Courting Desire

Litigating for Love in North India

Rama Srinivasan

• Publisher: Rutgers University Press
• Year: 2020
• ISBN:
  9781978803558
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Inquiries into marital patterns can serve as an effective lens to analyze social structures and material cultures not only on the question of sexuality, but also on the nature of a private citizen's engagement with state and law. Through ethnographic research in courtrooms, community, and kinship spaces, the authoroutlines the transformations in material culture and political economy that have led to renewed negotiations on the institution of marriagein North India, especially in legal spaces. Tracing organically evolving notions of sexual consent and legal subjectivity, Courting Desire underlines how non-normative decisions regarding marriage become possible in a region otherwise known for high instances of honor killings and rigid kinship structures. Aspirations for consensual relationships have led to a tentative attempt to forge relationships that are non-normative but grudgingly approved after state intervention.The booktraces this nascent and under-explored trend in the North Indian landscape.

PART ONE

Localizing Marriage

1

Civil Marriage in Postindependence India

Birth of a Utopic Idea

In scholarly work, the institution of marriage represents a quintessential conflict between state law and community customs, where the former is often presumed to impinge on the latter. Notwithstanding feminist contributions to the literature, the state and laws continue to be perceived even in academic and intellectual circles as modern, liberal artifacts that threaten or reform traditions, depending on one’s perspective. Clifford Geertz had critiqued these binaries as an anthropological mischief that had reduced custom from thought to habit and law from thought to practice (1983, 208). Geertz treated law and customs—that is, rule following in general—as forms of local knowledge, arguing that a legal mind feeds on muddle as much as it does on order (217). Laws and customs are both ideational, borne of a disorderly dialogue as much as a well-planned design. In this chapter I focus on the nation-state, its legal designs for the institution of marriage, and the political dialogue that resulted in the Special Marriage Act of 1954.

Under the colonial regime, state agents had already undertaken massive codification drives to collate customs and draft personal laws, a process well documented in feminist historiographic works (Poonacha 1996; Uberoi 1993; Chowdhry 1994). This included carrying forward both the bureaucratic impulses of the state, which was needed to record customary practices in order to better govern the colony or “manage the population,” and take forward the modernizing zeal to “reform” the society. The drive to record customary practices is evocative of James C. Scott’s work on how the modern state reconceptualizes its subjects in its efforts to make the latter legible (1998).

According to Chowdhry, when it first took charge, the colonial government found the marriage patterns in the Punjab and Haryana ill-defined and questionable. She notes that any attempts at enforcing marriage registration were “rejected on the grounds that it was practically impossible to define what constituted marriage” (2007, 30). British administrators, who had undertaken the massive codification drive to “understand” local kinship networks, framed marriage as an “economic necessity” (29). This framing was tactically constructed to facilitate better management of the high agricultural revenue produced by the region as well as the large numbers of personnel (predominantly from the Jat community) needed for the colonial armies. The colonial government’s aim was maintainence of the status quo rather than change or “reform.” They recognized certain relationships as “marriages” so that the families were kept intact and could be tapped as productive and reproductive resources of the region. In their endeavor they were assisted by senior men in the community who acted as informants on customary rules. Though the British codifiers may have been skeptical of some of the norms and customs cited by these community spokespersons, they chose to go along with what they were told (29).

Codified customs were sourced from the community before they became tools in the hands of the government, but Chowdhry reveals that male elders in Punjab and Haryana used these codification drives as opportunities to mold state law to their advantage, making the rule of the patriarch more stringent in the process (90). In North India, codification also defined and regulated what constitutes marriage through a dialogical process. Marriage laws in postindependence India similarly evoke both this dialogue and the patriarchal bias. The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 carried forward the state’s efforts to make the population legible by making registration practices obligatory or appealing in different parts of the country, and by molding the institution in bureaucratic terms—something I will examine more closely in the next chapter.

Despite its vulnerability in the face of caste patriarchy, the Indian judiciary has maintained a tenuous balance as the proverbial benevolent patriarch. Judicial intervention on questions of marriage and family is imbued with concerns about the financial and physical protection of women, and it largely maintains that women’s guardians (kinsmen or husbands) must ensure their well-being, at least in the corporeal if not the psychological sense of the term. Jurisprudence on marital troubles in India espouses values of a liberal modernity marked by equal rights, friendship, and companionship, but in practice it settles for pragmatism and compromise.

