Escaping the Grip of Personal Law in Colonial India: Proving Custom, Negotiating Hindu-ness

Abstract

Postcolonial perspectives on India's past have tended to focus on representations, which served the purpose of colonial domination. The view, for instance, that Indian society is fundamentally constituted by caste or religion legitimated the supposedly secular or neutral system of governance introduced by the British. Building upon Edward Said's Orientalism (1978), scholars have suggested that some of our most widely held assumptions about Indian society were more rooted in an imperial worldview than in real social experiences of Indians. The attempt of colonial administrators to understand and govern India through the study of ancient texts formed the basis of an Indian variety of Orientalism. How colonial courts deployed this text-based knowledge in relation to the actual practices of religious “communities” is the central focus of this essay.

Personal Laws: Undetermined Norms and Undetermined Concept?

“…4-5). 31 Mallampalli (2010) shows how the proof of one's customs could be used in order to escape to personal law in the first decades of colonization, before being abandoned for more rigid rules after 1860. 32 Bonnan (1999).…”

“An Unqualified Human Good”? On Rule of Law, Globalization, and Imperialism

“…One of the most significant may be concern over the theoretical appropriateness or material relevance of a distinction that is drawn throughout this article between formal and informal or customary law. Within the colonial legal history literature, scholars have come increasingly to soften and downplay notions of a strict formal versus customary law divide, being inclined instead to emphasize both the instability of custom as law and the deep and mutually constitutive relationship between so-called custom and legal politics (Mallampalli 2010). This is not to say the distinction is entirely facile, however.…”

Of Marriage, Divorce and Criminalisation

“…The colonial imprint that the personal law regime bears can be traced back to the transformation of the customary rules of numerous communities into religion-based 'personal laws' of two distinct religious groups: Hindus and Muslims. Religion was used to classify communities in matters governing their marriage, divorce, custody and inheritance practices (Derrett 1968;Kugle 2001;Mallampalli 2010;Menski 2003;Williams 2006). The core assumption was that Hindus and Muslims are homogeneous groups adhering to their religion-specific laws.…”