to deny her protection just because she was not strictly pardanashin. The magistrate further fortifies this legal position by citing section 16(3) of the Indian Contract Act which says that where a person who is in a position to dominate the will of another enters into a transaction which appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such transaction was not induced by undue influence lies with the person in a position to dominate. Section 111 of the Indian Evidence Act seems also to support this view. It is against this legal background that the rest of the verdict proceeds. The evidence presented does not support the claim made by the plaintiff that she is a pardanashin woman because if she was she would not go to the market. However, the evidence establishes that she is an illiterate widow and both these statuses (illiteracy and widowhood) place her in a position of disadvantage to the defendants. Therefore, her allegation that the deed was not read over and explained to her must be taken seriously and she is entitled to legal protection. Under these circumstances the burden of proving that she was not misled into signing a document lies with the defendants. Based on this finding the magistrate then examines the claims being made. The defendant's main case is that because Nehar lived with their family when she returned to the village and her relationship with her two cousin brothers was that of affection, she had made this deed of gift out of love and gratitude to the family. The magistrate does not see any problem with this claim except that in the absence of the maternal uncle's witness, this claim is difficult to prove beyond a doubt. Therefore, one has to prove/disprove whether the contested deed was read over and explained to Nehar and in order to do this the evidence given by two witnesses, namely, the scribe and the person who testified her signature (thumb impression) becomes crucial. The scribe's witness is disqualified by the magistrate on three significant counts. First that on crossexamination he was found to have a weak memory rendering his account of what transpired at the signing of the deed suspect. Second, the scribe does not say that he actually explained the contents to her. Third, the procedures he followed in drawing up the certificate for the deed were incorrect. The magistrate finds that the other witness's account cannot be relied upon either.

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The case, therefore, turns on the fact that the defendants have failed to prove that the deed was actually explained to the plaintiff before she put her thumb impression on the document. A few other points are raised by the magistrate from the evidence. First, the alleged deed of gift gives over all Nehar's land, including the homestead, to her cousin brothers on the assumption that they would in turn look after her. However, the deed nowhere mentions what would happen if they failed to do so. According to the magistrate the convention generally is that, a clause mentioning what should happen if the beneficiaries failed to look after the donor, be included as part of the deed. The fact that this is not mentioned also makes the deed suspect. Finally on the basis of the evidence provided he finds that she did not have independent advice when drawing up and signing the deed. The defendants' claim that the presence of her son-in-law at the time of signing of the deed was proof of having independent advice is dismissed by the magistrate on the ground that Nehar had stated that she did not enjoy good relations with her son-in-law. Based on the above findings the magistrate declares the deed of gift void and awards a decree in favour of the plaintiff. The next case was an appeal by the cousin brothers against the earlier judgement. The judgement in this particular case was delivered in 1988. In his preamble to the verdict the judge highlights the salient features of the case brought by both parties. These more or less agree with the points highlighted by the magistrate in his preamble in the earlier judgement. However, there are important differences of emphasis in what is being highlighted. As for example, the judge makes more of the fact that Nehar's status is that of a dependant of the maternal uncle's family. The judge clearly sets out his task with relation to the appeal. He writes, "The only point for my consideration in this appeal is if the plaintiff executed the impugned deed of gift under the impression that it was a deed authorising management of her properties. Execution of the impugned deed is admitted. The question is whether the pen and the mind met together at the time of

execution". In the judgement that follows his main effort is to establish what kind of 'mind' this is, in other words what kind of person she is which in turn will validate or invalidate her claims to truth. At the outset the judge finds fault with the way in which the magistrate framed the Issues in the earlier trial, especially the recasting of Issue 6. He is of the opinion that the magistrate was not conversant with the law. Having put the earlier judgement firmly in its place (as being weak in its grounding in law) the judge goes on to select evidence which serves to represent what kind of person Nehar is. He finds that she is an illiterate lady, that she inherited the disputed land, that she was related to the defendants and finally that she lived in the same 'bastu' (homestead) as the defendants.

At this juncture he goes into great detail about what it means to live in 216

the same 'bastu'. It apparently means living under the same roof and eating together. For this reason the evidence relating to living arrangements becomes a central point in his discussion and the reason is that it sets up a relationship between Nehar and her maternal uncle which is one of dependence. As for example, the evidence he chooses to discuss is that relating to whether she had separate eating arrangements or not. He says, "There is no convincing evidence on record if the plaintiff lived in separate mess or in the same mess with the defendant no.3". Since there is no convincing evidence either way he concludes that it is but natural that she, a widowed daughter and dependant, lived in the same 'mess' as her maternal uncle and protector. The judge states that Nehar is not a pardanashin woman because she goes to the market but that she is definitely illiterate. Whether or not she can plead that she has been duped because she is illiterate and pardanashin depends upon whether it can be established whether the execution of the deed was, beside being her physical act, her mental act. And the mental nature of the act can be deduced from other evidence than that relied upon by the magistrate in the earlier judgement. It would depend on the circumstantial evidence - who she is, where she lived, how she lived, the relationship between her and the defendants, whether or not she managed her own land as she claimed. He finds that the magistrate in looking at the evidence neglected those aspects of it that gave clues as to the kind of person she is. As for example, he takes up the whole issue as to whether the plaintiff actually possessed the land she had inherited. His finding is that the suit properties measuring only 23 decimals is located on 55 plots. "The share of the plaintiff in those plot are fractional and it is impossible to conceive the idea that the plaintiff separately possessed her share in each of the suit plots" (Pg.12). He refers to the evidence given by Nehar's witnesses regarding the use of the land. These witnesses were those whom Nehar claimed worked on her land. Their witness is dismissed because they are unable to remember each and every plot of land, because one of them is a resident of a neighbouring village etc. The nature of the plots of land make it impossible for her to possess them separately. However, the defendants cannot conclusively prove either that they were in possession of the land. In the absence of sufficient evidence either way as to how this land was possessed and cultivated he decides that the suit property is a joint property of the plaintiff and defendants. The magistrate had in the earlier judgement dismissed the evidence of the two main witnesses, namely, the scribe and the person who attested her signature. The present judgement finds fault with the manner in which this was done. The judge also points out that the earlier judgement failed to note that Nehar's son-in-law was also present at the time of signing of the deed and that he signed as a witness. Although he was not cited as a witness in the case by either party, his role is very important. He was Nehar's 217

relative and, therefore, likely to be on her side. Nehar's statement that she was not on good terms with him is pure fiction fabricated at the last instance. "To my mind it appears that the plaintiff cleverly introduced the story in her plaint that she is not on good terms with the son-in-law since a long time" (Pg.15) Therefore, if the entire evidence is read together it appears that the deed in question was read over and explained to the plaintiff in the presence of her son-in-law and thus she had independent advice about the execution of the deed. The judge then moves on to consider the following points. First, whether the transaction is a righteous transaction, that is whether it came from a right-minded person. Second, whether it is improvident that is to say whether the donor was in a fit state of mind to weigh what she was doing. Third, whether it was a matter requiring legal advise and finally, whether the intention of making the gift originated from the donor. In addressing these points the judge cites evidence about the kind of person Nehar is to question her claim that she has been duped. First, she is a person who inherited these properties from her maternal side and not from her paternal side nor her husband. The donees are sons of her maternal uncle. Besides the plaintiff has by her own admission paternal properties in another village and, therefore, the suit land is not her only property. This goes to show that the transaction was not unconscionable nor improvident. Second, the plaintiff has admitted that her son-in-law and her brothers put her under constant pressure to part with her share of the land in their favour. All this adds up to the conclusion that "the plaintiff decided to make a deed of gift of the suit properties which she inherited from the defendant's predecessors as a mark of gratitude and when she made such a gift the brothers of the plaintiff prevailed upon her and caused this suit to be instituted with concocted allegations." (Pg.20). That the plaintiff is not a truthful witness is borne out by the fact that, on the one hand, she claims that she used to look after her own properties and, on the other, that taking advantage of her helpless condition the maternal uncle posing as her well-wisher began to look after the suit properties (in the period just before the deed was signed). This and other contradictions in her statement confirm the impression that she is not a truthful witness. What she is is a scheming, property-grabbing woman who has an independent income but poses as a helpless pardanashin. "We must bear in mind that the plaintiff states in para 4 of her deposition that she goes to market and other places. Therefore, though she is an illiterate she cannot be equated with a pardanashin woman and the circumstances of this case borne out by the evidence on record show that she is quite aware about management of properties and she executed the document in question in presence of her son-in-law Sajdel Ali Molla and the document was read over and explained to her and that she signed the same after fully understanding the true meaning and import of the same."(Pg.22) As a result the appeal goes against Nehar. 218

I would like to return at this point to the common ground that exists between the cases brought by Nehar, Rahatun and Momena. As I have explained earlier, the commonality lies in two things. First, that their right as heirs is not the point of adjudication. Second, their dispossession arises from allegedly voluntary gifts made by these women of their inherited property to their relatives (cousin brothers, brother, and nephews). This then is the point of adjudication. The key concern in this kind of adjudication is to determine whether the gift was made voluntarily. This demands the construction of the unified and freely choosing individual who is the normative male subject of Western bourgeois liberalism. It entails establishing what kind of person the donor is. As the judge in the Nehar's appeal case points out, the act of signing a deed is not merely a physical act but a mental one which implicates the subject. It is in the construction of this subject through adjudication that notions of personhood are articulated and which in turn determine what kind of state protection this person, with a particular set of attributes and positioned in particular social relations (as sister/daughter and property), is entitled to. An analysis of the two judgements makes this clearer. Despite the opposing nature of the outcomes in the two judgements, there are certain common features in the way in which the construction of the subject takes place. There is agreement in both judgements about her status as heir by virtue of her inheritance. Both are agreed that she is illiterate and both concede that she is not pardanashin as she claims because she earns her own living by going to the market place. Both judgements seem to agree that it is possible that such a gift could be made out of gratitude by women to their male protectors although in the first judgement this possibility is discarded on the grounds that the proper evidence is not presented in court to support it. Finally both support the finding that the property in question is the joint property of the plaintiff and defendants. The common ground between the judgements is limited to these findings because the implication of these findings in defining the subject and her relation to property via her relationship with the defendants is quite different. In the first judgement the subject is a victim by virtue of her status as a illiterate, Muslim widow who takes shelter with her mother's family. As such she stands in a relationship of relative powerlessness to her two cousin brothers who are the beneficiaries of the deed of gift. She is thus entitled to state protection since the laws of contract demand that the rights of the weaker party (described as an illiterate woman without independent advice) receive special recognition. As a result her vulnerability goes in her favour. In order to receive protection women like Nehar, Rahatun and Momena have necessarily to appeal to stereotypes of the Muslim woman - that they are ignorant by virtue of the fact that they are pardanashin - and indeed they do. The fact that this appeal does not always warrant protection is borne out by the second 219

judgement. The construction of the legal subject as a unified, freely choosing individual who is the normative male subject of Western bourgeois liberalism, is fractured at every instance by a palimpsest of identities constituted and erased by discourses of gender, kinship and religious community. The examination of the second judgement, not as separate but as continuous with the first, makes this clearer. In the second judgement the construction of the subject is framed by discourses of gender, kinship and community.2 In the earlier part of the judgement Nehar as the 'other' is framed in discourses of gender and kinship. Nehar is represented in the judgement as a daughter who on being widowed returns to the home of her maternal grandmother. She is widowed and, therefore, in need of protection. She has two children and is need of shelter and resources for their upbringing. She settles in the `bastu' of her maternal grandmother. Since she is a woman, a daughter and a widow, living in the same 'bastu' means commensality. This in turn means dependence on male guardians (in this case her maternal uncle). This excludes the possibility of her struggles to rear her own family by earning her own living. "I husked many maunds of rice a day. This leg operated the 'dheki' day in and day out....that is how I brought up my daughters"(Nehar, interview). Being a woman with fractional interests in the plots of land she inherited it is unlikely that she could have been in possession. She must surely have entrusted its management to her male relatives. Therefore, the property that she claims is hers is in reality the joint property of the corporate unit, namely, the male heirs and Nehar (who is a member of the family by virtue of commensality and, therefore, a dependent). In the judgement it is emphasized that Nehar inherited this property from her maternal side and not from her paternal or husband's side. She is established as a dependant of her maternal uncle's family by virtue of commensality, management of her land and the obligations that protection from kin set up. Thus her act of signing a deed of gift in her cousin brothers' favour cannot be construed as an unconscionable or improvident act. It was 'natural', 'normal' under the circumstances. This discourse of gender and kinship that frames Nehar does so by excluding the possibility that Nehar may have wanted to give over management of her land to her cousin brothers by giving them the power of attorney while retaining her ownership of the land. It does so by excluding further the 2 To be framed by a certain kind of discourse is to be objectified as the 'other', represented without characteristic features of the 'subject', sensibility and/or volition. Discourse, in this conceptual sense, works in fact only by significantly excluding certain possibilities (as for example, by denying full representation of the subject). It achieves its own internal coherence by working within parameters which are ideologically fixed. Working within the contours of a conceptually unified field, discourse seeks to produce knowledge. Such knowledge is implicated in the structures of power (Pathak & Sunder Rajan 1989). 220

possibility that she wanted to protect her ownership of the land from the claims made by her brothers and son-in-law by giving her cousin brothers the power of attorney. It legitimises the 'normality' and 'naturalness' of the gift of deed by working within the fixed parameters of gender and kinship ideologies which invest the role of the good sister as being one in which she willingly relinquishes her share in property to her brothers. This discourse of gender and kinship further legitimates certain kinds of inheritance practices over others. Thus the emphasis in the judgement that Nehar inherited this land not from her paternal side or her husband's side but from her mother's side (referred to in the judgement as the defendant's predecessors) serves to augment the 'naturalness' of her deed of gift while at the same time hierarchising her cousin brothers' claims to ancestral property over hers and invalidating forms of succession that flow from mother to daughter. In so doing it hierarchises inheritance and succession practices which are patrilineal in orientation and emanate from Hindu concepts about property and inheritance. In a sense what is happening here is a particularly Hindu interpretation of Islamic inheritance rights. The end product is Muslim women's entitlements as heirs are being circumscribed by this legal discourse. Finally Nehar's claim to truth is pitted against hegemonic discourses about working women as not being respectable and daughters claiming property as being propertygrabbing and shrewd. In the final paragraph of the judgement her claim to being pardanashin is called to question. It is called to question because she goes to the market place to sell her wares. This is then connected to her knowledge about management of properties which makes her shrewd and knowing. The pardanashin is in this discourse characterised as innocent, naive and wronged but respectable. In contrast a woman in the market-place is impure, cunning and not respectable. Her claim to truth is as suspect as her chastity because she has entered the public domain. A woman who asserts her claim to property is also shrewd and destructive of domestic values. In a sense she has also entered the public domain by asserting her right to property which is primarily a male domain. (The power of this discourse is borne out by the judicial reactions to a daughter's claim to property on which there is a dwelling house cited in the previous section of this chapter). Consequently, Nehar is characterised as a shrewd, worldly-wise woman who knows about property management and is, therefore, not to be trusted when she says that she has been duped. She was, thus, quite aware of what she was doing when she signed the deed of gift. Although she is characterised in this discourse as being shrewd and worldly-wise she is nevertheless seen as being prevailed upon by her brothers to bring this case by making false allegations against her cousin brothers. We return here to a discourse about gender in which women are characterised as impressionable and under the tutelage of male relatives. Kinship 221

ideologies demand that she hierarchies her brothers' claims over that of her cousin brothers and this is what she is seen to be doing in this instance. Her claim to truth is entirely devalued by the power of these discourses. 6. 4. Conclusion. Discussion regarding women's inheritance rights proceeds on the basis of two general assumptions. The first assumption is that the Hindu Succession Act, 1956 established parity between men and women in the matter of inheritance. Second, that although Muslim women have established rights to inheritance their right is less than that of men since as heirs, Muslim women are entitled to half the share that men can claim. My study takes issue with the generalizations implicit in the juxtaposition of these statements. This is because, first, it assumes that the principal hierarchy of rights is that between Hindu women and Muslim women. Second, this then serves to obscure the hierarchisation of men's inheritance rights over those of women's rights that takes place in the process of adjudication. As can be seen from the case studies presented, claims to ancestral property made by female heirs, both Hindu and Muslim, are subject to trials of personhood in which gender and kinship ideologies are critically implicated. Hindu sisters/daughters, as I have shown in the case studies, are ambiguous heirs. In all the cases cited the principal point of adjudication was to establish the litigant's right as inheritor. Sharma points out in her study 'Women, work and property in north-west India' that although female children remain legally the residual heirs of male property, people see to it that there are male heirs to inherit as far as it is within their power. She further asserts that the attempt of Indian legislators to shift things in favour of female inheritance is defeated by this system whereby property is seen essentially as being male. She reaches these conclusions in the context of studying property and inheritance practices obtaining in northern India. She is thus referring to what is going at the level of family and kinship as separate from the state (Sharma 1980 p.201). My point is that the system of male inheritance is kept in place also by the state. This is evident from the fact that a sister's status as inheritor has to be established in court and is not unequivocally determined by the existing law. Implicated in the process of establishing this right are values about a sister/daughter's place in the natal family and her entitlements from it once she is married. This is most clearly brought out in the cases in which Manorama and Juthika are involved. The value system which defines a woman's rightful location as being her marital home and as a transient member of her natal family is inscribed in Section 23 of HSA institutionalising thereby the subordinate position of sisters in relation to their male siblings with regard to inheritance rights. This is further buttressed by judicial opinions about the differential positioning of sons and daughters to the family and lineage as being 'natural' and "normal' such as to 222

obscure the asymmetry in the legal positions of sisters and brothers in relation to inheritance. The state is thus seen to be articulating notions of personhood constituted by forms of familial and kinship relations. This process of articulation is not a one-way process as evidenced by what is happening in Manorama and Juthika's case. The legal clause barring female heirs from seeking partition of property deemed to be a dwelling house is being rearticulated in civil society to deprive women a share in expensive property. Sharma shows that where land ceiling legislation threatens the integrity of a substantial estate, the sons who inherit may prefer to register equal shares of the land in their sisters' names in order to avoid risking the confiscation of extra land (Sharma 1980 p.57-58). Thus official notions of right and justice are being manipulated by groups in civil society pursuing their own ends and, in this instance at least, provides women some leverage. However, in the instances I have cited (namely, that of Manorama and Juthika) the jointness of family property is being reasserted via its construction as a dwelling place in order to prevent women asserting their rights as co-sharers. The implication for Hindu sisters/daughters, who claim their right to inheritance through the court, is that this claim is subordinate to that of their male siblings. A further point I wish to stress is that three of the four Hindu litigants have chosen the option of litigation at a point in their lives when support systems have broken down. In each of these cases inheritance constitutes the critical resource which will aid survival and help them to enjoy some autonomy. However, inheritance rights, as these are structured by the HSA, do not take into cognizance the reality of women's lives. Muslim sisters/daughters are, as I have shown in the case studies, established legal heirs. However, in the process of adjudication Muslim women's relationship to other male heirs is constructed as one of subordination and dependency in relation to claims on ancestral property. Nehar's case history is indicative of what goes on when Muslim sisters/daughters make claims in court that they have been fraudulently dispossessed of their inheritance by male relatives. It has wider applicability precisely because adjudication in these instances seeks to determine the truth of these claims by implicating the subject. The construction of the subject draws upon notions of personhood emanating from familial and kinship relations. A possible consequence of this process

is, as we have seen in Nehar's case, a more circumscribed interpretation of

Muslim women's entitlement as heirs and a certain intolerance towards inheritance practices that are not patrilineal in orientation.

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CHAPTER 7 CONSTRUCTION OF DEPENDENCE: Property and widowhood. 7. 1. Introduction The plight of the Hindu widow has excited debate and has been the subject of reform ever since the nineteenth century. Bengali literature abounds in stories depicting the lives of Hindu widows and the ill-treatment meted out to them. The widow is considered inauspicious and the strict regimes of dress, consumption, conduct, and mobility imposed on her serves constantly as a reminder that she lives on the fringes of family life and is dependant for her survival on the charity of the members. The critical factors determining a widow's position in the family are the age at which she is widowed and whether she has produced a male heir. An older widow is more likely to have gained power and control over family resources. If she has a grown up son her dependence is transferred from her husband to the son and she is more likely to be able to gain access to resources through him. The life of austerity that she is expected to live is somewhat mitigated by these factors. A crucial factor affecting the life of Hindu widows has, therefore, been their disadvantaged access to family resources. Until 1956 widows did not inherit their husband's property. However, in both the Daybhaga and Mitakshara systems as also in customary laws, widows had the right of maintenance from their husband's family. The right of maintenance was strictly conditional in that the widow did not have the right to alienate the property. In other words a widow was under the perpetual tutelage of the husband's kinsmen to whom the property reverted on her death (if she did not leave a male heir). The Hindu Succession Act, 1956 sought to remedy this situation by giving Hindu women the right to be absolute owners of the property held by them. Further, a widow is, according to this legislation, in the first line of succession to her husband's property along with her children. Her share is equal to that of the son. Women in all other communities, namely Muslim, Christian, and Parsee, could hold property absolutely at the time that this right was being debated for Hindu women and was finally legislated. This chapter reviews the experiences of women litigants who are widows. My data seem to indicate that the relationship of widowhood to property in law is quintessentially a Hindu problematic. In order to understand this relationship I will present case histories of my respondent which will include data on their lives, the reasons forwarded for seeking legal redress in claiming their husband's property, the 224

relationship between them and those against whom the cases have been brought, and also, the dynamics of the court cases. The granting of secular rights by the state to widows to inherit and hold property as absolute owners is a measure which seems to take for granted that individuals can exercise this right against other individuals. This assumes, first, that property is an object in relation to which all individuals are positioned equally as subjects. Second, this assumption then extricates the individuals as subjects from the social relations in which property relations are embedded. Widowhood is a status invested with cultural meaning which has social consequences. My objective is to explore in what ways this special status constrains women from the exercise of secular rights granted by the state. It is also my objective to question whether the granting of secular rights to property is an adequate state response in the context of Hindu widowhood. 7.2. The litigants. A total of six respondent appealed in court for property rights as widows claiming a share in their husband's property. Only one respondent of these six was Muslim, the rest were Hindus. At the outset it is important to make this distinction since one of my main arguments, which has to do with the conjecture that the relationship between widowhood and property in law is quintessentially a Hindu problematic, is based on the differences in the positioning of Muslim and Hindu women appealing for property rights. We have seen that as sisters Muslim women's rights as heirs are established in law and in adjudication, whereas for Hindu women as sisters, the point of adjudication is to establish this right. This then is one aspect of the difference in the positioning of Hindu and Muslim women appealing for property rights. In looking at the position of widows to property in law and in adjudication what is up for scrutiny is women's positioning in the laws relating to inheritance and succession. According to my data there seems to be a difference in the positioning of Muslim widows as opposed to that of Hindu widows in exercising rights to inheritance and succession to a husband's property. This is borne out by the finding, limited to my data, that Muslim women as widows appealing for rights to inherit or succeed to property left by the husband, was highly uncommon) I could locate only one case where a Muslim woman is clearly litigating as a widow. Further, an examination of the case brought by the only Muslim woman litigating as a widow, shows that it is more about establishing possession than about establishing the right of inheritance or succession.

cannot be due to the limited nature of my data sources. When sampling for cases I scrutinised both at the Committee for Legal Aid, Judicial Department, Government of West Bengal where people appeal for assistance to run their cases, and, at the court offices of the 7th & 8th Additional District Judges at Alipore in Calcutta where most partition cases come up for hearing. This constitutes a fairly representative sample of institutions through which such cases would be filtered.

'This

case files

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Nur Nehar Begum, a widow aged 65 years, has brought this case against her nephewin-law. Nur Nehar's husband, who died in 1975, was the only child of his parents. When he died the heirs to his property were his wife and three daughters. This is not the property that is the issue. The present litigation is around the property left by Nur Nehar's father-in-law's brother. This brother did not have any children but adopted his wife's nephew as his son. Before his death he turned part of his property (comprising of agricultural and homestead land) into Wakf property. 2 The Motwali (caretakership) of the property was vested in his wife from whom the adoptive son (wife's nephew) inherited it on her death. At the time when this property was made into Wakf property, Nur Nehar was given to understand that the adoptive son would look after her needs from the proceeds of this property (as, according to Muslim Personal Law, she would have been an heir of this property). Once he had taken over the Motwali he denied this obligation. Further, he refused to treat the property as Walcf, did not pay the taxes and was finally taken to court by the Walcf Board. The Motwali was then given by the Wald Board to Nur Nehar. However, the adoptive son refused to give her possession. She was beaten up and ill-treated by the adoptive son. He brought a case against her at the district court challenging her right to the use of the land. She filed a counter suit against him demanding possession of the land as the recognised Motwali of the Wakf Board. The court passed an order restraining both parties from using the land. The adoptive son then appealed in the High Court which decreed in the month of December 1990 that the order of the lower court should be set aside and that it should dispose of the case within six months. The case was still being heard in the lower court at the time of interview (February, 1992) and Nur Nehar had not gained possession of the land. Generalisations based on the above example, regarding the reason for the differences between the positioning of Muslim and Hindu widows vis a vis inheritance and succession rights, are difficult to arrive at. However, that there is a difference is signalled by the above finding. In order to arrive at a fuller understanding of the problematic of widowhood and property in law, it is necessary to look more closely at who the litigants are, why they are litigating, the nature of the property they are litigating about, and, the relationship with those against whom the cases have been

brought. Table 8A provides a profile of the litigants and Table 8B presents in summary form the nature of the litigation brought by the respondents.

