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

expressed in the Report of the CSWI, led the legislature to make divorce more readily available in 1976. 10 In a context in which divorce brought women greater stigma, women were the economically weaker partners in most marriages, alimony rarely compensated them adequately for the loss of access to the resources they had shared with their husbands, and the state did not provide effective legal aid for the poor, ensure alimony payments, or give women access to matrimonial property, the easier availability of divorce impaired the interests of many women, especially poorer women. Menski argued that as ongoing intervention in matrimonial disputes made them aware that easier divorce had weakenedwomen’s circumstances as well as social stability, judges in the higher courts interpreted Hindu divorce law to encourage spousal reconciliation. They are said to have become especially selective from the late 1980s in handing down divorces based on cruelty, requiring stricter proof of adultery, rejecting men’s divorce pleas based on the nonresumption of cohabitation after decrees of judicial separation or restitution of conjugal rights if the petitioners had prevented cohabitation, and paying greater attention to whether both parties continued to favor mutual consent divorce petitions. 11
    Various features of policy proposals, legislation, and adjudication do not fit well with Menski’s interpretation. We saw in Chapter 3 that the reforms of the 1950s drew not just on Western precedents but also on understandings of colonial Hindu law, reformed Hindu discourse, and the distinctive future of Indian society. This was a crucial reason why the resulting statutes retained various indigenous norms, albeit in a modified form. The architects of the divorce law reforms of the 1970s also framed their proposals partly with reference to indigenous norms. Justice P. B. Gajendragadkar, who chaired the Law Commission that recommended these reforms, had earlier in his career coauthored
Narasu Appa Mali
(1952), which refused to vet personal law systematically with reference to constitutional rights. A scholar of the Hindu classics, he drew inspiration from the dynamism of Hindu law, and presented his proposals as promoting constitutional egalitarianism while adhering to Hindu jurisprudence, much as the modernist legislators of the 1950s had. The Law Commission’s
Fifty-Ninth Report
adopted such an approach, recommending that individuals whose marriages have irretrievably broken down be given easier access to divorce; however, it also tried to promote the stability of marriages by requiring judges to attempt spousal reconciliation before they pronounced divorce and enabling them to grant judicial separation in response to divorce petitions. While urging that the nonresumption of cohabitation after a maintenance order in favor of the wife also be made a ground on which she could get a divorce, the report cautioned that a man should not be allowed to get a divorce decree by virtue of the passage of time since he ceased to provide his wife maintenance; further, it urged that those who were minors when they got married be allowed to repudiate their marriages once they become adults. Gajendragadkar believed that this approach would maintain the vision of marriage underlying classical Hindu law although marriage hadceased to be a sacrament, yet urged the application of his proposals to both the HMA and the SMA. 12 The Commission’s approach thus differed considerably from modernism as Menski understood it. The Law Ministry largely pursued the path the Law Commission recommended, and parliament readily accepted most of the proposed reforms. 13 Thus, the attempts of judges to limit room for divorce to give reconciliation the fullest chance and to prevent parties from taking advantage of their “own wrong,” as detailed by Menski, were in keeping with the vision underlying the legislation of 1976. This amendment expanded the divorce provisions of both the