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Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness

Published online by Cambridge University Press:  04 October 2010

Chandra Mallampalli
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Extract

Postcolonial perspectives on India's past have tended to focus on representations, which served the purpose of colonial domination. The view, for instance, that Indian society is fundamentally constituted by caste or religion legitimated the supposedly secular or neutral system of governance introduced by the British. Building upon Edward Said's Orientalism (1978), scholars have suggested that some of our most widely held assumptions about Indian society were more rooted in an imperial worldview than in real social experiences of Indians. The attempt of colonial administrators to understand and govern India through the study of ancient texts formed the basis of an Indian variety of Orientalism. How colonial courts deployed this text-based knowledge in relation to the actual practices of religious “communities” is the central focus of this essay.

Type
Forum: Maneuvering the Personal Law System in Colonial India
Information
Law and History Review , Volume 28 , Issue 4 , November 2010 , pp. 1043 - 1065
Copyright
Copyright © the American Society for Legal History, Inc. 2010

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References

1. See, for instance, Carol Appadurai Breckenridge and van der Veer, Peter, eds., Orientalism and the Postcolonial Predicament: Perspectives on South Asia (Philadelphia: University of Pennsylvania Press, 1993)Google Scholar, Inden, Ronald, Imagining India (Indianapolis: Indiana University Press, 2001)Google Scholar, Cohn, Bernard, Colonialism and its Forms of Knowledge: The British in India (Princeton, N.J: Princeton University Press, 1996)Google Scholar, and Dirks, Nicolas, Castes of Mind: Colonialism and the Making of Modern India (Princeton, N.J: Princeton University Press, 2001)Google Scholar.

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3. For a discussion of the evolution of Christian marital and inheritance law in India, see Mallampalli, Chandra, Christians and Public Life in Colonial South India, 1863–1937: Contending with Marginality (London: RoutledgeCurzon, 2004)Google Scholar, part I, “Legal Constructions of Religious Identity.”

4. On this development, see Menski, Werner F., Hindu Law: Beyond Tradition and Modernity (New Delhi: Oxford University Press, 2003), 39–40Google Scholar; and Derrett, J. Duncan M., Religion, Law and the State in India (New York: Free Press, 1968), 305–7Google Scholar. See also Derrett's discussion of the tension between sacred texts and the living tradition of Hinduism (ibid., 250).

5. Nicolas Dirks, Castes of Mind, 45.

6. It is important, however, to differentiate the domain of law from other sites in which Indians did successfully appeal to “immemorial custom” to secure their interests. The colonial state sustained caste privileges, anchored in mirasi land tenure rights. Because it treated such rights as being “religious,” the colonial state chose not to interfere with them. See Viswanath, Rupa, “Spiritual Slavery, Material Malaise: ‘Untouchables’ and Religious Neutrality in Colonial South India,” Historical Research 83(219) (Feb. 2010): 124–45CrossRefGoogle Scholar.

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8. For other studies of how courts became venues for Indian agency, see Price, Pamela, Kingship and Political Practice in Colonial India (Cambridge: Cambridge University Press, 1996)Google Scholar, and Brimnes, Niels, “Beyond Colonial Law. Indigenous Litigation and the Contestation of Property in the Mayor's Court in Late Eighteenth-Century Madras,” Modern Asian Studies 37 (3) (2003): 513–50CrossRefGoogle Scholar.

9. Menski, Hindu Law.

10. Ibid., 37–39.

11. Ibid., 81.

12. Galanter, Marc, “The Displacement of Traditional Law in Modern India,” in his Law and Society in Modern India, ed. Dhavan, Rajeev (New Delhi: Oxford University Press, 1997), 15–36Google Scholar. Reprinted from Journal of Social Issues (24) (1968): 65–91. See also Galanter, “The Aborted Restoration of ‘Indigenous’ Law in India,” in Galanter, Law and Society in Modern India, 37–53.

13. J. Duncan M. Derrett, Religion, Law and the State in India, 274–320.

14. Menski, Hindu Law, 125.

15. Ibid, 81.

16. Ibid, 125.

17. Davis, Donald, “Traditional Hindu Law in the Guise of ‘Postmodernism:’ A Review Article: Werner Menski, Hindu Law: Beyond Tradition and Modernity,” Michigan Journal of International Law 25 (Spring 2004): 736–39Google Scholar.

18. See in particular Fuller's discussion of Sri Venkataramana Devaru v. State of Mysore A.I.R. 1958 S.C. 1402. Against the conservatism of Agamic Hinduism, the Supreme Court insisted that because Agamic temples were “public,” Harijans had to be admitted. Fuller, C. J., “Hinduism and Scriptural Authority in Modern Indian law,” Comparative Studies in Society and History 30 (2) (1988): 232–35CrossRefGoogle Scholar.

