Rights and the individual under colonial family law

The particular structure of the Anglo-Indian legal system had long-term implications for debates about rights in India. From the outset of British rule, officials distinguished between a public legal sphere, governing relations in the market place, and the private or personal realm of the family, which was administered according to subjects’ own religious customs and traditions.Footnote ⁵ As many scholars have highlighted, the ways in which officials ‘protected’ indigenous customs served in fact to rigidify these practices in a manner that often benefited the power relationships on which colonial governance depended.Footnote ⁶

British assumptions about the importance of scriptural legal sources and religious traditions shaped the ways in which officials ‘discovered’ Indian traditions and recorded them under different categories of Hindu and Muslim practices, a distinction that was to grow more rigid over the course of colonial rule.Footnote ⁷ Under Mughal rule, religious scripture had played a crucial role in legal governance. Precedent was given to interpretive practice, so that legal scholars, or qadis, applied the principles of the Qur'an and other Islamic legal texts to a particular situation, rather than a literal reading of their precepts. The desire of British officials to establish definite knowledge of their new subjects led them to emphasize these texts as definite sources in and of themselves, eroding the place of legal interpretation and the more flexible, socially-conditional nature of the legal system. Legal scholars of the Hanafi school had been particularly productive under Mughal rule and these texts were given precedence in colonial interpretations of Muslim law over other schools of legal thought.Footnote ⁸ Thus, in focusing on text as the main source of religious law, British administrators glossed over not only divisions between Sunni and Shi'a Muslims but also many of the different schools of legal scholarship that had evolved under Mughal rule. Certain customary practices were retained but, by the mid-nineteenth century, Muslim personal law had emerged as a clearly defined, text-based legal structure that could be easily applied and hard to dispute.Footnote ⁹

British interpretations of Islamic succession law rested on a reading of the al-Sirajiyya, another Hanafi text.Footnote ¹⁰ Prescribing the division of a man's property between all his children, rather than a system of primogeniture, these practices were regarded as far more equitable than English succession law.Footnote ¹¹ In spite of this, officials were somewhat selective in the way in which they applied the principles of the al-Sirajiyya. Directives to include daughters in the division of a father's estate were, in many parts of India, ignored in favour of customary practices, which sidelined women heirs and limited a woman's hold over property to her lifetime only. The colonial courts upheld customary practices in a rather erratic manner, exempting some Muslim families and clans from a strict application of Islamic law.Footnote ¹² These cases aside, British jurists’ emphasis on religious scripture often served to strengthen Muslim women's claims to property. This was particularly true in terms of Muslim women's right to mehr, the property promised to a Muslim bride as part of the marriage contract, the payment of which, unlike a dowry, is often deferred.Footnote ¹³ In a number of prominent cases, the colonial courts ruled in favour of a Muslim woman's right to mehr, granting her control over part of her husband's estate until this was paid.Footnote ¹⁴ Though it did not always translate into secure legal rights in terms of women's day-to-day life, in principle, colonial Muslim law acknowledged the legal personhood and property-owning capacity of Muslim women. Indeed, this became one of the central features defining Muslim family practices against those of Hindus: Muslim families were considered to comprise property-owning individuals, whereas the natural condition of a Hindu family was assumed to be ‘joint’.Footnote ¹⁵

Although the focus on religious scripture seemed to give greater outline to a system of Muslim law, the same could not be said in terms of Hindu law. The plethora of Hindu religious texts and wide differences in regional practices meant that Hindu law was more open to interpretation by colonial scholars. The ideas of one British legal scholar were particularly important in reshaping Hindu law in this period. Henry Sumner Maine, an eminent scholar of civil and Roman law, in 1861 published his Ancient Law: its connection with the early history of society, and its relation to modern ideas, in which he argued that contemporary Hindu law operated in a similar way as had ancient Roman law.

