Postcolonial scholarship on colonial Hindu law, although reflecting several divergent disciplinary perspectives and concerns,
has coalesced to form a coherent, if complex, narrative concerning the formation, operation, and effects of colonial Hindu
law. As
Rocher describes in this volume, in the late eighteenth century, the early colonial legal system tended to privilege the dictates
of the
Sanskrit textual tradition as the primary source of law. Although it employed
Brahmin
pandits to interpret these texts and to provide opinions (
vyavasth![](Images/e257.gif)
s) as part of the formal
adjudication of court cases, in so doing, it transformed both the nature of such
pandits’ authority and their interpretive practice long before they were “superseded” by the courts in 1864 (Cohn
1996c;
Lariviere
1989b; Mani
1998). Moreover, starting in the early nineteenth century, and particularly in the
Madras and
Bombay presidencies and areas of later conquest, a new generation of officials began to challenge the primacy of ancient texts.
As they reassessed the chasm between ancient textual prescription and contemporary practice, they valorized the latter as
the real source of law. Yet this shift in official emphasis from
authoritative texts to
custom as the primary source of law involved its own ironies. Most prominently, the emphasis on custom ultimately itself involved
a process of textualization, both through the production of
authoritative compendia on
caste and regional customs for use in the courts, and through the formation of a body of case law that served as legal precedents
in cases involving custom. This process of rigidification or fixing of custom was in fact recognized even at the time. Ironically,
Henry Maine, whose
Ancient Law (Maine
1861) has been identified as highly influential in shifting the legal emphasis from textual authorities to customary practice,
himself ultimately argued to this effect: “Usage, once recorded upon evidence given, immediately becomes written and fixed
law. Nor is it any longer obeyed as usage. It is henceforth obeyed as the law administered by a British Court, and has thus
really become a command of the sovereign” (Maine
1871: 72). In other words, Maine argued that the very process of attempting to grant custom the force of law in fact transformed
custom into positive law. This recognition fundamentally altered his opinions, and in his
Village Communities of the East and West, written after his experience in India as law member of the governor-general’s Council, he abandoned his prior emphasis on
custom and called for
codification of Indian law, “formed for the most part upon the best European models” (Maine
1871: 76).
Moreover, this process of rigidification of
custom was accompanied by an eventual expansion of reliance on textual authorities and homogenization of legally recognized
practice. This was because in the actual practice of the courts, proving local or community custom was notoriously difficult,
not least because disputing parties would set up opposing claims as to which customs prevailed in their community (Maine
1871). In this context, the courts tended to continue to expand the authority of textual dictates over customary practice, even
when they had the opposite mandate.
6
Further, because the textual tradition established elite
caste practice as the preferred form (for example relating to marriage), practices that had historically been the exclusive
privilege of the high
castes were in the
colonial courts interpreted as normative and extended to lower
castes as well. This historical shift was in fact embraced by many reformist
judges and lawyers at the time, both Indian and British, who viewed it as bringing the lower
castes up to the standards of morality, and hence respectability, of the higher
castes, and as enabling the lower
castes to partake of the privileged forms previously reserved for the higher
castes.
7 Thus, legal scholars and practitioners at the time were broadly aware of some of the most significant processes of transformation
that were occurring through the operation of colonial Hindu law, but they often viewed those changes as inevitable or as salutary.
As this process of legal change suggests, the
colonial law and
jurisprudence of
Hindu marriage highlighted the mutual constitution of
gender and
caste. Caste, as a hereditary form of differentiation, depended upon endogamy, and the regulation of women’s sexuality thus
occupied a critical place in its reproduction. In this sense, as postcolonial feminist scholars have argued, the colonial
reconstruction of patriarchy and of caste were intertwined processes (Chakravarti
1998; Rao
2003). One of the defining features of these processes was the expansion of patriarchal practices regarding
marriage,
divorce, widowhood, and the like to lower-caste communities that had never previously practiced them (Carroll
1983; Chakravarti
1998: 123–38). Non-elite marriage forms that historically recognized the contribution of daughters and wives to their natal and
marital households through the institution of
bride-wealth (in which a preponderance of gifts moved from the husband’s family to the bride’s family) were increasingly replaced
by
dowry marriage, which placed the bride’s family in a denigrated position, burdened by the daughter who needed to be married.
