The British Empire created channels for imperially intended movement.Footnote 1 Commodities, bodies, and ideas flowed along axes structured by imperial law and technology. Unintended motion also occurred along these same planes. With every legal structure meant to promote one type of behavior came litigants devising strategies to achieve the opposite. Collusion, bribery, forgery, and perjury were favorite ways to manipulate imperial law.Footnote 2 The more permissible strategy of forum shopping was another. Forum shopping is the attempt to push one's case into a jurisdiction promising an optimal result when there is ambiguity over the controlling jurisdiction.Footnote 3 It reveals the perception among litigants that bottom-up—and sideways—mechanics exist within legal systems. Unlike work on resistance to state law through extralegal means, I here examine the ways parties tried to work strategically within the confines of the legal system to reconfigure their marital situations.Footnote 4 Rather than documenting the success of these maneuvers, however, I note their more common failure. The colonial courts usually saw through unconvincing attempts to forum shop. The fact that litigants continued to try reflects the ingenuity, arguably, of the “legal lottery” mechanism at work in British imperial law. Colonial law, and therefore colonial rule, reinforced its hold on subjects by dangling before them the possibility of individual relief through rule-of-law proceduralism.
In her pioneering work on legal pluralism and imperial law, Lauren Benton coins the phrase “jurisdictional jockeying.” The phrase applies to both ends of the colonial encounter. Colonial authorities competed among themselves to gain jurisdiction over colonial disputes. At the same time, litigants (often colonized) used these institutional ambiguities to further their own interests.Footnote 5 If the story seems like a celebratory one that restores agency to colonial subjects, it is so only to a limited extent. Benton's larger point is that the delicate filigree of individual litigants' jurisdictional manipulations only reinforced the authority of the colonial state. The unintended long-term consequences of these disputes, pursued by colonial subjects with the aim of exploiting imperial fragmentation, was to give judicial bodies authority over wide swathes of colonial life.Footnote 6
I also depict microscopic acts of agency reinforcing macroscopic state authority. The acts of agency described here were usually mere attempts. The term “jockeying” implies a certain amount of skill. To emphasize the often clumsy nature of these moves, I prefer to speak of jurisdictional jostling. Like the other two articles in this forum, this piece examines legal strategy and agency through the lens of legal pluralism, gender, and personal law. I show how discrepancies in the family law of colonial Bombay, imperial England, the independent South Asian princely state of Baroda, and the sovereign royal state of Persia created a flow of hopeful litigants toward what was perceived to be the jurisdiction of least resistance. Parties tried to forum shop in order to counteract spousal abandonment, to get a no-fault divorce, and to enter into polygamous unions. Some of these strategies were lawyers' ideas executed by elite litigants. Others probably emerged out of the informal social knowledge of parties who could not afford to pay for legal advice. Shedding light on a phenomenon that Benton alludes to but does not explore in depth, I map attempts to travel the “wrong way” along imperial legal circuits, and to depart from these circuits entirely.Footnote 7
One might expect successful forum shopping to be visible among the two populations featured in this article: Britons and Parsis. Both groups were renowned for their privileged place in the British imperial world. The Parsis, or followers of the Zoroastrian religion in India, were Persian migrants to India who adopted British legalism with special vigor, both as legal professionals and as litigants.Footnote 8 Both they and the British had diasporic networks linking multiple territories globally. Elite members of both groups had the financial resources to hire good lawyers, and to travel. However, the three cases examined here suggest that wealth and privilege did not ensure effective forum shopping. Success in forum shopping did not require money as much as a willingness to move to one's ideal jurisdiction and stay there. Whether litigants tried to use forum shopping as a sword (i.e., to create a cause of action against a spouse) or as a shield (i.e., to protect oneself, having left British India, against a spouse's claim), the colonial courts were not easily fooled.
Why then did litigants continue to try forum shopping? Colonial subjects (and their lawyers) realized that the courts sometimes limited the ambit of their own authority. The existence of this legal lottery suggests a pressure-valve role for the courts along the lines of what E. P. Thompson proposed for England.Footnote 9 This foundational and ingenious feature of colonial law may explain its relative success with colonized populations that recognized the system's structural bias against them, but that nonetheless continued to use colonial law with the hope that legal “luck” would produce optimal results in their own particular cases.Footnote 10
Legal Pluralism and Colonial India
Three case studies are here featured in which litigants attempted to move between territorial units, but jurisdictional jostling also ran along another plane in colonial South Asia. Under the personal law system, marriage and inheritance matters fell within the body of religious law that pertained to the parties—Hindu law for Hindus, Islamic law for Muslims, and so on.Footnote 11 Conversion allowed individuals to maneuver across bodies of religious law, making available the options of polygamy and divorce to new Muslims, for example, and of divorce to new Christians.Footnote 12 Although the legal pluralism created by these religious jurisdictions is beyond the scope of this study, it is the subject of the other two articles in this forum.Footnote 13 Attempts to move between religious blocks of law occurred alongside strategies to shift between territorial ones.
