Introduction
Between 1787 and 1792, the colonial courts in Banaras adjudicated over a dispute between a widow named Baidamu and her deceased husband Gurdayal's paternal cousin, Bhawani Singh. The latter claimed inheritance rights to Gurdayal's property, challenging the widow Baidamu's control over it. Hailing from the Khatri mercantile community, Baidamu and Bhawani Singh were also members of the local chapter of the Nanakpanth, a religious sect whose members were devotees of Nanak, the founder of the Sikh community.Footnote 1 When it first came to the colonial courts in 1787, court officials outsourced the case to an arbitrative assembly. However, in 1789 Baidamu moved it back to the courts, seeking an even better outcome than the one she had received from the arbitrative assembly. This second round of litigation produced various complications for court officials as disputants brought a variety of juridical authorities to bear on their causes, opportunistically using them in the proceedings to strengthen their position.
Baidamu and Bhawani Singh were part of a complex socio-religious world in which they could belong to a heterodox sect as well as claim to be Hindu Khatris. After her husband's death, Baidamu had inherited his trade and property, becoming a business owner in her own right like some other widows of her time. To strengthen her position in society, she cultivated the support of the Nanakpanth through charitable grants with considerable success. But Baidamu's connections with the sect presented severe challenges for the colonial state in Banaras when her dispute with Bhawani Singh came to the courts. In this article, I examine the intricacies of this case along with others involving widows to engage wider questions on family, community, gender relations, law, and colonialism in India.
Colonial adjudication over the familial intricacies of Indian subjects was an integral part of colonial practices of governmentality. The process was productive of new understandings of what constituted ‘family’ when colonial officials shaped inheritance patterns to suit their extractive regimes, as Indrani Chatterjee has shown in her work on colonial Bengal.Footnote 2 Other scholars have focused on the ways in which nineteenth- and twentieth-century Anglo-Hindu law was constituted to govern social life and develop property regimes beneficial for the colonial state.Footnote 3 In particular they drew attention to the essentialization of the Hindu joint family as a central organizing factor of social life. By upholding the Hindu joint family as the ideal property-holding unit, the Company sought to support agrarian patriarchies, which had much to gain from maintaining landed estates as indivisible units. British officials’ reasons to buttress agrarian patriarchs were two-fold: first, to make collaborators of the male heads of landowning families, and second, to secure a steady stream of revenue by attaching those patriarchs to the Company.Footnote 4
The normative Hindu joint family was based upon the twelfth-century prescriptive legal treatise, the Mitakshara by Vijnaneshwara.Footnote 5 Mitakshara exhorted joint ownership of property between male agnatic kin, which was inherited from one's father, or father's father, and so on. It did, however, recognize other forms of property-holding that were separate from the joint property: property gained through self-acquisition or that which was acquired through gifts.Footnote 6 In either case, distinctions were made between immoveable and moveable property, wherein the former was subject to more rigorous regulation by coparceners. To elaborate, fathers could only make affectionate gifts of moveable property that was held jointly by coparceners. Even in situations where property was self-acquired and held separately, owners could not alienate the immoveable portion of that property without the consent of kinsmen.Footnote 7
The joint estate presented a challenge to those men eager to separate their share from the joint property, for under Mitakshara, it was possible to divide the joint property only if coparceners agreed. It also excluded women from joint ownership.Footnote 8 Husbands and fathers could make gifts out of the moveable property to their wives and daughters but never from the immoveable property.Footnote 9 Wives and widows were dependents who could claim food, clothing, and shelter from the joint property.
In her study on colonial Tamil Nadu, Mytheli Sreenivas illuminated the ways in which mercantile and professional men, seeking to free themselves of joint obligation and establish control over their property, challenged these policies from the late nineteenth century by deploying discourses of conjugality and women's rights.Footnote 10 Rachel Sturman has argued that by the late nineteenth century, exigencies of social economy influenced liberal critiques of the joint family, leading to the emergence of an autonomous male propertied individual through case law.Footnote 11 Both historians have shown that gender ideologies of dependence under Hindu legal traditions and liberal thought—through doctrines such as coverture—ensured the continued legal subordination of women.Footnote 12
Focusing on the nineteenth and twentieth centuries, Sturman has demonstrated that the colonial liberal state identified the Hindu joint family as a jural entity, privatizing it as a space which constituted the limits of abstract subjecthood and one that was populated by men and women wielding ‘particular and differential’ rights.Footnote 13 Such conceptualizations facilitated state governance of family as it adjudicated over issues of inheritance, marriage, and family property.Footnote 14 She has argued that Indian systems of thought, which underscored difference based on birth and heredity, combined with the concomitant liberal logics of human universality and difference with critical effects for colonized women and society more broadly.Footnote 15 Women were marked as incommensurable beings whose subjecthood under law was rendered both inferior and unstable by Anglo-Hindu law. This incommensurability of women, made possible by the ‘meaningfulness’ of their bodies, was used to naturalize communities as key elements of colonial Indian society.Footnote 16
These explorations build on feminist scholarship which has shown that colonial liberal formulations took the peculiar form of a compact between the colonial state and caste- and religion-based communities of colonized peoples that subsumed women to their communities.Footnote 17 Scholars have demonstrated the ways in which an adversial liberal language of rights for women, and later colonized subjects, emerged in these liberal contexts during the late nineteenth and early twentieth centuries.Footnote 18 Feminist studies have also examined women's agency under Anglo-Hindu law in the colonial liberal frameworks of this time period.Footnote 19
These histories offer important insights into the emergent relationships between women, communities, and the colonial liberal state from the nineteenth century onwards. However, in this article, I draw our attention to the ways in which nineteenth-century formulations were based upon late eighteenth-century realignments of relationships between women and community. I suggest that eighteenth-century early colonial histories offer important insights on the ways in which women's relationships with community and family changed. Women's access to wealth and control of resources enabled them to strengthen their position in pre-colonial societies by developing community ties.Footnote 20 The East India Company's policies, including its land revenue reforms, marginalized women from the political economy in Banaras.Footnote 21 Colonial strategies of rule, informed by doctrines like coverture, harnessed upper-caste Brahmanical prescriptive traditions to reshape women's relationships with family and community. Here I demonstrate the ways in which the institutionalization of Anglo-Hindu law could reorder extant relationships between widows and community groups by creating very narrow legal subject positions for widows.
British liberal thought informed early colonial judicial plans. In 1772, Governor General Warren Hastings’ judicial reforms introduced a separate sphere of law which regarded issues pertaining to family and religious usage as ‘personal’ matters. These would be tried in the civil courts using the shastras (Sanskrit scriptures) for Hindus and the sharia (Islamic law) for Muslims as the main authoritative sources. In this early stage, the East India Company could not afford to have any ‘illusions of permanence’ in India.Footnote 22 British officials thus sought to gain legitimacy by posing as benevolent rulers who would subject colonized Indians to their own laws in cases regarding marriage, inheritance, caste, and other religious issues. But if officials sought to enter into a compact with colonized Indian communities by introducing such reforms, their neat plans were qualified by the messiness of lived practice. Focusing on Anglo-Hindu law, I draw attention to the processes in which law was used to order colonized society to the dictates of the early colonial state. I demonstrate that explorations in this direction offer key insights into the nature of community, family, and women's relationships with them.
