FAMILY LAW AND CULTURAL PLURALISM

FAMILY LAW AND CULTURAL PLURALISM India's family laws, also called personal or customary laws, govern features of family life such as marriage, separation, divorce and its consequences, maintenance for children and other dependents, inheritance, adoption, and guardianship. Independent India retained many aspects of the plural family law system of the British colonial period as a means of cultural accommodation within its multicultural society, especially concerning the accommodation of Muslims. Different family laws govern India's major religious groups—Hindus, Muslims, Christians, Parsis, and Jews—as well as many tribal peoples. Hindu family law also governs those who follow religions of South Asian origin, such as Sikhism and Jainism.

Indian legal pluralism is in tension with the secular commitments of the Indian state, and with the constitutional aim to promote gender equality as the various family law systems uphold unequal gender relations. India's political elite attempted to resolve these tensions in the first decade after independence, through the partial homogenization and reform of Hindu law, the introduction of optional marriage laws in a Special Marriage Act and a constitutional commitment to introduce a uniform civil code to govern all Indians. These policy choices restricted the state's social engineering, however, to Hindu law. They appeared likely to limit efforts to promote gender equality through legal change, particularly through changes in the laws governing the religious minorities as such changes were supposedly left to the initiative of unspecified representatives of these groups, who in practice were often conservative religious and political elites. The price of Indian legal pluralism reflects the problems seen in most multicultural arrangements, in which laws justified in terms of enabling cultural pluralism do not necessarily reflect group norms or practices. The scope for legal change is limited even if citizens demand changes in gender-biased group laws.

Complete legal pluralism involves the application of distinct laws to different cultural groups in all areas of social life, adjudication by distinctive community courts, and a lack of reference to common principles (such as those recognized by international human rights law or national constitutions) in making and implementing law. Where religious groups are the social units to which distinctive laws apply, religious leaders, religious scholars, and priests are the main or sole agents of lawmaking and adjudication. Legal pluralism is only partial in India in many respects. The laws governing Indians are uniform, other than those concerning family life. Indian judiciaries, largely trained in Western legal traditions, are the main agents of adjudication in all disputes brought to state courts. Aside from the state's judiciary, different religious and cultural groups have their own community leaders who act as adjudicative agents, the community institutions involved in adjudication include Hindu caste associations, Muslim prayer groups (jamaats), and local Christian churches and Parsi temples. Individual religious figures, caste leaders, and popularly recognized informal judges also adjudicate family disputes.

The complex nature of Indian legal pluralism provides some room for changes in family law, even while impeding rapid transformation. Over the last generation, Parliament changed the provisions governing all Indians for the prohibition of dowry, and for maintenance payments to indigent women upon separation or divorce. It made divorce easier for Hindus and Christians, including on grounds of mutual consent. Some state legislatures gave daughters the right to demand the partition of ancestral property so that they could access their shares, equal to those of sons, that the law assures them.

Prompted by the growth of public interest litigation, especially since the "National Emergency" of the mid-1970s, the judiciary initiated more changes in family law by interpreting some statutes and features of nonstatutory law in the light of the fundamental rights guaranteed by the Indian constitution. The judiciary changed family law more often than legislatures did, and sometimes prompted subsequent legislative change. This was true, for instance, of the changes introduced in the grounds on which Hindus and Christians could seek divorce, and in the alimony rights of Muslim women.

A Comparison of Hindu and Muslim Law

Many aspects of Indian family law are misunderstood. It is widely believed that the legislative reform of Hindu law in the 1950s made it secular and more conducive to gender equality, more so than the family laws of other groups, particularly Muslims. Many claim that the secularization and homogenization of family law is the only route to greater gender equality.

After the Hindu law reforms of the 1950s, statutes governed more areas of Hindu law than Muslim law. But, religious texts and beliefs influenced these reforms, for instance, the introduction of divorce rights. In addition, these reforms weakened the rights of some women, for instance, the rights of widows to shares in their former husbands' property if they chose to remarry. They further weakened the divorce rights of some Hindu women, who previously could get divorces more easily based on the recognized customs of their castes, and the property rights of others that were governed by matrilineal inheritance laws earlier.