2 Wakf property is property given over by private individuals (Muslims) for religious and charitable purposes. Wakf property is administered by the Walcf Board and is governed by the Walcf Act 1913. According to the rules of this Act a caretaker or Motwali is appointed to look after the property. The Motwali can enjoy the proceeds of the property but cannot sell it, take loans against it and must pay the Wakf Board taxes.

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Table 8A: Profile of widows litigating for property. Present Age at Chil- which -dren Age (1992) widowed

Edcn

65

39

None

Pri.

Hwife

Sister's children

Nur Nehar 65

48

3 (daugh ters)

III.

Worked as maid servant but now too feeble to work.

Fictive kin Charity and occas-ional gifts from one son-in -law.

Hemprabha 64

18

None

Sec.

H.wife

Anima

59

44

2 Uni. daughters

Teacher

Own earnings and resource left by husband.

Nirmala

65

49

Ill. 1 son (adopted)

Worked as maid servant but now too ill to work.

Son.

Hiron- -moyee.

74

59

2 Pri. (1 son +1 daugh- -ter)

H.wife

Own income from property inherited from husband. Also support from daughter & son-in -law.

Name

Avaya

Occpn. present

At depend -Mg on.

Brother.

Note: Edon is education. Occp. is occupation. Pri. means primary education, sec. is se condary education, ill, is illiterate and Uni. is University education. For want of a better term those whose main occupation has been household work are designated as h.wife (housewife). 227

Table 8B: Profile of widow's litigation Part 1 Sr.No. Name

Nature of property

Litigant's

being litigated.

relationship to the defendants

1.

Avaya

House in south

Husband's living

Calcutta.

brother & male children of extant brothers.

2.

3.

4.

Nur

Agricultural

Adoptive son of

Nehar

land.

uncle-in-law.

Hema-

House and land

Husband's

prabha

in Calcutta.

brothers.

Anima

Land & house in

Alleged second

Calcutta. Husband's

wife of husband pension and savings.

5.

Nirmala

6.

Hiron- House and land in moyee

Land on the outskirts of Calcutta.

Husband' nephews Husband's nephews

Part 2 Nature of case.

Sr.No. Date of

Whether in possession

insti-

of property being

-tution

litigated.

of case.

1.

1986

Administration

Was in possession till

of mother-in-law's

November 1991.

will according to which she would inherit her husband's share. 2.

1988

Suit to gain

Has never been in

possession of

possession.

land as Motwali. 3.

1989 &

Partition suit.

1991 4.

Currently not in possession.

1978



Succession suit.

In possession.

Defending her right

In possession of

to have her share

part of property.

onwards. 5.

1979



onwards



measured and recorded by the Land Reforms Officer. 6.

1981



Partition suit.

onwards.

In possession through tenant.

Table 8A introduces the litigants by pointing to the characteristics which have special sig nificance for their position as widows, namely, their present age, the age at which they were widowed and the resources they command in terms of education, occupation and tights in people. As can be discerned all the litigants are elderly widows and, except one, were widowed quite late in life. This might imply that they have greater co mmand over family resources. That this is not so is evidenced by the fact that all the Hindu women have had to take recourse to litigation to access their husband's property. 229

Education and occupations do not seem to be a significant resource for this group since the majority have poor educational qualifications and only one of them has worked in organised employment. The critical resource seems to be rights in people. The question is which people and how is this related to the litigant's legal right to property. If we look at the data on children we find that a salient feature seems to be the lack of sons, or rather male heirs who might provide a conduit to property. Nirmala has an adoptive son and as such this does not ensure her right to her husband's property as being secure. Hironmoyee has a son but relies on her daughter. All the rest are either childless or have daughters. If we relate this to the data on whom the litigants are dependant we find that only in two instances do the women have their own resources. In Anima's case this is because she is at present in possession of her husband's property, and in addition, has used her education to hold a job. Hironmoyee is partly in possession of her husband's property and has income from it but cannot survive without her daughter's assistance. In the other cases they are dependant on natal kin, the only exception being Nirmala who is dependant on her adoptive son. It seems clear, however, that all these women are dependants (except, perhaps Anima) and the right to property would ensure security and some autonomy. The question that needs to be addressed is what, if any, is the relationship between a widow's dependence, the absence of male heirs and the legal right to succeed to property. Table 8B, Part 1 & 2 detail the nature of the property being litigated, the litigant's relationship to those against whom the cases have been brought, the nature of the case, and, whether or not the widow is in possession of the property being litigated. In five out of the six cases the property at issue is located in an urban area. All these cases are those of Hindu women. In three out of the five cases the property includes a house which must be partitioned among the claimants. This poses special problems as this is the joint property of male collaterals of the dead husband for whom the property is also a dwelling house. In all the cases except Anima's (where the defendant is another woman), the cases have been brought against the male collaterals of the dead husband. This assumes significance when posed in the context of the widow's dependence and the lack of male heirs. Could it be that the resistance by male collaterals to a widow exercising her right to her husband's property becomes more intense in the circumstance that she does not have male heirs. Could it also be that the granting of secular rights to widows to hold property inherited from the husband as absolute owners has served to intensify this resistance. Sharma points out in her work on 'Women, work, and property in North-West India' that the resistance of male kinsmen to a widow's assertion of her legal right to the husband's property does intensify in the circumstance that she does not have male heirs. 230

She further cites other studies to show that this kind of assertion is met with violence and every obstacle is put in the widow's way to deter her. Sharma explains that with daughters now entitled by law to inherit from a widowed mother there is a real possibility that property which might otherwise have reverted to the husband's collaterals will eventually pass to the control of outsiders. This could not have happened when the widow had merely enjoyed the right to maintenance from her husband's estate because although she might have enjoyed a good deal of control over this property, she would not have been able to alienate it or will it to anyone else (Sharma 1980 p.54). The subsequent section investigates the salient problematic identified from the above discussion which has to do with the relationship of Hindu widows who do not have male heirs and their legal rights to property. 7.3. Widowhood, male heirs and legal rights - the relationship. In order to understand more fully the relationship between a widow's dependence, the absence of male heirs and the legal right to succeed to property, I will examine the case studies of two of the litigants, namely, Avaya and Hemaprabha. The reason for selecting these two litigants to illuminate the above relationship is that both these women share certain common characteristics which have to do with their lives, as also, their positioning as widows appealing for property rights. Both Avaya and Hemaprabha belong to high caste, Brahmin families where the norms regulating the lives of widows are stricter and serve to separate their status from that of other family members. Although Hemaprabha was widowed at the age of eighteen the question of remarriage did not arise because of these norms. Both women are elderly at present, almost 65 years of age. They are both childless and financially dependant on natal kin for support. In both these cases the property, which is the subject of litigation, is the dwelling house of the family and located in Calcutta. In Avaya's case this house belonged to her mother-in-law who willed it to her four sons of whom Avaya's husband was one. Avaya's husband's male collater-als are resident in this house as she was until November 1991. Hemaprabha has applied for partition of her father-in-law's property which also consists of a house and land situated in south Calcutta. The house serves as the dwelling place of the dead husband's male collaterals. Under normal circumstances Avaya and Hemaprabha, as female heirs, would not be entitled to ask for partition of the property (being barred by Sec 23 of HSA,1956). 3 However, in Avaya's case the 3 Sec. 23 reads "Special provision respecting dwelling houses. - Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein: but the female heir shall be entitled to a right of residence therein.."

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existence of a will left by her mother-in-law, permits her as her husband's legal heir to claim this right. In Hemaparabha's case the way out of the legal bar seems to have been to claim that the suit properties were not exclusively the dwelling-house of the family as there were tenants resident there also.4 Avaya's case has been in court since 1986 and by early 1992 it seemed clear that her claim had more or less been defeated by the collusion of a number of interests. In order to disentangle what these interests were and how this mediates her legal rights to property I will examine her case study in some detail. I located this case in the files kept at the offices of the Committee for Legal Aid, Judicial Department, Government of West Bengal. Avaya applied for legal aid in 1986. In the same year her case was filed in Alipore court. Her application to the CLA stated that she wanted execution of her mother-in-law's will in which her late husband was mentioned as one of the heirs of the property in which Avaya resides at present. Avaya being the sole legal heir of her late husband is entitled to his share of the property. Despite repeated requests to her brother-in-law to obtain probate of the will he had not done so. She was now forced to approach the court to administer the will so that she would be entitled to her share. Legal aid was granted to her and an advocate was appointed for the case. The case file records contain, beside the application to the civil court for administration of the will, two applications to the criminal court bringing charges against her brother-in-law and his sons for intimidation and physical violence against her. The first person interviewed regarding this case was the advocate. According to the advocate the case was for the administration of the will made by Avaya's mother-inlaw. This will was made at the time of her death and the executor was her eldest son. He did not obtain the probate of the will and died before taking probate. Avaya had been widowed in the meantime and since she did not have any children, there was nobody in the family to protect her interests. The other parties interested in the will had delayed the case by denying its existence. They were hoping that she would die intestate so that her share could be inherited by them since she does not have any legal heirs. The property in question is the dwelling house of the family. The main legal problem in this case seems to be that Avaya does not have any witnesses for the probate. Those who witnessed the will have all died since. However, the will is a registered one and the Registrar of Wills can be called upon to certify its existence. The case is at present at the hearing stage.

4 1f part of the dwelling-house is occupied by tenants, a female heir has the right to demand partition AIR 1988 Cal 115.

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I examined the court papers of this particular case. The contents were as follows. The application states the following. Sushila Debi died on 29th May 1947. She was a Hindu by faith and she was governed by the Dayabhaga school of Hindu law. Prior to her death she made a will on 15.5.41 whereby she appointed her son Bivas Chandra Chakravarty as the sole Executor of the will.5 At the time of her death Sushila Debi left behind six sons. In the will she bequeathed her property at Panditiya Place to four of her sons. The four sons were to bear the marriage expenses of the youngest daughter. The four sons mentioned in the will are 1. Bivas 2. Suhash 3. Suresh 4.Subhash. Bivas was named the executor of the Will. He did not take steps to take probate till his death in 1983. Suhash died in 1961 before his brother and was followed by Suresh who died in 1966. At their deaths all three brothers left behind legal heirs. Avaya was the legal heir of Suhash Chakravarty. After the death of Bivas, who was the Executor of the Will, his sons took custody of the Will along with the only surviving legatee, namely, Subhash Chakravarty. Avaya repeatedly requested her brother-in-law and nephews-in-law to take steps to obtain Letters of Administration from a competent court but her requests were turned down. The applicant being the sole legal heir of one of the legatees files an application for the grant of Letters of Administration in respect of the Will left by Sushila Debi. A Written Statement (WS) on behalf of the main defendant, namely, Subhas Chakmvarty was filed in the court on 12th August 1989. It states that the plaintiff has no cause for action, and that her suit is not maintainable in law. There was no will and, therefore, there cannot be a Probate of the Will. It further states that at the time of her death Sushila Debi was not in a fit mental and physical state to make a Will. The WS alleges that Sushila Devi was not the real owner of the property in question and, therefore, any gift that she may have made is not binding upon the sons and daughters. It further asserts that the applicant is not entitled to Probate without furnishing legal proof that there was such a Will. Also, the case cannot be pursued on the basis of the Certified copy of the alleged will and in the absence of the original. The defendant requests the court to reject the application with costs. I wrote to Avaya in September 1991 requesting an interview. There was no reply. Finally in October 19911 went looking for her at the address given in the files. The house is very old and from the outward appearance it was clear that it had not been maintained. The locality in which the house is situated is middle-class and property prices in this area are very expensive. Lots of new apartment houses have come up replacing old houses like this one. There was only one entrance to the house on the side. The entrance led into a courtyard with rooms on the ground floor on one side. The 5 This was registered at the Sub-Registry office of Alipore on 15.5.41 in Book No.III, Volume No.1, Pages 22 to 24 as Being No.4 for 1941.

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courtyard had the water point and place for washing and cleaning. The ground floor rooms were all occupied. On one side of the courtyard there was a iron spiral staircase. I asked the lady who opened the door for Avaya Chakravarty and was told that she lived upstairs. The stairs were so rickety and held together with rope that I had difficulty climbing up. On the first floor there were three doors leading into rooms. I was told that Avaya's room was the farthest on the left. I knocked on the door which was slightly ajar. Since there was no response I went in. An elderly lady was lying on the floor in a room which was very dark and did not have any furniture except for one rickety chair and a television. This was Avaya and we introduced ourselves. She had received my letter and said that she had requested her nephew to post her reply consenting to being interviewed. She was extremely unwell and during the course of the conversation I found out that she has a rheumatic heart and also that she could not see very well. She began talking although I had gone unprepared for the interview. I told her that I would return later to formally interview her. Avaya, however, kept talking. Avaya said that she was practically incarcerated in this room by the other members of the family resident in the house. The other family members resident in the house were sons of her brother-inlaws who were dead, and, the surviving brother-in-law. There were four rooms downstairs and three upstairs, three kitchen rooms and toilet and bathing room. Avaya was restricted to this one room and had to use the verandah adjoining the room as her kitchen. She was allowed the use of the toilet on the same floor but had to hire water carriers to transport water to the bathroom as the others did not let her use the common facilities in the house. She was ill and did not see very well and as a result it was virtually impossible for her to go up and down the stairs. As a result she was more or less stuck in this room unless somebody helped her to go down. Avaya said that she was also in possession of one of the rooms in the front of the house (facing the road) but that this had been forcibly taken from her by the relatives. She had a tenant living there. He was a student and had paid a nominal rent. However, he had helped her and looked after her. The relatives made his life miserable, implicated him in false cases and he finally left. Since then the relatives had not allowed her to use that room. Her kitchen room had also been appropriated. Avaya said that she was well aware that they wanted her to die so that they could inherit her share of the property. She was afraid for her own safety. Her only protection was her nephew (sister's son) who came at night to sleep in the house. Avaya wanted to leave her share of the property to this nephew. She did not want to leave this house because while she was here she was in physical possession of the property. She felt that she was entitled to her share.

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At the formal interview that we set up subsequently Avaya gave her account of why she had brought this litigation. 'There were four 'kartas' (the male co-sharers of joint family property) and so there were four legatees of the will. My husband was one of them. At present the heirs of the brothers of my husband and the only surviving brother, Subhas Chalcravarty, are fighting this case against me. They are all fighting against me. I decided to go in for the case when I read in the papers that the government had a scheme to help those who could not afford to fight their own cases. The advertisement said that a person who was helpless and did not have an income could apply for legal aid. I read the papers every day. I went to the local MLA, Sachin Sen and told him my problem. He said that I could apply, gave me a certificate and even told me the address of the Legal Aid office. I went there and applied. This happened almost six years ago. When my lawyer sent the notice to the other people in the house for the case, they began harassing and torturing me. They threatened violence. They set a mad relative against me who attacked me. I went to my lawyer and we filed a criminal case. They made all sorts of excuses when the case came up for hearing and the magistrate ruled that they must leave me alone. They forcibly took my kitchen room away, renovated it and gave it out on rent. They drove my paying guest out after he had been there only 7-8 months. I have the use of the bathroom on the second floor but they do not allow me to use the water points. I have to buy water. The house belonged to my mother-in-law and she made a will in the name of four sons. The responsibility for getting the probate of the will was with the eldest of the brothers. He did not take probate. Whenever I approached him to do so, he would say that there were difficulties. My husband became ill and left his job. My brother was a leading lawyer in the High Court. He told me that if my husband died his relatives might cheat me of my share. He advised me that it would be better to try and get probate for the will. He drafted a letter for my relatives which said that I was requesting my share of the property and that I would like to take probate. My brotherin-law turned it down by saying that he had difficulties which meant that he wanted to deprive me. My brother told me that if I wanted to get probate I would have to get a copy of the Will from the Court. He helped me to get a certified copy of the Will from the court. This happened after my husband's death. I was not in a fit state of mind to do anything. My brothers and other natal relatives were well-off and established. My brother said after my husband's death that I could go and live with him but it would mean that I would be giving over possession of my own property in Calcutta city. This would prompt my husband's relatives to deprive me of my share. So I stayed here. 235

My brother tried to file for probate. There was no legal aid at the time. We had to pay the lawyers. Then my brother died. After many years I heard of legal aid and I went to the MLA. My husband died in 1966. My mother-in-law died in 1947 and she made the will long before her death. Nothing much has happened in the case as yet. My opponents did not appear in court on the dates given. I was ill and missed some dates. I often do not get letters from my lawyer although she says she has posted them. The last time I went to see her she said that the case was coming up for hearing and did I have any witnesses for the will. The 'nandai' (husband's sister's husband) who was a witness to the will is dead and I don't know where the son lives. I want to ask that if I do not have witnesses does it mean that this case of mine which I have been fighting for so many years will come to nothing ? That I wont get probate ? My relatives are lying. They do have the will. Because they have to give me share they say that there is no will. I have taken out a copy of the will. I believe that the copy that I have submitted in the court and which they are saying is not the will is the copy of the original will. My lawyer told me that the will we have submitted in court is not a genuine one (here the translation is unclear because in Bengali the terms used for copy and for false is the same). The original will is in the house somewhere. Even if they don't produce it how can it be that I could get a copy if there was no will. The will is registered and the only thing that remains to be done is to take probate. If they had taken probate I would have got my share. They want to take probate because they want to grab my share of the property for themselves. They know that if they harass me and if they can drive me away - I can live in my brother's or sister's house - they can take my share. If! die they will get my share. But if I get probate of the will I then get a right over my share. I might not leave my share to them in that case and that is why all this torture and harassment. I could give it away to somebody else. I could give it to those who have looked after me up to now - I could donate it - I could do anything I liked - it would be within my control - that is why they don't want to take probate. If they allowed me to live in peace they would get my share. But they never did that. My husband was ill for twelve years and they did not even pay for the 'shraddha' ceremony after his death. They did not help me at all. On the contrary soon after my husband's death and before the year was out they told me that they were offering me Rs. 10,000 if I wrote my share over to them. They said that I should go and live with my brothers. They want to take away my right, in every way they are trying to take it away. My neighbours ( people of the 'pada' ) have not said anything about this conflict. One person did say to me that he knew I was being tortured and harassed but he had known these people since childhood and so could not say anything to them. Besides it

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was a family conflict. I should lease the place, or rent it out and leave - I should not put up with so much hassle in my old age. My brother did try to negotiate with them when he was alive but they were very rude to him. He had said that he would not always be there to protect me, that since I did not have a husband or sons they should not harass me and let me live in peace, that he expected them to get probate of the will. He even suggested that the expenses involved in getting the probate could be divided into four and that he would bear my share of the cost. But they did not agree. I am still living here in the hope that I will get the probate. Once I get it I will either sell my share or give it on lease and leave this place. I will be able to go away then. I don't need to stay here after that. If I get some money from this house then I can either buy land and build a house or rent a place - I can manage. I did not think of ever going back to my natal family home. My brothers and sisters have looked after my needs up to now. I don't have any money - how do you think I am managing - I have a radio, the expenses for the water, the servant - they did not let me keep a servant but I have a cleaner now

Although my brothers and

sisters may have been well off, although they did love me, the fact remains that if I had become dependent on them I would not have got the same respect from them. Would I ? And beside I have never asked anybody for anything, never begged. I have lived an independent life and did not take from these people either ( meaning her husband's family ). That is why they are so furious with me because I was never dependent or putty in their hands - why should I be. I survived by managing with whatever my husband had. I built the second floor of the house with his savings. I had it built with his money when he was alive. This house was only one floor before. We had plans that we could rent out a few rooms and earn some money that way since all his savings were more or less spent. My husband was a typist in the bank. He was very ill - got bronchitis - and then mental illness. I admitted him to a nursing home - he was quite mad - I spent all the money over the years on his treatment. I had thought that if I built the house I would have some means of income and that way the money would stay with me.... and then he died. He was ill for six years before he died. This house was built by my father-in-law in my mother-in-law's name. My mother-inlaw transferred it in the name of her sons in case her daughters staked a claim to it because the law to give equal rights to women was in the offing - for which reason I am now entitled to my share - that is why she made the will. She married off her daughters except one before she died. In the will it was written that the sons should arrange the daughters marriage - the sons would get it - the daughters wont. My husband had six brothers. Two brothers did not look after the brothers and they were excluded from the will. I have been in this house since I was twenty, I am 65 years of age now.'

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Avaya also relates a number of incidents that took place when she tried to assert ownership of the property. One such incident occurred when her sister's son wanted to use part of the premises to start a school. Avaya suggested that he use the room on the ground floor (which belonged to her) for the purpose and that he cut the wall to make an entrance. The arrangements were met with severe opposition from the surviving legatee of the will, Avaya's husband's surviving brother, Subhas. He threatened the nephew with physical violence but more importantly queried his right to make changes to the property. 'Is this your father's property that you can do what you like? With whose permission are you doing this?' By questioning Avaya's authority in permitting her nephew to make changes to the property Subhas was making a statement about Avaya's relationship to it (beside hierarchising his claim to it over hers by virtue of the fact that it was his father's property and not hers). Intrigued by the fact that a simple matter like the Administration of a will had been in the court for over five years without any progress in the hearings, I decided to investigate the reasons by following up the case. Avaya's infirmity and old age, her virtual incarceration, the fact that she did not have people to act on her behalf posed special problems of access. It was evident that as a helpless, childless widow she was being ill-treated and perhaps cheated of her property by her husband's kinsmen. This was understandable given the history and tradition of the ill-treatment of widows in Bengali society. However, all this seemed to be happening at the level of the private, the domestic and the familial. What had this got to do with Avaya as a citizen of the modern state invested with secular rights to inherit and be the absolute owner of her husband's property? What, if any, were the connections between Avaya's positioning as a childless widow, the meaning that this status is invested with at the level of familial and kinship relations, and the domain of the public, the political-jural, the state? In January 1992 Avaya's advocate requested my help to get in touch with Avaya to inform her that the final hearing in her case would be held in February the same year. If she did not attend, the case would be dismissed. She also suggested a meeting with her senior advocate prior to the hearing to take his advise as to how it should be tackled. I visited Avaya's house to convey the message. On the first visit I was refused entry and nobody would talk to me. From the road it appeared that Avaya's room was in complete darkness (it was late evening). I feared that she might have died. The next day I went back to the house in daylight accompanied by friends. Since the door to the house was open I walked straight in and upstairs to her room. The room was locked. As we were leaving we met one of the tenants. We enquired about Avaya's whereabouts. He suggested we contact a neighbour and took us there.

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The neighbour, a middle-aged man, said that he was in touch with Avaya. In the month of October 1991 Avaya was taken seriously ill. Her nephew took her to hospital. On her recovery he set up house with her in another part of Calcutta. Avaya had told him about me and so he was eager to help and gave me the new address. It was written on a postcard sent by Avaya to this neighbour. In the letter to him Avaya requested him to pay the remaining money he owed her. The neighbour kept insisting that Avaya was now well looked after since her sister's children, who were now taking care of her, were reasonably well off. He did not provide any other clue to his relationship to her except to say that when I did meet her I should impress on her the importance of her fighting this case since his role as the caretaker of her property would otherwise be jeopardised. I met Avaya the next day and it took some doing to locate the house. Although Avaya looked much better it was apparent that she was living in poverty. The house was located in a very poor area, Avaya's clothes were in tatters, and the house itself was very poor. Avaya said that she had left her house because she was ill and also because her relatives has begun threatening her again. She told me about the developments that had taken place regarding the property. She had borrowed money from time to time from the neighbour (who gave me her address) staking her share in the property as security. Before she left the house she requested a further loan and he insisted that the relationship be formalised. (Avaya took Rs.40,000 in all from him which represents only a third of what her share of the property was worth). As a result she had signed a lease document leasing him her share of the property for a period of fifty years. Since her departure she had learned that her husband's relatives and this neighbour had come to an understanding and they were about to negotiate the sale of the property to a Promoter. 6 In other words Avaya was being left out of this sale. Without getting the probate of the will she would not be entitled to a share in the money that the promoter was willing to pay for the property. She also expressed dissatisfaction at the way in which the advocates were handling the case. She said that she suspected foul play. A meeting

was set up with her advocates and on the appointed date I took Avaya to court. Her advocate had left when we arrived but we insisted on talking to her senior. He met us with the surprising remark that this case could not be fought since Avaya did not have any witnesses to the will and so it could not be proved that there was such a will. I suggested that this was a registered will and the registrar should be called as a witness. He said the registrar who witnessed the will was dead. I said that registrarship was a government post and not a person. The post had not died along with the previous

6 Promoter refers to real estate agents in Cacutta who buy up expensive urban property, construct apartment buildings and sell flats to middle-class families on an ownership basis. The situation has been described in the earlier Chapter.

