Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (29 page)

Holden found that courts became far more willing in recent decades to recognize customary divorces and the subsequent marriages of the spouses, and to infer the validity of these practices from the earlier husband’s consent, his acceptance of compensation payments from the subsequent husband, or the recognition of the later marriages in the relevant communities.
⁷⁹
But they also became more wary of claims meant to deprive women of maintenance from the 1980s onward.
⁸⁰
The validation of customary divorces deprived women of maintenance claims on their former husbands only until 1973, after which ex-wives were also made eligible for maintenance.
⁸¹
But some men living apart from their wives attempted to get their wives’ divorces from their earlier husbands invalidated so that their own marriages would be declared void and they would thereby avoid maintenance obligations, and courts were more inclined to accept customary divorces in such contexts. They did so in
Rita Rani v. Ramesh Kumar
(1996) and
P. Mariammal v. Padmanabhan
(2001), making the woman eligible for maintenance from her later husband in the first case and eligible to inherit his property in the second. Even while rejecting a man’s customary divorce from an earlier wife and thus deeming his later marriage void, the Bombay High Court gave his later wife
maintenance from him, in her capacity as his mistress, in
Rajeshbai v. Shantabai
(1981); but the Andhra Pradesh High Court made the children from the later marriage ineligible to inherit jointly owned ancestral property as a result in
Edla Neelaya v. Edla Ramada alias Ramadas
(1995).
⁸²
The Bombay and Punjab and Haryana High Courts rejected men’s claims to have divorced their wives according to custom and recognized the women’s maintenance claims in
Jairam Somaji More v. Sindhubai
(1999) and
Rajesh Kumar Madaan v. Mrs. Mamta alias Veena
(2005) respectively. Moreover, the Kerala High Court specifically opined that divorce deeds in which women relinquish their maintenance claims are contrary to public policy in
Sadasivan Pillai v. Vijayalakshmi
(1986), and this rule was followed in various cases, including some involving customary divorce.
⁸³
But the dependence of a woman’s maintenance claim on the validity of the dissolution of her earlier marriage did not incline the court to accept that a divorce custom existed among Arora Khatris in
Asha Rani
(1995); nor did a woman’s conjugal rights depending on her earlier marriage having ended lead another court to recognize such a custom among Marwari Shwetambar Jains in
Virendra Kumar v. Preeta
(2009). Thus, the increased inclination of judges to grant women maintenance and conjugal rights (discussed later in this chapter) did not usually override their concern to recognize only divorce customs prevalent in the relevant group.

II. CONJUGAL RIGHTS

Churches and later states recognized individuals’ rights to their spouses’ conjugal company, initially to return women to their husbands’ authority and later to encourage the reconciliation of estranged spouses. In En gland, ecclesiastical courts initially enforced this right using the sanction of excommunication and state courts did so later with sanctions of imprisonment, fines, or attachment of property, until this practice was abandoned in 1970. Although neither Hindu nor Islamic legal traditions had recognized this right, the colonial courts enforced it among all Indians from the 1860s, initially with threats of imprisonment. This right was incorporated in the IDA (applied to Christians) in 1869, in the Parsi Marriage and Divorce Act in 1936, and in the SMA and the HMA in the 1950s. It was in tension with concerns to promote conjugal autonomy, particularly when restitution decrees ordered people back
into abusive relationships. Courts could either imprison or fine those who refused to obey restitution decrees or attach their property, and after independence usually attached their property or fined them. Poorer women were frequently unable to pay the price of disobeying restitution decrees.

