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Kent Academic Repository Full Text Document (Pdf) Kent Academic Repository Full text document (pdf) Citation for published version Parthasarathy, Padmapriya (2018) "THE FATHER, AND AFTER HIM, THE MOTHER": GENDER IN JUDICIAL REASONING IN HINDU CUSTODY LAW. Doctor of Philosophy (PhD) thesis, University of Kent,. DOI Link to record in KAR http://kar.kent.ac.uk/68771/ Document Version UNSPECIFIED Copyright & reuse Content in the Kent Academic Repository is made available for research purposes. Unless otherwise stated all content is protected by copyright and in the absence of an open licence (eg Creative Commons), permissions for further reuse of content should be sought from the publisher, author or other copyright holder. Versions of research The version in the Kent Academic Repository may differ from the final published version. Users are advised to check http://kar.kent.ac.uk for the status of the paper. Users should always cite the published version of record. Enquiries For any further enquiries regarding the licence status of this document, please contact: [email protected] If you believe this document infringes copyright then please contact the KAR admin team with the take-down information provided at http://kar.kent.ac.uk/contact.html "THE FATHER, AND AFTER HIM, THE MOTHER" GENDER IN JUDICIAL REASONING IN HINDU CUSTODY LAW Padmapriya Parthasarathy Submitted in fulfillment of the requirements for the degree of Ph.D. Kent Law School, University of Kent March 2018 Abstract This thesis problematises the treatment of gender in judicial reasoning in the cases decided under Hindu custody law in Indian courts. India has several religious personal laws to regulate the lives of its citizens. Of these, Hindu law governs the personal lives of about 800 million people in India and forms the largest set of personal laws. It is largely based on Common Law Principles, due to colonial influence at the time of its codification. However, there has been limited research on case law in this area of law, especially in terms of analysing gender in these judgments. This thesis takes a set of cases not previously analysed, problematises how judges approach gender in them, and thereby contributes to Indian legal feminist and religious personal law literature. The site of this research is a set of custody cases decided under the Hindu Minority and Guardianship Act, 1956. In the first part of the thesis, the underlying premises of judicial reasoning in the cases are studied. The analysis of the cases draws out disparity of treatment of gender in these cases, as well as underlying normative assumptions about gender roles in judicial reasoning. Further, the thesis demonstrates how the middle-class Hindu woman is constructed as a privileged but subordinate person or “Elite Dependent” in judicial reasoning. The analysis challenges the claim that these cases are decided in line with Constitutional ideals. The central argument developed from the cases is that judicial reasoning is based on normative ideas of gender and the judges do little to rectify gender inequities. The second part of the thesis examines the possible impact of judicial reasoning in the cases under study on the formulation of a new Uniform Civil Code to replace religious personal laws in India. The key argument in this part of the thesis is that the Hindu code should not be used as a blueprint for this Uniform Civil Code, as the gendered nature of judicial reasoning raises i important concerns on the egalitarian nature of the Hindu Code. Using both the parts, this thesis verifies and expands the hypothesis proposed by Indian legal feminists that religious personal law in India is gendered. This thesis contributes to Indian legal feminist scholarship on religious personal laws in general and to the specific debates in India. The analysis of case law as well as the formulation of the category of Elite Dependent are its unique contributions to furthering this body of literature. ii Table of Contents Abstract………….………………………………………………………………………………………………………......i Acknowledgements…………………………………………………………………………………………………..vi Abbreviations .......................................................................................................................................... x Prologue .................................................................................................................................................... 1 Chapter 1 – Introduction: The Gendering of Hindu Law ................................................. 3 1.1 Beginnings ................................................................................................................. 3 1.2 Why Hindu Law? ....................................................................................................... 8 1.3 Theoretical Perspectives ........................................................................................ 12 1.3.1 Feminist Engagement on Family ..................................................................... 15 1.3.2 Feminist Engagement on Religious Personal Laws ........................................ 21 1.3.3 Gender Asymmetry – Example of Property Ownership in Hindu Law.......... 23 1.4 Key Themes, Arguments and Questions .............................................................. 26 1.4.1 Judicial Reasoning on Gender and Gender Roles .......................................... 27 1.4.2 The Construction of the Elite Dependent ........................................................ 29 1.4.3 Gendering of Law ............................................................................................. 31 1.5 Chapter Outlines ..................................................................................................... 33 Chapter 2 - Methodology of Case Law Analysis ................................................................ 35 2.1 Introduction............................................................................................................. 35 2.2 The Paths Travelled ................................................................................................ 35 2.3 Research Design and Methods Used ................................................................... 41 2.4 Process of Case Analysis ........................................................................................ 44 2.4.1 Case Collection and Initial Selection .............................................................. 44 iii 2.4.2 Emergence of Themes ...................................................................................... 47 2.4.3 Postulates and Arguments ............................................................................... 52 2.6 Limitations of the Research ................................................................................... 63 2.7 Concluding Remarks .............................................................................................. 65 Chapter 3 – The Hindu Woman in the Hindu Code.......................................................... 66 3.1 Introduction............................................................................................................. 66 3.2 Colonial Intervention – Creation of Anglo-Hindu Law ....................................... 68 3.2.1 Religious Personal Laws under the English East India Company ................. 68 3.2.2 Religious Personal Laws under the Crown ..................................................... 72 3.3 The Hindu Woman in Anglo-Hindu Law .............................................................. 75 3.4 The Hindu Woman in the Nationalist Movement ............................................... 81 3.5 Origins of the Hindu Code .................................................................................... 86 3.6 Formulation of the Hindu Code ............................................................................ 92 3.7 The Hindu Code and the UCC ............................................................................. 100 3.8 Concluding Remarks ............................................................................................ 104 Chapter 4 – Gender in Judicial Reasoning ......................................................................... 107 4.1 Introduction........................................................................................................... 107 4.2 Githa Hariharan – Gender Equality or Gendered Norms? ................................ 109 4.2.1 The Case of Githa Hariharan......................................................................... 109 4.2.2 Reasoning in Githa Hariharan ...................................................................... 110 4.2.3 Aspects of Gender in the Judgment .............................................................. 115 4.3 Gendering of Welfare ........................................................................................... 120 4.3.1 Definition and Criteria of Welfare ................................................................ 120 4.3.2 Welfare of the Child vs. Rights of Parents .................................................... 125 4.3.3 Mother in the Role of the Father ................................................................... 129 4.4 Concluding Remarks ............................................................................................ 136 iv Chapter 5 – The Elite Dependent in Judicial Reasoning ............................................. 140 5.1 Introduction........................................................................................................... 140 5.2 Judicial Construction of
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