Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (55 page)

157
. Bal Apte, the vice-president of the party and member of the committee, evidently expressed his misgivings privately; in parliament, P. S. Gadhavi opposed enabling married daughters to partition the ancestral home. Interview, E. M. Sudarsana Natchiappan; LSD 2005.

158
. The Committee takes note of the fact that the joint family system is a unique feature of the Indian society. Though not impervious to various inadequacies and anomalies, the joint family system has been in existence since time immemorial and is continuing with many a change in its structure and ideology to keep pace with the changing needs of time. While noting the concern regarding discrimination of women in the patrilineal, patriarchal joint family set up, the Committee also comprehends the fact that strong public sentiment is attached regarding the sanctity of the joint family system. Moreover, it is beyond the scope of the present Bill to consider any such step regarding abolition of the joint family system in the Hindu house hold.

Report of the Standing Committee of Parliament on Law and Justice: Hindu Succession Amendment Bill 2005; Interview, E. M. Sudarsana Natchiappan.

159
. While the Chair of the Law Commission, Justice M. Jagannadha Rao, wanted married daughters not to be made coparceners (as D. Purandeswari (Congress Party) indicated in parliament), state agrarian legislation to retain priority over the HSA’s rules, and testamentary freedom to be retained, another member, Justice S. Muralidhar, urged the Law Ministry to follow the opposite course in all these respects. A Law Commission member said that an intermediate version of the bill ended testamentary rights over half of one’s property, but that an important minister got the cabinet to remove this provision. The last claim could not be verified. Muralidhar 2004; LSD 2005; Interviews, Justices M. Jagannadha Rao; S. Muralidhar

160
. LSD 2005; the Law Minister promised to explore with state governments the changes these legislators suggested in agrarian legislation, but no such effort was made.

161
. This was the case with R. S. Gadhavi (BJP), Raja Ram Pal (Congress Party), Shailendra Kumar, and Tufani Saroj (SP). LSD 2005.

162
.
Assistant Commissioner of Gift Tax v. C. Krishnan and Ors
. (2002); and
Sugalabai v. Gundappa Adiveppa Maradi
(2007).

163
. Courts rejected pleas to give widows their pre-amendment shares in cases such as
Anar Devi v. Parmeshwari Devi
(2006),
Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik
(2008),
Smt. Bhagirathi v. S. Manivanan
(2008), and
M. Yogendra v. Leelamma N
. (2010).

CHAPTER FIVE

1
. See: Cohn 1996; Pandey 1990; Dalmia and Von Stietencron 1995; Jaffrelot 1996; Mufti 2007.

2
. Douglas 1988; Hasan 1992; Madani 2005; Mufti 2007, 129–76; F. Robinson 2007; Metcalf 2009b.

3
. Brass 1991, 75–108.

4
. Metcalf 1982; Minault 1982; Baljon 1986; Zaman 2002; Sanyal 2005.

5
. ibn Abidin’s major work,
Radd al-mukhtar ‘ala al-Durr al-mukhtar
, remained a part of the curricula of major Hanafi religious institutions. Interviews, Maulana Jaseemuddin, Chief Qazi, Imarat-e-Shariah; Maulana Mohammad Burhanuddin Sambhali, Chief Qazi, Darul Uloom Nadwatul Ulama and President, Fiqh Committee, AIM-PLB; Mufti Mukarram Ahmed, Shahi Imam of Fatehpuri Masjid; Maulana Yasin Akhtar Misbahi, Founder & President, Darul Qalam.

6
. Ewing 1988; Masud 1996; Zaman 2002, 2008; Metcalf 2009b; Kugle 2001; F. Robinson 2008; De 2009; Moosa 2009; Sanyal 2005. However, the DUMI promotes certain religious practices shared by many Hindus and Sikhs, notably the reverence of saints and their gravesites.

7
. Ansari 2009; M. Ali 2010. Interviews: Ali Anwar, President, All India Pasmanda Muslim Mahaz; Dr. Ejaz Ali, President, All India United Muslim Morcha.

8
. Gilmartin 1981, 1988; Nelson 2011. As we saw in
Chapter 2
, the Government of India Act of 1935 placed the administration of agricultural land under the exclusive jurisdiction of the provincial governments, crucially due to the influence of one of the Shariat Act’s architects, Mian Fazl-i-Husain (Nelson 2011, 100–102), and succession to other forms of property under the concurrent control of the national and the provincial governments.

9
. The DMMA enabled Muslim women to gain divorces if their husbands had not been heard from for four years, did not provide them maintenance for two years, were sentenced to prison for seven years, did not perform their marital obligations for three years, were impotent since the couple’s marriage, had been insane for two years, had leprosy or a virulent venereal disease, or had been cruel toward them (by habitually assaulting them, frequenting prostitutes, forcing them into prostitution, obstructing their religious practice, or not treating them on a par with their other wives), or if the women were married before they turned fifteen and repudiated their marriages before they turned eighteen.