Likewise, the focus on regulating women’s sexuality as a critical component in ensuring caste purity and elite caste status
was associated with practices of child marriage and enforced widowhood. Although the colonial state viewed these elite customs
as barbaric and oppressive to women, it also criminalized lower-caste customs that recognized the validity of divorce and
remarriage (the 1861 Indian Penal Code defined such practices as bigamy or adultery), and it subjected widow remarriage, which
was regularly practiced within these communities, to the less progressive constraints of new legislation designed to address
high-caste Hindu widows (Hindu Widows Remarriage Act, Act
XV of 1856). Such legislation thus actually worsened the legal position of lower-caste widows (Carroll
1983). Judicial decisions on these issues as they came before the courts further enforced this marginalization of non-elite practices
(Agnes
1999; Carroll
1983; Chakravarti
1998; Sturman
2006). A similar process occurred with the matrilineal and polyandrous family form (
Marumakkathayam) among the
Nayars on the Malabar coast (Arunima
2003). Notably, however, alongside elite reformist legal personnel (both British and Indian) who advocated these changes, many
caste groups also actively participated in this process, adopting a variety of new patriarchal practices to facilitate claims
to higher status or respectability (Arunima
2003; Chakravarti
1998: 92, 151–9). Thus, although colonial officials regularly denigrated elite Hindu marriage forms as oppressive to women, both
legislation and jurisprudence treated such forms as normative, expanding their application and prohibiting non-elite forms.
Finally, an important point that emerges from this history is the interpenetration of diverse legal instruments and jurisdictions
in the regulation of Hindu marriage: Hindu law was ultimately defined by colonial legislation, including both criminal and
civil statutes, and by judicial precedent, as much as by textual authorities and
custom.
Colonial Hindu law early developed and largely maintained a number of basic premises and legal assumptions that shaped
adjudication in the courts.
Of these, the most important was that the normative Hindu family form was what became known as the “joint” or “undivided”
Hindu family, defined in British legal language as a
coparcenary, in which multiple generations of lineal males lived and ate together in the same household, and held in common
any family
property. In the language of the courts, the legal assumption was that all Hindu families were joint, and all property was
joint family property. According to this model, wives, unmarried daughters, widows, and disabled or otherwise dependent males
had a right to
maintenance, but they were not members of the coparcenary. In areas of India outside of
Bengal and Assam,
Vijñ
![](Images/e257.gif)
ne
![](Images/e347.gif)
vara’s
Mit
k
ar![](Images/e257.gif)
, a late eleventh-century commentary on the
Y
jñavalkya Sm
ti, was considered the primary textual authority, while in Bengal,
J
![](Images/e299.gif)
m
![](Images/e363.gif)
tav
![](Images/e257.gif)
hana’s early twelfth-century
D
yabh
ga was treated as primary.
9 In areas governed by the
Mit
k
ar![](Images/e257.gif)
, every lineal male held by birth a claim to an equal share of the family property, but the individual shares of men and boys
living in a joint family were never calculated, except on the break-up or
partition of the family itself (and the formation of new joint families), usually after the death of the patriarch. In Bengal
and Assam, a son could claim his share of family property only after the death of his father, and, unlike in the
Mit
k
ar![](Images/e257.gif)
, the father was accorded full power during his lifetime over both ancestral moveable and immoveable property, as well as
over separate property. Under the
Mit
k
ar![](Images/e257.gif)
, such power existed only as an exception in times of necessity.
These characterizations were treated as settled matters of law. Nonetheless, the actual practice of the courts worked to shift
the meaning and implications of the
colonial definition of
joint family as early as the 1860s, and, by the 1930s, quite different assumptions had come into play (I. Chatterjee
1999;
Derrett
1968: 400–36; Sturman
2005). Most notably, despite the attention – both colonial and postcolonial – devoted to the condition of high-
caste Hindu women, it was in the juridical treatment of high-caste Hindu men that the most profound shift occurred (Sreenivas
2004; Sturman
2005).
Until the 1860s, the
colonial courts in regions governed by
Mit
k
ar![](Images/e257.gif)
treated the
coparcenary as a single, indivisible
property-holding unit, meaning that individual men within the family could not ordinarily
mortgage, sell, or otherwise transact with their share of the property. According to legal rulings in the 1830s and 1840s,
the mere calculation of a son’s share was tantamount to
partition of the family and family property, amounting to
the dissolution of the existing
coparcenary and the founding of new coparcenaries. Indeed a son’s right to call for partition from his father during the latter’s
lifetime and against his will was a subject of considerable dispute, and in general the courts confirmed the rights of the
father against those of the son. Moreover, the courts confirmed that any economic support from the
joint family property provided for a boy’s education rendered any property he later acquired as a result of that education
joint family property. Thus, property that could be classified “self-acquired,” separate from joint family property and under
the individual’s control, remained an extremely narrow category during this period. This weighty union of interest was also
expressed in the colonial enforcement of the
inheritance of debts, a stipulation also drawn from the
Sanskrit textual authorities, that rendered sons liable for the debts of their fathers even if they did not inherit any property
from them (
Derrett
1968; Sturman
2005).
Starting in the 1860s, however, all of these terms began to change. The high courts began to treat
coparcenary
property as conceptually divisible into shares, with each male family member entitled to
mortgage or sell his share, while still remaining joint with the family. In
Bombay, the
Bombay
Hindu Heirs Relief Act of 1866 limited a son’s liability for his father’s debts to the amount of any property inherited from
him. And within a few decades, it became an accepted legal principle that a son had the right to call for
partition and claim his share of both moveable and immoveable property even against the wishes of his father.
