Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Page A
Authors: Narendra Subramanian
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of his matrimonial home, although his company operated in both towns unlike the city corporation that employed his wife. In both cases, the woman earned more than her husband and had supported their child while living onher own. In
L. Mallya Naika v. Somli Bai
(1978), the Karnataka High Court dismissed the petitions of two brothers for the sisters whom they married to live with them, because the brothers’ choice to live away from their father-in-law’s home was contrary to the custom of
illatom
adoption prevalent among certain southern Indian castes. This custom involves a man without a son adopting a man as his son-in-law and giving him a son’s share in his property, in return for the latter marrying one of the adopter’s daughters, living in his father-in-law’s home, and helping manage his property. The court recognized this custom because the HMA did not specify contrary rules for the location of the matrimonial home, but also pointed out that its decree was in keeping with the recent trend of deciding restitution cases in light of the spouses’ relative economic status. In
Smt. A. v. Sri B
. (1990), the woman had given up jobs a few times and found other jobs in the towns to which her husband’s company transferred him, but had become reluctant to repeat the process to live with her husband near his current place of work. The Bombay High Court found her attitude reasonable, as the parties were “equal partners having independent earnings” and dismissed her husband’s divorce petition based on desertion and cruelty.
The above cases indicate a change in the attitudes of judges regarding the authority of spouses in determining the location of the matrimonial home, but the judiciary remains more divided on this question than Agnes suggested. Some courts continued to follow the earlier patterns. This was especially true of the Punjab and Haryana High Court, which rejected constitutional challenges to
Kailash Wati
in the 1980s and 1990s that attempted to use the
Swaraj Garg
precedent, and ordered women with jobs in other towns to live with their husbands in
Pritam Kaur v. Surjit Singh
(1984),
Smt. Sumitra Devi v. Narender Singh
(1993) and
Sundari Devi v. Ram Lal
(1995) although the spouses had not agreed on the location of the matrimonial home in these cases. This court granted the man a divorce on the ground of cruelty in
Sundari Devi
although the couple lived in nearby towns where they had jobs even before they got married. Its approach might reflect the predominance of virilocality and village exogamy in northwestern India. The Supreme Court has not had the occasion to adopt a definitive approach to the location of the matrimonial home.
III. MAINTENANCE RIGHTS AND OBLIGATIONS
Claims to maintenance often arise in connection with divorce and judicial separation cases, for support both during and after the consideration of these cases. The majority of successful claimants are women and children, but courts also order support for young adults without income whose parents are engaged in matrimonial disputes, and occasionally for the men involved in these disputes. We earlier considered how courts responded to maintenance claims associated with petitions for divorce and to restore conjugal rights. This section places that discussion in the context of the ongoing formation of maintenance law.
The
shastras
and precolonial commentaries on these texts placed obligations on Hindu men to provide their wives maintenance through the latter’s lives, obligations that they transferred to the men’s heirs after their death. In return, they expected women not to have other sexual partners, both during and after their husbands’ lives. These norms usually went hand in hand with the prohibition of divorce and widow remarriage, and especially governed the upper castes. The maintenance rights of women could assume the form of an entitlement to a share in the husband’s property, including his share in ancestral
L. Mallya Naika v. Somli Bai
(1978), the Karnataka High Court dismissed the petitions of two brothers for the sisters whom they married to live with them, because the brothers’ choice to live away from their father-in-law’s home was contrary to the custom of
illatom
adoption prevalent among certain southern Indian castes. This custom involves a man without a son adopting a man as his son-in-law and giving him a son’s share in his property, in return for the latter marrying one of the adopter’s daughters, living in his father-in-law’s home, and helping manage his property. The court recognized this custom because the HMA did not specify contrary rules for the location of the matrimonial home, but also pointed out that its decree was in keeping with the recent trend of deciding restitution cases in light of the spouses’ relative economic status. In
Smt. A. v. Sri B
. (1990), the woman had given up jobs a few times and found other jobs in the towns to which her husband’s company transferred him, but had become reluctant to repeat the process to live with her husband near his current place of work. The Bombay High Court found her attitude reasonable, as the parties were “equal partners having independent earnings” and dismissed her husband’s divorce petition based on desertion and cruelty.
The above cases indicate a change in the attitudes of judges regarding the authority of spouses in determining the location of the matrimonial home, but the judiciary remains more divided on this question than Agnes suggested. Some courts continued to follow the earlier patterns. This was especially true of the Punjab and Haryana High Court, which rejected constitutional challenges to
Kailash Wati
in the 1980s and 1990s that attempted to use the
Swaraj Garg
precedent, and ordered women with jobs in other towns to live with their husbands in
Pritam Kaur v. Surjit Singh
(1984),
Smt. Sumitra Devi v. Narender Singh
(1993) and
Sundari Devi v. Ram Lal
(1995) although the spouses had not agreed on the location of the matrimonial home in these cases. This court granted the man a divorce on the ground of cruelty in
Sundari Devi
although the couple lived in nearby towns where they had jobs even before they got married. Its approach might reflect the predominance of virilocality and village exogamy in northwestern India. The Supreme Court has not had the occasion to adopt a definitive approach to the location of the matrimonial home.
III. MAINTENANCE RIGHTS AND OBLIGATIONS
Claims to maintenance often arise in connection with divorce and judicial separation cases, for support both during and after the consideration of these cases. The majority of successful claimants are women and children, but courts also order support for young adults without income whose parents are engaged in matrimonial disputes, and occasionally for the men involved in these disputes. We earlier considered how courts responded to maintenance claims associated with petitions for divorce and to restore conjugal rights. This section places that discussion in the context of the ongoing formation of maintenance law.
The
shastras
and precolonial commentaries on these texts placed obligations on Hindu men to provide their wives maintenance through the latter’s lives, obligations that they transferred to the men’s heirs after their death. In return, they expected women not to have other sexual partners, both during and after their husbands’ lives. These norms usually went hand in hand with the prohibition of divorce and widow remarriage, and especially governed the upper castes. The maintenance rights of women could assume the form of an entitlement to a share in the husband’s property, including his share in ancestral
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