Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (31 page)

The provision of divorce rights in 1955 and their further liberalization in 1976 made lawyers and legal mobilizers focus at least as much thereafter on the consequences of divorce as on the conditions under which divorce would be available, much as had happened a little earlier in most Western societies.
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In a reflection of this trend, Agnes gave case law about maintenance fuller attention than divorce law in a recent textbook for law students.
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All the changes made in maintenance law after independence, except the most recent change effected by the PWDVA, were meant to reinforce the economic support available to individuals, primarily women, who were in monogamous marriages at some point, even if these relationships became attenuated or the marriages were dissolved. Since they promoted such relationships as the postcolonial conjugal norm, they did not focus on providing support to women who forged alternative conjugal bonds, and left it uncertain whether these women would retain the support that colonial Hindu law and precolonial traditions offered them. The maintenance that would be decreed for women in polygamous relationships and informal relationships, or the validity of whose marriages was uncertain for other reasons, was a focus of litigation since the 1950s. The rest of this section explores the relevant case law.
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So long as polygamy was recognized among Hindus, later wives in polygamous relationships could claim maintenance from their husbands who failed to support them or treated them in ways that made courts consider it appropriate for them to live separately. Until the 1930s, courts generally did not consider a man living with another woman a sufficient reason for his wife to be allowed to live separately and claim maintenance from him if he was willing to also have her live with him.
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From the 1930s, some courts exempted women from the obligation to live with husbands from whom they
got economic support if their husbands were living with another woman.
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But others continued to follow the earlier practice. The passage of the HMWRSRMA in 1946 and the incorporation of its clauses into the HAMA in 1956 clearly gave the first wives of polygamists the right to maintenance while living apart from their husbands if their husbands lived with one or more of their later wives; but courts varied in whether they recognized this right if the man’s later marriages predated the HMWRSRMA.
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It was not clear that legislators meant the HMWRSRMA and the HAMA to give later wives this right if their husbands lived with other women, but some courts gave such women separate residence and maintenance.
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Judges in the higher courts unanimously recognized that the criminal-law provisions regarding spousal maintenance did not apply to later concurrent wives between 1955, when polygamy lost recognition among Hindus, and the passage of the PWDVA in 2005.
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However, the HMA, the HAMA, and the SMA were ambiguous regarding the maintenance rights of women in such situations, and many courts interpreted the references to “wives” in the maintenance clauses of these acts to also apply to such women. Menski highlighted the relief sometimes made available to these women under the Hindu law statutes, though not under the secular criminal law.
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Recognizing this, certain courts sympathetic to the maintenance claims of later concurrent wives denied them because they had been pressed with reference to criminal law, but urged these women to seek relief under Hindu law.
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Menski and Agnes claimed that courts began to interpret Hindu law statutes to provide support to the later wives of polygamists in the mid-1970s, with
C. Obula Konda Reddy v. C. Pedda Venkata Lakshmamma
(1976) and
Govindrao Ranoji Musale v. Sou. Anandibai
(1976).
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Menski considered this part of a new trend of judicial activism to make the husbands and ex-husbands of women facing destitution responsible for their continued economic support, and Agnes regarded it as a sign of increased (albeit inconsistent) judicial ingenuity to uphold the rights of women whose conjugal relationships did not fit the model of marital monogamy. But the stage was set to strengthen the maintenance claims of the later wives of polygamists as early as the early 1960s, soon after Hindu polygamy was banned, when certain courts interpreted Hindu maintenance provisions to require men to support their ex-wives after their marriages were annulled. This enabled women in polygamous marriages to
gain maintenance from their former husbands once they got their marriages annulled due to the polygamous nature of their marriages. The Gujarat High Court affirmed the need to construe the HMA and the HAMA in light of the legislative intention to ameliorate Hindu women’s disabilities, and held that women could get maintenance under Section 25 of the HMA after a nullity decree in
Kadia Harilal Purshottam v. Kadia Lilavati Gokaldas
(1961), as did the Calcutta High Court in
Arya Kumar Bal v. Smt. Ila Bal
(1968). In a similar vein, the Punjab High Court held that the HAMA’s maintenance provisions should be liberally construed to increase women’s rights to maintenance and property in
Jal Kaur v. Pala Singh
(1961).

