Wedded to the Republic
What the history of marriage laws reveals about equality and difference in India
The Indian past has never been more political. This newsletter questions the traditional (male, Hindu, upper-caste, ‘secular’) orthodoxies presented in Indian schools’ history curricula. We investigate historical narratives by consulting sources and perspectives outside established media, and we review some of the most interesting academic books and articles currently languishing behind university paywalls.
There are no definitive answers here because we want to invite as many people as possible to an alternative conversation—on what it means ‘to do history’. If nothing else, we hope to convey that history matters, and to spark our readers’ interest in undertaking historical enquiries of their own.
Write to us with your thoughts and feelings at indianparallelcampaign@gmail.com!
“What you desire is contrary to dharma. If you stick to Hinduism and Fatima follows Islam it will be like putting two swords in one sheath...Nor is it in the interests of our society to form this relationship. Your marriage will have a powerful impact on the Hindu-Muslim question. Intercommunal marriages are no solution to this problem.”
—Mohandas Gandhi, in a 1926 letter to his son Manilal (who wished to marry a Muslim, Fatima Gool).
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Happy Republic Day, friends!
Today we mark another year since the Constitution came into force on 26 January 1950, celebrating our status as a sovereign democratic republic. Celebrations will be muted because of the farmers’ protests, the pandemic (though at least it means we will be spared the absurd irony of dealing with Churchill-fanboy Boris Johnson as Chief Guest of the parade)—and the growing recognition of a constitutionalism in crisis, most recently on the topic of inter-faith marriage.
While we’ve been on hiatus the last few months, certain (BJP-ruled) states looked at Indian Matchmaking’s controversial take on marriage in India and said, “Hold my gaumutra”. Uttar Pradesh and Madhya Pradesh—taking their lead from Uttarakhand’s Freedom of Religion Act—have passed laws that strictly regulate inter-faith marriages under the guise of preventing forced conversion. Haryana, Karnataka, and Gujarat have signalled their intention to follow suit.
There is a seeming consensus amongst lawyers that these laws are unconstitutional. They’re already being deployed with gusto by police and vigilante groups to harass inter-faith couples and arbitrarily arrest Muslim men. (We’ve discussed the genesis of ‘love jihad’ as a concept, and the flawed history behind it, in a previous issue.)
But we think there is something deeper here, too. Marriage, by its very nature, entails the legal (and societal) recognition of a personal relationship—it represents perhaps a unique combination of the private, social, and public spheres.
The furore around marriages reveals something fundamental about the nature of our Republic: an unresolved tension in how the state sees the interests of individuals (especially women) versus those of their communities, with real implications for its ability to manage equality and difference.
A still from the Tanishq ad at the centre of the inter-faith marriage controversy
Hum Aapke Hain Koun
When public interest litigation recently challenged the constitutionality of UP’s new law, the affidavit filed by the UP Home Secretary before the Allahabad High Court drew a distinction between the rights of individuals and the rights of communities, and stated that “community interest is on a much higher pedestal than agreement of two adults individuals who enter into wedlock (sic)”. “Community interest,” it added, “is synonymous with social interest, which is equivalent to the public interest”.
It feels strange to find Gandhi’s thinking mirrored in something written by Adityanath’s government, but this almost exactly tracks the logic of Gandhi’s objection to his son marrying a Muslim girl, as we saw above, where he uses the word “intercommunal” rather than “inter-faith” in describing a Hindu-Muslim marriage.
Before they are acknowledged as individuals with personal liberties (or, indeed, a personal faith), Fatima and Manilal are members of religious communities, and must therefore defer to those interests, which in turn mirror the interests of society as a whole.
This idea—that Indian society is constituted by communities—is one of the most enduring legacies of our colonial history. The dizzyingly complex, decentralized systems of pre-colonial Indian states—heavily reliant on local elites and customary practices—were confounding to early British administrators. The British sought to make sense of Indian society—and more importantly, rule it—by describing and classifying ‘natives’ into manageable community units, each assumed to have its own unchanging, collectivist beliefs, interests and identity.
The colonial state did not concern itself with the interests of individuals. John Stuart Mill—whose father’s magnum opus The History of British India identified ‘primitive’ ‘natives’ entirely with their membership in a religious community—explicitly stated that Indians, like children, did not have the capacity to operate as full individuals, excluding them from his famous views on human liberty. Indians were decreed unfit for the laws that applied to British citizens at home—laws which had begun to recognize the individual (man) as a sovereign subject.
