A post-colonial patriarchy? Representing family in the Indian nation-state

Modern Asian Studies

Volumn 44, Issue 1, 2010, Pages 121-144

  Newbigin, Eleanor ^a  

^a TRINITY COLLEGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CITIZENSHIP; HIERARCHICAL SYSTEM; INTELLECTUAL PROPERTY RIGHTS; LAW ENFORCEMENT; NINETEENTH CENTURY; PATRIARCHY; POST-COLONIALISM; WOMENS STATUS;

INDIA;

EID: 77949875048     PISSN: 0026749X     EISSN: 14698099     Source Type: Journal    
DOI: 10.1017/S0026749X09990096     Document Type: Article

References (78)

1. Gyanendra Pandey, 'The Prose of Otherness' in Gyanendra Pandey & Partha Chatterjee, (eds.), Subaltern Studies, 7 (Delhi, 1994) pp. 204-206.
2. ndnd series), Vol.3, S. Gopal (ed.) (Jawaharlal Nehru Memorial Fund: Oxford University Press, New Delhi, circa 1984), p. 135.
3. Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, New Delhi, 1999 edn., 1966), pp. 50-61.
4. Towards Equality: Report of the Committee on the Status of Women in India, Government of India, Ministry of Education and Social Welfare, Department of Social Welfare, New Delhi (1974), p. i.
5. Aparna Basu & Bharati Ray (eds.), Women's struggle: a history of the All-India Women's movement 1927-1990 (Manohar. New Delhi, 1990), pp. 55-82
6. Radha Kumar, The history of doing: an illustrated account of movement for women's rights and feminism in India 1800-1990 (Zubaan, New Delhi, 1993), chapters 4 & 5
7. Geraldine Forbes, Women in modern India (Cambridge University Press, Cambridge, 1996), pp. 112-120, 129-155.
8. Mrinalini Sinha, Specters of Mother India: the global restructuring of an Empire (Duke University Press, Durham & London, 2006), especially pp. 180-196, 212-222.
9. Enacted in October 1929, the Government of India instructed local officials to avoid implementing its measures for fear of stirring up unrest. Concerned in particular about reactions from the Muslim community, the Central Government circulated orders to Provincial Governments a week before the Bill was due to come into operation that '. . . if the Act is allowed to come into operation as quietly as possible there is some ground for hoping that the present agitation may gradually subside. . . . District Magistrates should be warned to deal very cautiously with complaints filed under the Act and to follow the preliminary procedure laid down without undue haste. [The Government] are [sic] of opinion that as a general proposition until experience has been gained of the effect of the Act, only minimal sentences should be imposed in cases of conviction and that, if possible, sentences should be avoided.' Very secret express letter from E.H. Brandon, Assistant Secretary, Home Department, Government of India to Provincial Governments, 23rd March 1930, F.482/1929 Judicial Civil, Uttar Pradesh State Archive. As a result, the Bill was left un-enforced in almost all provinces and became a virtual dead letter.
10. On the different impact of this shift in patriarchy on Hindu and Muslim personal law, and the consequences for post-colonial citizenship see Eleanor Newbigin, 'The codification of personal law and secular citizenship: revisiting the history of law reform in late colonial India', Indian Economic and Social History Review - hereafter IESHR - 46.1 (2009), pp. 83-104.
11. Charles Heimsath ignores the debates about property rights altogether, suggesting that 'the opponents of the Age of Consent Bill could be held responsible for the fact that no major social reform legislation was passed between 1891 and 1929, when minimum ages for marriage were established by the Sarda Act.' 'The origin and enactment of the Indian Age of Consent Bill, 1891' The Journal of Asian Studies 21, no.4, (August, 1962), p. 504.
12. R. Chandavarkar, 'Customs of Governance: Colonialism and Democracy in Twentieth Century India' Modern Asian Studies 41, no.3 (May 2007), pp. 441-470.
