Postcolonial perspectives on India's past have tended to focus on representations, which served the purpose of colonial domination. The view, for instance, that Indian society is fundamentally constituted by caste or religion legitimated the supposedly secular or neutral system of governance introduced by the British. Building upon Edward Said's Orientalism (1978), scholars have suggested that some of our most widely held assumptions about Indian society were more rooted in an imperial worldview than in real social experiences of Indians.Footnote ¹ The attempt of colonial administrators to understand and govern India through the study of ancient texts formed the basis of an Indian variety of Orientalism. How colonial courts deployed this text-based knowledge in relation to the actual practices of religious “communities” is the central focus of this essay.

The British sought whenever possible to govern Indians according to their local institutions and laws. This policy traces back to Warren Hastings's plan of 1772, which established a hierarchy of courts charged with the task of implementing Hindu or Islamic personal law.Footnote ² To carry out this task, the East India Company employed a range of indigenous personnel—for example, pandits, maulvis, and muftis—who were trained to interpret and administer the Hindu shastras or the Muslim shari'a. Eventually, the judiciary also attempted to create a body of “Christian” personal law, modeled after English laws of marriage and inheritance.Footnote ³

It was not long, however, before the British discovered that ancient texts and abstract religious categories could not account for the radically diverse and overlapping customs of India's cultural landscape. Originally, it was the aim of colonial judges to allow custom to prevail should there ever be a conflict between a community's customs and its codified personal law. Gradually, however, the quest for legal uniformity inclined courts to place people more firmly under one religion-based law or another. Respect for the plurality of customs gave way to the pursuit of coherent legal communities.Footnote ⁴ Hence, the judiciary invented bounded religious communities where they did not exist. What recourse existed for Indians whose legal identities had been essentially handed to them by the colonial administration? Could they succeed at convincing courts that their personal law did not apply to them?

I will explore this question by examining the practice of “proving one's customs” in order to secure one's rights under the law. This practice occurred among certain Muslim, Christian, or Sikh communities wishing either to adopt a different personal law (such as Hindu law) or to observe local customs at variance with their personal law. Several court cases dealing with inheritance or caste illustrate a tendency to seek liberation from the grip of religion-based personal law on the basis of “immemorial customs.”

Civil cases relating to caste, marriage, inheritance, or adoption staged highly gendered disputes. Female litigants found in colonial courts a venue for pressing their rights, often by proving their customs. Male litigants sometimes claimed to practice Hindu law (which tended to favor men in matters of inheritance), even if they had converted to another religion. Although these litigants were not as opportunistic as the “forum shoppers” of Sharafi's contribution to this volume, they clearly professed that law or custom, which optimized their access to family wealth. Moreover, their cases consistently challenged the orthopraxy presumed in codified personal laws. Most intriguing are instances where courts solicited ethnographic evidence from litigants in order to determine which law to apply. They often admitted such evidence when the boundaries of Hindu identity were contested. This occurred in cases dealing with Catholics wishing to observe caste distinctions (something unique to “Hinduism”), Muslims from India's Khoja or Cutchi Memon communities seeking recognition for local customs, or Jains wishing to observe either custom or Hindu law.

In Castes of Mind (2001), Nicolas Dirks documents the rising preoccupation with ethnography among colonial administrators during the latter half of the nineteenth century. Although administrators were initially concerned with data relating to land tenure and revenue, their concerns became oriented to questions about caste and ethnicity in the years following the 1857 Rebellion. The desire to secure the Raj from another rebellion led administrators to amass information not only about the customs of so-called martial races but also about the myriad of castes that constituted “Hindu society.”Footnote ⁵ This new ethnographic focus led to an explosion of gazetteers, district manuals, legal commentaries, and other published materials about the castes of India and their distinguishing features.

One might suppose that this surging interest in ethnography might coincide with judicial policies that were more receptive to proving customs in court. What actually happened, however, is quite the opposite. As the colonial state gained greater access to “empirical” data concerning Indian society, the courts became less willing to listen to what litigants had to say about their own customs.Footnote ⁶ State-sponsored data collection appears to have emboldened the colonial state to dispense with Indian sources of knowledge. These included pandits and maulvis, whose role in interpreting Hindu and Muslim law for the courts ended in 1864. They also included litigants in civil cases, who by the end of the nineteenth century were much less effective in gaining legal recognition for their cultural practices.

The dialogue of the early years of the Raj thus became more of a soliloquy. Aspects of this transition are noted in other streams of Indian historiography, especially those featuring early colonial “accommodations” to local culture and reliance upon local sources and networks of information.Footnote ⁷ Within the realm of law, however, the transition from dialogue to soliloquy reveals a unique set of dynamics.

