Arya, Anwesha (2012) Dowry in tradition and text: śāstra, statute and the 'living law' of dowry as sadācāra in India. PhD Thesis. SOAS, University of London http://eprints.soas.ac.uk/16639 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. Dowry in tradition and text: Śāstra, statute and the ‘living law’ of dowry as sadācāra in India By Anwesha Arya PhD submission Department of the Study of Religions School of Oriental and African Studies, University of London September 23rd 2012 1 Declaration for PhD thesis I have read and understood regulation 17.9 of the Regulations for students of the School of Oriental and African Studies concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Anwesha Arya 23rd September, 2012 2 Abstract Despite modernisation and legal intervention, the practice of dowry in India today continues, although prohibited by state law. Traditional academic discourse tended to link dowry practices to Sanskritisation, denying the validity of dowry as a normative marital custom, strengthening calls for a legal ban. While India’s Dowry Prohibition Act (1961) appears to outlaw dowry, in reality it continues to respect the practice as custom and even makes room for it. Initially the statute allowed Rs 2000 as a token dowry, post the 1980s amendments this amount was rasied to Rs 5000, in keeping with the rate of inflation at the time. Overlooking this aspect of the statute, current academic discourses fail to adequately address what causes the persistence of dowry. This thesis considers how and why dowry has long defied legal prohibition and continues today as a major determinant in ‘ideal’ marriage alliances. Thereby this thesis aims to fill a gap in the current understanding of dowry as a normative marital custom. In this thesis I interprete the giving and taking of dowry as sadācāra (good collective custom), in spite of legal, and public agitation and moral bans. Methodologically based on legal and textual anthropology, this inquiry explores the triangular interaction of traditional cultural texts, modern statutory law as another form of text, and social customs old and new. In such complex ancient textual roots lie the murky but discernible workings of dowry as sadācāra, or dharma with a very small ‘d’. Relying specifically on an academic appraisal of the role that anthropology and history continue to play in the construction of South Asian worldviews, the thesis demonstrates that within textual tradition lie the notions of an uncomfortable and intensely plural legal modernity, which continues to use medieval and more ancient customs while striving for a progressive future. This thesis argues that the ancient Brahma form of Hindu marriage remains the idealised kanyadān model for modern Hindu marriages. I argue that kanyadān veritably imbues dowry within it.This analysis confirms that text has always had a limited influence over the development and maintenance of socio-legal norms in Indian society. Traditional cultural texts tend to assert certain ideals rather than reflect social reality. However, the modern social practise of dowry as ‘good custom’ even the right thing to do in the form of ‘living law’ harmonises the various contradictions in the light of marital expectations, old and new. The three theories of Samskritisation, Orientalism and Feminism overlay the central argument of the thesis, which is that the custom of dowry is and has been and continues to be a socially sanctioned necessary part of Hindu marriage. Let us set a working hypothesis, then. Dowry as a cog of culture works. It has a proven life of its own; it has successfully operated for a minimum of three thousand years, give or take a century. It refuses to go away. This confirms that the statutory abolition of dowry in Indian law is merely a textual fiction that serves a variety of agenda. Then perhaps, it is fair to stake an assumption that dowry is necessary to Hindu or Indian marriage in some way. This thesis therefore suggests that dowry law reform must consider alternative methods to protect women. 