The reality of
customary divorce law v/s non-tradition of Hindu divorce: an essay on gender
equity and legal pluralism in central India
Holden,
Livia. 2008. Hindu Divorce. Ashgate Publishing Limited: England
“Hindu Divorce” is an ethnography
which simultaneously lends itself to the fields of anthropology, comparative
law, legal pluralism and gender studies. Holden has achieved this feat by
weaving in theories from across feminism and the legal pluralism of Hindu
marriage and remarriage. The aim of the book is ‘to understand how the mainstream Hindu discourse of gender imbalance
shapes the legal discourse and how, in turn, the official legal discourse
shapes Hindu society’ (2008:19). Holden carried out her research in the
field in several phases over a very long period of twelve years. This enabled
her to develop a deep understanding of the dynamics of various relations
between people at the field level, and also enriched her personal relationships
with the informants and collaborators.
The book focusses on
customary divorce practices in its chosen field site of Piparsod, located in
Shivpuri district of Madhya Pradesh, India . The difference between
official legal rules and customary practices is deeply contested.
In many legal systems, there
are some areas where, in the absence of any written law, customs are recognized
as the principal source of law. Hence custom is a permanent subject of debate,
raising the question of how to achieve the translation of facts into law.
Countries which were, or still are, under colonial influence are characterized
by the coexistence of the imported rule with the native legal system, often
called “customary law”. There, custom is simply the non-written law of native
people (ibid. 115).
This essay attempts to
provide a review of “Hindu Divorce” while situating it in the larger context of
discourse around customary laws. It begins with a comment on the methodology
adopted by Holden while researching for this book. Various chapter summaries
are included while incorporating a discussion on larger issues of gender
inequality, access to law, formal and customary ways of obtaining a divorce and
remarriage. A brief outline of the debates around codification of Hindu law
after the independence of India
is also included.
Introduction and Methodology
The book begins with a chapter titled “Conceptualizing Hindu Divorce”, which is the customary and
indispensable ‘review of literature’. Holden initiates this discussion with the
common claim that Hindu marriages are indissoluble, while contesting it by
bringing to the board a wide range of scholarship sketching ‘portraits of Hindu divorce’ (ibid.2). She cites Derrett and others
emphasising that forms of customary divorce are prevalent across various
communities (ibid. 7-9). After a
discussion on the conjunction between dharma
and Hindu law (ibid. 12-5),
Holden moves on to addressing deeper issues of ‘gender inequality’ (ibid. 16) perpetuated by the
phallocentric discourse on marriage practices in the Orient.
Moving on to the central concerns of her enquiry, Holden writes that ‘the issues addressed throughout this work
are concerned therefore with the conflicting views on what constitutes
knowledge in a particular society and on the role of power in the construction
of knowledge’ (ibid. 17). Her
focus also ‘takes into account variables other than gender in order to display
the diversity and multiplicity of women’s voices and experiences’ (ibid. 18). Her background in law
influences her intent of identifying and analysing strands of legal pluralism
prevailing on the field. The book develops as a ‘dialogue between lawyers and anthropologists’ (ibid. 22) and ‘upholds the ethnomethodological studies that avoid
classical theories of meaning’ (ibid. 24).
This section lays the foundation for the multidisciplinary approach adopted by
the author and provides an insight into the various schools of thought and
practice which have been referred to by her. It serves as an excellent manual
in highlighting the significance of thorough research of previously published
material on related topics that supplements a deeper understanding of
complexities regarding the current chosen area of study.
The author aims to ‘understand the
place of Hindu divorce in the Indian legal system’ (ibid. 24). This is a very important inquiry as the dominant notion
in Hindu society is that marriage is an indissoluble institution. It is a line
of thought perpetuated by the hegemonic Brahmanic discourse which claims to
represent the true nature of life cycle practices. ‘A difference exists between the Brahmanical Hindu law of marriage,
which guides the so-called upper classes of society, and the marriage laws
observed amongst the lower strata, where customary divorce is recognised and
has taken place all along and where the laws in question are more equitable to
women’ (Ray, 1952).
Since this research was conducted over a long
duration, Holden had the privilege of adapting a wide range of methods used to
collect data. The length of the research also enabled her to observe the
gradual changes in the field, urbanisation and certain conspicuous symbols of
the same (Holden 2008:33-7).
