Chapter 5 Marriage and family in colonial Hindu law

Rachel Sturman
The title of this chapter suggests a particular approach to the study of law, in which legal systems are examined for their treatment of a given subject, for example, race in American law, lunacy in medieval French law, or, in this case, marriage and the family in colonial Hindu law. While I will certainly provide such an analysis, I propose to do so through a somewhat different exploration: of marriage and family as colonial Hindu law. Marriage and family formed the core of colonial Hindu law both within contemporary legal scholarship and in the actual adjudication of the courts. Attending to this centrality of the family enables a more serious reflection both on the system of colonial Hindu law as a component of the modern colonial state, and on its implications for those who were subject to its jurisdiction. Ultimately, the colonial state’s construal of Hindu law (as well as Muslim law) as primarily law of the family formed part of broader eighteenth- and nineteenth-century Western reformulations of the family and of religion as distinct from – and as objects of – state power. In the colonial context, religious law integrated aspects of Indian nomos,1 but it treated those elements as fundamentally external to the overarching values, principles, and beliefs of the state. This disjuncture led to the apotheosis of a paradoxical conceptualization of “Hindu law” as at once a narrow domain of “private” indigenous concerns inessential to matters of state interest, and as a morally and politically volatile arena that demanded state protection, attention and at times intervention.
If colonial religious law (also called “personal” law) was defined as essentially family law, however, this law primarily concerned the property rights and entitlements that the relations of family entailed. This centrality of property within colonial personal law linked it to the broader foundational connections that prevailed in British legal and political thought between property and legal capacity. Accordingly, the foundational assumptions of liberal thought came to pervade personal law, with the capacity to hold property and equal rights to property coming to signify autonomy, equality, and full legal subjecthood. In this context, because colonial personal law construed Hindus and Muslims, men and women, as different kinds of legal subjects with divergent rights and statuses enforced by the state, the rights of property and personhood within personal law became a critical idiom for new political claims.
This chapter begins by questioning why colonial Hindu law was defined as essentially family law, and by considering the nature of colonial Hindu law as a system of religious law operating within the overarching civil law of the colonial state. It then turns to the actual treatment of marriage and the family within colonial Hindu law. Finally, it addresses the politics and politicization of colonial Hindu law, especially the intertwined politics of gender and of religious community, which have had significant legacies up to the present.

