Free Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Page B
Authors: Narendra Subramanian
sexually predatory father in
Ram Sarup Aggarwal v. Shrimati Dev Kumari
(1950) and from his abusive parents in
Teerth Ram v. Parvati Devi
(1995) and
Rekha v. B. Susheelendra
(2010); and the man’s parents had killed another daughter-in-law of theirs in
Kamala Sharma v. Suresh Kumar Sharma
(2001). The man’s resort to extreme physical and mental torture to extract dowry led the Delhi High Court to refuse to recognize an
ex parte
divorce the man had secured from an American court, and to order him to provide his wife maintenance in
Smt. Anubha v. Vikas Aggarwal
(2002). Courts also granted a woman a divorce based on desertion because her husband had forced her out of her matrimonial home through frequent physical violence and refused to secure her the medical attention she needed in
Smt. Asha Handa v. Baldev Raj Handa
(1984), and granted another woman maintenance from her husband while she lived separately because the husband had married someone else in
A. Bhagavathi Ammal v. Sethu
(1986).
By using the notion of constructive desertion along these lines, courts limited the ability of men to use their influence in the matrimonial home to unilaterally gain judicial separation or divorce, and enabled women to gain maintenance, as well as judicial separation or divorce, after the actions of their husbands and their in-laws had led them to move out of the matrimonial homes. As a result, they gave women greater autonomy in deciding the terms and duration of their matrimonial relationships.
E. Customary Divorces
The legislature had indicated its willingness to accept the variety of ways in which marriages were solemnized and dissolved in Indian society in Sections 7(1) and 29(2) of the HMA, which indicated that “a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto” and that the HMA would not “affect any right recognized by custom or any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” This continued the approach of the colonial courts, which had recognized the divorce customs of a variety of castes and lineages, the majority of which were of lower or middling status. Hindus could only get divorces based on the customs of their caste or lineage in much of India until the HMA extended them this right under the rubric of Hindu law. Courts based their acceptance of specific divorce customs until then on the claim that, although Hindu law did not recognize divorce, divorce under certain conditions was not repugnant to its principles. 72
Litigants called on state courts to assess the validity of customary divorces that
panchayats
(assemblies) of subcastes, lineages, or villages had earlier pronounced, in connection with the contestation of the validity of marriages, matrimonial rights, the eligibility of individuals to get remarried, maintenance obligations and rights, bigamy claims, the legitimacy of children, and inheritance rights, as well as to consider divorce petitions based on the customs of the relevant group rather than the general principles of Hindu law, statutory and otherwise. The wide variety of divorce practices recognized in community courts are beyond our scope, but this section addresses how state courts assessed the validity of such divorces and considered divorce petitions framed with reference to custom. J. D. M. Derrett initiated the exploration of this question, which Livia Holden pursued in much greater detail. 73
Under colonial rule, courts made the recognition of customs contingent on a demonstration that they were ancient and continuously followed, and that they were compatible with public policy and morality. Only a custom followed “for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governingrule” was considered worthy of recognition. 74 The HMA (Section 3(a)) defined custom
Ram Sarup Aggarwal v. Shrimati Dev Kumari
(1950) and from his abusive parents in
Teerth Ram v. Parvati Devi
(1995) and
Rekha v. B. Susheelendra
(2010); and the man’s parents had killed another daughter-in-law of theirs in
Kamala Sharma v. Suresh Kumar Sharma
(2001). The man’s resort to extreme physical and mental torture to extract dowry led the Delhi High Court to refuse to recognize an
ex parte
divorce the man had secured from an American court, and to order him to provide his wife maintenance in
Smt. Anubha v. Vikas Aggarwal
(2002). Courts also granted a woman a divorce based on desertion because her husband had forced her out of her matrimonial home through frequent physical violence and refused to secure her the medical attention she needed in
Smt. Asha Handa v. Baldev Raj Handa
(1984), and granted another woman maintenance from her husband while she lived separately because the husband had married someone else in
A. Bhagavathi Ammal v. Sethu
(1986).
By using the notion of constructive desertion along these lines, courts limited the ability of men to use their influence in the matrimonial home to unilaterally gain judicial separation or divorce, and enabled women to gain maintenance, as well as judicial separation or divorce, after the actions of their husbands and their in-laws had led them to move out of the matrimonial homes. As a result, they gave women greater autonomy in deciding the terms and duration of their matrimonial relationships.
E. Customary Divorces
The legislature had indicated its willingness to accept the variety of ways in which marriages were solemnized and dissolved in Indian society in Sections 7(1) and 29(2) of the HMA, which indicated that “a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto” and that the HMA would not “affect any right recognized by custom or any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” This continued the approach of the colonial courts, which had recognized the divorce customs of a variety of castes and lineages, the majority of which were of lower or middling status. Hindus could only get divorces based on the customs of their caste or lineage in much of India until the HMA extended them this right under the rubric of Hindu law. Courts based their acceptance of specific divorce customs until then on the claim that, although Hindu law did not recognize divorce, divorce under certain conditions was not repugnant to its principles. 72
Litigants called on state courts to assess the validity of customary divorces that
panchayats
(assemblies) of subcastes, lineages, or villages had earlier pronounced, in connection with the contestation of the validity of marriages, matrimonial rights, the eligibility of individuals to get remarried, maintenance obligations and rights, bigamy claims, the legitimacy of children, and inheritance rights, as well as to consider divorce petitions based on the customs of the relevant group rather than the general principles of Hindu law, statutory and otherwise. The wide variety of divorce practices recognized in community courts are beyond our scope, but this section addresses how state courts assessed the validity of such divorces and considered divorce petitions framed with reference to custom. J. D. M. Derrett initiated the exploration of this question, which Livia Holden pursued in much greater detail. 73
Under colonial rule, courts made the recognition of customs contingent on a demonstration that they were ancient and continuously followed, and that they were compatible with public policy and morality. Only a custom followed “for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governingrule” was considered worthy of recognition. 74 The HMA (Section 3(a)) defined custom