Ancient Roman law was, according to Maine, organized around the principle of Patria potestas, meaning that the head of the family held power to the complete negation of the claims of individual members. Within this system younger men had some authority as potential family heads but a woman remained, for the duration of her lifetime, the powerless dependent, first of her father and then the head of her husband's family. This status was known as ‘perpetual tutelage’. While western society had long advanced from this state of affairs, Maine argued, such ‘progress’ had never taken place in India so that this legal system, ‘survives in absolute completeness’.Footnote ¹⁶ The thesis won Maine much public attention and in 1862 he took up the post of legal member of the Viceroy's Council. In the law reforms over which he presided, the idea of the joint family became the one legal structure that was seen to underpin regionally diverse systems of Hindu law.

While the joint family was common amongst Hindus and Muslims as a sociological unit—i.e. a family of multiple generations sharing a single home—under Maine's reforms the joint family came to be seen as the primary legal unit of Hindu society. Under both Mitakshara and Dayabhaga, the two dominant schools of Hindu law, a Hindu man was entitled to hold self-acquired properties individually.Footnote ¹⁷ The family estate, however, was held as a collective. The nature of the collective varied between the two schools. Under Dayabhaga law, governing Hindus in Bengal and parts of Assam, the ‘joint family’ was understood as something like a compact between property owning individuals. Members held a fixed share of the estate that, on their death, passed to close family relatives, including widows. Under Mitakshara law which governed Hindus almost everywhere else in India,Footnote ¹⁸ the joint family unit was considered a single entity within which there were no individual shares—much like in the ancient Roman family. Known as a ‘coparcenary’, this unit comprised up to four generations of male relatives whose share in the family estate shrank with a new birth and grew with a coparcenary member's death. Yet, the coparcenary was not open to all family members. The principles governing the devolution of property varied between the two schools of Hindu law, Mitakshara operating on the basis of propinquity, or blood relationship, and Dayabhaga on the basis of a relative's ability to perform certain oblations and ceremonies that would bestow virtue upon the dead. Both concepts operated in a manner that gave preference to sons and male relatives and barred women from membership of the joint estate.Footnote ¹⁹ Even within the Mitakshara family, coparceners’ shared property rights did not translate into equal access to and influence over the family estate. The coparcenary was managed, on behalf of others, by the eldest member, usually the father, who was known as a karta. While no decision could be made without the full consent of all coparceners, the karta enjoyed a stronger influence over the family estate. Thus, the capacity of younger men to exercise their right to a share of the joint family property was limited by the very hierarchical structure of power within the family.

Individual rights and legal powers were largely absent from Anglo-Hindu marriage law also. The reformed Hindu personal law endorsed the claims that had long been advanced by upper caste Hindu leaders that ‘true’ Hindu marriage was a sacrament and not, as was the case under British and Muslim personal law, a contract.Footnote ²⁰ Just as the coparcenary transcended the individuals which it comprised, so marriage transformed the couple into an inseparable unit. While in principle conjugal partners were equal, Hindu property law meant that, by virtue of his greater economic powers, a husband could dominate his wife. Barred from entering her natal coparcenary, a woman had little legal claim to parental support following marriage, when she became the dependent not simply of her husband but of his coparcenary. In this way the sacramental marital unit worked in tandem with the coparcenary system to support a very hierarchical system of patriarchal legal authority.

Contesting colonial law: religious tradition versus legal modernization

Administrative streamlining and legal reforms in the 1860s further consolidated and codified colonial interpretations of personal law. These changes did not bring about sweeping changes in domestic practices or serve to ‘reinvent’ Indian family life, but rather set the framework within which family disputes would be judged and mediated by the colonial courts.Footnote ²¹ Wide ranging social and economic changes in the second half of the nineteenth century served to make such disputes increasingly likely.Footnote ²²

It was not only the legal system that underwent comprehensive reform in this period. The transition to Crown rule was accompanied by the extensive restructuring and expansion of the colonial administration, creating new employment and education possibilities for Indians.Footnote ²³ This was also a period of economic transformation as the Indian economy emerged from a state of agrarian stagnation to become a major provider in global trading networks.Footnote ²⁴ Together these developments helped to drive urban expansion, a process that drew people to cities and created new ties between urban areas and their rural hinterlands, both in terms of patterns of exchange and, with the railway networks, in terms of physical contact.Footnote ²⁵

