My Brother's Keeper: Regulation of the Brother–Sister Relationship in the Religious Personal Laws of India

Abstract

This article analyses the continued denial of equality to women in India's religious personal laws by focusing on the rights of brothers and sisters to illustrate the repeated failures of law. Although this failure has been normalised by deploying various conceptual tools, these theoretical trends need to be challenged. This article examines the 2005 amendment to the Hindu Succession Act which, although giving women extensive property rights, still gave sisters lesser rights than their brothers. It demonstrates that the concept of religious personal laws is a construct which is often used uncritically, and that it legitimises the denial of equal rights to women. The paper combines critical geography scholarship and legal feminist insights to argue that the law must be aware of spatial practices and that it is essential for legal thinkers to engage with the law in more than an instrumental sense. It analyses the processes of knowledge production and explores how the constitutive aspects of legal knowledge can be better integrated into legal scholarship. It thus aims to make visible the many spaces of the law: where laws are made; where ideas about men and women as owners of property are normalised; and where the law is expected to be implemented. It argues for legal scholars to be present and engaged in the contestation of meanings of the law.

Keywords:

• Knowledge production
• religious personal laws
• law and space
• feminist theory
• inheritance

Notes

  ¹ For an introduction to the extensive literature on this topic see Archana Parashar, Women and Family Law Reform in India (New Delhi: Sage Publications, 1992); Vasudha Dhagamwar, Towards the Uniform Civil Code (Bombay: N.M. Tripathi, 1989); and Flavia Agnes, State, Gender and the Rhetoric of Law Reform (Mumbai: SNDT Women's University, 1995).

  ² Duncan Derrett, Religion, Law and the State in India (New Delhi: Oxford University Press, 1999), p.53.

  ³ David Pearl, A Text Book on Muslim Law (London: Croom Helm, 1979), p.21; and J. Sarkar, Mughal Administration (Calcutta: M.C. Sarkar, 4th ed. 1959).

  ⁴ For the details of these developments see Parashar, Women and Family Law Reform in India; and Flavia Agnes, Family Law Vol.I: Family Laws and Constitutional Claims (New Delhi: Oxford University Press, 2011), pp.1–9.

  ⁵ For legislative history see Parashar, Women and Family Law Reform in India.

  ⁶ See for example State of Bombay v Narasu Appa Mali AIR 1952 Bom 84 (a Hindu male's claim that a law prohibiting polygamy for Hindu men and not Muslim men contravenes article 14 was rejected by the court. It said personal laws are not ‘laws in force’ under Art 12 of the Constitution); C. Masilamani Mudaliar v Idol of Sri Swaminathaswami Thirukoil (1996) 8 SCC 525 (personal laws are laws in force and must conform to the Constitution); Mary Roy v State of Kerala AIR 1986 SC 1011 (federal law prevailed over state succession laws for Christians); and Daniel Latifi v Union of India (2001) 7 SCC 125 (SC upheld the Constitutional validity of the Muslim Women's Act, 1996).

  ⁷ The immense diversity of applicable laws results from various exemption clauses in the laws that make the RPLs applicable. These exemptions can be for legislation by the states, colonial arrangements that have not been superseded, terms of agreement in the instruments of accession to the Union of India, saving the applicability of customs etc. See Poonam Pradhan Saxena, Family Law II (Delhi: Lexis-Nexis Butterworths, 3rd ed. 2011), pp.3–24.

  ⁸ See also John H. Mansfield, ‘Religious and Charitable Endowments and a Uniform Civil Code’, in Gerald James Larson (ed.), Religion and Personal Law in Secular India: A Call to Judgment (Bloomington: University of Indiana Press, 2001), pp.69–103.

  ⁹ We make this assertion being fully mindful of the different trajectories of various RPLs. Rules of inheritance for the four communities are different and found in legislation enacted by the states as well as uncodified Islamic law; see Saxena, Family Law II.