Colonial Hindu law as structure and system

Colonial Hindu law was a system of civil law that applied to persons from the Indian subcontinent who were not Muslim, Christian, Jewish, or Parsi. Thus, in addition to those denominated “Hindu,” Hindu law applied also to Sikhs, Jains, and Buddhists. Hindu and Muslim law were the two systems of “personal” law (so called because it was based on personal, or ascriptive, status regardless of territorial location) recognized by the British.2 In addition to personal law, secular civil as well as criminal law applied to all matters outside the cognizance of personal law and to all those subject to the territorial jurisdiction of British India. As Rosane Rocher describes in this volume, this system was originally formulated by Warren Hastings, in his 1772 “Plan for the Administration of Justice,” which provided the foundation for the judicial system he put in place as first governor-general of India. In Hastings’s renowned words, “in all suits regarding inheritance, marriage, caste, and other religious usages, or institutions, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to Gentoos [Hindus], shall be invariably adhered to” (Ilbert 1915: 278). Hastings’s formulation established the colonial legal system as a plural legal regime, in the sense that it involved the coexistence of multiple domains or legal orders exerting regulatory power through practices of adjudication and sanction (e.g., the overlapping jurisdictions of secular and personal civil law within the colonial state), but this entailed a quite limited form of legal pluralism (Griffiths 1986; Merry 1988; Moore 1973; Teubner 1992). Although the colonial state recognized the operation of what it considered Indian religious laws in certain matters, it took over the role of applying those laws. In this sense, as Lauren Benton has described (2002: 28, 127–52), this colonial form of legal pluralism involved an abridgment of earlier forms of legal pluralism that had previously prevailed both in Europe and in the now-colonized regions, and their replacement by a state-centered legal order. In this sense, it marked a fundamental shift in the treatment of preexisting nomothetic sensibilities and practices. Although the colonial claim that it preserved and applied Indian religious (and eventually also customary) law was critical to British claims to legitimacy in India,3 one of the central operations of colonial personal law was to distinguish what constituted “law” and would be enforceable by the state from what would be subject merely to social, religious, or moral sanction. If, as legal scholars argue, the distinction between law and morality forms a feature of all legal systems, nonetheless, under British rule, law became tied to state power in fundamentally new ways. This was a long and uneven process, in which the establishment of particular normative dictates, conventions, and regulatory practices as integral to the state system of personal law, and the separation of others from the state, constituted a critical facet of the colonial legal formation.
Indeed, as many scholars have recognized, despite the originary principle articulated by Hastings that the colonial power would preserve Indian religious laws and hence refrain from intervening in matters relating to religion, caste, and the family, in fact, the colonial state both intentionally and unintentionally regularly intervened in such matters (Carroll 1983; Chakravarti 1998; Cohn 1996c; Derrett 1976–8, vols. II and III; Galanter 1989). This intervention was in some sense inevitable in a system where matters of personal law were adjudicated by the state. Had the colonial state defined the jurisdiction of its courts to exclude matters of personal law altogether, in a form of legal pluralism that left such matters to the adjudication of caste, village, or other corporate bodies, the vicissitudes of colonial personal law would have taken a different shape (although, as the example of indirect rule in Africa suggests, one no less colonial). What colonial personal law in fact entailed was a system in which (as we will see, specific elite versions of) societal nomos were incorporated into regular state practice, but in a separate legal domain. Another way of conceptualizing this is that the colonial legal arena configured personal law as a separate legal domain within the overarching jurisdiction of the state.
Returning to the question of why the family formed the most insistent and nearly exclusive focus of colonial personal law, scholars who have addressed this issue have pointed to a number of factors. J. D. M. Derrett’s work has shown how topics such as adoption, partition, and inheritance had gained in importance in the late medieval Sanskrit textual corpus, pointing to a precolonial centrality of these issues (Derrett 1962a: 36). He also noted that the colonial formulation of personal law was based on the model of ecclesiastical courts in England, which had jurisdiction over probate and matrimonial disputes (Derrett 1968: 233). From another perspective, David Washbrook (1981) has suggested that the interests of a capitalist economy structured the colonial treatment of property, while, somewhat covertly and paradoxically, in the arena of personal law, the colonial state bolstered premodern forms of social power, including those of family and community. These various explanations provide important elements toward understanding the curious content of colonial Hindu law. Yet a crucial – if long unquestioned – part of this story also involves the early modern and modern British formulation of religion as potentially distinct from and subordinate to the state, and of the family as object of, rather than model for, sovereign power (Foucault 1991). These shifts may be understood as part of the crucial reformulation of the classical Western distinction between public and private, in all its complexity, during this era (McKeon 2005; Weintraub 1997). In this sense, the colonial formation of Hindu law as the law of marriage and family involved a conceptual doubling of the Western categorization (itself ever-incomplete) of religion as private with the powerful fiction of marriage and family as quintessential areas of private life. Such a conceptualization of religion as a category in itself and as separate from the primary functions of the state was a relatively recent formulation in the West and had never formed part of South Asian thought. Yet these Western formulations were also fictions and incomplete because, despite their positive power, in fact the British state both at home and in the empire always presumed (Christian) religious principles (indeed, Anglicanism remained the Church of England) and always regulated and intervened in relations of marriage and family.
In denominating marriage and family as the primary subjects of religious law, the colonial power both claimed to be attending to the affective significance of these matters for Indians, and also subjected them to state scrutiny and jurisdiction. This involved a fundamental reformulation of politics in South Asia. According to Chatterjee (2004: 3–45), the family in India only emerged as such with the depoliticization of the power and capital generated by elite households, which had earlier formed the quintessential site of politics. Yet this colonial treatment of the family as external to primary matters of political power and interest did not involve the removal of marriage and family from state oversight, but rather, a determination that such oversight would occur through the lens of personal law. In the end, however, precisely because personal law was considered divergent from the foundational principles of the colonial state, that lens was itself never applied consistently. As we will see, throughout the nineteenth century, both criminal law and secular civil law injected new terms of legality into colonial Hindu law.
Hastings’s original formulation did not conceive of Hindu law as appropriate for the regulation of areas of social life beyond religion, caste, and the family, such as property or trade, despite the fact that both textual and customary traditions associated with Hinduism included dictates concerning all manner of social relations.4 And it was in the arena of property regulation that British law came to operate most powerfully in colonial India: British laws of contract, tort, insolvency, transfer of property, and the like came to shape property relations outside the family, especially following the establishment of Crown Rule in 1858. Yet colonial Hindu law also conceptualized the family as a property-holding unit and relations of family as jural relations of property and entitlement. It was a commonplace of colonial governance that property in India was primarily held by families or other corporate groups, and thus inherently involved personal law. Indeed, the several areas marked out by Hastings as subject to personal law were in fact treated differently: Matters relating to marriage and inheritance were subject to the jurisdiction of colonial personal law, whereas matters relating to caste status and religious prescription were largely excluded from the jurisdiction of the colonial courts, except insofar as they could be construed as relating to property (Derrett 1968: 290–1).5 Property thus occupied a place of central, if paradoxical, significance within both secular and religious civil law. Ultimately, the regulation of property and the enforcement of differential property rights under both personal and secular law produced differential legal subjecthood within the colonial state. This multivalence of property across personal and secular civil law would ultimately have profound effects on actual adjudication within colonial Hindu law.

