Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian

accordingly, as “any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.” Courts continued to expect customs to be of long duration, but construed this expectation flexibly from the 1980s onward, especially if the recognition of a custom would provide a litigant support they felt inclined to offer, although not if it would enable conviction for bigamy. Courts have looked for evidence that the divorce customs under consideration were prevalent in the caste, lineage, tribe, family, or ancestral territory of the couple since colonial times. Since the 1950s, courts recognized specific divorce customs among various groups, including Sikh Jats in the Malerkotla and Jullundar regions of Punjab; Patwas, Khatis, and Gonds of Madhya Pradesh; Ezhavas of Kerala; Chetti potters and Ambalakkarar of Tamil Nadu; Pakhalis of Gujarat; Gollas of Andhra Pradesh; Kolis of Rajasthan; and the Maratha Patils of Maharashtra. By contrast, they concluded that such customs did not exist among Koravas of Andhra Pradesh, Arora Khatris of Punjab, Kongu Vellala Gounder of Tamil Nadu, or Marwari Shwetambar Jains of Rajasthan. 75
    While accommodating a variety of prevalent divorce practices, courts employed certain standards, though not consistently, to assess the compatibility of these customs with public policy. These standards changed over the past three decades, reflecting the changing values that governed the adjudication of divorce with reference to statute as well. Among the cases that Derrett and Holden discussed, as well as others that I examined of the colonial and early postcolonial periods,
Keshav Hargovan v. Bai Gandhi
(1915),
Jina Magan Pakhali v. Bai Jethi
(1941),
Sitaram v. Demai
(1949), and
Shivalingiah v. Chowdamma
(1956) indicated that courts should accept only customs that made divorce contingent on the respondent’s consent; and
Mt. Subhani v. Nawab
(1941) showed that courts were unlikely to recognize practices that adversely affect the interests of women who are not given the chance to represent themselves.
Karumpa Kochappi v. Sirkar
(1911) suggested that if a caste tribunal accepted a man’s divorce petition, the man provided his wife with either a lump-sum payment or a share of his property, and the proceedings were publicized, the woman’s consent would not be necessary. More recently,
Tara Singh v. Shakuntala
(1974) indicated that caste tribunals should have attempted reconciliation and gained the couple’s consent to the divorce after these attempts failed, if courts are to validate the divorces they granted; at the same time it invalidated customs that enabled women to desert their husbands and remarry on the payment of quit money to the caste council. The consent of the respondent in a customary divorce was inferred from his accepting a compensatory payment from the woman’s subsequent husband in
Shamlal v. Rajkumar
(1958) and
Rewaram Balwant Khati v. Ramratan Khati
(1963). Other courts recognized customs by which individuals could unilaterally abandon their spouses without the mediation of a caste tribunal, in
Lachu v. Dal Singh
(1896),
Velayudhan Kochappi v. Sirkar
(1915) and
Gopi Krishna Kasaudhan v. Musammat Jaggo
(1936); by which divorce could be based on the consent of minors in
Smt. Premanbai v. Channoolal
(1963); and by which women could remarry after desertion by their husbands in
Virasangappa v. Rudrappa
(1885) and
Pritam Singh v. Nasib Kaur
(1956). Yet other courts failed to recognize some of the same customs later, in
Laxmansingh v. Kasharbai
(1965) and
Laserbai v. Jugribai
(1978). Courts thus varied more in how they assessed the validity of customary divorces than in their approaches to divorce on statutory grounds. Amid these variations, they granted divorce far more liberally based on custom than when they applied statutory Hindu law, until the latter laws were liberalized in the