For a season, litigants in civil cases were bona fide agents in telling judges what they did not know. Their pleaders pooled together family members, caste leaders, and “experts,” who documented practices for which they sought legal recognition. In so doing, litigants thwarted the colonial judiciary's technology of identification.Footnote ⁸ Unlike other agents of colonialism's “information order” and unlike the scholar administrators who amassed data for gazetteers, district manuals, and so on, litigants in proof-of-custom cases produced knowledge to advance their own interests, not those of the colonial state. Their voices were gradually silenced as the state gained access to information from “official” sources. From the 1860s on, we can observe a declining number of instances where litigants actually succeeded at altering their personal law by proving custom. The colonial state increasingly assigned to litigants their legal identities, with little response from below.

Modern Hindu Law: Breaks and Continuities

To set the stage for a discussion of proof-of-custom cases, I first present a vibrant historiographical debate concerning the nature and parameters of Hindu law. What connection exists between the ancient Hindu law, implemented by Indian rajas, and the modern Hindu law, codified by the British and enforced by colonial courts? Are they essentially the same law, molded by time and circumstance, or did the British introduce something fundamentally new? If the latter, how exactly has the modern law departed from or displaced the ancient? This debate has acquired new vitality in recent years with the publication of Werner Menski's Hindu Law. Footnote ⁹ This debate illustrates how legal constructions of Hindu identity, like Indian Muslim or Christian identity, are tied to beliefs about embodied practices of Indian families—their continuities with an ancient past or their disruption or displacement by colonial law. While this section summarizes key aspects of this debate, the following section discusses how proof-of-custom cases and their eventual demise speak to both continuities and disruptions of colonial law.

Menski argues that the British version of Hindu law was a distortion—a “monstrous hybridity” that departed from the Hindu law practiced by millions of Indians through the ages.Footnote ¹⁰ The real Hindu law is not to be found in state law, but in the embodied, self-regulating traditions and practices of Hindu families (referred to as the rta dharma complex).Footnote ¹¹ On the other side of this debate are those who argue that the Anglo-Hindu law implemented by the British has either displaced or significantly altered the theory and practice of Hindu law. As a result, few vestiges of traditional Hindu law are to be found in India after the advent of British rule. Such claims have been made most explicitly in the work of Marc Galanter.Footnote ¹² Before that, D. M. Derrett described extensively how the British made use of ancient texts to enforce personal laws of religious communities.Footnote ¹³ More recently, Donald Davis has described the fundamentally new ways in which the colonial judiciary interpreted and applied shastric precepts.

Are the two positions as far removed from each other as they appear? At issue, it seems, is not whether British judges perfectly grasped Hindu texts or Hinduism—they did not—but how well their system of law engaged the actual social experiences and familial practices of Indian subjects. As with English common law, the British in India applied law to facts. A recurring question is whether in doing so, they eradicated local customs or worked in dialogue with them. Menski seems to believe that Hindu law somehow resides in the facts, not in the state law being applied to them. He attacks the so-called modernists for denying the existence of the living tradition of Hindu law, still thriving beneath the machinery of the modern judiciary.

Some scholars stress the continuity of the modern Hindu law with ancient practice. For Menski, the essence of Hindu law rests in a religiocultural matrix that is at once “invisible,” endlessly pluralistic, and defying essentialism of any kind.Footnote ¹⁴Rta refers to the “macrocosmic universal order system of the pre-classical or Vedic age.” Over time, this cosmic order was transformed into “the idealized system of self-controlled order,” or dharma, encompassing the duties of every Hindu individual.Footnote ¹⁵ Within this rta dharma complex, there existed no contradiction between the multiplicity of custom and dharmic obligation. What was envisioned was not a rigid or static law but a “situation-specific and context-sensitive method of expecting the best possible results in what may often have been quite inauspicious circumstances.”Footnote ¹⁶ In fact, the chief error of British administrators, for Menski, was to ever imagine that this fluid, dynamic, and multifarious Hindu law could be captured by the rigid and positivist conception they deployed in court.

A couple of points are noteworthy about Menski's understanding of Hindu law. The first is something that Donald Davis observes in his extremely detailed and trenchant critique of Menski's book: Menski fails to prove the existence of the rta dharma complex empirically with specific references to real institutions and practices.Footnote ¹⁷ In fact, Menski seems more intent on attacking his opponents than offering readers a clear vision of the workings of Hindu law as he conceives it. Secondly, so intent is he on dichotomizing his view of Hindu law with that of the British that he denies any intersection between the two. Did aspects of the rta dharma complex ever show up in court? There are few discussions in his book of actual cases where cultural practices of Indians were subject to judicial scrutiny.