¹⁰ The other major area where sibling relationship is relevant is in regard to the capacity to marry. All RPLs provide a list of prohibited relationships and declare marriages in contravention of such rules to be invalid; see Flavia Agnes, Family Law Vol.II: Marriage, Divorce and Matrimonial Litigation (New Delhi: Oxford University Press, 2011), p.10.

¹¹ For example Australian law provides for the possibility of overriding a will if claims are made by dependents of the deceased under the provisions of the succession laws. In New South Wales the amended Succession Act 2006, NSW, now incorporates the former Family Provision Act, 1982 NSW.

¹² See A.B. Bose and K.D. Gangrade, The Aging in India, Problems and Potentialities (New Delhi: Abhinav, 1988).

¹³ See the Hindu Maintenance and Adoption Act 1956 s.20; the laws of Muslims, Christians and Parsis do not impose such obligations.

¹⁴ An example of state law trying to provide for the maintenance needs of vulnerable family members is the Code of Criminal Procedure, 1973 s.125.

¹⁵ In practice the numerous exception clauses in these Acts introduce immense diversity. The variability is due to the operation of customs or different state laws or even the laws of former colonisers. See Saxena, Family Law II, pp.3–24.

¹⁶  Ibid., pp.437–555.

¹⁷ Indian Succession Act, 1925 part V, chapters II and III, respectively.

¹⁸ As a consequence there was great variance in succession laws applicable to Christians in different parts of India and commonly daughters took a lesser share than sons. See Agnes, Family Law Vol.I, pp.73–5; and Saxena, Family Law II, pp.10–12

¹⁹ This parity was, however, only achieved through Supreme Court decision Mary Roy v State of Kerala AIR 1986 SC 1011.

²⁰ For details see Agnes, Family Law Vol.I, pp.65–84.

²¹ For a discussion of how sisters and brothers had very different rights in the Hindu joint family property see Lucy Carroll, ‘Daughter's Right of Inheritance in India: A Perspective on the Problem of Dowry’, in Modern Asian Studies, Vol.25, no.4 (1991), pp.791–809.

²² Coparceners receive equal portions of an inheritance.

²³ Daughters and sons took an equal share in the father's property and even if the father was a member of an undivided Hindu joint family, on his death it was assumed that he had separated. He could will away the entire property but if he died intestate his separate share was divisible among his heirs specified in the HSA. Daughters were classified as class I heirs and took an equal share with the other class I heirs.

²⁴ The Hindu Succession (Amendment) Act, 2005.

²⁵ Mitakshara and Dayabhaga are the two main schools for organising the Hindu joint family. The Mitakshara system was prevalent in most of India and its most distinctive feature was that the three generations of males were joint owners of property and the rule of survivorship applied: that is, at the death or birth of any coparcener, the remaining members' shares increased or decreased proportionally. Under traditional rules women did not become coparceners and did not own a share of Hindu joint family property. In the Dayabhaga school, the father had greater rights and women were owners of property along with men. For further details see Paras Diwan and Peeyushi Diwan, Modern Hindu Law (Allahabad: Allahabad Law Agency, 10th ed., 1995).

²⁶ See s.23 of the HSA. We will use this example to illustrate our argument in the following discussion. In choosing this focus we do not wish to underplay the very substantial gains made by Hindu women with respect to property rights in the HSA. However the law still carries enormous normative power, which is manifested in more ways than simply the formulation of legal rights.

²⁷ The section actually prevented any female class I heir from asking for partition of the dwelling house, provided that the house was wholly occupied by members of the family of the intestate.

²⁸ For details including the comments made by parliamentarians and judicial observations see Saxena, Family Law II, pp.425–32.

²⁹ Since the 2005 amendment of HSA daughters are coparceners; as well their claim for marriage expenses or maintenance now would be subsumed under their legal status of joint owners of the coparcenary property.