10
. Minault 1998; Devji 1994; Gilmartin 1981; Fyzee 1999, 474; Jalal 2001.

11
. Joshi, Srinivas and Bajaj 2003, 179; Oddie 1991, Appendices A and B.

12
. Frykenberg 2008; Forrester 1980.

13
. Harper 1988; Webster 1992.

14
. Oddie 1998, 2001; Frykenberg 2008; Boyd 1969; Thomas 1979.

15
.
Sarabai v. Rabiabai
(1905) at 537.

16
. Repudiation was recognized although it was declared in the woman’s absence in such cases as
Sarabai
(1905),
Ful Chand v. Nazab Ali Chowdhry
(1908),
Asha Bibi v. Kadir
Ibrahim Rowther
(1909),
Ma Mi v. Kallander Ammal
(1927),
Saiyid Rashid Ahmad v. Mt. Anisa Khatun
(1932), and
Ahmad Kasim Molla v. Khatun Bibi
(1933); only on the date of the man’s written divorce statement, which was later than when repudiation was verbally pronounced, in
Asmata Ullah v. Khatun-unnisa
(1939); and only when the woman learned of the divorce in
Kathiyamma v. Urathel Marakkar
(1931) and
Abdul Khader v. Aziza Bee
(1944).

17
.
Sarabai
(1905) at 538;
Asha Bibi
(1909) at 33.

18
.
Muhammad Muin-ud-din v. Jamal Fatima
(1921).

19
. This was because these laws were initially said to apply to the residents of the territory of British India, rather than a group, that is, to residents not covered by group-specific personal laws (Hindu, Muslim, Parsi, and Jewish law).

20
. N. Chatterjee 2010.

21
. Divorce grounds were similarly asymmetric and based on English matrimonial law for Parsis, but this was changed in 1936. They remain asymmetric for Muslims.

22
.
Miss. Shireen Mall v. Mr. John James Taylor
(1952) set the precedent in this regard.
George Swamidoss Joseph v. Harriett Sundari Edward
(1955) deemed current British legislation relevant three years later, but other courts did not follow this precedent.

23
. Women could also get divorces if their husbands either engaged in rape, sodomy, or bestiality, or converted to another religion and married another woman.

24
. CAID 1999.7, 540–41, 544–46.

25
. CAID 1999.7, 541–43, 546.

26
. PD 1951, 2550–52.

27
. Jacob 1999; PD 1954, 2511–12.

28
. Gandhi and Shah 1992; Epp 1998; Agarwal 2008; Mazumdar 1999.

29
. Ram Jethmalani and Arun Jaitley, who were the Law Ministers when the BJP led a national government, admitted they had no concrete plans about the content of a UCC. Interviews, Ram Jethmalani; Arun Jaitley (Union Law Minister, 2000–2004).

30
. Mazumdar 1999; Agnes 1999; AIDWA 1999, 2010; Interviews, Jyotsna Chatterji; Subhashini Ali; Maimoona Mollah, Convenor, Muslim Women Sub-Committee, AIDWA; Mary Khemchand, former President, YWCA.

31
. Vatuk 2008.

32
. The Shia Women’s Personal Law Board is inactive. Hasan 2005; Awasthi 2006; Chauhan 2007; Schwartz 2012; Interviews, Maulana Mirza Mohammad Athar, President, and Shikoh Azad, Joint Secretary, All India Shia Personal Law Board; Maulana Mohammad Burhanuddin Sambhali; Maulana Khalid Rashid, Naib Imam, Firangi Mahal; Shaista Amber, President, All India Muslim Women’s Personal Law Board; Mohammad Abdul Rahmin Quraishi; Syeda Saiyidain Hameed, former President, and Dr. Sughra Mehdi, current President, Muslim Women’s Forum; D.Sharifa, President, STEPS.

33
. Islamic Fiqh Academy 2004; Zaman 2008; Sikand 2003, 2008; Interviews, Maulana Khalid Saifullah Rehmani, President and Maulana Amin Osmani, Vice President, Islamic Fiqh Academy; Dr. Tahir Mahmood.

34
. Hameed 2000; TNN 2004; AIDWA 2005; Engineer 2005; All India Muslim Personal Law Board 2002; Interviews, Syeda Saiyidain Hameed, former President, Muslim Women’s Forum; Maulana Ateeq Ahmed Bastvi, Convenor, Darul Qaza Committee, AIMPLB.

35
. This was because some members resisted further dialogue with women who did not wear the
hijab
.

36
. Indeed, Maulana Jasemuddin, the Chief Qazi of the Imarat-e-Shariah, admitted that the central
dar’ul qaza
of the Imarat-e-Shariah did not have a copy of this model marital contract. Interviews, Maulana Jaseemuddin; Maulana Khalid Saifullah Rehmani, Convenor, Nikahnama Committee, AIMPLB; Begum Naseem Iktidhar Ali, only woman member, AIMPLB Executive Committee.