3 Table of contents Page number Declaration 2 Abstract 3 Table of contents 4-5 Acknowledgements 6 List of abbreviations 7 List of photographic plates, maps, figures and tables 8 Photoplate 1 Warli Circle of Solidarity 9 Chapter 1: Introduction 11 1.1 Thesis focus 13 1.1.2 Thesis scope: The misguided dowry debate 19 1.2 Problematising dowry in text and tradition 25 1.3 Methodology 28 1.3.1 Theories 34 1.3.2 Concepts 38 1.4 Thesis structure 40 Chapter 2: Methodology: Texts, traditions and custom 45 2.1 Textual anthropology: The Orientalist impact 46 2.2 The role of tradition in shaping text 58 2.3 The impact of texts on traditions 73 2.4 Tensions between cultural texts and social 89 traditions 2.5 Custom and the concept of sadācāra 95 2.6 Conclusion 100 Chapter 3: Legal texts, religious rites and social traditions 103 3.1 Legal anthropology and legal pluralism 104 3.2 The ancient Indian texts as legal material 114 3.3 The role of the Veda and Dharma texts 131 3.4 Legal text imprinting social behaviour and custom 140 3.5 Conclusion 144 Chapter 4: Dowry in context and text 148 4.1 Definitions of dowry 149 4.2 Dowry as a customary norm 160 4.3 Hypergamy and its impact on the nature of dowry 168 4 4.4 Women as property 179 4.5 Dowry as a contemporary form of sadācāra 188 Chapter 5: Dowry and marriage arrangements: 196 Examining the ancient texts 5.1 Dowry within the context of Hindu marriage 197 5.2 The eight forms of marriage 202 5.3 Textual analysis 215 5.3.1 Expectations in da 10.85 220 5.3.2 Atharvaveda Book 14 227 5.3.3 Expectations in the literature 228 5.3.4 Re-iterating expectations in the epics 231 5.4 The evidence in terms of dānadhar a gift theory 233 Chapter 6: Anti-dowry law: A misguided strategy? 247 6.1 Examination of the modern anti-dowry statute law 248 6.2 Women, dowry and law 254 6.3 Developments in the case law 263 6.4 Reworking the strategy 269 Chapter 7: Analysis: The phantom of dowry 281 7.1 Summary conclusion and chapter summaries 282 7.1.2 Chapter summaries 286 7.2 Concluding analysis through the reflexive lens 290 Chapter 8: The Postscript: Dowry exists 298 8.1 Fatal auspiciousness 302 8.2 Dowry as dharma with a very small ‘d’or sadācāra 311 8.3 Troublesome terminologies 318 8.4 The four-fold path to ascertain ‘the right thing to do’ 325 8.5 Tying up the theory that dowry is good dharma 329 Bibliography 334 Appendix: Sunday Times of India Matrimonial Column 365 5 Acknowledgements A work that has taken longer than anticipated is finally complete, due mainly to the support and extraordinary efforts of several individuals. First of all however, I am grateful to the School of Oriental and African Studies’s (SOAS) Research Student Fellowship (RSF), which made it possible to undertake this research in the first place. The kernel for this study was uncovered during my Master’s year at SOAS in 1998-1999, under the irreplaceable guidance of my two tutors Dr. Julia Leslie and Professor Werner Menski. I was encouraged and enabled by their strong support to secure the RSF in early 2002. I then began this inter-disciplinary PhD with the guiding principles from the Study of Religions, under Dr Leslie, and that of Hindu legal concepts and issues pertaining to global ideas of law making under Professor Menski. The sudden and irrevocable loss of Dr Leslie, besides difficult personal circumstances made the completion of this thesis an unenviable process. The constant care and energetic enthusiasm of my Guru Professor Menski has enabled the final production of this work. My young family have seen me through so much. Suhaan our youngest for allowing me time away from learning to crawl with him; to Sanaaya my wonder girl, for inspiring me with her bubbling determination; Ayaan, our first boy for making laughing easy whenever it was hard. Particularly my life partner Sagar, who had stood shouldering immense sacrifice and stayed by my side striving through staggering sleeplessness to edge me closer to this achievement. To you I cannot acknowledge my gratitude enough. Among dear friends, Dr Jeremy Lind who has from the very first draft report, to this final finished product offered sound editorial input and incomparable friendship. To Professor Clare M Weber-Wilkinson I am indebdted for academic steerage, to Jenny Williams for editorial. My darling sister Dr Sukanya Sengupta offered qualitative inputs from various readings, without which this work would not be as complete as it is now.