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incumbent. This bit of logic seemed to infuriate him and he retorted that the court was interested in evidence and according to the Indian Evidence Act, Avaya did not have sufficient grounds for her case. I mentioned the promoter and the necessity of bringing an injunction preventing the sale of the property. He suggested we approach the promoter and request him on humanitarian grounds to give a share to Avaya. As we were leaving he suggested that we look for some witness to testify to the existence of the will. Avaya and I sat in the car shattered by this exchange. She was sure of the foul play now since the senior advocate had never on previous occasions said that it would not be possible to obtain the probate of the will. Avaya suggested that we try and find her husband's sister's son whose father had been a witness to the will (and was now dead). He had always been sympathetic towards her. She remembered his name and the locality he resided in but not the address. I took her to the locality and we began by asking people on the road whether they recognised the name. Finally we did come across somebody who recognised it but said that the person had left the area some years ago. However, his son lived in the area. He pointed out the house which we approached. There was nobody in the house. We gave up the search and left. (Subsequent efforts to trace this man through friends who lived in the area did not work out). The day before the penultimate court hearing I met the Member-Secretary of the Committee for Legal Aid, the body responsible for overseeing this case and appointing the advocate to apprise him of the situation. The Member-Secretary (a judicial officer) was at first sympathetic and said categorically that witnesses to the will do not have to be presented in court to prove the validity of a will. There were many other ways of presenting evidence in support of a will. Later on examining his office file on this case he was less sympathetic. However, he did issue a letter to the advocate asking her to meet him to discuss the case and also stating that 'the client is a co-sharer of the property in question whose rights could not be abrogated in law'. On the day of the hearing Avaya was asked by her advocate to come at 10.30 a.m. and present herself in a particular court-room. I took her there. The advocate did not arrive. After waiting for an hour I went to her office but was unable to locate her. After another hour I went again and this time took Avaya with me. The advocate did not arrive. I asked Avaya to wait while I went to get some food for her. On my return I found her talking to the advocate. Nothing was said about the consequences of not attending the hearing that day. Avaya reiterated to the two advocates that she wanted her share of the property. If it was not possible to get it by obtaining probate of the will, could she not exercise her right as co-sharer? After some discussion the advocates 240

advised that Avaya apply for partition of the property as a co-sharer. The agreed that within fifteen days they would file the partition suit giving all the details of the earlier case. After initiating the partition suit they would bring an injunction to prevent changes in the character of the property. By the time we left the court Avaya was seriously ill. As a result we could not discuss future arrangements. Hemaprabha, who is now sixty-five years old, was only eighteen when she got married. She was widowed in the same year (1946) that she was married. In fact the marriage lasted only seven months. She has applied for the partition of her father-inlaw's property which includes, beside the dwelling house, a great deal of land adjoining the house and is in Calcutta city. As the widow of a predeceased son, who has not remarried, she is entitled to one-eighth share of the property. After an abortive attempt to file a partition suit in 1988 (which was dismissed), her present case was filed in 1991. The circumstances of the dismissal of the case as also the problems of the present one are discussed subsequently. After the death of her husband, Hemaprabha continued to live with her in-laws. Before he died her husband had told her that he had an insurance policy which she should take care of. On his death she was so distraught that she forgot all about it. Besides, kinship norms demanded that she would be maintained and looked after by her in-laws and her curiosity or interest in her husband's money would certainly be considered improper. Hemaprabha continued to live in the family and was assigned all the menial tasks. In the first year of her widowhood her father-in-law was concerned for her and asked after her welfare. This gradually changed and the family began to treat her as a burden. At one point she did mention to the father-in-law that he should do something about redeeming the life insurance policy. He kept assuring her that he would take care of it. In 1949, almost four years after the death of her husband, she received a cheque by post which happened to be the money from the insurance. She gave it to her father-in-law requesting him to open an account in her name and deposit the money. He made her sign it and that was that. Many months went by until one day when she was turning out the pocket of her father-in-law's soiled clothes before washing them, she found an envelope in it. It contained a pass book of an account in the post-office. The pass book was in her father-in-law's name and the cheque had been deposited in the account. She was very upset and knew that he planned to deprive her of the money. The money became for her a symbol of her security (although it was not very much). She kept quiet for some time and the neglect and humiliation continued. She understood that the family wanted her to leave and return to her father's house. One day she confronted him as he came out of the 'thakur ghar' (prayer room of the house) saying that she had 241

expected that as a god-fearing and religious man he would do his duty by his widowed daughter-in-law. He was supposed to maintain her and instead had taken away whatever her husband had left her. Her father-in-law replied that he would not give her the money now and it might be considered when she was older. After this her life in her in-law's home became intolerable. She was ill-treated, humiliated and cast aside. She finally left to return to her parent's home (which is also in Calcutta and very near her in-law's house). She told her brothers about the money and asked them to tell her father-in-law that she would go to court against him if he did not return the money. The father-in-law finally relented and gave her the money which she then deposited in an account of her own. (This was merely a symbolic act since the money was not even sufficient to see her through six months). In the next twenty years there were numerous occasions on which her father-in-law commanded her presence in their house. This was always when there were festive occasions in the household and they needed somebody to work for them. Also, her presence there showed that he had not abandoned his widowed daughter-in-law. Each time she visited them she stayed for up to a month. However, as soon as the occasion was over he would ask her to return to her parent's home. Hemaprabha realised that they were trying to deny her rights as a daughter-in-law of the house. In the nineteen eighties she applied for and obtained a grant from the Social Welfare department, Government of West Bengal, to buy a sewing machine. As she had no place to put it she decided to ask her father-in-law for her space in their house so that she could house the machine there and work on it. When she visited the house she found that the rooms were all allocated to the brothers of her husband. Two of them were resident there but the others had built their own homes and moved away. However, they kept possession of their allocated spaces by housing a member of their family there. When she requested her father-in-law for space, he told her to put it in the room allocated to the second brother who had housed his son there in order to remain in possession. The third brother objected but she nevertheless deposited the machine there. However, she was never able to use it because access was difficult. Soon after this Hemaprabha had a serious road accident which left her practically crippled for four years. She could not move about and was housebound. She lost contact with her in-law's. Her father-in-law died in the meantime in 1987. In July of 1988 Hemaprabha decided to visit the house on her way to the hospital to find out in what state the machine was. She was barred entry by her youngest brother-in-law. He refused to let her in despite repeated requests. Insulted, humiliated by the injustice of it all she decided that the only way to get her just share was to go to court. She

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approached the Committee for Legal Aid with her problem, obtained assistance and a lawyer was appointed for the case. Throughout her account of her fight for her rights, Hemaprabha stresses the following. Her fight is for the right and just. Kinship obligations demanded that her in-laws should look after her. They should recognise her status as the eldest daughter-in-law of the house. In recognition of this status they should have given her the right of shelter. By denying her this what they were doing was denying her an identity. Hemaprabha said over and over again that the only way left for her to obtain justice was through the legal channels, through an appeal to the state because her relatives had failed her. 'They behaved badly towards me, humiliated me, did not give me enough to eat, denied my every request for fair treatment. Now I say that if the law exists for me, if I can obtain my fair share by following the path of justice, I will not put up with this humiliation.' The first advocate appointed to file the case on behalf of Hemaprabha did not take the matter too seriously. First, Hemaprabha was a childless widow who did not warrant this attention. Second, she was a client of Legal Aid which meant that he would be paid far less for his services than the going rate. She did not have the resources, either in people or in terms of income, to make it worth his while. He did not attend a single court hearing on her behalf and the case was dismissed by the court as a result. The second advocate (who is also Avaya's advocate) found that the papers submitted were not in order. All the co-sharers have to be sent notices in a partition suit which they had not. Hemaprabha was dispatched to collect the names and addresses of all the co-sharers of the property including the daughters. This took over six months since Hemaprabha had lost contact with most of them. Besides she could not approach them for their addresses on the grounds that she was about to take them to court. So she had to resort to subterfuge which made the process even longer. The second hurdle was that she was a Hindu female heir demanding the partition of a dwelling house. The way out of this legal tangle was to prove that others beside the immediate family were residing in the premises. Hemaprabha advised her advocate that beside the immediate family members of her husband, the other occupants of the premises were two sons of her father-in-law's brothers. It was found that the brothers of the father-in-law had transferred their interest in the property to Hemaprabha's fatherin-law and lived during their life-time as licensees. After their death, their two sons also lived on the premises on the same conditions. This was used to argue in the petition that Hemaprabha as a female heir could apply for partition since there were, beside the immediate family, others who were living as licensees. The case was filed in early 1991. By early 1992 none of the defendants had submitted a written statement to 243

the court. In other words the case is at its initial stages and going by the experience of partition suits, may take up to ten years to work itself out. Hemaprabha is the eldest of eight siblings. She has four brothers and four sisters. Her mother is still alive. Hemaprabha, her mother and a sister, whose marriage has failed, live with the least successful of her brothers. The mother receives some support from one other son. Hemaprabha, on the other hand, has no other means of support. One of the reasons why claiming her rights to property has become so central for her is that it symbolises for her the control over space that she can call her own. At present the two tiny rooms inherited from her father is shared by four adults. She does not have right over this space. She is poor and homeless. It also needs to be added that none of the members of her natal family actually support her decision to go to court although they are not openly hostile. A straightforward interpretation, based on the above case studies, of the relationship between a widow's dependence, the lack of male heirs and their legal rights to property, could be that this positioning poses special problems of access to the state machinery. It is aubundantly clear that for both Avaya and Hemaprabha the problems of access are severe. Both are elderly, and one is an invalid, and neither have children who can act on their behalf and manage their cases. I have elaborated on the follow-up that was necessary in Avaya's case to demonstrate how critical it is to have rights in people in order to assert one's right to property. The problem of access is also exacerbated by the lack of resources. Neither of these two women could have resorted to litigation without state assistance (i.e. assistance from the Committee for Legal Aid, Government of West Bengal). Although the judiciary is an institution of the State, it is virtually run by the private market economy of lawyers and litigants who focus, determine, and exploit its use (Anderson 1990:173). In this environment people without resources (women, the poor, low caste persons) are unlikely to be able to assert the rights given them in the statute books. State assistance in the form of legal aid seeks to remedy this situation. However, like all state provision in India, it is inadequate. The amounts paid to the advocates is a fraction of what they would generally earn from private litigants. This accounts for the senior advocate's lack of interest in Avaya's case. In Hemaprabha's case the first advocate made no secret of the fact that it was not worth his while to fight the case on state assistance. This generally means that the advocates recruited by Legal Aid are young and inexperienced and lack the legal clout necessary to handle these cases competently. Furthermore, fighting a case requires resources to meet travel expenses, to obtain documents relevant for the case from the court, to mention but a few. These expenses have to borne by the

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litigants and is not part of state provisioning. This necessarily creates unequal access between those who have resources and those who don't. The above details the problems of access which pose special constraints for women like Avaya and Hemaprabha in asserting their legal rights to property. These are the kind of constraints that are generally cited by liberal reformers when arguing for changes in the way state institutions function. The constraints detailed above are not particular to the community of persons represented by the two women - i.e. childless widows appealing for their legal rights to property against male collaterals of the dead husband. They could apply to a host of persons characterised by assetlessness, lack of rights in people, restricted mobility due to old age and other incapacities. What then constitutes the particularities of the relationship of the childless Hindu widow to her legal rights to property. The outcomes of these cases do not provide indicators as to the particularities of this relationship. The outcome in Avaya's case is unclear (although this lack of clarity is itself an indicator of some sorts) and Hemaprabha's case is just beginning. The clues have to be sought in the discourses, both at the level of the domestic and familial and the public institutions and the state, that characterise a childless widow's right to property, which position her in particular ways in relation to the property, which affect her capacity as an individuated subject to assert her claim to objects. As I have already indicated the need for litigation seems to arise for Hindu widows in the circumstance that they do not have male heirs. Other studies that I have cited seem to agree that a childless widow is more likely to face resistance to her assertion of rights given her by the HSA, 1956 from male collaterals because of the fear that she might alienate it to outsiders. In a such a circumstance what is at stake is the foundation of Hindu conceptions of property which stresses jointness and privileges male ownership and transmission. That this fear translates itself into constraints which childless widows specifically face is evident from Avaya's case study. Avaya herself is quite clear about its intent as is confirmed by her statements: 'If! die they will get my share. But if I get probate of the will I then get a right over my share. I might not leave my share to them in that case and that is why all this torture and harassment. I could give it away to somebody else. I could give it to those who have looked after me up to now - I could donate it - I could do anything I liked - it would be within my control - that is why they don't want to take probate'. The advocate seems also to be aware of the special constraints posed by childlessness and widowhood in relation to property as is also manifested by her statements regarding the case. 245

'Avaya had been widowed in the meantime and since she did not have any children, there was nobody in the family to protect her interests. The other parties interested in the will had delayed the case by denying its existence. They were hoping that she would die intestate so that her share could be inherited by them since she does not have any legal heirs' (Interview, Avaya's Advocate Rani Manjari Roy). The constraints manifest themselves at one level in the form of physical intimidation by the contenders to the property. Avaya's virtual incarceration, the need for her to bring criminal proceedings against them for physical harassment, all point to this. At another level the manifestation is symbolic and the content ideological. Thus in both Avaya and Hemaprabha's case we find numerous instances in which they are inched out of the space that they occupy in the contested property or are barred from utilising the space in a way that signified its partibility. In the absence of a male heir to legitimise her claim to the property, the will becomes the conduit for Avaya to her legal right to the property. Since it is a registered will, its legality, its acceptance in the public domain is seen as a foregone conclusion by the litigant. So she appeals to the State to legitimise her claim via the will having been defeated at the level of the familial and domestic where her childlessness disqualifies her claim. Public discourses about her rights may seem contradictory but claim unity by defining her as a subject invested with rights. On the one hand we have the Judicial Officer in-charge of the Committee for Legal Aid putting in writing that 'the client is a co-sharer of the property in question whose rights could not be abrogated in law'. She is, therefore, seen as a subject invested with rights. On the other hand, the will she presents in court is seen as impermissible evidence because it is a certified copy and not the original. Here too she is seen as a reasonable subject who would be expected to have additional proof to buttress its validity. Her claim (echoed by her advocate) that the existence of the will was being denied by the defendants to prolong the case so that she would die intestate, does not constitute evidence. As a subject she is considered the legal equivalent of the defendants with the ability to assert her right against the right of the other individuals. This notion of the subject cannot accommodate the differential positioning of the litigant and the defendants by virtue of the social relation that they find themselves in. Thus constraints arising from the unequal positioning of childless widows to their male collaterals in relation to property at the level of kinship and family are invisibilised at the level of the public institutions and the State. The resultant effect, at least in this instance, is that Avaya's claim to subjecthood (vested with alienable rights to property) is defeated by her positioning as a childless widow. The conception that the State is a just arbiter (epitomised by Hemaprabha's statement,'... Now I say that if the law exists for me, if I can obtain my fair share by following the path of justice, I will not put up with this humiliation.') is not decentered by this 246

denial. It is held in place by the discourse of rights which says that 'the client is a cosharer of the property in question whose rights could not be abrogated in law'. That she may not live to see the outcome in the partition case is a not concern in the realm of the public but certainly a central concern at the level of the domestic and familial. The failure to establish Avaya as a legal subject with the right to inherit and hold the property of her late husband means that she now becomes an object of charity. The Senior advocates' suggestion that the Promoters be requested to give Avaya a share of the money being paid for the property on humanitarian grounds is a confirmation of this failure. The widow as a object of charity dependant on the goodwill of the family is a more familiar figure in Bengali culture. This is a more acceptable figure than one who is a citizen of the modern state invested with rights to property by which she can then challenge the exclusive right of male collaterals to inherit and retain property within the patriline.

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SECTION III THE STATE AND WOMEN

III. i. What this section is about In the previous chapters I have investigated the experience of women litigants in their appeal to the state to support their statutory rights to property and maintenance. I have explored the relationship of the state to women in different social relations, namely, as wives, daughters/sisters and as widows of the two main communities, Hindu and Muslim. The experience of women litigants, both Hindu and Muslim, shows that the construction of legal subjects as unified, freely-choosing individuals is fractured at every instance by a palimpsest of identities constituted and erased by discourses of gender, kinship and communalism. I have shown that when wives appeal for marital property and maintenance the centrality accorded in adjudication to proving/disproving a woman's fitness as wife shifts the discussion of a woman's rights to maintenance from that of an entitlement to that conferred as a privilege.I have also shown that recent legislation regarding Muslim women's rights to be maintained by their divorced husbands has occurred at a historical conjuncture when discourses of community identities has been central in reworking the concept of 'Indianness'. Women litigant's experiences show that a crucial change that is in the making has to do with the construction of Muslim men's responsibilities in marriage, and particularly to their divorced wives. In the process there is also a corresponding construction of Muslim women's entitlements in marriage. Implicated in these processes is the homogenisation of Muslim identity through the constitution of Muslim marriage as unstable and inferior and Muslim women as victims of contentious traditions. I have shown that the data on women's litigation in support of inheritance and succession rights contradicts the assumptions generally made about these rights. These assumptions are, first, that the Hindu Succession Act, 1956 established parity between Hindu men and women in the matter of inheritance. Second, that although Muslim women have established rights to inheritance their right is less than that of men since as heirs Muslim women are entitled to half the share that men can claim. My study takes issue with the generalizations implicit in the juxtaposition of these statements. This is because, first, it assumes that the principal hierarchy of rights is that between Hindu women and Muslim women. Second, this then serves to obscure the hierarchisation of men's inheritance rights over those of women's rights that takes place in the process of adjudication. My data clearly shows that claims to ancestral property made by female heirs, both Hindu and Muslim, are subject to trials of personhood in which gender and 248

kinship ideologies are critically implicated.My data has also indicated that the relationship of widowhood to property in law is quintessentially a Hindu problematic. According to my data there seems to be a difference in the positioning of Muslim widows as opposed to that of Hindu widows in exercising rights to inheritance and succession to a husband's property. My data also indicates that for Hindu widows there is a strong correlation between their dependence, the lack of male heirs and their ability to assert their legal rights to property. As my findings clearly indicate what is at stake here is the redefinition of men's and women's right to property in the family, whether Hindu or Muslim. Property signifies access to and control over resources, the material means whereby gender differentials are kept in place and women's subordinate status reinforced. In conceptualising the relationship of women to the state, one must question what has prevented this redefinition. This redefinition would necessarily involve a fundamental reordering of the social relations of gender and community and their relationship to the state resulting in a more equitable social order. In this chapter I will investigate this problematic. A 'problematic' in Aristotelian logic is used to indicate the mode or modality of a proposition. A problematic proposition is one that asserts that something is possible. In contemporary philosophy of science this term is used to indicate the common thrust or direction of theoretical inquiry implied by the posing of a whole group or ensemble of problems in a particular scientific discipline. Althusser has used the term to mean the theoretical and ideological framework in which a word or concept is used, to be recovered by a 'symptomatic reading' of the relevant body of texts (For a fuller discussion see Chatterjee 1986 p.37). If we combine the usage of the term in the philosophy of modern science and by Althusser then the thrust of the inquiry will involve the unpacking of the concept of 'equality' as this is posed by the self-definition of the Indian state (via its Constitution, fundamental rights, and equality of all before the law) and 'equality' as posed by discourses of identities (related to each other by hierarchies of power) contesting to create hegemony within the state. This section has two chapters. In the first chapter in this section (which is Chapter 8 of the thesis) I will explore why women appeal to the state in India and discursive formations within which they do so. I will do this by examining the women's movements struggles for legal changes and the reasons that my respondents proferred for appealing to the state. In the second chapter of this section (which is Chapter 9 of the thesis) I will explore the meaning of 'equality' the multiple and contested meanings given to the concept of 'equality' using the significatory function of the uniform civil code.

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SECTION III CHAPTER 8 GENDER, POWER AND THE STATE: Why women appeal to the state.

8. 1. Introduction In Chapter I, I have discussed the nature of the Indian state. I have shown that the centrality of the state has to be acknowledged. This centrality implies the state's ability to restructure social relations as also its capacity to intervene in more and more areas of social life. Ignoring for the moment the heterogeneity of women in India predicated on differences of caste, class, community and region, one must ask what do women as a group have to do with the nature of the state? There are two dimensions to this relationship. First, the nature of the state, and of the state-society relations obtaining in India posits women as a category, a category of citizenship. This is evidenced by the fact that women as a group have, since independence, been targets of social legislation as part of the state's agenda to actualise the goals of social development, modernisation and progress. In this entity women as a category are also seen as a subaltern group, a group lacking power and privilege, a group that needs 'development'. The plethora of woman-centred legislations in the late seventies and eighties decade, the womanfocussed development initiatives of the state in the same period bear testimony to this status. This in turn has impacted on the way women have related to the state. Feminist researchers have argued that the contemporary women's movement has addressed its demands primarily to the state typically in the form of seeking the recourse of its laws in instituting legal reform or enacting new laws on behalf of women. Thus women, as a category of citizenship, are implicated in the state's goal of modernisation, progress and development. I will explore this relationship in this chapter where I look at the way women construct themselves as subjects and the discursive formations within which they do so. The relationship of women as a group to the nature of the state has another, more critical, dimension. The constitution of the female subject is imbricated in the processes of the cultural construction of the nation. As I have discussed earlier, there has been a shift in state-society relations characterised by political economists as the weakening of 250

state controls over the economy. The resultant alignment of the state to the dominant classes has made it more difficult to maintain the alliance between them and the subaltern classes. This has implications for the way in which the nation will be kept together and subsumed under the 'political roof' of the nation-state. A nation is not merely a political entity but something which produces meaning - a system of cultural representation (Hall 1992 p.292). To prevent a crisis of legitimacy for the state in the event of breakdown of such an alliance, the 'nation' has to be 'imagined' anew. As the 'nation' is imagined anew the identities of both 'state' and 'citizen' are redefined. Identities after all are not given but are formed and transformed within and in relation to representation. New forms of Indianness which act as a cement in the process of reworking this alliance are forged. That this reworking has entailed the naturalisation of a middle-class, upper caste, masculinist hegemony is acceded by most commentators (Tharu & Lalitha 1993; Sunder Rajan 1993; Vanaik 1990). It is in the process of representation that the female subject emerges in response to these ideological imperatives. As Sunder Rajan puts it 'Our understanding of the problems of 'real' women cannot lie outside the 'imagined' constructs in and through which 'women' emerge as subjects' (Sunder Rajan 1993 p.10). Thus another dimension to women's relationship to the state is as imbricated in the processes of the cultural construction of the nation. I will explore this process in Chapter X where I explore the meaning of the UCC and what this signifies for the meaning of equality between men and women. This chapter will be in two parts. The main objective of the chapter, as I have said, is to explore why women appeal to the state. In other words I aim to examine the ways in which women constitute themselves as subjects and the discursive formations within which they do so. This exploration, therefore, is also about the way women construct the state. I will explore this relationship in two ways. In the first part, I will examine some of the key issues articulated and addressed to the state by the contemporary women's movement in India, beginning in the latter part of the nineteen seventies and extending into the nineteen eighties decade, and the resolutions offered by the state. I will rely on the commentaries provided by feminist researchers and also on my own involvement in the movement to do this. In the second part, I will examine the reasons that my respondents offer for appealing to the state in settling disputes over entitlements to family property.

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8. 2. 'Aurat bhi insaan hai' 1 : The women's movement The amorphous nature of the contemporary women's movement in India poses problems in characterising it. The fact that I refer to it as contemporary sets a date and also signals a genealogy. Feminist researchers claim that this movement represents the third generation of women's movements in 'modern' India. The first wave of women's movements is identified with the social reform movements of the nineteenth century in which issues of widow remarriage, women's education were central. The second wave seems to coincide with the Civil Disobedience movement launched by Gandhi in the 1930s and in which women's participation was unprecedented. The first stirring of an equal rights for women campaign is traced to this phase. (See chapter 3 for a fuller explanation of this phase of the women's movement). The third phase, and that which we refer to as contemporary, is more difficult to date. However, it was clear by the late 1970s that women's issues were being articulated in a number of forums and that women's groups had emerged all over the country. As I have indicated before, the late 1960s and early '70s was a period of great political turmoil in India. In fact this turmoil encompassed every section of society. There were peasant uprisings and student agitations, strikes by blue collar and white collar workers. The movements spread in both the cities and in the rural areas. It should be emphasised that all these oppositional movements were directed against the state. A special feature of the movements and agitations in this period was that middle-class and working class women participated in great numbers and with militancy. Initially this upsurge in women's activism was under the leadership of men and organised political parties. By 1975, however, women working within political organisations separated out to articulate issues and concerns which affected women specifically. The state of Emergency imposed by the state in 1975 in response to the growing crisis suspended all civil rights. As a result the nascent women's groups had to meet informally. It was with the lifting of emergency regulations in 1977 followed by general elections in the same year that women's issues and activism concretised into a host of small, autonomous organisations spread over the country. In 1974 the report of the Committee on the Status of Women, set up by the Indian government to prepare for the International Women's Year, published its report. This report entitled 'Towards Equality' documented with great care exactly how unequal women's access to development, to education and health, their economic and political participation, and their status under the law, among other things, continued to be in 1 'Aurat B hi insaan hai' means 'Women are also human beings' and was the main slogan used in the anti-dowry campaign analysed later in this section. This slogan also epitomised the liberal-humanistic discursive strategies deployed to make the appeal of the campaigns as widely acceptable as possible.