19. Davis, Donald R. Jr., “Law and ‘Law Books’ in the Hindu Tradition,” German Law Journal 9(3) (2008):315Google Scholar.

20. See Galanter, “Displacement of Traditional Law,” 24–25.

21. Of the two, the Mitakshara is believed to carry a wider influence throughout India, forming the basis of many approaches to Hindu inheritance law. Both commentaries were translated by H. T. Colebrook under Governor General Warren Hasting's official policy of Orientalism. This policy promoted the study of Indian languages, culture, and literature in order to more effectively administer territories under Company rule.

22. Macnaghten, William Hay, Principles of Hindu and Mohammadan Law Republished from the Principles and Precedents of the Same (London: Williams and Norgate, 1862), 17Google Scholar.

23. The two schools also differ in their interpretation of the actual order or progression of inheritance, or the sapinda relationship. The Mitakshara teaches that higher degrees of consanguinity result in stronger claims to proprietary rights. The Dayabhaga, by contrast, stresses the ritual proximity of persons who offer pinda or rice balls to the deceased at the shraddha (funeral) ceremony. The offering of pinda is believed to provide a “spiritual benefit” to the deceased, and this benefit legitimates varying degrees of proprietary entitlement. For a discussion of controversies surrounding interpretations of both schools, see Rocher, Ludo, ed., Jimutavahana's Dayabhaga: The Hindu Law of Inheritance in Bengal (Oxford: Oxford University Press, 2002), 25–32CrossRefGoogle Scholar. See also Colebrook, H. T., trans., Daya-Bhaga and Mitaksara: Two Treatises on the Hindu Law of Inheritance (New Delhi: Parimal, 1984)Google Scholar. This is a reprint of the Calcutta edition published in 1883.

24. See Derrett's discussion of these questions in Religion, Law and State in India, 41–55.

25. Charlotte deposed 101 witnesses, Francis 150 witnesses. These commented extensively on issues of dress, rules of association, caste, and cultural dimensions of Christian identity (Abraham v. Abraham [1863]. Privy Council Cases with Judgments. House of Lords Library, British Library). A more detailed account of Abraham v. Abraham is found in Mallampalli, “Meet the Abrahams: Colonial Law and a Mixed Race Family from Bellary, South India, 1810–1863,” forthcoming in Modern Asian Studies 42 (5) (2008): 929–70.

26. See, for instance, Ponnusami Nadan v. Dorasami Ayyan (1880), I.L.R. 2 (Mad.) 210; Sinammal v. Administrator General of Madras (1883), I.L.R. 8 (Mad) 171; and Administrator General v. Anandachari, (1886) I.L.R. 9 (Mad.), 471. These are discussed at length in Mallampalli, , Christians and Public Life in Colonial South India: Contending with Marginality (London: RoutledgeCurzon, 2004)Google Scholar, chap. 3.

27. Ilbert, Courtenay, “Application of European Law to Natives of India,” Journal of the Society of Comparative Legislation (1) (1896–1897): 216–17Google Scholar.

28. K. Michael Pillai v. J.M. Barthe et al., 1917 A.I.R. (Mad.) 432.

29. Ibid., 432–34.

30. See Irschick, Eugene, Dialogue and History: Constructing South India, 1795–1895 (Berkeley and Los Angeles: University of California Press, 1994)Google Scholar, chap. 4.

31. In essence, Napier's comments defended Church hierarchy against the efforts of the Vellalas to subvert it. By suing for the right to discriminate, they were essentially demanding the right to tell a bishop whom he could and could not employ at the altar, during festivals or in the serving of communion. This violated the very basis of authority in Catholicism. Hence, if Vellalas wanted to observe laws of pollution, they would have to secede from Catholicism and form a separate religion. (K. Michael Pillai v. J. M. Barthe et al., 436–37).

32. See Richard Eaton's discussion of Muslim conversion in The Rise of Islam and the Bengal Frontier, 1204–1760 (Berkeley and Los Angeles: University of California Press, 1993).

33. Van Vollenhoven, C., “Aspects of the Controversy on Customary Law in India,” in Folk Law: Essays in the Theory and Practice of Lex Non Scripta, vol. 1, ed. Rentein, Alison Dundes and Dundes, Alan (Madison: University of Wisconsin Press, 1994), 252–58Google Scholar.

34. Thomas Trautmann coined the phrase “Madras School of Orientalism,” and has written about their unique perspectives in Languages and Nations: The Dravidian Proof in Colonial Madras (Berkeley and Los Angeles: University of California Press, 2006) and Trautmann, Thomas, ed., The Madras School of Orientalism: Producing Knowledge in Colonial South India (New York: Oxford University Press, 2009)Google Scholar. For trenchant criticisms of the application of Hindu Law to south Indian families, see Nelson, James Henry, A View of the Hindu Law as Administered by the High Court of Judicature at Madras (Madras: Higginbothams, 1877)Google Scholar.