Hendrik Hartog and Lawrence Friedman have created a portrait of the U.S. marital mosaic under fault-based divorce regimes circa 1900.Footnote 14 If a person wanted an easy divorce, he or she could have gone to Indiana or to Nevada.Footnote 15 Six weeks' residence in the latter was enough to establish the individual's domicile, and the right to apply for a Nevada divorce.Footnote 16 If a wife could prove that her husband had been cruel to her, she would want to be in California, where a narrative of cruelty was the most commonly successful line of argument.Footnote 17 If, by contrast, a party seeking divorce could prove adultery, he or she would want to file for divorce in New York. Businesses specializing in the staging of situations made to look adulterous arose in that state, where couples who could not prove fault colluded to seek divorce.Footnote 18
South Asia was an even more varied legal terrain in the early twentieth century. British rule extended to only 61 percent of the Indian subcontinent's area, the remaining 39 percent falling under the independent jurisdictions of the princely states.Footnote 19 Some 700 Indian princes operated their own legal systems (with varying degrees of autonomy) in everything from the tiny ornamental city-states dotting the Arabian Sea coastline of Gujarat, to the vast southern kingdom of Hyderabad, a territory three times the size of Ireland.Footnote 20 The courts of Britain were another legal alternative to which a significant imperial traffic had access.Footnote 21 British officials circulated between India and Britain with surprising frequency once the development of steam travel and the opening of the Suez Canal in 1869 reduced travel time significantly.Footnote 22 South Asians also moved between Britain and India in surprising numbers—in the early days as sailors (lascars), servants or nannies (ayahs) accompanying British families making the sea voyage, or alternatively as visiting royalty. Later on, they came as students, aspiring civil servants, and tourists.Footnote 23 There were also pockets of South Asia controlled by other European powers and their law—the French in Pondicherry on the southeast Coromandel Coast, the Portuguese along the west coast at Goa and, at the coastal fringe of Gujarat, the tiny territories of Daman and Diu. Furthermore, even in British jurisdictions, the aftertaste of previous European colonization remained—in particular, in the law of Ceylon, a territory under Portuguese and then Dutch rule.Footnote 24 It was a general British policy to retain the legal system in place at the time of accession to British rule—or at least, to do so nominally. This approach left a residue of Romano-Dutch law, making available a further set of doctrines.Footnote 25 Finally, there were neighboring uncolonized states like the royal kingdoms of Persia, to the west, and Siam and China, to the east.Footnote 26 Diasporic trading communities like the Parsis had longstanding connections to these territories, and at times attempted to shift their legal disputes into those jurisdictions for the sake of a better outcome.Footnote 27
Aside from these territorial jurisdictions, there were the religious ones already noted. In 1772, Warren Hastings promised Hindu law for Hindus and Islamic law for Muslims in “all suits regarding marriage, caste and other religious usages and institutions.”Footnote 28 Queen Victoria renewed the pledge after the largest rebellion against British rule—the Indian “Mutiny” (or general rebellion) of 1857.Footnote 29 Oddly, the initial promise was binary, reading the South Asian population as either Hindu or Muslim. No acknowledgment was made of the religious traditions of Sikhs, Jains, Buddhists, Zoroastrians, Indian Jews, or non-Anglican Indian Christians like the Syrian or Armenian Christians. In subsequent centuries, judges had to construct legal fictions, construing communities like Sikhs and Jains as Hindu subsects in order to extend to them the promise of legal pluralism.Footnote 30
Finally, there was customary law. In the late eighteenth and early nineteenth centuries, the first wave of colonial legal Orientalism took place in the form of the translation of Hindu and Islamic legal treatises.Footnote 31 The British form of legal pluralism did not farm out the determination of what constituted Hindu and Islamic law to the religious communities themselves, but it gave the job to the colonial courts. They relied initially on Hindu and Islamic law experts, and later, on translated written sources alone.Footnote 32 Within a century, though, British legal officials realized that this hypertextual approach ignored customary practice. The customary law experiment began in the northwestern areas of British India, particularly Punjab, with flashes of recognition elsewhere (like the Malabar Coast of southwest India).Footnote 33 Proving custom in court was no easy task, but this did not stop litigants from requesting an exit from standard religious or territorial laws on the basis of contrary customary practice.Footnote 34
All this—the personal law system of religious law, custom, neighboring and princely jurisdictions, the many legal links to England and Scotland, and the legal systems of other European colonizers who had ceded territory to the British—created an opulent feast of legal options for potential litigants. The possibility of migration between territorial, religious, and customary blocks of law was an invitation for jurisdictional opportunism. This article confines itself to the first of these types of conceptual travel: strategies of migration across territorial jurisdictions. My first case study examines an attempt to bring an abandonment suit filed by an English wife against her Parsi husband from the courts of England to the Bombay High Court in order to access—ironically—a remnant of English ecclesiastical law that was no longer enforceable in England but in full bloom in India. The second case study documents an attempt by a Parsi couple to push their case from British India into the neighboring princely state of Baroda because no-fault divorce was available in the latter, unlike in British territory. My final case study reveals a maneuver through which a Zoroastrian man moved between British India and Persia in order to pursue the polygamy permitted to Zoroastrians in Persia, and forbidden to them in India since 1865.