Locating proof-of-custom cases within this debate concerning Hindu law yields interesting though disparate results. In the face of colonial law, they reveal tendencies of litigants to defy the state law by positing either well-established, “immemorial” customs or fluid social relationships. In either case, local customs may or may not be “Hindu.” Even if we were to grant the existence of Menski's “living tradition” of law, the question of whether it accommodates the customs of established “non-Hindu” communities of India or those of Hindu converts to other traditions remains a vexing one. The answer may be found in a number of factors: whether one assumes that all customs outside of Islam or Christianity are “Hindu,” or whether “Hindu-ness” needs to be established case by case by interpreting textual law in relation to customs. The extent to which the colonial judiciary reshaped or redefined this hermeneutic process is an equally disputed issue.

Chris Fuller argues that the British use of classical Hindu law texts (dharmasastra) was quite consistent with traditional approaches to Hindu law. He illustrates this hermeneutic continuity with references to Supreme Court decisions concerning religious freedom, temple entry, and cow slaughter. Fuller argues that the modern application of Hindu law in these cases was consistent with ancient practice, even when the Supreme Court adopted progressive positions that departed from earlier interpretations.Footnote ¹⁸

As much as Fuller represents a voice of continuity between the ancient and the modern, we must recognize that his view is quite different from Menski's. For Menski, Hindu law continued in spite of the colonial judiciary; for Fuller, it continued in and through the hermeneutic methods employed by the judiciary. Until 1864, judges consulted Indian pandits to advise them in the interpretation of the Shastras. After 1864, British judges made more direct use of codified personal laws without the pandits. This change does not seem to alter Fuller's case for continuity. Donald Davis, however, argues that the British used sacred texts in fundamentally new ways. In ancient times, “practical law, or positive law, did not depend upon appeals to written authority, whether sacred or not” (6). Hindu texts were used to “educate Hindus in orthodox jurisprudence,” which in turn was applied within many legal contexts.Footnote ¹⁹ But the relationship between text and application was not nearly as direct or immediate as in colonial usage.

From what has thus far been discussed, we can see that this is a strangely skewed debate where two sides seem to talk past each other. Menski argues that Anglo-Hindu law was both ill conceived and ineffective in displacing the true Hindu law. Fuller describes a degree of parity between the ancient and the modern, with no major disruptions. On the other end, Galanter and Davis note the hermeneutic turns and misunderstandings that riddled colonial law and argue that it succeeded at displacing indigenous systems of law (Galanter calls this process “expropriation”).Footnote ²⁰ Hence, it appears that the debate is more about the extent of colonial judiciary's impact and intrusiveness than the theological or ethnographic correctness of British notions of Indian law and custom.

Proof-of-custom cases make two interventions in this debate. First, they reveal how Indian litigants, at least for a season, were not passive recipients of the legal identities imposed upon them by the colonial judiciary. They interrogated those identities as they produced evidence about alternative cultural practices. They often crafted cases for stable and continuous practices that were not recognized by the courts. In this respect, their cases for continuity resisted the categories of official Orientalism. Second, proof-of- custom cases help us to periodize discussions about colonial intrusiveness. They allow us to examine judicial policies as a progression instead of a uniform or unchanging exercise of colonial authority. As with other venues of colonial power, the courts moved from a dialogical approach that accommodated Indian agency to a more top-down enforcement of personal laws.

Proving Hinduness and Non-Hinduness

By revealing a gap between textual knowledge and experience, proof-of-custom cases help gauge the disruptiveness of the colonial experience. Was the judiciary's relationship to custom dialogic, hegemonic, or something in between? That is to say, did the judiciary allow its approach to civil cases to be steered by new cultural knowledge that litigants produced in court? Or did its text-based knowledge of Indian society militate against, and ultimately mold, the embodied civil practices of Indian families?

In cases dealing with inheritance, it was common, for a time, for courts to solicit evidence in order to determine the applicable law, but proving one's customs, especially when they varied from state law, was a highly contested endeavor. With plaintiffs and defendants producing competing cases for one set of customs or another, judges had to play the role of legal ethnographers to arrive at sound decisions.