In her study of family courts that adjudicate on marital disputes and domestic violence, Srimati Basu finds that the law functions both at a utopic level where gender equity is an end goal and as a strategy where resolution is prioritized over persistent discord (2015). The intractable legal problem of marriage demonstrates that as an institution it is, by definition, “persistently associated with conflict, deprivation and exclusion” (3). To smooth over this ideological dilemma, the judiciary enforces a “coercive harmony” that does not necessarily resolve conflicts over power or property but nevertheless addresses them messily (4). The trouble with marriage, as several feminist scholars before Basu have also highlighted, is that the state is unable to live up to its utopic promise of an equality-based ideal family situation. This is not only because legal processes are long and inefficient in achieving their goals—and social beings are also not completely molded by legal frameworks. According to Basu, the law operates as a strategy or force although we perceive it through the powers vested in state institutions and agents.

My research suggests that law is a process as well as an ongoing dialogue. My ethnographic data does not support the conclusion that there is resolution—there are, however, openings and closures. Closures are not to be confused with end goals. I agree with Basu that law does not resolve the “trouble with marriage,” but law can take the conversation forward or end one that has stagnated or deadened. I will discuss this idea of closures and openings more thoroughly in chapter 7, but in this chapter I focus on the conversational aspect of law. In the following discussion of the archival research I conducted at the parliament library in New Delhi, I delineate the terms in which marriage was defined and regulated in liberal, utopic frameworks in the early years of postindependence India.

This historical perspective assumes importance in the context of my ethnographic research that deliberates extensively on what constitutes a valid marriage. According to the letter of the law, validity for marriages can be sourced from either the civil marriage law or personal laws based on religion. The Hindu Marriage Act, 1955 and the Anand Marriage (Amendment) Act, 2012 (for the Sikh community) were passed by the Indian parliament, whereas minority communities such as Muslims and Christians are regulated by personal laws instituted under the colonial government.¹

The Special Marriage Act of 1954 allows for intra- and intercommunity marriages as well as the registration of a marriage previously solemnized under a personal law. Unfortunately, in the public mind the law is often associated with interfaith marriages only, and its benefits for intrafaith couples are underemphasized. Several lawyers I spoke to were ignorant of the fact that the Special Marriage Act was applicable to any heterosexual couple.

While there is a rich scholarly literature on personal laws and legal practice associated with them (Agnes 1995; Vatuk 2008; Sinha 2012), civil marriage finds attention only in Perveez Mody’s The Intimate State (2008), in which she analyzes the Special Marriage Act of 1872. The later Special Marriage Act of 1954 was a fresh legislation, not an amendment on the colonial law pertaining to the Brahmo Samaj, a rationalist community in East India that sought the registration of weddings conducted without rituals. Although both laws pertain to marriages that can be solemnized without religious ceremonies, the institution itself is defined in divergent ways. The Special Marriage Act of 1954 drew on multiple sources, both religious and secular, but both laws represented a liberal modern thrust—one was rooted in a civilizing mission undertaken by a colonizing government and the other was an early assertion of an aspirational democracy and a young nation-state (that is, India). The rest of this chapter will analyze aspects of the parliamentary debates on Special Marriage Bill to highlight the conversational aspect of law, preceded by a brief discussion on conceptualizing secular marriages, as this question guided the debates in subtle ways.

The Idea of Secular

Civil marriage laws in India draw on some religious conceptualizations, troubling the popular notion that civil marriage is secular whereas personal laws are not, by definition and design. But what does “secular” mean in the context of marriage, or more ambitiously, what does civil marriage bring to a secularizing society? These questions are contentious when the nation-state appears to be dropping the idea of secularism and calls for a Hindu nation are getting increasingly clamorous.

A stock question I asked many of my interviewees is whether they believed marriage to be religious, social, or legal. In the communities I studied marriage is determined not by religious rituals but, overwhelmingly, by social validation. And this view is not limited to North India, where I conducted my research; customary forms of marriage across South Asian communities are traditionally defined and validated by the social witnessing of rituals (Ortner 1978; Raheja 1988; Fruzzetti 1993). According to the Hindu Marriage Act, whether a couple seeks to marry in a registry office or to register a marriage previously solemnized through rituals, witnesses are key to ensuring the validity of a marriage.