Eighteenth-century lived practices belied the homogenous Hindu community presumed under Anglo-Hindu law. In the early modern period, communities were shaped by complex practices of patronage and recruitment. Participation and inclusion within the community were contingent upon the accumulation and strategic use of capital in all its forms.Footnote 23 Women relied upon community networks and used them to their benefit. The ability to call upon certain sections of the community for support was crucial to widows who entered into disputes with their affinal male kin for control over the family's resources. These networks were compromised under the emergent colonial state.
Property disputes involving widows were central to the institutionalization of Anglo-Hindu law and the popularization of the patrilineal Hindu family. Disputes also enabled colonial authorities to reorder social relations by making various heterodox sects subject to the dictates of Anglo-Hindu law. Heterodox customary practices were localized within a newly formulated Anglo-Hindu law which was based upon upper-caste Brahmanical scriptural texts. The universalization of Anglo-Hindu law reshaped women's relationships with their families and communities during the period. It channelled widows’ wealth and charitable practices away from religious sects in order to shore up patrilineal inheritance. This process weakened the position of women in the family and community.
Focusing on widows who commandeered their property disputes, I illustrate that pre-colonial precedents of case-resolution under the Banaras rulers, and practices of ‘forum shopping’ by disputants themselves, shaped the widows’ approach to the colonial courts.Footnote 24 In the courts, however, these women would find that the colonial state was determined to uphold patriarchal privilege. Indeed, the cases widows brought before the courts extended colonial power, increasing the state's wealth and enabling it to make inroads into, and to reshape, the everyday lives of its subjects.
Widows, the state, and customary practice in the Banaras principality, 1776–1786
The Banaras region is located in the eastern Gangetic plains of northern India. During the eighteenth century, the Banaras principality was a part of the Mughal province of Awadh, which encompassed much of the Gangetic plains. In the latter half of the eighteenth century, the rulers of Awadh recognized a landowning family led by Raja Balwant Singh as the subordinate and tribute-paying rulers of Banaras. The region being populated by militarized landlords, the nawab of Awadh, Safdar Jung, was forced to hand over kingship to Balwant Singh, who had the wherewithal to effectively subordinate and extract revenue from these landlords notorious for their recalcitrance.
Balwant Singh's strategies of rule combined military campaigns with strategic marital alliances to smite his opponents.Footnote 25 He reduced recalcitrant landlords in the Banaras zamindari and in at least two separate instances married the daughters of subordinated landlords in order to reinforce his domination over them. Such conquests over competing elites were only one aspect of state-building. The Banaras royal household also expanded its influence over local society through the dispensation of justice, the ability of which to intervene in the familial disputes of its subjects was particularly indicative of its reach and influence.
Ingratiation into the intimate lives of subjects was an important aspect of state-making for the Banaras state and later the early colonial state. Both occasionally relied upon local community networks in the form of arbitrative councils, where arbitrators were chosen from the disputants’ community to resolve disagreements. However, the Banaras polity and the early colonial state were singularly different in their policies towards women. The Banaras state upheld customary practice in determining women's shares in familial wealth. Crucially, unlike colonial law, where the dispensers of justice were all male, the widows of Balwant Singh, Panna, and Gulab Kuar, appeared to have played a central role in dispute resolution in their capacities as mothers and grandmothers of rulers. As administrators, they heard cases, dispatched them to arbitrators, or mobilized the agrarian administrative bureaucracy, calling upon local agrarian officials to oversee dispute resolution. The widows were also shrewd businesswomen, ensuring that disputants paid sums of money as bribes before hearing their cases.Footnote 26
Sources on dispute resolution from the royal household and the raja's court are unavailable. However, we do have fragmentary records that allow us to reconstruct aspects of the Banaras polity's approach to widows’ property claims and reflect upon the ways in which the pre-colonial state ingratiated itself into lives of its subjects. Here I use testimonies and evidence produced by people from a mercantile family who brought a longstanding case to the colonial courts. This was a dispute between a widow named Sewa and her affinal kin, and, upon the widow's death, between the deceased widow's affinal kin and her daughter's son. Beginning in around 1776, the dispute came before different forums and indigenous and, later, colonial courts.Footnote 27
Sewa had lived with her husband's family members for a significant period after her husband's death. But their relationship soured over time, and she sought to take her share of the familial wealth and separate from her affinal kin. To claim her share, Sewa approached Panna Sahab, Raja Balwant Singh's widow and his successor, Raja Chait Singh's mother. Panna called both disputing parties into her presence and upon discussing the case, deputed its resolution to arbitrators. After a length of time passed, as a result of the defendant's efforts at stalling, the arbitrators announced their decision. Agreeably to Panna, they ruled that the widow be granted Rs. 2,500 and a house as her share of the family property. A further notice with Chait Singh's royal seal, which was produced in the colonial courts by Sewa's heir, supported the widow's claim by instating her as owner of the house. It warned her affinal kin against interfering with her rights to it.
The two developments, mentioned by disputants at different stages in the colonial proceedings, show that the royal mothers’ courts were closely tied to the Banaras ruler's court. This practice was commensurate with state practices of the early modern period.Footnote 28 Deliberations on Sewa's case suggest that each of these closely interlinked forums—arbitrative assemblies, the royal mothers’ court, and the raja's court—were supportive of widows like Sewa. Further, customary practices which upheld widows’ claims created opportunities for them. In the aftermath of the judgements, Sewa took her share and set up a cloth business with it. Buying cloth from Banaras, she established an agent in Calcutta to sell the cloth there. Sewa was not an exception; records show that widows who lived in the pre-colonial eighteenth century had also inherited from their husbands and affinal kin such as widowed mothers-in-law. These heirs then set up their own businesses.Footnote 29 During their lifetime, practices that enabled widows to inherit also provided them the wherewithal to shore up their positions in the family and community. Thus, Sewa was able to establish herself as the head of the household comprising her daughter, son-in-law, and their children, among others. She used her influence to secure additional loans in her son-in-law's name and consequently started the family business.
However, after Sewa's death in 1785, her adversaries threatened to take over her business. Sewa's affinal nephews usurped her property forcibly from her daughter, son-in-law, and grandson.Footnote 30 Circumstances had changed by the time of Sewa's death. The ruler, Chait Singh, had been expelled from Banaras by the British in 1781, so his official notice had no influence over Sewa's affinal kin. It was therefore not surprising that the latter capitalized on this shift in power.
To strengthen their position, Sewa's daughter's family had to approach the Banaras ruling family again. Her son-in-law sought the court of Gulab Kuar, Raja Balwant Singh's other widow, to plead his case. Like Panna, Gulab Kuar took charge of matters. She mobilized the agrarian administrative bureaucracy and asked the local revenue-collecting official to look into the matter and report back to her. The revenue-collecting official took the depositions of the disputants and dispatched them to Gulab Kaur.Footnote 31 In the meantime Sewa's son-in-law lodged the case first in the raja's court and, soon after, in the colonial court—no doubt seeking the more powerful authority in the region. The dispute continued in the colonial courts between 1790 and 1791, when Sewa's daughter, son-in-law, and grandson lost control over her property under Anglo-Hindu law.Footnote 32 After determining that Sewa's husband had not separated his property from that of his three other brothers, the courts granted her affinal nephews her property. Under the Hindu joint family system, only male agnates could inherit; daughters (like Sewa's daughter) were entitled only to maintenance.Footnote 33
The developments in the case as it moved from non-colonial to colonial spaces are striking. According to the Mitakshara authority upheld in the colonial courts, if a man separated from his brothers and died without leaving any sons or grandsons, his widow would be recognized as heir during her lifetime. Upon her death, the property would revert to her affinal kin (husband's brothers and their sons). But in this eighteenth-century case, Sewa had wrested a share of the familial wealth without her husband ever separating from his brothers and sons. In fact, she was the one who got a deed of release signalling a separation and cessation of claims between her affinal kin and herself after receiving a share under the orders of Banaras royalty, Panna and Chait Singh.