Two women contested their husbands’ right to gain their conjugal company through judicial intervention, the first in the 1880s and the second nearly a century later. High courts initially accepted the responses of these women to restitution petitions, partly in the first case and completely in the second. However, both victories proved short-lived. In
Dadaji Bhikaji v. Rukhmabai
(1885–6), the Bombay High Court initially rejected the man’s petition to order his wife, to whom he had been married when she was a child, to begin a matrimonial life with him.
⁸⁴
It did so because restitution of conjugal rights had no foundation in Hindu law, which according to the woman’s lawyer saw marital functions as duties of imperfect obligation to be enforced only by religious sanction, and because the couple had never shared a home. But on appeal, a different bench of the same court granted a restitution decree and affirmed that courts should recognize the right of Hindus to such decrees.
⁸⁵
The courts interpreted Islamic law to consider men eligible for restitution decrees only if they had paid their wives their prompt dower.
⁸⁶
Many came to see restoration of conjugal rights as an expression of Hindu as well as Islamic conjugal norms thereafter—although in the vigorous debate over the
Rukhmabai
case, certain lawyers and publicists had highlighted that it was an English import that fit poorly with the widespread Indian practice of child marriages, which could not involve the parties’ considered consent. As a result, the Hindu Law Committee of 1941 foresaw no objections to its incorporation into statutory Hindu law; the parliamentarians who opposed this incorporation in the 1950s said they were advocating the replacement of a “barbaric relic of the [presumably Indian] past” with laws reflecting emergent visions of companionate marriage, but failed partly because they neglected to ground their positions in indigenous norms.
⁸⁷

Litigants resisted restitution petitions for a century after
Dadaji Bhikaji
by offering reasons for withdrawing from their spouse’s company, rather than by challenging the state’s authority to enforce cohabitation.
⁸⁸
Until 1976, their success depended on their showing that their spouses exhibited matrimonial faults that would warrant divorce or judicial separation. Courts oc
casionally noted the discord between restoring conjugal rights and Hindu legal traditions, for instance in
Bai Jiva v. Narsingh Lalbhai
(1927) and
Rukmani Ammal v. T.R.S. Chari
(1935). But neither these courts nor any others refused restitution decrees for this reason until the 1980s, when a high court decided
T. Sareetha v. T. Venkata Subbiah
(1983).
⁸⁹

In 1981, Sareetha, an important film actress, resisted the efforts of her husband, who had objected to her career and stopped living and dealing with her for this reason a few months after they got married, to share in the wealth and prestige she had acquired in the meantime by regaining her conjugal company. She did so by challenging the constitutionality of Section 9 of the HMA, concerning restitution of conjugal rights. A single-judge bench of the Andhra Pradesh High Court upheld her challenge because it found restitution of conjugal rights contrary to the constitutional rights to personal liberty, privacy, and human dignity. It declared that forcing a woman to return to her husband’s company when she might be contemplating divorce would deprive her of “her choice over when and by whom the various parts of her body should be allowed to be sensed.” In so far as a return to a conjugal relationship might lead to sexual intercourse and pregnancy, Justice P. A. Choudary said that it could change a woman’s mind, body, and life, and thus become the “starkest form of governmental invasion of personal identity” and “zone of intimate decisions.” Moreover, he found a right to regain conjugal company incompatible with equality and equal treatment, since the remedy was sought almost exclusively by men but could more seriously affect women’s lives by leading to pregnancy. Aside from constitutional rights as amplified by prior judicial construction and American and English legal precedents, this judgment relied on the absence of indigenous cultural grounds for restitution of conjugality. It pointed out, as Rukmabai’s lawyers had much earlier, that ancient Hindu law had treated the wife’s duty “to abide by her husband as an imperfect obligation, incapable of being enforced against her will” and “refused to recognize any state interests in forcing unwilling sexual cohabitation between the husband and wife.” Thus, the judgment concluded that restitution of conjugal rights was a recent and “wholly illegitimate” import, which “promotes no legitimate public purpose.”
⁹⁰
While Martha Nussbaum succinctly captured the major features of this judgment, Menski misunderstood it as an instance of “elite law-making.”
⁹¹
Restitution decrees were more
of a burden for poorer women who could not afford the fines for disobeying them.
⁹²