In the chapter titled “Insights”, Holden discusses in detail
the sites of her research including its spatial progression in terms of moving from
village (Piparsod) to district-town (Shivpuri) to the semi-urban town (Gwalior ). Her familiarity
with Piparsod was owing to Professor Chambard’s first-hand experience of
research in this region (ibid. 29).
Her experiences as a researcher were mainly influenced by the fact that the
villagers’ identification of her in relation to Professor Chambard and the
birth of her first child, ‘which
radically changed’ her ‘status at the
village level’ (ibid. 40). This
chapter deals with her ‘concerns about intrusion, objectivity, authenticity,
verifiability, updating and royalties in the data-gathering process’ (ibid. 25). It focuses ‘on the sites and the relationships of my
fieldwork, on the evolution of my methods of collection and analysis of data,
and dissemination of findings since my first stay in India
The author writes about her transition from ‘knowing’ Piparsod while she was based in Paris , to physically experiencing the sights
and sounds of the place. While she had an idea about some major figures of the
village (as they were informants of Professor Chambard), her own research led
her to establishing ‘complex yet very
productive relationships’ (ibid.30)
with the residents. This section gives detailed insights into the issues faced
by anthropologists on field. They provided me with important lessons on how to
maintain objectivity while integrating oneself with the practices of the people
and being a non-intrusive participant observer. Concerns of confidentiality and
remuneration are also neatly dealt with by Holden, acting as a guide to rookie
researchers. Following a book-based methodology prevents one from gleaning a
wide range of information and incorporating changes on the site can prove to
helpful in obtaining better depth of information. As Holden admits, ‘my involvement in women’s concerns led to a
gradual change in my method of collecting data’ (ibid.53).
This chapter ends with a write-up by Marius Holden, who is the author’s
husband and an anthropologist himself. He provides ‘insights on how acutely filming raised problems of objectivity and
representativity’ (ibid. 60) in
the process of recording footage on field and editing the vast amount of video
recorded to create a coherent documentary. This part of the chapter is a concise
illustration of researchers collaborating on a common site and using modern
technology for the collection and of data.
Case Studies
The mainstay of any ethnographic research is the data collected via
narrations of various actors in the field. Their stories form the basis of
relating theoretical expositions with empirical reality. At times, these case
histories serve to contest dominant claims of prevalence or non-existence of
certain practices in the real world. This is certainly true in the case of Hindu
divorce. As mentioned earlier, common perception is such that Hindu marriages
are indissoluble. But the Hindu Code Bill (1956) provided Hindu women with the
legal right of divorce. Nevertheless, as Holden points out, customary divorce
has always been present among certain castes and communities and they prefer to
opt for these procedures rather than engage in lengthy and expensive formal
divorce proceedings. The narratives cited by Holden ‘are therefore an example of how divorce litigation is handled without
any, or with only little, intervention by official law’ (2008:72). It is
also a diligent attempt to highlight the role of public notaries in
officialising what is basically a customary procedure and has not been inked in
formal law. This can be seen as an instance of recording and making official
forms of legal pluralism.
Through
the notary public procedure, not only do the spouses contractually fix the
terms of their matrimonial relationship, but, and above all, they officially
celebrate their remarriage, which therefore acquires a legitimacy that goes
beyond the boundary of their community’s law. Hence, it also serves as the
equivalent of formal registration of marriage (Holden 2008:92).
The terminology widely used in relation to the practices of Hindu divorce
in this region include mainly two terms: ‘chor
chutti’ and ‘dharicha’. The
former refers to ‘to set free’ implying the woman having left her first
husband. The latter refers to remarriage and a payment made to the first
husband, endorsed by the panchayat and formalised by the notary. As she quotes
an informant who is also a lawyer,
Chor-chutti azad hona and dharicha are easy procedures, but they
have a legal value too. Because after dharicha
the spouses will live as husband and wife and if somebody objects they will
show their marriage agreement… the community respect this and the law courts
respect this (ibid.146).
Dhagamwar (1992:197-209) views dharicha
practices as a form of modern slavery, but Holden contests this by arguing
the ‘remarriage is usually registered through a notarial procedure that
establishes the rights and obligations of the spouses in the form of a
contract’ (Holden 2008:90). Holden also quotes one such marriage contract (ibid. 96-97) and points out how the
rights of woman are better protected in it as compared to that in most Hindu
first marriages ‘which are not usually accompanied by any contract’ (ibid. 98).