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post-independence India. The detailed analyses was an eye-opener and an indictment of the state's development priorities in the first quarter century of its existence. It held the state responsible for what had happened to women despite the promises held out to them in the Constitution which was a 'social document embodying the objectives of a social revolution' (Committee on the Status of Women in India 1974, p.3). This report had a tremendous influence on the women's collectivities growing up around the country. Tharu mentions that histories of the women's movement in the United States often cite Betty Friedan's 'The Feminine Mystique' as the book that set the women's movement in that country going. In this sense Towards Equality' is a 'founding text'. Tharu further points to the fact that the contrast between these two founding texts is a good measure as any of the contrast between the two movements and their constituencies. I mention this here to signal that the discourse within which women constitute themselves as subjects represents the state as the main agent of reform and change, the main protector of rights. By the mid 1980s the amorphous women's movement had spread to address a host of issues affecting women. These issues included violence against women, the right to employment and equal wages, legal equality, education, health and environment. And the demands for reform and change were always addressed to the state. Women's activism on these issues straddled both grass-root organisational forms and academic research. Many of the campaigns, especially those around women and violence, received widespread and sympathetic media coverage. At the level of civil society, therefore, there was exposure to and discussion of women's issues. State response was in many instances immediate and has taken the form of instituting legal changes, setting up commissions to look into specific issues, funding of women's studies cells in Universities, inclusion of a separate chapter on women in the Sixth Five-Year national plan, setting up of Women's ministries and even a separate National Perspective Plan for women. In a sense women emerged as a constituency in the state's plan for development of the nation through these struggles. In what way has this changed the relationship of women to the state ? In asking this question I am trying to address other related issues. The first of these issues is the one I raised at the beginning of this section which is : what kind of subjects are women defining themselves as in relation to the state ? In order to address this question I will examine in some detail a particular terrain of struggle traversed by the movement, namely, legal reform. I will examine this in the context of the campaign against violence against women, and particularly, in the family. Feminist researchers have in hindsight asked themselves why it is that almost every campaign in the movement has demanded legal reforms despite its severe criticism of 253

the legal system, the hopelessness of achieving legal redress, and the endless squabbles with the law makers and implementors. Numerous explanations have been offered to explain this phenomenon which I do not wish to deal with just at present. Suffice it to say at this point that this phenomenon is itself indicative of the terms of relationship that women have had with the state in India. The plethora of protective enactments in the nineteen eighties that resulted from these campaigns has provoked Flavia Agnes, a leading feminist lawyer in the movement, to comment : "If oppression could be tackled by passing laws, then this decade would be adjudged a golden period for Indian women, when protective laws were offered on a platter. Almost every single campaign against violence on women resulted in new legislation" (Agnes 1992 WS-19) The first legal campaign was around the issue of rape. In 1979 the few women's groups that had emerged in the major cities and which had hitherto dealt with local issues only, coordinated a national campaign against rape. The immediate provocation was the publication of a Supreme court judgement that had acquitted two policemen, who were on duty, of charges of raping a sixteen-year old tribal girl, Mathura, in a police station. Women's groups demanded a reopening of the case and, later, a change in the rape laws. This campaign did lead to a change of the rape laws in 1983. More importantly, however, it provoked a public discussion whereby the issue of 'rape', hitherto a tabooed topic, came out of the closet and was subjected to extended scrutiny. As a result there was widespread public discussion on women's sexual rights in general, the relevance of 'sexual history' in rape trials, the biases of medical examinations, and the rights of women (over and above those of men) at the time of arrest. It also helped to give meaning to cases of 'rape' perpetrated by custodians of the law on women who were in their charge. 'Custodial rape' as this came to be defined, therefore, implicated the guardians of law and order, namely, the police, the para-military, and the army. Through the naming of this particular crime and its acceptance in the public sphere via legislation there was acknowledgement by the state that the machinery responsible for 'protecting' the public had turned the coercive power vested in their position against the most vulnerable section of the population, namely, women. The campaign and its outcome, the change in the rape laws, was widely acclaimed as a victory for the women's movement. It was interpreted as a victory in that it empowered women's organisations and also led to the articulation of other issues of violence against women. However, the relationship of women to the state, examined here via the legal campaigns and consequent legislation, needs locating. We need to ask what End of subjects are produced through the shifts in definition that legal amendments bring about. In reviewing this decade of legislation (1980-89) Flavia Agnes points to some of the implications. Redefining 'consent' in a rape trial was one of the major thrusts of the campaign. The Mathura rape case had made it clear how difficult it is for a rape victim 254

to prove that she did not consent 'beyond all reasonable doubt'. The main demand of the campaign was, therefore, that the onus of proving consent should shift from the prosecution to the accused. The second major demand was that in a rape trial a past history and general character should not be used as evidence. A Law Commission was set up to study these demands. In its recommendation the Commission included the demands made in the campaign and went further by suggesting safeguards for women in pre-trial procedures (mainly to protect them from arbitrary police power). The Bill which came to Parliament in August 1980 did not, however, take up the recommendations regarding the regulation of police power. It also did not shift the onus of proof to the accused except in the case of 'custodial rape'. The demand that a woman's sexual history and general character should not be allowed in a rape trial was excluded from the bill. The bill had certain retrogressive elements which were not recommended by the Commission. It made publishing anything relating to a rape trial an offence. This was tantamount to censorship of the press. Considering the role that reporting and media attention had played in aiding the anti-rape campaign, this particular clause was punitive. The Bill did, however, lay down for the first time a minimum punishment for rape. It also made sexual intercourse in custodial situations, even with the consent of the woman, a punishable offence. Although the amended rape law was inadequate the campaigners perceived it as a beginning. It was expected that the courts would follow the spirit of the amendments and give women a better deal. Comparing some landmark judgements given by the courts in the period 1980-83 when the anti-rape campaign was at its height, with those that were given in the aftermath of the amendment, Agnes shows that there was a discernible change in the way 'consent' was construed. In the 1980-83 judgements the woman's 'consent' is problematised (e.g. submission cannot be construed as consent) giving her the benefit of doubt and reflecting in a way the concerns projected into public discourse by the anti-rape campaign. The judgements in the post amendment era seem to reverse this trend. In these judgements the need for 'corroborative evidence' (e.g.injury, raising an alarm) to prove lack of consent is accorded centrality even in situations in which the power relations between the victim and the accused are clearly in the latter's favour. She further argues that in the case of positive judgements (i.e. in women's favour) the reasons offered by judges for believing the woman had more to do with whether they were convinced that she was 'chaste' or a 'virgin' than that she was subjected to violence against her person. A positive judgement, cited by Agnes, described the reason for believing the woman/victim in the following terms: "Virginity is the most prized possession of an unmarried girl. She would never willingly part away with this proud and precious possession" (cited in Agnes 1992). 255

Another important observation that Agnes makes, and which arises from her detailed scrutiny of the post amendment judgements, is that the laying down of more stringent punishments in the new Rape Bill has actually resulted in fewer convictions. In fact legal experts did forecast, in the period when the amendments were being debated in Parliament, that this might happen. Agnes uses the above arguments to conclude that the anti-rape campaign was unable to shift the definition of rape beyond the parameters laid down by a patriarchal value system. Blaming patriarchy does not really help us to comprehend the complex nature of the relationship of the state to women. In order to appreciate the complexity we must look more closely at the discursive strategies that constitute the female subject and how these discourses get inscribed in definitions, institutions and arrangements. Judgements given in rape trials prior to the amendments could go either way (i.e. in the woman's favour or against) depending on the precedents available in case law and used by the particular judge on the case. The amendments were supposed to lay down the guidelines, provide the frame, for uniformity of treatment. Agnes' main regret seems to be, however, that the guidelines have not imposed uniformity. My reading of the material she presents differs from hers. Judging from what Agnes has to say about the trends in post amendment judgements it is clear that there has been some uniformity imposed. This uniformity is being imposed by 'fixing' the meaning of consent. Not surprisingly this has actually gone against women. In order to unravel why this has happened one must examine the discourses within which the claims were made and those within which the resolutions were offered. The anti-rape campaign appealed to the state for the protection of women's rights within a discourse of civil liberties. The immediate provocation for the campaign, it must be recalled, was the judgement in the Mathura rape case which was about public servants (the police in this case) using state power to oppress citizens. The campaign did result in public discussion about women's sexual rights in general which decentred to some extent the understanding of rape as being about 'honour' (her honour but by implication men's honour) to being about violation of rights of the individual. The amendments lie squarely within the parameters of a discourse about the liberal notion of rights of the 'citizen' vis a vis the state. The criminalisation of 'custodial rape' that the amendment brings about, shifting as it does only in this instance the onus of proof from the victim to the accused, is a recognition of the right of the citizen, within the discourse of civil liberties, to be protected against the arbitrary powers of the state machinery. This notion of the individual citizen, however, cannot accommodate the differential power between citizens by virtue of their gendered positioning. According to this notion of the subject, therefore, the accuser woman is as much a rational, freely

choosing subject as the accused. Thus in every other instance but custodial rape judges have to prove beyond 'reasonable doubt' that the woman did not consent. The exclusion of the recommended clause that a woman's character and sexual history should not be part of the rape trial is also about the positing of the unified, freely choosing, rational subject as the model for the construction of the 'citizen'. The differential positioning and asymmetrical power relations between the male rapist, who is the accused, and the female victim, the accuser, is erased as a result. The identity of the female victim is then fixed by the judge. This reconstitution of the female subject is achieved by drawing upon notions about female sexuality, its definition in relation to men's honour, and the 'fixing' of parameters for judging appropriate/correct female sexual behaviour which then are used to define whether the violent act was rape or not. I will now move on to look at the campaigns and the resolutions in the battles to define in the public sphere of the state the hitherto private act of violence against women in the family. The rape trials attracted the attention of women's organisations in 1979. Prior to that, in 1977, women activists in Delhi reported the growing incidence of deaths of young brides allegedly in household accidents. Investigating some of these deaths which looked like suicides and accidents, women's groups found that these were in fact murders. In 1978 Mahila Dakhshata Samiti, a Delhi-based women's organisation, published a report of their investigation of these incidents showing that the women's deaths were not accidents but that they had been murdered. This received widespread publicity. Women's organisations in all the major cities and towns in India began their own investigations. This was followed up with campaigns in which local support was mobilised to 'shame' the families where these incidents had taken place. There were demonstrations outside and picketing of local police stations within whose jurisdiction the murders had taken place to pressurise them to record these incidents as murders. As women's groups grew more vigilant about these supposedly mysterious deaths, their investigations revealed a certain pattern in the circumstances of the death of young brides. The victim was generally young, most often recently married (in the past year or so before the incident). The household in these circumstances comprised, beside the conjugal couple, other members of the husband's family (e.g.mother, sister). The actual circumstances of the death was generally 'accidental' and most often resulted from the cooking stove bursting into flames resulting in third degree burns for the victim. Whatever the nature of the 'accident' help did not arrive sufficiently on time to save the person's life although there were always other members of the family resident in the house. Further investigation also revealed that the parents of the woman had spent enormous sums of money on gifts in kind and cash at the time of the wedding. Also, 257

demands by the husband's family for cash and other gifts had continued for many months (and often years) after the wedding. Further most men would then remarry within a year of the 'accidental' death of their wives and collect more gifts in cash and kind. The police always registered these incidents as 'accidents' and the investigations always absolved the husband and his family of responsibility. In stray cases where the woman had died by poisoning or hanging it was inevitably shown to be a suicide. The nature and content of the investigations, the articulation of the findings in agitational strategies, the manner in which it was represented in the media all seemed to point to the fact that these women were being done to death because of the demands by the husband's family for dowry. This crime was then named. 'Dowry murder' (sometimes referred also as 'bride burning') as it came to be known became a synonym for Indian, Hindu women and a unique form of violence that only they suffered. (Significantly Muslim women did not seem to face this problem). This also resulted in the conflation of all forms of domestic violence against women with dowry-related violence. The anti-dowry campaign, as the movement came to be known, made certain demands to the state. First was legal changes to better reflect these crimes. Second was changes in the police machinery which would assist in investigating these crimes. Official response to the naming of this crime was swift and immediate. The antiquated and useless Dowry Prohibition Act, 1961 came up for review. The Act was amended first in 1984 and then further amended in 1986. (The rape law has taken a hundred years to change.-Some laws are still on the statute books since 1860. That the Dowry Prohibition Act was amended twice in the space of two years is evidence of the sense of crisis, and the urgency to seek a resolution). The amendments of 1986 made punishments for the offence of taking or demanding dowry more stringent and the burden of proving the offence was shifted to the accused. Procedures for filing a complaint were simplified. In the event of the death of the woman concerned (and if she happened to have died childless) the amendments stipulated that her property would revert to her parents. The Act also amended the Indian Penal Code and created a new category of offence called 'dowry deaths'. In fact all the loopholes were plugged and the stage was set to abolish 'dowry deaths'. The state also accepted the demands of the campaigners that special cells should be set up in the police structure to look into these crimes. The Anti-dowry cell was set up in New Delhi in 1983. (In 1986 this cell was turned into the Crimes against Women cell reflecting the change in definitions). This was followed by similar cells being set up in all major cities in India. The number of complaints received from women by the Delhi cell alone rose from 837 in 1983 to 3108 in 1986 (Gandhi & Shah 1991 p.58).

But deaths of women under 'accident' and 'suicide' conditions refused to go away. What is more the women's organisations, which had by 1984, set up their own cells to investigate and counsel women reporting violence were overwhelmed by appeals for help. Women appealed for help in situations of systematic physical and mental torture in their marital homes. They were beaten, threatened and often in fear of their lives. In the majority of cases the women had no one to turn to and nowhere to go if they chose to get away from the every day fear and trauma. In many cases the woman's parents or natal family would refuse to give her shelter for fear of being 'shamed' by their daughter's failed marriage. Most women did not have the economic means to set up an independent life. The problem of domestic violence seemed to cut across class, caste, hindu/muslim and urban/rural divides. The highly visible anti-dowry campaign had prompted women to come out of the woodwork, name their problem and seek assistance to prevent domestic violence. In the public sphere, however, the problem of violence against women had been conflated with dowry. This had implications for the way the issue was treated at the level of the state. At the level of the legislature the response was to amend the Criminal Acts rather than pass a comprehensive legislation covering all forms of domestic violence. The Criminal Acts were amended twice within a space of two years, in 1984 and 1986, as the agitation by women's organisations sought to broaden the definition of violence against women in the family. These amendments created special categories of offences to deal with cruelty to wives, dowry harassment, and dowry deaths. Prior to these amendments the Indian Penal Code did not have a specific section to deal with violence in the domestic situation. Instead it had a chapter dealing with offences against marriage. The first amendment was placed in this chapter as part of a section which gives every man the right to prosecute any other who takes away his wife even if this is done with the wife's consent! In the eyes of the law a woman/wife was clearly the property of her husband. Section 498A, as the amended section is known, although conceived as a protection against dowry harassment is worded in a wide enough sense to be used in other situations of domestic violence. It does not define cruelty to wives as arising only from dowry demands. It recognises mental cruelty. However, it restricts the definition of cruelty to grave situations thereby letting the everyday violence faced by women to fall through the net. This section, therefore, represents the only legal resort that women have in situations of domestic violence which are not dowry related. However, because it was conceived in the light of the definition of domestic violence as being dowry related, its interpretation as a legal tool to deal with all forms of

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domestic violence depends to a large extent on the interpretation given to the nature of the crime by the police and the judiciary. The other amendment to the Criminal Acts, as I have mentioned earlier, introduced the offence of 'dowry death' and is Section 304B of the Indian Penal Code. However, it is specific to dowry related violence and deaths caused by dowry related harassment. It cannot, therefore, be used in other situations of domestic violence even if such violence happens to result in death of the woman. Both these amendments also amended the Criminal Procedure Code (which lays down procedures for investigation) and the Evidence Act (which prescribes the rules of evidence). What I have so far described is what happened at the level of the apex law making body of the state, the legislature. Laws have to be implemented and, therefore, the implementing bodies play a major role in 'fixing' and transforming the meaning of the laws. Laws which fall under the jurisdiction of the Criminal Acts (as the ones described above) are particularly vulnerable to interpretation by the implementing bodies. This is because once the offence is recorded under a criminal Act it is the state which is the main prosecuting body in a criminal trial. This means that the citzen/subject against whom the charges are brought has to be protected against the arbitrary powers of the state. This implies that the police and judiciary, the implementing bodies, must establish beyond doubt that the procedures of investigation were 'fair' and the rules of evidence have been strictly followed. When the state machinery, the police in this instance, prosecutes a burglar its relationship to the accused is straightforward. It is acting on behalf of a citizen whose inviolable right to own, which is the fundamental constitutive element of the legal person, is jeopardised. The procedural rules for investigation are clear cut and what constitutes evidence is also within the recognised parameters of reason and fairness. But when the police prosecutes a husband for harming his wife the relationship to the accused is, needless to say, less clear. One major area of ambiguity lies in ascertaining at a conceptual level on whose behalf they are prosecuting. In other words who is the subject? As we have seen it is only the unified freely choosing subject that can be invested with rights. The simple answer would be that she is a person, a citizen invested with rights. But she is also a woman. More importantly she is also a wife and the harm to her person (the crime) takes place within the context of the social relation which ascribes to her the status of wife. The status of wife, as we have seen in Chapter V, is subordinated to husband statuses in law and ideology. Is it possible to extricate the woman/subject from the social relations of wife so as to invest her person with rights which then makes her the conceptual and legal equivalent of the 'accused' who is also her husband? Women's experiences of seeking state protection against violence in the family seem to indicate that women's rights as individual citizens can at best be imperfectly enforced when its violation 260

happens to be in the family. I have made this argument in the context of women appealing for property rights against husbands (Chapter 4). I reiterate it here because the struggle to get the laws on domestic violence and dowry related violence enforced has brought out most clearly the contradiction of being female and subject/citizen. I will recount the experiences that women individually, and as part of the movement, have had in getting the implementing agencies to recognise the 'crime' in terms of the law and punishing the crime also in terms of the law. This will serve as an illustration of the contradiction I have posed about being female and subject/citizen. First, let us look at the official record in handling the dowry related incidents for which there are strict laws and which specify a special category of offence, namely, dowry deaths. Wife murders, or rather reporting of such murders, is actually on the increase. In 1990, dowry deaths totalled 4,386 up from 2,209 recorded in 1988 (Sunder Rajan 1993 p.93). In the past eleven years the total number of married women killed was 13,630 (figures cited by Mathur in Illustrated Weekly of India, 7-13 March 1992). Only 3 per cent of all reported cases have actually resulted in convictions. The low rate of convictions has much to do with the way police investigate the crime and the understanding at both levels of the police and the judiciary as to what constitutes evidence in these circumstances. Section 304B IPC clearly states that if a woman dies an unnatural death within seven years of marriage, and if there has been a history of cruel treatment, it is the husband and his immediate family members who must prove that they are not guilty of causing her death. What constitutes cruel treatment ? And by which sources will this be corroborated given the circumstances in which this treatment is meted out, namely, in the privacy of the home and in the extremely 'private' world of conjugal relationships. Second, what kind of evidence will incriminate the accused ? Is direct evidence (statement by the victim who is dying) a realistic form of evidence to depend on given the circumstances under which the crime occurs ? These and other related questions have dogged the police in their investigations and the judiciary in judging the 'accused'. At both levels the reaction has been to simply follow procedures of investigation and rules of evidence constructed for situations which the state and society recognise as 'crimes'. All this may simply indicate a lack of appropriate gender education and training of the police and judiciary. Liberal reformers would say that given the investment in training such institutional problems would disappear. If this were the case then ten years of handling such cases, pressures from the women's organisations, collaborative projects between the police and social work related institutions would have yielded better results. Let us take the example of recording dying statements of victims as evidence in such crimes. First of all the general experience has been that women have refused to 261

'name' their husbands on their death beds as being responsible. Second, where such statements have been obtained it has been because women's organisations have gone to ridiculous lengths to obtain them. As for example, Gandhi and Shah cite the experience of Project Help in 1988 set up as a collaborative effort between six women's organisations in Bombay with the police and the hospital authorities. This project set up a twenty four hour vigil at the bed side of burn victims for a period of six and a half months. Volunteers from women's organisations were mainly responsible for keeping the vigil. When dying statements were obtained and these contradicted police accounts of who the 'accused' was and circumstances of the 'crime', it was the police version which framed the prosecution. After a few such incidents the project was terminated by the police chief on the grounds that it had overstepped its mandate (Gandhi & Shah 1992 p.100). Finally, when the dying statements are admitted and produced as evidence it need not represent conclusive prove of guilt and result in convictions. Shalini Malhotra's death was a well-publicised case, and one that shows the difficulties of using the dying declaration as evidence in court. Shalini died on 21 April 1989. She gave out differing statements of what had caused her fatal burns. The first one which she made immediately on arrival at the hospital was given under duress - her motherin-law had allegedly threatened her sisters and parents with retribution if she told the truth. It was only later that Shalini went on record to say that she had given her first declaration under pressure and that she had actually been set on fire by her husband. Shalini's second confession, spoken from her hospital bed, was recorded live on national television. In spite of the publicity and the nature of the evidence, however, the trial against her husband and his family is still pending, and the accused are free on bail (cited in Sunder Rajan 1993 p.99). The resistance to 'naming' the crime for what it is, namely murder, and holding the husband/subject responsible is best evidenced in the trend of the judgements in such trials. Agnes points to the fact that in a number of judgements the husband was let off on the grounds that the woman's death was not supported by charges of cruelty. When the woman's death looks like a suicide judges have resorted to psychologising the crime by constructing the woman's state of mind as exhibiting sensitivity, frustration, depression in an effort to explain the suicide thus exonerating the husband/family for aiding and abetting it (Agnes 1992 WS-27). I will briefly examine the experience of protecting women against domestic violence which is not dowry related. The two measures, as we have seen, to empower the state machinery to 'deal' with such situations were the enactment of Section 498A and the setting up of cells within the police which are now known as 'Crimes against Women cells'.

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Section 498A has been notoriously difficult to actualise. As I have mentioned earlier the definition of violence in this section is broad enough to be applied to situations other than dowry-related violence. However, it is to a great extent dependant on the police and the judiciary to interpret the clauses to deter violent husbands. When this section was first introduced the police refused to register reports of violence made by women under this section unless the harassment they reported had something to do with demands for dowry. As a result women often made vague allegations of dowry demands when reporting genuine cases of wife beating and torture. These allegations could not stand the legal scrutiny of a criminal court resulting in jeopardising the credibility of the complaint (see discussion in Agnes 1992). However, as a result of persistent agitation by women's organisations it is now generally accepted by the police that this section could apply to instances of domestic violence other than those which are dowry related. This does not mean that the problems between the women and the police have been resolved. The police have refused to register cases under this section unless there is palpable evidence of cruelty which generally means that she alleges physical assault. Very few cases registered under this section actually make it through the courts. There are a number of reasons for this. First, at the level of the police and the public prosecutors there is enormous resistance to applying this section because it results in the arrest of the accused husband. All the members of the judiciary, the Bar and police I interviewed in relation to my research singled out 498A as a retrogressive section which results in the break up of the family. Similar reports have been compiled by women's organisations. Once the husband is arrested, they claim, there is no going back and no possibility of reconciliation between the man and his wife. According to this school of opinion wife beating and torture is a matter of misunderstandings in the conjugal relationship which can be sorted out through reconciliation (read the wife's acceptance of the humiliation, torture and beating). Second, the complexities of women's lives, especially those who live in violent relationships and for which the law makes little or no allowance, make it difficult to follow the complaint to its logical conclusion through the courts. Women who have applied under Section 498A generally do so to deter violent husbands and bring them to a negotiating table through the power exerted by the state machinery. Once the man is arrested on the registration of a complaint (and detained for twenty four hours) most women assume that he will be more amenable to negotiating with her. Since the law does not guarantee her right to her matrimonial home nor offer her alternative shelter a woman in these circumstances has to live with her tormentor. The threat of pursuing the case is the only threat she can hold out to ensure his compliance under the circumstances. And so many women withdraw the case against their husbands when this short-term goal has been achieved.