While legislation of the 1950s partly homogenized the major features of Hindu law, the Shariat Act of 1937 had the same effect earlier on Muslim law. It made "Muslim law" applicable to most areas of family life among Indian Muslims (while leaving the content of Muslim law unspecified), and in the process overrode the customs of some Muslim subgroups that had enjoyed legal recognition until then. Partial homogenization was effected in ways that increased the rights of Muslim women more often than it did the rights of Hindu women. This was true, for instance, of the inheritance rights of Muslim women. Daughters gained rights to half the shares that sons enjoyed in their parents' property, in contrast with previously having no rights to inherit parental property. Although no statutes specified these rights, they were recognized in Islam's founding texts as well as in later Islamic jurisprudence, and the Indian judiciary followed these prescriptions in adjudication.

Muslim law is far less codified than Hindu law. Only three short statutes pertain to Muslim law in India: two that outline the divorce and alimony rights of women, and the Shariat Act, which in effect leaves the content of Indian Muslim law to the judiciary's discretion. In contrast, four elaborate acts define the major features of Hindu law. Judges refer far more often to religious sources in adjudicating cases involving Muslims than those involving Hindus.

While Muslim law is less codified and more closely linked to religious sources than Hindu law, the rights of Muslim women are superior to those of Hindu women in some respects. This is true of a daughter's inheritance rights. Hindu daughters have rights to share equally with sons in intestate succession to their parents' self-earned property, in contrast with Muslim daughters, who have rights to only half the shares that Muslim sons enjoy. However, the succession rights of Hindu daughters are restricted to intestate cases, that is, cases in which the parent did not leave a will. Hindu parents are free to will self-earned property as they wish, typically leaving all or most of such property to their sons, or perhaps other male kin. Male coparcenaries, moreover, control ancestral Hindu property in much of India, and daughters do not have any right to demand the partition of such property so that they may control their shares. (They gained this right since the mid-1980s only in five states.) This gives Hindu women little effective access to most forms of family property.

Muslim daughters have the right to half the shares left to sons in all forms of parental property. Muslim parents cannot deny their daughters rights to inherit shares in their property by willing self-earned property to male kin alone, or by effectively presenting more of the property they own as being of ancestral origin. While many do so, their daughters can effectively challenge such disinheritance in the courts. Hindu daughters have no legal recourse under such circumstances in much of India.

Muslim women had fewer rights in other respects than did Hindu women at different points. For instance, until recently, most Indian courts recognized the unconditional right of Muslim men to unilaterally divorce their wives, without giving Muslim women similar rights. In contrast, statutory Hindu law allows divorce based only on mutual consent, or if a spouse is found guilty of a "fault" such as cruelty, desertion, or adultery. From 1973 onward, indigent Hindu women had the right to alimony until their remarriage or death. Many courts did not recognize the right of divorced Muslim women to maintenance from their ex-husbands beyond a three-month period after divorce. The courts allow Muslim men to marry up to four wives (while not permitting polyandry), while Hindu law bans bigamy. The ban on Hindu bigamy is, however, not very effective, as the courts set high standards to recognize the validity of bigamous Hindu marriages. Public debate has highlighted the ways in which Muslim women have fewer rights than Hindu women, though not vice versa, reflecting the recent growth of Hindu nationalism, the widespread vision of Muslims as marginal to Indian citizenry, and the limited understanding of Muslim law.

The limited codification of Muslim law gave judges greater autonomy to initiate legal change, and the judiciary used this autonomy to address some of the gender inequalities in Muslim law over the last generation. The Supreme Court (India's apex court) recognized the alimony rights of Muslim women and placed conditions for the validity of unilateral Muslim male divorce in two landmark judgments in 2001 and 2002. It decreed earlier that bigamy was a ground on which Muslim women could claim divorce, without criminalizing Muslim bigamy. As the apex court defines the law for the lower courts, these judgments made the alimony rights of Muslim women the same as those of non-Muslim women. They also meant that there was similar room for unilateral male divorce among Hindus and Muslims. While Hindu law does not explicitly recognize unilateral divorce, it permits divorce if a couple did not live together for a year after a decree of judicial separation or restitution of conjugal rights, a provision used by many Hindu men but very few Hindu women.