Three Case Studies
The Restitution of Conjugal Rights: England versus Bombay Presidency
The standard history of colonial miscegenation between Europeans and South Asians posits a golden age of intercultural openness and social freedom, followed by the onset of high colonial racism with the arrival in India of missionaries and European women in larger numbers.Footnote 35 Following a pattern that reproduced itself globally in the first few centuries of “trade colonialism,” British men in India took Indian women as their wives and mistresses during the early period when British India was under the rule of the East India Company.Footnote 36 This combination seems to have been common and socially tolerated among Britons up until the late eighteenth century. From the early nineteenth century on, as the standard story goes, things changed.Footnote 37 The new emphasis upon racial difference inherent in the “civilizing mission” stigmatized British men who took Indian mates, and the practice became taboo. In its wake, the mixed-race population that resulted from earlier couplings—the Eurasians or Anglo-Indians—turned inward, becoming its own independent, largely endogamous community.Footnote 38
In fact, a new era of intermixing began as Indian men started coming to Britain in larger numbers, most often as students, in the late nineteenth and early twentieth centuries.Footnote 39 This time, it was not European men and South Asian women who were coupling up in India, but European women and South Asian men, and in Britain.Footnote 40 My first forum shopping case study, the case of Eleanora Wadia v. Nusserwanjee Pestonjee Ardesir Wadia (1913), exemplifies this second underacknowledged wave of imperial mixing.Footnote 41
Wadia v. Wadia was a case about a failed English-Parsi marriage. Eleanora or “Poppy” Hammond met Nusserwanji Pestonji Ardesir Wadia while she was a twenty-four-year-old actress at the Gaiety Theatre in London. By her account, he posed as a Bombay Parsi “of independent means,” and even claimed his parents were eager for him to marry an Englishwoman.Footnote 42 He insisted that he had been reluctant to marry her. He had repeatedly warned her that his parents would not approve of his marrying a non-Parsi, and he claimed never to have posed as wealthy.Footnote 43 They married in Kensington on August 4, 1911, then sailed for Bombay by a circuitous route via Ceylon and Madras. Upon arrival, Eleanora stated that her husband began to behave coldly to her under the negative influence of his family. He asserted that she turned them against her with her uncontrollable temper, foul language, and insulting behavior.Footnote 44 He further argued that he abandoned her because of her violent behavior, which included throwing crockery and hairbrushes at him.Footnote 45 Eleanora had verbally abused her husband with racial slurs like “low born nigger,” and had frequently insulted his family.Footnote 46 Nusserwanji claimed that his wife had conducted illicit relationships with other men both before and after their marriage.Footnote 47 He told the court she had a disturbing psychiatric history, having spent a period in a private insane asylum.Footnote 48 She was also incontinent, a fact of which he had been unaware before their marriage.Footnote 49 The couple returned to London in 1912 and Nusserwanji deserted Eleanora on the platform of Victoria railway station. Eleanora sued her husband for abandoning her, asking the court (in theory) to make him return to her. She won in the court of first instance, but on appeal, her husband won on the basis of jurisdiction.