In many ways, the importance of religion lies in the position it enjoys in state law. I focus here on Hindu marriages and the Hindu Marriage Act because Haryana is overwhelmingly Hindu (with a few isolated pockets of Meo Muslim communities). The Hindu Marriage Act recognizes religious weddings, as well as customary forms of marriage, even when the bride has not attained the age of consent (eighteen). That is, the weddings of girls over the age of fifteen years are considered valid, even though her parents and spouse may be held criminally culpable for arranging a wedding of a minor. Marital rape, incidentally, is currently recognized only in case of marriages involving legal minors. Because it provides for marriage registration, the Hindu Marriage Act is responsible for the increasing popularity of religious and Arya Samaj weddings, which require saptapati (seven steps around the fire), over certain customary rites among different caste and indigenous groups.² The aspiration or even necessity to secure state certification of marriage reflects the importance of the state in everyday lives. The need to be legible to the state has resulted in an increasing homogenization among Hindu communities, which, I argue, also reflects a secular impulse that coexists with meanings that to a certain extent depend on religion. That is, the motivations for having a religious wedding are largely secular, even if the origins of the law are not.

The Hindu Marriage Act, consequently, has resulted in a gradual, if mostly invisible, secularization of the community, where the standardization of wedding rites has come to represent the power the state vests in them through its control over validation processes.³ This secularism is not atheistic but the original intention was to bring religious laws under a state-regulated framework where the state could intervene to ensure greater individual freedoms with regard to marriage and family rights, which religion and customary provisions had circumscribed. Though the law recognizes customary practices of weddings, the customary and caste rules on marriage alliances, exclusions, and specific incest taboos are not enforceable on individuals who defy kinship norms. Caste conclaves, for example, have sought to forbid consanguine marriages and invalidate unions that violate incest taboos, known locally as intra-gotra marriages, but these efforts have been overruled repeatedly by the national government and the courts.⁴

Hindutva politics threatens to erode secularization and greater individual freedoms in the community by making the state subservient to its own designs. It is the Hindu supremacists’ ultimate revenge against the advances made by the majority community in securing individual freedoms through legislation. In a curious turn of events, the Indian state today presents greater opportunities for Muslim women to petition for the reform of marriage practices such as triple talaq and polygamy—not to promote greater freedoms for Muslim women but to target what Hindu men often see as the privileges enjoyed by Muslim men.⁵

Hindutva politics has also advanced this movement through its Love Jihad campaign, aggressively targeting intercommunity marriages under the Special Marriage Act. On July 20, 2018, the Punjab and Haryana High Court struck down key provisions of the Haryana government’s “Court Marriage Check List” for marriages conducted under the law. The Haryana government had sought to send notices to the parents of couples who had petitioned to marry under this law, a move that was struck down by the high court as a violation of the (now) fundamental right to privacy (and also beyond the purview of the Special Marriage Act). Additionally, in relaxing the domicile requirements for proof of address and ensuring privacy by dissuading the public display of applicants’ names, Justice Rajiv Narain Raina made a statement that challenges recent trends in national and regional politics pertaining to marriage and religion. According to his court order, “The State is not concerned with the marriage itself but with the procedure it adopts which must reflect the mind-set of the changed times in a secular nation promoting inter-religion marriages instead of the officialdom raising eyebrows and laying snares and landmines beneath the sacrosanct feet of the Special Marriage Act, 1954 enacted in free India to cover cases not covered by any other legislation on marriages as per choice of parties for a court marriage.”⁶

Justice Raina defiantly claimed that India is a secular nation where the state’s role should appear in sync with the broader social trends, at a time when leaders of the ruling party are seeking to institute a Hindu nation-state and curtail individual rights. By holding executive action to be excessive and tantamount to moral policing when procedures are implemented or designed with the intention of preventing rather than facilitating marriages under this law, Justice Raina further stressed that the state’s role is one of a facilitator rather than a regulator.

Here, the judiciary is seeking not only to bring marriage under the purview of the state but also to clearly delineate and limit the powers of state agents on the question of marriage. Secularism re-emerges here as a moral force that can maintain state’s power over the concerns of the society and religious representatives and secure individual freedoms. As a legal process and dialogue, the high court judgment strives to uphold both the utopic ideals that the judiciary is ideologically inclined toward and the original promise of the Special Marriage Act, which Justice Raina holds sacrosanct. Being secular can be a revered goal, just as civil marriage can draw on religion without being subsumed by it.

Debating Secularity, Sexuality, and Severance: Conversations on the Special Marriage Bill

The Special Marriage Act, 1954, opened up the possibility ...

Table of contents

• Cover
• Series Page
• Title Page
• Copyright
• Dedication
• Contents
• Foreword by Péter Berta
• Preface
• Introduction: Living and Loving in North India
• Part One. Localizing Marriage
• Part Two. State and Subjectivity: Capacity to Aspire in Postagrarian North India
• Part Three. The Politics of Love, Marriage, and a Livable Future
• Conclusion: Closures, New Beginnings, and Happily Ever After?
• Appendix
• Acknowledgments
• Notes
• References
• Index
• About the Author