Love and the Law: Love-Marriage in Delhi

Modern Asian Studies

Volumn 36, Issue 1, 2002, Pages 223-256

  Mody, Perveez ^a  

^a NONE

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EID: 0348191124     PISSN: 0026749X     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0026749X02001075     Document Type: Article

References (53)

1. I am very grateful to Trinity College for providing me with the Senior Rouse Ball Studentship that made this paper possible. I am also thankful, to Dr James Laidlaw (and Dr Susan Bayly) for having supervised my Ph.D., and to Dr Orsini for comments on an earlier draft of this paper.
2. I use the term 'metropolitan' to suggest the dominant status of such a view despite the evident historical and cultural diversity of 'north India'.
3. Though Muslims do not use the term 'kanya daan', a virgin daughter is nonetheless 'given' by her father in marriage to the groom. Here I am not interested in emphasizing the meanings of the gift given (and received) other than to draw attention to the fact that a girl should never gift herself in marriage to a boy of her own choosing, but that the gifting and receiving should be done by the two families.
4. My use of the English words 'boy' and 'girl' for legally adult couples stems from a direct translation of the Hindi terms that are almost always used: 'larka' and 'larki'. There is a reason for this diminutive usage. Unmarried people, even those between the ages of 20-30 years, are still considered to be dependants on their families and as such, do not qualify for the more exalted 'admi' (man) or 'aurath' (woman).
5. Translated from interview in Hindi. ['Pyar bhagvan ka dan hai. Shadi ke din, yeh dan diya jata hain. Yeh kiya nahin, diya jata hai. Kiya gaya pyar sirf vasna hain.'] Ironically, my informant's favourite Hindi film is about lust, entitled: 'Aao Pyar Kare': Come Let's Make Love.
6. The untranslated English words 'love' and 'love-marriage' are frequently used in Delhi Hindi and Urdu to talk about marriages of choice. They are also used in the context of declarations of love such as 'I-love-you', or even the Hindi-English complex of 'Main tujhe love karta hoon'. For the purpose of this paper, I am defining love-marriages as those marriages in which the couple fall in love and choose for themselves their own marriage partner. I have hyphenated the words love-marriage to emphasize that the idiom is used generically, in India, to mean a completely distinct phenomenon from marriage understood as arranged marriage, and is not merely viewed as marriage for love, as is implied by the use of the two separate words, love and marriage.
7. Louis Dumont, 1998 [1970], Homo Hierarchicus: The Caste System and Its Implications (Oxford University Press: Delhi).
8. I speak of 'caste' for north-Indian Muslims as both an analytic category and ethnographic fact evidenced in my fieldwork.
9. Christopher Fuller, 1992. The Camphor Flame: Popular Hinduism and Society in India (Princeton University Press: New Jersey).
10. Here I am not alluding to the area of economic and social theory concerned with 'social choice' but rather with what my informants considered to be society's choice of partner for themselves. The English word 'social' is used in Delhi to narrowly mean 'for the good of other people', which squares well with the notion that one marries for the good of one's people, not just for oneself. The word is less commonly used in a derogatory sense implying 'social mixing' - as one informant put it: 'Samaj hi social ban gaya hain', which was explained as meaning, in our modern society, everyone is considered equal and they think they can mix with each other as equals.
11. The National Archives of India, Legislative Dept., (henceforth abbreviated as NAI), May 1872, No. 148, 'Act III of 1872'.
12. In 1860, the age of consent had been fixed at 10 for girls, so the age of 14 years they proposed was substantially higher.
13. The Indian Majority Act, IX of 1875 was passed 8 years later and set majority at 18 years of age for men and women. (Derrett, 1978: 295).
14. NAI, 'Act III of 1872', No. 148, 11 Sept. 1868.
15. NAI, 'Act III of 1872', No. 151, 18 Nov. 1868.
16. NAI, 'Act III of 1872', No. 173, 4 Sept. 1868.
17. NAI, 'Act III of 1872', No. 150, 10 Sept. 1868.
18. NAI, 'Act III of 1872', No. 173, 4 Sept. 1868.
19. NAI, 'Act III of 1872', No. 156, 27 Nov. 1868.
20. Other conditions included the consent of the father or guardian if the girl was below 18 years of age and the prohibited degrees were to be 'degrees of consanguinity or affinity prohibited by the custom which would have regulated marriages between them had the Act not been passed'. Further, bigamous marriages under this Act were to be punished under the Indian Penal Code. NAI, 'Act III of 1872', No. 233, 'A Bill to legalise Marriages between members of the Brahma Samaja'.
21. NAI, 'Act III of 1872', No. 158, 26 November 1868.
22. NAI, 'Act III of 1872', No. 237, 11 July, 1871. A small detail like Stephen's embarrassed admission that he had not even read the Adi-Brahmo Samaj petition is a sobering reminder of just how arbitrary the colonial law-making process could be. If he claimed not to have even known that there was indeed a split in the Brahmo Samaj, then he couldn't have paid much attention to the purported reasons for Maine's extension of the provision for civil marriages to all 'natives'. By extension, he could not have known that one of the main justifications for the introduction of the first Bill (Native Marriage Bill) for civil marriage was the perceived instability of the Brahmo Samaj.