13. Anil Seal, The Emergence of Indian Nationalism: Competition and Collaboration in the Later Nineteenth Century (Cambridge University Press, Cambridge, 1971), pp. 4-11, 32-113
14. C.A. Bayly, The Local Roots of Indian Politics: Allahabad 1880-1920 (Clarendon Press, Oxford, 1975), pp. 8-18, Chapter 3.
15. David Washbrook 'The rhetoric of democracy and development in late colonial India' in Niraja Gopal Jayal, Democracy in India (Oxford University Press, New Delhi, 2001), pp. 82-96.
16. Sudipta Kaviraj, 'On state, society and discourse in India' in James Manor, (ed.), Rethinking third world politics (Longman, London 1991), pp. 72-99
17. Partha Chatterjee, The politics of the governed: reflections on popular politics in most of the world (Columbia University Press, New York, 2004).
18. Rosalind O'Hanlon, 'Issues of widowhood: gender and resistance in colonial western India' in Douglas Haynes and Gyan Prakash (eds.), Contesting power: resistance and everyday social relations in South Asia (Oxford University Press, New Delhi, 1991), pp. 62-108
19. Uma Chakravarti, Rewriting history: the life and times of Pandita Ramabai (Kali for Women, New Delhi, 1998)
20. Indrani Chatterjee, Gender, slavery and law in Colonial India (Oxford University Press, New Delhi, 1999).
21. Ibid, see also Rachel Lara Sturman, 'Family values: refashioning property and family in colonial Bombay Presidency, 1818-1937', Unpublished thesis, University of California, Davis, 2001
22. Veena Talwar Oldenberg, Dowry murder: the imperial origins of a cultural crime (Oxford University Press, Oxford, 2002)
23. G. Arunima, There comes papa: colonialism and the transformation of matriliny in Kerala, Malabar c. 1850-1940 (Orient Longman, Hyderabad, 2003).
24. Rosalind O'Hanlon, 'Issues of widowhood', pp. 77-78.
25. David Washbrook, 'Law, state and agrarian society in colonial India' Modern Asian Studies 15, no.3, (1981), p. 654.
26. C.A. Bayly, The Local Roots of Indian Politics: pp. 33-39
27. C.A. Bayly, Empire and information: Intelligence gathering and social communication in India 1780-1870 (Cambridge University Press, Cambridge, 1996), pp. 49-51.
28. Susan Bayly, Caste, society and politics in India from the eighteenth century to the modern age (Cambridge University Press, Cambridge, 1999), pp. 81-85.
29. Rosalind O'Hanlon, 'Issues of widowhood', pp. 77-78.
30. For example, in Punjab, where the legal system differentiated between landowners, regardless of their religious identity, and non-land owners. David Gilmartin, Empire and Islam: Punjab and the making of Pakistan (I.B. Tauris, London, 1988), pp. 13-18.
31. Bernard Cohn, Colonialism and its forms of knowledge: the British in India (Princeton University Press, Princeton, 1996), pp. 65-8
32. C.A. Bayly, Empire and information, especially pp. 78-88.
33. David Gilmartin, 'Kinship, women and politics' in G. Minault (ed.), The extended family: women and political participation in India and Pakistan (Chanakya, Delhi, 1981), pp. 151-170
34. J. D. M. Derrett, Religion, law and the state in India (Faber & Faber, London, 1968), Chapter 9.
35. Gregory C. Kozlowski, Muslim endowments and society in British India (Cambridge University Press, Cambridge, 1985), p. 128-131.
36. W.H. Macnaghten,PrinciplesofMoohumudanLaw(TheBrahma Samaj Press. 1825; reprint Calcutta, 1861), p. I.
37. cited in David S. Powers, 'Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India' Comparative Studies in Society and History 31, no.3 (July 1989), p. 556.
38. Bernard Cohn, Colonialism and its forms of knowledge, pp. 71-75.
39. For a more detailed description of the various schools of Hindu law see Bina Agarwal, A field of one's own (Cambridge University Press, Cambridge, 1994), pp. 84- 91
40. Derrett, Religion, Law and the state in India, pp. 97-121
41. D.N. Mitter, The position of women in Hindu Law (Inter-India Publications, Delhi 1913, reprinted 1989), especially pp. 43-47.