Among Hindus, there were many ways in which property was divided after the death of the head of the household. These tend to be variants of two major textual traditions: one originated in Bengal and was based on Jimutavahana's commentary, Dayabhaga; the other tradition came from Benares and was based on Vijnaneshvara's Mitakshara.Footnote ²¹ What is assumed in both is that male members of Hindu families are by nature “undivided” with respect to property: “All legitimate sons, living in a state of union with their father at the time of his death, succeed equally to his property, real or personal, ancestral and acquired.”Footnote ²² The wife of the deceased is entitled to maintenance, but not to an equal share in his property. A major difference between the two schools relates to how property rights are actually secured or released. Whereas the Benares school (Mitakshara) teaches that undivided males acquire their property rights at birth, the Bengal school (Dayabhaga) teaches that the owner must be deceased or disabled in order for other males to claim ownership.Footnote ²³

Several cases from the late nineteenth century illustrate the dialogical interplay between the textual law and the lived experiences of Indians. They also pose the question of what, through the eyes of the law, is a Hindu. Is the category a religious or cultural one? If being Hindu is cultural, can Christians, Muslims, Jains, and Sikhs abide by the Hindu law of inheritance?Footnote ²⁴ The first two cases illustrate attempts by Christians to remain “legally Hindu.” Other cases illustrate attempts by Muslims and Jains to prove customs at variance with legal norms conventionally applied to them.

The question of whether a Christian could be civilly Hindu has a complex history stemming from the highly pluralistic character of British India's Christian population. While some Christians belonged to older established, “national” communities such as Syrians, Armenians, Portuguese, French, or English, others were products of individual or group conversions under the auspices of both Catholic and Protestant missions. Applying any single body of personal law to such a variety of traditions would be no simple task for colonial courts, but this was precisely what they hoped to accomplish by the latter half of the nineteenth century.

The oft-cited Privy Council decision of Abraham v. Abraham (1863) raised important questions about the relationship of “Native Christians” to Hindu law. This case represents a transitional moment with respect to ethnography in the service of litigation. After it was decided, we see few cases where courts encouraged the scrutiny of custom or where litigants succeeded at proving customs at variance with personal law. Considering the massive amount of ethnographic data that was examined in Abraham v. Abraham, the transition to a more bureaucratic approach makes sense. Soliciting evidence of custom each time a family had a dispute over marriage or inheritance would have subjected the courts to enormous strain. The nine-year legal battle of Abraham v. Abraham illustrates precisely what the courts wished to avoid from the 1860s on.

The case involves a woman of Anglo-Portuguese descent, Charlotte Fox, who was born in Goa and raised in Bangalore as an Anglican. In 1820, Charlotte married Matthew Abraham, a Tamil, who hailed from a family of Roman Catholic paraiyar converts (one among many “untouchable” groups) originally from Madras. Matthew produced and sold liquor to colonial troops stationed at the military cantonment in Bellary. He had no ancestral property, but he had acquired through his business several houses and roughly 300,000 rupees of liquid assets.

After Matthew died without a will in 1842, a dispute arose over who was entitled to his property—Charlotte and her two sons (who were co-plaintiffs), under English law, or Francis, Matthew's younger brother, under Hindu law. In order to decide which law of inheritance to apply, the courts had to examine the customs of the Abraham family and families “similarly situated.” Were the Abrahams predominantly English or Hindu in their lifestyles and ways of relating to each other? Counsel for Charlotte and Francis called hundreds of witnesses to address this question.Footnote ²⁵

Charlotte's case tried to establish the radical discontinuity between converts and “native society.” She called witnesses who would buttress her case that the family was predominantly if not exclusively English in its manners and customs. These witnesses mostly consisted of Europeans, Anglo-Indians (who identify themselves exclusively with English culture), and Indian Protestants who had “renounced caste.” Francis's case, on the other hand, tried to establish cultural continuity between converts and their local communities. He sought to prove that he and his brother, in spite of having converted to Protestantism and having married Anglo-Indian women, continued to function like undivided brothers of a Hindu family. His witnesses consisted primarily of low-caste Roman Catholics who were products of group conversions. These converts testified overwhelmingly that they had retained their original caste customs and continued to divide property like undivided Hindu families.

In Charlotte's favor, the Judicial Committee of the Privy Council ruled that Hindu law did not apply to the family, largely because of the overwhelming evidence on the ground that the Abraham family followed English customs. But only two years later, the Indian Succession Act of 1865 was passed, which essentially applied the English law of linear intestate succession to all Christian families, irrespective of their practices. The more top-down application of the Succession Act, positing a more monolithic Christian community, replaced the Abraham decision's recognition of Christian diversity in British India.

