Read Online Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India by Narendra Subramanian - Free Book Online Page A
Authors: Narendra Subramanian
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matrimonial fault such as adultery, but shifted from the 1980s onward to a more compassionate approach that made the eligibility of women living apart from their husbands and ex-husbands for maintenance dependent only on their economic circumstances. 48 Once they made this shift, she said, the courts required spousal maintenance for women guilty of “occasional lapses of virtue,” but not to those living in adultery. Contrary to these claims, the majority of courts held since the early twentieth century that women who committed adultery, but did not live in adultery, were entitled to their husband’s support; these courts took living in adultery to be a more serious violation of a woman’s matrimonial obligations, and assumed that women who did so were likely to have their lover’s material support. In
Honamma v. Timannabhat
(1877) and
Parami Ramayya v. Mahadevi Shankarappa
(1909), the Bombay High Court decreed that adulterous women should receive bare maintenance from their husbands while living in the latter’s houses—but not maintenance in a separate residence, a right that it gave women whom their husbands superseded to marry someone else, not due to any matrimonial fault on their part. In the latter case, it interpreted classical Hindu law to hold that “a Hindu wife cannot be absolutely abandoned. If she is living an unchaste life, he [her husband] is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life.” 49 The same court interpreted the relevant provisions of criminal law similarly in
Fulchand Maganlal v. Unknown
(1928): “A single act of adultery does not necessarily amount to ‘living in adultery’ within the meaning of Clause (4) of Section 488 and will not justify a Magistrate in refusing maintenance.” 50 The majority of courts followed this interpretation thereafter. 51 Courts drew support for such decrees from
shastras
such as the
Yajnavalkya Smrti
, which recommended that the adulteress be “deprived of authority, unadorned, living on food barely sufficient to sustain herself, rebuked, sleeping on the floor, thus [her husband] shall make the unfaithful wife dwell in his house,” commentaries that expanded on such an understanding, and certain British legalprecedents. 52 It was only in a few cases in the first decades of the twentieth century that courts indicated special circumstances in which women who commit adultery, but are not living in adultery, could be denied maintenance from their husbands. 53
In considering petitions for judicial separation, divorce, and maintenance under the HMA and the SMA involving allegations of adultery, the courts did not require direct evidence “by way of photographs or of eye-witnesses who have seen actual adultery or . . . of detectives peeping through key-holes and deposing about adulterous intercourse,” as such evidence “is generally discredited when it is produced.” 54 Rather, since the early twentieth century, they inferred adultery from circumstantial evidence, such as the birth of children despite lack of contact between the spouses and hotel rooms shared or letters exchanged by the alleged lovers. 55 While adhering to these standards, courts became more reluctant from the 1970s onward to arrive at the conclusion that adultery had occurred based merely on evidence of closer interaction across gender lines, in response to the lowering of social barriers to interaction between men and women among various groups.
In some cases in the 1950s and the early 1960s, courts declared adultery if there was evidence that the parties had an “adulterous disposition” and the opportunity to engage in sexual intercourse. For instance, in
Mahalingam Pillai v. Amsavalli
(1956), the Madras High Court declared: “when . . . adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, together with comparatively slight circumstances showing
Honamma v. Timannabhat
(1877) and
Parami Ramayya v. Mahadevi Shankarappa
(1909), the Bombay High Court decreed that adulterous women should receive bare maintenance from their husbands while living in the latter’s houses—but not maintenance in a separate residence, a right that it gave women whom their husbands superseded to marry someone else, not due to any matrimonial fault on their part. In the latter case, it interpreted classical Hindu law to hold that “a Hindu wife cannot be absolutely abandoned. If she is living an unchaste life, he [her husband] is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life.” 49 The same court interpreted the relevant provisions of criminal law similarly in
Fulchand Maganlal v. Unknown
(1928): “A single act of adultery does not necessarily amount to ‘living in adultery’ within the meaning of Clause (4) of Section 488 and will not justify a Magistrate in refusing maintenance.” 50 The majority of courts followed this interpretation thereafter. 51 Courts drew support for such decrees from
shastras
such as the
Yajnavalkya Smrti
, which recommended that the adulteress be “deprived of authority, unadorned, living on food barely sufficient to sustain herself, rebuked, sleeping on the floor, thus [her husband] shall make the unfaithful wife dwell in his house,” commentaries that expanded on such an understanding, and certain British legalprecedents. 52 It was only in a few cases in the first decades of the twentieth century that courts indicated special circumstances in which women who commit adultery, but are not living in adultery, could be denied maintenance from their husbands. 53
In considering petitions for judicial separation, divorce, and maintenance under the HMA and the SMA involving allegations of adultery, the courts did not require direct evidence “by way of photographs or of eye-witnesses who have seen actual adultery or . . . of detectives peeping through key-holes and deposing about adulterous intercourse,” as such evidence “is generally discredited when it is produced.” 54 Rather, since the early twentieth century, they inferred adultery from circumstantial evidence, such as the birth of children despite lack of contact between the spouses and hotel rooms shared or letters exchanged by the alleged lovers. 55 While adhering to these standards, courts became more reluctant from the 1970s onward to arrive at the conclusion that adultery had occurred based merely on evidence of closer interaction across gender lines, in response to the lowering of social barriers to interaction between men and women among various groups.
In some cases in the 1950s and the early 1960s, courts declared adultery if there was evidence that the parties had an “adulterous disposition” and the opportunity to engage in sexual intercourse. For instance, in
Mahalingam Pillai v. Amsavalli
(1956), the Madras High Court declared: “when . . . adulterous disposition is shown to exist between the parties at the time of the alleged act, then mere opportunity, together with comparatively slight circumstances showing
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