Although these cases did not involve bigamy, they provided the bases for the Punjab High Court to grant a bigamist’s second wife maintenance after her marriage was annulled because of her husband’s bigamy, in
Dayal Singh v. Bhajan Kaur
(1973), a few years before
Obula Konda Reddy
and
Govindrao Ranoji Musale
. In
Kadia Harilal Purshottam
,
Arya Kumar Bal
and
Dayal Singh
, the courts based themselves on older Hindu understandings of conjugal relationships and responsibilities to enable emergent alternatives to marital monogamy, but also demonstrated that they considered monogamous marriage the norm. This was particularly clear in
Dayal Singh
, in which the court deprecated the man’s second marriage as a “mock marriage” and the wedding as a “sham ceremony,” and felt that it was particularly appropriate to grant the woman alimony since she had been “robbed of her maidenhood” when she was lured into a bigamous situation, thus making it more difficult for her to get remarried after the annulment of this marriage. Following
Dayal Singh
, the Andhra Pradesh High Court argued that the reference to a “legally wedded wife” in Section 18 of the HAMA encompasses later concurrent wives whose marriages had been solemnized, since this clause required maintenance if the husband had other living wives in
Obula Konda Reddy
. The Bombay High Court concurred with
Dayal Singh
when it decreed alimony under the HMA in
Govindrao Ranoji Musale
. The latter two courts felt that these statutes were meant to support women beguiled into marrying men who already had other wives. Some courts followed these precedents to grant the later wives of polygamists maintenance.
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This supplemented the tendency of various courts since the nineteenth century to presume that marriages that
could not be clearly proven were valid for the purposes of the women’s maintenance and inheritance rights and the legitimacy of children from these marriages if there had been prolonged cohabitation.
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While such decisions reinforced the maintenance rights of later concurrent wives and women in nonmarital conjugal relationships, other courts resisted granting such women maintenance. Larger benches of the Andhra Pradesh and Bombay High Courts specifically overruled
Obula Konda Reddy
and
Govindrao Ranoji Musale
in
Abbayolla M. Subba Reddy v. Padmamma
(1998) and
Bhausaheb alias Sandu Magar v. Leelabai
(2004) because they believed that the broad interpretation of “wife” in the earlier cases was contrary to legislative intention.
Bhausaheb
also rejected such a construction because it believed this would encourage bigamy. Other courts also refused to grant later concurrent wives maintenance under the rubric of Hindu law, for example,
Khemchand Om Prakash Sharma v. State of Gujarat
(2000),
Malti v. State of U.P
. (2001) and
Ms. Suresh Khullar v. Mr. Vijay Khullar
(2002).
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Thus, judges shared the disposition of legislators to uphold marital monogamy as the norm, but this inclination led some judges to deny later wives maintenance while others reconciled it with requiring support for women whose relationships departed from this norm.

In response to the judgments that denied the maintenance claims of later wives under Hindu law, as well as the continued rejection of these claims under criminal law, some reformist lawyers’ groups and women’s organizations mobilized for legislation to strengthen the maintenance rights of women in polygamous and nonmarital relationships. This demand was accommodated in the PWDVA, which made it unnecessary for women to prove that their conjugal relationships were valid marriages to be eligible for maintenance or police protection from their violent partners. The Supreme Court rejected a challenge to the resulting equalization of the maintenance claims of first wives and those of later wives and mistresses in
Aruna Parmod Shah v. Union of India
(2008), holding that this did not violate the sanctity of marriage. Moreover, in
Chanmuniya v. Virendra Kumar Singh Kushwaha
(2010), it held that the PWDVA’s provisions should be applied to all maintenance cases under criminal law, to reinforce the rights of women the validity of whose marriages was uncertain as well as women in nonmarital relationships,
because this statute reflected recent value changes regarding conjugality. The PWDVA and cases that succeeded it such as
Aruna Parmod Shah
and
Chanmuniya
demonstrated novel forms of legal reasoning and more open visions of the kind of conjugal relationships that can be given direct or indirect judicial support. (The cases of the 1970s and 1980s in which courts awarded maintenance to later wives did not, contrary to Menski’s understanding). As this trend is recent, it remains to be seen if it will be sustained. The two-judge bench of the Supreme Court that considered
Chanmuniya
referred the question of the maintenance rights of women in nonmarital relationships and women the validity of whose marriages is uncertain to a larger bench. The response of the latter bench is difficult to predict since judges’ views vary on this question, as shown by some high courts’ continuing to deny women in such circumstances maintenance in the meantime (for example, in
Vineeta Devi v. Bablu Thakur & State of Jharkhand
(2011)).
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As the majority of judges value marital monogamy, the maintenance rights of women who do not adhere to this norm remain uncertain.

