This was published in the print edition of Economic and Political Weekly. (Issue August 13, 1994)
There is almost no principle introduced by the Hindu personal code which did not already exist somewhere in India as accepted law. On the other hand, there were several existing, much more liberal principles which were decimated by the Hindu Code. In their determination to put an end to the growth of custom, the reformers were putting an end to the essence of Hindu law; but they persisted in calling their codification ‘Hindu’.
IN the first decades of Indian independence, the codification and reform of the Hindu personal law was hailed as the symbol of the new government’s supposed commitment to the principles of gender equality and nondiscrimination enshrined in the constitution. The history of this legislation and its consequences over the years are in many ways a good example of the gap between governmental promise and performance, and the course taken by state-initiated social reform—a process that began with the establishment of British rule in large parts of India.
The attempt to codify Hindu law was begun in the late 18th century because the colonial rulers wanted to bring under their judicial purview aspects of the social and political life of diverse communities which all erstwhile rulers had never encroached upon. The establishment of British rule marked an unprecedented break from the past. Prior to that no rulers had sought to intervene in what were considered as the internal matters of the ‘jat’ or ‘biradari’ organisations of various communities, no matter how far-reaching the changes introduced at the top. For instance, during Mughal rule, the Islamic law explicitly recognised the traditional community-based institutions for resolving disputes. The Mughal court reserved to itself exclusive jurisdiction only in matters they considered crimes against the rulers, as well as in fiscal administration. Most family kinship disputes were not brought before Muslim officials. Rules for dispute resolution differed considerably from one caste to another and from region to region…