The way in which Indians experienced these expanding opportunities was deeply informed by the structures of property law. Wealthy Muslim families found that the colonial state's interpretation of Islamic succession laws made it difficult for them to build up their wealth and to protect their estates against fragmentation and profligate relatives in the future.Footnote ²⁶ In other Muslim countries, in the Middle East in particular, Muslims used waqf law, a system of endowment similar to trust in English common law, as a means of circumventing the Islamic legal prescriptions about dividing an estate between family members. Derived from the Arabic waqafa meaning to stop or hold, a waqf estate was one that could not be affected by succession practices, by sale or by seizure.Footnote ²⁷ A waqf was most commonly made to endow a religious or community institution, for example a madrassah or hospital. But, it also allowed families to manage the transmission of considerable wealth from one generation to the next, creating something like a trust-fund for future generations that was protected against interference by non-family members.Footnote ²⁸ In India, however, the focus on text rather than custom led officials to conclude that private waqf had no basis in Islamic law and that the only legal use of waqf law was to endow public institutions.Footnote ²⁹ In the rapidly changing social and economic context of the late nineteenth century, Muslim lawyers and landholders expressed great frustration at this interpretation of waqf law.

Amongst wealthy Hindus, however, it was colonial jurists’ emphasis on joint, rather then individual, rights that created difficulties. The 1860 law reforms enforced the joint family at precisely the moment when wider trends were placing this structure under pressure. Increasing land sales in certain areas raised questions about the operation of the coparcenary system vis-à-vis contractual rights. The ‘unfixed’ nature of the shares in the coparcenary and the need to take into account the possibility of future, unborn coparceners created confusion about the ability of a karta to enter into contractual arrangements concerning the joint estate.Footnote ³⁰

Social changes in this period also created tension within the joint family unit. Urban migration divided larger families geographically, creating new households with their own demands for resources. The increase in salaried employment was also a source of confusion. There was much legal debate about whether salary was the property of the earner or his family, particularly if the former had been the recipient of a specialist or expensive education.Footnote ³¹ Family disputes about such questions began to spill out of the home and into the courts, and the late nineteenth century saw a rapid increase in the number of cases involving coparcenary rights.Footnote ³² Later political reforms and the expansion of political representation for Indians meant that these discussions also began to enter the legislatures. While British officials cited the policy of religious neutrality to distance themselves from these debates, many Indian legislators were only too keen to use their newfound power to improve their own economic interests.

Differences in the ways in which religious personal law had been interpreted under British rule affected the ways in which Hindu and Muslim representatives called for reform. In terms of Muslim law, the colonial state's emphasis on textual authority in Islamic law meant that to oppose existing waqf regulations on the grounds that they were out of date or inappropriate for contemporary Indian society raised questions about the relationship between scripture and modern Muslim society in general. Sir Sayyid Ahmad Khan, an eminent thinker and reformer, campaigned vigorously to highlight the economic and social difficulties suffered by Muslim families under existing legal arrangements. He faced much opposition from other Muslim representatives, however, and in 1879, was forced to withdraw legislative proposals to reform waqf law following criticism that they contravened the textual basis of Islamic law.Footnote ³³

Hindu reformers experienced similar problems. In 1891, a year before the Indian Councils Act was passed, Vembakkam Bhashyam Iyengar introduced to the Madras Legislature a Gains of Learning Bill that sought to confirm a Hindu man's salaried earnings as his individual property rather than part of the coparcenary estate. While the Bill won the support of ‘professional groups’, opponents argued that it attacked the family unit that formed the foundation of Hindu society and religion.Footnote ³⁴ Cautious of provoking civil unrest, British officials vetoed the measure on the grounds that it marked a departure from Hindu tradition.

Muslim lawyers played a pivotal role in reframing the terms of the debate about personal law reform away from the deadlock between arguments about tradition and innovation. Turning the Privy Council's own defence of Islamic legal tradition on its head, lawyers such as Amir Ali argued that a waqf made to benefit a family had always been permitted under Muslim law. Far from upholding ancient practice, colonial waqf law was itself a ‘modern’ innovation or corruption of ‘true’ religious practice. The assertion of Muslim autonomy to decide correct religious tradition won support from many religious leaders and ulama who were not so closely tied to the government. Thus, although these arguments were made to defend the economic interests of social groups traditionally allied to the colonial state, they helped to construct an image of Islamic unity.