What we find in case law relating to Christians is the tendency to erase or de-recognize local caste practices among Christians. This tendency became particularly pronounced after the passing of the Succession Act of 1865 and the Indian Christian Marriage Act of 1872.Footnote ²⁶ The judicial erasure of caste among Christians was based on the abstract notion that Christianity did not teach caste, and that legal claims based on either caste privilege or disadvantage were not valid. English law therefore was extended to many Christians of British India.Footnote ²⁷

Besides those cases involving the rights of women, there were many proof-of-custom cases involving persons from non-Hindu religions seeking legal recognition for their caste observances. In Michael Pillai v. Barthe (1917) a group of Roman Catholic Vellalas (which included both Pillais and Mudalis) sued the bishop at Trichinopoly, the parish priest, and several Nadar Catholics for the right to enforce caste segregation within the Holy Family Church at Vedakkankulam. The Vellala plaintiffs wanted the court to re-erect walls that had separated caste Catholics from the so-called polluting castes. They alleged that such segregation was written into a series of agreements between the high- and low-caste parties with the approval of the bishop. The first agreement was in 1854, when the building plans were being drafted, the other in 1877 when the construction was completed. The 1854 agreement supposedly envisioned two adjacent churches with a common chancel so that both churches could observe mass simultaneously. The southern nave would be reserved for Vellalas, the northern for Nadars. After the Nadars protested this arrangement, the second, compromised agreement was reached. In 1910, the dividing walls were demolished. The plaintiffs sought a declaration from the court identifying the first agreement as binding and designating the Vellalas as the sole owners of the church. They also sought court orders that would restrict the use of the altar, handling of sacred images, and performance of certain rituals and processions to the Vellalas.Footnote ²⁸

Two dimensions of the Vellala plaintiffs' arguments are noteworthy. First, in a manner similar to Francis Abraham (above), they appealed to the history and culture of indigenous Catholicism to uphold their observance of caste distinctions. They cited a bull issued by Pope Gregory XV in 1623, which allegedly recognized caste distinctions. They also invoked Robert de Nobili's missionary approach, which embraced the customs of Tamil Brahmins and sanctioned their caste prejudices. Last, they cited directions issued by the Holy See (no dates) charging missionaries to preserve the usages, customs, and manners of their converts “provided that they be not most evidently contrary to Religion.”Footnote ²⁹

The second dimension of their case was their appeal to customary right, namely, the right to be free from contact with so-called polluted castes. Through their eyes, contact with Nadars (they used their earlier, pejorative name “Shanars”) was defiling and required ceremonial cleansing. Such observances of custom, as Justice J. Napier observed, far preceded their conversion to Catholicism and remained unaffected by it. In fact, judges of the Madras High Court were astonished to observe that the Vellalas saw no contradiction between notions of pollution and Christianity.

The Madras High Court rejected the Vellalas’ claim for various reasons, the most important being that notions of pollution were inconsistent with the Catholic religion. In expressing this view, judges dismissed the indigenous Catholicism cited by the plaintiffs as irrelevant to the nature and extent of the discrimination being practiced at Holy Family Church. Such overt discrimination, in their view, had never been sanctioned by papal decree. On the basis of various shreds of evidence, Judge Napier concluded that Vellalas had pressured the bishop in 1877 into making a temporary concession, which permitted separate spaces for higher and lower castes.

When courts recognized a particular group as a “caste,” they endowed that group with considerable control over their internal affairs. They could acquire rights to property or easements and all customary rights that went along with such ownership. In Madras, some members of upper castes used their landholding rights as mirasis to exploit the labor of untouchable groups such as paraiyars. Footnote ³⁰ They invoked their rights as a caste to manage their properties according to ancient and hereditary conventions. In Michael Pillai v. Barthe, the Vellalas sought such rights in connection to their church. The Madras High Court, however, could not extend the recognition accorded to Hindu castes to the Vellalas on account of their conversion to Catholicism. This, in the High Court's view, bound the Vellalas to the dictates of canon law and the authority of the bishops.Footnote ³¹

Muslims of British India also are a highly pluralistic population. As with Christians, the vast majority were not immigrants to the subcontinent but converts from a wide range of caste, linguistic, and regional backgrounds.Footnote ³² Toward the turn of the twentieth century, the judiciary, however, came to employ a more essentialist approach to personal law in India, based largely upon normative aspects of religion: Whereas Christianity did not provide a personal law (and hence, warranted some legal flexibility), the courts reasoned, Islam did provide one in the shari'a. Still, significant numbers of Muslims in colonial India did not practice the shari'a, preferring instead to observe some variant of local tradition in matters of succession and inheritance. These groups included Khojas, Cutchi Memons, Sunni Bohras of Gujarat, Mappilas of Kerala, and others.

