Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (54 page)

102
. This requirement was in Section 536 of the Code of 1872, in Section 488 of its successor Code of 1898, and in a changed form in Section 125–8 of the Code of 1973.

103
. These customs varied in the voice they gave women in the divorce process, and the compensation they provided them on divorce.

104
. Agnes 1999, 46–52 discusses some of the relevant case law.

105
. The Law Minister and parliamentarians emphasized the implications of this change for the maintenance provisions applicable to Muslims. Parashar 1992, 164–68. But Menski 2003, 486–87 indicated that it also addressed the limitations of Hindu maintenance law.

106
. Glendon 1987 noted this trend in the West.

107
. Agnes 2011b.

108
. Litigants also disputed the maintenance entitlements of men and individuals with matrimonial faults, as well as the extent of maintenance payments, the status of extrajudicial deeds in which individuals relinquish maintenance claims on their spouses, and the constitutional status of various statutory maintenance provisions. For a discussion of the varied case law on these issues, see Agnes 2011b, 117–42, 164–207; Menski 2001, 261–75; 2003, 508–22, 535–42.

109
.
Sree Raja Row Boochee Tummiah v. Sree Raja Row Venkata Neeladry Rao
(1805–47);
Viraswami Chetty v. Appaswami Chetty
(1864);
Pullamma v. Thatalingam
(1945).

110
.
Sobhanadramma v. Varaha Lakshmi Narasimhaswami
(1934);
Vellayammal v. Ramaswami Naicken
(1934);
Rukmani Ammal v. T. R. S. Chari
(1935);
Mt. Lajwanti v. Bakshi Ram
(1935);
Seethayamma v. Venkataramana
(1940).

111
.
Musunuru Nagendramma v. Musunuru Ramakotayya
(1953) applied this feature of the HMWRSRMA retrospectively, and interpreted certain Hindu legal classics to uphold the man’s obligation to support his wife while she lived apart from him if he superseded her due to no matrimonial fault of hers, to marry another woman. (So did
Lakshmi Ammal v. Narayanaswami Naicker
(1950), without claiming support in classical Hindu law). But in
Kasubai v. Bhagwan Bhagaji Wanjari
(1955), the court argued against such a view of classical Hindu law and held the HMWRSRMA to enable separate maintenance only if the later marriage happened after the act’s passage, and other courts came to the same conclusion without engaging Hindu classics in
Mt. Sukhribai v. Pohkalsingh
(1950) and
Ram Parkash v. Shrimati Savitri Devi
(1957) at 519.

112
.
Viramallu Swarajya Lakshmi Mancharamma v. Viramallu Satyanarayana
(1950).

113
.
Savithramma v. Ramanarasimhaiah
(1962);
A. P. K. Narayanaswami Reddiar v. Padmanabhan
(1966);
Banshidhar Jha v. Chhabi Chatterjee
(1967);
Pothula Manika Reddy v. Government of A. P
. (1978);
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
(1988); and
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
(1982) at 298. The last two were the rulings of the Supreme Court and the Bombay High Court respectively on the same dispute.

114
. Menski 2003, 511–12.

115
.
Bajirao Raghoba Tambre v. Tolanbai
(1980).

116
. Menski 2001, 146, 224, 262; 2003, 395, 511; Agnes 2011b, 142

117
.
Rajeshbai v. Shantabai
(1981);
Shantaram Patil v. Dagubai Patil
(1987);
Rudramma v. H. R. Pattaveerabhadrappa
(1987);
Vaijayantabai Gangarde v. Keru Anant Gangarde
(1991);
Sarabjit Singh v. Charanjit Kaur
(1997);
Krishnakant Mulashankar Vyas v. Reena Krishna Vyas
(1999);
Smt. Reeta Bharat Arora v. Bharat Yasodanandan Arora @ Dhingra
(2002);
Rameshchandra Daga
(2005).

118
. Such assumptions were made about Muslim marriages in
Khajah Hidayut Oollah v. Rai Jan Khanum
(1844) and
Mohabbat Ali Khan v. Mahomed Ibrahim Khan
(1929). Similar claims were made about Hindu marriages in
Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy
(1927);
Nandamani Ananga Bhima Deo v. Suseela Mala Patta Mahadevi
(1932);
Shivalingiah
(1956);
Badri Prasad v. Dy Director of Consolidation
(1978);
Ramesh Chander Kaushal v. Veena Kaushal & Ors
. (1978); and
Boli Narajan Pawye v. Shiddeswari Morang
(1981).

