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

Ramadas
(1995). 82 The Bombay and Punjab and Haryana High Courts rejected men’s claims to have divorced their wives according to custom and recognized the women’s maintenance claims in
Jairam Somaji More v. Sindhubai
(1999) and
Rajesh Kumar Madaan v. Mrs. Mamta alias Veena
(2005) respectively. Moreover, the Kerala High Court specifically opined that divorce deeds in which women relinquish their maintenance claims are contrary to public policy in
Sadasivan Pillai v. Vijayalakshmi
(1986), and this rule was followed in various cases, including some involving customary divorce. 83 But the dependence of a woman’s maintenance claim on the validity of the dissolution of her earlier marriage did not incline the court to accept that a divorce custom existed among Arora Khatris in
Asha Rani
(1995); nor did a woman’s conjugal rights depending on her earlier marriage having ended lead another court to recognize such a custom among Marwari Shwetambar Jains in
Virendra Kumar v. Preeta
(2009). Thus, the increased inclination of judges to grant women maintenance and conjugal rights (discussed later in this chapter) did not usually override their concern to recognize only divorce customs prevalent in the relevant group.
    II. CONJUGAL RIGHTS
    Churches and later states recognized individuals’ rights to their spouses’ conjugal company, initially to return women to their husbands’ authority and later to encourage the reconciliation of estranged spouses. In En gland, ecclesiastical courts initially enforced this right using the sanction of excommunication and state courts did so later with sanctions of imprisonment, fines, or attachment of property, until this practice was abandoned in 1970. Although neither Hindu nor Islamic legal traditions had recognized this right, the colonial courts enforced it among all Indians from the 1860s, initially with threats of imprisonment. This right was incorporated in the IDA (applied to Christians) in 1869, in the Parsi Marriage and Divorce Act in 1936, and in the SMA and the HMA in the 1950s. It was in tension with concerns to promote conjugal autonomy, particularly when restitution decrees ordered people backinto abusive relationships. Courts could either imprison or fine those who refused to obey restitution decrees or attach their property, and after independence usually attached their property or fined them. Poorer women were frequently unable to pay the price of disobeying restitution decrees.
    Two women contested their husbands’ right to gain their conjugal company through judicial intervention, the first in the 1880s and the second nearly a century later. High courts initially accepted the responses of these women to restitution petitions, partly in the first case and completely in the second. However, both victories proved short-lived. In
Dadaji Bhikaji v. Rukhmabai
(1885–6), the Bombay High Court initially rejected the man’s petition to order his wife, to whom he had been married when she was a child, to begin a matrimonial life with him. 84 It did so because restitution of conjugal rights had no foundation in Hindu law, which according to the woman’s lawyer saw marital functions as duties of imperfect obligation to be enforced only by religious sanction, and because the couple had never shared a home. But on appeal, a different bench of the same court granted a restitution decree and affirmed that courts should recognize the right of Hindus to such decrees. 85 The courts interpreted Islamic law to consider men eligible for restitution decrees only if they had paid their wives their prompt dower. 86 Many came to see restoration of conjugal rights as an expression of Hindu as well as Islamic conjugal norms thereafter—although in the vigorous debate over the
Rukhmabai
case, certain lawyers and publicists had highlighted that it was an English import that fit poorly with the widespread Indian practice of child marriages, which could not involve the parties’ considered consent. As