India’s family laws, also called personal or customary laws, govern features of family life such as marriage, separation, divorce and its consequences, maintenance for children and other dependents, inheritance, adoption, and guardianship. Independent India retained many aspects of the plural family law system of the British colonial period as a means of cultural accommodation within its multicultural society, especially concerning the accommodation of Muslims. Different family laws govern India’s major religious groups—Hindus, Muslims, Christians, Parsis, and Jews—as well as many tribal peoples. Hindu family law also governs those who follow religions of South Asian origin, such as Sikhism and Jainism.
Indian legal pluralism is in tension with the secular commitments of the Indian state, and with the constitutional aim to promote gender equality as the various family law systems uphold unequal gender relations. India’s political elite attempted to resolve these tensions in the first decade after independence, through the partial homogenization and reform of Hindu law, the introduction of optional marriage laws in a Special Marriage Act and a constitutional commitment to introduce a uniform civil code to govern all Indians. These policy choices restricted the state’s social engineering, however, to Hindu law. They appeared likely to limit efforts to promote gender equality through legal change, particularly through changes in the laws governing the religious minorities as such changes were supposedly left to the initiative of unspecified representatives of these groups, who in practice were often conservative religious and political elites. The price of Indian legal pluralism reflects the problems seen in most multicultural arrangements, in which laws justified in terms of enabling cultural pluralism do not necessarily reflect group norms or practices. The scope for legal change is limited even if citizens demand changes in gender-biased group laws.
Complete legal pluralism involves the application of distinct laws to different cultural groups in all areas of social life, adjudication by distinctive community courts, and a lack of reference to common principles (such as those recognized by international human rights law or national constitutions) in making and implementing law. Where religious groups are the social units to which distinctive laws apply, religious leaders, religious scholars, and priests are the main or sole agents of lawmaking and adjudication. Legal pluralism is only partial in India in many respects. The laws governing Indians are uniform, other than those concerning family life. Indian judiciaries, largely trained in Western legal traditions, are the main agents of adjudication in all disputes brought to state courts. Aside from the state’s judiciary, different religious and cultural groups have their own community leaders who act as adjudicative agents, the community institutions involved in adjudication include Hindu caste associations, Muslim prayer groups (jamaats), and local Christian churches and Parsi temples. Individual religious figures, caste leaders, and popularly recognized informal judges also adjudicate family disputes.
The complex nature of Indian legal pluralism provides some room for changes in family law, even while impeding rapid transformation. Over the last generation, Parliament changed the provisions governing all Indians for the prohibition of dowry, and for maintenance payments to indigent women upon separation or divorce. It made divorce easier for Hindus and Christians, including on grounds of mutual consent. Some state legislatures gave daughters the right to demand the partition of ancestral property so that they could access their shares, equal to those of sons, that the law assures them.
Prompted by the growth of public interest litigation, especially since the “National Emergency” of the mid-1970s, the judiciary initiated more changes in family law by interpreting some statutes and features of nonstatutory law in the light of the fundamental rights guaranteed by the Indian constitution. The judiciary changed family law more often than legislatures did, and sometimes prompted subsequent legislative change. This was true, for instance, of the changes introduced in the grounds on which Hindus and Christians could seek divorce, and in the alimony rights of Muslim women.
World History
