Q: Examine the role played by law and custom in shaping women’s inheritance property rights in

different contexts that are the focus of the following studies.

Aazam Abdul Nisthar

Sociology of Law (Semester III)

Law and Custom: The construct of ‘Hindu Law’ in Colonial India.

The interaction of law and legal regimes with customary laws and local practices of its subject
societies have historically performed a dual function. Like the immediate legislative enactments
in postcolonial India which emphasized on modernization, progress and developmentalist state,
certain laws introduce liberal values of liberty and equality, thereby judicially intervening against
the reproductive practices of inequality that derive its legitimacy and practice in either or both
customary laws or/and moral economies impinging on religious values. But integral to this
process of modernization was a systematic displacement of local values, norms and customs,
from which derived the collective identity of the subject population. Such a process, therefore,
entailed systematic violence from the part of the modern state. This was so because values of
modernity and progress rested on an episteme that forcefully stressed upon individuality and
universal values, as against collectivity, differences, and plurality. While this is so, and legal
regimes of modern nation-states do wield coercive power over local societies they govern, they
also do engage in a negotiation with the existing values and practices of subject societies,
incorporating them in the legal system and extending to them the judicial sanction (Carroll
1983).

This was particularly so in the colonies of the nineteenth and twentieth centuries, as in the case
of British India, where the colonial administrators, in their attempt to avoid unrest, strife or
rebellion, allied with the provincial rulers and abided by the brahmanical values rooted in
orthodox Hinduism. As a result, the legal regime in British India was an anomaly; in its vow to
protect the local, it neither enacted progressive statutes and legislations nor conserved the
Customary laws which were too diverse and incomprehensible to them; it in effect created an
oriental myth of Hindu Law as universally applicable to people of Indian subcontinent, while in
actuality the Shastric Hindu law and brahminical values were only the concerns of ‘regenerative’
‘upper’ castes- particularly the Brahmins, Kshatriyas and Vaishyas. The vast majority of people
who belong to Sudra and labouring castes, who were proscribed from the learning of Sanskritic
texts, followed their customary law as applicable to their community, diverse on the basis of
caste, tribe, region, ethnicity etcetera. The consequence of such a judicial construct of Hindu
Law, met with an actual practice of customary laws by Indian people, in variance and opposition
to Hindu Law, is succinctly defined by Lucy Carroll in her article:

“Hindu Law as administered by the British-Indian courts was a mixture of Shastric Law, custom,
and case-law, with a hardy dose of English legal concepts and notions, simplified and
standardised for ease of application and administrative convenience. Not surprisingly, the end
result contained several anomalies (Carroll 1983: 369).”

Laws, therefore, share a complex relationship with customs. It is therefore important to

understand anthropologically the operationalization of laws with regard to the subject societies,
and within a particular social, political and temporal context. In the following sections of the
essay, we attempt to understand the effect of law and custom on prevailing gender relations in
the society, and particularly women’s property inheritance rights.

Law, Custom and Gender relations.

One of the areas where to examine the operationalization of law, and its negotiation with the
customary laws, are its interaction with gender relations. While gender relations constitute a
broad discourse, what we refer to here are personal and civil laws that directly affect and are
affected by the existing gender relations in society, and the patriarchal subordination against
women- from the spaces and positions of power- in the customary practices of local societies, to
the formal courtrooms of modern legal regimes.

Law is, in fact, a dynamic actor in household relations; an intimate realm which is, however,
immediately responsible to norms of kinship relations and customary laws, than laws of the
modern state. And even though the judicial system in India has accommodated the customary
laws and practices of particular communities and social groups in its fold, it has, nonetheless,
been an intervening force that influenced the behaviour and mores of people in opposition to the
existing custom. The statutory and legislative laws, therefore, often introduce patterns of
behaviour that derive its legitimacy from such newly enacted laws, rather than rules of the
custom (Carroll 1983: 385). In the following sections, we analyse particular statutory legislations
that enabled certain acts which were forbidden under various customs in India; legislations that
are considered enabling civil rights of women in the country. In the next section, we analyse the
Hindu Widow Remarriage Act of 1856, enacted by the British colonial state, and in the
following section proceed to analyse the Hindu Succession Act of 1956, enacted by the
postcolonial State immediately after Independence. We do so with the premise of understanding
the effect that laws and customs have on the gender relations that exist in a society.