This instance serves as an important reminder of the ways in which customary practices, upheld in different forums in eighteenth-century India, could be supportive of widows’ claims to shares in familial wealth. Yet, even as customary practices emboldened women like Sewa to seek redress, they had to be able to harness enough power to ensure that custom was followed through, making widows’ ability to call upon rulers and community critical to their well-being. Such exigencies informed the colonial courts’ popularity with widows who, sensing shifts in hierarchies of power, approached them to further their causes. In the next section, I examine the contours of the early colonial courts demonstrating the ways in which disputes, including familial issues of inheritance, became a medium through which British officials sought to monopolize the dispensation of justice. I suggest that the process was made simpler when widows involved in the dispute were unable to garner support from the wider community.
Widows and the shifts from layered justice to colonial monopoly, 1781–1789
In 1775, the Mughal successor state of Awadh ceded the Banaras principality to the East India Company. At the time, the Company maintained Panna's son, Chait Singh, as the ruler of Banaras in exchange for a massive annual revenue payment. But in 1781 it established direct rule over the principality when the ruler of the Banaras dynasty, Raja Chait Singh, rebelled against the Company. Although Chait Singh's successors remained as titular heads to the throne of Banaras, the Company now undertook vast administrative reforms to consolidate its control over the region.
The Company's administration was marked by the establishment of a civil court which was to try cases of debt, mortgages, the transfer of properties, rights of marriage, and claims of inheritance. Here, Hindus and Muslims would be governed by their respective scriptures. In these civil courts, Hasting's appointed pandits and maulavis (Muslim clerics), district judges, and a chief magistrate who would preside over all of them.Footnote 34 In the aftermath of the rebellion against Company rule in 1781, British officials appointed an Indian named Ali Ibrahim Khan as the chief magistrate.Footnote 35 In this capacity, Khan was placed in charge of both the criminal and civil courts. A multilingual historian, Ali Ibrahim Khan had gained expertise in statecraft and diplomacy serving under the Mughals. With the advent of the East India Company, he used this experience to build a successful career as an intermediary informant for Company officials.Footnote 36
Ali Ibrahim Khan was particularly suited to serve in a judicial capacity in Banaras, a substantial revenue-paying principality that the Company had recently struggled to control. Khan had a wide-ranging knowledge of Islamic and Hindu textual traditions, which he used in the dispensation of justice.Footnote 37 As an administrator, he displayed sensitivity to local customs and practices, establishing a flexible judicial regime.Footnote 38 In these early years of colonial rule, Ali Ibrahim Khan's strategies played an important role in popularizing the colonial courts among the everyday inhabitants of Banaras. Colonial courts were just one of the forums to which disputants brought their cases. As seen in the previous section, Gulab Kuar, the matriarch of the Banaras Raj, continued to hold court even after colonial courts had been established. In such a political economy, where the colonial state competed with other power-holders for authority over the lives of the principality's subjects, Ali Ibrahim Khan's attention to local customary practices meant everything.
But Ali Ibrahim Khan's policies became subject to criticism in 1788, when the Company, secure in its control over Banaras, placed the Banaras courts under the British Resident, Jonathan Duncan. The magistrate was now under Duncan's supervision, much to the former's dislike. Eager to take control, Duncan made Ali Ibrahim Khan turn over to him papers relating to the different cases he had presided over. Duncan then reported the state of affairs to his superiors, lamenting that the inhabitants of Banaras had been, ‘so long habituated to settle all causes by arbitration, and to terminate all disputes by what they call a mutual satisfaction of both parties’ that they would not appreciate the Company's ‘more decisive’ and more ‘abrupt way of administering justice’.Footnote 39 The Resident was hopeful that Banaras’ inhabitants could be gradually made to ‘assimilate’ to Company policies on law.
Duncan's reservations notwithstanding, Ali Ibrahim Khan's policies had clearly been successful, as the courts became popular among disputants. Thus Khan reported to Duncan that they were handling cases involving debts, legacies, and inheritance in the criminal courts because the civil courts were packed with cases.Footnote 40 Not only that, the busy courts contracted disputes to an outside arbitrator or arbitrative councils.
Widows played an important role in this process. Sources from the period show that widows were active in seeking out public forums to claim shares in wealth during the pre-colonial and colonial period of the eighteenth century. Sewa's case is one such example. Elsewhere, I have discussed the ways in which a destitute Brahmin widow performed dharna (a fast unto death undertaken against an adversary in order to address a grievance) against her brother-in-law in a temple for 13 days in order to make him pay a sum of money to her.Footnote 41 But this was only one of the public spaces in which she put pressure on her brother-in-law; she also took her case before an arbitrators’ council, as well as the colonial courts. Similarly, a widow from one of the most prominent banking families in Banaras demanded her inheritance by trying first to move the local merchant community to intercede on her behalf and, subsequently, the colonial courts.Footnote 42
Widows recognized the colonial courts, too, as a possible site for shoring up their position vis-à-vis their opponents. They could be relentless in their pursuit. In 1789, the magistrate handed over the proceedings of a case of unpaid debts involving a widow named Phulbassi to Duncan.Footnote 43 Phulbassi had inherited her widowed mother-in-law's wealth, which, she stated, included a sum of Rs. 500 that her mother-in-law, a moneylender, had lent to the defendant Maharban Singh's father at a rate of interest. When Maharban Singh did not repay the loan, Phulbassi first complained in the criminal court for Rs. 100 but then renounced her claim. She lodged a complaint a second time in the civil court for Rs. 200, which was dismissed when the defendant produced a deed of release signed by Phulbassi, which stated that the defendant. Maharban, had paid Phulbassi Rs. 7. Phulbassi, citing that she had been tricked into signing the deed, complained again in the criminal court. At this point the court officials contracted the case to an arbitrator to resolve the issue, the outcome of which is unclear from the records. She lodged a complaint for the fourth time in the civil courts but now claimed Rs. 500 from Maharban. When the proceedings started to go against Phulbassi yet again, she demanded that she be allowed to plead her case in front of the Resident. Phulbassi eventually lost the cause due to her inability to provide sufficient supporting evidence. But for our purposes here, the case is important because it demonstrates that Ali Ibrahim Khan's flexible approach to the practice of colonial law (whereby a widow could complain five times, two out of which were in the criminal courts, and where the court entertains outside arbitrators) played an important role in bringing people to the colonial courts.
