The Supreme Court, ruling on a property dispute involving the son of a couple obtaining divorce, stated on January 22nd that a marriage between a Hindu woman and a Muslim man is ‘irregular’. The bench comprising justices NV Ramana and MM Shantanagoudar upheld a previous ruling by the Kerala High Court, and ruled that while the child born of such a marriage is legitimate and therefore entitled to claim a share in their father’s property, the marriage as such is irregular and therefore does not entitle the wife to the husband’s property, merely dower. The judgement was based on Muslim Personal Law, in which consummation of a marriage such as the one in question means that the wife is entitled to a dower, and that the issue of the couple is legitimate.
With marriages falling under the domain of Personal laws in India, inter-religion marriages such as this one raise complex jurisprudential questions and judgements such as these set a precedent for future rulings. In upholding Muslim Personal law in naming the marriage ‘irregular’, the apex court has called for an inquiry into the question of legitimacy as it relates to marriages, and the state’s role in defining the same.
Legal legitimacy has always been a key issue for marriages and plays a definitive part in the contestations that take place between communities and the state around the question of which relationships and practices can be considered to be legitimate. It is often the case that the interests of the state and of dominant communities (or groups – in this case, men) complement each other when an appropriate middle ground is found with respect to marriage practices, but what often gets lost is the recognition of women as citizens and not in their capacities as wives to legitimate male citizens.
In this case, the women is seen as an individual with respect to her status as a Hindu wife to a Muslim man – doubly entrenching her subordination as a woman and as a woman who does not follow legitimate paths of heterosexual unions.
Legal legitimacy has always been a key issue for marriages and plays a definitive part in the contestations that take place between communities and the state around the question of which relationships and practices can be considered to be legitimate.
Through Personal laws, the state not only defines legitimacy with respect to which unions and bodies are allowed what pathways and rights, but also subsumes the question of women’s equality under religious freedom. Secularism as it is understood in India is radically different from its original conception – within the context of multiculturalism and pluralism, it is in practice an enabler for peaceful coexistence of religions in order to steer away from majoritarian tendencies. Personal laws are an instrument with which the state attempts to do that and avoid homogenisation of communities, but one cannot escape the deeply patriarchal roots and implications of these laws which often harm women more than they protect them.
In this case, as in many other cases, the implication that arises out of interrogating the legitimacy of an inter-religious marriage between two consenting adults is that leaving such a union uninterrupted by religious pronouncements implicates the state in promoting disobedient, non normative unions; that the agency and security of women is to be necessarily dissolved under the rubric of Personal laws; and that marriages brought into the public domain as such become a matter of public, and in this case national interest. In this way, marriage as an institution not only comes under public scrutiny, it enters the public sphere itself as signifier of a given society’s valourised values.
Also read: SC Says Protecting ‘Institution Of Marriage’ Is Above Marital Rape
State sanctions on who can marry whom, and on the allowed and disallowed possibilities within marriage when subjected to closer inspection, therefore, are not all that irrelevant to its prior social, economic and political functions. “The question of gender-appropriate behaviour”, says noted feminist scholar Nivedita Menon is “inextricably linked to legitimate procreative sexuality”, wherein sexuality is directed towards ensuring the continuation of caste, race and religion. This explains the violence unleashed upon even heterosexual consenting unions if their desire does not flow in “legitimate directions”.
In Seeing Like A Feminist, she argues that the family is a legally legitimate institution, recognised by the state if it consists of only a specific set of people related in specific ways; its function to “perpetuate particular forms of private property ownership and lineage – that is, patrilineal forms of property and descent, where property and the family ‘name’ flow from father to sons.”
With the marriage itself being deemed ‘irregular,’ it is women who face the consequences of entering into a socially irregular union.
The emergence of norms of what kind of families are legitimate is thus subject to historical processes which allow for certain hegemonic practices to prevail. Although Personal laws may seem like a response to the homogenising tendencies of a Uniform Civil Code, they in turn homogenise a multitude of practices which exist among and within different communities under the categories of Hindu, Muslim, Christian, or Parsi.
These laws define the processes of inheritance, conjugal unions and maintenance- all of which have stark social, political, and economic implications for married women. That the son was recognised as legitimate can be read as the state’s attempt to sate paternal anxieties by allowing patrilineal traditions of property inheritance, which in turn reinforce the privileging of patrilineality as a means of keeping economic resources and mobility firmly in the control of men.
Also read: When The Personal Is Political: Inequality Within Marriage
With the marriage itself being deemed ‘irregular,’ however, it is women who face the consequences of entering into a socially irregular union – the husband gets away with paying a paltry dower but is in firm possession of all material assets. Judgements such as these must therefore be examined not just in terms of their problematic implications through a secular lens, but also for their concealed gendered implications that can have extremely damaging effects.
Featured Image Source: The Hindu