Maintaining this ‘communal unity’ was particularly important to Mohammad Ali Jinnah. The successful Bombay lawyer had, by the early twentieth century, become well known for his political activity and involvement with the Indian National Congress. While he supported co-operation between Hindu and Muslim politicians, he also believed firmly in the distinct interests, needs and identities of the two religious groups and, from 1913, was a member of both Congress and the Muslim League.Footnote ³⁵ Jinnah's legal practices became increasingly bound up with his political ambitions; in the same year that he joined the League, Jinnah helped to secure the passage of the Mussalman Wakf Validating Act, which made a ‘family waqf’ legitimate on the grounds that this represented a more authentic interpretation of Islamic legal tradition.Footnote ³⁶ The act did not bring an immediate end to debates about Muslim family property; problems with retrospective application and administration of the new rights prompted a flurry of further bills over the next decade.Footnote ³⁷ But it did succeed in bringing waqf law in line with the needs and interests of wealthy Muslims without challenging the specifically religious identity of Muslim law. Its passage marked out waqf law particularly, and Muslim law more generally, as a domain best administered by learned Muslims than by colonial jurists.

Hindu reformers were quick to follow this lead. Moving the emphasis in their arguments away from criticism of actual religious traditions focused instead on the way they had been interpreted by British judges. One of the key works to take on the issue of Hindu law reform in this way was Dwarka Nath Mitter's The Position of Women under Hindu Law.Footnote ³⁸ Published the year that the Wakf Validating Act was passed, Mitter's comprehensive history of Hindu women's rights seemed to draw much inspiration from Muslim lawyers’ criticism of colonial understandings of traditional practices.

Mitter refuted Maine's claim that Hindu law reflected a perfect continuation of Roman law, particularly with regards to Patria potestas. Prior to British rule, Mitter argued, Hindu law had been a very fluid and dynamic legal system. Contemporary legal difficulties were not a result of social stagnation but of colonial officials’ limited linguistic skills and misunderstanding of the role of Pandit counsel. Drawing on his own translations of the Rig Veda, one of the oldest Vedic texts, Mitter argued that Maine and his colleagues had misunderstood the real meaning of women's dependency in the ancient Hindu texts. A Hindu woman was brought under the legal authority of her family to preserve her chastity and protect her from vice. But this was not a state of ‘perpetual tutelage’ or a denial of legal personhood: a Hindu woman ‘was not prevented by reason of her dependence from performing any juristic act (e.g. contract of sale or loan) without the concurrent auctoritas of the guardian’.Footnote ³⁹ Far from being fossilized, Mitter argued, these practices and rights had been whittled away over time to become the corrupted and inauthentic legal system administered by the colonial courts. In this way, his book subverted Maine's argument about the social evolution of Hindu society, while also challenging more long standing colonial claims about the relationship between the status of women and a society's fitness for self-rule.

While there were many similarities between the arguments about religious tradition and colonial interpretation put forward by Mitter and the Muslim lawyers involved in the debates about waqf, there was one important difference. Responding to the heavy emphasis placed on doctrinal teaching in colonial interpretations of Muslim law, Jinnah and his colleagues had framed their arguments in terms of religion: the current legal system needed to be reformed because it subverted ‘true’ Islamic practice by applying an incorrect reading of Muslim family law. The absence, in colonial interpretations of Hindu law, of a scriptural bases equivalent to that of colonial Islamic law meant that Mitter's argument was framed in ‘secular’ terms. Engaging with debates about Roman civil law and notions of social progress, Mitter cited history, rather than religious doctrine, to support personal law reform. In so doing, his thesis sought to bring together a sense of Hindu nationhood based on a glorious, ancient past, with concern about women's status in contemporary Indian society.

While couched in terms of concern for women's interests, this critique of Anglo-Hindu law also offered certain advantages to Hindu men. The principle of Patria potestas did not simply underpin the exclusion of women from the family estate; granting power to the eldest male in the family, the karta, it was the cornerstone of male subordination within the family. As with Muslim lawyers’ arguments about waqf, Mitter's account of the historical development of Hindu law intersected with a drive to improve men's property rights under the current legal system. The emphasis on social evolution in colonial accounts of the development of Hindu law meant that, while Muslim lawyers focused on religious text, Mitter's argument focused on women's rights and more secular arguments about social progress. His argument was not evidence of more liberal attitudes amongst Hindu lawyers, but a reflection of the structures of colonial personal law.