Unfortunately for Ali Ibrahim Khan, Duncan did not see it that way, prompting the former to defensively offer explanations for entertaining disputes like Phulbassi's in the criminal courts. In a bid to reform the practice of colonial law, the Resident began discouraging the Indian magistrate's practices, including contracting cases to arbitrators. But pre-colonial forms of justice dispensation, which had encouraged Banaras residents, including widows, to actively seek out different forums in furthering their claims, were central to the popularization of colonial law. This is why the courts were flooded with cases in the first place. In the following paragraphs, I elaborate on the ways in which Duncan exhorted colonial officials to shepherd cases into the colonial courts and to resolve them according to Anglo-Hindu law. Practices that had first soldered pre-colonial systems of dispute resolution to the colonial courts had to be reshaped. This shift produced limited legal subject positions for women—even when women sought out the colonial courts themselves.
Between 1790 and 1792, the court in Jaunpur, one of the districts within the Banaras principality, deliberated over a dispute between Sheokuar, a widow, and Kedru Mull, her deceased husband's nephew.Footnote 44 The dispute began when Kedru Mull, the nephew, mortgaged the family's wealth—which comprised mainly two stone houses—for the fulfilment of a debt. Fearing that the property was in danger of being sold off to pay Kedru Mull's debt, Sheokuar interceded with her claim. But the first round of arbitrators chosen from their community did not uphold the widow's claim. Structures of power in the community determined their decision, for the houses were to be sold off to one Sheo Lal Dubey, one of the most powerful landlords and dependents of the East India Company in the region.Footnote 45
Once the houses were sold, Sheokuar lodged a complaint in the colonial courts. Here Sheokuar staked a claim by arguing that the house deeds were in her father-in-law's name and since his two sons, including her deceased husband, had never separated formally, she was heir to her husband's share. The opponent, Kedru Mull, responded that the deeds were in his father's name alone and asked Sheokuar to show the said deeds to prove her case. However, the latter stated that the deeds for the house would, of course, be with Sheo Lal Dubey and since she did not have the power to take them from him, the court might do so.Footnote 46
Court officials contracted the case to two arbitrators, chosen by the disputants.Footnote 47 The arbitrators declared that Sheokuar was to be paid Rs. 201 out of the Rs. 1,400 Kedru Mull received from the sale, which he had used to clear his debts. Although Sheokuar was satisfied with this decision, Kedru Mull appealed to the Resident, protesting that the case should have been resolved in the courts according to the shastras but had instead been forcibly contracted out to arbitrators.Footnote 48 He went on to argue that Sheokuar had taken effects worth Rs. 2,000 when her husband died and she left to live with her natal kin more than 40 years ago. Not one to hold back, Sheokuar stated that a decision made by the arbitrators could not be appealed, and hailing Duncan, she argued that this was by the Resident's orders.Footnote 49
Duncan, who was now involved, wrote to the judge at Jaunpur questioning why this ‘simple’ case had been left to the arbitrators.Footnote 50 Ali Ibrahim Khan responded that he had accommodated the disputants’ request in doing so. He also requested instructions on other such cases. In response, Duncan concluded that it was ‘improper’ to contract out cases ‘the merits of which rest solely on the law of the Koran or the shastras’. A final court ruling by Kashinath Pandit, whom Duncan appointed as the first rector in the Banaras College he had established in 1792 to make judicial expertise on the shastras easily available to colonial courts, confirmed the decision of the arbitrators, granting Sheokuar the Rs. 201. But what happened here was not as innocuous as it seems, for Kashinath Pandit framed the arbitrators’ decree within the dictates of the shastras: ‘the 200 [201] rupees which the arbitrators have caused the plantiff to receive is according to the shastra valid’.Footnote 51
These court proceedings raise important questions. Was Anglo-Hindu law a better alternative for women than arbitrative councils, especially considering that the first round of arbitration had dismissed Sheokuar's claims? When contracted by the colonial courts, did arbitrative councils begin ruling according to Anglo-Hindu law, as the second round of arbitration may suggest? The answer to both questions is no. In order to understand the arbitrators’ decisions, we must take a closer look at the contingencies driving the case. When Sheokuar first demanded her share, the houses were mortgaged by her nephew. It is highly likely that arbitrators who were chosen from the disputants’ community were influenced by the mortgager, now vested in the two houses, to dismiss Sheokuar's privileges. As shown in the previous section, even customary practices, which could favour widows’ claims, were subject to relationships of power. As a competing heir, Sheokuar could hinder the mortgager/creditor's plans for the houses, as well as Sheo Lal Dubey's plans for buying them. Even entertaining her demand with a token payment would have established her position as part owner of that property, hence the complete dismissal.
By the second round of arbitration, as the houses had already been sold and the creditor paid, one can presume that figures like Sheo Lal Dubey and the creditor now withdrew from the affair, leaving the matter between Sheokuar and Kedru Mull. The council was faced with a widow who had shown persistence in pursuing her cause. True to the nature of arbitrative councils, its ruling was meant to be palatable to both parties. A sum of Rs. 201 was small compensation but, given that Kedru Mull had already used the Rs. 1,400 raised from the sale of the houses to pay off his debts, it could be argued that the arbitrators fixed upon a sum that would not be too onerous for him to give to Sheokuar. Also, Sheokuar had herself attested to having taken the jewellery that was given to her upon her marriage when she left her affinal home.Footnote 52 This factor, too, may have informed both the arbitrator's decision and Sheokuar's satisfaction with it.
Sheokuar was satisfied with the Rs. 201. Having been away from the affinal family at Jaunpur for 40 years, during which time she lived with her natal kin in Banaras city, the widow would have had difficulty gaining supporters who would help her in furthering her cause. However, for Kedru Mull, who had just fulfilled one debt by selling the two family houses, a further payment of Rs. 201 was unacceptable, especially when he saw a way out through Anglo-Hindu law. So he appealed to the Resident, complaining about the conduct of court officials who should have resolved the case according to the shastras but instead handed it over to arbitrators. This was precisely what Duncan wanted. But rather than squashing the authority of the arbitrative council (the courts’ incorporation of the institution had, after all, been important to their popularization among local inhabitants), officials and pundits reframed the arbitrators’ decree within Anglo-Hindu law. Sheokuar's Rs. 201 was categorized as ‘maintenance’ due to a widow according to Mitakshara. Thus, Kedru Mull effectively lost, but the case actually resuscitated male subjects’ rights to property, marginalizing those of widows like Sheokuar.
British officials, including Jonathan Duncan, considered the courts’ ability to resolve familial cases according to Anglo-Hindu law and bring them under their jurisdiction as an important step in the consolidation of colonial rule in the region. Disputants seeking to benefit from the institutionalization of Anglo-Hindu law participated actively in this process by pushing their claims into the colonial courts. Thus the enthusiasm with which colonized men and women brought their cases to the colonial courts as yet another forum in which they could strengthen their claims unwittingly bolstered colonial strategies aimed at monopolizing the dispensation of justice. The next section studies a dispute between a widow and her affinal male relative to elaborate on the ways in which the colonial courts intervened in local customary practices, striving to align them with Anglo-Hindu law. It examines the impact of this process on widows’ ability to cultivate community support, which was crucial to their well-being.
