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Adjudication in Religious Family Laws

Adjudication in Religious Family Laws Cultural Accommodation, Legal Pluralism, and Gender Equality in India

Author: Gopika Solanki
Publisher: Cambridge University Press
ISBN: 9781107610590
Published In: February 2013
Format: Paperback , 438 pages
Jurisdiction: India ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book argues that the shared adjudication model in which the state splits its adjudicative authority with religious groups and other societal sources in the regulation of marriage can potentially balance cultural rights and gender equality. In this model the civic and religious sources of legal authority construct, transmit and communicate heterogeneous notions of the conjugal family, gender relations and religious membership within the interstices of state and society. In so doing, they fracture the homogenized religious identities grounded in hierarchical gender relations within the conjugal family. The shared adjudication model facilitates diversity as it allows the construction of hybrid religious identities, creates fissures in ossified group boundaries and provides institutional spaces for ongoing intersocietal dialogue. This pluralized legal sphere, governed by ideologically diverse legal actors, can thus increase gender equality and individual and collective legal mobilization by women effects institutional change.

• An original and far-reaching work, theoretically sophisticated while also solidly grounded in extensive first-hand ethnographic research

• Unique in its multi-faceted approach and presents conclusions which contradict much of the 'received wisdom'

• Addresses questions that are not only of theoretical interest to specialists in the field, but that also have practical policy implications

