Vol. 12 No. 11 (November 2002)
GENDER, LAW, AND RESISTANCE IN INDIA by Erin P. Moore. Tucson:
University of Arizona Press, 2002. 205 pp. Paper $ 19.95. ISBN: 0-8165-2283-3.
Reviewed by Narendra Subramanian, Associate Professor, Department of Political
Science, McGill University; e-mail:
narendra.subramanian@mcgill.ca
This book offers an ethnographic account of gender relations and legal disputes
in a village in Rajasthan, northwestern India. The study is part of the old
anthropological tradition of village studies, and involved the author spending
considerable time in the chosen village over a period of two decades. A
substantial part of the narrative centers around disputes associated with an
unusually assertive woman who departed from many received norms of feminine
behavior by carrying on a long extra-marital affair with a man wealthier than
her husband, appropriating goods and property which would usually be controlled
by her affinal family, and building alternative resource and support networks.
Erin Moore discusses legal disputes concerning marriage, marital relations,
titles to property, and control over property, in informal village fora as well
as lower- level state courts. She links her discussion of these disputes and
their social context with debates about subaltern resistance to dominant social
institutions and norms, and the gendered nature of social and legal
institutions. Moore presents the study as one of "law's patriarchy" (p. 4) and
of resistance to it through "backstage domestic resistance as well as ... public
disputing at the state and local levels." (p. 26) These features of her analysis
differentiates the book from older styles of village studies.
Moore studies legal disputes as they emerge from social disputes in the village,
rather than taking court records as her point of departure. This is partly
inevitable when studying disputes considered by informal village panchayats
(gatherings of somewhat powerful village men which have varying relations with
the state courts and the police), as these fora do not keep elaborate case
records. But, it is also a methodological choice meant to better capture the
dynamics of local conflict, the diverse motivations of the crucial participants
in these conflicts, the ways in which some social conflicts lead to legal
disputes, and the choices women make in engaging with gender-unequal legal
institutions. Extremely detailed ethnography enables Moore to offer an
empathic understanding of the motivations of the crucial actors in the
narrative, motivations which are often rather different from the claims the
actors make in court. This helps the reader understand the reasons for the
panchayats' ambivalence about some disputes, the effects of panchayat meetings
on subsequent relations between disputants, the different responses of people in
the village to the disputes, and the infrequent reference of local disputes to
state courts. Moore's focus on the village and a few of its residents means that
her discussion of the broader context of village disputes patterns of
legislation and court judgement on family law, and aspects of post-colonial
state formation and state-society engagement in India remain rather brief in
this well-written and slim volume. Nevertheless, the book offers some useful
suggestions for scholars of the politics of law-making and legal
implementation.
The main character, Hunni, is married to a man who is an ineffective farmer and
economic agent, indecisive in many social interactions, prone to ill health, and
an unsatisfactory sexual partner. (Indeed, many in the village refer to the
husband as a weak man and a "man with a weak penis.") Partly for these reasons,
Hunni gets involved with a man whom she finds both more attractive and a more
valuable ally. She sometimes ejects her husband from their home at night to
make room for her lover, spends nights and at times weeks on end at her lover's
home, gets her younger sister married to her lover to cement their relationship
further, and spends periods living with her father. Besides, she moves jewels
she got from her husband's family, as well as wheat from the family's farms to
her lover's home, and later buys a plot of land along with her lover. The
affinal family is unable to constrain Hunni's departure from usual wifely roles
partly because of the lover's growing local power, the support which Hunni's
father sometimes offers her, and Hunni's husband's indecisiveness. While the
husband often complains about Hunni's extra-marital affair and her appropriation
of family resources, he hands Hunni the family's wheat at times, does not wish
to divorce her, requests Hunni's return when she leaves him periodically, and
frequently engages with her lover renting his tractor without paying rent and
accepting his unpaid labor on his small farm.
Various conflicts emerge in connection with Hunni's departures from received
models of behavior, sometimes leading to legal disputes. The first legal
dispute concerns Hunni's sister living with Hunni's lover although her marriage
had been arranged to another man (the "case of the `stolen' wife"); the second
pits Hunni against her husband and her affinal family over property control and
authority regarding marriage plans for Hunni's daughters; and the third involves
Hunni claiming maintenance payments from her husband after she leaves him
permanently. Village panchayats initially consider the first two disputes, and
refer to state courts only marginally. Although the third case is initially
brought to a state court, the state court refers it to a village panchayat.
Legislation concerning marriage and maintenance payments upon the separation of
spouses does not govern the village panchayats, which draw their verdicts on
disputes from an array of beliefs and customs regarding marriage, the mutual
duties and responsibilities of relatives, and the honor of families and
villages. Gender inequality is especially evident in the panchayats as women
are not among its decision makers, and even the women who re parties to disputes
are often represented by men. Panchayats attempt to enforce their judgements by
using different forms of local authority, with limited effect in some of these
cases.
The first dispute ends with the lineage of the "stolen" wife's husband giving up
its demand for the return of the wife in exchange for the lover compensating
them for the jewelry the wife received from her in-laws. The panchayat attempts
to end the second by demanding that Hunni end her extra-marital relationship,
abandon her economic links with her lover, accept the decisions of her affinal
family regarding her daughters' marriages in return for her brothers-in-law
helping fund the weddings, and bring her jewels and other resources back to the
affinal home. However, it is unable to enforce its decision because of Hunni's
defiance, the power of her lover, fissures in Hunni's affinal family, and
Hunni's father offering partial support to her decisions. The state court
rejects Hunni's claims to maintenance in the third dispute, and the panchayat
demands without effect that Hunni accept the authority of her affinal family.
