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Widows, Family, Community, and the Formation of Anglo-Hindu Law in Eighteenth-Century India*

  • ROCHISHA NARAYAN (a1)
Abstract
Abstract

Late eighteenth-century colonial agrarian and judicial reforms had a direct impact on women from elite and non-elite backgrounds. Informed by British liberal ideologies and upper-caste Brahmanical norms, colonial policies marginalized women's access to, and control over, resources in the emergent political economy. In this article, I reconstruct histories of the ways in which Anglo-Hindu law compromised women's status as heirs, businesswomen, and members of society who wielded social capital with other community groups. Focusing on widows in Banaras 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. Colonial judicial plans being incommensurable to everyday life, the courts incorporated pre-colonial forms of dispute handling and maintained a flexible approach to the practice of colonial law under the supervision of an Indian magistrate for a period of time. These characteristics made the courts popular among local society in the Banaras region. However, British officials, insistent on applying abstract scriptural laws, aligned customary practice to the dictates of Anglo-Hindu law. This article shows that the narrow legal subject position available to widows under scriptural law reordered their relationships with family and community networks to their disadvantage.

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I am grateful to Indrani Chatterjee, Sumit Guha, Geraldine Forbes, Temma Kaplan, Juned Shaikh, and the anonymous reviewer for their comments on earlier drafts of this article. Thank you to colleagues from the Writing Across the Curriculum Professional Writing Group at William Paterson University and the audience at the South Asia Studies Council colloquium at Yale University for their comments.

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1 From the sixteenth century Nanakpanth was a popular religious sect in Punjab and northern India.

2 Chatterjee Indrani, Gender, Slavery and Law in Colonial India (New Delhi: Oxford University Press, 1999).

3 Sreenivas Mytheli, Wives, Widows, Concubines: The Conjugal Family Ideal in Colonial India (Bloomington: Indiana University Press, 2008); Sturman Rachel, The Government of Social Life in Colonial India: Liberalism, Religious Law and Women's Rights (New York: Cambridge University Press, 2012).

4 Sreenivas, Wives, Widows and Concubines, p. 48.

5 For elaboration on Mitakshara, see Rocher Ludo and Rocher Rosane, ‘Ownership by Birth: The Mitaksara Stand’, The Journal of Indian Philosophy, Vol. 29 (1–2), April 2001, pp. 241255.

6 Ibid., p. 250.

7 Ibid.

8 Ibid., p. 248.

9 Ibid., pp. 247–248.

10 Sreenivas, Wives, Widows and Concubines, p. 46.

11 Sturman, The Government of Social Life, pp. 110–124.

12 Sreenivas, Wives, Widows and Concubines, pp. 65–66.

13 Sturman, The Government of Social Life, pp. 24–25.

14 Ibid.

15 Ibid., p.110.

16 Ibid., p. 238.

17 Ibid., pp. 230–231.

18 Sarkar Tanika, Hindu Wife, Hindu Nation: Community, Religion and Cultural Nationalism (New Delhi: Permanent Black, 2001), pp. 226250; Sinha Mrinalini, Specters of Mother India: The Global Restructuring of an Empire (Durham: Duke University Press, 2006).

19 Prasad Nita Varma, ‘Remaking Her Family for the Judges: Hindu Widows and Property Rights in the Colonial Courts of North India, 1875–1911’, Journal of Colonialism and Colonial History, Vol. 14 (3), Winter 2013.

20 In the context of northeast India, Chatterjee has shown that pre-colonial structures of landholding enabled women to forge ties with monastic groups. See Chatterjee Indrani, Forgotten Friends: Monks, Marriages and Memories of North-East India (New Delhi: Oxford University Press, 2013), p. 11.

21 Rochisha Narayan, ‘Caste, Family and Politics in Northern India during the Eighteenth and Nineteenth Centuries’, unpublished PhD thesis, Rutgers University, New Brunswick, New Jersey, 2011, Chapter 3. See also Chatterjee, Forgotten Friends, pp. 98–105.