IV. SUCCESSION

We saw that fewer reform proposals regarding succession were adopted in the 1950s, due to the opposition of the defenders of lineages. But lineage power declined and rural elites became more open to giving women rights in joint property and devolving such property bilaterally through the subsequent decades. Along with the growth of civil society mobilization to promote women’s rights and the increased attention to gender equity in public discourse, these developments enabled considerable change in succession law from the 1970s. Indeed, inheritance was the area of personal law in which the most consequential reforms occurred over the past decade. Legislation accounted for the major changes in succession law since the 1970s, unlike the changes in matrimonial law, which were significantly due to novel judicial interpretation as well. Bina Agarwal comprehensively discussed the changes in succession law, particularly with regard to agricultural land, and also influenced the major amendments introduced in 2005. The following analysis builds on her work and B. Sivaramayya’s, but differs from these accounts in certain respects and discusses the policymaking process more fully.
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A. Consequences of the Hindu Succession Act, 1956

The compromise of the 1950s provided equal shares to daughters and sons in separate property passing by intestacy, but only minor shares in joint property, as we saw in
Chapter 3
. Sons were coparceners in the family’s joint property on birth, along with their fathers, and this gave them shares in such property to which they had a right through survivorship. They could gain control over their shares by demanding the partition of such property even during their fathers’ lifetimes, and could not be deprived of them through bequest. In addition, they could get a share in their father’s interest in such property through succession, and wills did not usually deny them these shares either. Female kin were not coparceners, and were entitled to no share in joint property through survivorship; daughters could only get shares in their father’s interest in such property, which was far less than what sons gained through survivorship and succession. In much of India, widows enjoyed a larger share in joint property than daughters did. The versions of
Mitakshara
law applied in western, central and northern, India (the Maharashtra School applied in the former Bombay Presidency and other parts of western India, the Mithila School applied in Uttar Pradesh and neighboring regions of northern India, and the Banaras School applied in Orissa and Bihar) gave widows a share of such property when it was partitioned, though not the right to effect such partitions, in addition to giving them a share in their husbands’ interest in such property. Widows were given larger shares than daughters based on the patrilineal understanding that women leave their natal lineages and join their husbands’ lineages on marriage, a view particularly strong in these regions. However, the Dravida subschool of
Mitakshara
law, applied in much of southern India (Tamil Nadu, Pondicherry, Kerala, Andhra Pradesh, and the regions of Karnataka that were not part of the Bombay Presidency), gave widows no share in joint property on partition. This reflected the greater prevalence of bilateral kinship practices in this region, and made the shares that widows enjoyed in joint property as meager as those of daughters.
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Moreover, widows were entitled to shares in their husbands’ property, both separate and joint, only if they remained “chaste” and did not get remarried. Female kin could get their modest shares of family property only on the death of the property holder, and only if he did not will his interest in the
property to someone else. The HSA gave men testamentary freedom for the first time regarding their interest in joint property, of which their sons, daughters, widows, and mothers were eligible to receive equal shares in the absence of wills. Wills usually gave sons at least their intestate shares in all forms of family property, but often denied female kin their intestate shares in both separate and joint property. Men were also free to renounce or gift their shares of joint property, which they did at times to benefit their sons. Moreover, they could convert their separate property into joint property, and thereby limit the shares accruing to their female kin in the absence of a will.