³⁰ The tension between conceptualising men and women as equal owners of property and according primacy to the rights of men surfaces in many provisions of the HSA. For example the equality principle did not apply to agricultural land s.4(2); only men were coparceners; and different schemes of succession for Hindu men and women were stipulated (ss.8 and 16).

³¹ Moreover, the HSA has deleted the provision that exempted agricultural land from the application of this Act. Prior to this amendment a number of states had enacted legislation to either abolish the Hindu undivided family or make the daughter an equal coparcener with the son. See The Kerala Joint Hindu Family System (Abolition) Act, 1975, The Andhra Pradesh Hindu Succession (Amendment) Act, 1985, The Tamil Nadu Hindu Succession Amendment Act 1989, The Maharashtra Hindu Succession (Amendment) Act, 1994, and The Karnataka Hindu Succession (Amendment) Act, 1994.

³² For empirical evidence that the legal change making Hindu women coparceners had a positive effect, see K. Deininger, A. Goyal and H. Nagarajan, ‘Inheritance Law Reform and Women's Access to Capital: Evidence from India's Hindu Succession Act’, The World Bank Development Research Group, Policy Research Working Paper 5338, June 2010 [http://works.bepress.com/aparajita_goyal/subject_areas.html, accessed 24 Nov. 2011].

³³ The other two provisions deal with the ambiguity about the application of the HSA to agricultural land, and the retention of the concept of coparcenary.

³⁴ The central amendment Act makes all daughters, whether married or unmarried, coparceners. The state Acts had done so only for unmarried daughters.

³⁵ This provision was declared unconstitutional as it differentiated between the rights of coparceners on the ground of their gender in R. Kantha v Union of India AIR 2010 Karn 27.

³⁶ Such arguments are made by non-legal as well as legal scholars. See for example Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law (Chicago: Permanent Black, 2004); and Maria Drakopoulou, ‘Feminism, Governmentality and the Politics of Legal Reform’, in Griffith Law Review, Vol.17 (2008), pp.330–56.

³⁷ For an introduction to this literature see Ian Ward, An Introduction to Critical Legal Theory (New York: Routledge Cavendish, 2nd ed. 2004).

³⁸ See the review article by Rosi Braidotti, ‘A Critical Cartography of Feminist Post-Postmodernism’, in Australian Feminist Studies, Vol.20, no.47 (2005), pp.169–80.

³⁹ See Pamela Moss and Karen Falconer Al-Hindi (eds), Feminisms in Geography: Rethinking Space, Place, and Knowledges (Lanham, MA: Rowman and Littlefield Publishers, 2008), pp.12–15. The following account is based on their use of Deleuze and Guattari's concepts of rhizomatic thinking, positive ontology and segmentarity. A rhizome is an underground root system made up of nodes and internodes that spread horizontally. Even if a rhizome is destroyed, other nodes keep growing and reproduce.

⁴⁰  Ibid., p.12.

⁴¹  Ibid. They also use the concepts of positive ontology and segmentarity. The concept of positive ontology invokes the definition of something in terms of what it is rather than what it is not. For example feminism becomes what it is depending on how it is taken up in one's practices rather than being defined against another type of thinking. Positivity as an ontological orientation thus means feminisms can be understood as both constituting and constitutive of various ideas rather than being told to conform to dominant definitions.

⁴² Chris Butler, ‘Critical Legal Studies and the Politics of Space’, in Social and Legal Studies, Vol.18, no.3 (2009), p.314; and Alexandre Kedar, ‘On the Legal Geography of Ethnocratic Settler States: Notes Towards a Research Agenda’, in Current Legal Issues, Vol.5 (2003), pp.401–41. See Kedar pp.405–7 for a succinct account of how the critical geography literature has reconceptualised space among other categories of analysis and this is in turn reflected in the changing relationship between law and geography over time.