The jurisprudence of marriage and family in colonial Hindu law

Colonial Hindu law in practice
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 (vyavasths) 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.
Marriage: gender and caste8
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.
Inheritance: defining the joint Hindu family form
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, Vijñnevara’s Mitkar, a late eleventh-century commentary on the Yjñavalkya Smti, was considered the primary textual authority, while in Bengal, Jmtavhana’s early twelfth-century Dyabhga was treated as primary.9 In areas governed by the Mitkar, 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 Mitkar, the father was accorded full power during his lifetime over both ancestral moveable and immoveable property, as well as over separate property. Under the Mitkar, 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).
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 strdhana, which had been defined differently by different smti 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 strs 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 strdhana with their notions of property rights, particularly given the notoriety of the passage of the Mnava Dharmastra 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 strdhana in the other presidencies (Sturman 2005).
In a separate category altogether, never treated as part of strdhana, 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.

The politics and politicization of colonial Hindu law

Colonial Hindu law involved the legal recognition of (a version of) Hindu societal values and practices, but the colonial power equally sought to bolster its legitimacy through a critique of Hindu law and society, carving out a role for itself as humanitarian savior of oppressed Hindu women (Mani 1998; Spivak 1988). As an aside, it is thus all the more ironic that the new social norms regarding marriage that the colonial state enforced under the rubric of Hindu law typically failed to have the envisioned liberating effect. But more importantly, the ethical claims of colonial Hindu law sat uneasily with the morality of the state. Gayatri Spivak’s famous characterization of colonial state ideology regarding the 1829 abolition of sat as “saving brown women from brown men” (1988) could thus be revised and extended in the more general context of colonial Hindu law in the following ventriloquism: “We will rule you by your own laws, but the debased nature of your own laws is precisely why we must rule you.” In other words, officials and institutions of the colonial state at once decried the immorality and oppression inherent in Hindu law, treated it as a primary reason for colonial governance, and insisted on enforcing it, as the law appropriate to this debased people.
Given its primacy in colonial ideology, it is not surprising that the “status of women” in Hindu society and the nature of Hindu marriage in particular came to form the core of a variety of efforts by Hindu elites to reclaim for themselves a moral terrain as the basis for political – and ultimately nationalist – claims. Yet it is crucial to recognize that this was so in large part because colonial formulations regarding the status of women meshed in important ways with powerful precolonial Indian ideologies in which women’s comportment signaled community status. Within both premodern and colonial Indian contexts, women’s comportment was key to differentiating Hindu from non-Hindu, elite Hindu from non-elite Hindu, as well as status within a given community (Chakravarti 1998; T. Sarkar 2001); to these, the colonial context added an emphasis on gender itself, construing “woman” as a universal category in relationship to that of men, rather than as a signifier of a variety of social distinctions. These related British and Indian significations gave the image of women a complex symbolic weight within public debates. In this context, Hindu reformers and eventually reformist nationalists sought to transform the treatment of women within Hindu society as the means to national liberation, pushing the colonial state to enact measures such as ending elite prohibitions on widow remarriage, eradicating female infanticide, and raising the age of consent. (The colonial state enacted legislation on each of these issues in 1856, 1871, and 1891 respectively.) In contrast, Hindu conservatives and conservative nationalists sought to preserve the ethical claims of customary practices that revolved around women’s modesty and chastity, demanding exclusive control over the putatively private domains of religion and family as the original terrain of national sovereignty. Partha Chatterjee’s influential treatment of this history, aiming to explain the depoliticization of the “woman question” at the turn of the twentieth century, points to a process of “nationalist resolution,” in which reformist and conservative nationalists converged in construing the inner domain of the family as their own sovereign territory, not to