22 Rocher Rosane, ‘The Creation of Anglo-Hindu Law’, in Lubin Timothy, Davis Donald R., and Krishnan Jayanath (eds), Hinduism and Law: An Introduction (Cambridge: Cambridge University Press, 2010), p. 78.

23 Bourdieu Pierre, ‘The Forms of Capital’, in Richardson John G. (ed.), Handbook of Theory and Research for the Sociology of Education (New York: Greenwood, 1986), pp. 241258.

24 Mitra Sharafi has drawn attention to ‘microscopic acts of agency’ displayed by disputants during the period of high colonial rule who made use of their Eurasian networks to seek out jurisdictions they considered most favourable to them. See Sharafi Mitra, ‘The Marital Patchwork of Colonial South Asia: Forum Shopping from Britain to Baroda’, Law and History Review, Vol. 28 (4), November 2010, pp. 9791009.

25 Frederick Curwen, The Bulwuntnamah (translation of Tuhfa-i-Taza of Khair-ud-din Khan) (Allahabad: Northwestern Provinces Government Press, 1875).

26 See Uttar Pradesh Regional Archives Allahabad (hereafter UPRAA), Banaras Duncan Records (hereafter BDR), August 1792, Basta no. 11, Vol. 61, p. 300. As Sumit Guha has shown, state adjudication of disputes brought money into the ruling houses. See Sumit Guha, ‘The Family Feud as Political Resource in Eighteenth-Century India’, in Indrani Chatterjee, Unfamiliar Relations: Family and History in South Asia (New Brunswick, New Jersey: Rutgers University Press, 2004), pp. 88–89.

27 See UPRAA BDR, August 1792, Basta no. 11, Vol. 61, pp. 271–304. In his article on early modern states and sources of judicial authority, Sumit Guha has pointed to the ways in which litigants made ample use of the multiplicity of legal authorities available to them, moving from one juridical forum to another to appeal previous verdicts that they found dissatisfactory. Guha Sumit, ‘Wrongs and Rights in the Maratha Country: Antiquity, Custom and Power in Eighteenth-Century India’, in Anderson Michael R. and Guha Sumit (eds), Changing Concepts of Rights and Justice in South Asia (New Delhi: Oxford University Press, 1998), p. 15. These practices continued under the early colonial state and, indeed, well into the high colonial period. See Sharafi, ‘The Marital Patchwork of Colonial South Asia’, pp. 979–1009.

28 As Chatterjee has shown in the context of the matriarchs of the Bengal Nizamat, rulership was a ‘two-cornered’ affair involving the matriarchs and the male rulers. See Chatterjee, Gender, Slavery and Law, pp. 49–50.

29 See, for instance, reference to a widow named Dhanaut in UPRAA BDR, June 1790, Basta no. 7, Vol. 37, p. 147.

30 UPRAA BDR, August 1792, Basta no. 11, Vol. 61, p. 282.

31 Ibid., p. 255.

32 Ibid., p. 268.

33 Ibid., p. 265.

34 National Archives of India (hereafter NAI) Foreign and Political Department, Secret Department S 12 Nov. 81 (7), Year 1781.

35 Oldham Wilton, Historical and Statistical Memoir of the Ghazeepoor District: History of Ghazeepoor and the Benares Province, Part I (Allahabad: Government Press of North-Western Provinces, 1870), p. 4.

36 Bayly Christopher, Empire and Information: Intelligence Gathering and Social Communication in India, 1780–1870 (Cambridge: Cambridge University Press, 1996), p. 81.

37 Khan Ali Ibrahim, ‘On the Trial by Ordeal, among the Hindus’, in Supplemental Volumes to the Works of Sir William Jones Containing the Whole of the Asiatick Researches, Vol. 1 (London: G. G. and J. Robinson, 1801), pp. 172208.

38 Ibid.

39 Oldham, Historical and Statistical Memoir of the Ghazeepoor District, p. 5.

40 From the Nawab Ali Ibrahim Khan to the Resident, 22 March 1789, in UPRAA BDR, March 1789, Basta no. 4, Vol. 22, pp. 245–246.

41 Narayan, ‘Caste, Family and Politics’.

42 Ibid.

43 UPRAA BDR, March 1789, Basta no. 4, Vol. 22, pp. 245–247; and UPRAA BDR, April 1789, Basta no. 4, Vol. 23, pp. 319–329.