Devolution and personal law reform in the 1920s

Devolution under the 1919 Government of India Act allowed debates about personal law reform to be drawn into the Indian legislatures. The early 1920s saw the introduction of several private members bills that, if they did not attack the Hindu coparcenary structure directly, sought to grant greater legitimacy to alternative family set-ups within which individual rights received greater acknowledgement. Most of these proposals came from lawyers in the Presidency regions.Footnote ⁴⁰ The bills were framed largely in the language of women's rights, proposing reforms that would secure a widow's access to her husband's share in coparcenary property, either directly or through maintenance claims.Footnote ⁴¹ Government officials remained neutral towards these measures. This meant that most proposals failed to even make it onto the floor of the Assembly, having been given very low placing on a legislative ballot list that prioritized government business.

Outside the legislatures, the bills were accompanied by attempts to raise popular interest in the subject of women's rights and law reforms. These campaigns were also dominated by politically ambitious members of the legal profession. In 1923, Mukund Ramrao Jayakar, a lawyer from Bombay city, and later a legislative representative for that region, founded the Hindu Law Research and Reform Association (HLRRA). One of the primary aims of the HLRRA was to uncover the ‘principles underlying the system of Hindu Law. . .[and]. . .propose legislation with a view to rectify errors in the administration of Hindu Law, arising from departure from the true spirit of the Hindu Code. . .’ under British rule.Footnote ⁴² Anxious to avoid the label of ‘radical modernizer’, Jayakar's view of pre-colonial Hindu law echoed Mitter's views: British rulers had, as a result of linguistic limitations and ignorance of Hindu life, misinterpreted Sanskrit legal texts to establish a rigid system of law that served neither Hindu traditions nor the interests of the community.Footnote ⁴³ These ideas were further elaborated through public meetings and printed pamphlets put out by the Association's regional groups.Footnote ⁴⁴

The debates about Hindu law reform were important in shaping male legislators’ attitudes towards the claims and programmes of the all-India women's groups founded at this time. In the decade following World War I three all-India women's organizations were set up.Footnote ⁴⁵ Women members of these organizations were interested in a broad range of issues, including legal reform and women's position and rights within the home. The emergence of these groups has typically been seen as a moment in which Indian women refused to be the subjects of reform but became interested in shaping and changing their lives and social status themselves. While this was undoubtedly an important transition, the success of women's organizations’ campaigns and their growing prominence in Indian political life owed much to the constellation of male interests around the issue of women's rights in the context of personal law reform. The three all-India women's organizations strongly eschewed religious alignment, their leaders often arguing that women's politics formed a vital foundation for cross-communal unity.Footnote ⁴⁶ Yet, the particular significance of arguments about women's rights for Hindu property law meant that, at times, the women's movement seemed to enjoy a stronger relationship with Hindu legislators than with their Muslim counterparts.Footnote ⁴⁷ By the late 1920s, therefore, ideas about women's rights had seemed to gain considerable acceptance and support from Hindu male representatives and spokesmen in particular.

This relationship was to prove significant with regard to the most celebrated personal law reform project of this period—the Child Marriage Restraint Act. Mrinalini Sinha has shown how political devolution within India, together with shifts in global imperial politics, created a brief window within which it was possible to pass this groundbreaking act—the only family law measure to cut across the religious-based personal laws that has ever been passed in India.Footnote ⁴⁸ Yet, support for the act was also much informed by the longer running discussions about law reform amongst Hindu and Muslim legislators. The publication of Katherine Mayo's inflammatory Mother India in 1927 served to place the issue of women's rights at the forefront of debates about further constitutional reforms and therefore to imbue this issue with even greater significance in relation to arguments about Indians’ fitness for self-rule. Passed in response to Mayo's claims, Sinha has shown how the Child Marriage Restraint Act undercut the colonial state's paternalist claims. Introduced initially as a private member's bill, this act was heralded as evidence of the fact that Indians, and not British officials, were the primary agents of social reform. As such, the act served to further affirm the earlier claims of Jinnah and Mitter that Indians, rather than British officials, possessed the greatest power to effect social and legal change.