119
. Many of the cases Agnes cited to illustrate this trend (e.g.,
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav
(1988) and
Savitaben Somabhai Bhatiya v. State of Gujarat
(2005)) continued the long-standing practice of denying such women maintenance under criminal law, rather than ruling with reference to Hindu law.

120
. In
D. Velusamy v. D. Patchaiammal
(2010), the Supreme Court ruled that the PWDVA applies only to marital or quasi-marital relationships, rather than to the relationship of a man with a “
‘keep’ whom he maintains financially and uses mainly for sexual purpose (sic) and/or as a servant.”

121
. Agarwal 1995, 1998, 2008; Sivaramayya 1997, 1999.

122
. Rocher 1972 and Cohn 1996, 57–75 showed that the application of particular schools of Hindu law and subschools of Mitakshara law, based on specific commentaries on the
Yajnavalkya Smriti
, to certain regions and groups was a product of the colonial
encounter. The school relevant to an individual depended more on the region where his ancestors originated than on the region of his residence.

123
. The executive and legislature did not highlight this aspect of Section 15 when they framed the HSA in the 1950s, but judges did in
Ayi Ammal v. Subramania Asari
(1966).

124
. Agarwal 1995, 222.

125
. For further details, see: Agarwal 2008, 312–17; Sivaramayya 1997.

126
.
Narasimhamurthy v. Sushilabai
(1996).

127
.
Shiramabai v. Kalgonda Bhimgonda
(1964);
P. Govinda Reddy v. Golla Obulamma
(1971);
Yethirejulu Neelaya v. Mudummuru Ramaswami
(1973).

128
. This interpretation was adopted thereafter in
Ananda Naik v. Haribandhu Naik
(1967);
Vidyaben v. Jagdishchandra Nandshankar Bhatt
(1972); and
Sushilabai Ramchandra Kulkarni v. Narayanrao Gopalrao Deshpande
(1975).

129
. Parashar 1992, 110–11, 125–29; Newbigin 2009, 2010, 2011.

130
. This change was mainly meant to encourage more Hindu couples to opt for the SMA by applying Hindu law to the inheritance of their property.

131
. Committee on the Status of Women in India 1975; India. National Commission for Women 1995; Agarwal, Sivaramayya, and Sarkar 1998.

132
. Sections 3 to 6 of the Kerala Act were similar to Sections 86 to 89 of this version of the HCB. Section 4(1) said that “all members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common” and Section 4(2) that “all members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place.”

The Madras Marumakkathayam Act, the Madras Aliyasanthana Act, the Travancore Nayar Act, the Travancore Ezhava Act, the Nanjinad Vellala Act, the Travancore Kshatriya Act, the Travancore Krishnavaka Marumakkathayee Act, the Cochin Thiyya Act, the Cochin Nayar Act, the Cochin Marumakkathayam Act, and the Kerala Nambudiri Act recognized Kerala’s matrilineal systems, in somewhat changed forms. Agarwal 1995, 168–80, Fuller 1976, and Arunima 2003 discuss matrilineal practices and their relationship to legislation in Kerala since the early colonial period.

133
. Sivaramayya 1997; Agarwal 2008; Parameswaran Moothath 1973.

134
. Many
shastras
recommended that the inheritance rights of unmarried daughters be greater than those of married daughters. Among the major commentaries that influenced colonial law, Jimutavahana’s
Dayabhaga
recommended that unmarried daughters receive only shares that would cover their wedding expenses, but Vijnaneswara’s
Mitakshara
suggested that they get more.

135
.
Pulla Reddy v. I. Seshi Reddy
(1987);
S. Sai Reddy v. S. Narayana Reddy
(1991);
G. Valli alias Rayaprolu v. State of Andhra Pradesh
(2003);
Merla Narayudu v. M. Bramaramba
(2006);
Sugalabai v. Gundappa Adiveppa Maradi
(2007);
Prema v. Nanje Gowda
(2011); Lawyers Collective—Women’s Rights Initiative 2010a.

136
.
Sundarambal v. Deivanaayagam
(1991);
Sheela Devi v. Lal Chand
(2007);
Valliammal v. Muniyappan
(2008); and
S. Seshachalam v. S. Deenadayalan
(2009); Lawyers Collective, Women’s Rights Initiative 2010a.