35. Shodhan, Amrita, A Question of Community: Religious Groups and Colonial Law (Calcutta: Samya, 2001), 65Google Scholar.

36. Ibid., 49–50. An important aspect of Shodhan's study concerns the “empiricist” approach to caste that emerged in the Bombay Presidency. Shodhan describes how Bombay administrators collected data that enumerated castes and described their customary observances. This early nineteenth-century policy contradicts Dirks's claim that the British Raj shifted only after 1872 from a textual to an “empiricist” model for dealing with castes.

37. See Derrett, 520–23; and Dongerkery, S. R., The Law Applicable to Khojas and Cutchi Memons (Bombay: Satya Mitra, 1929)Google Scholar for other cases. For a discussion of the Shariat Act of 1937, see Rankin, George, “Custom and the Muslim Law in British India,” Transactions of the Grotius Society, vol. 25, Problems of Peace and War (papers Read before the Society in the year 1939) (1939), 89–118Google Scholar.

38. Mahomed Abdulla Datu and another plaintiffs v. Datu Jaffer et al., defendants (1914) I.L.R. 38 (Bom.) 465.

39. An interesting analysis of their laws in relation to their history of migration is provided in the decision of Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy and Rahimbhoy Alladinbhoy, (1887) I.L.R. 12 (Bom.) 294–96.

40. Hirbae v. Sonabae, (1847) Perry O.C. 110.

41. Ibid., 129.

42. Rahimatbai (original defendant), appellant v. Hirbai (original plaintiff), respondent, (1877) 12 Bom. H.C. rep. 294; 36–37.

43. Rahimatbai v. Hirbai, 37.

44. This quote was taken from Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy and Rahimbhoy Alladinbhoy, 293.

45. These guidelines for Khojas are laid out in Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy and Rahimbhoy Alladinbhoy, 281, 293.

46. Abdul Cadur Ha'ji Mahomed (plaintiff) v. C. A. Turner, I.L.R. 9 (Bom.) 158.

47. Ibid., 162.

48. Ibid. This claim should be contrasted with the essentialism underlying other judicial perspectives, which posits the Shariat as a basic or universal feature of Islam.

49. Beaman in Jan Mahomed v. Datu Jaffer (1913) I.L.R. 38 (Bom.) 464–65.

50. A Sikh is a “Hindu” within the meaning of both the Probate and Administration Act (V of 1881) and the Indian Succession Act (X of 1865). Even if a Sikh comes under the influence of the Brahmo Samaj, a reformist organization, and abandons many “Hindu” customs, a Sikh remains fixed in the category of a Hindu. For an extensive discussion of the parameters of Sikh and Hindu identity, see Bhagwan Koer v. Bose, (1904) 31 Calcutta 11, 705, 707–15.

51. The court cited two other cases, Chotay Lal v. Chunno Lal (I.L.R., 6 I.A. 15) and Sheo Singh Rai v. Dakho (2 I.L.R. 1 (All.) 688) as precedents.

52. Kamawati (plaintiff, appellant) v. Digbijai Singh (defendant, respondent), 1922 A.I.R. Privy Council 14; June 21, 1921.

53. Ibid., 17.

54. See Gauri Vishwanathan, , Outside the Fold: Conversion, Modernity and Belief (Princeton, N.J.: Princeton University Press, 1998)Google Scholar. But contrast this with her claim that converts long for their adopted identity to be recognized by the courts.

55. Galanter describes the notion of the “sacral view of caste,” whereby castes are not seen as independent entities, but as belonging to a overarching sacral order of Hindu society. See Galanter, “Changing Legal Conceptions of Caste,” in Galanter, Law and Society in Modern India, 142.

56. See, for instance, Reena Verma Williams, Postcolonial Politics and Personal Laws: Colonial Legal Legacies and the Indian State (New Delhi: Oxford University Press, 2006). See also Sangari, Kumkum, “Politics of Diversity,” Economic and Political Weekly 30 (51) (1995): 3287–3310Google Scholar. For a more theoretical critique of the doctrine of legal pluralism, see Tamanaha, Brian Z., “The Folly of the ‘Social Scientific’ Concept of Legal Pluralism,” Journal of Law and Society (20) (2) (1993): 192–217CrossRefGoogle Scholar.

57. See Basu, Monmayee, Marriage and Hindu Law: From Sacrament to Contract (New Delhi: Oxford University Pres, 2001), 121–46Google Scholar.

58. Derrett, Religion, Law and the State in India, 311–12.