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On the face of it, civil marriage represents both the most typical and most anodyne aspect of modern law. One might say that by instituting civil marriage, a bureaucratic, enumerative, and secularized state permits its subjects absolute individual choice of marital partners, and concurrently, by refusing to take into account the religious affiliation of any party, grants total freedom of religious faith. As such, it may be seen as a quintessentially modern phenomenon, connected through the adjective “civil” with other distinctively modern concepts such as civil society, all of which point to a notion of individual liberty, predicated upon a modern state guaranteeing the autonomy of large arenas of social life.
1 Anderson Olive, “The Incidence of Civil Marriage in Victorian England and Wales,” Past and Present 69 (Nov. 1965): 50–87, at 50.
2 Henriques H.S.Q., “Jewish Marriages and the English law,” Jewish Quarterly Review 20, 3 (1908): 391–449, at 400. Also see below.
3 Floude Roderick and Thane Pat, “Debate: The Incidence of Civil Marriage in Victorian England and Wales,” Past and Present 84 (Aug. 1979): 146–54; Anderson Olive, “The Incidence of Civil Marriage in Victorian England and Wales: A Rejoinder,” Past and Present 84 (Aug. 1979): 155–62.
4 Casanova José, “Rethinking Secularization,” Hedgehog Review 8, 1–2 (2006): 7–22, at 7. Here Casanova summarizes his larger and massively influential work, Public Religions in the Modern World (Chicago, 1997).
5 Asad Talal, Formations of the Secular: Christianity, Islam, Modernity (Stanford, 2003), 181–201. Asad has also pointed out that “institutional differentiation” means radically different policies in countries such as the United States and France. In “Responses,” in Scott David and Hirschkind Charles, eds., Powers of the Secular Modern: Talal Asad and His Interlocutors (Stanford, 2006), 207–10.
6 Asad Talal, “French Secularism and the “Islamic Veil Affair,'” Hedgehog Review 8, 1–2 (2006): 93–106, at 4. In my reading, a similar argument is made by Veena Das with respect to the British imperial state in India, in her “Secularism and the Argument from Nature,” in Scott and Hirschkind , eds., Powers of the Secular Modern, 93–112.
7 Nemes Robert, “The Uncivil Origins of Civil Marriage: Hungary,” in Clark Christopher and Kaiser Wolfram, eds., Culture Wars: Secular-Catholic Conflict in Nineteenth-Century Europe (Cambridge, 2003), 313–35.
8 There is an argument that by the nineteenth century, religious difference ceased to matter, or matter much, for European states, which became increasingly preoccupied with racial distinctions instead. See van der Veer Peter, Imperial Encounters: Religion and Modernity in India and Britain (Princeton, 2001), 22. But religion and race are not quite the mutually exclusive ontological categories that they are often taken to be. Not only is there is a clear genealogical connection between these two taxonomic systems, but there have been constant exchanges between them, especially in the context of European and European-imperial law from the eighteenth century until today. I have argued this in connection with a case in Calcutta in 1756; see Nandini Chatterjee, “Religious Change, Social Conflict and Legal Competition: The Emergence of Christian Personal Law in Colonial India,” Modern Asian Studies (doi:10.1017/S0026749X09990394 published online by Cambridge University Press, 21 April 2010). In my understanding, Nazi Germany's anti-miscegenation laws were the direct descendents of nineteenth-century Prussian laws aimed at discouraging “inappropriate” religious choices, that is, conversion to Judaism. Clark Christopher, “The Limits of the Confessional State: Conversions to Judaism in Prussia 1814–1843,” Past and Present 147 (May 1995): 159–79. One can detect the same conceptual contortions in the House of Lords' discovery (in Mandla [Seva Singh] and another v. Dowell Lee and others , 2 AC 548) that Sikhs were a “race” rather than a “religion,” as they had been deemed until then, a discovery that enabled them to extend protection under the Race Relations Act 1976 to Gurinder Singh Mandla, excluded from a private school for insisting on wearing his turban.
9 Madan T. N., “Whither Indian Secularism?” Modern Asian Studies 27, 3 (1993): 667–97; Nandy Ashish, “The Politics of Secularism and the Recovery of Religious Tolerance,” in Bhargava Rajeev, ed., Secularism and Its Critics (New Delhi, 1998), 321–44.