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Ultimately the cases that go through to the courts are those where the torture has resulted in the woman's death. Her relatives pursue the case to its logical end. Judgements under this Section have faced the same problems as those I have discussed in relation to dowry deaths. Cruelty has evaded definition in the judicial perception of these incidents. The guilt of the husband, consequently, is not proved beyond 'reasonable' doubt. Further judges have questioned whether occasional cruelty and harassment can be construed as cruelty under this Section (from judgements cited by Agnes 1992). The experience of the Women's cells have been documented in great detail by the feminist magazine Manushi. Although these reports were based on the experiences in Delhi, similar accounts exist for other cities (see Gandhi & Shah 1992). Leaving aside the inefficiency of these cells evidenced in the low rate of convictions, the inability to pursue dowry related complaints, what is most disturbing is the way in which the meaning of 'domestic violence' has been transformed to provide a 'fit' with prevalent notions about the family, and, gender relations that keep this family in place. Police cells now see their role as counsellors, not to prevent domestic violence nor to deter violent husbands, but to persuade women to return to their families. Domestic violence in this framework is, as I have said, a matter of misunderstandings in the conjugal relationship. A woman's inability to cope in this situation is fuelled by women activists who are bent on destroying the family. It is the task of the police to mediate, to bring back order, to restore the inviolable nature of the family and marriage. As one Assistant Commissioner of Police, in charge of a Women's Cell, summed up 'We do think that the woman must return to her husband if she can. After all her place is in the home. There is no point in breaking up the family. Our major function is counselling and attempting a compromise' (mentioned in Gandhi & Shah 1992 p.99) This statement is not an isolated one but represents the general thrust of the task that the Women's Cells have set themselves. This transformation of the meaning of the Women's Cells is noticeable in other institutions which have collaborated with the state in providing legal and police help to women reporting violence. Traditional social work organisations whiCh earlier ran programmes for reforming fallen women (e.g. running Rescue Homes for arrested prostitutes) have entered the arena of legal aid for women and have worked closely with the police in ensuring the return of women to their families. In fact the police Women's Cells often refer women to such organisations to set up the 'compromise' with their families because they are short staffed. Through this collaboration women reporting violence and, therefore by implication articulating resistance to the family, are processed into compliant subjects. As I have shown in Chapter V when discussing Ashoka Mitra's attempts at seeking maintenance from her 264

husband via the courts, the report of the 'compromise' sessions has been brought to bear on describing her character in the legal proceedings (to her detriment). Through all these experiences the question that crystalises is why is it next to impossible to separate out women as citizens and subjects with individual rights from women as gendered subjects enmeshed in social relations, at the level of the public and the state? To rephrase this question - does this then represent the problematic of the relationship that women have with the state ? In hindsight feminists have argued that the anti-dowry campaign was misdirected (see for example Kishwar 1988). Besides the positive effect of opening up the 'can of worms' that domestic violence represents, the campaign seems to have had mainly negative effects. For one thing it has let families and the state, working in collaborative hegemony to keep unequal gender relations in marriage and the family going, off the hook. I say this for a number of reasons. Dowry is widely recognised as a social evil in India. In fact the debate about dowry, its evil effects, as a socially oppressive institution was first started by the Gandhians in the pre-independence era. Thus there is a public consensus about what dowry represents (even though this has not prevented families from giving and taking dowry at marriages). In explaining the reality of 'wife murder' dowry harassment emerged as the most recognisable ingredient in a relationship characterised by humiliation, maltreatment and subordination of the wife. When a daughter complained of ill-treatment by her in-laws and husband, parents advised her to change and adjust to win their approval. It was her problem and by implication supportive of her subordinate status in the marital relationship. But when daughters complained that this ill-treatment included taunts about the amount of dowry that she had brought with her, the natal family was implicated and had to suffer financial hardships to meet these demands. It was now their problem. It also provided a rationale for ill-treatment of women which was not socially approved. III-treatment of women in the family per se is not socially disapproved of. Allegations that a wife has been murdered or abetted into committing suicide by the ill-treatment of her husband and inlaws were unlikely to be recognised as a genuine grievance. The question that was most likely to be asked under such a circumstance was what had she done wrong to invite this ill-treatment. But the allegation that it was on account of her dowry that the wife's in-laws and husband ill-treated her was a recognisable grievance. By outlawing dowry and creating dowry deaths as an offence the state was let off the hook. The state did not have to declare domestic violence as a crime in its own right which would have meant liberating the gendered subject enmeshed in social relations to constitute the citzen/subject with individual rights. By this elision of women's subordination in the family with dowry harassment the relationship between women's lack of power in the family and their unequal access to family resources was also 265

obscured. If the source of women's oppression can be blamed on social evils like dowry, and, if this social evil can be abolished by the state, then there is no need to question why families do not redistribute power and property in a more equitable manner among its female and male members. There would also be no need to question why the state protects and preserves the personal laws which subordinate women's access to and share of family property and, therefore power, to that of men. In summing up this part of the discussion I would like to reiterate the following points. I have examined two main legal campaigns initiated by the women's movement as illustrative of the way women have appealed to the state at a particular historical moment. Women's appeal through these campaigns has constructed the state as the protector of civil liberties. Both the anti-rape campaign and the anti-dowry and domestic violence campaign articulated the problem in classically civil liberties terms. The logic of a civil liberties discourse is that it locates the right of the individual in relation to the state. As we have seen the problematic of appealing in these terms for women is that at the level of the public institutions it is very difficult to separate out the gendered subject from the entangled web of social relations that primarily give this identity its meaning. This does not, however, mean that the campaigns and the existence of a widespread women's movement have had no effect in shifting the discourses around gendered identity. On the contrary the campaigns have served to contest dominant ideologies about a woman's place and the nature of women's oppression at the levels both of civil society and the state. The fact that the police have now to register cases of unnatural deaths of wives and pursue the investigation represents, however small, a change and reformulation of dominant ideologies. The connection that the anti-dowry campaign was unable to make at the level of public discourse was that wife murder represents the culturally constructed consequence of keeping women in dependence. This dependence, carefully nurtured by a woman's natal family by material practices of giving a girl child less of everything, constructs the subordinate subjectivity which is then carried into the marital relationship. Power derived from access to and control over resources is wholly denied to women. By failing to make this connection the campaign also was unable to articulate that a fundamental problem lies in the denial of equal inheritance rights to women. In this both the family and state are implicated. The family is implicated because it ensures in every way that productive assets will be inherited by males only. The state is implicated because the personal laws, which govern inheritance, do not give women equal rights as men to inheritance and marital property. In Chapter XI, I will investigate other discourses in the public sphere which define the terms on which equality (between men and women and between communal groupings in relation to the state) is talked about, and, which also set the terms for discussing changes in the 266

system of personal laws. But before I do this I will briefly discuss the reasons that my respondents offered for appealing to the state.

8.3. The gendered subject strikes back. Why do individual women appeal to the state via the courts? The straightforward answer to this question would be that they have no other forum for appeal. Given the traumatic and highly unsatisfactory experiences of women litigants that I have cited in the earlier chapters, why do women still persist in approaching the state machinery (the courts and the police) to protect their interests. In discussing why they do so, what I am really interested in examining is the discursive strategies through which these women construct their interest, and, also how best it can be protected. My sample consisted of 30 women litigants. Of these women only three claimed that they had not been through a lengthy process of negotiation with their opponents mediated by relatives, friends, and community leaders. In other words the majority of the litigants tried to use the means generally available to negotiate their interests with their opponents. All these women also claimed that approaching the court was the final expedient they had resorted to in trying to safeguard their interest. It must be remembered that a woman litigant's opponent in this particular instance, litigation about marital and ancestral property, is generally male kin. Social relations obtaining between the litigant and her opponent determines to a great extent what she will be able to establish as her interest and how she can legitimise it. I think the key to the understanding of why women appeal to the state in these instances lies in understanding the social relations within which the claim to property is made and the power relations that characterise men and women's positioning in these relationships. In a sense this is the argument I have used throughout this thesis. I make it here in a slightly different context. I make it in the context of examining how when women appeal to the state in these particular instances, the locus of power is shifted from that emanating from social relations at the level of familial and kinship relations to that of social relations between state and citizen. Hypothetically this shift has the potential of positioning both women and their male kin (against whom they have appealed) in a similar plane of being citizens. The existence of laws which spell out the rights of men and women serve further to highlight this potential. That this shift in the locus of power does not in every instance result in outcomes which serve these women's interests has been demonstrated by my case studies. On the other hand, the shifting and contradictory nature of outcomes, also demonstrated by my case studies, seems to undermine the notion of the state as one which acts with the uniform intent of 267

maintaining patriarchal relations. In what ways does this shift in the locus of power delineate a political space in which interests can be constructed? Does this shift represent for these women a practical and political choice by means of which desired changes may be brought about? My intention is to try and understand this shift in the locus of power and what this has to do with the way women construct their interests. What do we mean when we refer to a shift in the locus of power? How do we study power and where is its operation to be located? I have discussed the conceptualisation of power that I have used in this thesis in Chapter I. I reiterate it here in order to contextualise the discussion. Power has been conceptualised differently by different commentators. Russell, for example, claimed that power could be defined as the production of intended effects (Russell in Lukes 1986). In fact this idea of power, that it has intended effects and lies in securing the outcome intended, has dominated thinking about power. However, this notion of power invalidates situations where outcomes cannot be secured but there is resistance and contestation nevertheless. Weber although agreeing with the notion of intention in the exercise of power nevertheless stresses the capacity to realize it and in so doing suggests that resistance, actual or potential, is relevant to attributions of power (Weber in Lukes 1986). Weber's approach has, however, been criticised for stressing the 'power over' factor in conceptualising power. Of relevance to my present discussion would be a notion of power which captures its ubiquity but nevertheless does not deny agency by making individuals into mere victims. Following on from this it also rejects notions of power wherein groups and individuals are always and in every situation under the power of other individuals and groups. In this sense Foucault's notion of power comes in useful for my analysis. Foucault rejects a notion of power seen '...as a phenomenon of one individual's consolidated and homogeneous domination over others, or that of one group or class over others'. Rather, 'Power must be analysed as something which circulates or rather something which functions in the form of a chain'(Foucault in Lukes 1986 p.233). This provides the clue to the fact that the locus of power does change. Individuals, in Foucault's framework, are 'not only its (power's) inert or consenting targets; they are always also the elements of its articulation. In other words, individuals are the vehicles of power, not its points of application' (Foucault in Lukes 1986 p.233). This signifies two things. First, that subjects are gradually, materially and progressively constituted by a multiplicity of power relations. Second, that agency is involved and, therefore, resistance and recalcitrance is as much an attribution of power. Since all relationships are shot through with power does this then mean that power has no specific location through which its operations can be scrutinised? On the contrary Foucault's contention is that, 'one should try to locate power at the extreme points of its exercise'. This is because power 'is never 268

localised here or there, never in anybody's hands, never appropriated as a commodity or piece of wealth' (Quoted in Lukes 1986 p.13). Studying power means looking at the point at which its intention, if it has one, is completely invested in its real and effective practices. I have tried to demonstrate this by looking at how the power of discourses of gender, kinship and communalism fix women's material entitlements in the family. I will use this framework - that power is invested in all social relations, that it changes locus, that agents are constituted in its exercise, that resistance and recalcitrance are also its attributes - to look at the way my respondents construct their interests. I will first look at the experiences of litigants who have brought cases against their husbands to obtain maintenance or alimony. Namita Ghoshal, whose case I examined in Chapter 4, married in 1972. Within the first six months of her marriage the relationship was in trouble. At first she attempted to renegotiate the terms of the relationship by removing doubts about her capacity to have sexual relations. Her husband had accused her that she was physically unfit to have sexual relations. She arranged for a medical examination and obtained a written record from the doctor which declared her fit. However, this did not put an end to the conflict. She was treated cruelly by her husband and was in fear of her life while she lived with him. She was compelled by these circumstances to return to her natal home within six months of marriage. There followed a series of negotiations over the next five years with the husband's family, mediated by the elders of Narnita's family. However, these negotiations failed to reinstate Namita in her position as wife. Her husband made no attempts at reconciliation and did not even keep in touch. Finally in 1983, nine years after the marriage, Namita applied to the court for divorce on the grounds of cruelty. This action of hers brought her husband to the court to defend his case. It was the first time in this marriage that the husband had to negotiate with her. There followed a series of litigations in which Namita fought for and obtained temporary and permanent alimony and also a court order for the return of her possessions which she alleged were still in his keeping. What does this tell us about the shift in the locus of power and the political space afforded by this shift for the construction of interests? A straightforward analysis would be that while Namita relied on kinship and family networks to negotiate with her husband she had little manoeuvrability as these relations construct the wife as subordinate in the critical kinship status concerned with the conjugal family and the marriage relationship. Her appeal to the state for redress positions her and her husband as citizen/subjects, and therefore, on par. They are thus constituted as subjects with the similar ability to make claims and counter claims to be judged by the neutral arbiter, the state. This straightforward analysis is attractive because it apparently provides an 269

explanation of the shift of the locus of power and the political space for constructing interests that this affords. But if we examine the case at hand more closely, or, use this as being generally applicable to other situations in which wives appeal for maintenance and alimony, we find that the process is far more complex than is made out by this explanation. There is no denying that the locus of power which defines the subject has shifted in this instance from the realm of kinship and familial relations to the state. Where women are concerned this does not result in a simple release of the citizen/subject from the entangled web of social relations that give the identity of 'wife' its meaning. However, this does not mean that this identity is simply reflected at the level of the state. Rather it is reconstituted and given a new meaning. This is evident from Namita's case and is also discernible from most of the cases I studied. Namita's petition for divorce stated that she had been treated with cruelty by her husband. The judgement in this case was in her favour. On what evidence did the judge rely when deciding in Namita's favour ? First, that she had fulfilled what was expected of the 'good' wife, which was to return to her matrimonial home despite the cruel treatment she had received. Second, and relationally, the husband had not fulfilled what was expected of a good husband. As a husband he should have approached the court for dissolution of marriage when he _ found that his wife was incapable of having sexual relations with him. The fact that he did not, which the judge assumes would have been 'natural' and 'normal' under the circumstances, makes his fitness as a husband (and, therefore, as a person and a man) somewhat suspect. For this reason Natnita's claim bears more weight in this instance. (See Chapter 4 for detailed discussion). Here we see the production of the female subject articulated by the power of discourses of gender, the family and conjugal relationships in a different context to the familial and kinship domains. As a result the meaning of wifehood and husbandhood is inflected in a slightly different way from that which is available in the realm of kinship and family. This change of inflexions provides the space for the construction of interests as is evident from the way Namita appeals for alimony. Namita claims alimony through the court and obtains it. She had been unable in all the years in which she relied on kinship and family networks to get her husband to acknowledge the relationship. This seems to lend credence to the straightforward explanation provided earlier. However, if we examine the discourses within which the claims were made and those within which this claim was acknowledged and resolved by the state, we find that it is the gendered female subject which is given recognition. She claims maintenance as a dependant wife and she proves that she is a dependant wife. She is granted maintenance because public policy recognises the dependent wife.

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Furthermore, public policy constructs the dependant wife by subordinating her status to that of the breadwinner status of her husband in awarding her alimony. There are a number of things happening here which need to be highlighted because they have wider applicability in analysing the appeals made by women to the state for maintenance and alimony from their husband. First, as in Namita's case, the divorce suit necessitates the acknowledgement by the man of the relationship of marriage. There is a shift of power involved in this acknowledgement. Before the divorce suit the man could ignore this relationship. Now he has to negotiate. Maintenance suits brought by women against their husbands are more effective in creating this impact and it is no wonder then that women prefer this to divorce. Second, alimony and maintenance suits bring with them the acknowledgement and recognition of the 'dependent' wife whose entitlement from her husband is thereby also acknowledged. Thus even in instances where despite favourable decrees women have not received maintenance payments from their husbands, they nevertheless claim 'victory' because their entitlement, which has so far been 'ignored', has received recognition and with it their status as wives. Namita rejects an offer of an out of court settlement which she rejects for the same reasons. Her right as dependent wife can only be constructed in the arena of the state. Women appealing for maintenance and alimony from husbands in the court thus construct their interests within the parameters of a discourse of wifely dependence. Namita's appeal to the state thus cannot simply be read in a celebratory manner as one of resistance against containment and domination in the family. The way in which domination is sustained and reproduced has also to be examined. Power, as I have discussed, has continually to be secured and it is secured in this instance, in which Namita has refused to conform to the norms of family and kinship by appealing to the state, by her strategy to seek to invert the logic of dependence to her own account. Thus domination is sustained and reproduced even at the point of resistance.2 I will now look at the experiences of sisters/daughters and widows appealing for inheritance rights. A characteristic that all sisters/daughters appealing for their inheritance rights held in common was the fact that a lengthy negotiation process had preceded their decision to appeal in court. This process of negotiation generally involved members of the immediate family, neighbours, elders of the community and, finally, political leaders of the neighbourhood. This process of negotiation was more pronounced in the case of Hindu women than for Muslim women. The elaborate accounts that Hindu women gave of each step of the negotiation seem indicative of a concern to seek consensus that 2 I borrow this conceptual understanding of resistance and power from O'Hanlon's dicussion of these issues in 'Issues of Widowhood in Colonial Western India' 1991.

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they have a right, to convince themselves that they have a right, to establish that they were not being disloyal to the family and, particularly to their brothers, by articulating this right. In the majority of instances of Hindu sisters who appealed to the court, the decision to do so was 'sanctioned' and 'authorised' in the final instance by a recognised public figure (local MP, local politician, local elder). In a sense one of the things that these women were highlighting by relating these elaborate accounts was that although their right was privately denied but publicly recognised, it could not be established as a fact by arbitration in the family, within kin networks, or in the neighbourhood. And that is why they had to go outside this network to actualise their right. The state is in this instance set up as the final arbiter. But what are the meanings with which this notion of 'right' is invested, how is the subject delineated by these meanings, and in what terms is the arena in which this right is sought to be legitimised, constructed? I will examine one case study in detail in order to better understand these constructions. I will refer here to Manorama's case which I have discussed in detail in Chapter 6. Manorama, as we have seen, lived for all her life in her father's house and earned her own keep since her father's death. She was once married but never lived with her husband. She appealed to her brother for her share in the property left by the father at a point in her life when she realised that she was growing older and could no longer fend for herself in the way she was used to. Her share of the inheritance, she felt, would help her survive in old age. Manorama's appeal to her brother was at first greeted with indifference and then open hostility by her brother. Manorama then appealed to her sister and to her mother. Her sister was uninterested, her mother was ambivalent. She then approached the elders of the community and requested their negotiation. They failed and, according to her account, were insulted by her brother who told them to keep out of their family matters. She then approached the local community organisations for their support. Their mediation also did not succeed in persuading the brother. They advised her that she should obtain her share through the court. Finally she went to her then employer, who was a local politician, requesting him to help her obtain her share of the inheritance. He consoled her by saying that there was nothing to cry about, that the law was available to her, and if she did not have money to go to take the matter to court the Legal Aid programme would help her. He introduced her to the department of Legal Aid. She found out from them that if her father had died prior to the HSA,1956 had come into being, she would not be entitled. She also learned from them that if the inheritance was a dwelling house she would not get partition. She went ahead with the case because her father had died after the HSA,1956 coming into operation and also because the property to be divided included, beside the dwelling house, some land.

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Throughout the account narrated by Manorama about her efforts at mediation prior to going to court, were two other parallel accounts. One was about her brother and the other was about her 'right'/ 'claim'. Manorama's account of her brother stresses two things - his irresponsibility and the fact that none of the family members (her father, mother and her) were ever supported by him ('Bhat khaoay ni' is the term used in Bengali and means not to be fed or given food). This account is interspersed by statements like: 'This portion of land, that which is my 'paona' - if it was not my 'paona' ('paona' literally means 'due' or what is 'my due') I would not ask for it - since it is my portion and my right he should give it to me. When his son grows up and if he looks after me I will give it to him'. and 'But this is my 'paona jinish' (that which I got because it is due to me). Why shouldn't he give it to me. or 'I told him (the employer) that since he (my brother) has said that he cannot look after me there is nothing I can do. Please help me.. .1 have a claim (paona)...He said yes I do have a claim.(paona).'

The narratives about her brother and her claim are juxtaposed in Manorama's account in a way as to delineate the roles of brother and sister and their entitlements. Manorama's brother does not fulfil his obligation to the family (and, therefore, his role as son and brother) by supporting his parents or his dependent sister. He, therefore, cannot demand reciprocal obligations from his sister which would entail subsuming her interests with his. The juxtaposed narratives about the brother and about the 'paona' in Manorama's account thus have the effect of setting up the notion of right or claim as being attached to the individual. It does so by separating out 'claims' from filial obligations which are rendered inoperative by her account of her brother's failure to fulfil his role expectations. Note that at this point Manorama's characterisation of her 'paona', although attached to the individual, is not yet the same as the notion of 'rights' in a politico-jural sense. It is more about highlighting the morality of kinship obligations and relations. The transformation of this notion of 'paona' from the sense in which Manorama uses it, attached to the individual but squarely within a discourse of kinship morality, to the politico-jural sense of 'rights' is brought about by the mediators and by her employer who point out that she has a right in law. The shift in meaning of the term 'paona' to 'claims' and then to 'rights' in a politico-jural sense shifts the locus of power defining the subject and in turn provides the space for the construction of Manorama's interests. She is the recalcitrant daughter/sister (as is evident from her mother's ambivalence and brother's outright hostility) who is not entitled. She is the 'wronged' sister according to the mediators who acknowledge her 'paona', the meaning of which derives to some extent from kinship morality. She is then transformed into a person with 'rights' according to the mediators who advise her to go 273

to court. The only arena in which this notion of 'rights' can be upheld is the politicojural arena, the state. The state is thus constructed as the arena where Manorama's 'paona' can be enforced. In this instance (as we have seen in Chapter VII) the state, in judging her claim, constitutes her as a gendered subject delineated by discourses of personhood which take their meaning from familial and kinship relations. Her claim is thereby subordinated to her brothers. We return here to the problematic of women and the state which seems to be the difficulty of separating out women, as citizens and subjects with individual rights from women, as gendered subjects enmeshed in social relations, at the level of the public and the state. It may well be asked as to whether men are constituted as individual subjects and how this is then different from the way women are constituted. Men are also enmeshed in social relations but the constitution of the citizen/subject takes men's position in social relations as the norm and herein lies the difference.

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CHAPTER 9 GENDER, STATE AND NATION: The Uniform Civil Code and the promise of equality.

9. 1. Introduction In the previous chapter I have attempted to show how women in appealing to the state construct their interests. I have identified a problematic of women's relation to the state as being the difficulty of separating out women, as subject/citizen, from women, as gendered subjects enmeshed in social relations, at the level of the public and the state. This problematic seems clearly to emerge in the context of the personal laws which govern inheritance and marital property because these take the meaning of family relations from the realm of kinship and familial domains particular to the religious community. All the personal laws subordinate women's rights in the family to those of men. One could assume, therefore, that the maintenance of personal laws has remained a major stumbling block in actualising the unified Indian subject in law as envisaged by the Indian constitution (which defines citizens as being equal before the law). I am not at present addressing the question as to whether the unified, freely choosing subject is only a metaphysic. Rather the question I wish to address here is whether the abolition of the system of personal laws and its replacement by a civil code, governing family relations and applicable to all citizens irrespective of their religious affiliations, would result in more equitable gender relations. The first question that needs addressing in this context is whether it is at all possible to enact a Uniform Civil Code (henceforward UCC) in contemporary India. The Directive Principles of the Indian Constitution clearly enunciates such a goal. "The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India" (art.44). As I have mentioned in Chapter I, in the forty odd years since independence, and despite the uninterrupted experience of parliamentary democracy (except for the brief interval of the Emergency), no government up to now has been able to redeem this promise. Certainly the construction of such a code, given the multi- cultural, multilinguistic and multi- religious composition of the population, is a very complicated task. But this is not the reason why the promise of the UCC has not been redeemed. As I have shown the post colonial state in India is interventionist and has been the main architect of social reform and, therefore, it was well within its competence to design such a code despite the complexities involved. The construction of the Hindu Code 275

which entailed complicated negotiations was nevertheless achieved and is a reminder of the social reform capacities of the interventionist post colonial state. What then is at stake in redeeming the promise of the UCC. In examining the stakes involved I will begin by looking at the multiple and contested meanings with which the UCC is invested.