44 UPRAA Resident's Proceedings (hereafter RP), June 1792, Basta no. 34, Vol. 55, part II, pp. 520–534.

45 Ibid., p. 523. Bayly Christopher, Rulers, Townsmen and Bazaars: North Indian Society in the Age of British Expansion, 1770–1870 (Cambridge; New York: Cambridge University Press, 1983), p. 314. See also Cohn Bernard, An Anthropologist among the Historians and Other Essays (New Delhi: Oxford University Press, 1987), p. 332.

46 UPRAA RP, June 1792, Basta no. 34, Vol. 55, part II, p. 524.

47 Ibid., p. 525.

48 Ibid., pp. 528–531.

49 Ibid., p. 531.

50 Ibid., p. 533

51 Ibid., p. 534.

52 Ibid., p. 532.

53 UPRAA BDR, January 1792, Basta no. 9, Vol. 54, pp. 37–38 and 40–53; UPRAA RP, June 1792, Basta no. 32, Vol. 52, pp. 29–105; and UPRAA RP, June 1792, Basta no. 34, Vol. 55, part II, pp. 625–633.

54 UPRAA RP, January 1792, Basta no. 32, Vol. 52, pp. 79–85.

55 Ibid., pp. 83–84.

56 Ibid., pp. 89–90.

57 Ibid., pp. 46–47.

58 Ibid., pp. 57–58.

59 Ibid., p. 41.

60 UPRAA RP, January 1792, Basta no. 32, Vol. 52, p. 43.

61 Bayly, Rulers, Townsmen and Bazaars, p. 140.

62 Pinch William, Peasants and Monks in British India (Berkeley: University of California Press, 1996), p. 40.

63 Ibid.

64 UPRAA RP, January 1792, Basta no. 32, Vol. 52, pp. 69–73.

65 UPRAA RP, January 1792, Basta no. 32, Vol. 52, p. 53.

66 Ibid., p. 53.

67 Ibid.

68 Ibid., pp. 53–54.

69 Ibid., pp. 76–77.

70 Ibid., p. 29.

71 Ibid., pp. 29–30.

72 Ibid., p. 85.

73 Ibid., p. 103.

74 Ibid., p. 102.

75 UPRAA RP, August 1792, Basta no. 35, Vol. 58, p. 179.

76 UPRAA RP, January 1792, Basta no. 32, Vol. 52, pp. 84–85.

77 Ibid., pp. 76–77.

78 UPRAA RP, June 1792, Basta no. 34, Vol. 55, part II, p. 627.

79 UPRAA RP, January 1792, Basta no. 32, Vol. 52, p. 65.

80 Ibid., p. 54.

81 Ibid.

82 Ibid., p. 66.

83 Ibid., p. 67.

84 Ibid.

85 Ibid., pp. 85–86.

86 Ibid.

87 Ibid., p. 85.

88 Ibid.

89 Ibid., p. 87.

90 Ibid., pp. 103–104.

91 Ibid., pp. 96–104.

92 Ibid., p. 105.

93 UPRAA RP, June 1792, Basta no. 34, Vol. 55, part II, pp. 625–633.

94 Ibid., pp. 629–632.

95 Ibid., p. 631.

96 See excerpt from Francis Buchanan's observations of religious sects in the Gangetic region in Pinch, Peasants and Monks, p. 40.

97 UPRAA RP, June 1792, Basta no. 34, Vol. 55, part II, pp. 632–633.

98 UPRAA RP, September 1791, Basta no. 32, Vol. 48, p. 112. For more details, see Narayan, ‘Caste, Family and Politics’.

* I am grateful to Indrani Chatterjee, Sumit Guha, Geraldine Forbes, Temma Kaplan, Juned Shaikh, and the anonymous reviewer for their comments on earlier drafts of this article. Thank you to colleagues from the Writing Across the Curriculum Professional Writing Group at William Paterson University and the audience at the South Asia Studies Council colloquium at Yale University for their comments.

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Modern Asian Studies
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