be encroached by the colonial state (Chatterjee 1990). Bal Gangadhar Tilak’s albeit highly contentious public campaign against the 1891 Age of Consent Bill (which raised the age of consent for girls from ten to twelve years of age) forms a signal example of this. Yet in fact all the parties to these debates sought state enforcement of (their vision of) Hindu law. They did not seek a state withdrawal from governance of marriage and the family. Moreover, as Mrinalini Sinha has argued, during the twentieth-century interwar era, anticolonial nationalists and Indian feminists shifted the earlier nationalist treatment of the “women’s question,” even as they also reconceptualized the prevailing colonial ideology that India’s maltreatment of women mandated its political subordination. Instead, they argued that Indian women’s subjection was a product of India’s political abjection, making the social liberation of Indian women (as a universal category) conditional on the political liberation of the Indian nation (Sinha 2006). Although this argument lost force in the context of communal politics in the early 1940s, it posited what would become an ongoing critical legacy in the postcolonial era: As enshrined in the Indian Constitution, women are legally conceptualized as a universal category, and at the same time they are legally differentiated as subjects with divergent rights according to gender and religion under the jurisdiction of personal law.
By the 1930s, colonial Hindu law entailed a modern religious law. At the level of form, Hindu law had become subject to new modes of bureaucratic rationality, as seen in the development of case law, legal reporting, citational practices, and the like. Although efforts at codification in the early 1940s foundered, these efforts themselves bespeak the extent to which Hindu law formed an integral part of modern state practice.14 More significantly, because personal law rendered Hindu and Muslim identities the terms of recognition by the state – that is, people came before the state as Hindu or Muslim legal subjects – it became a critical site of politicization.15 In this context, Hindu law was defined by the colonial state and tied to state power, while the actual beliefs that were meaningful to those denominated Hindu remained largely irrelevant to the state.
Like all legal systems, colonial Hindu law operated not merely as a system of adjudication, but also as symbolic of broader moral claims, in this case coming to stand for the status and strength variously of the community, nation, or civilization in relationship to the colonial state. Colonial Hindu law singled out the family, and ultimately women, as the symbolic terrain of Indian nomos. It posited gender (rather than caste or sect) as the primary distinction among persons subject to Hindu law, and it utilized the gendered nature of legal subjecthood and rights within Hindu and Muslim personal law to distinguish these religious communities. Ironically, although by the late colonial era the changes that had occurred in the jurisprudence of Hindu property and families had in fact begun to undermine the characterization of Hindu law as representing a separate domain of Hindu social life, by the early decades of the twentieth century the symbolic significance of Hindu law as the domain of the nation and civilization had become amplified within public debate. Colonial British and Indian treatment of marriage and family as the essence of Hindu law thus rendered this putatively private domain a primary terrain of politics.
1 Defined in the Oxford English Dictionary as “the law; the principles governing human conduct, esp. as defined by culture or custom” (OED online, accessed September 12, 2007).
2 Parsi family law was also codified in 1865.
3 See Rosane Rocher’s chapter in this volume.
4 See Donald Davis’s chapter in this volume.
5 The question of colonial jurisdiction over disputes involving caste honors and perquisites was decided somewhat differently in the courts of the different presidencies. See Mulla (1901).
6 Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy (1886), ILR 10 Bom 528.
7 Reg. v. Sambhu Raghu (1876), ILR 1 Bom 347; Mathura Naikin v. Esu Naikin (1880), ILR 4 Bom 545; Tara v. Krishna (1907), ILR 31 Bom 495; Jagannath Raghunath v. Narayan Shethe (1910), ILR 34 Bom 553.
8 Evidence for the discussion in this and the next subsection is drawn primarily from research on the Bombay Presidency.
9 On this, see Rosane Rocher’s chapter in this volume.
10 Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy (1886), ILR 10 Bom 528.
11 Babubhai Girdharlal v. Girdharlal Hargovandas (1937), 61 Bom 708.
12 For two important cases defining the rights of daughters and of widows, see Pranjivandas Tulsidas v. Devkuvarbai (1859), 1 Bom HCR 130; Bhagirthibai v. Kahnujirav (1886), ILR 11 Bom 285.
13 Lakshmibai v. Ramchandra (1896), ILR 22 Bom 590; Anandi Pai v. Hari Suba Pai (1909), ILR 33 Bom 404.
14 See the chapter by Williams in this volume.
15 See the chapters by Narula and Jenkins in this volume.