Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian Read Free Book Online

promote conjugal autonomy, and between understandings of Hindu marriage as a sacrament and as a contract. They allowed divorce if one’s spouse was guilty of the following matrimonial faults: (a) “living in adultery” (rather than specific instances of adultery); (b) nonresumption of cohabitation for at least two years since a decree of judicial separation or restitution of conjugal rights; (c) (grounds available for women only) having another living spouse, rape, sodomy, and bestiality; (d) conversion to another religion; (e) affliction with a venereal disease, leprosy or mental illness for at least three years; (f) renunciation of the world and joining a religious order; or (g) not being known to have been alive for at least seven years. Desertion without cause, adultery and “such cruelty that the petitioner cannot reasonably be expected to live with the respondent” were made grounds for judicial separation, but not for divorce, unless the party petitioning for divorce had obtained judicial separation on these grounds at least two years earlier, and her spouse had not resumed cohabitation since then.
    Litigation made policy makers aware that this compromise did not adequately address the growing problem presented by dysfunctional marriages. Ongoing changes in Western law suggested that this problem could be addressed by providing a wider and swifter path to divorce based on spousal fault, as well as by enabling no-fault divorce. Colonial law became a less significant basis on which policy elites understood desirable forms of Hindu and Indian family life, making it easier to consider increasing divorce rights. This led legislators, through a private member’s bill of Diwan Chand Sharma (Congress Party) in 1964, to make individuals eligible for divorce if they had not resumed cohabitation for two years after decrees of judicial separation or restitution of conjugal rights, even if they had refused to live with the spouse who had gained the earlier decree. Unlike the initial introduction of divorce rights in 1955, this change evoked little opposition. 7 It took a step towarddelinking eligibility for divorce from spousal fault and connecting it to the state of marital relations, while letting such eligibility depend on an earlier decree of judicial separation based on spousal fault or a failure to comply with a decree restoring conjugal rights.
    A bigger change was made in divorce law in 1976; it made cruelty, desertion for two years, and adultery grounds for divorce; enabled divorce based on mutual consent; and reduced the period of nonresumption of cohabitation after decrees of judicial separation or restitution of conjugality that would entitle one to a divorce from two years to one year both under the HMA and the SMA. 8 However, an initiative of the Law Commission in 1978 to make divorce available in a case of irretrievable marital breakdown, even if one’s spouse resisted, this did not succeed. Menski provided the most comprehensive understanding to date of the approaches to divorce law reform from the 1970s to the early 2000s. 9 He claimed that modernist inclinations to liberalize matrimonial law and intensify state regulation of family life drove legislation until the 1970s and influenced adjudication until the 1980s. Even though women’s organizations increased the modernist ranks from the 1970s, he argued, a growing awareness of a mismatch between modernist aims and various features of social norms and matrimonial relations in India restrained legislative initiative, and led judges to construct a postmodern Hindu law that was better attuned to Indian society, drew less readily from Western precedents, and maintained or revived features of classical Hindu law, though often expressed in a secular idiom.
    Regarding divorce and nullification of marriages, Menski said that judges had interpreted statutes conservatively to maintain social stability in the 1960s, but that modernist ambitions, particularly as