British observers interpreted the abandonment of Mrs. Wadia as a warning to naive young British women tempted to marry Indian men in Britain.Footnote 50 The Wadia case and its type arose when Western women fell for Indian men residing in Europe, then moved to South Asia with their new husbands.Footnote 51 The London actress's case confirmed that the law would not protect such women when they found themselves deserted. Like Mr. Wadia, these men could be fickle or have disapproving families. Some Indian husbands expected their European wives to live under deplorable conditions back in India.Footnote 52 Others overstated the degree to which they had rejected their conservative religious backgrounds in the name of progressive reform movements like the Brahmo Samaj, only to lapse once the couple had married.Footnote 53 A few turned out to be impoverished polygamists—rather than the affluent bachelors they had pretended to be while in Britain. The truth usually came out upon the couple's return to India. Even a genuine Indian prince who seemed like a romantic catch would soon show his sexist nature once he had tricked a naive English girl into marrying him.Footnote 54 The “veneer of cosmopolitanism” that initially coated these unions with exotic allure soon wore thin.Footnote 55
In the British press, Mrs. Wadia was the white female victim of a wily brown man.Footnote 56 In court, it was she who was the trickster. What makes Wadia v. Wadia a case study in forum shopping is where Mrs. Wadia sued, and why. The couple was married in London and resided there. Their trip to India had been just that—a visit, not a move. After the marriage broke down, both parties continued to live in London, apart. One would have expected Mrs. Wadia to initiate the suit in the London courts under English law. Under the rules of domicile, a suit relating to marriage had to be heard by a court in the jurisdiction in which the husband and wife had their fixed permanent home, and to which they had the intention of returning.Footnote 57 In the Wadia case, the couple was clearly domiciled in England, even if maintaining separate households. But Mrs. Wadia traveled to India and sued in Bombay. The reason reflects an effort to maneuver into a jurisdiction that would work to her advantage: only in colonial India was the dinosaur of English ecclesiastical law, the restitution of conjugal rights, taken seriously, and only there did she stand a chance of winning her case. Other options in the English courts would have been unappealing because of the low level at which support payments were capped by legislation (£2 per week), and by the waiting period of several years required in suits for judicial separation or divorce.Footnote 58
The restitution of conjugal rights was a curious cause of action grounded in the idea that a court could order spouses to live together, upon pain of imprisonment or fine, where one had deserted the other without lawful cause. In an English legal context, the action was unsettling and strange. It violated English law's avoidance of specific performance as anything but a last resort (i.e., ordering direct action instead of the payment of damages), reflecting associations between specific performance and slavery.Footnote 59 In England, common-law courts absorbed the ecclesiastical courts' matrimonial jurisdiction in 1857.Footnote 60 In 1879, if an action for the restitution of conjugal rights was attempted in the English courts, it was only as a step on the way to a financial remedy.Footnote 61 By 1884, the penalty of imprisonment for errant spouses was abolished by legislation.Footnote 62 A turn-of-the-century edition of Blackstone's Commentaries noted that as a result, the English wife could leave her husband's house whenever she pleased.Footnote 63
Things were different in British India.Footnote 64 English ecclesiastical law wormed its way into surprising places in imperial law—the restitution of conjugal rights was one.Footnote 65 In the highly publicized case of Dadaji v. Rukhmabai (1885-86), a young Hindu woman named Rukhmabai refused to live with her husband on the grounds that she had been married to him against her will at the age of eleven.Footnote 66 Rukhmabai lost her case and only avoided imprisonment because her estranged husband agreed to accept payment instead. Her case led to a public campaign to abolish imprisonment as a penalty in such cases. It failed.Footnote 67 In the decades that followed, a number of restitution of conjugal rights cases passed through the colonial courts.Footnote 68 The courts wavered on entertaining and enforcing the form of action.Footnote 69 An article in a 1907 Bombay law journal noted that the action was available to all communities in India.Footnote 70 Many of the cases coming before the Parsi Chief Matrimonial Court were suits for the restitution of conjugal rights upon pain of imprisonment; the action was enshrined in the Parsi Marriage and Divorce Act 1865.Footnote 71 A textbook on Burmese law noted that it could also be used in Burma, and it appeared in cases between 1886 and 1929.Footnote 72 The unsettled nature of this area of colonial law was probably enough to make Mrs. Wadia and her lawyers feel that suing in Bombay was worth a try.
In the court of first instance, the Scottish judge Norman Macleod awarded the case to Mrs. Wadia. On appeal, she lost on the question of domicile.Footnote 73 Mr. Wadia had been living in England the whole time, and Mrs. Wadia did not normally reside in Bombay. According to her husband's lawyers, “she came to file this suit and nothing else.”Footnote 74 The residence of the petitioner had to be “bona fide and not casual or as a traveler.”Footnote 75 Mrs. Wadia's temporary stay in Bombay did not suffice.
Mrs. Wadia's failed attempt at jurisdictional tourism reflected two unsurprising things about Europeans like herself, and Parsis like her husband. First, one would expect many Europeans to have the means and ability to travel in order to pursue the best legal option. Mrs. Wadia had both. Second, despite Mr. Wadia's denial of any great personal wealth, the fact that he hired the star of the Bombay bar, J. D. Inverarity, the fierce Thomas Strangman, and top Indian barrister Motilal Setalvad, suggests otherwise.Footnote 76 One would expect affluent Parsis, with their access to top legal advice and global network of coreligionists, to have an equal awareness of jurisdictional options. Mr. Wadia's claim to be detained in London for work probably represents as deliberate a jurisdictional move as his wife's voyage halfway around the world. Wadia v Wadia represents a failed attempt at elite forum shopping, at least from Mrs. Wadia's perspective. But jurisdictional jostling was also practiced by the less privileged—occasionally, with greater success. The remaining two case studies illustrate the ways working-class litigants moved across international boundaries to try to alter their legal status.