Focused on the right of the child bride to claim protection from the state, and not simply her family, the Child Marriage Restraint Act was undoubtedly a groundbreaking measure. Its passage served to place issues of women's rights squarely at the centre of the ongoing debates about religious authority and personal law. Yet, the act was not different enough from the claims made in these debates to create a real or permanent rupture in the boundaries of masculine autonomy and religious identity that informed these discussions. Male reformers continued to call for law reform in a manner that seemed to address concerns about women's rights but which remained wholly in keeping with their own propertied and political interests. Muslim reformers did this by further invoking the religious identity of their legal system. For Hindus, however, the issues raised by the Mother India episode forced reformers to call for greater legislative intervention in Hindu law. While this created specific problems from Hindu legislators, it also allowed them to associate their demands with the radical, ‘modernizing’ drive of the Child Marriage Restraint Act in a way that their Muslim colleagues could not.Footnote ⁴⁹

Reinforcing the religious/liberal divide: law reform in the 1930s

Debates about personal law reform in the 1930s were marked by a strengthening, rather than weakening, of the religious divide. When they came to take their seats in 1937, newly-elected members of the central legislature found themselves facing a long list of social reform proposals which had been put on hold during the constitutional debates of the late 1920s and early 1930s. This included two highly publicized measures, Dr G. V. Deshmukh's Hindu Women's Right to Property Bill and Mr H. M. Abdullah's Muslim Personal Law (Shariat) Application Bill, which proposed comprehensive reform of the Hindu and Muslim personal legal structures respectively. In the wake of the Mayo-controversy, both were framed as measures to reform the legal and social status of Indian women, though, once again, Hindu and Muslim reformers used quite different arguments to promote their proposals.

In early 1935, H. M. Abdullah sought government permission to introduce what was to become known as the Shariat Application Bill. This bill was virtually a replica of a measure proposed, but never formally introduced, by Mian Abdul Haye, an urban representative of the Punjab Unionist Party, in 1929, at the height of the agitation against Mother India.Footnote ⁵⁰ Both Haye and Abdullah presented the bill as an attempt to improve the condition of Muslim women. Yet, their argument as to how the bill would do this had much in common with the criticism of colonial interpretation of religious practices raised in the waqf debates. As already discussed, colonial readings of Muslim law had drawn heavily on textual sources but continued to uphold certain customary practices. This meant that the legal system governing Indian Muslims’ families varied according to region and ‘tribal’ community. Though the colonial courts had often upheld Muslim women's claims to mehr, in other areas of life, customary practices were cited as a means of preventing Muslim women from exercising the property rights set out in text-based Islamic law. This was certainly the case in Mian Abdul Haye's homeland of Punjab where Muslim agriculturalists were governed by a customary legal system.Footnote ⁵¹ In the wake of the Mayo controversy, the argument for eradicating regional differences in Muslim law went hand in hand with arguments about women's rights. Introducing the bill, H. M. Abdullah explained that he wished to replace the degraded and unjust colonial legal system with a more authentic interpretation of Muslim law that was far more socially progressive.

In this way, the bill sought to reinforce the claim made about the Child Marriage Restraint Act, that the primary agent of social reform was not the colonial state but Indians, or in the case of the Shariat Bill, Indian Muslims. At the same time, the bill appealed to Muslim opponents of the Child Marriage Restraint Act; the original wording of early drafts of the bill proposed that Shariat law replace all other laws currently governing Indian Muslims, opening up a possibility for Muslims to exempt themselves from Act XIX of 1929.Footnote ⁵³

