Religious change, social conflict and legal competition: the emergence of Christian personal law in colonial India

Abstract

One of the most contentious political issues in postcolonial India is the unfulfilled project of a 'uniform civil code' which would override the existing 'personal laws' or religion-based laws of domestic relations, inheritance and religious institutions. If the personal laws are admitted to be preserved (if somewhat distorted) remnants of 'religious laws', then the legitimacy of state intervention is called into question, especially since the Indian state claims to be secular. This paper, by discussing the history of the lesser-known Christian personal law, demonstrates that this conundrum is of considerable heritage. From the earliest days of British imperial rule in India, the quest to establish a universal body of law conflicted with other legal principles which upheld difference: that of religion, as well as race. It was the historical role of Indian Christians to occasion legal dilemmas regarding the jurisdictions of British and 'native' law, and concurrently about the identity of people subject to those different laws. In trying to discover who the Indian Christians were, and what laws ought to apply to them, British judges had perforce to reflect on who the 'British' were, whilst also dealing with conflicting collective claims made by Hindus, Muslims, Parsis, and Christians themselves about their own identity and religious rights. The Indian Christian personal law was an unintended by-product of this process, a finding which throws light both on the dynamics of colonial legislation, and on the essentially modern nature of Indian personal laws.

She's Come Undone: Parsi Women's Property and Propriety under the Law

“…Apart from a few compelling works (Chatterjee ; Mody , ), what has received too little attention is one piece of family law legislation—the Special Marriage Act of 1954 (SMA)—that might be seen as a model for the UCC. The SMA provides for civil‐registered marriage and interreligious marriage.…”

“…This conclusion dissolved the entire purpose and context of civil marriage in India since the SMA of 1954 and the Indian Constitution. The 1954 version of the SMA is clear in allowing for marriage between parties of different religion with the very intent of protecting their natal religious identity, not forcing them to convert or renounce their natal religion (Agnes , ; Chatterjee ; Mody ). Civil marriage without renunciation of one's natal religion was one of the critical changes of the Special Marriage Act from its original 1872 version to 1954.…”

“…33Nandini Chatterjee () traces the debates between those that favor universal laws for all citizens and those that favor personal laws, dating from the 1730s, when colonial jurists were contending with the diverse application of laws within the British Empire.…”

South Asian Legal History

“…A rich scholarship now exists on the expression and contestation of religious community identities through personal law among Hindus (Denault 2009;Kasturi 2009;Newbigin 2013;Shodhan 2001;Sturman 2012;Subramanian 2010;2014, pp. 137-98), Muslims (De 2009;Jones 2012;Purohit 2012;Shodhan 2001;Stephens 2013Stephens , 2014a, Christians (Chatterjee 2010b(Chatterjee , 2011Mallampalli 2004Mallampalli , 2011, and Parsis (Sharafi 2007a(Sharafi , 2014. The history of the civil marriage option (through the Special Marriage Act) sits outside of personal law, but defines itself through community nonetheless (Chatterjee 2010a, Mody 2002.…”

Wedding Ceremony, Religion, and Tradition: The Shertok Family Debate, 1922

“…As a result, tension prevailed between the religious marriage ceremony and the new demand for civil marriage (Logan 2008;Vick 2010). This tension and other dilemmas that surrounded the issue of marriage were often seen as an inseparable part of nationalist revolutions (Sievens 2005), phenomena that were visible in many societies around the world (Chatterjee 2010).…”