Family Matters: Citizenship and Marriage in India, 1939-72 by Rebecca R. Grapevine A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy (History) in the University of Michigan 2015 Doctoral Committee: Emeritus Professor Barbara D. Metcalf, Co-Chair, University of California-Davis Emeritus Professor Thomas R. Trautmann, Co-Chair Emeritus Professor Thomas A. Green Professor Victor B. Lieberman Professor Mrinalini Sinha © Rebecca R.M. Grapevine 2015 Dedication For my parents, Ronald D. Grapevine and Rosemary M. Magee ii Acknowledgements I am grateful to my dissertation committee for their advice, patience, and careful readings. My co-chairs, Professors Barbara Metcalf and Thomas Trautmann, have been excellent mentors since my first days of graduate school. Professor Victor Lieberman’s encouragement and pedagogical excellence were welcome reliefs during the dreary Michigan winters. I am also grateful to Professors Mrinalini Sinha and Thomas Green for their engagement with my dissertation. I owe a large debt to Kathleen King, Lorna Altstetter, and Sheila Coley in the Department of History for their timely assistance and good humor as they shepherded me through the degree requirements. Many institutions provided timely and generous financial support for my research. These include the Department of History, Rackham Graduate School, Center for South Asian Studies, and the International Institute at the University of Michigan. Crucial support for my archival research in India came from a DDRA Fulbright-Hays fellowship. I am grateful to them all. I was fortunate to be affiliated to the Centre for Historical Studies at Jawaharlal Nehru University while I completed my research in New Delhi. I am grateful to my advisor Professor Tanika Sarkar for the many kinds of help she extended to me. I am also grateful to Professor Pratiksha Baxi at the Centre for Study of Law and Governance at JNU. Her suggestions were the origins of many good things that happened to me in New Delhi. One of those was the opportunity to spend two semesters sitting in on lectures at the Delhi iii University Faculty of Law, an experience that transformed how I thought about my research. At the law faculty, I am indebted to Professor Kamala Sankaran and Professor Usha Tandon for making space for me in their classrooms. I am also grateful to the following libraries and archives for allowing me access to their holdings: the National Archives of India, the Nehru Memorial Museum and Library, and the Indian Law Institute, all in New Delhi; the Uttar Pradesh State Archives in Lucknow; and the University of Michigan Law Library. I was also fortunate to study with many excellent professors who inspired and challenged me. Along with my committee members, these include Professors Andrea Friedman, Maria Misra, Thomas Metcalf, Daniel Halberstam, and the late Brian Simpson. Excellent language teachers opened up new perspectives for me and I am especially lucky that I was able to study Hindi and Urdu with Mithilesh Mishra, Kashika Singh, Syed Ekhteyar Ali, and the faculties of the American Institute of Indian Studies programs in Jaipur and Lucknow. I have been blessed with many wonderful friends. In the United States, these include Jadine Johnson, Olivia Hessing, Jonetta Johnson, Allison Turner, Diana Mankowski, Matthew Vanderbee, Emily Klancher, Lenny Urena Valerio, Crystal Chung, Kenneth Garner, Adrianne Madias, Jaclyn Michael, Hoda Bandeh-Ahmadi, Purvi Mehta, Monika Bhagat-Kennedy, Danish Sheikh, Lawrence Liang, Susan Hwang, Lamin Manneh, Rebecca Miller-Webster, Patrick Parker, Tapsi Mathur, Brian Penn, Anna Leo, Chuck Rice, and Randy Fullerton. Alesia Lapinsky, Sudha Chandrasekar, Anita Chennat, Ranjani Krishnan, Anuja Rajendra, Suman Desaraju, Priya Rajendren, the Kala Sangam in New Delhi, and Ita Reyes, and their associated communities, did much to keep me happy and dancing in stressful times. iv Nishi Bajpai, Satish Padmanabhan, Alam Srinivas, Michele Louro, Eric Colvard, Anasua Mukherjee Das, Anup Kumar Das, Rahul Mane, Raghu Raghavan, Sanchit Upadhya, and especially Vibodh Parthasarathi made Delhi feel like home. In the final year, Ankit Chahal (SirD) and Alam Srinivas provided emotional support from afar. Kenneth Garner deserves a vigorous vote of thanks for all he did to help make completing the dissertation possible and for his devoted and stimulating friendship. I am also grateful to Emily Klancher and Bryan Chapman for their editorial help in the final stages. First in my heart is my family. My beloved grandparents, the late Arvilla Grapevine, the late Ernest M. Magee, and Molly (Gertrude) Magee instilled me in a sense of adventure, a yen for sharing stories, and even a few traditional values that have helped me along my way. My aunt and uncle, Lynn and Ervin Frazier, encouraged me, listened to me, and provided a sunny retreat in Florida whenever I needed it. My uncle, Douglas Grapevine, set a high bar for globetrotting and cross-cultural understanding and he too has supported my interests