37
. Shahabuddin 1992, 1999; Sikand 2005, 2010; Ahmad 2008; Express News Service 2006; PTI 2006; Women Living Under Muslim Laws 2006; Jamaat Ahl-i-Hadith 1994; Interviews, Maulana Mirza Athar, President, and Shikoh Azad, Joint Secretary, All India Shia Personal Law Board; Maulana Abdul Wahab Khilji, former General Secretary, Jamaat Ahl-i-Hadith, and President, All India Milli Council; Syed Shahabuddin, President, Muslim Majlis-e-Mushawarat.

38
. Interviews, Syed Mohammad Rabey Hasni Nadwi, President, AIMPLB; Dr. Qasim Rasool Ilyas, Secretary and Convenor, Babri Masjid Committee, AIMPLB; Maulana Jalaluddin Umri, President, Jamaat-i-Islami Hind; Maulana Mehmood Madani, President, Jamiyat Ulama-i-Hind; Maulana Abdul Wahab Khilji.

39
. Jacob 1999; Agnes 1999, 141–63; Monteiro 1992; N. Chatterjee 2004; and N. Chatterjee 2010 discuss aspects of Christian mobilization regarding personal law.

40
. Parashar 1992, 189–92; Monteiro 1992; Jacob 1999; India. Ministry of Law. Law Commission of India 1960, 1961; The Christian Marriage and Matrimonial Causes Bill, 1962.

41
. Chatterji 1979, 1982, 1983, 1984, 1986, 1989; AIDWA 2002, 35–36; The personal law files in the offices of the YWCA and the CNI indicate the various ways in which many individuals involved in these discussions based the policies they sought in their religious visions. Young Women’s Christian Association n.d.; Church of North India n.d.

42
. India. Ministry of Law. Law Commission of India 1983; The appendices include many of the letters and articles of the proponents of Christian law reform.

43
. Christian Marriage and Matrimonial Causes Act, 1990; Christian Adoption and Maintenance Bill, 1993; Christian Marriage Bill 1994, 1997; Indian Succession (Amendment) Bill 1994; Indian Divorce Bill 1997 (Draft Bill of CBCI, NCCI and JWP).

44
. However, some courts recognized a right to a share of the matrimonial home on separation or divorce, the PWDVA did so too in 2005 if there had been spousal violence, and giving Hindu divorcées a share in matrimonial property is under consideration, as we saw in
Chapter 4
.

45
. Chatterji 1984; Interviews, Jyotsna Chatterji; Dr. John Dayal; Jos Chiramel, former National Secretary for Legal Affairs, AICU, and Legal Counsel, CBCI; Dr. Julian Francis, Legal Counsel, NCCI; Mary Khemchand, former President, YWCA; Rev. Richard Howell, General Secretary, EFI; Justice Vikramjit Sen, Delhi High Court; Cardinal Oswald Gracias, Archbishop of Bombay, Roman Catholic Church and President, CBCI; Bishop Santhram, former General Secretary, CNI; Fr. Savio Coutinho, former Secretary, CBCI; Dr. Kande Prasada Rao, General Secretary, Christian Law Review Committee.

46
. Watson 1983, 2001; Horowitz 1994; Habermas 1991; Rueschemeyer and Skocpol 1996.

47
. The relevant judgments of Baharul Islam were
Jiauddin Ahmed v. Anwar Begum
(1978) and
Rukia Khatun v. Abdul Khalique Laskar
(1981). Those of Krishna Iyer were
A. Yousuf Rawther v. Sowramma
(1971),
Bai Tahira v. Ali Hussain Fisalli Chothia
(1979), and
Fuzlunbi v. Khader Vali
(1980). Krishna Iyer called for personal-law reform in Krishna Iyer 1984a, 1984b.

48
. Bhattacharjee 1985, 1994.

49
. The Christian law cases in which women’s divorce rights were increased were
Mary Sonia Zachariah v. Union of India
(1995) (also called
Ammini E. J. v. Union of India
),
Pragati Varghese v. Cyril George Varghese
(1997), and
N. Sarada Mani v. G. Alexander
(1997); those in which adoption rights were recognized were
Philips Alfred Malvin v. Gonsalvis
(1999),
Maxin George & Mary George v. Indian Oil Corporation Ltd
. (2005),
Vasanti v. Pharez John Abraham
(2007), and
Mrs. T. Crauford v. Ms. Maary Disilva
(2008). Interviews, Justices S. Rajendra Babu, former Chief Justice of India; V. R. Krishna Iyer, retired judge, Supreme Court.

50
. The more recent treatises include Verma 2002, Kader 1998, and Mahmood 1997; for examples of the older texts frequently used in courts, see Ameer Ali 1929, Mulla 1968, and Fyzee 1999.

51
. Interviews, Justice S. A. Kader, retired judge, Madras High Court; Dr. Tahir Mahmood.

52
. Cossman and Kapur 2002.

53
. Interview, Dr. Rajeev Dhavan (Khatoon Nisa’s lawyer).