9. 2. UCC as a signifier of 'national unity' I will begin this discussion with a historical account of the construction of the need for a Uniform Civil Code. Who were the principal actors and agents proposing the need for such a code and what were the political circumstances and forums in which this was articulated? More importantly how was this need defined and justified in these various forums? The idea of a UCC was introduced into the national political arena well before independence in 1940. It was first mooted by the National Planning Committee set up by the Congress. This committee had set up a sub committee on 'Women's Role in a Planned economy' to study the role that women would play in independent India. It was this sub committee, whose membership included representatives of women's organisations and women Congress leaders, which proposed the idea of a UCC as an optional code to begin with to gradually replace the different personal laws of the various religious communities (Everett 1981 p.150). This sub committee also made major recommendations about changes to personal law. With the exception of one member (who was Muslim) all the others in the Planning Committee endorsed this idea. However, the minutes of both the main Committee and sub committees indicate that individual members, even though they endorsed the UCC as a good idea, did not think it a feasible proposition (Everett 1981 p.151). The NPC reports were never systematically utilised and the arrest of the Congress leaders in 1940 interrupted the project. The fact that the sub committee reporting on women's role should have suggested the UCC indicates that at this stage the objective of a future UCC was somehow seen to be connected to the reform of women's status which would be brought about by a modern nation-state. However, the exact nature of this linkage seems not to have been spelt out as is evident from the fact that most of the recommedations regarding equal rights to property and similar concerns were articulated in the context of the reform of personal laws. The opposition by a Muslim member to the idea is indicative of the fact that the UCC was seen already as an instrument which would subsume other identities, as for example religious affiliation, under one identity, that of the nation. 276

The All-India Women's Conference (AIWC henceforward), as we have seen in Chapter IV, played a significant role in articulating the demand for legal equality for women. Their strategy throughout was to formulate these demands and lobby the legislature and the Congress for its acceptance. Commentators have dubbed their strategy as being elitist since they concentrated their efforts on lobbying rather than in taking their demands to the people through mass campaigns (Everett 1981). Nevertheless, the strategy did pay off in some instances (as for example, in the enactment of the Hindu Code Bill and the inclusion of sex-equality as a fundamental right in the Constitution). In 1940 AIWC leaders did voice the need for a Uniform Civil Code. However, the Charter of Women's Rights produced by them on the eve of independence in 1946 laid emphasis on the reform of personal laws but did not stake a claim to a UCC. The demands of the Charter were then made both to the Provincial legislatures and to the President of the Constituent Assembly. The delinking of the statement about the UCC in the Presidential address from the reform of women's legal rights in the family mentioned in the Charter is significant. A number of political considerations did play a role in this not the least of which was the precarious relations between the minority community of Muslims and the majority and their relationship to state power. The significance that I attribute to the delinking has to do with the separating out, in this era, of the meaning of the UCC (which came increasingly to be identified with citizenship in a unified nation) and women's rights or lack of them (increasingly identified with the personal laws of the Minority communities, particularly the Muslims). In 1945 the British government announced the setting up of a Constituent Assembly to draft a Constitution for India. The actual work of formulating the articles of the Constitution was assigned to an Advisory Committee comprising members of the Constituent Assembly. The Advisory Committee was divided into three subcommittees on Fundamental Rights, Minorities, and Tribal and Excluded areas. Members of the Constituent Assembly were chosen by indirect election from the provincial legislatures in 1946. The Congress had won the majority of seats in the elections to the provincial legislatures held in 1945 and, consequently, it had an overwhelming majority in the Constituent Assembly. The Congress Working Committee had directed that at least 2 women members from each Provincial legislature should be selected for the Constituent Assembly. However, in all only 15 women were members of the Constituent Assembly (Everett 1981). The AIWC pressed for the participation of their leaders, who were also members of the Provincial legislatures, in the sub committees set up to draft the Constitution. Two prominent AIWC members were thus made members of the sub committee on Fundamental Rights and one a member of the sub committee on Minorities. 277

The sub committee on Fundamental Rights prepared a draft of Rights during MarchApril 1947 which was then forwarded to the Minorities sub committee. After their views had been taken into account the Fundamental Rights sub-committee presented a final report to the Advisory Committee in April 1947. The Advisory Committee finalised the drafts before its presentation to the Constituent Assembly. A prominent member of the sub committee on Fundamental Rights, Minoo Masani (at the time a Congress member and later a prominent politician in independent India who formed his own party) in March 1947 introduced the idea that the UCC should be part of Fundamental Rights. He was supported in this endeavour by the two women members of AIWC and by Ambedkar (the first Law Minister of India, an outcaste and champion of the scheduled castes). Minoo Masani argued the inclusion of the UCC as part of Fundamental Rights on the ground that the enactment of such a code was necessary to break down the barriers between various communities. The need for such a code was thus formulated as being an instrument which would bring about unity of the nation by breaking down the barriers of community. Identity would flow from nation and not community. Most sub committee members, however, disagreed with the inclusion of the directive for a UCC in the Fundamental Rights. This controversy needs scrutiny because it provides clues to the way in which the meaning of the UCC and its relationship to other identities that the Fundamental Rights sought to protect, came to be understood. Let us take two other identities that the Fundamental Rights sought to protect. Sexequality was one of the principles enshrined in the Fundamental Rights. There was little or no controversy in introducing this directive with particular reference to political and economic rights of women (Everett 1981 p.159). There was a long history of articulating this demand and its resolution within the contours of the nationalist movement. The other identity that warranted protection was the religious identity of the variable groups within India. This issue had not been resolved within the nationalist movement given the deep ideological schism that existed between ardent communal nationalists and the committed champions of a secular and composite Indian state. Thus defining the principle of religious freedom and association aroused controversy and spilt over into defining the place and meaning of the UCC. The objections voiced by the AIWC representatives on the sub committee and also Ambedkar were to the use of the terms 'propagate' and 'practice' as being part of the principle of freedom of religious association. These members feared that state attempts at improving women's position and that of the outcastes would be jeopardised by the inclusion of these terms defining freedom of religious association. Freedom to practice and propagate religion could always be invoked to legitimise untouchability (seen as 278

part of Hindu practice) and the subordination of women (seen as the practice of all religious groups). Consequently, these terms were deleted by the sub committee on Fundamental Rights. A related controversy was about which of the clauses in Fundamental Rights would be considered justiciable (could be challenged in a court of law) and which non-justiciable. Should the directive of freedom of religion be justiciable or should the directive of the UCC be justiciable and what was the relationship between the two. The Minorities sub committee objected to the deletion of the terms 'practice' and 'propagate' in defining the meaning of religious freedom. This was on the ground that it was essential for the protection of the rights of minority religious groups. A compromise to this controversy was finally effected by the Advisory Committee in April 1947. It was decided that the terms 'practice' and 'propagate' would be retained but with the proviso stating that the clause did not preclude social reform. The freedom of religion was then made a Fundamental Right. The UCC, on the other hand, faced a different fate. As I have earlier mentioned most sub committee members actually opposed the inclusion of the UCC as a Fundamental Right. The agreement to retain it at all as a Constitutional provision was arrived at by incorporating the UCC in the non-justiciable Directive Principles. The placement of freedom of religion as a justiciable Fundamental Right meant that aspects of practice and propagation of religion would have to be safeguarded against state intervention. Inherent in this was the problematic as to what aspects of religious practice and propagation could the state intervene in. Would the personal laws, for example, be considered an arena of religious practice that was beyond state intervention? Would this then be an impediment in enacting a UCC? The debates in the Advisory Committee and later in the Constituent Assembly on the subjects of religious freedom and the UCC did not unequivocally settle this relationship. On the one hand, members representing minority communities wanted it established that the personal laws would be considered an integral part of religious practice and, therefore, protected against state intervention. On the other hand, K.M.Munshi (Chairperson) contended in both the debates (that to do with freedom of religion and UCC) that the state would have the right to intervene in areas of religion which were considered secular or those which fell within the purview of social welfare or reform. Munshi also sought to assert that members would be mistaken if they claimed that the personal law of inheritance, succession etc. was part of their religion. If that were so then women could never be given equality by the provisions of a Constitution which also promised sex-equality as a Fundamental Right (mentioned in Parashar 1992 p.227).

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I mention the debates not in order to disentangle constitutional and legal questions but in order to show the discourses by which the UCC was framed. On the one hand was the discourse about minority rights and identity (defined in terms of politicised religious identities). On the other hand, it was about state capacities to define the citizen by reforming areas of social life. The former was unable to accommodate the latter for fear of being swamped by majority concerns. The latter was unable to crystalise the relationship of the state to citizens outside the parameters of 'nation' conceptualised as a homogeneous unity. The debates, controversies and dissenting notes about the UCC at the level of sub committees, Advisory Committee and the Constituent Assembly make this clearer. Munshi's contention that members would be mistaken if they believed that succession and inheritance were the preserve of religious belief, that this in turn would contradict the constitutional guarantee of sex-equality was perhaps the only moment in which the connection between women's status, personal laws, and citizenship rights was made in the context of debates on religious freedom and UCC. For the most part proponents of the UCC legitimised the need of such a code on the grounds that it would unify the nation. In July 1947 three members of the sub committee on Fundamental Rights, namely, Masani, Hansa Mehta (AIWC leader), Rajkumari Amrit Kaur (AIWC leader) wrote to the Chairman of the Advisory committee asking him to reconsider putting the UCC into the Fundamental Rights rather than in the Directive Principles. 1 They asked for this reconsideration on the ground that the country was to be partitioned and, therefore, this change would fulfil 'the keen desire that is now felt for a more homogeneous and closely knit Indian nation' (Parashar 1993 p.231). Hansa Mehta also made a speech in the Constituent Assembly to the effect that a UCC is much more important than the national language for generating unity. She said that the personal laws were dividing the country and if a unified nation was to be built then a UCC was essential (cited in Parashar 1992 p.233). Neither of the two AIWC women, who had objected to the clauses 'practice' and 'propagate' being included in freedom of religion on the grounds that this might interfere with the reform of women's status, ever mentioned women's rights in their legitimation of the UCC. Throughout their stand clearly was that the UCC would promote the unity of the nation and help build a homogeneous community.

1 Fundamental Rights forms Part III of the Indian Constitution. These rights are justiciable which means that a citizen can go to a court of law against the state alleging that one of these rights has been violated. Directive Principles of State Policy constitutes Part IV of the Constitution. It contains a series of mandates to the state to secure a social order in which justice social, economic and political can be brought about. The Directive Principles are not justiciable which is that they cannot be arbitrated in a court of law. The UCC is in the Directive Principles which means that in its absence a citizen cannot go to the court to allege that his rights are to a UCC are being violated. 280

Munshi and Alladi Krisnaswamy Ayyar, both champions of the UCC, had at the sub committee stage of deliberations voted against the inclusion of the UCC as a Fundamental Right. They championed the cause of the UCC nevertheless on the grounds that because there was an urgent need for a unified, homogeneous community of the nation there was a need to provide for the same civil laws for everybody. I quote at length from these two important spokespersons to contextualise the discussion. Strongly advocating the cause of a UCC, K.N. Munshi said: 'There is one important consideration which we must bear in mind- and I want my Muslim friends to realise this- that the sooner we forget this isolationist outlook it will be better for the country...our first problem and the most important problem is to produce national unity in this country' (CAD VIII,pp 547-48 cited by Ansari, 1991 p.1097). Alladi K Ayyar made the following observation during the speech on the act: '...We want the whole of India to be welded together as a single nation. Are we helping those factors which help the welding together into a single nation or is this country to be kept up always as a series of competing communities? This is the question at issue'(CAD,VIII, p.549 cited by Ansari 1991 p.1097). The UCC is posited as a marker and symbol of national unity, as ascribing identity in the homogeneous unity of the nation. The nation is seen here as automatically secular and standing above the divisive and parochial interests of religious communities. The UCC is then mentioned in the Directive Principles rather than in the Fundamental Rights and with no time frame stipulated for its realisation. If we put these together then it appears that UCC is both a site of desire and a threat. It is the site of desire for unity in the sense of homogeneity to be achieved in some unidentified future. It also becomes a sign for the unified legal subject in promising to resolve the conflicting claims on the subject by the nation-state and religious community. It operates as a threat to minorities in the sense that their claim to particularity will be subsumed by the claims of homogeneity. Further it serves to demarcate the identity of the Muslim in oppositional terms as being against unity, therefore against nation, thereby unpatriotic. (This demarcation takes on new meanings in the nineteen eighties and is discussed in a later section). I will briefly look at the way the UCC was perceived in the crucial years immediately after independence and the partition of India. I will rely on the debates and controversies around Hindu law reform in the Provisional Parliament in order to do this. There were only sporadic references made to the UCC during the debates on Hindu law reform initially in the Provisional Parliament and later in the first elected Lok Sabha. As I have shown in Chapter 3, Hindu law reform was opposed by members who came 281

from across the political spectrum. Thus on issues of Hindu law reform, whether it was about the introduction of monogamy, granting women rights to divorce or inheritance and succession rights, leaders of different political persuasions came together in their opposition. The proponents comprised women legislators, the law Minister Ambedkar and the Prime Minister Nehru. Both the proponents and opponents made reference to the UCC in the debates but to prove differing points. The opponents for the most part used the Constitutional provision for a UCC as a tactic to stall the progress of the Hindu Code Bill and if possible to derail it altogether. The argument went, as deciphered from the statements made by the opponents, that the Constitution had envisaged a UCC and not merely the reform of the personal law of one community. Therefore, the government ought to treat all its citizens in the same way and this could only be done by enacting a UCC. 2 By implication the targeting of one community for reform was treating that community (in this instance the majority community of Hindus) unfairly, and therefore, unequally (See Parashar 1993 pp.237-38 & Everett 1981 p.180). Members of the government were aware of the implication of this tactic as is evidenced from Ambedkar's assertion that the opponents of the Bill were using the demand for a UCC as a ruse in the mistaken belief that its preparation would take time and, therefore, in the meantime the HCB would be shelved. He was prepared to produce a draft within a few days if it was necessary. Replying to the demand that the Hindu Code Bill should be made applicable to everybody (treated as a common code) he said that the other communities had not been consulted on this matter and in a secular state the sentiments of the people could not be flouted (Parashar 1993 p.238). The proponents of the Bill, and particularly the women members, expressed that they saw the HCB as a step towards a UCC (Parashar 1993 p.238, Everett 1981 p.180). When the women members mentioned this initially it boomeranged on them because the opponents then demanded that the Constitutional provision for the UCC be fulfilled by legislation. The UCC as a ruse, used by opponents to HCB, can be seen as a discursive strategy delineating the contours of the identity of 'majority' and 'minority' communities in their relationship to the state. By asserting that the Constitution had promised a UCC and not the reform of the personal law of one community, what is being implied is that the minorities (read Muslim) are being given special privileges by being allowed to retain their personal laws. The state is seen as not subjecting the minorities (read Muslims) to 2 Parashar, in reviewing the debates says ; 'An argument often put forward was that many of the Muslims, Christians and Parsis along with the Hindus, in the Constituent Assembly agreed to the enactment of a UCC, yet by not enacting a UCC for everyone the government was encroaching upon the religious rights of Hindus only but was afraid to encroach similarly on the rights of other sections of the community (Parashar 1992 p.237)

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the same 'discipline' of citizenship as the majority is subjected to. By positing the relationship of 'majority' identity to the state as one of 'disprivilege' a realm of homogeneous interest is being carved out around which this identity coheres. By articulating this against the 'privilege' of minority communities (read Muslim), in that they retain their personal law, the Muslim 'other' is constructed as not part of this homogeneity and thus not part of the community comprising citizens. The proponents assertion that the HCB was the first step towards a UCC inadvertently feeds into this discourse. The HCB for the first time constructed a homogeneous family law for variable groups and in the process disassociated most, but not all, of the tenets from religion. When this process is represented as being the first step in the making of the UCC, the construction of citizenship based on membership in the homogeneous unity of the nation (which is how the UCC came to be understood) is seen to be partially fulfilled. The UCC in this instance becomes a problem of the minorities. The UCC as signifying unity in the homogeneous community of the nation, the UCC as a threat to the 'particularity' of politicised religious identities of the minority, the UCC as a discursive strategy to carve out the identities of 'majority' and 'minority' communities in their relation to the state, the UCC as being partly synonymous with the HCB - these are some of the multiple and contested meanings that the UCC acquired through the latter part of the independence struggle and in the first few formative years of the independent state. As is apparent none of these meanings derive from a discourse about gender equality. The homogeneous unity of the nation, of which the UCC becomes a signifier, cannot be unproblematically translated into meaning equal rights between men and women in the family. Rather these meanings derive from discourses of historically constructed, politicised religious identities locked in a struggle for hegemony in the state. 9.3. The demise of 'unity in diversity' : UCC in the 1980s In this part of the discussion I will trace the fate of the UCC in the 1980s. The reason for concentrating on this period is because the UCC reappears in these decades as a subject of national debate. Another reason for concentrating on this decade is that the reappearance of the UCC coincides with a period in the history of the post colonial state in India marked by a crisis of identities. As I have shown in Chapter I, this crisis of identities refers to the escalation of communal conflicts, the resurgence of majority and minority fundamentalisms, caste wars, regional separatist movements (in Assam, Punjab, Darjeeling district and south Bihar) in this period. All this has contributed to the creation of what a commentator has described as a current state of civil war (Upadhyay 1992 p.821). The common denominator marking this strife, which extracted a very heavy toll in terms of loss of lives in the 1980s decade, was the articulation of

identity in parochial and communal terms. Political mobilisation seems also to have increasingly relied on particularistic identities and loyalties. It seemed that the vision of the united, homogeneous nation was fractured. In its place were innumerable 'imagined communities', and nations within the Nation. This crisis has been attributed to the failure of 'secularism' as it has been historically constructed in the Indian context. Communal outbreaks in this period have been accompanied by a deluge of newspaper articles and papers in academic journals which bemoan the failure of Indian secularism and with it India's democratic politics. The historical construction of secularism in India was related to the imperatives of dominant nationalism, and connected with the need to invent a legal and political framework in which 'national unity' might be realised in the nation-state. I will discuss what secularism means in India which helps contextualise the debates on the UCC that occurred in the 1980s. Secularism in India has many strands and these are often contradictory. The dominant understanding of what secularism means in the Indian context, arising from India's nationalist creed which made secularism its central plank, is dissimilar to the meaning attributed to it by western 'modernity' (see Chapter 1 for discussion of 'modernity' in western context). Just as nationalist discourse reconstructed the notion of the 'modern' to form a 'fit' to the passive revolution that characterised the anti-colonial movement, it also redefined the meaning of secularism to provide a 'fit' to the politics of nation-state formation. Indian secularism does not represent the separation of religion from politics, and the attenuation of community-based political identities. Rather it takes on board the colonial understanding of Indian society as being communally compartmentalised while rejecting the view that this prevents it from governing itself as a nation through a secular and democratic system of representation. Therefore, it sees secularism as an ideal of cooperation and unity among India's 'communities'. This understanding differs from both that of the Muslim separatists who proposed a two-nation theory, and, the Hindu militants who envisaged a Hindu nation. The point of difference lies in the fact that whereas all three actors (dominant nationalist creed, the Muslim separatists and Hindu militants) accepted the view that Indian society was communally compartmentalised, the Muslim separatists and Hindu militants also accepted the British understanding that these communities were mutually irreconcilable whereas the dominant national discourse did not (Upadhyay 1992 p.817). The formula of Sarva Dharma Sambhava (let all religions prosper) is thus the cornerstone of the Indian variant of secularism. It was developed and followed through by the Congress Party that led India to independence and has held power at the centre for most of the years since independence.

Intellectuals are far from agreed as to why in the 1980s and '90s secularism was in crisis. There seem to be three broad schools of opinion among them. One school attributes the failure of secularism to the fact that it is essentially a western value which is out of place in the Indian cultural context (See Das 1986; Nandy 1985; Madan 1987). The alternatives they seek are in the 'real India' of pre-colonial times and to its history and mythology. In this version, therefore, ethnicity, community, religion and tradition are repositories of crucial authentic values which can only be actualised with the creation of a political system in its own cultural image. They regard secularism as a symptom of a wider disease: the disease of modernity and rationality, homogeneity and similarity that is entrenched in the institutions of the modern nation state, legitimised through the oft-repeated cliches of national integrity, security, development and 'unity in diversity'. Nandy, for example, argues that the essentially elitist and middle-class project of modernisation lies at the root of the present crisis. The 'real India', is the majority who are believers, and whose folk religions and folk theologies are implicitly tolerant (and, therefore, secular). It is this India which has been perpheralised by the project of modernisation and, therefore, the crisis (Nandy 1985). This viewpoint has been skilfully appropriated and transformed by the new Hindu Right in India to support its project of the cultural construction of national identity as being Hindu. Another viewpoint is offered by a broad group representing the left in India. This includes the liberals of the Nehruvian mould, and the communists in particular. This group has always held that secularism is the only path by which India can achieve peace, stability and democratic unity. The failure of secularism in this school is attributed to the class and caste character of the Indian state. The project of secularism they argue has been undermined by the political and ideological needs of India's dominant classes, represented above all by the Congress party. Thus to oppose communalism is to oppose the politics of the dominant classes of Indian society. Therefore, the fight for secularism goes hand in hand with the fight for socialism. This school of secularists has been gradually marginalised in contemporary Indian politics. A third view point about the crisis, and a view point to which I would subscribe, attributes the decline of secularism in India to social and political processes at work under British rule, within the national movement and under the independent state. As we have seen earlier, historically, Indian nationalism has been constructed around the traditionalist idioms of the majority Hindu community. It was to this community that the elite classes who dominated the nationalist movement from its inception belonged. This tradition became normative in the definition of Indianness. The relationship that was thus set up between nationalism and secularism subordinated the claims of secularism to the nationalism of the Hindu majority. In fact nationalism was seen to be secular. The political idiom that emerged as a consequence, labelled by Upadhyay as 285

imajoritarianism', lies at the heart of the Indian model of secularism. This political idiom while accommodating the ideal of cooperation and unity among India's 'communities' and their equality within this unity, nevertheless, held one to be more equal than others - namely the majority 'Hindu' community. The Indian variant of secularism became the guiding principle along which representative democracy in independent India has been organized, giving the modern Indian state its majoritarian character. The colonial predisposition towards organising politics along lines of community has lived on in independent India. Representative politics based on universal franchise have thus become a contest in which communities are mobilised in the competition for votes, and in which the majority community must win. The crisis of secularism can be seen as the failure of 'majoritarianism' to deliver the goods. Majoritarianism has actually worked against the creation of a civil society in India. This failure arises from the inability of majoritarianism to contain and subsume other identities under the guise of the unity of the nation because implicit in this unity was the unequal power of the majority and minority to define their interests and have these protected by the state. This failure has resulted in communal conflicts and polarisations but has also created a renewed interest in secularism. Majoritarianism is set up by and in turn sets up the conception of the nation as a monolith, the aggregate of all interests. In the process it leaves little or no room for the articulation of the legitimate demands of the minorities, Muslims in particular, but also the lower castes and classes, in relation to the state. In fact the official ideology of the Indian state, which is also espoused by intellectuals, politicians and mediamen, is that as long as Muslims, Sikhs and Chrisitians conceive of themselves as minorities, they cannot play an active part in the life of the nation. Majoritarian politics was able to hold the secular consensus together in the first two decades after independence and in the Nehruvian era. This era, characterised by relative economic growth and high optimism as also Nehru's personal efforts to maintain the secular consensus, was relatively free of communal strife. In the 1970s and '80s there was virtual attenuation of secular politics. The unitary nature of the post colonial state was further reinforced by the growing strength of the centre which was associated with Indira Gandhi's initiatives. The crisis of majoritarian politics to actualise unity in the nation as representing the aggregate of all interests has translated itself into the electoral process. In successive elections in the 1970s and '80s majoritarian parties like the Congress have had to appease one group or the other who have felt aggrieved as a 'community'. State policies also reflect this tendency. Let us take a contemporary example to show how this operates. In 1985 the government (the ruling party being the Congress) supported the 286

Supreme court judgement in the Shah Bano case in Parliament. In by-elections held the same year the Congress party, which still headed the central government, suffered heavy losses in predominantly Muslim constituencies. This was understood as being the reaction by the aggrieved Muslim community who saw in the government's support of the judgement the ruling party's failure to uphold minority concerns. In 1986 the same ruling party reversed its earlier stand to support the judgement and instead supported the MWDP bill which ostensibly was to save Muslim personal law. This was a gesture designed to win back Muslim support. However, this was quickly interpreted by the Hindu party as appeasement of the minorities and became an important point in their electoral campaign. Consequently, in the following general elections in 1989 Rajiv Gandhi gave his tacit consent to the Ramshila 3 prografmne to win back the Hindu majority support. I mention this here to draw three conclusions which have significance for my later arguments. First, the stance of majoritarianism has become indistinguishable in many cases from that of the openly communal parties of the majority Hindus. Second, this has meant that 'secularism', although a highly respected term in the public domain in India, has no 'fixed' meaning and is open to interpretation. Finally, and following on from this, the 'nation' (conceived of as a composite of communities) as signifier of identity is itself in crisis. This has opened out the political space for the redefinition of national identity, a space which in the 1980s and '90s has increasingly been usurped by a new, militant right wing, Hindu party. This discussion about secularism and its Indian nature is not merely a preface to the discussion about the national debates that took place about the UCC in the 1980s. It is integral to the debate on the UCC because it is within the unifying impulse of secularism that Art.44 of the Constitution was conceived. As we have seen the need for a UCC was articulated as signifying the unity of the nation. The UCC represented the secular code which would provide the legal framework to bring about the unity of the Indian subject. The maintenance of the Personal law alongside the promise of a UCC, and the resultant split in the subject, was seen as a temporary measure necessitated by the exigencies of that particular historical moment (the Partition of India and the largescale communal riots). An underlying assumption was that social progress and modernisation would make the telos of the UCC 'natural'. Contemporary realities, however, have made these assumptions untenable. These realities have shifted the meaning of the UCC from being the happy ending to the story of Indian secularism and nationhood to being the site of acrimonious contests - women's rights vs minority rights, minority rights vs majority rights, and state vs citizens - to mention but a few. I will explore the contested meanings that the UCC has acquired in the decades under review. Although there have been numerous references made to the need for a UCC in independent India, the UCC really became a national issue at the time of the Shah Bano

controversy. The Shah Bano controversy has been discussed in Chapter 5. I will confine the discussion here to looking at the discourses that framed the UCC at the time of this crisis. There were two moments in this 'crisis'. The first moment is the judgement itself and the ensuing debates in the press, political mobilisations for and against the judgement. The second moment is the enactment of the MWDP Bill in Parliament which also generated debates in the press, mobilisation for and against the Bill. As I have shown in Chapter 5 the relevance of the debate that occurred in the wake of the Shahbano judgement lies in the fact that it was about a whole gamut of attitudes to Muslim law, Muslim men, and Muslim women as also the position of the community as a whole, its way of life and its right to exist as a religious community in a secular state. The debate about the UCC was sparked off by two things mentioned in the judgement. First, that the provision in Sec. 125 (which is part of the Criminal Code and is applicable to everybody irrespective of their religious affiliation) to pay maintenance to wives, in order to prevent destitution of a divorced wife, did not contradict the Muslim Personal law. Second, that the state should enact a UCC to promote national integration. I quote at length from the judgement to contextualise the discussion about the UCC. "It is also a matter of deep regret that Article 44 of our Constitution has remained a dead letter. (Quotes Art.44) There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms in their personal law. A common civil code will help the cause of national integration by removing the disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat inaudibly, that legislative competence is one thing, the political courage to use that competence is another. We understand the difficulties of bringing people of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is far more satisfactory way of dispensing justice than justice from case to case" (Chandrachud, C.J., Supreme Court of India, Criminal Appeal No. 103 of 1981, judgement dated 23rd April 1985, emphases mine.) There are a number of interconnected statements here which require amplification in order to tease out the meaning of the UCC and indicate the ways in which the reference to the UCC in the judgement translated into political discourses about identity, citizenship and the nation. The set of interconnected statements which I will examine has to do with the juxtaposition of the UCC with national integration to bridge

disparate loyalties and by implication promote uniformity. The contours of this discourse would schematically look as follows: UCC > UNIFORMITY >