List of Figures	xvii
List of Tables	xix
Preface	xxi
Acknowledgments	xxv
Abbreviations	xxix
Glossary	xxxi
1 Introduction	1
Who Shall Govern the Family? Outlining Two Approaches	5
Research Questions	9
Case Selection	9
A General Outline of the Developments in the Indian Case	11
The Study in the Indian Context	24
The Context of Inquiry	25
Research Site	29
Methods	29
Feminist Deliberations	31
Sampling in State Courts	32
Data Collection in State Courts	34
Sampling and Data Collection in Informal Courts	35
Organization of the Book	37
2. The Shared Adjudication Model: Theoretical Framework and Arguments	41
Introduction	41
Theoretical Framework: State-Society Interactions at the Interface of Personal Laws	42
Arguments	49
The Indian Model: Juristic Diversity in the Legal Landscape	50
Formal Legal Organizations and Actors: The Lower Courts	51
Legal Organizations and Actors in Society: An Overview of Typologies, Structures, and Functions	52
Formal Organizations	52
The Doorstep Courts – Informal Associations, Groups, and Networks	55
Individual Legal Actors	55
Interactions between State and Societal Organizations and Actors	56
The Question of Legal and Extralegal Authority and Accountability	56
An Open-Ended Conception of State-Society Relations among Heterogeneous Legal Actors	60
The Paradoxical Movement between State Laws and Societal Laws	60
The Centralization of Law in the Formal Legal System	61
Fragmentation and Societalization of Law in State Courts	63
Centralization of Law in Informal Legal Forums	64
The Decentralization of Law in Society	65
Characterizing the Legal Landscape: Legal Flexibility, Fragmentation, and Change	66
Dispelling Myths about Contesting Areas in Hindu and Muslim Personal Laws: Not So Different After All?	66
Balancing Cultural Accommodation and Gender Justice	68
Normative Heterogeneity and Cultural Accommodation: Making and Unmaking Religious Communities, the Conjugal Family, and Gender	69
Preventing the Ossification of the Boundaries of Religious Groups	69
Accommodating Intragroup Difference and Facilitating Intersocietal Dialog	70
Making and Unmaking the Conjugal Family	72
Hindu and Muslim Personal Laws and the Question of Gender Equality	74
Conceiving Agency and Its Limit	78
The Agency of Litigant Women	78
Individual Women’s Agency: Forum Switching and Gender Justice	79
Structural Change through Individual Agency: Hindu and Muslim Women Litigants and Changes in Personal Laws	80
Envisaging Legal Change through Collective Socio-Legal Processes	82
Women’s Transformative Collective Agency in Contouring the Socio-Legal Processes in Society	83
Women’s Transformative Collective Agency: Everyday Processes of Adjudication and Visions of Change	85
The Question of Gender Equality in the Shared Adjudication Model	88
Conclusion	89
3. State Law and the Adjudication Process: Marriage, Divorce, and the Conjugal Family in Hindu and Muslim Personal Laws	91
Introduction	91
The Functioning of the Family Court	92
An Overview of Cases Filed in the Family Court	95
The Disposal of Cases in the Family Court	97
The Nature of Justice in the Family Court: Consensual Rather than Adversarial?	100
Adjudication in Hindu and Muslim Personal Laws	104
Determining “Marriage” – Outlining Boundaries of the Community, Protecting Individual Rights	104
Void and Voidable Marriages: Streamlining Family Laws and Protecting Individual Rights	109
The Provision of Restitution of Conjugal Rights and the Standardization of Hindu and Muslim Personal Laws	114
The Regulation of Polygyny under Hindu and Muslim Personal Laws	116
Divorce in Hindu and Muslim Personal Laws	120
Divorce under Muslim Personal Law: The Debate over Triple Talaq	131
Divorce under Muslim Personal Law: Issues in Statutory Divorce	137
Women and Property in Marriage and Divorce Laws	139
Legal Provisions Applicable to Hindu and Muslim Women under State Laws	139
Maintenance and Alimony under Hindu Personal Law	141
Muslim Women’s (Protection of Rights on Divorce) Act 1986	145
Maintenance under Section 125 CrPC	151
Implementation of Maintenance Orders	158
Injunction for Property	162
Negotiating the Retrieval of Stridhan	168
Conclusion	172
4. Making and Unmaking the Conjugal Family: The Administration of Hindu Law in Society	175
Introduction	175
Caste Formation and Lawmaking among Meghwals	177
Migration to Mumbai and the Statist Construction of the “Caste”	178
Nationalist Movement, Naming the Community, and Attempts at Lawmaking	181
Exposure to Democratic Politics, Creating Structures of Governance, Constructing Identity through Laws	184
Democratizing Panchayats,Civic Awareness, and Law Reforms: From the Panch System to the Panchayat	187
Attempts at Repoliticization and the Conflict over Caste Constitution	189
The Decade of the 1990s: Consolidating the Caste Identity, Social Regulation, and Lawmaking	192
Summary of the Constitutional Provisions: Commonalities, Continuities, and Discontinuities	195
The Gendered Sphere among the Meghwals	198
Innovative Legal Process: Democratic Participatory Justice	200
Structure and Organization of the Meghwal Caste Panchayat	202
Process of Adjudication in the Meghwal Caste Panchayat and the Provision for Appeal	202
Similarities, Dissimilarities, and Hybridity in State Law and Nonstate Law	203
Who Is a Hindu, Who Is a Meghwal?	203
Consent	205
Differing Conceptions of Marriage and Divorce: Marriage as Fixed or Fluid?	209
Validity of Marriage	211
Procedural Aspects of Defining Valid Marriages	212
Divorce in Caste Laws	213
Economic Rights within Marriage and upon Divorce	216
Interactions between Diverse Societal Organizations and Actors	218
Contestations among Informal Legal Actors	218
Women’s Organizations as Informal Forums of Justice: Implementing State Law without Litigation	220
Women’s Organization as Moral Watchdogs: Women’s Organizations and Caste Authorities	221
Bargaining for Women’s Rights vis-à-vis the State and the Caste	222
The Caste Panchayat among the Sai Suthars	224
Internal Governance of Family Matters among the Sai Suthars	224
The Gendered Sphere among the Sai Suthars	227
Fragmented Caste Panchayat and the Adjudication of the Family within the Caste	229
The Caste Is the Public Sphere and the State Private	231
In the Shadow of State Law and Courts	232
Justice through “Other Means”	232
Women’s Experiences in State Courts	233
Dual Patriarchies of the Family and the State	234
Struggles for Legal Autonomy in Family Matters among the Kutchi Visa Oswals (KVOs)	237
The KVOs and the History of Migration to Mumbai	238
Forming a Panchayat	239
Family, Capital, and Religio-Cultural Organization	242
Gendered Sphere within the Caste	244
Protecting the Good Woman: Denial of Divorce in the Family Court	245
Rubber-Stamping Informal Settlements	247
Social Movement around Marriage and Divorce – Reaction to State-Led Reforms	251
State-Society Encounters in Law: Comparison of Caste-Based Legal Forums	252
Other Societal Legal Bodies: Women’s Organizations	254
Legal Actors in Society: Notaries, Lawyers, Middlemen	259
Leveraging Authority: Strongmen and Political Parties in the Adjudication of Hindu Law in Society	261
Conclusion	265
5. Juristic Diversity, Contestations over “Islamic Law,” and Women’s Rights: Regulation of Matrimonial Matters in Muslim Personal Law	267
Introduction	267
The Nature of Muslim Personal Law and the Classification of Legal Actors and Institutions in Societal Arena	268
Individual Legal Actors and “Private” Divorce	269
Interlawyer Negotiations	273
The Clergy	274
Strongmen	276
Organized Legal Bodies, Doorstep Courts, and Processes of Adjudication	278
The Administration of Muslim Personal Law in the Dar ul Qaza	278
Residential Committees	281
Civil Society and the Administration of Muslim Personal Law	284
The Doorstep Courts	290
Dispute Resolution among Organized Sects: The Khojas	292
Sociopolitical Changes in the Community between the 1950s and the 1990s	295
Family Laws among the Ithana Ashari Khojas	296
Interaction with Other Forums	298
The Question of Representation: Who Represents the Community?	300
Divergent Opinions on the Establishment of Religious “Courts”	302
Conflict and Convergence between Statutory Muslim Personal Law and Societal Laws	303
Agency and Its Constraints: Muslim Women’s Rights in the Legally Plural Sphere	312
The Campaign around Nikahnama: Reforms from Within	316
Competing Ideologies and Interests among Socio-Legal Actors and Institutions	320
Conclusion	323
6. Conclusion	325
What Factors Would Bring About a Change in This Model?	333
The Shared Adjudication Model Compared to Other Proposals for Accommodating Communities and Ensuring Gender Equality	335
Discussing Law Reform in Personal Laws	343
Conclusion	346
Appendix Appendix	349
Bibliography	351
Index	387