Widows, communities, and Anglo-Hindu law, 1787–1792
Baidamu was the widow of Gurdayal, a shopkeeper and member of the Khatri mercantile community. Gurdayal belonged to a religious sect called Nanakpanth whose members were devotees of Nanak, the founder of the Sikh community. After Gurdayal's death, Baidamu—also a member and patron of the local chapter of the Nanakpanthi sect—was involved in a dispute over claims to her deceased husband's property with a male agnatic kinsman. This was Gurdayal's paternal cousin, Bhawani Singh, who had also been a member of the Nanakpanthi sect until he was excommunicated for reasons I will discuss later. The contestation over claims to Gurdayal's property came under the purview of the Company in 1787 and remained there until 1792.Footnote 53 In 1787, four arbitrators from the local community adjudicated over the question of inheritance of Gurdayal's shop under the endorsement of the Company court.Footnote 54 At the time, arbitrators decided that Baidamu was the sole proprietor to the earnings from Gurdayal's business and the profit accruing from it.Footnote 55 The sum was hers to enjoy, save for a certain portion which she could devote to her charitable enterprises. Furthermore, even though Bhawani Singh and his lawyer approached the arbitrators to deliberate upon the status of Gurdayal's house, the latter let it remain with Baidamu. However, in a bid to reconcile both disputing parties, the arbitrators’ council ruled that Bhawani Singh would inherit Gurdayal's business after Baidamu's death, but no mention was made of the house.Footnote 56
The council's decision was in line with customary practice according to which widows like Sewa, Phulbassi, and Baidamu inherited significant portions of their family and husband's wealth. Baidamu pursued the dispute further. She appealed to the colonial court in 1789 to challenge any claims of Bhawani Singh to Gurdayal's property.Footnote 57 This second round of litigation produced various complications for court officials who sought to resolve the case under Anglo-Hindu law. At the outset, Baidamu's lawyer asserted that Bhawani Singh had no legal claim to Gurdayal's property. He preempted the challenge of the prescriptive joint family under Mitakshara by asserting that Bhawani Singh had no legal claim to Gurdayal's property since Bhawani Singh's father and Bhawani Singh himself had signed deeds of release according to which they had separated, and therefore, neither parties could inherit the other's property.Footnote 58 This was important, for under Mitakshara, Baidamu's proprietary rights hinged upon proof of whether the disputed property had been set aside by her husband before his death or not. If there was no conclusive proof that the property had been set apart, then Bhawani Singh would inherit the undivided wealth, with Baidamu receiving only maintenance.
Citing two deeds of release, one signed by Bhawani Singh's father and the other by Bhawani Singh, Baidamu's lawyer argued that Bhawani Singh could not inherit Gurdayal's property because there had been a separation between Gurdayal and his agnatic kin.Footnote 59 However, at this time, Baidamu produced only one deed of release signed between Gurdayal and Bhawani Singh's father. This strengthened Bhawani Singh's case. The dispute took an interesting turn, for Bhawani Singh's lawyer now based his client's claim on patrilineality and the fact that Bhawani Singh was Gurdayal's adopted son and not simply a male agnatic kinsman. Bhawani Singh's lawyer argued that Gurdayal had adopted Bhawani Singh as his son, made him a Sikh of the Nanakpanthi sect like himself, ‘put hair on his head and established him in his shop and said that he had made him proprietor and heir of the shop’.Footnote 60 As an adopted son, Bhawani Singh was entitled to inherit like any other biological son.
The issue of adoption presented new complications, as it brought the practices and patronage of the Nanakpanthi sect under scrutiny. Members of the Khatri mercantile community in Banaras—to which our disputants belonged—were fervent devotees of the Nanakpanthi sect. The Nanakpanthi sect in Banaras had a corporate organization.Footnote 61 Furthermore, it welcomed laymen and ascetics into its fold.Footnote 62 The sect owed its popularity to this inclusiveness: lay followers were not required to abandon prior religious and caste-based practices.Footnote 63 As Khatri families prospered in trade from the sixteenth century onwards and expanded their trade networks over the subcontinent, the Nanakpanthi sect flourished under their patronage. In the late eighteenth century, however, colonial courts became a key site through which some Khatris, aspiring to own property, intercepted networks of patronage towards the corporate sect and direct capital towards themselves.
The Nanakpanthi sect's practices and customs came under investigation when Bhawani Singh asserted the legality of his adoption since the deceased Gurdayal had been a Sikh and a prominent member of the Nanakpanthi order.Footnote 64 As the disputants tried to prove and disprove the adoption, they elaborated upon customs, rites, and practices of adoption within the Nanakpanthi sangat (congregation of devotees). This process was hardly straightforward; both sides produced different versions of the customary practices of the Nanakpanth. What is crucial to note is that when questions over inheritance in this case became entangled with the customs of the Nanakpanth, court officials were forced to entertain such deliberations on the sect's practices.
Witnesses from the Nanakpanth were thus called upon to provide more details on the customs of adoption in the Nanakpanthi order as court officials searched for precedents. Because of the inconsistencies in the narratives of disputants and witnesses, colonial officials were hard pressed to determine the established customary practices of the sect. Witnesses who supported Bhawani Singh argued that Gurdayal had adopted the former in front of the entire congregation and that a ceremonial feast had been offered to mark the occasion. Importantly, the issue of adoption was integrally connected with that of initiation into the sect, for Bhawani Singh argued that Gurdayal had adopted him as his son and ‘took him into the sect’.Footnote 65 This was reflected even in the argument Baidamu's lawyer used to contest the adoption. He stated that Bhawani Singh did not
. . . ever drink the remainder of his [Gurdayal's] sherbet [sweet drink, italics mine]. It is the custom that a murshid [spiritual guide and teacher, italics mine] or grue [guru] makes his adopted son drink the remainder of his sherbet [italics mine] which is the established rule among the Sikh sect.Footnote 66
Baidamu's lawyer went on further to state that Bhawani Singh instead drank the sherbet from the cups of the faqirs (renunciant monks) of the sect.Footnote 67 By stating thus, Baidamu's lawyer challenged Bhawani Singh's claims on two counts. The first was that Bhawani Singh never drank from Gurdayal's cup and therefore did not become his son; the second was that by drinking from the cup of the faqirs of the sect, Bhawani Singh had become a renunciant himself. Such an assertion—that Bhawani Singh was a monk—would have compromised the former's claims to the property and wealth of a layman.
In order to strengthen his second argument, Baidamu's lawyer stated that other monks of the sect were ready to testify that Bhawani Singh had indeed become a faqir of the sect (that is, a Nanakshahi faqir) through that rite.Footnote 68 It is likely that Baidamu's lawyer would have been able to get other monks of the sect to vouch for him because of his client's patronage of the sect. In 1788, Baidamu had gifted her house to the sangat because, as stated by her lawyer, she did not have a son or daughter to inherit it.Footnote 69 Since the gift of the house was made after the beginning of the dispute over the shop, it suggests that Baidamu was deliberately courting the support of the corporate community for herself. She had good reason to do so. As a widow who did not have a child, Baidamu was already vulnerable. She may have also held a relatively marginal position among her affinal kin. In one of her early petitions to the court authorities, Bhawani Singh had alluded to a ‘senior aunt’, widow to one of Gurdayal's male kin.Footnote 70 According to Bhawani Singh, this senior aunt had affirmed his position as Gurdayal's heir during her lifetime. While it is difficult to say anything conclusive about these claims, it is possible that Baidamu's older affinal kin threw their weight behind Bhawani Singh rather than Baidamu, who was widowed and without children.