Both supporters and opponents of the bill referred to the fact that its provisions presented Muslim law as distinctly religious in nature. Responding to a government request for opinions on the bill, the Deputy Commissioner of Akola, Central Provinces, questioned the wisdom of a measure that enforced the Shariat as an immutable legal system that could not be adapted and developed by legislative intervention. ‘However excellent a law the Shariat might have been in the past and however excellent it might be even today’, he argued, ‘it cannot be said that nothing superior to it, or nothing more satisfactory than it, can be evolved in the march of human progress’. Yet for many other Muslim officials and lawyers interviewed by the government, this was one of the key reasons to support the bill. Mr K. M. Akram, a district and session pleader from the Central Provinces, supported the proposed changes to Muslim women's rights, but also praised the manner in which the Bill reaffirmed the distinctly religious boundaries of Muslim law and its autonomy from secular statute.Footnote ⁵⁴ The Muslim Chambers of Commerce in Calcutta echoed this view, arguing that it would improve women's rights and would also consolidate Muslim, rather than colonial, authority over property, including waqf trusts.Footnote ⁵⁵

Framed in terms of religion, the bill also triggered debate about the position of minority and convert Muslim communities, such as the Memons and Mappilas, who were still governed according to custom and more ‘Hindu-like’ legal systems.Footnote ⁵⁶ Mr M. J. Merchant, a joint sub-judge in Dhulia in the Bombay Presidency, agreed with the supporters of the bill that ‘A true Moslem must follow Shariat in all his actions’. But went on to argue that,

He was supported in this view by his colleague, an unnamed district judge from West Kandesh, also in Dhulia, who called for a distinction to be made between Islam as religion and Islam as a legal system. ‘It is possible to have one without the other’, he argued, ‘as is demonstrated by many communities in India which profess Islam’.Footnote ⁵⁷ Muslim supporters of the bill strongly refuted these arguments about difference amongst India's Muslims. Indeed, the Anjuman Sabile Islamia of Gauhati, Assam, charged colonial courts with dividing the Muslim community by ‘enforcing’ custom upon certain groups and strongly supported the unifying element of the bill.Footnote ⁵⁸

The successful enactment of the bill owed much to the intervention of Mohammed Ali Jinnah, who only entered the debate during its final stages. While the select committee that considered it over the summer of 1937 resolved problems of wording, confusion remained about the way in which the measures would be implemented. Seeking to assert their own legislative autonomy, the Congress-dominated provincial assemblies put pressure on the Government of India to allow provinces to opt into the provisions set out by the bill. Keen to prevent this attempt to build a single Muslim community from becoming a measure that would augment regional difference between Indian Muslims, Jinnah stepped in. In September 1937 he proposed to make it compulsory for all Indian Muslims to be governed by Shariat law in terms of marriage, mehr, intestate succession and waqf law only. Muslims could continue to adhere to customary law in relation to intestate succession if they wished, but section 3 of the bill permitted them to sign a declaration that committed themselves and future generations to following the Shariat in this area of law also.Footnote ⁵⁹ The other aspect of succession law to be left outside the purview of the bill was access to agricultural land, reflecting the separation of federal and provincial subjects under the 1935 Government of India Act. This constitutional necessity made it much easier for powerful landowners in Bengal and Punjab to accept the Shariat Bill, the passage of which seemed to reinforce a notion of a single, coherent Muslim community in India which, in favouring women's rights, was progressive in its outlook, but was fundamentally underpinned by religious identity and scriptural authority.

Deshmukh's Hindu Rights to Property Bill seemed to mirror the Shariat Application Act in that it set out to provide a comprehensive, codified set of property laws for Hindu women, that would bring into greater alignment regional customs and the practices of different schools of Hindu law. As with the private members bills discussed in the 1920s, at the heart of Deshmukh's Bill was a notion of family based on the conjugal unit and power of the husband, not the coparcenary and the karta. The most radical reform introduced under the Bill was the inclusion of a man's widow and daughter in the list of heirs to succeed to his property, including his share in the family coparcenary.Footnote ⁶⁰ It also rendered a woman's share in this property absolute, rather than for the duration of her lifetime.

While there was much general support for the main principles of Deshmukh's Bill, many legislators objected to certain aspects of its provisions. Officials in northern India felt that the proposals went too far in destroying the structure of the joint family, leaving women in a better financial position than Hindu men.Footnote ⁶¹ Similar objections were raised in the discussions of the select committee and the bill was quite radically redrafted as a result. New clauses were added highlighting differences between the Mitakshara and Dayabhaga schools of law and any reference to the rights of the daughter was removed. The bill was finally enacted, in this redrafted form, in April 1937.

