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

HMA and the SMA in light of visions of Hindu/Indian modernity, and effected a convergence in the divorce rights of couples governed by the two acts.
    Women’s organizations were even further from adopting a modernist perspective, as Menski understood it, than the majority of policy elites. Rather than urge the liberalization of divorce in all respects, they recommended that policy proceed cautiously in this regard as long as alimony provisions remained weak, decrees to provide alimony and child support were ineffectively implemented, and women did not enjoy rights in matrimonial property. Thus, the CSWI recommended that irretrievable marital breakdown be made a ground for divorce only if women were granted at least a third of their husbands’ property on divorce. 14 When the Law Commission recommended the introduction of this ground for divorce without giving women rights in matrimonial property in 1978 (based on the suggestion of certain courts), and the Law Ministry presented a bill along these lines in 1981, women’s organizations, reflecting the interests of women of different strata, opposed this course because they believed it would undermine the economic position of many women. 15 The executive abandoned this proposal precisely because many legislators were persuaded by the concerns of the women’s organizations, rather than because it was “clearly unwilling to be steered by elitist feminist lobbying.” 16
    Women’s organizations did sometimes equate legal uniformity too readily with women’s entitlement, and misunderstood the lack of legislative change in Muslim law after independence to mean both that Muslim law recognized fewer rights for women than other personal laws and that Muslims especially resisted personal law reform. Some of the CSWI’s proposals regarding personal law reflected this—for example, its emphasis on curbing polygamy and unilateral male repudiation among Muslims and on introducing a UCC.Even these positions resulted not from the elitism of women’s organizations but from their inadequate engagement with certain social implications of matrimonial law, minority opinion, and minority mobilization. It was only when many women’s organizations changed these stances from the 1980s that they gained greater influence over policy, as Mazumdar, a CSWI member, indicated. 17
    A. Divorce Based on Irretrievable Marital Breakdown
    Various judges felt that the liberalization of divorce would be preferable to maintaining marriages beset by serious and irresoluble problems, although they were aware of the potential high cost for women. In a few cases, courts granted divorces to couples facing long-lasting and particularly intractable marital problems although none of the statutory divorce grounds applied, while clarifying that these cases could not serve as precedents. 18 In other cases, they deemed the irretrievable breakdown of marriage a reason to grant divorce while also taking certain spousal faults to exist, or considered the state of the marriage relevant in assessing alleged faults; 19 in still others, they felt they lacked the statutory powers to decree divorce even though they considered the marriages irretrievably impaired. 20 The Supreme Court granted divorce on these grounds in some cases, using its special powers under Article 142(1) of the Constitution to render “complete justice,” and in a couple of cases urged legislation making irretrievable breakdown a ground for divorce. 21 Based on these judicial suggestions, the Law Commission once again proposed such legislation in 2009. 22 Concerns about the implications for women’s economic situation did not prevent the reconsideration of divorce liberalization, because women’s organizations did not unconditionally oppose liberalization; rather, they made their acceptance contingent on the simultaneous reinforcement of women’s and children’s interests. As a result, a bill to effect this change in both the HMA and the SMA was