Feasible Routes to Change

Recent judicial reforms in Muslim law indicate some routes available for changes in Indian family law that would give women greater rights. Judges introduced these reforms with reference to early and more recent Islamic religious and jurisprudential traditions, statutory Muslim law, and features of the Indian constitution (the fundamental rights to life, equality, and dignity). Their reference to constitutional principles did not lead them toward the secularization or homogenization of family law, yet enabled greater gender equality. Other judicial and legislative changes in Hindu and Christian law followed this pattern. For instance, divorce was made possible for Christian women on grounds other than adultery, because Protestants had long accepted divorce on such grounds, and even Catholic Church leaders came to support the right of Christian women to seek divorce under conditions of spousal cruelty or desertion. The recent legal changes effected convergence in some features of the different Indian family laws, and were restricted to some of the gender inequalities in family law.

While more Hindus (especially Hindu nationalists) demand a uniform civil code (UCC), consensus has not yet emerged about the content of a UCC. Many Hindus are likely to resist a UCC that favors much greater gender equality, and others to resist a UCC that draws from the different existing family laws and associated cultural traditions. If change in family law occurs within a framework of legal pluralism, this is partly because of the changing patterns of mobilization regarding family law policy. The introduction of a UCC was a major demand of women's organizations and other civic associations aiming to promote gender justice until the 1980s. This goal seemed increasingly unrealistic, however, with the passage of time. Hindu nationalists particularly embraced the demand for a UCC after the Congress Party government, under Rajiv Gandhi, appeared to give in to conservative Muslim pressure to overturn in 1986 earlier judicial reforms that gave Muslim women permanent alimony rights (the Shah Bano case). Many women's organizations shifted their focus, from demanding a UCC to promoting gender-equalizing reform within the context of legal pluralism, because of their desire to avoid an association with the Hindu nationalists.

While some key legislators engaged in making family law have belonged to parties that demand a UCC, their legislative initiatives have been for piecemeal changes that do not clearly move family law toward homogenization. Along with resistance from the religious minorities and the tribal peoples to a UCC, and resistance among many individuals in all religious and ethnic groups to the promotion of gender equality, the recent orientations of the major policy-making agents suggest the likelihood of gradual, halting gender-equalizing change, within the context of legal pluralism, in the foreseeable future.

Narendra Subramanian

See alsoDevelopment Politics ; Gender and Human Rights

BIBLIOGRAPHY

Agarwal, Bina. A Field of One's Own: Gender and Land Rights in South Asia. Cambridge, U.K. and New York: Cambridge University Press, 1994.

Agnes, Flavia. Law and Gender Inequality: The Politics of Women's Rights in India. New Delhi and New York: Oxford University Press, 1999.

Basu, Srimati. She Comes to Take Her Rights: Indian Women, Property and Propriety. Albany: State University of New York Press, 1999.

Derrett, J. D. M. Religion, Law and the State in India. New York: Free Press, 1968.

Larson, Gerald, ed. Religion and Personal Law in Secular India: A Call to Judgment. Bloomington: Indiana University Press, 2001.

Mansfield, John H. "The Personal Laws or a Uniform Civil Code?" In Religion and Law in Independent India, edited by Robert D. Baird. New Delhi: Manohar, 1993.

Menski, Werner F. Modern Indian Family Law. Richmond, U.K.: Curzon Press, 2001.

——. Hindu Law: Beyond Tradition and Modernity. New Delhi and New York: Oxford University Press, 2003.

Mukhopadhyay, Maitrayee. Legally Dispossessed: Gender, Identity, and the Process of Law. Mumbai: Stree Press, 1998.

Parashar, Archana. Women and Family Law Reform in India. New Delhi: Sage Publications, 1992.