NATIONAL INTEGRATION > < BRIDGING DISPARATE LOYALTIES

The issue of personal law vs UCC was joined at many levels by disparate political constituencies representing often conflicting interests. However, trying to comprehend how these different constituencies responded to the judgement is like venturing into a world of mirrors. The UCC appeared to transform the normal antipathy/conflicts into elements that articulated the same thing in a multiplicity of ways. This 'same thing' was the contours of the discourse that I have represented above. Thus the Muslim lobby inside and outside Parliament objected to the mention of the UCC in the context of the judgement because they feared that the talk about the Civil Code was another way of talking about uniformity and was in turn another way of imposing majority laws on minorities. The Hindu lobby argued for the judgement and for a UCC on the grounds that as 'citizens' of the same country all people should be subject to the uniform laws, and the uniform institutions (courts and legislature). Other groups, not aligned to either of these extreme groups, representing the liberal median in Indian polity, also referred to the UCC as being necessary to promote unity and uniformity of treatment in law. A sizeable section of the women's movement and left groups were to be found in this category. Some discordant voices articulated a different position, however. These came from Muslim reformists, certain sections of the women's movement and the left. The views ranged from arguing for codification of Muslim personal law to a step-by-step progress towards the uniform civil code. In a hard hitting article about the judgement the editor of the feminist journal, Manushi, articulated a contrary position. In it she made the point that it is ambiguous as to whether the judgement represented a 'pro woman' stance or an 'anti-muslim' one. All existing laws relating to divorced women's maintenance are inadequate. The problem arises from the fact that women are systematically denied rights to property. The fact that the judgement mentions the need for a UCC in the context of a maintenance case in which the parties happen to be Muslim leads to the erroneous belief that only Muslim personal law oppresses women and, therefore, should be scrapped in favour of a UCC. By implication Hindus are not governed by personal laws and theirs are Indian and secular. This successfully obscures the fact that all family laws are discriminatory towards women and that the laws on maintenance are a farce and need changing. 289

In the second moment of the crisis, which represents both the debates preceding and the passing of the MWDP Bill, this equation UCC > national integration> bridging disparate loyalties > uniformity, becomes more pronounced. It is most evident in the arguments put forward by the Hindu lobby, and not surprisingly, by reformists (sections of the left, Muslim reformers and many women's organisations). Admittedly these disparate lobbies arrive at this equation via entirely different routes. Some sections of the Hindu lobby, particularly Parliamentarians, made a distinction between two kinds of Muslims. The first kind was the reformist kind who, they claimed, had agreed to Muslim Personal law reform because its tenets were obscurantist. The second were the bigoted and fundamentalist elements who opposed the UCC on the grounds that their religion would be in danger. It was the second kind that had pressed for the MWDP bill. This group had already demonstrated their disregard for national institutions by their outrageous reaction to the Supreme Court. Now they were demanding separate treatment via the MWDP Bill which put them outside the purview of laws common to all. This would weaken the fabric of national unity. This was in violation of Article 14 of the Indian Constitution. By denying the need for common laws the Indian Muslims were denying the integrity of the nation. By succumbing to their demands the government had resorted to the 'appeasement of the minorities' at the expense of the majority who were Indian and patriotic.4 The reformist lobbies' opposition to the MWDP Bill went something like this. On the one hand, the tenets of the MWDP Bill went against the spirit of Islam which enjoins Muslims to be fair and generous to divorced wives. On the other hand, what this legislation signified was that Muslim women would no longer have recourse to uniform laws applicable to all citizens. (Sec. 125 which awards maintenance to divorced wives is in the Criminal Code and as such applicable to all Indians). The real injustice was, therefore, in treating Muslim women as second class citizens by disallowing them access to common laws. This was violative of Article 14 of the Constitution. Therefore, some argued, a UCC was necessary to ensure equality of treatment before the law for all citizens. The ruling party answered the opposition to the MWDP Bill in two ways. Implicit in the opposition, as we have seen, was the accusation that, first, national unity had been jeopardised by having different laws for different communities, second, that secularism was at stake. The MWDP Bill was necessary, said the ruling party, because national integrity was at stake since a minority group had felt aggrieved. It was beholden on the state to protect minority interests, and, minority groups within the minority (in this case women in Muslim communities). It was also beholden on the state to enact a UCC

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which was being drafted and would be made optional. Citizens could have choice in deciding whether they would be governed by the UCC or personal laws. As in the previous moment discordant voices did, in this moment too, set the discussion of the UCC on a different trajectory. Indira Jaising (feminist lawyer) of the Lawyer's Collective in Bombay pointed out in an editorial in 'The Lawyer' in 1986 that the demand for a UCC must be a demand for sexual equality. The reformulated demand for a UCC should, therefore, focus on sex discrimination which is written into all personal laws (mentioned in an article by Anand,J in 'Shah Bano Controversy' (ed) Engineer 1987). The editor of Manushi wrote that the task of formulating such a code should not be left to Parliamentarians but entrusted to people who have worked for human rights of all the oppressed in society - people of disadvantaged minorities such as Muslims and tribals, as well as women in general. The question of women's rights, therefore, was inextricably bound to the issue of human rights. It was time to retrieve the demand for a UCC from the discourse of national unity and integrity and insert it into a more general discussion about safeguarding human rights (Kishwar 1987).

9.4. The construction of national culture as being Hindu: the UCC in the 1990s. As the furore of the Shah Bano controversy abated, and the MWDP Bill entered the Indian statute books, the demand for the UCC also ebbed. The state did not produce the optional UCC as promised. The UCC as a motor generating political contention seemed to have run out of steam. But had it really? In search of the UCC and what it meant in the 1990s, I present the views of three different constituencies each of whom have a stake in the UCC. The first group is representative of a section of the women's movement. The second constitutes state officials of the law at different levels of the judicial and legal system. And the third, and perhaps the most significant, is the spokesperson of the political party, Bharatiya Janata Party (BJP henceforward) which speaks for the Hindu right wing, and for whom the UCC represents the cornerstone of a larger political project. The political crisis that marked the 1980s continued unabated into the '90s. If anything things had grown significantly worse. Communal riots erupted all over the country in 1990. Political uncertainty and instability were fuelled by the collapse of two central governments within a period of three years. As a result mid-term general elections were announced in 1991 and scheduled to be held in May and June. As in other election years in India, this occasioned the airing of issues of immediate public concerns. Significantly the construction of public concerns was primarily around the issues of identity. This was occurring in the context of an acute economic crisis. Foreign 291

exchange reserves of the Indian government had fallen so low that it was transferring gold reserves out of the Reserve Bank of India to meet the situation. In February 1991, the Indian Association for Women's Studies (IAWS) organised its national conference in Calcutta. The JAWS is an all-India body. As the name suggests its ostensible purpose is to disseminate work on women's studies undertaken by the departments set up in Universities all over India in the 1980s. Actually the IAWS fulfils a much wider role. It holds an all-India conference every two years which has become a meeting ground and forum for the women's movement. Women's studies researchers, feminist academicians, feminist activists meet at this conference. Although the conference is organised on formal lines, it also provides the space for the articulation of immediate concerns of the women's organisations. In fact it is now the single largest gathering of those interested in and concerned about women's issues in India. As such the resolutions passed at this conference have significant political import. In February 1991 the LAWS conference, which was the fifth organised so far, chose as its main theme 'Religion, Culture and Politics'. The theme was selected as being pertinent to the immediate concerns faced by women all over India. The report of the conference elucidated the concerns as follows: 'In contemporary India, populist religious movements are cropping up in the name of preserving cultural and ethnic identity. These movements need to control women's behaviour and values resulting in a weakening of women's rights and claims to equality' (LAWS Report of Conference, 1991). The first plenary session held at the conference was organised to define the theme of the conference. Two important papers presented at this plenary helped set the tone of the conference. Both these papers were by women who were born into minority communities. One of the spokespersons was the feminist lawyer, Flavia Agnes, a Christian by birth and whose experience of handling issues of domestic violence in the courts has informed many debates of the problems therein. Agnes pointed out that by virtue of being born into a minority community this identity was then thrust on women irrespective of whether they happened to be believers. Women from minority communities were always being asked to explain their personal law. 'What is worse, the ghettoised situation continues even within the women's movement and one is constantly forced to react to issues from the perspective of this identity even though my specific work has not been in the area of challenging the Christian Personal law but in a far broader and more universal issue of domestic violence'(Agnes F. Paper presented at JAWS Conf. 1991). She contrasted this position with that of Hindu women - either as activists or litigants who were not called upon to understand or explain their personal laws because this 292

being normative was dealt with by 'experts'. The explanation often given was that minority laws were more discriminatory. However, she pointed out, even progressive Hindu women active in the women's movement, were unaware as to how discriminatory the codified Hindu law was. Another presumption derived from this position was that the burden of evolving a UCC and a non-sexist code was the primary responsibility of minority women because they suffer from discriminatory laws. She emphasized that to be a woman, no matter which community one was born into, entailed being a second-class citizen. However, a worse fate was that of women from minority communities (e.g. Christians) whose identity did not pose a political threat and had not resulted in riots. Their concerns were completely invisibilised even within the women's movement. She detailed the salient problems of the Christian personal law and the difficulties that arise for women who are born Christian. She questioned as to the ways out of this predicament. The alternative just at present could not be the demand for a UCC because the rise of fundamentalist politics had made the discussion of the UCC as a non-sexist code an impossible task. The women's movement would have to devise short-term strategic goals in order keep women's rights up front in the discussion of legal changes for a non-sexist, non-Hindu code. An alternative would be to seek changes in, for example, the Special Marriage Act which was available to everybody, changes that would go a step in this direction. This might out manoeuvre the fundamentalist discourse about the UCC which has limited it within the parameters of a discourse of citizenship, nation and uniformity. The IAWS, since its inception, has held that one of its long-term objectives is to work for the enactment of a common family code covering rights to property, divorce and custody of children. Seen from this perspective the resolutions passed at the IAWS conference in 1991 reflect the change of emphasis regarding the demand for a UCC highlighted by Agnes. In a sense what was being acknowledged through these resolutions was that the demand for a UCC at this present juncture did not represent women's interests. It was recognition that women's interests are not served by appeals to equal citizenship in the context of the UCC because the meaning of 'equal citizenship' had translated into contests between politicised religious identities seeking hegemony in the state. There was little or no political space within this discourse to articulate the demand for a non-sexist, non-hindu and truly secular code of family laws which would represent women's interests. The resolutions adopted, therefore, called for a review of all personal laws being practised in India in the light of the Constitutional guarantee of equality irrespective of caste, class and gender. As can be seen, for a certain section of the women's movement, the high social and political costs of arguing for a UCC in the context of discourses of citizenship, nation and homogeneity that references to UCC inevitably field, are recognised as being 293

inimical to the long-term goal of gender equality. This understanding, however, does not inform opinions about the need for UCC in other constituencies, as is evident from the responses of members of the judiciary and the apex Law department of the state. As was expected all the members of the judiciary, representing the different levels of the system, agreed that a UCC was necessary. Only one judge, a woman and a very senior and influential member of the Calcutta High Court, refused to comment on the subject of the UCC. She also refused to reply to questions about Muslim Personal law. Taken together these refusals can be read as pointing to the political sensitivity of the issues. The MWDP Bill was the point at which most responses regarding the need for a UCC inevitably began. An additional District Judge of the Alipore Court mentioned that like the Code of Civil Procedure, which was uniformly applicable to all citizens, the Code of Criminal Procedure should also be uniformly applicable. By separating out Sec.125 in the Criminal Procedure Code as not being applicable for Muslim women (by enacting MWDP Bill in its stead) justice was being denied to them. The Judicial officer in-charge of Legal Aid, for example, said that the clock of justice, uniformity, equality before the law seemed to be going in an anti-clock wise direction. First we had Sec. 125 which was applicable to all and now we have the MWDP Bill which separates out Muslim women. The worst thing that can have happened to Muslim women is the MWDP Bill. By virtue of this Act the deserted wife is outside the purview of the criminal court so she cannot take advantage of Sec. 125 which is more or less a quick relief for other women...I tell you Muslim women have been really put into hardship, not middle-class but wretched low, middle-class and poor women. She is supported during the iddat period and after that she is supposed to get her property from her parents which definitely she does not get - it is a relief in theory only - after that the Wakf Board and all that - who is going to give her share? (Interview No.1)' 5 (for interview numbers refer to appendix 2) But how did this relate to the need for a UCC? The answer was apparently quite straightforward. If there was a UCC the present misunderstandings regarding the personal laws would not arise, the division and fragmentation of society that arises from this misunderstandings could be avoided. We all belong to one country, and we are all guided by a single set of rules' (Interview No.1). Therefore, for unity of the nation, uniform and homogeneous laws were essential. How would we arrive at this UCC? By a process of assimilation, ofcourse. The Muslims and the Christians have to assimilate, said one Assistant District Judge of Alipore court. This was echoed by the apex body for the administration of law, the Law department (in Delhi) in a different manner (Interview No.10). According to them the most difficult issue now was the UCC. The government was committed to building 294

such a code. What would this code imply. It would imply having the same rules for everybody. In order to achieve this the laws of the minority communities would need amendment. Since ours is a pluralistic society and we maintain the identity of the minorities, it is the minorities who have to come forward. The problem was that the Muslims were resisting. The government has now amended the Parsee law on the recommendation of the Parsees. Similarly the government had received suggestions from the Christian community on which it would act. For the majority community, which comprises 80% of the people, the UCC has been achieved. With the enactment of the Hindu Code Bill a UCC for 80% of the population came into being. That we were moving forward towards assimilation was evidenced by the fact that the Parsee laws, which were conceptually different, had through the process of reform been brought closer to the Hindu law. Similarly the suggestions from the Christian community would mean changes that would bring it closer to the Hindu law. Hindu law was more akin to the English law. This was cited both by Assistant District Judges at the Alipore court level (Interview nos.4 & 6) as also at the apex level of the Law department (Interview no. 10). The sub text in this comparison is not difficult to read. The comparison shows up the codified Hindu law as being 'modem' and 'progressive' and, therefore, secular and normative for the construction of the UCC. But what of the inherent anti-woman biases in all the personal laws, I asked at every level of state officials? At the level of Alipore court, as also the Judicial department of West Bengal, and, the apex Law Department in Delhi this question was seen to refer to the problem of Muslim personal law. Any debate today about the reform of personal law, said the Law department, should involve the question of the status of women and children (Interview No.10). Therefore, the Muslim community itself should try to reduce the rigours of the inequitable law which they have at present. But what would happen to the discriminatory laws in the Hindu Code Bill, I queried? There was divergence of opinion here between the Calcutta judiciary and the Law department. The former felt, with one notable exception, that the present laws all favoured women. The laws being added to the statute books (obviously referring to the anti-dowry laws and sec.498A enacted in the 1980s) have a distinct pro-woman bias. The judiciary was falling all over itself to be liberal to women (Interview 1). In the words of the Judicial Officer in-charge of legal aid, 'Recently the courts are very sympathetic to the cause of women to the extent that some of courts have become biased. A woman does not necessarily mean that she represents the weaker section. The courts should take into consideration the law as it is' (Interview 1). In other words equality before the law, beside meaning that all communities should be treated in a uniform manner, also means that men and women should be treated uniformly. 295

The notable exception to this viewpoint was a woman judge of the High Court. She said that many clauses in the acts comprising the Hindu Code Bill were discriminatory towards women and needed changing (Interview No. 2). She mentioned that Sec.23 of the HSA, which debars women from seeking partition of property on which there is a dwelling house, should be done away with. She felt that the UCC was necessary because one of the foundations of law was its uniformity and applicability. Another very important reason why there should be a UCC, apart from the question of equality, was that it would simplify the law. How would we arrive at the UCC? I am a great believer in the integration of the country. But, well, naturally everybody wants to keep their identity' (Interview No.2). Therefore, it was no use thrusting a UCC at people which would cause resentment. Rather the state should endeavour to reform the existing uniform laws, as for example the Special Marriage Act, and make these available on an optional basis. Gradually people should be encouraged to opt for these laws in regulating family relations. At the Law department there was acknowledgement that some of the provisions in the Hindu Code Bill were discriminatory to women. (All references in this paragraph are to Interview No.10). As for example, the laws on maintenance in the event of divorce should be reformed to give women a share in the husband's property. There were private members' bills in Parliament which would bring about this reform but these had not received the attention of the Legislature. There was less enthusiasm, however, in reforming the HSA, 1956 and the issue of inheritance and succession. This was considered 'hazardous'. The example cited was that if a man had three daughters, and if for example, they were made coparceners of his property, the daughter's husbands would gain an interest in the property. On the other hand, if a man had only sons, and if the Bill to treat maintenance as meaning division of marital property came through, on the event of the divorce of the sons the departing daughter-in-law would 'take' part of the family property away. Therefore, 'marital property' should only refer to that new property acquired after marriage by the couple.7 We return here to a discussion of the UCC which circumscribes it within a discourse of UCC > national integration> bridging disparate loyalties > uniformity. This equation is arrived at in this constituency by, first, positing the minority personal laws as being inequitable, second, projecting the codified Hindu law as being uniform and thereby equitable, and finally, seeing uniformity as being equal to assimilation of minority laws

7 As can be seen attitudes to giving women property rights have not changed significantly since the debates on the HSA in the 1940s and 1950s.

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by bringing it closer to codified Hindu law. That this discourse of the UCC does not accommodate the concept of equality of men and women in the family is evident. It is evident because, first, 'uniformity' in this discourse means equality, which in turn means 'sameness'. The assertion that the courts are biased in favour of women is another way of saying that 'positive' discrimination in women's favour constitute inequality. That this 'sameness' takes the Hindu male's interests as being the norm is evident in the ambivalence regarding the reform of Hindu women's rights to inheritance as being part and parcel of a future UCC. To sum up, this version of the UCC privileges male, propertied, Hindu hegemony. We arrive finally at the stand taken by the third constituency regarding the UCC. The Bharatiya Janata Party (BJP) represents the parliamentary face of political Hinduism. The BJP, formed in 1980, draws from a much older tradition of Hindu politics which has always been there since the inception of the nationalist movement. However, as I have earlier pointed out, its strategies signal a radical departure from the earlier tradition of Hindu politics. An outstanding feature of politics in the 1980s was the phenomenal success of the BJP in electoral terms. In 1980 the BJP won a handful of seats in Parliament gaining a couple more in 1984. By 1989 it was a significant force to reckon with in Parliament, and, in 1991 formed the main opposition in Parliament. By 1991 the BJP was also controlling four state governments including Uttar Paradesh, the largest state in India in terms of population. It is no wonder then that the principal ideologue of the BJP, the Secretary of the party in West Bengal, (where the party did not win any seats although the percentage of votes it polled rose significantly in successive elections) announced the party to me as "the government in waiting". The UCC has been on the BJP political agenda since its inception in 1980. (All references to first person speech but not in quotation marks in the following paragraphs is to Interview No.8). In fact it is now the only political party which has a clear idea about why it wants the UCC. First, the BJP wants the UCC because it believes in the principles of the Indian Constitution. The Indian constitution begins with the symbolic words 'We the people of India'. The same constitution directs the state in Article 44 to enact a UCC which will actualise this unity. The constitution when talking about 'We the people..' does not differentiate the people as being composed of Hindus, Muslims and Christians. Neither does it mention that the people are composed of Bengalis, Gujratis and Keralites. 'So what has been enunciated is that in the eyes of law each and every citizen is one' (Interview No.8).

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Thus to uphold the provisions of the Indian constitution the BJP, as the only patriots left in Indian politics, call for the enactment of a UCC to stress that all the people are one. However, there is a problem in the other articles of the Constitution. As for example, Articles 28,29,30, protects the minorities, Christians and Muslims for instance. Those considered Hindus, which includes the Bhuddists and Sikhs, have been left out of the provisions. By these provisions the Christians and Muslims have been singled out for attention and protection by the Minorities Commission. For the BJP this signifies 'minoritism' which contradicts the general principle of the constitutional imperative of 'We the people..'. The tacit recognition given by these provisions to religious identity has harmed the concept of 'We the people..'. Minoritism is seen as eating the heart out of the Indian polity. It is making India weaker. Thus BJP stands for the constitutional provisions of unity and the UCC best signifies what the spirit of the constitution was meant to be. 'In actuality this demand (the UCC) will make India stronger and not India as a weak nation' (Interview no.8). In other words the UCC is an instrument which will rid the Indian polity of minorities. Referring to the politics of the so-called 'secular' parties like the Congress and Communists, the BJP cites instances of the way they promote 'minoritism' and thereby divisiveness. It recalls the fact that the two-nation theory resulted in the Partition of India in 1947. By perpetuating 'minoritism' the other parties are seen to be repeating the mistakes of 1947. This has led, for example, to Sikhs in the Punjab to believe that they are not part of mainstream India. The maintenance of Article 370 of the constitution has prevented Kashmir from joining the mainstream of India. As a result there is the danger today that India would disintegrate. Now this rot is to be checked and to check the rot one measure is the UCC' (Interview no.8). But there are other more compelling reasons for the BJP supporting a UCC. And this has to do with protecting Muslim women from the indecency of their own religious community. The Shah Bano case epitomises for the BJP the indecency and inhumanity of Muslim personal law. 'If you are leaving somebody out in the streets one fine morning it is a moral duty that she must be given some sort of provision to live'(Interview no.8).

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Instead of insisting on the moral ground, the ruling party amended Sec.125, which makes this provision, to appease the minorities. This is seen both to be compounding the problem that India has faced since 1947 (two nations) and discriminating against women. 'That means they (meaning Muslims) can humiliate a lady at their will and the law cannot come to her rescue' (Interview no.8). The discrimination gives a lie to the provision of sex equality guaranteed by the constitution. 'So to protect the women from facing a destitute condition we thought we must press for the passing of a UCC' (Interview no.8). Further Muslim Personal Law in India insists on following the Shariat. This means that Muslim men can marry three times and divorce by the pronouncement of 'talak' is easy. In countries with a predominantly Muslim population like Turkey this would not be allowed because it has been accepted that this is an indignity for women. Thus in order to uphold women's human rights the BJP insists on the UCC. Up to this point the BJP statement about the need for a UCC does not depart radically, except in certain instances, from the way state officials articulate it. There is the same insistence here about citizenship being uniform, signifying homogeneity, and equality meaning sameness. However, the BJP does stand ardently held beliefs in the public sphere on their head. As for example, the issue of the rights of minorities is singled out in the BJP discussion, scrutinised, and then reconstituted. As 1 have pointed out earlier in this Chapter, and the opinions of the state officials given above reflect this, 'protecting' the rights of minorities is seen to be an aspect of state sponsored secularism. Thus at the level of state officials, the identity of minorities seen as representing the plurality of India, has to be paid lip-service to while in reality subsuming minority identity within the rubric of majoritarianism. In the BJP discourse, however, the very acknowledgement of the existence of a category called 'minorities' is equal to divisiveness, is equal to not believing in the integrity of India, is, therefore, anti-national. Minority rights thus becomes transformed into iminoritism' which is used as a pejorative to characterise the politics of those who are seen to be upholding minority identity. By so doing they are designated as being anti-national. In opposition the BJP comes out as the true patriots who define nation and secularism in a new way. As the BJP ideologue said to me when summing up the earlier discussion, 'So obviously when we are talking about the UCC we are not anti Muslim. We are basically pro Indian people and we are upholding the Constitutional design that was enunciated way back in 1950' (Interview no.8).