Colonial courts adopted a unique approach to customary observances of Muslims within both the Punjab and the Bombay Presidency. This exceptionalism may be traced in part to an Orientalist policy promoted by Mountstuart Elphinstone. As governor of Bombay from 1819 to 1827, Elphinstone resisted the blanket application of textual Hindu law (produced in Benares or Bengal) in Bombay, advocating instead judicial recognition of local, customary law.Footnote ³³ His perspectives resembled those of members of the “Madras School of Orientalism,” who contended that South Indian families were culturally distinct and should therefore not fall under notions of Hindu law imported from Bengal or Benares.Footnote ³⁴ His Bombay Code of 1827 explicitly prohibited courts from interfering with the internal management of castes.Footnote ³⁵ He did eventually advocate the use of a codified law but believed that this should be based on customary practices, not ancient texts.Footnote ³⁶

Elphinstone believed that Muslims, who had their own law, could follow the same body of Islamic law as developed in Bengal. Over time, however, the judiciary's approach to Muslim communities in Bombay recognized the role of custom among communities such as Khojas and Cutchi Memons in ways that resembled the judicial recognition of immemorial caste customs. This approach to Muslims, as we shall see, was riddled with contradictions. Even though the vast case law concerning these groups exceeds what can be addressed in this essay, a few cases aptly illustrate the progression of policy concerning them.

As with Christians, we can observe in the judicial treatment of Indian Muslims a desire to bring them under the monolithic structure that the shari'a presumably affords. Up until 1937, when the Shariat Act was passed, Khoja Muhammadans and Cutchi Memons were believed to observe the Hindu law of inheritance. Afterward, they were brought to a much greater degree under the authority of Muslim law.Footnote ³⁷ What is important to note is that their subjection to Hindu law, while appearing to honor the preconversion heritage of these groups, was predicated on their being perceived as “castes.” This too subjected them to abstracted notions of their corporate identities. Because of the judicial presumption that Khojas followed the Hindu law of inheritance, the goal for Khoja Muslim litigants—who often were women—was to prove that they adhered to customs at variance with Hindu (not Muslim) law. According to one justice of the Bombay High Court, Frank Beaman, Khojas retained aspects of Hindu law in part to exclude women from receiving “any share in a paternal estate.”Footnote ³⁸

Khojas were an established Hindu trading community in Western India before they came under the influence of a Persian (Ishmaeli) variety of Islam during the fourteenth and fifteenth century.Footnote ³⁹ As observers of a somewhat syncretistic form of Islam, Khojas continued to observe traditional or “Hindu” inheritance practices of joint families. The decision to apply the Hindu law of inheritance to Khojas is often traced to the 1847 decision of Hirbae v. Sonabae. Footnote ⁴⁰ In this case, a daughter, Hirbae, sued her deceased father's widow, Sonabae, and her aunt, Rahimatbae, for a share in her father's property (he was an affluent Khoja Muslim). This she contended was her right under Muslim law. When her father, an affluent Khoja, had died intestate, his brother acquired his property. When his brother died in 1843, his will appointed his sister-in-law, Sonabae, and his wife, Rahimatbae, as his executors. The defendants (Sonabae and Rahimatbae) contended that Khojas follow distinct inheritance practices whereby daughters are not entitled to property of their deceased fathers, but only to maintenance in the estate if they remain unmarried. Here, the defendants made a case for something other than Muslim law (which would have benefited the daughter). The court heard oral testimonies from “a great many witnesses, comprising the chief and most intelligent members of the Khoja caste.” The witnesses, according to the court, were nearly unanimous in recognizing the custom of excluding women from family inheritance. From this, Justice Erskine Perry concluded that

The decision of Hirbae v. Sonabae set a precedent that would be followed by many other cases, whereby Bombay courts deemed Khojas to observe the Hindu law of inheritance. Included in these are cases in which the property inherited by widows from their deceased husbands was called into question. The courts ruled that upon the death of the widows, such property reverted to the husband's, not the widow's, kin.

Two cases illustrate the complex negotiations of cultural difference that could occur within Muslim families around the issue of inheritance. In each of them, the evidence required to prove custom was deemed insufficient. The first, Rahimatbai v. Hirbai (1875), was decided by the Bombay High Court and involved a dispute over Khoja Muhammadan intestate inheritance practices. The plaintiff in the Rahimatbai case was the widow of Rahimbhai Allubhai, a Khoja Muhammadan who died without a will and without issue. He left his widow, Hirbai, his mother, Girbai, and sister, Rahimatbai. After Rahimbhai Allubhai's death, his mother acquired letters of administration that allowed her to lay claim to her son's property and pass it on to her daughter, Rahimatbai. Hirbai, the wife, then challenged the rights of the mother to acquire her husband's property and alienate it to her daughter. She argued that under Hindu law, which governs Khojas, she is entitled to her husband's property (in the absence of any issue) over and against the claims of his mother or sister. At issue in the case was the claim of the mother, Gorbai, that the Khojas adhered to a unique custom whereby the mother of a deceased son had a superior right over his widow to the possession and management of his property.