Hindu Widow Remarriage Act (Act XV of 1856):

The Hindu Widow Remarriage Act of 1856 is a case that succinctly captures the anomaly that
came to define the legal regime in British India. The Shastric Laws in Brahman religion, with its
jurisprudential bases in Sanskritic texts- vast in scope in itself- prohibited widow remarriage. As
a result, widows- including child widows- belonging to upper caste Hindu communities, came to
be perceived at least from the nineteenth century as victims of an unintended misreading of the
Shastric Laws.The upper caste social reformers, who campaigned against the ‘ills’ within what
they conceived as a Hindu Society, believed certain of their practices to be conspicuously anti-
woman, and racial against Sudras.

The Hindu Widow Remarriage Act of 1856 was enacted as a social reform legislature in such a
context of reform in Hindu religion. It extended judicial sanction to remarriage of widows, who
could otherwise not marry under the Hindu Law. But the Act, whose clause indicated a strong
disagreement to the Hindu Law, and the purpose of which was to extend the judicial security
against it, carried sections that came to enforce strictly certain aspects of the Hindu Law with
regard to marriage and widowhood. Apart from definitions of ‘marriage’ borrowed from the
customary practices of upper caste Hindus, Section 2 held that upon remarriage, the inheritance
to property of the deceased by the widow- which she holds until her death in many cases- shall
be demanded for forfeiture by succeeding male agnatic kin of the deceased.

But widow remarriage was, in fact, very prevalent among the Sudras and tribes, who constituted
around eighty percent of the population- yet enumerated as Hindus in the Census in Colonial
India. Their customary law neither prohibited widow remarriage, nor was child marriage
prevalent among them. The social reform legislation, therefore, meant no reform to them, and
instead created new hurdles unforeseen. The condition of forfeiture of property of the deceased
husband described in the Act XV, ran against customary practice of most of the Sudras and
indigenous inhabitants, who followed norms and rules in accordance with the customary laws of
their respective jati, ethnicity or tribe. For them, for a woman to retain the property of her
deceased husband even after remarriage was not unknown.

Carroll, in her article elaborates extensively on the issue by dissecting diverse cases under
British-Indian courts that dealt with the widow remarriage and property laws (1983). While
castes and tribes whose customary laws were strictly opposed to Hindu Law were regarded as
acting outside the purview of the Act in the event of widow remarriage, the castes which were at
variance to the Hindu Law (rather than strictly oppositional), were forcefully brought under the
purview of the Act, even when they consciously carried them under their customary law. The
only exception to the rule, as Carroll illustrates, was the Allahabad High Court, which ruled that
if forfeiture of property from the widow upon remarriage is to be believed to have existed in any
customary law, it must be proved by the concerned party as existing, and not the other way
around. Allahabad High Court held the same position in all the subsequent cases under its
jurisdiction. The other major high courts drew their judgements from metaphors used in
Sanskritic texts, even when the legal subjects before them carried their act under their concerned
customary law.

The Act XV of 1856, in short, represents how by universalizing the Hindu Law in its judicial
practice, the British-Indian courts violently displaced customary laws in the cultures of the
majority of Indian people. As Carroll puts it, it represents the trend where colonial legal regimes
contributed to the Brahminization- or Hinduization- of traditions and people in the cultural and
geographical fringes of the Hindu society. It also affected avarna women's property rights who
had to forfeit their right to deceased husband’s property upon remarriage, which some of them
otherwise continued to enjoy under their customary law.

