Read Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India for Free Online Page B
Authors: Narendra Subramanian
in civil society mobilization, the increased attention of rights organizations to litigation and legal policy, and the experience of the emergency led certain judges in the higher courts to support the rights of weaker groups sporadically. The onset of economic liberalization in the 1990s reduced the support that judges gave poorer groups, but did not change the inclination, albeit inconsistent, of some judges to support women in certain ways in family disputes. These individuals were not a majority of the judiciary (among whom a survey showed the presence of very gender-unequal values in the 1990s) or the legal policy bureaucracy, but nevertheless were important to legal change. 4 They played crucial roles in increasing personal-law reform from the 1970s onward.
Even while these changes occurred in Hindu law and commonly applicable matrimonial laws, there were certain continuities with the policy logic of the first postcolonial decade. First, Hindu law remained the focus of personal-law initiatives, and Hindu law reform was framed significantly in light of how policy makers wished to shape the Indian nation. The changes inthe minority laws were less extensive and more closely tied to visions of group culture rather than to discourses about the nation, as we will see in Chapter 5 . Second, even the more extensive changes in Hindu law were framed partly in terms of indigenous culture. For instance, views that the Hindu marriage was meant to be sacramental and the Indian family durable led legislators and judges to prioritize the maintenance of marriages, even while they made divorces more accessible if efforts to resolve marital problems failed. They dissuaded legislators from making divorce available in the absence of spousal fault or mutual consent up to the present day, but the Rajya Sabha passed a bill that does so in August 2013. (The bill needs the Lok Sabha’s assent for it to take effect). Similarly, views that the joint family is a widely valued and durable aspect of Hindu and Indian culture made legislators reluctant to decompose family joint property into separate shares or restrict the testation of such property, even while they gave women greater shares of such property and required its bilateral devolution in cases of intestate succession.
I. INITIATIVES TO CHANGE HINDU LAW: DIVORCE
The main changes made in Hindu law since the 1960s concerned its divorce and inheritance provisions. The courts played major roles in the changes in divorce, marriage, and alimony law, prompting some of the major legislative initiatives. The reforms in divorce law began in the 1960s and became more significant in the 1970s. Divorce legislation was introduced at the federal level. 5 The changes in inheritance law began later, in the 1970s. As the courts felt more constrained in interpreting inheritance statutes, it was the legislature alone that changed these provisions. Resistance remained stronger to increasing women’s inheritance rights than to increasing divorce rights until the last decade. As a result, inheritance law was initially changed, from the mid-1970s to the mid-1990s, only in five states in southern and western India, where the salience of bilateral and matrilineal inheritance practices made resistance weaker to women’s access to ancestral property. Parliament extended these changes to the rest of India only in 2005, a generation after the initial reforms. While being hesitant to change daughters’ inheritance rights, the courts did grant women greater rights to their dower and weddinggifts, and to reside in and perhaps partly own their matrimonial homes if they lived apart from their spouses or got divorced. These reforms belie Parashar’s claim that “since the enactment of the Hindu Law Acts, not much legislative activity has taken place with regard to Hindu personal law.” 6
The divorce provisions introduced in Hindu law in the 1950s represented a compromise between aims to maintain the nuclear family and
Even while these changes occurred in Hindu law and commonly applicable matrimonial laws, there were certain continuities with the policy logic of the first postcolonial decade. First, Hindu law remained the focus of personal-law initiatives, and Hindu law reform was framed significantly in light of how policy makers wished to shape the Indian nation. The changes inthe minority laws were less extensive and more closely tied to visions of group culture rather than to discourses about the nation, as we will see in Chapter 5 . Second, even the more extensive changes in Hindu law were framed partly in terms of indigenous culture. For instance, views that the Hindu marriage was meant to be sacramental and the Indian family durable led legislators and judges to prioritize the maintenance of marriages, even while they made divorces more accessible if efforts to resolve marital problems failed. They dissuaded legislators from making divorce available in the absence of spousal fault or mutual consent up to the present day, but the Rajya Sabha passed a bill that does so in August 2013. (The bill needs the Lok Sabha’s assent for it to take effect). Similarly, views that the joint family is a widely valued and durable aspect of Hindu and Indian culture made legislators reluctant to decompose family joint property into separate shares or restrict the testation of such property, even while they gave women greater shares of such property and required its bilateral devolution in cases of intestate succession.
I. INITIATIVES TO CHANGE HINDU LAW: DIVORCE
The main changes made in Hindu law since the 1960s concerned its divorce and inheritance provisions. The courts played major roles in the changes in divorce, marriage, and alimony law, prompting some of the major legislative initiatives. The reforms in divorce law began in the 1960s and became more significant in the 1970s. Divorce legislation was introduced at the federal level. 5 The changes in inheritance law began later, in the 1970s. As the courts felt more constrained in interpreting inheritance statutes, it was the legislature alone that changed these provisions. Resistance remained stronger to increasing women’s inheritance rights than to increasing divorce rights until the last decade. As a result, inheritance law was initially changed, from the mid-1970s to the mid-1990s, only in five states in southern and western India, where the salience of bilateral and matrilineal inheritance practices made resistance weaker to women’s access to ancestral property. Parliament extended these changes to the rest of India only in 2005, a generation after the initial reforms. While being hesitant to change daughters’ inheritance rights, the courts did grant women greater rights to their dower and weddinggifts, and to reside in and perhaps partly own their matrimonial homes if they lived apart from their spouses or got divorced. These reforms belie Parashar’s claim that “since the enactment of the Hindu Law Acts, not much legislative activity has taken place with regard to Hindu personal law.” 6
The divorce provisions introduced in Hindu law in the 1950s represented a compromise between aims to maintain the nuclear family and
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