Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Page B
Authors: Narendra Subramanian
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property.
Shastric
traditions also recognized the maintenance claims of women in nonmarital conjugal relationships, especially those accorded the status of
avurudha stree
(permanent concubine), but these claims were typically weaker than those of wives.
Shastric
norms coexisted with the extensive practice of divorce and remarriage, as we saw. Among groups with these customs, the obligation to support divorcées was usually placed on their natal families or later husbands, the responsibility of the former husbands being restricted to a reimbursement of the woman’s wedding expenses. Aside from the maintenance provided by their husbands, their husbands’ families, and their natal families, divorced, separated, and widowed women could draw on their
stridhanam
(woman’s property), which primarily comprised the dower and gifts that they received when they got married, but in some Hindu traditions also included a specific share of family property. 101
Rules regarding the maintenance of wives and children were made more uniform and codified under colonial rule, and the claims of divorcées and the scope of
stridhanam
were restricted. When a Code of Criminal Procedureapplicable to all religious groups was adopted in 1872, it required men to support their wives and children, both legitimate and illegitimate. 102 Women could live apart from their husbands while they derived such maintenance under various circumstances. As these provisions did not apply to divorced women, Muslim men could end their wives’ economic claims on them by divorcing them, and many Hindu men belonging to groups with recognized divorce customs could limit such claims similarly. 103 Moreover, various forms of women’s property were recast as “limited estate,” which women had the right to enjoy during their lifetimes, but not to sell (other than in special circumstances), donate, or devolve to their heirs. Colonial courts transferred much of the property that women inherited to the heirs of the people from whom they had inherited such property. 104 These changes were partly offset by the reinforcement of widows’ rights to inherit nonagricultural property as limited estate in the Hindu Women’s Right to Property Act of 1937, as well as the maintenance rights of women who live separately from their husbands due to the latter’s matrimonial faults in the Hindu Married Women’s Right to Separate Residence and Maintenance Act (HMWRSRMA) of 1946.
The Hindu law reform initiatives of the 1940s and 1950s focused on divorce and inheritance, rather than maintenance, and contestation was limited in parliament over the maintenance provisions of the HMA and the HAMA. Nevertheless, these acts departed from predominant colonial case law in certain ways. The HMA gave all Hindus divorce rights, and extended certain maintenance provisions of Hindu law to divorcées. Section 18 of the HAMA incorporated the entitlements to maintenance that the HMWRSRMA gave women if they lived apart from their husbands for a range of reasons. Moreover, Section 14 of the HSA made Hindu women full owners of the property they possessed, including property they received instead of maintenance payments, rather than the limited owners they had been in colonial law. Furthermore, the HMA gave women and men maintenance while they were in the midst of matrimonial litigation. The right to maintenance under both the HMA and the HAMA was contingent on the beneficiary not having other sexual partners, reflecting
shastric
understandings of reciprocal spousal responsibilities. The HAMA denied women this right if they had converted to a religion originating outside South Asia, adding to the disincentives that other policies provided for such conversion (which was, for instance, also aground for divorce or for a woman to live apart from her husband while claiming maintenance from him in Hindu law). The maintenance rights that wives enjoyed under the Code of Criminal Procedure were extended to divorced
Shastric
traditions also recognized the maintenance claims of women in nonmarital conjugal relationships, especially those accorded the status of
avurudha stree
(permanent concubine), but these claims were typically weaker than those of wives.
Shastric
norms coexisted with the extensive practice of divorce and remarriage, as we saw. Among groups with these customs, the obligation to support divorcées was usually placed on their natal families or later husbands, the responsibility of the former husbands being restricted to a reimbursement of the woman’s wedding expenses. Aside from the maintenance provided by their husbands, their husbands’ families, and their natal families, divorced, separated, and widowed women could draw on their
stridhanam
(woman’s property), which primarily comprised the dower and gifts that they received when they got married, but in some Hindu traditions also included a specific share of family property. 101
Rules regarding the maintenance of wives and children were made more uniform and codified under colonial rule, and the claims of divorcées and the scope of
stridhanam
were restricted. When a Code of Criminal Procedureapplicable to all religious groups was adopted in 1872, it required men to support their wives and children, both legitimate and illegitimate. 102 Women could live apart from their husbands while they derived such maintenance under various circumstances. As these provisions did not apply to divorced women, Muslim men could end their wives’ economic claims on them by divorcing them, and many Hindu men belonging to groups with recognized divorce customs could limit such claims similarly. 103 Moreover, various forms of women’s property were recast as “limited estate,” which women had the right to enjoy during their lifetimes, but not to sell (other than in special circumstances), donate, or devolve to their heirs. Colonial courts transferred much of the property that women inherited to the heirs of the people from whom they had inherited such property. 104 These changes were partly offset by the reinforcement of widows’ rights to inherit nonagricultural property as limited estate in the Hindu Women’s Right to Property Act of 1937, as well as the maintenance rights of women who live separately from their husbands due to the latter’s matrimonial faults in the Hindu Married Women’s Right to Separate Residence and Maintenance Act (HMWRSRMA) of 1946.
The Hindu law reform initiatives of the 1940s and 1950s focused on divorce and inheritance, rather than maintenance, and contestation was limited in parliament over the maintenance provisions of the HMA and the HAMA. Nevertheless, these acts departed from predominant colonial case law in certain ways. The HMA gave all Hindus divorce rights, and extended certain maintenance provisions of Hindu law to divorcées. Section 18 of the HAMA incorporated the entitlements to maintenance that the HMWRSRMA gave women if they lived apart from their husbands for a range of reasons. Moreover, Section 14 of the HSA made Hindu women full owners of the property they possessed, including property they received instead of maintenance payments, rather than the limited owners they had been in colonial law. Furthermore, the HMA gave women and men maintenance while they were in the midst of matrimonial litigation. The right to maintenance under both the HMA and the HAMA was contingent on the beneficiary not having other sexual partners, reflecting
shastric
understandings of reciprocal spousal responsibilities. The HAMA denied women this right if they had converted to a religion originating outside South Asia, adding to the disincentives that other policies provided for such conversion (which was, for instance, also aground for divorce or for a woman to live apart from her husband while claiming maintenance from him in Hindu law). The maintenance rights that wives enjoyed under the Code of Criminal Procedure were extended to divorced
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