10 David Washbrook has most strongly proposed that British rule “traditionalized” India rather than the other way round. In “India, 1818–1860: The Two Faces of Colonialism,” in Porter Andrew, ed., Oxford History of the British Empire, vol. 3 (Oxford, 1999), 395–421. Most scholars subscribe to the view that British enthusiasm for reform and modernization wore off after the debacle of the Mutiny of 1857, and with the rising conviction in the incorrigibility of inferior races in Victorian Britain.
11 This has been argued for some time now, for example in Viswanathan Gauri, Masks of Conquest: Literary Studies and British Rule in India (London, 1990); Peter van der Veer, Imperial Encounters; and more recently by Jon Wilson in The Domination of Strangers: Modern Governance in Eastern India, 1780–1835 (Basingstoke, 2008). These scholars however define this co-emergent “modernity” in different ways. While van der Veer and Viswanathan point toward its “known” aspects, such as secularism, Wilson reverts to classical social theory in defining it as abstraction, of law, policy, and even people's self-perceptions, from the lived reality of social life. Also, Wilson's modernity is much more universal, affecting Indians and Britons alike, whereas Viswanathan and van der Veer have both argued for the continued existence of social and intellectual formations outside of modernity.
12 I am principally referring to Mody's Perveez “Love and the Law: Love-Marriage in Delhi,” Modern Asian Studies 36: 1 (2002): 223–56; re-stated in, “A Form of Marriage in Certain Cases,” in her The Intimate State: Love-Marriage and the Law in Delhi (London, 2008), 61–102; and Rochona Majumdar, Marriage and Modernity: Family Values in Colonial Bengal (Durham and London, 2009), 167–205. I will refer to earlier discussions of the law, presently.
13 Erroneously so, since the first law to permit civil marriage in India was passed in 1851, but was limited to marriages where at least one partner was Christian. I will discuss that law, below.
14 Minute by Henry Maine on the Bill to legalize marriages between certain Natives of India not professing the Christian religion, Government of India Legislative Proceedings 1868, 19 Sept., nos. 15–16, 277–82, P/436/55, Asia Pacific and Africa Collections, British Library.
15 Jones Kenneth W., Socio-Religious Reform Movements in British India, New Cambridge History of India, III, 1 (Cambridge, 1989).
16 Bayly C. A., “Rammohan Roy and the Advent of Constitutional Liberalism in India, 1800–30,” Modern Intellectual History 4, 1 (2007): 25–41.
17 Mody, “Love and the Law,” 223.
18 Ibid., 223–56 (re-stated in Mody, “A Form of Marriage,” 61–102).
19 Ibid., 62–64.
20 Ibid., 228, 230. Mody repeats the view that the primary reason for this legislation was to be found in a British modernization program for India, in The Intimate State, 80.
21 In general, Maine's identity as a liberal modernizer has long been discarded. Scholars have pointed out that while he postulated that all progressive societies had “hitherto” moved from status to contract, he thought that this trajectory was historically specific, and certainly did not predict nor recommend that all societies would embark upon the same journey. Burrow John W., “Henry Maine and Mid-Victorian Ideas of Progress,” in Diamond Alan, ed., The Victorian Achievement of Sir Henry Maine (Cambridge, 1991), 55–69. In fact, Maine's thoughts lent themselves to the ideology of imperial conservatism that characterized late Victorian colonial governance in India. See Clive Dewey, “The Influence of Sir Henry Maine on Agrarian Policy in India,” in ibid., 351–75. C. A. Bayly has also suggested that Maine-derived conservatism was particularly successful in India because it resonated with Indian nationalist conservatism at the end of the nineteenth century. C.A. Bayly, “Maine and Change in Nineteenth-Century India,” in ibid., 389–97. Also see Mantena Karuna, “The Crisis of Liberal Imperialism,” in Bell Duncan, ed., Victorian Visions of the Global Order: Empire and International Relations in Nineteenth-Century Political Thought (Cambridge, 2007), 113–35.
22 Mody, “Love and the Law,” 224–27.
23 Act III of 1872, s. 2, and Schedule II.
24 Mody, “Love and the Law,” 240–41.
25 Majumdar, Marriage and Modernity, 167–70.
26 Chatterjee Partha, The Nation and Its Fragments: Colonial and Postcolonial Histories, 2d ed. (New Delhi, 1995), 1–13.
27 Olive Anderson, “The Incidence of Civil Marriage,” 77, esp. n. 45.
28 The Travels of Dean Mahomet: An Eighteenth-Century Journey through India, Michael H. Fischer, ed. (Berkeley, 1997), 209.