Instead, British scholars like Nathaniel Halhed and Edward Thomas Colebrooke, taking the help of pandits and maulvis, translated arcane religious commentaries like the Hedaya, the Mitakshara, and the Dayabhaga into ‘personal laws’.
These represented ideals rather than a practicable legal system, but the colonial state was happy to take them literally: by claiming to have discovered and systematised Indians’ own ancient legal codes, they could turn around and ‘give’ them back to us. (Thanks. Really.)
The system was born in 1772, when the British Governor-General Warren Hastings promised ‘Hindu’ law for Hindus and ‘Islamic’ law for Muslims in all suits regarding marriage, caste and other religious usages and institutions—ignoring, of course, all the other many traditions in India. (Though this system evolved considerably over the Raj, similar legal fictions persist even today, such as the fact that Sikhs, Jains, and Buddhists are covered by the Hindu Marriage Act of 1955.)
In interpreting scripture literalistically, their reliance on pandits, and their insistence that Hindus were a homogenous ‘community’, British courts also often dismissed the local customs and practices of many lower-caste groups as insufficiently ‘Hindu’ (who, for instance, had traditions of eating meat or allowing for divorce in certain situations).
Accuracy—a genuine attempt to understand social and religious dynamics—was never the point: simplicity and control was. And of course, that old staple of every school textbook: divide and rule. Dividing communities first requires that the ruling state define the communities—down to every last legal loophole. As Mahmood Mamdani notes, the colonial state used the law to ossify community identity “not only [as] a way of acknowledging difference, but also [as]…a way of shaping, and sometimes even creating, difference” —especially when it considered its political interests threatened.
Legislating log kya kahenge
The Raj’s insistence on seeing its subjects as communities rather than as individuals, and its expedient pretence of non-interference in “domestic” issues had important consequences. People did not interact with the state as individuals—their interests were represented by the self-appointed spokespeople of their community. Communities, which now had a sense of their numerical strength, began to imagine themselves as stable, self-contained entities, with defining characteristics that each individual member of the community was supposed to possess.
This, in turn, structured the political possibilities of anticolonial nationalism. Scholars such as Mrinalini Sinha have argued that liberalism, at least in India, began to be conceived of not as the liberty of individuals, but as the liberty of communities, from state interference—laying the ground for a politics animated by community-based claims.
At its core was what Veena Das has called “communities-as-political actors”: in rejecting state regulation for issues that were seen as “internal” affairs, communities claimed the right to define their collective past, to regulate the behaviour of their individual members, and—in times of conflict—to frame acts of violence as acts of moral solidarity.
But—as anyone who has ever rolled their eyes at “log kya kahenge” knows—individual and community interests are not always identical.
Nationalists opposed the state “colonising the life-world of the community”, but gave free rein to the community itself, which was happy to “colonise the life-world of the individual” (in Das’ words). Nowhere is this more evident than in the history of civil marriage.
In 1868, Henry Maine, Law Member of the Governor-General’s Council, proposed the wide-ranging Native Marriage Bill—perhaps predictably for a jurist who is most well-known for his theory that societies move from “status” (where agreements such as marriage are arranged by kin) to “contract” (where agreements are entered into as a result of individual agency). The Bill introduced civil marriage by allowing any two ‘natives’ who “objected to be married in accordance with the rites of their religion” to legalize their marriages before the state instead. However, because almost every community opposed this Bill, there were some crucial compromises before it passed into law as Act III of 1872.
Indians weren’t angry about the new law because they thought it would bring marriages of choice into existence. People have always run away for love in the face of social opposition: unions of this kind clearly already existed.
The responses make clear that the problem was that the law would give unprecedented public recognition to people who were socially ostracized because they had defied their community’s rules. (Hi, aunty!)
A protest sign featured on Project Anti Caste Love
This led to two significant concessions by the state. First, Act III required that a couple engaging in a civil marriage sign a compulsory declaration: “I do not profess the Christian, Jewish, Hindu, Muhamedan, Parsi, Buddhist, Sikh or Jaina religion”—effectively asking them to exile themselves, and renounce any legal claims to membership of their respective religious faiths. In so doing, the state legitimised the idea that membership of a community involved marriage arranged by the community, and that civil marriage was only relevant to individuals who had rejected their community.