No-Fault Divorce: British India versus Baroda
The census reported the Parsi population of Bombay Presidency to be 80,980 in 1911. Another nearly 8,000 were based in Baroda, a small and fragmented princely state that lay dotted across British territory in over eight noncontiguous pieces.Footnote 77 Baroda was run by an unusually progressive royal family, the Gaekwads, that led modernization efforts in public health and administration.Footnote 78 It also sat squarely in the Parsi heartland of Gujarat, and included cities like Navsari, one of the priestly centers of a Zoroastrian diocese, or panthak, that was carved out of Gujarat around 1290 by agreement within the thirteenth-century Parsi community.Footnote 79 Parsis living further south, in the city of Bombay, generally traced their roots to various ancestral towns in Gujarat, often within the princely state of Baroda. Many Bombay Parsis still had relatives there. As a result, Parsis moved back and forth between British and princely territory for holidays, special religious or community events, and during times of sickness, pregnancy, or family crisis.Footnote 80 Some also shifted back and forth for specifically jurisdictional reasons.Footnote 81
Colonial Parsis were stereotyped as a rich and privileged elite. But there were poor Parsis, too. The records of the Parsi Chief Matrimonial Court in Mumbai reveal a docket full of largely working-class Parsis—people who saved up for many years to be able to bring their case to the court, and who eked out a living as servants, cooks, taxi drivers, carpenters, and railway ticket collectors.Footnote 82 These people also forum shopped. My second and third case studies feature working-class Zoroastrians whose travels may have been more tightly circumscribed than the Wadias', but who nonetheless moved between British India and the princely state of Baroda, and between British India and Persia, in attempting to reconfigure their legal situation.
No-fault divorce is a surprisingly recent phenomenon in most common-law jurisdictions. It was not adopted in American and English law until the latter half of the twentieth century.Footnote 83 Even in English law today, a spouse must wait two years before he or she can obtain a divorce without showing that the other party was at fault. In the interim, only the fault-based regime is available.Footnote 84 In early twentieth-century British India, a spectrum of fault and no-fault divorce regimes existed. The parties' religious affiliations determined the set of rules that applied. For Christians, a fault-based regime applied, with sex-specific requirements. A Christian wife seeking divorce had to prove that her husband had committed adultery and that there had been some aggravating circumstance, like incest or cruelty. A husband simply had to prove that his wife had committed adultery.Footnote 85 In Anglo-Hindu law, there was no such thing as divorce. By contrast, under Anglo-Muhammadan law, the husband enjoyed the ultimate in no-fault divorce, namely the triple talāq, which allowed him to terminate the marriage for any or no reason by saying talāq (“I divorce thee”) three times. Although it was possible for the husband's power of talāq to be delegated to his wife at the time of formation of the marriage contract, Muslim wives could generally only divorce their husbands in a much more limited number of circumstances.Footnote 86 For instance, she could obtain a judicial decree if she could prove that her husband was impotent or that he had falsely accused her of adultery.Footnote 87 As in any fault-based regime, “collusion and connivance” were constant concerns for the courts.Footnote 88
Divorce law for Parsis was established in the Parsi Marriage and Divorce Act of 1865, a piece of legislation proposed and drafted mainly by members of the Parsi community in the form of the Parsi Law Commission.Footnote 89 The Act adopted a fault-based scheme for divorce that was similar to the regime in place in English law, and for Christians (both European and Indian) in British India. All three legal regimes adopted an asymmetrical set of fault requirements that made it easier for a man to obtain a divorce than for a woman. The Parsi Act permitted a Parsi husband to sue for divorce if his wife had committed adultery. A Parsi wife, by contrast, had to prove adultery (where the other woman was married) or fornication (where she was not) coupled with an aggravating circumstance like cruelty, bigamy, desertion for two years or more, rape, or an “unnatural offence.”Footnote 90 If the other woman was a prostitute, the husband's infidelity would not count as adultery.Footnote 91 Commentators noted that the Parsi Act was an almost exact adoption of the English statute on divorce, itself the model for legislation in British India pertaining to divorce among Christians.Footnote 92
By contrast, Parsis in Baroda had the option of no-fault divorce. Although Baroda's ruling family was famous for its progressive reforms, this provision of Parsi law was probably not a statement of self-conscious modernity: unlike Parsis in Bombay Presidency, Parsis in Baroda also had the choice of entering into polygynous marriages. The practice was prohibited to Bombay Presidency Parsis by the 1865 Act, a statute intended by its Parsi creators to reflect the “civilized” mind-set of their community.Footnote 93 No-fault divorce was an option that a Baroda wife who opposed her husband's second marriage could feel compelled to use. No-fault divorce, in other words, did not necessarily provide a happy exit from the sexual double standard of many marital schemes. The Parsi law of Baroda did not give the parties a more egalitarian set of options—just different ones.