and writing. In Miami, Maureen Magee and Edward Carhart shared their literary and legal sensibilities and encouragement. Kathi Winter is a beloved history teacher in Atlanta as well as my much-respected aunt, and she set me down the path of historical research with original documents while I was still in high school. Even more than her historical insights, I am grateful for her loving support and merry laugh. I am also grateful to my Magee cousins for their generosity and lightness of spirit. My brother, Sean Grapevine, has been my closest friend and favorite comic from the start. His wife, Jaclyn Grapevine, beautiful inside and out, is the perfect addition to our family. Finally, my parents, Ronald Grapevine and Rosemary Magee, instilled in me a love for learning and for understanding the world. They bore my v long absences with patience, supported my schemes unreservedly, and helped me in numerous practical ways. In short, they have given me more support and love than any one child deserves and I am grateful to them most of all. vi Table of Contents Dedication ii Acknowledgements iii List of Figures viii List of Abbreviations ix Abstract x Introduction 1 Chapter One. Entering and Leaving the Body Politic: Coverture and 50 Citizenship Law, 1950-70 Chapter Two. The Origins of the Restitution of Conjugal Rights in India 109 Chapter Three. Restitution of Conjugal Rights in Uttar Pradesh 160 Chapter Four. Maintenance as an Imperial Legal Form 202 Chapter Five. Cruelty and the Dissolution of Muslim Marriages Act, 1939-55 247 Chapter Six. Matrimonial Litigation after the Hindu Marriage Act 277 in Uttar Pradesh, 1956-72 Conclusion 348 Appendix: Lawyers of the Allahabad and Lucknow Bars 358 Works Cited 359 vii List of Figures Figure 1 Arguments in the Mackenzie Case 175 Figure 2 Muslim Marital Redress Before 275 and After the DMMA 1939 viii List of Abbreviations AIR All India Reporter CCrP Code of Criminal Procedure CPC Civil Procedure Code CTA Criminal Tribes Acts (1871 and 1911) DMMA Dissolution of Muslim Marriages Act (1939) EIC British East India Company HAMA Hindu Adoptions and Maintenance Act (1956), HMA Hindu Marriage Act (1955) HSRMA/ Hindu Separate Residence and Maintenance Act (1946) HMRA Hindu Residence and Maintenance Act (1946) ICA Indian Citizenship Act (1955) IPC Indian Penal Code MEA Ministry of External Affairs, New Delhi MHA Ministry of Home Affairs, New Delhi NUC Notes on Unreported Cases, All India Reporter RCR Restitution of Conjugal Rights SCC Small Causes Court UP Uttar Pradesh VAWA Violence Against Women Act (United States) WHO World Health Organization ix Abstract India’s system of separate Hindu, Muslim, and Christian family laws is often cast as a threat to national unity. In contrast, I argue that Indian law was structured by the emphasis of English law on preserving the marriage tie and wives’ legal dependence on their husbands. Based on a study of judicial and bureaucratic decisions about families in Indian law, I show that a patriarchal English family structure based in coverture influenced Indian women’s experiences of the law at least as much as religious norms did. I focus on three legal devices: domicile, restitution of conjugal rights, and maintenance. I argue that “law of the family” is a better category with which to consider women’s rights than “family law.” “Law of the family” suggests the ways in which family statuses structured many aspects of Indian law, including those concerned with family disputes as well as matters such as citizenship. The dissertation is divided into two parts. The first part studies bureaucratic and judicial decisions about the status of wives and sons in Indian citizenship law. Through the legal device of domicile, coverture structured Indian citizenship law. The second part is based in a survey of matrimonial litigation in the north Indian state of Uttar Pradesh between 1939 and 1972. Litigants of all religious communities used restitution of conjugal rights suits and maintenance suits to seek marital redress even after important statutory reforms such as the Dissolution of Muslim Marriages Act (1939) and the Hindu Marriage Act (1955). Courts ruled in favor of wives without condemning marital violence. An individual wife could win her suit without necessarily challenging the patriarchal structure of marriage. Wives faced x difficulties in proving matrimonial violence and often won their suits on the grounds of more easily proved social offenses. Husbands often challenged wives with arguments about both geographic and religious jurisdiction, in a pattern found in England as well. The dissertation concludes with a study of the 1962 UP Amendment to the Hindu Marriage Act, which made cruelty a ground for divorce in the state, providing a model for national reform fourteen years later. xi Introduction This dissertation studies how marriage shapes legal identity in modern India. Indian marriage is often viewed through religious and social lenses because it is regulated by religious personal law.