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The rhetoric of 'pro Indian people' allows the BJP to project itself as a collectivity that is perfectly acceptable to the liberal middle-class. The discussion so far tends to leave the BJP characterisation of unity, sameness, Indian, nation, and, the UCC as an instrument, somewhat unanchored. One can pick holes in their argument about 'minoritism' even from the stand point of wishy- washy Indian secularism. However, this drawback is overcome in the subsequent discussion in which the BJP outlines its philosophy. This discussion roots the concept of sameness within the discourse of a national culture. Hall points out that the nation is not only a political entity but something which produces meanings - a system of cultural representations. People are not only legal citizens of a nation: they participate in the idea of a nation as represented in its national culture. National cultures are discourses which construct meanings about ourselves and our actions with which we can identify. National cultures in other words give us an identity, inform commonsense views of national belonging (Hall 1992 p.291-295). The compelling power of the BJP rhetoric lies in precisely this - that it provides a way via the construction of a national culture of imagining the nation and identity and belonging therein. What are the representational strategies through which this national culture, and with it national identity, is brought into being? The BJP has a philosophy (Interview no.8). And the foundation of this philosophy is that India is a country of one culture. This is not to be confused with what other political parties imagine as being India. As the BJP spokesman explained to me the other parties conceptualised India as a composite of cultures. The moment that one accepted this conceptualisation of composite cultures, differences were set up between one individual and another. Whereas if you thought that we were a product of one culture then that oneness was not based on superficial bonds. The bonds were cultural and, therefore, deeper. And that was why we should have a UCC because we were really one people. Whether a person lived in Kerala (southern most tip of India) or in Kashmir (northerm most tip of India) they thought they were part of the same heritage, one lineage - that was the bond (Interview 8). What is this heritage and how do we describe the lineage? What provides the cement for this one culture? According to the BJP this bond has always been there and is lost in the mists of time, rendered primordial and natural because of its timelessnes. This bond was not political in the nation-state sense of the word. We were never one political entity. But despite this people travelled from Kerala to Kashmir to visit the temple established by Shankaracharya (Hindu sage) or from Gujrat (western most state) to GangaSagar (a Hindu pilgrim spot in West Bengal in the east). Why did they do so, face so many hardships in order to do so? Because they came to interact with others, and while participating in a common culture developed a common cultural bond. As 300

will be evident by now, the reference to Hindu pilgrim spots, where from time immemorial people from all over the subcontinent of India have travelled, makes the 'common culture' adhere around being Hindu. The BJP never once explicitly mentions the word Hindu because this would mean acknowledging that there are others beside Hindus. Instead by depicting this timeless culture of the pilgrims, Hindu is made synonymous with natural and primordial ties, with heritage and lineage ties. Needless to say this then provides the rationale for the demand of the UCC in the present. If we accept that we are one culture then not having one political entity is a contradiction in terms. 'So from that angle too we do not believe that India as a political entity should have one code for Hindu and another for Muslims and yet another for Christians' (Interview no.8). But what would the UCC look like? In addressing this question the BJP rhetoric looks as if it is falling apart. Or does it? The BJP has not yet gone into the details of the construction of the code (Interview no.8). However, it will be thoroughly modern, designed on the codes available in the west. What will happen to the Hindu Code Bill, I asked? It will be scrapped because it was predicated on notions of secularism that were western oriented which entailed the separation of religion from the state. In the thousands of years of Indian history the church never interfered with the state because Hinduism was never an organised religion. It was and is a way of life, a culture. In other words religion as culture was implicitly secular. According to the BJP the Hindu Code Bill will have to be scrapped also because its enactment was an act of political injustice done to one section of the population. It was a political injustice because it singled out only Hindu women. Hindu women have in history always had a better deal. They did not face discrimination. The discrimination between men and women came later with western modernity. So what was the need for the HCB? The BJP representative explained that western modernity had changed society. For this reason UCC was required - to meet the conditions necessitated by this change. '...but that is not only for one section of people but it has to be for the entire people' (Inteview no.8). The Muslims, on the other hand, would have to give up their reliance on the shariat because it was backward and obscurantist. '..as human beings they have got to march - they've got to march from bygone days to modernity' (Interview no.8). The BJP rhetoric does not fall apart even in this instance when it seems inconsistent and borders on the illogical. It does not fall apart because the UCC, as in the earlier part of the discussion, retains its significatory function. The UCC in this discourse is an instrument to impose 'sameness'. This 'sameness' is derived from the cultural 301

construction of Indian identity as being Hindu. Therefore, in one fell swoop, a number of political objectives are achieved. State sponsored secularism, which is shown as victimising the 'suffering, silent majority' by singling it out for an act of political injustice, is ridiculed and delegitimised. 'Sameness' stands equality on its head by showing that the majority is being unfairly treated because the state treats minorities differently. A consensus is thereby created whereby the majority finds its identity as the victimised. The agency responsible for this victimisation is the secular state. Therefore, what is needed is a redefinition of the state and this can only be achieved through the acquisition by Hindu patriots of state power. The BJP ideologue said in the interview that actualising a UCC would also mean scrapping Articles 28.29,30 which give minorities special privileges. All this was bound to cause resistance from people who had so far enjoyed these privileges. 'So we must have enough power to overcome this resistance' (Interview no.8). The UCC then becomes only an aid to the primary story of the affirmation of collective Hindu identity and with it the capture of state power. Commentators have pointed out that the BJP hopes to achieve the magic figure of 85% of the votes which is the proportion of Hindu voters in the electorate. In reality, however, they have not, even in their most successful year (1991), managed to corner more that 19% of the total votes polled (Ray 1993 p.969). In other words the appeal of Hindutva (political Hinduism) is not as significant as is imagined. In this scenario India is unlikely in the near future to have a Hindu fascist state (or at least not through the ballot box). I feel that this is a rather limited way of looking at the significance of the BJP discourse. The significance of the BJP discourse lies, as with Powellism in Britain in the '70s, in the ideological transformations that it has made possible (See Kobena Mercer 1992 for a fuller discussion of Powellism). In the election campaigns preceding the 1991 elections, I travelled with journalists throughout West Bengal and Orissa (two eastern states where the BJP influence is minimal in terms of votes) attending election rallies. We specifically chose to attend rallies organised by other parties than the BJP. My journalist friends conducted random interviews among the audience. A common thread that seemed to emerge from the responses was the questioning of secularism from the stand point that the majority was being victimised and the minority given pnvileges. Article 370 which protects the special status of Kashmir was cited as evidence as was the retention of Muslim personal law which allowed 'them' to marry four times. A doomsday scenario of Muslim takeover by an increase in their population (because of polygamy) followed from this.8 The ubiquity 8 So pervasive was this discourse even after the elections that Frontline (a national weekly journal) felt compelled to write a lead article entitled 'Canards against Muslims' which was then reprinted in a major weekly newspaper shortly after (Frontline Oct. 12-25 1991 reprinted in Illustrated Weekly of India Nov.2-8 1991 as 'Calling the Communal Lie')

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of this discourse is testimony to its appeal. The appeal arises from the fact that the logic of the argument turns on a coherent theory of national identity. The antagonism set up is the way the secular state treats the majority as compared to the minority. The cultural construction of India as Hindu makes for a unified and monocultural 'imagined community'. This was on the way to becoming commonsense. In summing up I pose the questions I asked in the beginning of this section. First, will the abolition of the system of personal laws and its replacement by a civil code, governing family relations and applicable to all citizens irrespective of their religious affiliations, result in more equitable gender relations. Second, and related to the first, whether it is at all possible to enact a Uniform Civil Code (henceforward UCC) in contemporary India. The answers emerging from the discussion of the meanings and significatory functions the UCC has acquired in the life of the nation, are far from straightforward. What does emerge quite clearly, however, is that the narrative of the nation of which the UCC has become the link, does not translate unproblematically into meaning equality between men and women in the family. To rephrase the second question, is there any need in contemporary India to press for a UCC? As I have shown the UCC in its hegemonic sense has come to mean equality as sameness, which in turn means the virtual annihilation of minorities and acceptance of the rule of the majority. This in turn means the hegemony of propertied Hindu males. Women's interests can never be guarantied in this new dispensation. And yet the paradox remains. The assertion of the Indian woman as unified legal subject, even as a metaphysic, is necessary in order to counter their identity as the 'protected' in the family. Thus laws in practice provide one mode of access to public space where through legal combatism women resist their containment and absorption in the family.9

9 This concept is discussed in Pathak and Sunder Rajan's 'Shahbano' SIGNS 1989 vol.14 nr.3. I use it because it agrees with my findings. However, my findings also indicate that at the level of the stateandthrough adjudication the unified subject is fragmented by identities constituted and erased by discourses of kinship, family and communalism. 303

CHAPTER X CONCLUSION

I began this thesis with the question as to why it was so difficult in India to separate out a woman's identity as subject/citizen imbued with rights from that of her identity as female, as daughter, sister, wife, widow, and marker and symbol of community at the level of the public, the politico-jural, the state? I further asked whether, first, there was a connection between the two levels. Second, what was the nature of this connection? Third, how did this/these connection/connections operate to secure asymmetrical power relations between the genders? The issue in the personal laws I used through which to locate the connections was, the claims made by and rights conferred on, men and women to family property - marital and ancestral. The realms in which I sought to locate the connections were at the cutting edge of the law. The cutting edge of the law is both at the point of formulation and adjudication. I had also surmised that an investigation of the connections between the domain of the state and the domain of social relations at the level of the family, kinship and community, would illuminate the problematic presented by the specific conjuncture of the personal laws, religious identities and their meaning in the state, and the boundaries these set in discussing women's rights. I found that the complicity between the realms of the private (family, kinship) and the public (politico-jural, state) in maintaining gender asymmetry begins at the point of formulation of the personal laws. Whereas the legislative debates on personal law reform, whether Hindu or Muslim, made the improvement of the status and position of women a key theme, the reforms fell seriously short of establishing parity between men and women in the family. This is because the debates and consequent legislations were really about establishing Hindu and Muslim identity and gender relations in the family were the central constitutive element in the construction of these identities. In the instance of Muslim personal law reform the close association drawn between women's rights/status/position and 'community' identity has had implications for the way in which discussion about Muslim personal law has since been framed. This discourse of community, and women's position being emblematic to it, has meant that women's rights in the family cannot be discussed separately from the fate of their community. Indian Muslims reduced to being political minorities in the monolithic structure of the post colonial state in which the overarching concept of 'nation' is as a homogeneous unity, have only the Personal law as a marker of the distinctive identity of the community. The implication for Muslim women in India is that their rights 304

cannot be discussed from the point of view of gender equality and is always displaced on to debates about the Muslim community. The debates to give Hindu women property rights was, as I have shown, a debate about identity. The Hindu identity was constructed through these debates via the assertion of the jointness of the family, the corporate nature of its interests, and the essentialised gender relations which characterised this unity of the family. The essentialised gender relations that constituted the Hindu family and identity also served to etch the boundaries of an upper-caste, upper-class, propertied, patrilineal male identity. Hindu thus became an identity hegemonised by upper-caste, property-owning males. This identity was inscribed in the text of the laws. Hindu law reform was also wedded to the primary goal of the new nation-state, namely social progress. The new Hindu tradition that was drawn through the debates, and which naturalised a upper-caste, propertyowning male hegemony, was also modern because it was wedded to the state's goal of achieving social progress. Through this association the new tradition came to represent Indianness. For women this meant that the asymmetry between men's and women's rights in the family, inscribed in the law, was successfully obscured. The complicity between the realms of the private (family, kinship) and the public (politico-jural, state) in maintaining gender asymmetry becomes all the more evident when we examine what happens when women appeal to the state in support of their statutory rights to property and maintenance. I found that in the context of litigation on marital property and maintenance the mode in which the economic arrangements of extant marriages are constructed in adjudication is based on the ideology and legal actuality of wifely dependence. Husbands and wives are constituted as different kinds of persons with differential rights. The status of wife is invested with less power than husband statuses and a wife's claim to resources has less validity than claims by other dependants. Further, the centrality accorded in adjudication to proving/disproving a woman's 'fitness' as wife shifts the discussion of a woman's rights to maintenance from that of an entitlement to that conferred as a privilege. By this process the status of wife is subordinated by state institutions to that of husband statuses. I have also shown that recent legislation regarding Muslim women's rights to be maintained by their divorced husbands has occurred at a historical conjuncture when discourses of community identities has been central in reworking the concept of 'Indianness'. Muslim women litigant's experiences show that a crucial change that is in the making has to do with the construction of Muslim men's responsibilities in marriage, and particularly to their divorced wives. The construction of Muslim men's responsibilities and women's entitlements is occurring through the homogenisation of Muslim identity by constituting Muslim marriage as unstable and inferior and Muslim 305

women as victims of contentious traditions. Both communal and gender discourses are implicated in the construction of Muslim women's entitlements because, on the one hand, maintenance of wives is seen not as a right but as a privilege because women as wives are positioned as material and ideological dependants. On the other hand, the construction of Muslim marriage as unstable and inferior further prejudices the notion of maintenance. In the process Muslim women's 'entitlements' have been redefined and men's responsibilities to their divorced wives 'fixed' disempowering Muslim women. The public discourse about women's rights to ancestral property would have us believe that Hindu women have parity with men in their claims to ancestral property whereas Muslim women do not since they inherit half the share that men do. I have shown that this hierarchisation of Hindu women's property rights over Muslim women's rights is a false one. This serves to obscure the hierarchisation of men's inheritance rights over those of women's rights that takes place in the process of adjudication. I have shown in the case studies that claims to ancestral property made by female heirs, both Hindu and Muslim, are subject to trials of personhood in which gender and kinship ideologies are critically implicated and these then serve to hierarchies men's claims over those of women's claims to property. Perhaps the most intriguing and subtle connection between the private and the public occurs in the instance of Hindu widows appealing for the right to inherit their husband's property. The question that I kept asking myself throughout the field work period was what had the situation of an old, infirm, childless Hindu widow being ill-treated by her husband's kinsmen to do with her status as citizen of the modern state invested with secular rights to inherit and be absolute owner of her husband's property. There did not seem to be a straightforward answer to this question except by interrogating the public discourses about her rights. These claimed unity by defining her as a subject invested with rights. As a subject she was considered the legal equivalent of the defendants with the ability to assert her right against the right of the other individuals. This notion of the subject did not accommodate the differential positioning of the litigant and the defendants by virtue of the social relation that they find themselves in. Thus constraints arising from the unequal positioning of childless widows to their male collaterals in relation to property at the level of kinship and family were invisibilised at the level of the public institutions and the state. The resultant effect, at least in the cases that I examined, was that a widow's claim to subjecthood (vested with alienable rights to property) is defeated by her positioning as a childless widow. The failure to establish a childless, Hindu widow as a legal subject with the right to inherit and hold the property of her late husband means that she becomes an object of charity. The widow as an object of charity dependant on the goodwill of the family is a more familiar figure in Bengali culture. This is a more acceptable figure than one who is a citizen of the 306

modern state invested with rights to property by which she can then challenge the exclusive right of male collaterals to inherit and retain property within the patriline. Having established, first, that there is a connection between the realms of the private and public, second, the ways in which these connections are articulated in the formulation of the laws and in adjudication and how this in turn maintains gender asymmetry, the question that arose was what happens when women resist domination in the family by appealing to the state? What kind of subjects were women constructing themselves as in the arena of the state and also how were women constructing the state? I examined the women's movement campaigns for legal reform in the 1980s and the reasons proffered by my respondents to seek answers to these questions. I examined two main legal campaigns initiated by the women's movement as illustrative of the way women have appealed to the state at a particular historical moment. I found that women's appeal through these campaigns constructed the state as the protector of civil liberties. Both the anti-rape campaign and the anti-dowry and domestic violence campaign articulated the problem in classically civil liberties terms. The logic of a civil liberties discourse is that it locates the right of the individual in relation to the state. The problematic of appealing in these terms for women is that at the level of the public institutions it is very difficult to separate out the gendered subject from the entangled web of social relations that primarily give this identity its meaning. The campaigns against domestic violence showed that women's rights as individual citizens can at best be imperfectly enforced by the state when their violation happens to be in the family, this is because the family is a site and ideology protected by the state.This does not, however, mean that the campaigns and the existence of a widespread women's movement has had no effect in shifting the discourses around gendered identity. On the contrary the campaigns have served to contest dominant ideologies about a woman's place and the nature of women's oppression at the levels both of civil society and the state. In examining the reasons proffered by my respondents in seeking state protection I found that the locus of power defining the subject does shift in this instance from the realm of kinship and familial relations to the state providing thereby the space for the construction of a woman's interests. However, this act of resistance to domination and containment in the family signified in her appeal to the state cannot simply be read in a celebratory manner. Resistance and recalcitrance are attributions of power and agents are constituted in the exercise of power. Thus when women seeking maintenance from husbands seek to invert the logic of wifely dependence to their own account, domination is sustained and reproduced even at the point of resistance.

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Feminists in India have long held that enacting a Uniform Civil Code (UCC) is the only way to ensure that women have equal rights before the law in family matters. The women's movement demand for a UCC has been based on the premise that the enactment of a common family code covering rights to property, divorce and custody of children is necessary to posit the female subject as the unified legal subject in law. The unified subject in law is the basis of citizenship. Thus the separating out of women, as subject/citizen, from women, as gendered subjects enmeshed in social relations of kinship, family and community, at the level of the public and the state via the enactment of a UCC, is seen as a means to emancipate the female subject. The question that I asked in looking at what the UCC means is not whether the unified, freely choosing subject is only a metaphysic but whether the abolition of the system of personal laws and its replacement by a civil code, governing family relations and applicable to all citizens irrespective of their religious affiliations, would result in more equitable gender relations. I found that the answers to the above questions emerging from the discussion of the meanings and significatory functions the UCC has acquired in the life of the nation, are far from straightforward. Historically and contemporarily the UCC has been and is a signifier of national unity. The meanings given to the UCC derive, not from a discourse about gender equality, but from discourses about 'nation'. These discourses do not translate unproblematically into meaning equality between men and women in the family. I have also shown that the UCC in its hegemonic sense has come to mean equality as sameness. This equality as sameness makes for a unified and monocultural 'imagined community' which in turn means the virtual annihilation of minorities and acceptance of the rule of the majority. This in turn means the hegemony of propertied Hindu males. Women's interests can never be guarantied in this new dispensation. The hall-mark of feminist scholarship lies in challenging and dismantling the ideological boundaries between the private and public. This thesis has attempted to unravel the woman-state relationship in India by looking at the construction of gender identity in the personal laws. As such it follows a tradition set by feminist social enquiry. What it contributes, if it contributes anything at all to this tradition, is an account of the historically contingent, culturally specific nature of gender relations and the state in India. The implication of the findings of this research for feminist activism in India are far from straightforward. It raises more questions than it answers. How do we build a political community of the future that ensures gender justice for all and at the same time acknowledges and finds spaces for the articulation of differences of caste, class, religious community and region? We cannot do this by evoking 'nation' and one 'jati' 308

since, as I have shown, this makes for a monocultural 'imagined community' which normalises upper-caste Hindu, male culture while virtually annihilating minority identity. Nor can we appeal to 'community' as Pandey has done in his 'Defense of Fragments' (Pandey 1991) and Chatterjee elaborates in his most recent work 'The Nation and its fragments' (Chatterjee 1994). In order to resist the homogenising and 'normalising' drive of the modern state which cannot recognise within its jurisdiction any form of community except the single, determinate, demographically enumerable form of the nation, Chatterjee suggests that we espouse the narrative of community. I quote: 'the narrative of community - untheorized, relegated to the primordial zone of the natural, denied any subjectivity that is not domesticated to the requirements of the modern state, and yet persistent in its invocation of the rhetoric of love and kinship against the homogenizing sway of the normalised individual..' (Chatterjee 1994 p.239) Given the ideological history of the construction of 'community' in the Indian context and its persistent tendency to make women the site on which the tradition of communities is debated and formulated, I would say that women have nothing to gain from this evocation. If this research has taught me anything it is that there are two 'jatis' - men and women - and in each of the 'jatis' that we belong to by origin, by birth and by inclusion contains within it the seeds of further division into these two 'jatis'. Brothers, I would like to say to Pandey and Chatterjee, there are two 'jatis' - men and women. And the jati of women will no longer subsume its interests in the collectivities that men create, whether of the modern state or the 'community'.

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ARCHIVAL RECORDS REFERRED TO IN THE TEXT (Source: India Office Library records, London) Legislative Assembly Debates (LAD)

LAD Vol. III, 1937 LAD Vol. V, 1938 LAD Vol. VI, 1938 LAD Vol. I, 1939 LAD Vol. I , 1943 LAD Vol. II, 1943 LAD Vol. IV, 1943 LAD Vol. II, 1944

Appendix 1: Grounds for Divorce Hindu Marriage Act, 1955, Section 13 Divorce - (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) has after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or ia) has after the solemnization of the marriage, treated the petitioner with cruelty; or ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or ii) has ceased to be a Hindu by conversion to another religion; or iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. iv) has been suffering from a virulent and incurable form of leprosy; or v) has been suffering from venereal disease in a communicable form; or vi) has renounced the world by entering any religious order; or vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive. Source: Hindu Law, T.N. Shukla; Calcutta 1991, pp. 26f.

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Dissolution of Muslim Marriages Act. 1939 Clause 2. Grounds for decree for dissolution of marriage A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty, that is to say, a) habitually assaults her or makes her life miserable by cruelty of conduct even is such conduct does not amount to physical ill-treatment, or b) associates with women of ill repute or leads an infamous life, or c) attempts to force her to lead an immoral life, or d) disposes of her property or prevents her exercising her legal rights over it, or e) obstructs her in the observance of her religious profession or practice, or f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quoran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law. Source: Muslim Law of Marriage, Divorce and Maintenance. Vijay Malik, Eastern Book Company, Lucknow, 1988, pp. 5 f.

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Appendix 2 INTERVIEWS OF STATE OFFICIALS AND POLITICAL OFFICIALS DATE

POSITION

27. 1. 92

Member- Secretary CLA Judicial Department

4. 2. 92

Judge 1, Calcutta High Court

2

9. 4. 92

Judge 2, Calcutta High Court

3

12. 3. 92

The Assistant District Judge Alipore Court

4

24. 3. 92

Registrar, Alipore Court

5

29. 3. 92

7th Assistant District Judge Alipore Court

6

27. 3. 92

SDJM - Alipore Criminal Court

7

16. 3. 92

Secretary, Bharatya Janata Party

8

21. 3. 92

ex Law Minister, Govt. of West Bengal Secretariat Member, Communist Party of India (Marxist)

9

13.4. 92

Secretary and Assistant Secretary Department of Law, Gvt. of India, New Delhi

10

2. 4. 92

Public Prosecutor, Alipore Court

11

INTERVIEW

325

1

Appendix 3- The political actors CONGRESS

The founding fathers of the Congress were men from Bombay and Calcutta who had first come together in London in the late 1860s and early 1870s while studying for the ICS or for law. Those among this group who did not join the Civil Service took the initiative in starting a number of local associations. These were 'middle class' - professional rather than zamindar-led in composition. There were numerous attempts in 1883 and 1885 to bring these groups together resulting in the meeting of 72 delegates in the first session of the Indian National Congress at Bombay in 1885. The first twenty years of the history of the Congress was characterised by Moderate politics which meant meeting annually, passing resolutions requesting Council reform and elected bodies and protesting the breach of civil rights. It was not an organised political party in any sense. In the 1890s the Congress was clearly in the doldrums. This began to change with the critique of Moderate politics by those espousing Extremism. The three principal bases of Extremism were Bengal, Punjab and Maharastra. The reaction against Moderate agitation took three principal forms which became distinct after 1905 and the partition of Bengal. First, a somewhat non-political trend towards self-development and constructive work, ignoring rather than directly attacking foreign rule; second, political Extremism proper, attempting mass mobilisation for Swaraj through certain new techniques which came to be called passive resistance; third, revolutionary terrorism which sought a short-cut to freedom via individual violence and conspiracies. (The central themes in the construction of self-help were national education, village upliftment, promotion of the vernaculars, the building of community through sponsorship of traditional, popular customs and festivals which relied on Hindu revivalist ideologies and motifs). The Partition of Bengal in 1905 sparked off the Swadeshi movement in Bengal which tried to find ways of protest which the Congress moderate politics did not accommodate. The strategies represented a mix of the ingredients of Extremism. Both Swadeshi and Moderate politics remained intelligentsia led. The tussle between Moderate and Extremist politics led to a split in the Congress in 1907 with the Moderate section reaffirming their belief in constitutio-nal politics. The Congress remained a purely deliberative body even in 1915 and agitational politics was carried out through the Home League of Tilak and Besant. It was with Gandhi's entry into all-India politics and his support of the 326

Khilafat and Non-Cooperation movement in 1919-20 that changed the Congress from being a deliberat -ive body to becoming a political party. It was at his insistence that in 1920 crucial changes were made to the Congress organization in an effort to make it into a mass political party. These included a membership fee, a hierarchy of village-taluk-district committees, reorganisation of Provincial Congress Committees on a linguistic basis, and, a 15-member Working Committee as the real executive head. MUSLIM LEAGUE

The Muslim League was initially floated by Salimulla at Dacca in 1906. In the same year when it became clear that elected representatives would be allowed in the Provincial Councils by the new Constitution, the predominantly U.P. and Aligarh based Muslim elite organised the Simla Deputation to plead for separate electorates and representation in excess of numerical strength. This was to both ensure that the Muslim elite would not be overpowered by the Hindu majority as also to exert control over young Mohammedan students at Aligarh Oriental College who were turning to the Congress. This elite group won separate electorates and took over the Muslim League. By 1912 the ML was captured by the 'Young Party' composed of the employed service and profession -al classes rather than the titled zatnindars who had formed it. They steered it towards a greater accommodation with the Congress and greater militancy. In the period of Khilafat-Non cooperation, the Muslim League subsided as a political organisation. In 1924, and after the subsidence of Khilafat and failure of HinduMuslim cooperation it held its first meeting outside the Congress since 1919. This was mainly at the initiative of M.A.Jinnah who began his political career in the Congress. The revi -val of the ML at this juncture did not bear fruit as the leadership of Muslim politics had been captured by the Punjab and the All-India Muslim Conference. The reorganisation of the ML as an all-India party took place under Jinnah's leadership after 1935. It did not meet with success in the 1937 elections. From then onwards Jinnah struggled with the Muslim leader -ship of the provinces to make the All-India ML the sole spokesman for Muslim interests.

HINDU MAFIASABHA

The Hindu Mahasabha was started in 1915 by Madan Mohan Malaviya, a prominent politician of UP. In the era of Khilafat-Non cooperation, the party became practically defunct but was revived in 1922-23. Members of the Mahasabha operated within the Congress till the 1930s when it broke away and contested elections on its own. At this time it was led by Savarkar who organised it to take interest in elections and party politics 327

generally. It presented a credible rival to the Congress and Muslim League. The Hindu Mahasabha owed its origins to much older traditions of Hindu nationalism and revivalism in the 1880s North India and particularly Punjab and western UP. It combined a sharp criticism of Hindu practices with the aggressive assertion of Hindu superiority. It was extremely popular among trading castes who as an emerging elite & were trying to establish hegemony over the also went for 'shuddhi' (purification) programmes which meant conversion of lower castes. The Arya Samaj split into a moderate & radical factions. The more moderate group led by Lala Lajpat Rai of Punjab developed a sporadic interest in Congress politics and swadeshi enterprises. By 1909 Lajpat Rai's group were setting up voluntary associations of Hindus or Hindu Sabhas and Sanatan Dharma Sabhas which bitterly attacked the Congress for its neglect of Hindus. All this anticipated the Hindu Mahasabha party and we find that by 1923 the party was an alliance of Arya Samajists reformers and conservative Sanatan Dharma Sabhaites.