Second, the Act instituted a two-week residence requirement before the couple registered their intention to marry, followed by another two-week notice period before the marriage could happen. The Registrar's Marriage Notice Book was made open to public inspection. This period of time was explicitly introduced to enable relatives to track couples down and register their objections against the marriage. This, of course, had serious implications for those eloping: the consequences of being found often did not bear thinking about.
Modern inter-faith couples still find themselves running up against this legacy. Although the Special Marriage Act of 1954, which replaced Act III of 1872, doesn’t require people to renounce their religion, it actually mandates an even longer delay: one month before the notice, and one month after (apparently due to concerns about bigamy). Stories abound of bureaucrats trying to delay the process further, and even to dissuade eloping couples. Couples often avoid the SMA because of the notice requirement and the potential it creates for being discovered by hostile family members and community vigilantes, choosing to convert and marry under religion-specific personal laws instead.
The difficulties people face in accessing the Special Marriage Act reveal the limited extent to which we have moved past 1872. On some level, the Indian state is struggling to see marriage as a contract between individuals with agency. As the researcher Perveez Mody puts it: “communities continue to mediate the relationship between state and individuals, by successfully ‘colonising’ the [implementation] of the law—especially through Hindu supremacist groups”.
We are never ever getting back together
1872 is also a stark reminder that the burden of the self-regulation that communities claimed for themselves disproportionately fell upon women, whose “chastity” was a matter of great concern for those opposed to the Bill. As Partha Chatterjee has argued, and we have alluded to in previous issues, women were symbolically identified with the essence of the community, as the key to its propagation—and therefore in need of constant surveillance and protection by men.
Heaven forfend, community after community complained, that women find any means open to them to exercise their own agency or choice of partner. The proceedings of a meeting about the 1872 Act in Bareilly, for instance, contain this gem: “Women of this country are generally uneducated and do not possess sufficient discrimination, and men of bad character would have no difficulty in inducing them to go before a Registrar and then and there have the marriage ceremony performed.”
The 1872 Act tried to allay this concern by including a condition that civil marriage only be recognized if “the woman is not a prostitute, nor the man her paramour, [!!!] and the cases do not come under the category of abduction, seduction, elopement, enticement, or the like, as are punishable under the Indian Penal Code.” (The modern version of this is the UP ordinance’s provision against “allurement”, whatever that means.)
Nevertheless, women continued to try and exercise agency—especially to extricate themselves from bad marriages.
In a wonderful article, Rohit De discusses how women turned the rigid religious requirements of personal law against abusive husbands in contexts when they had no legal access to divorce. British courts’ literalistic view of religious texts led to the unusual legal position that if both parties in a marriage did not profess Islam, then the marriage was effectively held to be cancelled and the parties free to enter a fresh marriage.
Communities were furious about this: not only could Muslim women exit the faith and leave their husbands, women of other faiths could convert to Islam, and if their husbands did not also embrace the faith, these marriages dissolved as well. In De’s words, “the ability of women to breach patriarchal authority and community boundaries caused severe anxieties.”
Eventually, the Dissolution of Muslim Marriages Act 1939 was passed to ensure that the “renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage”. Subsequent case law also held—as communal politics came into its own in the run-up to Partition—that non-Muslim women could not convert to Islam in order to leave a marriage. This settled the debate decisively in favour of communities, leaving Hindu women, in particular, with practically no recourse to divorce until the enactment of the Hindu Marriage Act in 1955.
For the next time someone asks why there isn’t an International Men’s Day: strategic conversions by Hindu men to Islam to take more wives while avoiding the charge of bigamy did not result in any legal or judicial action until 1995. (Also, it’s on 19 November.)
A cartoon about Ambedkar and the Hindu Code Bill, which was the first to allow Hindu women to obtain a divorce (only on certain grounds), from December 1949. Source: Law and History Review
Okay, ladies, get in (re)formation
Unsurprisingly, no one clamoured harder for a more individual liberalism than Indian women in the early 20th century. As nationalism grew into a mass movement, its leaders had divorced the question of political reform from social reform—the Indian National Social Conference, for instance, died with a whimper—and women had been asked to wait their turn to have their concerns heard.