10 In 1930, the
Hindu Gains of Learning Act rendered property a man acquired as a result of his education (for example, in the new
colonial professions), free from the claims of the
joint family, thereby dramatically expanding the category and mobility of “self-acquired” property. And perhaps most strikingly,
a ruling by the courts later in that decade reversed the underlying legal assumption that had prevailed throughout the operation
of colonial Hindu law: that property held by a joint Hindu family was presumed to be joint family property.
11 These historical shifts in the jural meaning of the joint Hindu family in some sense represented an emancipation of sons
from the burdens of family. While sons nonetheless remained subject to colonial Hindu law, court judgments on the application
of Hindu law to able-bodied
caste Hindu men increasingly came to treat those men as autonomous subjects of the state, and
personal law increasingly came to be associated with the particular disabilities of women.
The legal treatment of women (and of non-coparcener dependent subjects more generally) as
property holders was uneven. While women were excluded from the
coparcenary, the
Sanskrit corpus included a concept of “women’s wealth,” or
str
dhana, which had been defined differently by different
sm
ti writers and commentators. Although primarily consisting of gifts given to a girl on her marriage, some commentators also
included “gifts from affection” from her husband, property inherited from her mother or her father, and even property acquired
through purchase, finding, or her own labor. Yet the kinds of property it included and the nature of
ownership it entailed remained highly contested. As the legal scholars Raymond West and Georg Bühler cited one commentator
in their work on the legal opinions of
![](Images/e347.gif)
str![](Images/e299.gif)
s in the
Bombay Presidency (
1878: 64): “The question, what constitutes
Stridhana, the separate property of a married female, as well as its descent, are topics regarding which, as Kamalakara in
the Vivadatandava despairingly exclaims, ‘the lawyers fight tooth and nail,’ (yatra yuddham kachakachi). It is impossible
to reconcile with each other even the views of those lawyers whose works are the authorities in this Presidency.” Fundamentally,
even beyond the disputes among Sanskrit authorities, British conceptions that linked property and autonomy made it difficult
to square the meaning of
str
dhana with their notions of property rights, particularly given the notoriety of the passage of the
M
nava Dharma![](Images/e347.gif)
stra that rendered females subject to perpetual tutelage. Although the
Bombay courts were widely viewed as granting daughters and sisters a more favorable position in the order of
succession and stronger powers of ownership than in other presidencies,
12 these were to some extent weakened from the turn of the twentieth century, bringing
Bombay in line with the more restrictive treatment of
str
dhana in the other presidencies (Sturman
2005).
In a separate category altogether, never treated as part of
str
dhana, was the
property a widow inherited from her husband. Indeed, the unevenness in the legal treatment of women perhaps emerges most conspicuously
in the case of
caste Hindu widows, whom
colonial officials frequently considered the most abject subjects. On the one hand, the courts treated them as exceptional
and incomplete owners, importing the British legal concept of the “
widow’s estate,” in which the widow was conceptualized as a placeholder, a tenant-for-life, until the property “reverted”
to her husband’s heirs upon her death. Likewise, the courts formulated widows and deserted wives’
right to
maintenance as based in their non-autonomy and permanent legal dependence (Agnes
1999; Kapur and Cossman
1996). And yet the same notions of liberal property rights and of the rights-bearing subject that came to shape the legal treatment
of Hindu men in the late nineteenth century also came to pervade legal practice relating to women. Most strikingly, the Hindu
widow inheriting from her husband gradually came to be defined as a “full owner” bearing all the rights of
ownership, with the sole limitation that her alienation of immoveable property made without legal necessity was voidable at
law. Ironically, this legal position was essentially congruent with the treatment of Hindu men under early colonial Hindu
law (Sturman
2005). As caste Hindu men were increasingly treated as autonomous property holders, this expansion of Hindu widows’ rights under
colonial Hindu law took on an asymptotic quality: with the widow ever approaching but never quite attaining the legal position
of Hindu men. Such an asymptotic expansion of rights was, and is, characteristic of modern liberal states, as claims to equality
inherently reinforce the difference they aim to eradicate (U. Mehta
1999; Povinelli
2002; Scott
1996).
What is most significant about this historical process, then, is that it occurred within the domain of
personal law. In other words,
colonial Hindu law was pervaded by the logics (and the contradictions) of liberalism and its concepts of
property, of rights, and of the rights-bearing subject. Indeed, by the early twentieth century, topics of Hindu law that the
courts had earlier treated as fundamentally matters of spiritual concern, such as
adoption (to provide a lineal male heir when a man had none), came to be treated as essentially secular acts in which
ritual counted little and the conveyance of property was of equal if not greater concern.
13 In this sense, a transformation occurred within the content and practice of colonial Hindu law, bringing Hindu law increasingly
into line with the secular
civil law of the colonial state.