The Hindu Succession Act 1956:

The Hindu Succession Act of 1956 is understood as one of the legislations that revolutionized
the legal rights of women in the country. The Act held that women are legally entitled to the
inheritance of ancestral and familial property equally as men, which otherwise women in India
were prohibited from inheriting in varying degrees under customs of respective cultures. Under
the Hindu Law, women were excluded from inheritance; the male agnatic kin inherited the
landed property in all cases. This is owing to the fact that it follows patriliny, and a woman is
seen as a transient member of the natal family who, with time, dissolves herself in the lineage of
her husband. A woman’s share, therefore, is recognized (if at all), as a widow; she shall inherit
the self-acquired property of her deceased husband.That property shall continue with her only till
her lifetime, which then shall go to the nearest male agnatic kin of the deceased. The woman’s
share in the Hindu Patrilineal system, in short, only recognized the woman’s share as a widow.

The statutory legislation of 1956 therefore aroused uproar among the traditional communities.
Chawdhry, based on her fieldwork and research in rural Haryana, argues that this created an
anxiety among the patriarchal forces (1997). She argues that the rural societal structure sees this
legal enablement as a right granted to women in two shares: as a widow and as a daughter. The
‘share’ of the widow already existing, it is the share of the daughter- which this Act enabled as
legal- that came to be perceived as a threat and an attack; on tradition and against men.

One of the kinship relations that is sacrosanct in the Hindu patrilineal system is that of the
brother and sister. The brother shall, in many cases, matter more to the sister than her husband.
While this is so because permanent relations are perceived as of greater value than acquirable
relations, they carry significant consequences for women. The husband is perceived as the lover
of the woman, and her brother, the ‘protector’; even from her own husband (wherever and
whenever the need arises). The condition of a woman who doesn’t have a brother was considered
sorrowful. Even when a woman remains only a transient member in her natal family, her
relationship to her brother remains sacrosanct and intact.
The Hindu Succession Act was, therefore, seen as a threat to the sacrosanct relation of brother
and sister than anything else; for when a daughter claims her rightful share in the familial
property, it is in effect a share against her brother who otherwise claims absolute inheritance. A
kinship tie that was reinforced through popular cultural means like folk songs, rituals like Raksha
Bandhan etcetera, was thus challenged by a law that enabled civil rights of women. The Act was
thus sought for amendment at the Legislative House of Haryana State, an assembly
conspicuously dominated by men. It was however vetoed down by the President of India. It is
pertinent to note here, how, as Rao argues, the seats of power higher in the rungs and removed
from the ground, fails to include the socio-symbolic meanings attached in the local traditions.
The ‘universal rights language’, argues Rao, fails to consider the social embeddedness of
women's land claims (2007: 314).

The Act is today widely acknowledged as constituted of failures and limitations, even while
being elementary to the project of modernity and development seen as integral to the state in
postcolonial India. A nuanced understanding of the operationalization of law, therefore must
consider the social context, and political situatedness of law, and its relation to custom.

Women's Inheritance in Matriliny.

Studies of customs, laws, and gender relations suffer from a dearth of literature on matrilineal
systems of kinship, and the conceptualization emerging thereby. In the case studies of laws that
we discussed above, both the cases pertain to the effect that laws forced on patrilineal systems of
kinship. Matrilineal societies, many of which also follow inheritance of property through lineage
of women members of the family, provides us a vantage point to dissect deeply the social
meanings and material practices beyond a normative understanding of inheritance rights of
women.

Nongbri, in her article on Khasi matriliny and their custom of inheritance, argues that it is
significantly different from the patriarchal and patrilineal Hindu system of kinship (1988). In
Khasi matriliny, the property is inherited to the female members of the lineage. Men have no
right over ancestral property, and it is only his own self-acquired property that a man holds,
which is in his lifetime. The conceptual difference over relations of reproduction in Hindu
patriliny and Khasi matriliny best illustrate the role of women in kinship relations.
The ‘seed and the earth’ metaphor widely used in Hindu system of kinship highlights the role of
the man as ‘seed provider’ and hence the life-giver; it views women as mere carriers of the seed;
"man is the owner of the field and the seed, hence he is the master of the child and of the woman
who bears his child. (Dube, referred to in Nongbri 1988: 73)". Conceptualization of reproduction
in Khasi matriliny, stands in sharp contrast to this Hindu understanding. Here, the life-giving
force is the “blood and flesh” of the mother, not the ‘seed’ (metaphor for semen) provided by
men (Nongbri 1983: 74). It is from the mother that the blood is transmitted, and the lineage and
the clan is thus derived from them.