29 Professor Fisher called my attention to the fact that the couple had to declare themselves members of the congregation. But he also agreed that there were pious Muslims who married Christians in church (personal communication, 15 Apr. 2008). One such person was Mir Hasan Ali, whose English wife later undertook an ethnography of Indian Muslim customs. Mrs. Ali Meer Hasan, Observations on the Mussulmans of India (London, 1832).
30 H.S.Q. Henriques, “Jewish Marriages and the English Law,” 400.
31 The irony was that while mixed marriages between Catholics and Protestants were prohibited in Ireland until 1792 under the penal laws, Din Muhammad, might have slipped through the net by belonging to neither category.
32 The provision for a private bill of divorce in Parliament, available since the Tudors, was for obvious reasons not a substantive reality for most people. Other causes, such as enforcing a marriage contract (rather than dissolving it) remained under ecclesiastical jurisdiction. For the working of ecclesiastical courts for matrimonial disputes prior to 1857, before the first civil courts for divorce were created, see Helmholz R. H., Marriage Litigation in Medieval England (London, 1974).
33 While “informal marriage,” which was not only outside the church but often no more than a verbal promise, was valid if made in the present tense, “per verba de presenti,” it was difficult to establish in dispute, and hence discouraged by the church. By the sixteenth century, the presence of priest began to be considered crucially important, but even so, verbal contracts remained legally enforceable until 1753. Ibid., 64–65.
34 6 and 7 Will. IV c. 85.
35 Floude Roderick and Thane Pat “Debate: The Incidence of Civil Marriage in Victorian England and Wales,” Past and Present 84 (Aug. 1979): 146–54, at 148–52.
36 Pearl David, “Muslim Marriages in English Law,” English Law Journal 30, 1 (1972): 120–43, at 130.
37 Act III of 1872 was not the first civil marriage law legislated by the British in India.
38 In particular see Daniel Wilson, Bishop of Calcutta and Metropolitan of India. See Second Report of the Commissioners Appointed to Enquire into the State and Operation of the Law of Marriage, Parliamentary Papers, House of Commons 1850 (1203), XX.363.
39 Once adultery was proved, the wronged husband could seek a private bill for divorce in the British Parliament, the only method for a complete divorce in England before 1857. Ecclesiastical courts could only offer separation from “bed and board,” divorce a mensa e thoro, although complete nullifications of marriage were available on grounds that the marriage did not ever exist.
40 Maclean v. Christall, Indian Decisions (Old Series), 17 vols. (Madras, 1912), v. 4, 69–83.
41 Clause 24, Act V of 1852. Later, Act V of 1865 superseded this law, providing for civil as well as church marriages, for Christians.
42 Throughout its proceedings, the Commission recognized the existence of a much larger pertinent issue, the legal regulation of Indian Christian marriages, but its final report declared such concerns beyond its competence.
43 For a history of the Indian Christian personal law, see Chatterjee, “Religious Change.”
44 By Clauses 7 and 12, Act V of 1852.
45 For the subsequent history of “Christian personal law” in India, see Chatterjee, “Religious Change.”
46 Among others, Jalal Ayesha, Self and Sovereignty: Individual and Community in South Asian Islam since 1850 (Lahore, 2001), 139–52.
47 It formally included contract until 1872, however.
48 In cases where the parties were of different religions, the laws of the defendant applied. This provision was a fruitful source of judicial confusion, leading, among other things, to the codification of two additional personal laws, the Parsi and the (Indian) Christian.
49 A retired Calcutta Supreme Court judge explained this to the Royal Society of Arts in 1941. Rankin G. C., “The Personal Law in British India,” Journal of the Royal Society of Arts 89 (May 1941): 426–42. J.D.M. Derrett explored the persistent complexities this produced in determining the applicable law of, among other things, inheritable property, in “Private International Law and Personal Laws (based on Duggamma versus Ganeshayya), International Comparative Law Quarterly 14: 4 (1965): 1370–75.
50 As Marc Galanter explains, the definition of “religious identity” is in reality a description of civil status, not of religious belief or social behavior. “Hinduism, Secularism and the Judiciary,” in Law and Society in Modern India (New Delhi, 1997), 237–58, at 241. Similarly, a person is assumed to be Muslim if his or her father is Muslim, unless he or she explicitly renounces the faith. Fyzee Asaf A. A., Outlines of Muhammadan Law, 4th ed. (New Delhi, 1999), 60–64.