⁴³ N. Blomley, Law, Space and the Geographies of Power (London: Guilford Press, 1994), p.xiii; and D. Harvey, Social Justice and the City (Athens: University of Georgia Press, 2009).

⁴⁴ See Sarah Keenan, ‘Subversive Property: Reshaping Malleable Spaces of Belonging’, in Social and Legal Studies, Vol.19, no.4 (2010), p.427; and Fleur Johns, ‘Private Law, Public Landscape: Troubling the Grid’, in Law Text Culture, Vol.9 (2005), pp.60–90.

⁴⁵ See Blomley, Law, Space and the Geographies of Power, p.25.

⁴⁶  Ibid., p.26.

⁴⁷ For legal feminist scholarship see Jane Conaghan, ‘Reassessing the Feminist Project in Law’, in Journal of Law and Society, Vol.27 (2000), pp.351–85; J. Richardson and R. Sandland (eds), Feminist Perspectives on Law and Theory (London: Cavendish Press, 2000); and Anne Bottomley ‘Shock to Thought: An Encounter (of a Third Kind) with Legal Feminism’, in Feminist Legal Studies, Vol.12, no.2 (2004), pp.29–65. For post-colonial scholarship see Boaventura De Sousa Santos, ‘“Law”: A Map of Misreadings: Towards a Postmodern Conception of Law’, in Journal of Law and Society, Vol.14, no.3 (1987), pp.297–302; Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990); Elizabeth Grosz, ‘Becoming: An Introduction’, in Elizabeth Grosz (ed.), Becomings: Explorations in Time, Memory and Futures (Ithaca: Cornell University Press, 1999), pp.1–14; and Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law (New York: Routledge, 1991).

⁴⁸ Rachel Silvey, ‘Geographies of Gender and Migration: Spatializing Social Difference’, in International Migration Review, Vol.40, no.1 (2006), p.70.

⁴⁹ Critical legal feminist analyses amply demonstrate that law reform can be implicated in the perpetration of social hierarchies constructed around gender, race, and sexuality. See Martha Albertson Fineman (ed.), Transcending the Boundaries of Law: Generations of Feminism and Legal Theory (London: Cavendish-Routledge, 2011); Margaret Thornton (ed.), Public and Private: Feminist Legal Debates (Melbourne: Oxford University Press, 1995); and Ngaire Naffine (ed.), Gender and Justice (Aldershot: Ashgate, 2002).

⁵⁰ It is partly a function of different disciplinary affiliations that anthropologists and legal analysts see the existence of diversity in very different ways. See for example Livia Holden, Hindu Divorce (Aldershot: Ashgate, 2008); and Sylvia Vatuk, ‘Muslim Women and Personal Law’, in Zoya Hasan and Ritu Menon (eds), In a Minority: Essays on Muslim Women in India (New Delhi: Oxford University Press, 2005), pp.18–68.

⁵¹ Bruce B. Lawrence, ‘Woman as Subject/Woman as Symbol: Islamic Fundamentalism and the Status of Women’, in Journal of Religious Ethics, Vol.22, no.1 (1994), pp.163–85.

⁵² See for example Gail Minault, ‘Women, Legal Reform, and Muslim Identity’, in Comparative Studies of South Asia, Africa and the Middle East, Vol.17, no.2 (1997), pp.1–10; Sylvia Vatuk, ‘Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law’, in Modern Asian Studies, Vol.42 (2008), pp.489–518; and Agnes, Family Law Vol.I. For an analysis of how ‘voice’ is constructed see Mrinalini Sinha, ‘Gender in the Critiques of Colonialism and Nationalism: Locating the “Indian Woman”’, in Joan Scott (ed.), Feminism and History (New York: Oxford University Press, 1996), pp.477–504.