137
.
Smt. Nanjamma and Another v. State of Karnataka
(1999);
R. Mahalakshmi v. A. V. Anantharaman
(2009). However, a daughter married before the passage of the Karnakata amendment was deemed a coparcener because the case was pending when national legislation that made married daughters coparceners as well was passed, and the latter legislation took precedence over the former, in
Sugalabai v. Gundappa Adiveppa Maradi
(2007).

138
. Sivaramayya 1988.

139
. Agarwal 2008.

140
. Matriliny is also widely prevalent in some of the smaller states of northeast India, but Hindu law is less relevant there because tribal customary laws govern much of the region’s population, particularly in Meghalaya, Mizoram, Manipur, Nagaland, and Arunachal Pradesh.

141
. For a discussion of Kerala politics, see Nossiter 1982. For the Telugu Desam, see Reddy 1989. For the DMK and the AIADMK, see Subramanian 1999. Interviews, D. Purandeswari (daughter of Telugu Desam’s founding leader, N. T. Rama Rao, currently a Congress Party MP); Justice M. Jagannadha Rao (Justice of Andhra Pradesh High Court, 1982–91, and Chair of Law Commission, 2002–2006); Justice P. A. Choudary (Justice of Andhra Pradesh High Court, 1980–95); Pappa Umanath (of the CPI-M, who welcomed the amendment in the Tamil Nadu legislative assembly); P. H. Pandian (AIADMK); Durai Murugan (DMK; Law Minister of Tamil Nadu, 2006–11).

142
. Tamil Nadu. Legislative Assembly 1989 (6 May), 418–67.

143
. Uttar Pradesh Land Laws (Amendment) Act, 1982; Agarwal 2008, 339.

144
. India. National Commission for Women 1997; India. Ministry of Law. Law Commission of India 2000;
The Observer
2000;
The Hindu
2000;
The Tribune
2000.

145
. The responses were not entirely consistent. While a definite majority recommended the dissolution of coparcenaries, a plurality favored the adoption of the Andhra Pradesh precedent rather than the Kerala model although coparcenaries were dissolved only in Kerala. Moreover, only a slight majority favored enabling married daughters to reside in the ancestral home. However, most who wished to retain joint property wanted to make daughters and mothers coparceners, and to protect widows’ rights to reside in the ancestral home.

146
. The Chair of the Commission that presented the Report, Justice B. P. Jeevan Reddy, adopted a more cautious approach than some other members, notably Justice Leila Seth. Interviews, Justices B. P. Jeevan Reddy; Leila Seth.

147
. India. Ministry of Law. Law Commission of India 2000.

148
. The Hindu Succession (Amendment) Bill, 2004.

149
. She carefully documented various steps in this process in Agarwal 2007, and generously shared with me these documents and her insights on the pro cess. I am also grateful to E. M. Sudarsana Natchiappan, Chair of the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, for giving me access to the committee’s proceedings, and informing me of other discussions of this initiative.

150
. Agarwal 2007, 30–45; Although only the AIWC enjoyed significant support across India, many other organizations involved in the process had carved niches for themselves in the fields of women’s rights, child rights, agrarian development, housing and land rights, lower caste rights, legal reform, workers and peasants’ rights, and civil liberties.

151
. Agarwal 2005a; 2005b; 2007, 1; Saheli 2005; Interviews, Sudha Sundararaman, General Secretary, AIDWA; Subhashini Ali, President, AIDWA; Kirti Singh, Legal Convenor, AIDWA; Pramila Loomba, Vice-President, NFIW; Colin Gonsalves, Founder, Human Rights Law Network.

152
. Agarwal 2008.

153
. T. K. Viswanathan, Secretary, Ministry of Law and Justice, also said to the committee: “The Law Commission noted that women who are already married would have taken their share by way of dowry, jewellery and other things.” Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2005.

154
. Agarwal 2005a; 2005b; 2008, 346; Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2005; Interviews, Bina Agarwal; Kirti Singh; Pramila Loomba; E. M. Sudarsana Natchiappan.

155
. Panda and Agarwal 2005; Deininger, Nagarajan and Goyal 2010.

156
. Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice 2005; LSD 2005; Report of the Standing Committee of Parliament on Law and Justice: Hindu Succession Amendment Bill 2005.