The Child Marriage Restraint Act of 1929 (CMRA), which was born of a massive campaign by the nascent all-India women’s movement, remains the only law on marriage in India that is universally applicable across different religious communities and frees women from the internal self-regulation of personal laws. It challenged the colonial-nationalist consensus by recognising women as individuals who were separate from and sometimes at odds with the collective identities of their communities.
A studio wedding photograph of an adult groom and a child bride from the 1890s. Source: Visual Archive of the Center for Studies in Social Sciences, Calcutta, via Rochona Majumdar
In a thought-provoking chapter, Mrinalini Sinha describes how the campaign for the CMRA was characterised by rhetoric that justified itself not by alluding to a long-past “golden age” of Indian spiritual greatness, but by asserting the modern notion of inalienable rights for women. In her telling, the legislator Har Bilas Sarda, who introduced the Act in the Legislative Assembly, asserted that “the women of India…were no longer content to rely on the Shastras and on rewards in the afterlife: they had come out decisively in favour of rights in the present”.
These women, using the language of autonomy and sovereignty, deliberately tied social and political reform together.
Lakshmi Ammal, speaking in 1930 at a women’s conference organised by the radical anti-caste Self-Respect Movement, said: “If men were to persist thus in not giving into women’s demands for freedom, and if they were to persist in the belief that women were their playthings, women will have no choice but to practice a policy of Non-Cooperation with respect to the men in their lives.”
But as Indian legislators debated over the reform constitution that became the Government of India Act of 1935, the unity of the women’s movement began to crack. Though all factions could agree that women should be given recognition and representation as a political bloc, the upper-caste, middle-class Hindu women who formed a majority argued against proportional representation through communal electorates, forcing religious minority and oppressed-caste women to choose between their gender and their community. When the British Prime Minister Ramsay MacDonald came up with his Communal Award, reserved seats for women were made subject to the arrangements of separate religious communities, effectively asserting that women belonged inside, and to, ‘their’ communities.
The issue cut to the heart of a tension between equality and difference that modern India is still trying to resolve. How can the law balance fairness with respect for difference, especially when it touches on the most intimate aspects of an individual’s life?
The unfinished Republic
This dance of equality and difference continued into the Indian Constituent Assembly. In an excellent book on the Constitution, Madhav Khosla outlines how the Assembly’s decision to ultimately reject communal electorates represented a decisive rupture with a conception of community-based identity, giving citizens the right and capacity to deliberate and act for themselves as individuals—and interact with their elected government on those terms.
But it was not a complete break, because the Constitution continued the system of separate personal laws. The majority of the Assembly—even Ambedkar—agreed that the time was not right for a Uniform Civil Code. Especially in the tense aftermath of Partition, they felt that demands for reform had to come from within minority communities themselves. And so Article 44, a Directive Principle of State Policy, reads: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
We know today that Article 44, understood to be transitional, has persisted far longer than anyone at that time thought it would. It represents, to our mind, an aspirational part of the broader constitutional project to see Indian citizenship as situated within individuals rather than their communities—and to resolve the terrible tensions that inter-faith marriage currently typifies.
The question, of course, is: how do we build the conditions of trust necessary to make reforming the personal law system a common project? How can this project be one of good faith, one that rejects the current system’s grossly unequal treatment of women while still being respectful of difference?
It might help to start with a clear-eyed reckoning with our history, and to recognise the ways in which the notion of ‘communities’—and their control of women—is a structural feature of modern Indian law and the governing logic of the Republic. This history is evident in the struggles of Indians who try to obtain no-caste, no-religion certificates from the government. It persists too, in how we think of ourselves, in the apparent continued success of divide-and-rule strategies by an increasingly undemocratic government.
The good news from our past is that these ways of self-imagination are not fixed or unchanging, but created and shaped over time. Perhaps now we can imagine for ourselves a fuller sense of diversity that acknowledges the complexity and specificity of individuals, rather than one that thinks of it merely as ‘diverse’ communities living in harmony. It will be difficult, but—especially as we think about the ongoing legal battle for marriage equality for LGBTQ Indians, and representation that isn’t mere tokenism—worthwhile.
Wedded to the Republic
Never before today had I read the argument for individual rights and freedoms located so well in the dynamics of interests of diverse communities in one nation-state. And as always, your wit doesn't fail to make its presence felt! It's such a well-argued piece, and a treat to read. Thank you!