⁵³ For a very incisive discussion of the difficulties moderate Muslims feel in articulating a reform agenda for Islam, see Akeel Bilgrami, ‘What Is a Muslim? Fundamental Commitment and Cultural Identity’, in Economic and Political Weekly, Vol.27, no.20/21 (1992), pp.1071–8. See Erin P. Moore, Gender, Law and Resistance in India (Tucson: University of Arizona Press, 1998), for a study of how some Muslim women have resisted the modern state institutions and practices that reinforce traditional arrangements by which women are subjected to patriarchal control and deprived of equal rights before the law.

⁵⁴ Ratna Kapur and Brenda Cossman, ‘Communalising Gender/Engendering Community: Women, Legal Discourse and Saffron Agenda’, in Economic and Political Weekly, Vol.28, no.17 (1993), pp.WS35–WS44.

⁵⁵ See also Susan Moller Okin, Joshua Cohen, Matthew Howard, and Martha C. Nussbaum, Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999).

⁵⁶ See Sherene Razack, ‘The Sharia Law Debate in Ontario: The Modernity/Premodernity Distinction in Legal Efforts to Protect Women from Culture’, in Feminist Legal Studies, Vol.15 (2007), pp.3–32, who criticises Western writers, including feminists, who critique Islamic rules as a manifestation of continuing colonial dominance.

⁵⁷ Zoya Hasan, ‘Minority Identity, Muslim Women Bill Campaign and the Political Process’, in Economic and Political Weekly, Vol.24, no.1 (1989), pp.44–5.

⁵⁸ Examples of scholars articulating such conceptions of a fair family law are nonetheless present even if not widely discussed. See for example B. Sivarammayya, Matrimonial Property Law in India (Delhi: Oxford University Press, 1999); and Kamala Sankaran, ‘Family, Work and Matrimonial Property: Implications for Women and Children’, in Archana Parashar and Amita Dhanda (eds), Redefining Family Law in India (New Delhi: Routledge, 2008), pp.258–81.

⁵⁹ For an argument that assertion of religious identity should not only be seen as a manifestation of religious fundamentalism, see Asghar Ali Engineer, ‘Remaking Indian Muslim Identity’, in Economic and Political Weekly, Vol.26, no.16 (1991), pp.1036–8.

⁶⁰ Vasudha Dhagamwar, ‘Invasion of Criminal Law by Religion, Custom and Family Law’, in Economic and Political Weekly, Vol.38, no.15 (2003), pp.1483–92.

⁶¹ The caste panchayats are different from the Nyaya Panchayats instituted by the state as an alternative to the courts. See Marc Galanter and Upendra Baxi, ‘Panchayati Justice: An Indian Experiment in Legal Access’, in M. Galanter (ed.), Law and Society in Modern India (Delhi: Oxford University Press, 1989), pp. 54–92.

⁶² For a study of some of these practices see Holden, Hindu Divorce.

⁶³ Dhagamwar gives examples of horrific punishments in the non-formal system, sometimes carried out on the spot by those present. More troubling are the examples where the state criminal system, through the courts, condones such ad hoc and inhumane punishments. See Dhagamwar, ‘Invasion of Criminal Law by Religion, Custom and Family Law’, p.1489. Cf Nandita Haksar, ‘The Political Issues’, in Seminar, Vol.39 (1996), p.441.

⁶⁴ See Parashar, Women and Family Law Reform in India; Jana Everett, ‘All the Women Were Hindu and All the Muslims Were Men: State, Identity Politics and Gender’, in Economic and Political Weekly, Vol.36, no.23 (2001), pp.2071–80; and Mytheli Sreenivas, ‘Conjugality and Capital: Gender, Families and Property Under Colonial Law in India’, in Journal of Asian Studies, Vol.63, no.4 (2004), pp.937–60.

⁶⁵ Bina Agarwal, A Field of One's Own: Gender and Land Rights in South Asia (Cambridge: Cambridge University Press, 1994); and Shrimati Basu, She Comes to Take Her Rights (New Delhi: Kali for Women, 2001). See also Rochona Majumdar, ‘History of Women's Rights: A Non-Historicist Reading’, in Economic and Political Weekly, Vol.38, no.22 (2003), pp.2130–4 for the argument that women gaining increasing property rights but then not claiming them are not contradictory developments but two versions of modernity.