Holden carefully chooses cases which represent a wide range of possible
circumstances where the actors involved opt for customary divorce. From her
account, it is obvious that it’s mainly women who resort to this measure, as
men supposedly can get away with taking another wife without having to formally
have divorced the first one. Women, on the other hand, ‘can negotiate the termination of a marriage and then remarry, securing
equity for themselves and their children’ (Holden 2005:68). The first
informant discussed by Holden is Rajkumari who ‘points out four steps in the accomplishment of the customary divorce
and subsequent remarriage: the escape, the remarriage ritual, the settlement
before the panchayat, and the settlement before the notary public’ (Holden
2008:80).
In an attempt to highlight ‘women’s
awareness of their legitimate expectations in matrimonial life’ (ibid. 106), Holden discusses the case of
a woman who initiates customary divorce proceedings against her husband who has
physically abused his wife, even tried to kill her and then took on another
wife. This is an instance of how a woman after leaving her husband doesn’t have
to remarry and can solely approach the notary for formalising a divorce (ibid. 99-106). ‘Such a codified behaviour legitimizes divorce in the eyes of the family
and the community as well. Resorting to official jurisdictions would therefore
be an unnecessary step’ (ibid. 107).
The narrative of Suman (ibid. 107-114)
is indicative of the paternalistic nature of notaries and a hopeful case of a
‘modern’ woman. During her interrogation the notary does not refrain from
leading her on to elicit a definitive response (ibid. 112). Suman, on the other hand, is a promising case of a
young, spirited and confident woman who knows her mind and doesn’t refrain from
speaking up. She’s received basic education, was good at school, wants to study
further, be financially independent and is quite clear about her decision to
not go back to her husband. Further on, she’s also assertive about what she
wants and is certain that she wouldn’t enter into another marriage without
first seeing the boy. Differently from the previous cases discussed by Holden,
‘she openly fights Hindu tradition and claims for herself achievements such as
the choice of the partner, the consent in marriage, the right to education, and
the independence from her family members’ (ibid.
114).
The case history of Rani (ibid. 115-9)
included by Holden encompasses a wide range of tricky issues involving a caste
placed low in the social hierarchy but one which has gained considerable clout
owing to recent ‘political innovations’
(ibid. 116) and the threat of village
endogamy. Towards the end of this chapter, one sees the advantage a researcher
may of have after having spent a considerable amount of time in the field –
establish a deeper trust with the informants. This has a direct beneficial impact
on the access to data which was previously unavailable due to the ‘outsider’
characteristic of the researcher as well as probable discomfort with the topic
of research that may project certain
actors is a manner inconsistent with their ‘image’.
Holden also gained access to several affidavits concerning divorce among
Brahmans. ‘Brahmans do divorce but most
of the time they do so officially. Now they start to divorce customarily
because it is less expensive’ (an informant, ibid. 120). Not only does this statement contest the usual claim
that marriages among high castes are indissoluble, but also hint at the
expensive nature of a protracted legal battle to gain divorce under the Hindu
Marriage Act. The customary divorce practices discussed throughout this chapter
and illustrated via various case studies are summarised by Holden, as follows:
The local perception of the frequency of divorce and
remarriage customs in relations to caste and dharma is that they are
observed by lower castes, to whom the strict Brahmanic codes of conduct do not
apply. The consequence is that through the observance of these customs, people
not belonging to the Hindu lower castes are assimilated into them. (ibid. 123).
As evident from these cases, the role of gender in relation to Hindu
marriages is certainly a disadvantageous one. Under such circumstances,
customary divorce and remarriage proceedings offer a means of subverting the
oppression and abuse suffered in a traditional marriage. That these are
recognised by the law of the land is another tip in their favour. This leads us
to the next chapter which has a long discussion on the customs and laws
surrounding marriage, divorce and remarriage.
Tracing Marriage and Divorce: Rituals,
Customs and Law
This
chapter intends to study ‘the gap existing between rural values and urban
interpretations of customary practices, in particular, for its implication upon
legal representation of customs before official law courts’ (ibid. 26). While discussing with
informant notaries various customs of marriage, Holden also ventures into
detailing the eight forms of marriage as delineated by Manusmriti (ibid. 132).