Moore discusses the first two disputes in rich detail, and reflects the
intersection of a wide rangeof concerns in the disputes and in decision-making.
She highlights the different attitudes of men and women towards these
disputes men giving priority to the maintenance of family and village honor by
enforcing the affinal family's control, and women giving greater importance to
women fulfilling their duties, especially to care for children. Moore also
indicates many reasons why residents of her village rarely take family disputes
to state courts.
Moore's analysis could have benefitted from placing these disputes in the
context of trends in the village and the region, if not in other parts of
India. Her claim that her narrative indicates "the choices that she (Hunni) and
other rural north Indian women call upon in their daily lives" (p. 25) is at
odds with the many ways in which she shows Hunni's situation to be different
from that of most women in her village. A more systematic comparison of how
Hunni's choices differed from those of other women facing similar gendered
institutional constraints would have indicated the conditions under which women
may gain greater autonomy even if they do not clearly uphold alternative norms.
Moore takes the denial of Hunni's maintenance claims to be a result of
"connections among the men" in the judiciary and the village panchayat. She
briefly mentions two other maintenance cases which women in the village later
brought to state courts, leading to a positive though so far unimplemented
verdict in one case. The difference in the court verdicts may be a result of
Hunni's situation having been very different from that of most women demanding
maintenance from their husbands upon separation or divorce not only did she have
an open and long-lasting extra-marital relationship, she had appropriated
property which would usually have been controlled by her husband's family, and
her lover was a source of economic support for her. A detailed interview of the
judge who handled the case, and a comparison of the grounds on which maintenance
was denied Hunni with other court judgements both in favor of and against
maintenance payments for women might have shown how assessments of which parties
are morally in the right influence judges' verdicts.
Moore claims that "male ideology "codified" as village law" (p. 141) determined
the decisions of the panchayat, all of which involved demands that Hunni accept
the authority of her husband and his family in keeping with her "gendered
essence." While the panchayat prescribed the maintenance of the affinal family's
authority in the latter two disputes, it did not in the case of the "stolen
wife." This was partly because the panchayats recognized the relevance of
changing relations of social power in all these cases, and the dictates of power
did not always coincide with dominant visions of the appropriate roles of
spouses, parents and other kin. (It was also because there is some acceptance
of extra-judicial divorce and remarriage among the Meos, the group that Moore
studies). As village elders recognized the gaps between power and norms, as
well as the limits to their authority, they often resorted to recommending what
they considered appropriate behavior, rather than prescribing punishment.
Besides, the panchayat decisions Moore describes as well as others discussed in
the literature were reached through reference to a range of overlapping and not
entirely consistent norms, rather than being deduced from a prior "code" of
village law over which there was definite consensus. Moore describes the sense
among some villagers that panchayats are constrained by the increasing influence
of state courts and the villagers' increasing resort to state courts even to
resolve family disputes. This raises the question of whether panchayats make
the content of state law which in the case of the Meos would be the Muslim
family laws of India one of their points of reference in resolving disputes.
Moore's account suggests that this was not the case in her village.
While Moore studies her village intensively, her discussion of the broader
legal, social, and historical context has its flaws. For instance on page 43
alone, she claims that codified family laws governed India's religious groups
after decolonization, although the codification of India's family laws is far
from complete; that the Hindu law reforms of the 1950s gave women equal
inheritance rights, although these reforms only gave daughters equal rights in
their fathers' property while allowing joint-family coparcenaries (which usually
include only men) to control ancestral property; and that Indian rulers were
wary of "interference in the personal laws of the religious communities" from
the fourth century onwards, although personal laws varied as much across region
and sect as across religious group in colonial and pre-colonial India. Moore's
finding evidence of the existence of a "thirteenth-century Moghul queen" (p. 32)
three centuries prior to the beginning of the Mughal dynasty only underlines
further one's sense that her fine micro-level ethnography is not supplemented
with adequate documentary research, including the consultation of appropriate
secondary material.
Such legal ethnographies highlight the fact that the study of case judgements
alone does not show why legal disputes arise and how patterns of court judgement
influence social relations. They certainly reinforce my predisposition to
combine documentary research with ethnography. Some ethnographies of gender and
law place particular family disputes and their consequences more effectively
than this book does in the context of trends in legislation and patterns of
judgement in formal and informal courts. For instance, Mukhopadhyay (1998) did
so in her study of family law in eastern India, as did Mir-Hosseini (2000) in
her study of urban Iran and Morocco. However, as these studies dealt with a
much larger number of cases than Moore does, they did not discuss particular
cases with the kind of detail and empathy which characterize Moore's account.
REFERENCES CITED:
Mukhopadhyay, Maitrayee. 1998. LEGALLY DISPOSSESSED: GENDER, IDENTITY AND THE
PROCESS OF LAW. Calcutta: Stree Press.
Mir-Hosseini, Ziba. 2000. MARRIAGE ON TRIAL: A STUDY OF ISLAMIC FAMILY LAW.
London: I.B.Tauris.
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Copyright 2002 by the author, Narendra Subramanian.