⁶⁶ Basu, She Comes to Take Her Rights; and U. Sharma, Women, Work and Property in North-West India (London: Tavistock, 1980).

⁶⁷ This is another site where anthropologists, sociologists and legal writers attribute very different significance to the existing diversity of community practices. It is one of the areas where much more inter-disciplinary dialogues need to take place. See S. Basu, ‘Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India’, in Signs, Vol.37, no.2 (2012), pp.469–92 for a critique of the feminist move to alternative dispute resolution. She argues that feminists must establish substantive rather than innovative gender justice.

⁶⁸ Reena Patel, ‘Hindu Women's Property Rights in India: A Critical Appraisal’, in Third World Quarterly, Vol.27, no.7 (2006), pp.1255–68; see also Reena Patel, Hindu Women's Property Rights in Rural India, Law, Labour and Culture in Action (Aldershot: Ashgate, 2007).

⁶⁹ Menski describes the existence of a multiplicity of practices under the banner of Hindu Law as post-modern Hindu Law. See Werner Menski, ‘Postmodern Hindu Law’, Centre for Applied South Asian Studies [www.casas.org.uk/papers/pdfpapers/pomolaw.pdf, accessed 24 Nov. 2011]; see also Prakash Shah, Legal Pluralism in Conflict: Coping with Cultural Diversity in Law (London: Glass House, 2005).

⁷⁰ There is a developing trend for writers to describe the existence of formal and informal rules in the area of personal relations as an example of legal pluralism, but this loose characterisation of any set of rules as legal pluralism yields no analytical advantage. See Karin Bates, ‘The Hindu Succession Act: One Law, Plural Identities’, in Journal of Legal Pluralism and Unofficial Law, Vol.50 (2004), pp.119–44; and Christoph Eberhard and Nidhi Gupta, ‘Legal Pluralism in India; An Introduction’, in Indian Socio-Legal Journal, Vol.31 (2005), pp.1–10.

⁷¹ See also Everett, ‘All the Women Were Hindu and All the Muslims Were Men’, p.2079, where she says that when women's organisations agreed to a religiously-based identity, both Hindu (AIWC advocated the Hindu Code Bill) and Muslim (support for the application of the Shariat Act and separate electorates) organisations became more vulnerable to patriarchal domination.

⁷² See for example Gopika Solanki, Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism and Gender Equality in India (Cambridge: Cambridge University Press, 2011), for an argument that by the state sharing adjudicative functions and authority with other societal sources, it can potentially balance cultural rights and gender equality.

⁷³ See also Sreenivas, ‘Conjugality and Capital’.

⁷⁴ Feminist scholars are increasingly moving beyond the relativism of post-structural thought and exploring the transformative potential of discourse. See the review article by Linda Alcoff, ‘Philosophy Matters: A Review of Recent Work in Feminist Philosophy’, in Signs, Vol.25, no.3 (2000), pp.841–2. Basu makes the same point in her ‘Judges of Normality’ about the need to focus on substantive rather than innovative justice.

⁷⁵ Gunther Teubner, ‘Substantive and Reflexive Elements in Modern Law’, in Law & Society Review, Vol.17 (1983), p.239.

⁷⁶ Jean L. Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002); Peer Zumbansen, ‘Law After the Welfare State: Formalism, Functionalism and Ironic Turn of Reflexive Law’, in The American Journal of Comparative Law, Vol.56, no.3 (2008), pp.769–808; and Charles Sabel and Jonathan Zeitlin, ‘Learning from Difference: The New Architecture of Experimentalist Governance in the EU’, in European Law Journal, Vol.14, no.3 (2008), p.271.