She explores the status of children in cases of remarriage. The initial section
of this chapter is also striking for providing a telling comment on some of the
social issues which have gained a strong currency in India today. These include lack of
adult women for marriage due to female infanticide (ibid.129) and the spread of education among rural populace (ibid. 134).
This is followed by a shift in
focus to represent the lawyer’s perspective. Here Holden provides us with an
interesting analysis of how the notaries struggle to integrate custom and law. Fitzpatrick has argued that ‘the
very attempt to write down custom in a way meant to be juridically or
intellectually definitive loses custom’ (1984:21). But, modern Hindu law (Sec. 29 (2), Hindu Marriage
Act, 1955) recognizes the validity of customary divorce in specific
circumstances. The clause “Nothing
contained in this act shall be deemed to affect any right recognised by custom
or conferred by any special enactment to obtain the dissolution of a Hindu
marriage, whether solemnised before or after the commencement of this act"
implies that formal law is not encroaching upon customary practices. This
becomes extremely important considering the variety in prevalence of such
practices across the breadth of this country.
The role of notaries is that of
‘mediators between non-state and state law’ (Holden 2008:144). Holden notes how ‘the notary public…appears wisely to
manipulate a vast range of legal and meta-legal categories and thereby creates for his clients the sufficient
platform for a legal recognition of their customs’ (ibid. 144, emphasis added). It is interesting to note that most
Hindu marriages are traditional in nature and not registered depriving them of
legal identification. Herein, practices of customary divorce and remarriage
resort to services of the public notary, thereby creating evidence to the act
which was not registered and recognised before. An informant notary in Gwalior
sketches the history of the Dharicha
law in that state and also mentions how they have to incorporate clauses in the
marriage contract which make the act legal, an agreement that is otherwise
illegal (ibid. 151).
Conclusion
In her attempt to incorporate legal terrains in the
domain of customary marriage and divorce Holden engages in a lengthy discussion
trying to situate her ‘fieldwork finding
within the wider horizon of the official Hindu law’ (ibid. 161). She refers to numerous cases from Madhya Pradesh,
Gujarat, Bombay , Madras ,
Punjab , Himachal Pradesh (ibid.162-187 some in which the judiciary refused to acknowledge
divorce obtained through customary procedures while displaying ‘substantial fairness’ (ibid.188) to the claims of women in some
other cases. She follows this with the examples of women who had obtained
customary divorces in their community panchayats and the complications which
arose during their application for permanent citizenship in UK and US. Holden describes her
role an ‘expert’ in these cases urging
for a better understanding of ‘how export
reports are received in the legal process’ (ibid. 212)
In the final chapter of her book, Holden makes
concluding remarks regarding ‘Hindu
divorce and remarriage practices (that)
are embedded in the dichotomy of their existence, notwithstanding their denial’
(ibid. 214). While her field site
was located in Madhya Pradesh, she argues that the cases cited here are a
reflection of (mostly women) mobilizing tradition to challenge the dominant
norms and practices of patriarchy, while negotiating for a safe space for their
own living. She wraps up her work by stating that ‘law courts, not only in India, at least recognise the possibility of
the existence and of the legitimacy of customary Hindu divorce – and are
therefore disconcertingly ahead of the mainstream conceptualisations’ (ibid. 219).
To
conclude, in the exercise of reviewing this book for the course on ‘Enculturing
Law’, this student was exposed to various parallel systems of grievance
redressal prevalent in India
with respect to the institution of marriage. The recognition of these customary
laws by the formal law of the land (at least in principle) provided a
perspective as to how subaltern forms of justice get integrated into the
mainstream discourse on a particular issue. “Hindu Divorce” by Livia Holden
(2008) is an excellent example of practices having the ability to travel from
down to up in the social hierarchy. The book also provides telling insights
into the gender and kinship norms of various communities in semi-urban or rural
areas.
Debates on legal pluralism always strive to
identify such parallel systems (an economy of sorts) and argue for them being
granted a status at par with that of formal law. The idea of a uniform law for
a state (envisioned in the Constitution) is intended to homogenise the populace
while treating their individual complaints. Here, I’d like to argue that a
state is constituted by various non-homogenous elements and the law should not
attempt to suppress or ignore them in the name of equality. These various
customary laws should be respected and recognised, if not incorporated, in the
formal legal system as they consequently mean recognising the agency of the
variety of individuals (and groups) that comprise the state.
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