23. Despite Maine's legal justifications for the exclusion of Christians, the perceived inequity of the first Bill had been a particular cause of irritation because it was interpreted as meaning that marriages between Christians and non-Christians would still necessarily involve conversion in a Church.
24. NAI, 'Act III of 1872', 'A Bill to Provide a Form of Marriages in Certain Cases'. 21 Dec. 1871.
25. Interestingly, the third Bill proposed that consent be obtained if the boy were under 21 and the girl under 18. The raising of the age (from 18 to 21) at which a girl could independently contract a marriage of her choice was another compromise to the orthodox opponents of the measure. It must be noted that this was a time when the most common (and legal) age of marriage for Hindu girls was 10. Indeed, shortly after the passing of the law, Keshub Chandra Sen's daughter was married before she reached the age of 14 - a cause of yet another division within the Samaj. 'Act III of 1872', No. 332, Vide Appendix Y, 'An Act to Provide a Form of Marriage in Certain Cases'.
26. Kopf, David. 1979. The Brahmo Samaj and the Shaping of the Modern Indian Mind (Princeton University Press: New Jersey). Koft mistakenly assumes that Act III was called the 'Brahmo Marriage Bill', and that it legislated 'at the stroke of a pen' the Brahmos out of Hinduism (1979: 105). In fact it was exactly the opposite - the final Act does not even contain a passing reference to the Brahmos. Clearly, Kopf was thinking of Stephen's Brahma Marriage Bill which never saw the light of day.
27. The Office of the 'Registrar of Marriages under Act III of 1872' was initiated by the Act, and the Local Government was authorized to appoint one or more Registrars whose domain was the domain of the territory subject to its administration and was to be deemed his 'district'. NAI, 'Act III of 1872', No. 332, 22 Mar. 1872.
28. NAI, 'Act III of 1872', 'A Bill to Legalise Marriages between certain Natives of India not professing the Christian Religion', 18 Nov. 1868.
29. The economic aspect of the new law was extremely significant to many of the petitioners. The law followed up on the 1850 legislation of the Caste Disabilities Removal Act (also known as Lex Loci), which ensured that apostates could not themselves be deprived of their inheritance. Act III of 1872 also extended this category to include those who married against the wishes of their families. In years subsequent to 1872, legal challenges to the law were made. As Hari Singh Gour, a legislator who spearheaded the amendment of the law in 1923 argued, 'What is this; for one purpose you say, I am not a Hindu, and for another purpose you claim to be a Hindu'. The law made self-excommunication a pre-requisite, yet for the purposes of inheritance, persons could continue to avail themselves of the benefits of their own personal laws. In 1923, the amendment allowed Hindus, Buddhists, Sikhs or Jains to intermarry without having to make the offensive declaration, so that they could continue to benefit from Hindu law for the purpose of succession. The omission of this privilege to Christians, Muslims, Jews and Parsis was explained away with the argument that their laws already provided for 'monogamy and divorce' - the former of which was clearly untrue for Muslims. What is interesting here is that in 1923, the legislators were willing to provide for pan-'Hindu' marriages but still felt it necessary to penalize inter-community marriages with the excommunicative clause.
30. NAI, 'Act III of 1872', [No number or date given] p. 245. 'Petition from Babu Kali Prasanna Banarji].'
31. Ibid.
32. NAI 'Act III of 1872', No. 195, 'Proceedings of a meeting of the Principle Residents of Bareilly', 16 Aug. 1869.
33. NAI, 'Act III of 1872', [No number or date given] p. 243. 'Petition of Lachmi Narain'.
34. NAI, Legislative Dept., May 1872, No. 332. Appendix Y, pp. 330-9, 'Act III of 1872'.
35. Veena Das, 1995. Critical Events: An Anthropological Perspective on Contemporary India (Oxford University Press: New Delhi).
36. André Béteille, 1991. 'Individualism and Equality' in Society and Politics in India: Essays in a Comparative Perspective (Athlone Press: London, pp. 215-49).
37. In The Times of India, 'Tis Hazari Lawyers Protest, Litigants Suffer Again'. 11/ 7/'97, p. 5, New Delhi.
38. Marriages in Delhi up until 1997 were solemnized and registered in Tis Hazari. After this, the government introduced 'zonalization' - ostensibly to take the facility of marriage 'to the people' in their own 'zones', and to reduce corruption at Tis Hazari. The 'zonalization' process has been detailed in my Ph.D. dissertation. For now, it must suffice that the description of the functioning of the court refers to the period before and during the initial 'zonalization' process in 1997-1998.
39. Bernard Cohn, 1987. An Anthropologist among the Historians and Other Essays (Oxford University Press: New Delhi).
40. In keeping with anthropological convention, all names and circumstances of informants have been changed to protect their identities.