If Baidamu's circumstances placed her at the margins of her affinal family, Bhawani Singh made matters worse during the proceedings of the case by accusing her, a widow, of entering into unchaste relations with her husband's agent.Footnote 71 In arguing thus he sought to challenge her rights to property, for under Mitakshara law, a widow was entitled to inherit only if the husband died separated from his agnates and left no male issue, and if she had remained chaste after his death.Footnote 72 However, these charges were also aimed at compromising Baidamu's position in her community for being an unchaste widow. In a petition submitted during the later stages of the case, Bhawani Singh mentioned that several of Baidamu's relations, including her uncles, brothers, and foster brothers (whom he named for the court officials), had shunned Baidamu for her transgressions.Footnote 73
With such serious allegations against her, Baidamu's solicitation of the support of the Nanakpanth was crucial to her well-being and for reinscribing herself into the community networks. She thus generated such social capital with the Nanakpanth by making a gift of her house to the sect. According to Bhawani Singh, Baidamu's uncles and brothers were a part of this congregation and she sought to gain their support and that of the sect in making the gift.Footnote 74 With this gift, Baidamu won the support of her natal kin and other members of the sect who maintained a shadowy presence in her case from then on as she took on one of her affinal kin. Baidamu was not alone in cultivating capital through piety. Records from the same period show an elite widow performed charity at various holy places in the Banaras city. She was always accompanied by a servant who was charged with the duty of dispensing ‘charity money’ on behalf of his mistress at the various sites.Footnote 75
If Baidamu had won the Nanakpanth's support, her contender, Bhawani Singh, had antagonized it by opposing the bequest. Consequently, the sangat excommunicated Bhawani Singh and barred him from the congregation.Footnote 76 They forbade him from using the communal vessels that Sikhs of the order shared. Bhawani Singh could return to the fold only if he sought forgiveness ‘for his offence’ of opposing the bequest.Footnote 77 However, Bhawani Singh was in no mood to relent, and despite the Nanakpanth's efforts, he continued to assert that Baidamu's transfer of the house to the Nanakpanthi sect was illegal. We know from Chief Magistrate Ali Ibrahim Khan's communications with the Resident Duncan at a later stage in the case that Bhawani Singh was deeply resented by the Nanakpanth for his relentless challenge of the charitable gift. Ali Ibrahim Khan's correspondence with Duncan reveals that the Nanakpanth even wrote a petition against Bhawani Singh to the Resident in July 1791.Footnote 78
The overlaps between the rites of initiation into the sect and adoption brought the case to an impasse. The disputants struggled to elaborate on the relationship between Bhawani Singh's adoption and his initiation into the Nanakpanthi sect, noting the subtle differences between the rites that went into initiation into the sect as a renunciant monk, on the one hand, and as a layman, worldly son of a lay follower on the other. As both parties in the dispute argued over the customs of the Nanakpanth, Baidamu's lawyer shifted the ground upon which the legality of the adoption was being debated and aligned it more along the dictates of Anglo-Hindu law. But as I will show, the lawyer's articulations on Anglo-Hindu law would raise problems for the colonial courts.
Baidamu's lawyer stated that instead of deciding the case according to the customary practices underlined by Bhawani Singh, the adoption ought to be decided according to the shastras, as was also prescribed under Anglo-Hindu law.Footnote 79 Thus, Baidamu's lawyer argued that since Gurdayal and Baidamu were Hindus, Bhawani Singh had to prove the validity of his adoption according to the shastras. In response, Bhawani Singh framed his arguments to suit the dictates of the shastras. He thus stated that he had lit Gurdayal's funeral pyre; under Mitakshara law, a son had to perform this act for his father.Footnote 80 To Bhawani Singh this was sufficient proof in support of his claim: if, according to the the shastras, a son was obliged to light the fire—and he had done so—it then necessarily followed that he must have been the dead man's adopted son. However, Baidamu's lawyer was set on categorizing Bhawani Singh as a Nanakpanthi renunciant whose practices did not conform to, and could not be understood within the purview of, the shastras, and hence Hindu law. He stated,
Bewany Sing also represented, that he performed Gurdeal's Funeral Rites, the reason of which that the Funeral Rites on persons of this Sikh cast [sic] are merely setting fire to the Body and at the time of putting the fire to Gurdeal as Bewany Sing did it, Bedamow's father called for justice, and said that he must not set fire to the body, Bewany Sing said, I set fire to the body of Gurdeal for God.Footnote 81
Baidamu's lawyer insinuated that Bhawani Singh's participation in the funeral was devotional and that he had not performed the funeral rites as Gurdayal's son. Furthermore, he suggested that ceremonies mandated by the shastras had not been performed during Gurdayal's funeral; this made Bhawani Singh's claim dubious.
In asserting the primacy of the shastras as the judicial authority, the lawyer also sought to underscore Bhawani Singh's status as a Nanakpanthi monk whose customs could not have any influence over matters of property within a lay and Hindu family. This manoeuvre did not necessarily imply that the sect recognized Hindu and Sikh identities as mutually exclusive. Indeed, Baidamu's lawyer would later argue that Gurdayal had been a Sikh, thereby indicating the permeability between both identities for followers of the sect and the expansiveness of notions of religiosity within the sect. Baidamu's lawyer's main objective was to highlight differences between the customs of renunciant Nanakpanthi faqirs (Bhawani Singh) and those of lay Hindu followers (Gurdayal Singh and his wife Baidamu).
That Baidamu's lawyer constructed, through negation, a distinctly Hindu legal subject whose practices were shaped solely by the shastras is demonstrative of two seemingly contradictory aspects of the introduction of Anglo-Hindu law in this period. First, it reveals the ways in which the shastras were being universalized as a key source of law. Second, the case reveals that contrary to the judicial plan, which sought to subject Hindus, Buddhists, Sikhs, and Jains to Anglo-Hindu law, disputing parties, led by Baidamu's lawyer in this case, unwittingly drew attention to groups whose customs and practices fell outside the purview of the shastras. The emergent tensions are evident from colonial court officials’ determination to bring the shastras, and thereby Anglo-Hindu law, to bear on those groups. Thus, in response to the arguments by Baidamu's lawyer, court officials inquired from Bhawani Singh's lawyer, ‘When Gurdeal having made Bewany Sing a Sikh at the singhet and placed him in his shop did he observe any of the ceremonies required by the shaster?’Footnote 82 Bhawani Singh and his lawyer struggled to provide an answer.