42. Washbrook, 'Law, state and agrarian society', pp. 669-673.
43. C. J. Baker, An Indian Rural Economy 1880-1955: The Tamilnad Countryside (Clarendon, Oxford, 1984), Chapters 2 and 3.
44. Tanika Sarkar, Hindu wife, Hindu nation (Hurst & Co., London, 2001), pp. 8-16.
45. Not all Muslims were subject to this strict colonial interpretation of Koranic law. Certain communities, including designated Muslim landholders in Bengal and Punjab, as well as Khojah and Memon Muslims, were governed according to separate customary traditions and legislation. Kozlowski, Muslim endowments, pp. 71-72.
46. Powers, 'Orientalism, Colonialism, and Legal History', pp. 554-560.
47. British judges rejected arguments that waqf law, a system of endowment that had developed in Islamic societies to deal with such difficulties, could be used to endow not only religious institutions but also family members. As a result, it could be very difficult to protect a family estate against fragmentation or to prevent a profligate relative squandering the estate, leaving nothing for future generations.
48. S. A. Kugle, 'Framed, blamed and renamed: the recasting of Islamic jurisprudence in colonial South Asia' Modern Asian Studies,35, No.2 (2001), pp. 286-294.
49. For but one example of this see Sahu Ram Chandra vs. Bhup Singh [(1917) ILR, 39 All. 377 (PC)].
50. B.B. Misra, The Indian middle classes (Oxford University Press, London, 1961), pp. 308-312, 316-324.
51. Kozlowski, Muslim endowments, pp. 81-85, 116-120.
52. Mytheli Sreenivas, 'Conjugality and capital: gender, families and property under colonial law in India' Journal of Asian Studies, 63, no.4 (November, 2004), pp. 942-943.
53. See Leigh Denault, 'Partition and the politics of the joint family in nineteenth-century India', IESHR, 46.1 (2009), pp. 27-56.
54. For a brief history of the legal debates about the joint family see the statement of objects and reasons for A Bill to define the liability of a Hindu coparcener, brought by Hari Singh Gour in 1923, Government of Bombay - hereafter GoB - Home Department, F.2730/1923, Maharshtra State Archives.
55. B.R Tomlinson, The economy of modern India (Cambridge University Press, Cambridge, 1993), pp. 51-55
56. Baker, An Indian rural economy, pp. 469-519
57. Washbrook, 'Law, state and agrarian society', pp. 702-711.
58. J. Gallagher 'Nationalism and the Crisis of Empire, 1919-1922', Modern Asian Studies 15, no.3, (1981), pp. 355-368.
59. Harold Lewis Levy,'Lawyer-scholars, lawyer-politicians and the Hindu Code Bill, 1921-1956' Law and Society Review 3, no. 2/3 (November 1968 to February 1969), pp. 303-304.
60. Samita Sen, Women and labour in late colonial India (Cambridge University Press, Cambridge, 1999), Chapters 1 & 2.
61. Mytheli Sreenivas, 'Conjugality and capital' pp. 938-942.
62. Mrinalini Sinha, 'The lineage of the 'Indian' modern: rhetoric, agency and the Sarda Act in late colonial India' in A. Burton (ed.), Gender, sexuality and colonial modernities (Routledge, London, 1999), pp. 207-220.
63. Note by H. Moncrieff Smith 1 February 1922, Government of India (hereafter GoI), Home Department F.822/1922 Judicial, National Archives of India (NAI).
64. Pammal Sambanda Mudaliar (1873-1964) was a legal practitioner in Georgetown and later became judge of the Small Causes Court. He combined his interest in the law with a love of theatre and music. He composed ragas, adapted Shakespeare and wrote his own plays for Tamil audiences. He has been hailed as 'the Father of Modern Tamil theatre' The Hindu, http://www.thehindu.com/ thehindu/fr/2002/09/27/stories/2002092701130300.htm [27 September 2002].
65. Recommendation to the central legislature by Mr Sambanda Mudaliar, an elected memberofthe assembly representing Salem and Coimbatore cum North Arcot (Non-Muhammaden Rural) 12 January 1922, GoI Home Department F.755/1922 Judicial NAI.