In order to defend her claim, Gorbai provided various types of evidence in court. She called leading members of her caste to testify about the rights of a mother over the property of a deceased son. Several insights emerged from her witnesses. First, many confirmed the existence of such a custom that gave mothers such powers, but they added that the mother must make adequate provision for the maintenance of the widow and other women of the family. The witnesses disagreed, however, over what the mother's powers were relative to surviving men, such as brothers, nephews, cousins, and so on. Finally, all except two witnesses admitted that they had never heard of a mother actually “giving, selling or otherwise disposing of the property inherited by her son.”Footnote ⁴² The courts found the evidence provided by the two exceptional witnesses “very unsatisfactory”: “It would be contrary to all judicial principles, as to the evidence by which a custom or usage can be established, to hold that such general statements, not only unsupported by a single authentic instance illustrating the powers claimed for the mother, but accompanied by the admission that they never heard of such an exercise of power by a mother, can afford any satisfactory proof of the custom alleged.”Footnote ⁴³

In the Rahimatbai case, what we encounter is a woman belonging to a class of Muslims, already exempt from the Shariat and presumed to observe Hindu law, seeking to prove yet another customary observance regarding the rights of inheritance. For the Bombay High Court, this was too tall an order, even in light of instructions given by the court to extend to Khojas a less stringent proof of evidence. “The Khojas,” the court said, “are not as firmly bound in matters of succession and inheritance by the Hindu law as Muhammadans proper are by Muhammadan law, or Hindus by Hindu law, and hence it is that it would not be reasonable to require such stringent proof of a custom of inheritance amongst them differing from ordinary Hindu law, as from a Hindu.”Footnote ⁴⁴ Hence, the Khojas, like Christians, often occupy an ambiguous position in their differentiation from Hindu society and Hindu law.

Ten years later, the Bombay High Court reiterated the position taken in the Rahimatbai case in Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy and Rahimbhoy Alladinbhoy. In this lengthy decision, a father failed to prove the existence of a Khoja custom that would have allowed him to disinherit his eldest son. Under Hindu Mitakshara law, typically applied to Khojas, the son became a coparcener at birth in the property that came to his father from the deceased grandfather. One important issue in the case is whether the property is to be regarded as ancestral or acquired. The eldest son urged that it should be regarded as ancestral and that Hindu law should apply. The father insisted that it was acquired property and that Khojas historically have applied different rules concerning ancestral and acquired property. This, however, he failed to prove.

Typically, what the courts looked for in proof-of-custom cases are indications that the custom has existed for a considerable amount of time and was generally accepted by the majority of the community in question. The types of evidence used to prove longevity and pervasiveness of custom varied case by case. If the court deemed evidence provided by a plaintiff (seeking variance from personal law) to be sufficient, the burden then shifted on the defendant to refute it.Footnote ⁴⁵

Cutchi Memons are another anomalous group of Muslims who continued to follow the Hindu law of inheritance. In Abdul Cadur Ha'ji Mahomed v. C. A. Turner (1884), the Bombay High Court drew a parallel between the Cutchi Memons’ observance of Hindu law and those “Native Christians,” described in Abraham v. Abraham (1863), who continued to do so as well. In this particular case, however, neither Hindu nor Muslim law would have altered the judgment. A Muslim named Usman Vydina, who owned considerable property and a lucrative business, died in 1861 and willed his property in four equal shares: to his second and third sons (Abdal Vyed and Ebrahim), to his brother, Allana, and to the lawful son (if he should have one) of his eldest son, whom he disinherited.Footnote ⁴⁶

Twenty-three years after Usman's death, a son was born to his eldest son. That son, the plaintiff, eventually sued for possession of his share of the property willed to him. That property had already been divided by the other three before he was born. The court held that under either Hindu or Muslim law, the plaintiff's claim would not be valid because he did not exist at the time of Usman's death (Under Mitakshara law, this is when his right to the property would have vested). In spite of having made out a will that listed the son of his eldest son as an heir, Usman “had not made out a prima facie case in favor of the testator's power to accumulate income and tie up his estate in favor of persons unborn at the time of his death.”Footnote ⁴⁷ The court did not solicit proof of custom in the manner of the others, but determined that this was a rather straightforward question of law. As with Christians in Abraham v. Abraham, becoming Muslim did not entail, for Cutchi Memons, a change in property rights or interests. Such matters, the court held, had no intrinsic relationship to being either Christian or Muslim.Footnote ⁴⁸