Officials demanded abstract laws based upon Sanskrit prescriptive texts and thereby overlooked the point that initiation into the devotional sect and practices of adoption in the corporate Nanakpanthi community were based upon historical practices and customs that were transient and shifting in themselves. The complexities involved in this process are apparent in ways in which disputing parties adamantly foregrounded the authority of historical practice. Therefore, in his reply to the question, Bhawani Singh's lawyer drew attention to customary practice yet again. He responded, ‘it is customary in the Sikh tribe, that if a person adopts any person among his brethren they must make them a Sikh in the singhet [sic], and let hair grow on their heads, and at their death the adopted becomes heir to their property’.Footnote 83
As Bhawani Singh's lawyer shifted the ground for debate onto the practices of the sect, Baidamu's lawyer tailored his response accordingly. In a critical reversal, he posited Gurdayal as a worldly Nanakpanthi Sikh and not a worldly Hindu. Engaging with established customary practices of the sect, Baidamu's lawyer denied any such rite. He stated,
Gurdeal my mistress's husband, was a Sikh and of the kitree [sic] tribe and a worldly man, it is the custom of the Sikha tribe and of worldly men that if any person adopts any of his brethrens [sic] children they make them drink of their own leavings and whatever is the custom of adoption, in the same manner as the worldly men do, is to be observed.Footnote 84
These arguments were used to tease apart the intermeshed practices of initiation into the sect and those of adoption into a layman's family. Baidamu's lawyer portrayed Gurdayal as a worldly man and layman member of the sect as opposed to Bhawani Singh who, the lawyer had argued earlier, was a Nananakpanthi faqir. In a way these stratagems served Bhawani Singh's interests, for he was keen on distancing the Nananakpanth and its priests from Gurdayal's property. As noted earlier, the Nanakpanth had supported Baidamu's cause in the case particularly as she had made a charitable gift of her house to the sect. Bhawani Singh, who claimed to be Gurdayal's adopted son and patrilineal heir to all his property, contested the charitable gift by arguing that because Baidamu was not the heir, she had no right to give the house as a gift. Bhawani Singh's opposition to the gift had alienated him from the Nanakpanthi community who in turn supported Baidamu. To Bhawani Singh then, the sect was an interloper for assuming control over property that rightfully belonged to him.
Bhawani Singh's arguments were informed by understandings of family under Anglo-Hindu law, and so court pandits chose to uphold his rights ‘according to the shaster [sic]’ even as they ruled that his adoption could not be proved.Footnote 85 In their ruling, the pandits argued that Bhawani Singh's right to the property was proved on three counts: first, by the depositions of witnesses who had supported his claims by arguing that Gurdayal had invested Bhawani Singh with control over his property; second, that since a deed of release had been passed between Gurdayal and Bhawani Singh's father and not Bhawani Singh himself, the latter was the legal heir; third, that he had set fire to Gurdayal's funeral pyre.Footnote 86
The disputants had approached Anglo-Hindu law as just one of the legal authorities that could be flexibly applied if and when a disputing party claimed to be Hindu and demanded that her/his case be solved according to Anglo-Hindu law. That the ruling was made according to the shastras to the negation of customary practice demonstrates court officials’ determination to universalize Anglo-Hindu law. But to make matters worse, the court officials deliberately manipulated case proceedings to uphold Bhawani Singh's male privilege under Anglo-Hindu law.
In the event of the court's inability to substantiate Bhawani Singh's adoption, the proprietary title should have gone to Baidamu. Under Mitakshara, a widow was entitled to inherit if the husband died separated from his agnates and left no male issue.Footnote 87 Baidamu had not presented a deed of release signed between her deceased husband, Gurdayal, and Bhawani Singh. However, as noted earlier, she did present a deed of release signed between Gurdayal and Bhawani Singh's father according to which neither the latter nor his children could lay claim to Gurdayal's property. In the event that Bhawani Singh's adoption by Gurdayal was unproven, as the pandits themselves acknowledged, his only claim to the property under Anglo-Hindu law could have been in his capacity as his biological father's son and as Gurdayal's male agnate kin. The deed of release between Bhawani Singh's father and Gurdayal should have foreclosed that possibility and the property should have been deemed rightfully as Baidamu's under Anglo-Hindu law. Even the question over Baidamu's chastity was no longer an impediment. Chastity was a singular condition for widows to retain control over their property, and the court pandits had dismissed allegations against Baidamu for lack of evidence.Footnote 88 However, they were still inclined to endorse Bhawani Singh's rights to property. These rulings shaped the court decree. And so, when the court pandits declared Bhawani Singh as the heir, they granted Baidamu-rights only to food and maintenance from the property. Such a ruling simultaneously made her charitable grant to the Nanakpanth null and void, for Bhawani Singh was made heir to the house.Footnote 89
The court pandits’ rulings reveal the ways in which Anglo-Hindu law upheld the patriarchal Hindu joint family as a property-holding unit within which widows of the family could claim only a marginal status. Widows’ allied social institutions, like the Nanakpanthi sect, were not welcome to this family and its wealth. If the colonial courts and male affinal kin placed widows like Baidamu at the peripheries of the family, community support involving natal kin and sects who vied for shares in property allowed such women to push their causes further in the colonial courts.Footnote 90 Following the court's ruling, Baidamu contested their decision with the support of members of the Nanakpanthi sangat who were keen on regaining the rights to the house gifted to them. She challenged the court's decree by pointing to the deed of release between Gurdayal and Bhawani Singh's father. Furthermore, Baidamu argued that Bhawani Singh was a mere employee servant who performed services for Gurdayal on a wage basis. To strengthen the case, she reiterated that Bhawani Singh had been an interloper at Gurdayal's funeral. Each of these claims was refuted by Bhawani Singh in yet another petition in which he pointed again to Baidamu's transgressions with her deceased husband's agent and asserted his adoption and initiation into the sect by Gurdayal.Footnote 91 In that same petition, he complained against the members of the Nanakpanthi congregation for giving false witness against him in favour of Baidamu for the sake of the house. This volley of arguments between disputants confounded the legal process.
Nonplussed by this point, Duncan, the Resident at Banaras, decreed that the court had not investigated the case properly. Duncan raised questions on two counts. First, the pandits had referred to Bhawani Singh as Gurdayal's brother's son in their decree, whereas, in fact, he was Gurdayal's paternal uncle's son. The Resident asked the pandits whether this made a difference to the succession. Second, Duncan asked the pandits to ascertain if Gurdayal had indeed adopted Bhawani Singh and, if so, whether the adoption was valid. Duncan argued that as an uncle's son had no rights, especially owing to the passage of farkhati (deed of release) between them, the question of adoption alone would determine the case in Bhawani Singh's favour.Footnote 92
During this early colonial period, court officials’ and pandits’ deliberations upon relationships that determined inheritance and their efforts to ascertain the legality of those relationships according to the shastras impeded a speedy judgement. As the case moved into its fourth year in the colonial courts, Duncan, and by extension Ali Ibrahim Khan, struggled to bring it to a close. Ali Ibrahim Khan, subordinate to the Resident's authority, offered judgements that upheld the court's ruling made under Anglo-Hindu law by aligning arguments of local practice to it.Footnote 93 He supported Bhawani Singh's cause by arguing that since he did not claim the inheritance based on his biological father's relationship to the dead man, the question whether he was an uncle's son or brother's son was irrelevant. Instead, he argued, Bhawani Singh's claim lay in his becoming a Sikh under Gurdayal's aegis and by lighting the latter's funeral pyre. Furthermore, he justified Bhawani Singh's claim by pointing to his appointment as the manager of Gurdayal's shop.