This verdict was ahead of its time, as shown by the speed with which a few high courts dissented from it and the Supreme Court overruled it. In amending personal law in light of constitutional rights,
Sareetha
departed from the predominant judicial practice since
Narasu Appa Mali
(1952). A few courts invalidated personal-law provisions by invoking constitutional rights, but only when legislatures had ignored the recommendations of courts or other policy elites to change them for many years. For instance, courts amended Christian divorce law only after the legislature had failed to heed their calls and those of several law commissions and Christian organizations for such reform for over three decades, as
Chapter 5
indicates. To take another example, they dissolved marriages in the absence of spousal fault and mutual consent only after a law commission had recommended that irretrievable marital breakdown be made a ground for divorce, and a bill to this effect had been presented to parliament. By way of contrast, there had been no mobilization to abandon the restitution of conjugality, courts had not recommended this move, and no law commission had explored this possibility prior to
Sareetha
. The indigenous cultural sources that Justice Choudary highlighted for his judgment did not secure the acceptance of other judges.

Within a year, various litigants relied on
Sareetha
to resist restitution, but the courts upheld the constitutionality of restoring conjugal rights. The Delhi High Court responded in greatest detail to
Sareetha
in
Smt. Harvinder Kaur v. Harmander Singh Choudhry
(1984), and the Supreme Court relied largely on this judgment to overrule
Sareetha
in
Smt. Saroj Rani v. Sudarshan Kumar Chadha
(1984).
Harvinder Kaur
misrepresented
Sareetha
to have taken restitution decrees to aim solely to compel women to “have sex with their husband(s),” and cited English case law and legal texts of the late eighteenth to early twentieth centuries that defended restitution as enforcing cohabitation but not sexual intercourse. This ignored
Sareetha
’s concerns that sexual intercourse often accompanies spousal cohabitation and that a man to whom his wife returns unwillingly following a restitution decree may force himself on her, leading to her pregnancy. Justice Avadh Behari Rohatgi, author of
Harvinder Kaur
, asserted that restitution of conjugality serves the legitimate purpose of
facilitating spousal reconciliation—although other provisions of the various personal laws address this concern more directly, such as Section 23(2) of the HMA and Section 34(2) of the SMA, which require courts to attempt reconciliation before they decree divorce or judicial separation. He held that it was not contrary to personal liberty and privacy, because individuals could respond to restitution petitions by indicating valid reasons to live on their own, or disobey restitution decrees and pay the resulting fines. Moreover, he considered restitution compatible with equal treatment, since both women and men petition for restitution—although men file such petitions far more frequently, often in response to their wives’ maintenance petitions.
⁹³
He did not address another reason why the earlier judgment held that restitution provided unequal treatment—only women may as a result experience pregnancy and attendant life changes.

While holding that restitution decrees were compatible with constitutional rights,
Harvinder Kaur
also asserted that basing family law on these principles would violate the privacy of the home, cause spousal dissension and unlimited matrimonial litigation, and destroy the institution of marriage. It argued that courts should follow legislative intention, shown in the balance struck between the liberalism of the HMA’s divorce provisions and the conservatism of its restitution provisions. The court claimed that provisions for restitution and for divorce if cohabitation does not follow a restitution decree are necessary parts of a fault-based divorce regime, and could be abandoned only if irretrievable marital breakdown is made the sole ground of divorce. While leaving it to the legislature to consider such moves, it cautioned that no law commission had suggested abandoning the restoration of conjugality, and that legislators had not accepted a law commission’s recommendation to make irretrievable marital breakdown a ground for divorce. Thus,
Harvinder Kaur
, unlike
Sareetha
, took its cues partly from current policy initiatives. At least two litigants attempted without success to use the
Sareetha
precedent in other high courts before the Supreme Court overturned it.
⁹⁴
The Supreme Court largely relied on
Harvinder Kaur
to uphold the constitutionality of Section 9 of the HMA and by implication the corresponding sections of other matrimonial acts, adding that the right to the conjugal company of one’s spouse is inherent to the institution of marriage in India, rather than a product of statute alone.
⁹⁵
Saroj Rani
did not address the problems
that restitution decrees pose for poorer women reluctant to return to their husbands, and maintained judicial mechanisms to pressure individuals to return to their spouses.