Construction of Gender Identity: Women, the State and Personal Laws in India

This thesis investigates gender construction in the personal laws in India. The personal laws are family laws which are applicable to people principally on the grounds of their religion. This investigation focuses on the personal law of Hindu and Muslim communities. The personal laws, which were colonial constructions in the 18th and 19th centuries, privileged scriptures, equated tradition with scriptures and made this the basis for the laws. This favoured the rise of identity definitions of putative Muslim and Hindu groups, making gender relations the site on which group identities were forged and state power articulated. This thesis is in three parts. In Section I, I present the formulation of the presently applicable personal laws by Indian legislators in the 1930s - 50s. Although a key theme of the legislative debates was the improvement in women's status, the reforms fell seriously short of establishing gender parity in the family. I find that the main concern of the debates and consequent legislations were to establish Hindu and Muslim identity in the state domain. Gender relations in the family were the central constitutive element in the construction of these identities. The asymmetry in gender relations was thus obscured by these discourses of identity. In Section II, I present the experiences of Hindu and Muslim women litigating for rights to family property via the personal laws in specific social relations, as wives, daughters/sisters and widows. I find that in the context of litigation on marital property and maintenance adjudication constructs wives as ideological and legal dependents subordinating thereby wife statutes and entitlements to husband statuses. Further, Muslim wive's entitlements are being redefined through adjudication by homogenizing Muslim identity through the constitution of Muslim marriage as inferior, thus disempowering women. In the context of litigation on ancestral property claims made by female heirs, both Hindu and Muslim, are subject to trials of personhood in which gender and kinship ideologies are critically implicated and these then serve to hierarchies men's claims over those of women's claims to property. Thus as subordinates in the family Hindu and Muslim women, despite differing personal laws, share a common fate. In Section III, I examine, first, the way women's resistance constructs the state, and second, what the constitutional promise of an Uniform Civil Code to replace the system of personal laws means in terms of gender equality. I find that the women's movement construction of the state as the protector of civil liberties is difficult to sustain when the violation of women's rights happens in the family because the state protects the family as a site and ideology. My respondents construct the state as protector by seeking to invert the logic of dependence to their own account thereby reproducing and sustaining domination even at the point of resistance. Second, the meaning of the UCC derives from a discourse of 'national unity' and not gender equality naturalising thereby a Hindu, property-owning, masculinist hegemony which would annihilate minority identity. Women's interests can never be guaranteed in this dispensation.