Differences in the regional High Courts’ interpretations of the provisions of Deshmukh's Act created further complication. The Shariat Act had been worded in such a way as to avoid this kind of confusion. There was no definition or detail of what constituted Shariat law in the provisions of the Shariat Application Act. Indeed, its supporters shied away from any reference to or engagement with the different schools or system of Muslim law, presenting Shariat law as a coherent system, the acceptance of which was understood to be closely bound up with good Islamic practice.Footnote ⁶² The act simply listed the areas of law to which Indian Muslims were to be subject, giving Muslim jurists considerable power and autonomy to interpret what this in fact entailed. Rather than resolve or eradicate different opinions between Muslim jurists and scholars, in presenting Shariat law as a clear and religious code of law, the act moved discussions of these differences from the public sphere to a more discrete field of inter-community dialogue.

Hindu law had no comparable code or legal system on which Deshmukh could draw. His proposal was framed in terms of statute not religious precepts and, as such, was more open to dispute and legal revision within the legislature. Indeed, the act was amended in 1938 in order to set out more clearly the order of succession.Footnote ⁶³ But discussions about Hindu widows’ rights and Deshmukh's measures continued nonetheless.

Whereas the Shariat Act had provided a means of removing intra-Muslim debate about family and religious practice from the legislature and projecting an image of community solidarity, Deshmukh's Act seemed to open up new divisions and differences between Hindu representatives. Though Deshmukh and his supporters argued that their proposals did not radically alter Hindu law and were in consonance with ‘Hindu ideas and sentiments’,Footnote ⁶⁴ many of their opponents disagreed.Footnote ⁶⁵ Unable to refer to a clear and coherent religious code, like the view of Shariat law presented in the Shariat Act, supporters of Deshmukh's Act framed their arguments more in relation to social justice and improving the position of women rather than to religious tradition. These arguments also generated opposition, even between those who supported reform; Bengali representatives argued that they should be exempt from some social reform measures because of the more progressive nature of Dayabhaga law, which did not follow the coparcenary system.Footnote ⁶⁶ By the end of 1939 a Hindu Law of Inheritance (Amendment) Bill, a Hindu Women's Property Bill, a Hindu Women's Estate Bill and a Hindu Married Women's Right to Separate Residence and Maintenance Bill along with three proposed revisions to the amended 1938 Hindu Women's Property Act were awaiting discussion in the central legislature.Footnote ⁶⁷

It was this backlog of time-consuming legislation that prompted the Government of India to form a Hindu Law Committee. Established in January 1941, the Committee was ordered to look into and resolve the complications surrounding Hindu women's property rights in the proposed bills. After six months of consultation, the Committee concluded that it was legislators’ piecemeal approach to law reform that was the major source of legal confusion and called on the government to back a more comprehensive project to codify and reform the wider body of Hindu lawFootnote ⁶⁸—a Hindu answer to the Shariat Act. The Government consented to this proposal and, over the next six years, the Hindu Law Committee worked to draw up a Hindu Code Bill that was introduced to the central legislature on 11 April, 1947, only months before independence. Strong support for the Code Bill project, from legislators, but particularly from within the Nehru government,Footnote ⁶⁹ meant that the measure was revived soon after the transfer of power, before the new constitution had even been drawn up. With political and regional factions vying for dominance in the new nation-state, the rifts and differences regarding the direction in which Hindu law reform should proceed did not simply disappear with independence. Rather, the Code Bill was drawn into much wider debates about citizenship and the framing of constitutional rights.

For Muslim representatives, independence and partition made the protection of a coherent Muslim identity and autonomy from the Hindu dominated state an even more pressing concern. As debates about Hindu law were drawn into wider discussions about state-building, Indian Muslim leaders sought assurances that their community would be allowed to follow their ‘religious’ practices, including their very recently acquired ‘traditional’ system of law.Footnote ⁷⁰ In agreeing to uphold the autonomy of the Muslim community the new Indian government was not creating new differences between Hindu and Muslim citizens’ relationship to civil legal structures, but were cementing a difference that had been developing for several decades prior to 1947.