51 In 1765, the East India Company defeated an Indian coalition, which included the Mughal emperor. The defeated emperor granted the Company the diwani, or revenue-collection rights for the suba or Mughal province of Bengal. Until 1772, the Company tried to let the tremendous duties of collecting information and taxes, as well as the dispensation of civil justice, all of which was encompassed within diwani, be administered by the Mughal officials in situ. In 1772, following a severe famine and near-bankruptcy of the Company, it was decided to take over the functions directly. Among others, see Marshall P. J., Bengal: The British Bridgehead (Cambridge, 1987), 70–92; Travers Robert, Ideology and Empire in Eighteenth-Century India: The British in Bengal (Cambridge, 2007), 118–23.
52 Derrett J.D.M., “The Administration of Hindu Law by the British,” Comparative Studies in Society and History 4, 1 (1961): 10–52, at 26.
53 Ibid., 32–34. Some important accounts of such translation projects, aimed at producing Hindu and Muslim law digests for the reference of British judges incapable of consulting the original sources are: Derrett J.D.M., Religion, Law and the State in India, 2d ed. (Delhi, 1999), 225–320; and Anderson Michael R., “Islamic Law and the Colonial Encounter,” in Robb Peter and Arnold David, eds., Institutions and Ideologies: A SOAS South Asia Reader (London, 1993), 165–85. Long after such digests became available, however, British judges sought to discover the law (not just clarify it) in difficult cases by posing questions to their Hindu or Muslim law officers. See, for example, the report of the case Gouree Pershaud Rai versus Musst Jymala, decided by the Sadr Diwani Adalat, Calcutta, in 1804. Indian Decisions (Old Series) (1912), vol. 4, 491–93. The posts of Hindu and Muslim law officers were officially abolished in 1864.
54 Derrett, “Administration of Hindu Law,” 34–37.
55 Travers, Ideology and Empire, 118–23.
56 Digests were compiled, however, which in the common law tradition were sources of principles, and less reliable than either precedent or statute. In any case, British judges and jurists constantly complained that the early law digests were vague, self-contradictory, and silent on the topics that they heard disputes over.
57 In recent times, scholars have sought to qualify Partha Chatterjee's formulation by highlighting the continued colonial legal intervention, at the invitation of Indian elites, in the most intimate spheres of Indian life. Kodoth Praveena, “Courting Legitimacy or Delegitimizing Custom? Sexuality, Sambandham, and Marriage Reform in Late-Nineteenth-Century Malabar,” Modern Asian Studies 35, 2 (2001): 349–84, at 355–56.
58 Mody, “Love and the Law,” 229.
59 For this reason, Sibnath Sastri, an important “radical” Brahmo, engendered the proposition that with the passing of the Special Marriage Act, the break between Hindus and Brahmos became complete. Sen Amiya, Hindu Revivalism in Bengal 1872–1905: Some Essays in Intepretation (Delhi, 1993), 135. As Sen points out, Sastri's wishful thinking was transmuted into a fact through its frequent repetition by future scholars.
60 Borthwick Meredith, Keshub Chandra Sen: A Search for Cultural Synthesis (Calcutta, 1977), 174–201; Kopf David, The Brahmo Samaj and the Shaping of the Modern Indian Mind (Princeton, 1979), 138–41.
61 Kopf, Brahmo Samaj, 103–5.
62 The absence of such a law preserving Hindu and Muslim marriages in South Africa, for example, led to the threat of their invalidation when the Cape Supreme Court ruled in 1913 that marriages conducted under the rules of a religion that permitted polygamy were invalid. Following Gandhi's satyagraha, Hindu, Muslim, and Parsi marriages were given express recognition by the Indian Relief Act, 1914. Huttenback R. A., “Indians in South Africa, 1860–1914: The British Imperial Philosophy on Trial,” English Historical Review 81 (Apr. 1966): 273–91.
63 “Papers Relating to the Bill to Legalize Marriages between Certain Natives of India not Professing the Christian Religion,” No. 12, India Bills Objects and Reasons, 1872, L/PJ/5/15, Asia Pacific and Africa Collections, British Library.
64 Minute by Henry Maine… (see n. 14 above).
65 This, then, should be a correction to a study of Abraham v. Abraham that has suggested the case represented British efforts to forcibly reinstate converts to Christianity within the Hindu community they had exited. As Chandra Mallampalli has rightly pointed out, there is no reason to assume that such converts wished to deprive themselves of inheritance under Hindu law in the first place. Gauri Vishwanathan, Outside the Fold: Conversion, Modernity and Belief (Princeton, 1998), 75–117; Mallampalli Chandra, Christians and Public Life in Colonial South India 1863–1937: Contending with Marginality (London, 2004), 21–80, especially with regard to inheritance laws, 38–58. This is equally true of Brahmos, and that should lead us to query the grouping of a large range of religious behavior as “conversion,” or a complete self-removal from one system of belief, practice, and sociality to another.