In determining the basis for Bhawani Singh's rights to Gurdayal's property, court pandits, Duncan, and Ali Ibrahim Khan marked a distinct shift in the case from the initial judgements of the arbitrators’ council. As noted earlier, the council had taken Baidamu's rights to control over her deceased husband's property seriously. She was declared the owner of Gurdayal's business with rights to profits accruing from it. In addition, her rights to the house had gone unchallenged. Chosen by the disputing parties, members of the arbitrative council were a part of Bhawani Singh and Baidamu's community. Hence, they too would have had some engagements with the Nanakpanthi congregation and consequently been reluctant to acknowledge Bhawani Singh's claims on the house. The Nanakpanth's support of Baidamu, albeit contingent upon the gift of the house, had enabled her to rebuff Bhawani Singh's damning charges against her chastity. This is also why the arbitrators’ council had worked in Baidamu's favour as it brought the wider concerns of the community to bear on the case. Yet, when Baidamu sought further recompense in the colonial courts, she unwittingly compromised her own share in Gurdayal's property. From the court pandits’ ruling to Duncan's queries and, finally, to Ali Ibrahim Khan's ruling, the case became an exercise in the practice of Anglo-Hindu law where the parties concerned deliberated on the suitable legal basis for Bhawani Singh's succession to Gurdayal's property. Even though disputants and court officials debated over whether Bhawani Singh should inherit as an adopted son or as a consanguine male, the Hindu joint family remained a constant underlying reference point.
In such a scenario, when officials cited shastras and harnessed details of customary practice in support of Bhawani Singh, the claims of the widow Baidamu and the Nanakpanth hardly received any attention in the deliberation. This prompted the widow to ask how it was possible for Bhawani Singh to inherit the property since it had been decided by the court that he could claim the inheritance neither based upon relations of consanguinity (since they had separated through the farkhati) nor through adoption as it had not been proved in court.Footnote 94 She questioned how a ‘traveller or passenger’ (Bhawani Singh) who lit her husband's funeral pyre could become a legal heir, how this was supported by Hindu or Muslim law.Footnote 95 In stating her case thus, Baidamu called court officials out on their hypocrisy. While at each stage officials made a show of following due process, they were bent upon upholding the male agnate's claims all along.
On 25 June 1792, the Resident Duncan dispatched a letter to the Sikhs of Patna and Banaras bringing the matter to their attention. Duncan's decision to approach the Nanakpanthis of Patna was strategic. As the government servant Francis Buchanan noted during the early nineteenth century, Patna was the most prominent and esteemed seat of the Nanankpanthi sect.Footnote 96 In the letter, Duncan asked them to offer their opinion on the case, stating explicitly whether a man who was made a Sikh by a deceased distant relation, appointed as manager of his [the deceased male's] business, and who had lit the deceased's funeral pyre could be declared as the heir to his property at the expense of the deceased's widow. Even the judge at Patna was asked to intervene and requested to approach the head of the Nanakpanthis in Patna for his opinion. Duncan simultaneously asked the pandits in the Banaras Sanskrit College to ‘report thereon [sic] result according to the Shaster [sic]’. Footnote 97
Colonial inclinations to uphold the Hindu joint family as a primary property-holding unit in the Banaras courts had implications for communities at a transregional level. When Duncan sought to align inheritance based on customary practices of the Nanakpanth with the state's ruling under Anglo-Hindu law, he was bringing the former under the purview of colonial law. To be sure, Duncan did not ask the Nanakpanth at Patna to give their judgement according to the shastras. But I argue that in asking the Nanakpanth to decide without giving the details of the case, where questions had been raised about Gurdayal's having made Bhawani Singh a Sikh, the circumstances in which he lit the funeral pyre, and his status in Gurdayal's shop, Duncan sought to sway the decision in Bhawani Singh's favour, and by extension the colonial court's ruling.
By bringing the case to the notice of the Nanakpanth at Patna, Duncan apprised the Nanakpanth of the reach of the colonial state over its devotees. This was not new. A year prior to his writing to the Nanakpanth at Patna, Duncan had complained against a Shaiva sect of gosains (ascetics) to the governor general, stating that it, ‘like all other religious communities have generally affected a greater independence than mere lay subjects’ from the authority of the ‘temporal magistrate’.Footnote 98 To remedy such ‘independence’, under Duncan's supervision, the colonial state had busied itself in subordinating such sects to its rule of law. Baidamu and the Nanakpanth both lost out under such conditions.
The proceedings illustrate the messy processes through which Anglo-Hindu law was institutionalized in the eighteenth century. The colonial courts’ endeavours to secure the rights of males in property disputes were obstructed as practices of the Nanakpanthi laymen did not correspond to the shastras. Officials were thus compelled to examine the customary practices of the sect. Here, too, they faced further confusion as disputants began splitting hairs over differences between rites of initiation into the Nanakpanthi sect and those of adoption, between lay Sikhs and Hindus in the Nanakpanth, and between renunciants and lay members of the sect. However, in each instance, officials including the Hindu pandits, a Muslim judge at Banaras, and finally a colonial Resident deliberated over the ways in which the male affinal blood-related kinsman's rights could be proved. In seeking to do so, all of them upheld lay householder lineages headed by males as opposed to women and religious sects, who previously had a share in the family property.
Conclusion
During the late eighteenth century, the East India Company struggled to maintain its power and authority over the lucrative principality of Banaras. The rebellion of 1781 had threatened to compromise the Company's symbolic authority and its access to Banaras’ revenue. In the aftermath of the rebellion, Governor General Warren Hastings, who had just barely escaped Chait Singh's armies, introduced comprehensive judicial reforms to secure Banaras to the Company. Governing the intimate lives of colonized Indians through Anglo-Hindu law was an important component of these reforms.
Reading eighteenth-century inheritance disputes, this article has examined the ways in which the institutionalization of Anglo-Hindu law impacted widows’ relationships with their families, communities, and the state. It elaborated on the possibilities available to widows in the period before the entrenchment of colonial rule. Pre-colonial customary practices enabled widows to partake in property from affinal families. Some widows used their inheritance to establish independent businesses of their own; this could also become the point at which they became heads of a separate family comprising their daughters and sons, daughters-in-law and sons-in-law, and grandchildren. But customary practices were suffused with hierarchies of power, and only those widows who could harness the support of powerful sections of society could push their interests through. Widows’ cultivation of community relationships was central to this process. With or without power, widows ‘forum-shopped’ to further their causes, but when lacking in community support, they were resilient in compelling authorities to listen to them.
These practices informed the transition to colonial law. As widows and their kin brought disputes to the colonial courts, everyday community practices came to bear on colonial juridical procedures. They compelled the colonial state to rely on arbitrative assemblies, and to consider customary practice in the dispensation of justice. This was not entirely unproductive. As the Indian official Ali Ibrahim Khan recognized, entertaining arbitrative assemblies and customary practices in the colonial courts allowed the courts to ingratiate themselves in local society. Co-opting pre-colonial forms of justice dispensation in the institutionalization of Anglo-Hindu law was even more important considering the incommensurability to the everyday lives of colonized Indians of the abstract colonial judicial plans which, for instance, presumed the existence of a homogenous ‘Hindu’ community subject to the shastras where none existed.
Yet, as this article has demonstrated, colonial law was interventionist. Focusing specifically on widows, it has elaborated that Anglo-Hindu law reshaped the relationships of widows with their communities and family by impinging on their financial capacities to cultivate capital within their wider community. Familial and community structures also underwent shifts as the movement of capital within families and between family and community was realigned according to the contours of Anglo-Hindu law. The article has suggested that these histories 8 of women's shifting engagements with pre-colonial and early colonial states, communities, and families is central to understanding their position in the later colonial liberal society of the nineteenth and early twentieth centuries.