66. Mayukha law was a sub-school of Mitakshara law followed by communities along the western coast of India based on the Vyavahara Mayukha, seventeenth-century commentary by Nilakantha. Under Mayukha law daughters enjoyed an absolute estate over property inherited from their father, though they inherited under the same conditions as daughters governed by more mainstream Mitakshara law, i.e. in the absence of both male heirs and a widowed mother.
67. A Billtoalter the orderinwhich certain heirsofadeceased Hindu dying intestate are entitled to succeed to his estate. GoI Home Department Judicial, F.155/1922 NAI.
68. Undated note by Sapru, GoI Home Department F.155/1922 Judicial NAI.
69. The eminent Hindu jurist Dr (later Sir) Hari Singh Gour was a keen advocate of law reform on the grounds of consistency and clarity of administration. In 1919 he published his Hindu Code in which he called for Hindu law to be codified to aid its administration. Along with many other members of his profession, Gour entered the colonial legislatures in the 1920s and used his position there to continue to push forward his reform agenda. Gour brought a range of bills to reform Hindu law including his Billtodefine the liabilityofaHindu coparcener. GoB Home Department, F.2730/1923, Maharashtra State Archives (MSA).
70. As a result, it prompted an outcry from a broad spectrum of Indian society, including Annie Besant, Rabindranath Tagore and Lala Lajput Rai. Bombay Chronicle 24 October 1927, Manchester Guardian on 29 September 1927. See also press cuttings GOB Home Department (Special) F.715/1927, MSA.
71. Sinha, 'The lineage of the 'Indian' modern', pp. 214-216.
72. One of the main policies of the INC was, of course, that independence had to take priority over social reform and, in particular, the women's question. See Madhu Kishwar, 'Gandhi on Women' Economic and Political Weekly XX, no.40 & 41 (1985), pp. 753-758, 1691-1701.
73. This bill was a revived copy of a measure introduced to the Madras legislature in 1891 by Vembakkam Bhashyam Iyengar. Mytheli Sreenivas, 'Conjugality and capital', p. 944-945.
74. Statement of Objects and Reasons for Jayakar's Hindu Gains of Learning Bill, 12 July 1929, GoI, Home Department, F.624/1929, Judicial NAI.
75. Jayakar applied for sanction to introduce his bill in late July 1929. It was eventually passed as the Hindu Gains of Learning Act, Act XXX of 1930, on 25 July 1930. Sarda introduced his bill for the first time at the end of 1926; it was referred to a select committee the following year. It was passed as Act XIX of 1929 on 1 October 1929, coming into force on 1 April 1930.
76. At the time of India's entry to the Second World War, the central legislature faced a Hindu Law of Inheritance (Amendment) Bill, a Hindu Women's Property Bill, a Hindu Women's Estate Bill and a Hindu Married Women's Right to Separate Residence and Maintenance Bill as well as three proposed revisions to the Hindu Women's Property Act, which itself had been amended only a year after it was passed. For more on this, see Eleanor Newbigin, 'The Hindu Code Bill and the making of the modern Indian state', Unpublished thesis, University of Cambridge (2008), pp. 92-99.
77. Partha Chatterjee, 'The resolution of the women's question' in K. Sangari & S. Vaid (eds), Recasting women: essays in colonial history (Kali for Women, Delhi, 1989), pp. 233-253.
78. This movement from a hierarchical to a more horizontal structure of patriarchal authority was also mirrored in the land reforms passed by the independence state in the 1950s. The hierarchical structure of the zamindari system had secured the power of a single, propertied male over subordinate male and female cultivators. Reforms in the 1950s replaced this structure with one that took the nuclear family, consisting of a single male cultivator, his wife and children, as the basic unit of land-holding. Eleanor Newbigin, 'The Hindu Code Bill and the making of the modern Indian state', chapter 6.