In 1914, however, Justice Frank Beaman of the Bombay High Court attacked the policy of applying the full weight of Hindu inheritance law to Khojas and Cutchi Memons. He regarded the policy as entirely ill conceived and harmful to those communities. Regarding Khojas, Beaman's underlying premise was that they should observe Islamic law and be granted exceptions to this where they could prove customs to the contrary. Erskine Perry's judgment of 1847 (Hirbae v. Sonabae), however, was not aimed at placing Khojas comprehensively under Hindu law. The Hirbae case and others like it addressed specific instances of Khoja departures from Muslim law without necessarily placing them permanently under Hindu law. In addition to the issue of gender, Beaman introduced the issue of commercial prosperity. Even after their conversion to Islam, the Khojas, he argued, had for some time remained a relatively unsuccessful and backward community of merchants. In the absence of a dynamic commercial enterprise, adherence to some form of joint family inheritance was fitting. As Khojas advanced commercially, however, it became less and less appropriate to keep them encumbered by laws for Hindu undivided families.Footnote ⁴⁹

As we have already seen in Abraham and Rahimatbai, a recurring pattern in the case law involving personal law is the attempt of women to secure their rights by invoking a separate law. Two other cases illustrate the unmistakably gendered dimension of trying to escape the grip of one's personal law. In Bachebi v. Makhan Lal (1880), the Allahabad High Court ruled that Jains are to be governed by the Hindu law of inheritance, unless they can show proof that their local customs vary from Hindu law. The widow of the deceased Bindala Jain, Hira Lal, laid claim to her husband's property and alienated it to another person. The reversioners of Hira Lal's estate under Hindu law challenged her right to do so, arguing that Jains were governed by the Hindu Mitakshara law by which widows were entitled merely to maintenance in the family home. In court, the defendant widow was required to show proof of custom, and once again, the bar was so high that she failed to do so. She produced a combination of oral and documentary evidence (which the court did not describe in any detail), none of which proved that widows were granted such powers over their husband's property. The widow, however, claimed that Hindu law did not apply to her, but the Indian Succession Act (1865) did. Section 331 of the Succession Act initially exempted Hindus from its articles concerning intestate succession (not testamentary succession), and later came to exempt Buddhists, Jains, and Sikhs (deemed a part of Hinduism) as well.Footnote ⁵⁰ Hence, the Allahabad High Court ruled that Jains are in fact Hindus in the eyes of the law unless they can show otherwise and should be governed by the laws of undivided Hindu families.Footnote ⁵¹

These attempts by women to secure their rights by choosing an alternate personal law were riddled with difficulties, largely relating to questions of religious identity. Even to determine whether someone was Hindu, Christian, or Sikh, simple as it may seem, became a matter of painstaking interpretation. In Kamawati v. Digbijai (1921), a case decided by the Privy Council, a conflict erupted between the niece (plaintiff) and the brother (defendant) of the deceased Randhir Singh (who apparently had no spouse or children of his own).Footnote ⁵² After Randhir Singh died intestate, it was uncertain which law would govern the alienation of his considerable wealth. If the court determined the family was Hindu, it would apply Hindu Mitakshara law, which would favor the brother. If it determined the family to be Christian, the Indian Succession Act would favor the niece.

An important aspect of the case was a deed produced in court whereby the niece was alleged to have relinquished all of her rights relating to her share in the inheritance. Her share would have amounted to nearly twenty to thirty thousand rupees. On this point, the court ruled that Randhir Singh's brother had failed to fulfill a “duty of disclosure” in spelling out the full implications of the deed. Since neither the niece nor her husband had been properly informed, the deed was not valid.

The larger point taken up in the case was whether Randhir Singh was a Hindu or a Christian. The defendant, employing an argument derived from Abraham v. Abraham (which called upon courts to examine the objective manifestations to determine the applicable law), claimed that even though he was technically a Christian, he had indicated by his actions that he did not want to be governed by the Indian Succession Act. This suggestion, however, did not satisfy the court. What the court took seriously, however, was proof provided by the plaintiff that her husband was a Christian. This proof included certificates of baptism, marriage, and burial. It also included oral testimonies of two priests who proved “beyond a doubt that Kunwar Randhir Singh in his latter portion of life was a Christian and died as a Christian.”Footnote ⁵³ This case is not a contestation of personal law, as in other proof-of-custom cases, but it is primarily about proving to which religion Randhir Singh belonged. The niece on both counts (the invalid deed and the proof that her uncle was Christian) succeeded in winning the case.