“Coniugality, Law, and State: Inheritance Rights as Pivot Control in Northern India”

Chowdhry, P., 2005, “Coniugality, Law, and State: Inheritance Rights as Pivot Control in Northern India”, in Basu, S. (ed), Dowry and Inheritance, London and New York: Zed Books.

 

This paper by Prem Chowdry focuses on the relationship between inheritance rights of women and widow remarriage, and the role which the state has played in controlling and regulating it, both in colonial and post-colonial periods. The main argument, as stated by the author, is that “the custom of widow remarriage, as practiced in this region [the  Haryana-Punjab region object of the study] in its karewa or levirate form, remains in a decisive way the most effective device to prevent women exercising their right in inheritance as widows” (p. 171).

This study, though dealing exclusively with Hindu practises, is particularly interesting for us for the methods it applies and its use of historical and legal sources. In fact, it manages to delineate really  pregnant connections between customary law, state law and governance policies through the analysis of official historical documents, law case studies, and ethnographic data.

The popularity of karewa among the majority of landowning classes emanated mainly out of the need to retain landed property within the family. The main reason for making the marriage arrangements within the family was to transfer control of the deceased husband’s land from the widow (who succeeded to a life estate in the absence of male lineal descendants) to his brother or to a patrilineal family member, because a widow who remarried lost all her rights to property, even if she married her husband’s brother. Colonial state, which selectively adopted customs and made them legally enforceable, was blatant in its attempt to encourage widow remarriage through administrative and judicial agencies. At the lower judicial level, colonial discourse was almost exclusively in favour of women’s in-laws, and only very rarely women could see recognised their rights to property [Chowdhry reports the words of a English official stating that “women are not qualified to manage their land themselves” in order to justify attribution of property to deceased husbands’ relatives rather than to widows. I quote this sentence because it is strikingly similar to argument number 7 in the reviewed paper by Kishvar and Manita at page 16]. As the author interestingly shows, British officials were quite aware of the fact that custom of karewa snatched away whatever little right of possession women in Haryana-Punjab had come to acquire as widows.

In post-colonial period, the 1956 Hindu Succession Act changed radically succession laws. The earlier limited ownership right afforded to the widows was converted into full and absolute ownership. As the author interestingly points out “cultural and ideological constraints severely militate against a woman claiming her inheritance as a daughter and a sister. Consequently the right to inherit land as a widow, to a large extent, is almost the only way in which a woman can inherit land directly. As a direct and absolute beneficiary, it is the widow, rather than the daughter or sister, who emerges as a major threat in the post-colonial situation”.

The author reports a series of court cases – either brought by male collaterals challenging the rights of widow on a variety of grounds, or by widows challenging the right of the male collateral over deceased husband’s property – all decreed in favour of widows on the basis both of traditional customary rights and of the 1956 act. The effect of this trend – together with that of policies implemented in favour of “war widows”, or widows of those who died in active military service, who received a large sum as compensation and were entitled to numerous benefits – was to increase the pressure upon widows to enter into a levirate marriage and led paradoxically to the strengthening of the karewa practice in the post-colonial period. The analysis of the different strategies adopted by male collaterals to force a woman into a levirate marriage (such as boycotting widow remarriages with men external to deceased husband’s family to the point of interrupting ceremonies even against caste panchayat decisions) shows interestingly how “custom, law and the state have all combined successfully to regulate conjugality in safeguarding the patrilineal inheritance interests in vastly different socio-legal conditions prevalent under the colonial and post-colonial situations” (p. 188).


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