However, while women are seen central in family, definitions of gender relations and gender
roles permeate into the realm of family- not to say of the realm of production. Gender hierarchy
persists, and as Nongbri argues, Khasi physiology privileges masculinity to believe that while
women are central to lineage, they are still to be protected by men and masculine 'strength'.
Therefore, even when it is through the female line that the ancestral property is inherited, the
effective management of the property rests with men who are central in the relations of
production.

Yet, the conceptual difference of women’s role in the family holds significant consequences for
our understanding: while women in Hindu patrilineage negotiate against multiple actors and
institutions, the negotiation or struggle is against patrilineage itself. In matriliny, as Nongbri’s
study on Khasi matriliny demonstrates, the source of inequality is not the system of matriliny per
se, but in the definitions of gender relations and gender roles that permeate in all spheres of
social life. Khasi matriliny, in other words, enhance women's social meaning, however limited
that is in enabling equality in their material culture.

Conclusion:

Laws and legal regimes began to significantly affect, and in many cases displace, the local values
and customary practices of subject populations in India since the onset of British colonialism.

Modern state laws, on a peripheral level, imagined equal and just practice based on a “language
of universal rights”. In the process, it pitted the custom against itself; while custom is a source of
inequality, law is a driver of equality and progress. However, this approach fails to see the
political and temporal situatedness of law. As the case of Hindu Law formed by the British
colonial administration suggests, modern laws are not essentially posed against customs; in the
course of negotiation and interaction premised on political and social power, laws also do
integrate certain customary practices. And as seen in the aftermath of Act XV of 1856, laws
universalize hegemonic customs (in this case, brahminic customs) to enforce them on subject
populations. Here, modern law is in effect an extension and solidification of dominant customary
practice.

Studying the effect of custom and law on inheritance rights of women, must therefore transcend
the dichotomous understanding of law and custom, men and women, etc. In traditional social
structures and customary practices, women are, as evidenced universally, placed in a
disadvantaged position than men. But the presumption that customary practices are necessarily
discriminatory against women is a false understanding, as Rao argues. It is, in fact, an epistemic
limitation of law. This is not to negate the intervention of law against reproduction of gender
inequality legitimized through customary practices.Legislations like the Hindu Succession Act of
1956, which legally enabled women to inherit ancestral property equally as men, was in fact one
of the legislations that revolutionized women’s rights in the country. But as Chawdhry details,
the law failed to ensure the effective implementation and transcend patriarchal control (1997).
We argue that patriarchal ideology that permeates and defines most traditions and customs,
permeates the realm of legal practice, and functions from within the State that enforces those
laws. From the patriarchal household, and counsels of community or village leadership that
adjudicate a dispute over property, to courtrooms of modern legal regimes, women face judicial
bias that reproduce gender hierarchy in its practice. Therefore, rather than reproducing a
dichotomy in understanding women's rights, it is important to analyse how women operationalize
their legal rights within their social context and positionality. Rao’s concept of hybridization, is
here important to understand how women actualize their legal rights by navigating through
constraints and possibilities of laws and customs, as perceived from their subjective
positionalities (2007). The process of hybridization involves a construction of a new field of
practice; of contextually picking different rules and norms.

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Bibliography

Carroll, Lucy. 1983. ‘Law, Custom, and Statutory Social Reform: The Hindu Widows’
Remarriage Act of 1856’. The Indian Economic and Social History Review. 20(4):363-388.

Chowdhry, Prem. 1997. ‘A Matter of Two Shares: A Daughter’s Claim to Patrilineal Property in
Rural North India’. The Indian Economic and Social History Review. 34(3):289-320.

Nongbri, Tiplut. 1988. ‘Gender and the Khasi Family Structure: Some Implications of the
Meghalaya Succession to Self-acquired Property Act, 1984’. Sociological Bulletin. 37(1&2):71-
82.

Rao, Nitya. 2007. ‘Customs and the Courts: Ensuring Women’s Rights to Land, Jharkhand,
India’. Development and Change. 38(2):299-319.