In Parsi Matrimonial Suit No. 6 of 1910, a husband filed for divorce in Bombay on the grounds that his wife had committed adultery. Her alleged lover was the second defendant. The husband had been born in Bilimora, in Baroda, but had grown up in the home of his aunt and uncle in Bombay Presidency, where he received his schooling. Since then, he had lived in Bombay, only occasionally making visits back to Bilimora to see his parents.Footnote 94 His wife, by contrast, had no links to Baroda, having been born and raised in British India. The couple had been married in Bombay.Footnote 95 On the basis of the husband's weak ties to the princely state, however, the couple traveled to Navsari, a city in Baroda, and obtained a “mutual release,” or no-fault divorce. Later, the couple probably realized that the Parsi Chief Matrimonial Court in Bombay would find the mutual release to be invalid in British India, where the coupled was domiciled, which is why the husband appeared before that court making a fault-based case of adultery against his wife. The case fizzled out when the couple came to an understanding outside of the courtroom. What makes the case important, however, is the testimony of one witness.
Dhunjisha Edulji Patel was a schoolmaster and part-time pleader, or low-ranking courtroom lawyer, from Navsari, a city with a sizeable Parsi population. In Suit No. 6, he explained to the court how no-fault divorce worked for Parsis in the princely state. Mutual releases were obtainable in a single day, and were common. Between 1885 and 1910, there had been ninety-three Parsi cases recorded by the Navsari Registrar's Office.Footnote 96 In earlier periods, the couple had required the consent of the Zoroastrian high priest and community, but by the early twentieth century, this condition had faded away.Footnote 97 For reasons unknown to Patel, no-fault divorce was available only to Parsis and to lower caste Hindus in Baroda.Footnote 98 Bombay was a place of less legal maneuverability, explaining why the Bombay couple in Suit No. 6 came to Patel for a mutual release despite its questionable status in British India.Footnote 99
Patel's testimony aligns with evidence in other matrimonial court suits. An overnight or even a day trip to the ancestral hometown was a common move, albeit of dubious legal status, among Bombay couples seeking to end their marriages as quickly and quietly as possible. In an 1894 case, a quarrel between a Bombay couple concluded with a reference to the Baroda option. The husband told the court, “She told me not to speak to her and she would give me a release.”Footnote 100 In a 1901 case, a Bombay man who had left his wife to live with his Parsi mistress agreed to clean up his marital situation by ending his marriage. The acquaintance who convinced him “then got him released,” presumably in Baroda, making arrangements without the husband even being present. “He agreed to accompany me but he did not come,” the acquaintance told the court. The PCMC delegates then awarded the wife a divorce that was legally valid in Bombay Presidency.Footnote 101 In a case filed in 1902, an unconsummated marriage that took place in Bombay between two young Bombay residents (she was eleven) was alleged to have been dissolved through a mutual release obtained in Navsari. The husband, who had spent many years studying in London following his marriage, told the court, “While in London I received communication from her relatives in relation to mutual releases. I was given to understand that a release according to [Gaekwad] law would be good. A document was sent to me in London purporting to be a release. It was drawn up by a Navsari pleader. I executed it and returned it to Bombay.” Years later, once back in India, he learned that his wife had remarried. He was also advised that the Baroda release was not valid in British India, which led him to file for divorce in the Bombay Parsi Chief Matrimonial Court.Footnote 102
It is hard to know what to make of the Baroda strategy, invalid yet repeated as it was. Couples who thought that an easy divorce in a foreign jurisdiction would be upheld in Bombay were perhaps victims of wishful thinking with regard to comity, the principle of legal etiquette by which the courts of one jurisdiction accept legal acts deemed valid in another. Comity found its limit when the foreign jurisdiction's recognition was “repugnant to [the] policy or prejudicial to [the] interests” of the home jurisdiction.Footnote 103 The rules of domicile, furthermore, defined the controlling jurisdiction as that in which the couple lived permanently and to which they intended to return.Footnote 104 A weekend visit to Baroda would not have fooled any colonial court, particularly on a subject as morally charged as marriage, and between territories as tightly interdigitated as British India and Baroda. It is hard to imagine any lawyer advising a Parsi couple to seek succor in the princely state. What is more likely is that these Parsis did not seek legal advice at all. Some may not have been able to afford to. The husband in the case in which Patel testified was a cook.Footnote 105 Another husband was a low-paid postal clerk.Footnote 106 But there were informal ways of getting free advice from respected members of the Parsi community who happened to be lawyers.Footnote 107 Maybe a Baroda release carried social weight in the Parsi community—enough weight to outweigh its dubious official status in British India. Perhaps a mutual release would satisfy one's family and friends, and perhaps that was enough. There is also the possibility that the Baroda release carried symbolic value. But had Bombay Parsis been going to Baroda in protest to make a point, one would surely find some expression of their disapproval of the fault-based regime back home. Not only was no such protest evident but it is also unlikely that Parsis would have imbued a legally invalid maneuver with social value.Footnote 108 The Parsi community endorsed and employed the conclusions of colonial law to a striking degree, reflecting an unusual identification with the colonial legal system.Footnote 109 In all likelihood, the Baroda strategy reflected a certain degree of willful blindness coupled with an optimistic willingness to bet that neither party would want to remarry (in British Indian law) in the future. This genre of forum shopping was the clearest failure of the three strategies examined here. The next case study was the most successful.
