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

1970s.
    Holden highlighted the reluctance of courts to recognize woman-initiated customary divorces until recently. Courts considered such divorces contrary to public policy in
Keshav Hargovan
(1915) and
Kishenlal v. Prabhu
(1963), and incompatible with Hindu law when the man did not consent to them in
Reg. v. Karsan Goja and Reg. v. Bai Rupa
(1864),
Uji v. Hathi Lalu
(1870), and
Narayan Bharthi v. Laving Bharthi
(1877). But courts had recognized such divorces as early as 1915 among the Ezhavas of Kerala in
Velayudhan Kochappi v. Sirkar
. 76 It is only from the 1980s that Holden found courts much more willing to accept woman-initiated customary divorces, notably in the Supreme Court decree in
Govindaraju v. Munisami Gounder
(1997). This judgment was remarkable in another respect. It took customs of unilateral common law divorce to exist among all Shudras, the castes that occupy the fourth rung of the
varna
(megacaste) hierarchy and account for a large share of the Indian population: “Hindu law is clear on the subject that if a Shudra woman is turned out of the house by her husband, or she willfully abandons him andis not pursued to be brought back as wife, a divorce in fact takes place, sometimes regulated by custom, and then each spouse is entitled to re-arrange his/her life in marriage with other marrying partners.” 77 It sought no proof of the prevalence of this custom among the concerned group, contrary to the predominant judicial practice. If this precedent had been followed, it could have enabled the recognition of unilateral common law divorces among a large number of Indians. However, no other reported judgment appears to have cited it. Even the Supreme Court continued to seek proof of the prevalence of the specific divorce customs in the concerned group thereafter, in various cases including
Yamanji H. Jadhav v. Nirmala
(2002), which was followed in many subsequent decrees, and
Subramani v. Chandralekha
(2004). In the latter case, it did not take divorce customs to have been shown to exist among Kongu Vellala Gounders, the caste of the couple in
Govindaraju
, but another court declared otherwise. In
Asha Rani v. Gulshan Kumar
(1995), the Punjab and Haryana High Court clearly stated that litigants should show divorce customs to exist in their caste, rather than inferring their existence from the customs of another group. 78
    Holden found that courts became far more willing in recent decades to recognize customary divorces and the subsequent marriages of the spouses, and to infer the validity of these practices from the earlier husband’s consent, his acceptance of compensation payments from the subsequent husband, or the recognition of the later marriages in the relevant communities. 79 But they also became more wary of claims meant to deprive women of maintenance from the 1980s onward. 80 The validation of customary divorces deprived women of maintenance claims on their former husbands only until 1973, after which ex-wives were also made eligible for maintenance. 81 But some men living apart from their wives attempted to get their wives’ divorces from their earlier husbands invalidated so that their own marriages would be declared void and they would thereby avoid maintenance obligations, and courts were more inclined to accept customary divorces in such contexts. They did so in
Rita Rani v. Ramesh Kumar
(1996) and
P. Mariammal v. Padmanabhan
(2001), making the woman eligible for maintenance from her later husband in the first case and eligible to inherit his property in the second. Even while rejecting a man’s customary divorce from an earlier wife and thus deeming his later marriage void, the Bombay High Court gave his later wifemaintenance from him, in her capacity as his mistress, in
Rajeshbai v. Shantabai
(1981); but the Andhra Pradesh High Court made the children from the later marriage ineligible to inherit jointly owned ancestral property as a result in
Edla Neelaya v. Edla Ramada alias