A Question of Sources

In a recent judgment dealing with the Domestic Violence Act, the Supreme Court, while dealing with the concept of stridhan, observed:

The next issue that arises for consideration is the issue of limitation. In the application preferred by the wife, she was claiming to get back her stridhan. Stridhan has been described as saudayika by Sir Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is as follows:- “First, take the case of property obtained by gift. Gifts of affectionate kindred, which are known by the name of saudayika stridhan, constitute a woman’s absolute property, which she has at all times independent power to alienate, and over which her husband has only a qualified right, namely, the right of use in times of distress.””

Gooroodas Banerjee was a 19th century jurist and judge of the Calcutta High Court. In the same book that the Supreme Court chose to quote with approval, he also wrote:

A woman is not regarded in Hindu law as an active party in marriage. In fact, she is hardly regarded as a party at all. Marriage is viewed as a gift of the bridge by her father or other guardian to the bridegroom: the bride, therefore, is regarded more as the subject of the gift than as a party to the transaction.” [pp. 45 – 46]

When dealing with a subject such as the law of marriage, it is not immediately obvious that an author’s views on one subject can be neatly segregated from his views on another (especially when both sets of views flow out of a particular conception of the nature of the marital relationship). There ought to be at least some explanation for why an author is cited as an authority on a subject, when at least a substantial part of his views are clearly out of sync with the founding principles of the Constitution as well as codified Hindu law (and, as Sudhir Chandra points out in Enslaved Daughters, p. 10, Goorodas Bannerjee’s views on marriage were contested even at the time).

The dangers of assuming expertise on a subject without even a cursory investigation, especially when the source is colonial, is neatly illustrated in the next paragraph of the same judgment. The Court notes:

“The said passage, be it noted, has been quoted Pratibha Rani v. Suraj Kumar and Another10. In the said case, the majority referred to the stridhan as described in “Hindu Law” by N.R. Raghavachariar and Maine’s “Treatise on Hindu Law”. The Court after analyzing the classical texts opined that:- ”It is, therefore, manifest that the position of stridhan of a Hindu married woman’s property during coverture is absolutely clear and unambiguous; she is the absolute owner of such property and can deal with it in any manner she likes — she may spend the whole of it or give it away at her own pleasure by gift or will without any reference to her husband.”

Here, the Court unthinkingly uses the term “coverture” as a referent of the marital relationship. As a matter of fact, “coverture” was a specific legal term referring to the subsumption of a woman’s legal status within that of her husband, upon marriage. Under 19th century common law, a woman lost her legal status upon marriage, and with it, the ability to hold property, to sue, etc. The system of coverture was overthrown after long suffragist struggles, and in India, of course, it is starkly at odds with the Constitutional scheme and the post-Independence codification of Hindu law.

In Pratibha Rani’s Case, the case referred to in the quotation, the Supreme Court uses the word “coverture” no less than eleven times (counting quotations). Gooroodas Bannerjee is quoted extensively, and throughout the judgment, the Court refers to the woman’s right to stridhan during “coverture”. In Krishna Bhattarjee (the judgment with which I began this post), the Court endorses Pratibha Rani, leading to an extremely odd situation where, in 2015, the Indian Supreme Court is using the term “coverture” to describe the marital relationship, and quoting as its source books authored during the colonial era.

All this indicates that there needs to be significantly greater attention paid to the question of sources. There is a volume of scholarship that deals with the impact of colonialism upon the legal system (see, e.g., Sudhir Chandra, Enslaved Daughters; Amrita Shodhan, A Question of Community; Anupama Rao, Caste Question, and many many more), and especially, about the manner in which “authoritative interpretations” of local laws came to be established. In view of how such interpretations were nested in, and drew from, a deeply unequal relationship, continuing to defer to colonial “authorities” in the post-Constitutional age without any further justification, is deeply problematic. There is no judgment to my knowledge, however, that has drawn upon historical scholarship to seriously ask questions about what sources ought to be taken as “authoritative” and, in particular, how Constitutional principles ought to guide such enquiries, given that the assumptions from which these authors operated were entirely at odds with the Constitution.

Hopefully, at some point, the Court will come around to asking these questions.

 

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1 Comment

Filed under Colonial Statutes, Constitutional interpretation

One response to “A Question of Sources

  1. Mangesh Patwardhan

    I think the question here is not so much about the sources. The problematic issue is the extremely selective way in which the “transformative” spirit of the Constitution (that you often talk about on this blog) has been implemented in the current legislation in India. This is untenable. Any transformation is, by definition, paradigm changing. The concept of “streedhan” was situated in and made sense only in the context of a particular conception of the nature of marriage and the role of women in it. While we have rejected that conception, we still hold on to the construct of “streedhan”. I see no reason to do so. Sure, a married woman should have property rights, but as an individual. She should also be subject to the same laws with respect to matters such as domestic violence, whether she is a victim or a perpetrator. This obviously is not the case. Unfortunately, academic scholars in India seem to sidestep this basic issue.

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