41. Mr Sharma, a Brahman from rural Uttar Pradesh, had left home as a child and had worked his way around north India before settling in Delhi. Like many of the other touts in the court, he was literate but uneducated, and respected by trained 'marriage' lawyers as being greatly experienced in the 'marriage business' because of his ability to recall complex cases of law from memory. This alleged 'status' was tempered by the essential illegitimacy of touts in the court, whose slightest misdemeanor made them prone to being ejected by the clerks upon the orders of high-handed Sub-Divisional Magistrates or District Commissioners, all of whom periodically sought to purge Tis Hazari of its canker. The lawyers, on the other hand, were utterly secure of their livelihood. Their union was described as 'one of the strongest' in Delhi.
42. According to the Special Marriage Act, 1954, the notices are legally required to be displayed in a 'notice registration book', available to members of the public at certain times in the day for inspection. The display of these notices on the wall, ostensibly to save the clerks from dealing with public inquiries, a task which they admittedly despise, serves to advertise marriages in a much more public way. Interestingly, the notices were peeled off so frequently (by couples and the touts) that at one point a board with a metal mesh (secured with a padlock) was erected on the wall, so that notices could not be defaced.
43. When a couple seek to marry in secret, they often give a friend's address as their own to avoid the risk of notices reaching their parents. The legal requirement as to residence is that a person should reside for 30 days prior to submission of notice in that area in which the marriage seeks registration. The decision to involve a Station House (Police) Officer usually arises if the Sub-Divisional Magistrate believes the couple are eloping.
44. The Arya Samaj claims to be doing a service to the community. One of its members, R. N. Sehgal, said in a Doordarshan T.V. programme (Dir. Harish Chawla, 28/5/'97) 'We assist the Court Marriages. We get affidavits from the couple and marry them through the Hindu Marriage Act'. Among their 'salient activities' the Arya Samaji's advertise in a flyer 'All kinds of marriages National, International and Intercaste are performed as per Vedic Rites and Marriage Certificates issued which are acceptable out of India also'.
45. Note that the age qualifications for Hindu marriage are the same as that of the Special Marriage Act which is 21, for men, and 18, for women.
46. This seemingly innocuous last statement is of tremendous importance because families often file false 'theft' and 'kidnapping' cases against their own children (or against the spouse) so as to enable the police to retrieve them. The affidavit is meant to pre-empt such moves, although it may easily be dismissed by the police if they so desire. I have dealt with the phenomena of elopement, kidnapping and abduction in much greater detail in my Ph.D. thesis, 'Love-Marriage in Delhi'.
47. Arya Samaj temples across India provide this service, though it is worthy of note that in Bombay, the registration of an Arya Samaj marriage at a Registry Office isn't considered necessary, as the Arya Samaj certificate is seen as proof enough of the marriage. This goes to prove the thesis that the procedure in Delhi has developed because such temple marriages (despite all their precautions) are easily annulled, and it is only a combination of the two 'proofs', the Arya Samaj Certificate and the court registration, that ensures the marriage isn't easily made void.
48. Being hit on the upper body by a shoe is considered a truly deadly insult because caste hierarchy and Hindu physiognomy combine to make the feet the most impure, and the head and upper body the most pure in a Hindu's body. Shoe-beatings invert this hierarchy and in so doing, pollute both the body and the reputation of the person.
49. Harijan is the Gandhian neologism for 'untouchables' (now known as Dalits). Rajput is an upper-caste Hindu group.
50. The 'RSS' or 'Association of National Volunteers' is a paramilitary Hindu supremacist organization founded in 1925. The 'VHP' or 'World Hindu Council' was founded in the mid 1960s and is devoted to reinvigorating Hinduism around the world.
51. Indira Nehru married Firoze Gandhi, a Parsi not a Muslim. However, the Persian name 'Firoze' has led many people to believe that this was a Hindu-Muslim marriage.
52. Samina thought that in a month she would be able to find two people in Delhi to act as her 'parents'.
53. Reconstructed from English interview notes. 13/1/98. The reason they went for the registration was primarily because the Nikkah was in Urdu, and they would need an English translation to accompany it for the American Embassy. Since they were moving to America, it would make life a lot easier to be registered under a Special Marriage Act which provided an English-language certificate. It is also possible that they were advised that the Special Marriage Act gave better protection to women (in the event of divorce), and also enshrined the principle of monogamy. Therefore, by registering under the Special Marriage Act, they would be able to override the Muslim Personal Law which presently applied to their marriage.