66 Smith K.J.M., “Stephen, Sir James Fitzjames, First Baronet (1829–1894),” Oxford Dictionary of National Biography (Oxford, 2004); online ed., May 2006, http://www.oxforddnb.com/view/article/26375, accessed 23 May 2010.
67 Srinivas M. N., Religion and Society among the Coorgs of South India (New Delhi, 2003 ).
68 For men, these were their father's sister's daughters, and mother's brother's daughters; for women, their father's sister's sons, and mother's brother's sons.
69 The schedule of prohibited relationships, provided by Keshub, represented the cultural specificity of upper-caste Hindu Bengali marriage practices.
70 Chief Commissioner Coorg to Sect. to the Council of the Governor General of India, 12 May 1869, in “Papers Relating to the Bill to Legalize Marriages….”
71 Dalmia Vasudha, The Nationalization of Hindu Traditions: Bharatendu Harischandra and Nineteenth-Century Banaras (Delhi, 1997), 64–82.
72 Memorandum of the Deputy Superintendent of the family domains of the Maharaja of Benares, 24 Dec. 1869, in “Papers Relating to the Bill to Legalize Marriages…,” No. 9.
73 Memorandum by Honorable Mr. M. J. Shaw Stewart, dated 27 Feb. 1869, forwarding petitions of Mr. Framjee Nesserwanjee Patel and Mr. Venayekrow Juganathjee Sunkersett, in “Papers Relating to the Bill to Legalize Marriages…,” No. 1.
74 See Mitra June Sharafi, “Bella's Case: Parsi Identity and the Law in Colonial Rangoon, Bombay and London, 1887–1925,” Ph.D. thesis, University of Princeton, 2006.
75 “A Bill to Legalize Marriages between Members of the Brahmo Samaja (as Amended by the Select Committee),” 27 Mar. 1871, in India Bills, Objects and Reasons, 1872, L/PJ/5/15, Asia Pacific and Africa Collections, British Library.
76 To the Viceroy, from members of the Brahma Samaja, Simla, in “Papers Relating to the Bill to Legalize Marriages…,” No. 14.
77 I find Mody's use of the term “not-community” to describe “love-marriage” couples interesting, except that it appears to assume the objective existence of “communities.” I take the view that “community” is a species of political argument, as well a manipulative category of legal governance.
78 Opinion of Babu Kali Prasanna Banarji, 1 Feb. 1872, in “Papers Relating to the Bill to Legalize Marriages…,” No. 18. Two days later, Kali Prasanna also warned that such marriages would be considered invalid by society.
79 Kopf, Brahmo Samaj, ch. 10 on Tagore.
80 Tagore Rabindranath, Gora, in Rabindra-rachanabali (Calcutta, 1964), vol. 6, 109–574. I am grateful to Professor Tanika Sarkar for alerting me to the crucial relevance of this text to a discussion of civil marriage laws in India.
81 Kopf, Brahmo Samaj, 132.
82 For Madhusudan's desperate resistance to a marriage arranged for him, see Murshid Ghulam, Ashar cholone bhuli (Calcutta, 1995), 42–44, 53–58.
83 In 1836, when Ardasir Wadia violated Parsi customs of monogamy by abandoning his first wife and marrying another woman whom he presumably found more companionable, the younger generation of Parsis prevented the Parsi panchayat from taking action against him. Maneck Susan Stiles, The Death of Ahriman: Culture, Identity and Theological Change among the Parsis of India (Bombay, 1997), 173–75.
84 On the efforts of such men to separate their personal earning from partible ancestral estates, see Washbrook David, “Law, State and Agrarian Society in Colonial India,” Modern Asian Studies 15, 3 (1981): 649–721, esp. 674, 700; Sreenivas Mytheli, “Conjugality and Capital: Gender, Families and Property under Colonial Law in India,” Journal of Asian Studies 63, 4 (2004): 937–60.
Acknowledgments: The earliest version of this article was presented at the annual conference of the Law and Society Association, in Berlin, July 2007. I am grateful to Tanika Sarkar for alerting me to the importance of Rabindranath Tagore's Gora as a key source for this article. I also thank the three anonymous CSSH referees for their meticulous and encouraging feedback, and David Akin for his fine editorial chiseling of this article.
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