Polygamy: British India versus Persia
There were in fact two groups of Zoroastrians of Persian ancestry in colonial India: the Parsis and the Iranis. The Parsis arrived in India over many centuries, the first as early as the eighth century.Footnote 110 Under colonial rule, the Parsis started as intermediary traders, connecting British and Indian merchants. Parsis oversaw the shipping of opium to China until about 1865. These profits were then redirected into industrial enterprise and high finance.Footnote 111 Parsi entrepreneur J. N. Tata was hailed as the grandfather of Indian industrialization.Footnote 112 The Tata corporate group still dominates Indian business and manufacturing today.Footnote 113
The Iranis migrated from Persia to India much later—between the eighteenth and the twentieth centuries, after over a millennium of progressive impoverishment and discrimination by Muslim rulers and a Muslim-majority society.Footnote 114 One might expect Iranis to have occupied a position of strength given that they were “closer” to Persia, the motherland, and thus had a greater claim to racial “authenticity” or purity.Footnote 115 On the contrary, though, the Iranis were characterized as the poor, unsophisticated cousins of the Parsis—newcomers who were not quite as stylish, moneyed, or fluent in the ways of British India as their coreligionists.Footnote 116 Iranis went into the hotel business and the running of teahouses, which were famous for their mix of Zoroastrian meat patties, British baked sweets, and jovial banter between regulars.Footnote 117
The standard narrative of Irani history in the colonial period is one of an optimistic and unidirectional population flow.Footnote 118 Iranis migrated from Persia, where Zoroastrians were at the mercy of oppressive Muslim rulers and their discriminatory policies, to India, where they could join in the flourishing success of Zoroastrians under colonial rule.Footnote 119 The records of the Parsi Chief Matrimonial Court (which heard Irani cases equally) reflect a more circular pathway from Persia to India, and from India back to Persia, whether for frequent visits or for more permanent relocations. Jurisdictional jostling was one good reason to move back to Persia, after making the reverse move from Persia to India a generation or two earlier. This was particularly so if one wanted to take a second wife.
In Suit No. 6 of 1919, an Irani woman living in Bombay Presidency came to the Parsi Chief Matrimonial Court requesting that her marriage be dissolved on the basis of her husband's bigamy.Footnote 120 She was living in Bombay city, but her husband was living in Yazd, the largest Zoroastrian center in east-central Persia. His family had migrated from Yazd to India at least one generation earlier.Footnote 121 In British India, Parsi polygamy had been prohibited at the behest of the Parsi community in 1865.Footnote 122 In Persia, though, it was still legal for Zoroastrians where there had been no issue from the first marriage.Footnote 123 The Persian rule probably reflected both the absence of a need to mollify European rulers who considered polygamy barbaric, and the fact that polygamy was legal for the majority Muslim population. The Irani wife in India had borne two children—both stillborn.Footnote 124 In Persia, her husband had taken a second wife, and two of three children from that marriage were alive.Footnote 125 Although the husband's second marriage was perfectly legal under the Zoroastrian law of Persia, he had kept his first marriage a secret in Persia because it would have made his second one less socially acceptable.Footnote 126
It was only when other Iranis from India were visiting Persia that the husband's real situation was revealed. The discovery was another reminder of the transnational circulation of informal social information in a trade diaspora like the Zoroastrian one.Footnote 127 Persia, unlike British India, had no system of registered certification of marriage.Footnote 128 Islamic law's strong presumption in favor of marriage when a couple cohabited may have explained this apparent evidentiary laxity.Footnote 129 Equally relevant was the fashionability of registration systems across the British Empire in the latter half of the nineteenth century. The registration craze cloaked everything from private landholdings to marriages, births, and deaths in a new layer of imperial authority.Footnote 130 Because he could avoid the new insistence upon publicly ascertainable marital status, the Irani husband's plan worked. His actions violated the criminal law of British India, but while he remained in Persia, there was nothing the Bombay court could do but grant his first wife's request to dissolve the original marriage.Footnote 131 She had requested many times that her husband bring her to Persia with him.Footnote 132 But his alternative plan—to replace her with another woman—succeeded because he understood how to manipulate discrepancies in legal regimes.
The Irani case contrasts with my other two case studies in several ways. While Mrs. Wadia's forum shopping was “offensive”—she traveled to and filed suit in her ideal jurisdiction—the Irani husband engaged in “defensive” forum shopping, pursuing a strategy of avoidance perfected by international fraudsters and con men. Like the Baroda-bound couples and unlike Mrs. Wadia, he probably did not pay for legal advice. His wife told the court that he ran a small tea shop and was barely functionally literate.Footnote 133 He was probably of limited means. As noted above, though, getting legal advice for free was always a possibility in a lawyerly community like the Zoroastrian one.Footnote 134 Regardless, the Irani's strategy was the only one of the three that worked. Like the Bombay visitors to Baroda, he risked criminal proceedings for bigamy. But unlike them, he made his move permanent. Mrs. Wadia lost because she was a mere tourist in Bombay, while the Baroda visitors lost because they were not willing to move to Baroda. Together, the three case studies suggest that one's chance of success in forum shopping may have had more to do with the permanence of the relocation than with formal access to professional legal services.
Conclusions
These three cases reveal layers of telltale legal sediment. Wadia v. Wadia relates the story of a remnant of ecclesiastical law, the restitution of conjugal rights, that had been retired from service in its jurisdiction of origin while unexpectedly lodging itself in the law of a colony halfway around the world.Footnote 135 The Baroda no-fault divorce case underscores the ironic presence of what in the early twentieth century could be considered a “futuristic” legal device, divorce by mutual consent, in an independent princely state. Rather than being a deliberate effort at modernization, though, the availability of no-fault divorce to Parsis in Baroda was a long-standing tradition, as it was in a handful of other South Asian societies that came under British rule.Footnote 136 The Irani case study recounts the expunging of polygamy from the law of a colonized community that was influenced by Anglicized conceptions of civilization and barbarity. In the uncolonized state of Persia next door, the ruling regime was Muslim, not European and Christian, and Zoroastrian men were permitted to take a second wife, in line with general entitlements among Persia's Muslim majority.
Together, these three episodes create a picture of Baroda as the Las Vegas of western India: a place of expanded options (including polygamy) at the point of entry, and of easy dissolution (by consent) on the way out. For Bombay Parsis, Baroda was the next-door divorce haven that Nevada would have been for Californians around the same time.Footnote 137 British India was stricter and more staid than its princely neighbor. Freedom of contract may have been valued by British courts trying to fast-track South Asians “from status to contract,” but this laissez-faire approach to the marketplace did not extend to the family.Footnote 138 Only one flavor of marriage—monogamy—was on offer for Parsis in British India, and it took time, expense, and the risk of publicity and social humiliation to terminate a marriage.Footnote 139 People of all religions who abandoned their spouses unlawfully in British territory could face imprisonment. Persia lay beyond the reach of most litigants in colonial South Asia, but not of the Zoroastrians in India, for whom it was the ancestral motherland, and the site of ready-made networks of coreligionists and family. For Iranis in India at the turn of the twentieth century, immigration to India may have occurred only one or two generations back, such that returning to Persia was feasible both socially and linguistically. Taking advantage of a legal regime in which polygamy remained unlinked to barbarism thus became a legal option.
Cherry-picking from the Eurasian marital patchwork was a technique attempted by those with money and those without, through interactions with lawyers or with none at all, between metropole and colony, and between the empire and its neighbors. However, these case studies suggest that forum-shopping attempts often failed, and that success did not depend upon financial resources. Having money did not ensure victory for Eleanora Wadia. Like the working-class Bombay couple, Mrs. Wadia's jurisdictional strategy failed because she was only willing to relocate temporarily for the sake of her jurisdictional claim.Footnote 140 The Irani husband, by contrast, violated not just civil but also criminal law in British India, and yet he succeeded (at no expense) because he made his move permanent.
Colonial litigants may have tried to strategize and exercise agency at the microscopic level of the individual case. But at the macroscopic level of a court's full case load, colonial judges were not easily fooled by opportunistic attempts to shift between territorial jurisdictions. Why then did the pattern continue? By offering colonial subjects the chance of success through forum shopping, the colonial legal system created small spaces for the exercise of agency. But in doing so, it reinforced its hold on colonized social life by strengthening its legitimacy, eliciting the participation of players, and blurring their view of the system's larger biases. Colonial litigants may have felt that they were acting strategically in making forum shopping arguments. In fact, it was the mechanism of the legal lottery—the promise that one might win this time, even if one probably would not—that had the greatest strategic value, and for the colonial state.
