Before the publication of Sharafi's Law and Identity in Colonial South Asia, little more than the broad outlines of Parsi legal history could be learned from available literature, most of which is to be found in the form of chapters in books dealing with Indian law and legal history more generally or in articles in academic journals (e.g., Agnes Reference Agnes2000; Jain Reference Jain2001; but see Manchanda Reference Manchanda1991). Sharafi's volume is therefore a welcome contribution to the literature, providing a well-documented account of how the small, Bombay-based community—followers of the Zoroastrian religion—engaged with the law between the late 1700s and 1947, the year of India's independence from Great Britain. From the mid-nineteenth century onward, a significant number of men from this generally well-to-do, urban-based group of merchants and early industrialists entered the interrelated professions of legal practitioner, judge, lawmaker, and writer of legal treatises. Over time, Parsis came to dominate those occupations, particularly in western India. Many attained prominence throughout all of India. At the same time, Parsis of both sexes were eagerly taking advantage of the facilities offered by a developing judicial system, settling increasing numbers of business and family disputes in the new courts and earning a reputation as one of the most litigious communities in British India.
In this essay I address some of the issues concerning women, gender, and the law that preoccupied the male leadership of the Parsi community during a period when similar issues were being dealt with by the leaders of other religious communities in India. There is already an abundant literature on the legal history of colonial India, much of it focusing on the various initiatives—taken initially by the British East India Company and later by Indian reformers—to enact legislation enhancing the legal rights of Indian women (e.g., Parashar Reference Parashar1992; Nair Reference Nair1996; Agnes Reference Agnes2000). These works provide a comprehensive account of the controversies that arose and the outcomes that resulted from reformers' attempts to ameliorate some of the legal and economic disadvantages under which women suffered within the reigning patriarchal social order. More recently, a number of historians of British India have begun analyzing the ideological and structural changes in the Indian family and in the domestic and public roles of women that were underway during this same period (e.g., Sreenivas Reference Sreenivas2008; Majumdar Reference Majumdar2009; Sturman Reference Sturman2012; Newbigin Reference Newbigin2013). It has thus become possible to discuss the Parsi experience within the larger context of India's century-and-a-half pre-Independence struggle for women's rights, but since the existing scholarship focuses mainly on developments within the majority Hindu community, it is on the latter that I will focus in the comparative portions of the discussion that follows.
The British East India Company began to establish political and economic control over India in the early eighteenth century and was soon faced with the task of designing a system by which to govern its South Asian inhabitants. Not surprisingly, it chose to set up a judicial system modeled after that of Great Britain. With regard to most legal matters, the Company decided that English laws would be applied, not only to their own countrymen living in India but also to the local populace. However, deeming it politically inadvisable to interfere with the latter's religious beliefs and practices, Governor Hastings decreed in 1772 that Hindus and Muslims would be governed in family matters by the rules contained in their respective sacred texts. They would not be allowed to administer these rules themselves, however. Disputes over inheritance, marriage, divorce, child custody, and the like were to be adjudicated in the new British-style courts, whose British judges would be advised, when necessary, by Hindu pandits and Muslim muftis learned in their respective religious laws. This system continued until 1858 when India came under the direct control of the British Crown, which decided a few years later that the services of these religiolegal experts were no longer needed. Thereafter, the courts relied on translations of the pertinent texts and on precedents set by the large body of case law that had accumulated since their establishment in the eighteenth century.
The Parsis, Christians, and Jews had been left out of the official policy of noninterference in “religious” family law. These communities' numbers were so small that the British may have felt that the political risk of abrogating their traditional personal laws was minimal (cf. Nair Reference Nair1996, 182). In the case of the Parsis, the new rulers may have believed that they had no religious laws or that any that had existed in the distant past had long ago been lost or fallen into disuse (Sharafi Reference Sharafi2014, 132). It therefore seemed reasonable to bring them under the aegis of English family law.
But, from the outset, Parsis objected to certain provisions of that body of law. As early as the 1830s, some began lobbying for a personal law code of their own, to be based not upon any religious text comparable to the Qur'an or Manusmriti, but upon norms and practices that had by then become widely accepted among Indian Zoroastrians, particularly those settled in and around the city of Bombay. For decades, community leaders petitioned the government for legislation that would reflect “their own vision of the Parsi family” (Sharafi Reference Sharafi2014, 128; Reference Sharafi, Stausberg and Vevaina2015).
A key issue for the Parsis was intestate inheritance. The wealthy among them had readily adopted the British practice of writing wills, but in their absence, the English law of primogeniture prevailed. This rule was contrary to the Parsi custom of dividing a man's estate equally among his sons and making provisions for his widow and unmarried daughters as well. Parsis also strongly objected to the English law of coverture, which merged a married woman's property with that of her husband, thereby denying her the ability to separately own, control, or dispose of it as she wished, something that Parsi women had long been able to do. In 1837, in response to longstanding Parsi demands, the Parsees Immovable Property Act (PIPA) was enacted, exempting Parsis from the rule of primogeniture but failing to address the issue of married women's property rights. It took almost thirty more years for Parsi leaders to persuade the Imperial Legislative Council to enact the Parsi Intestate Succession Act (PISA) and the Parsi Marriage and Divorce Act (PMDA) of 1865.
Under the PISA, a man's widow inherited a half and his daughters a quarter of the share of a son, and women were allowed full rights of disposal over their own property. The PMDA made bigamy an offense, although it had already been criminalized for all Indians except Hindus and Muslims by the 1860 Indian Penal Code (IPC). The PMDA also provided procedures by which a person of either sex could obtain a divorce on a number of fault grounds, though a husband could do so more easily than a wife. Most important, the Act provided for the establishment of a system of self-governing Parsi Matrimonial Courts, giving the community a degree of autonomy in settling its own marital disputes that was enjoyed by no other religious community in British India.
Seventy years later, another generation of Parsi leaders guided a new statute through the legislative process, the PDMA of 1936. This act equalized the grounds for divorce for husbands and wives and added new ones. It also removed the “prostitution exception,” a provision of the 1865 Act that excluded sexual relations with a prostitute from the definition of adultery. However, the concept of “grievous harm” that constituted one ground for divorce was defined in a way so difficult to prove that it was almost impossible, even for a severely abused woman, to extricate herself from an intolerable marital situation.
Sharafi notes that Parsi women themselves were not involved to any meaningful extent in lobbying for these legal reforms. Indeed, in her sources, female voices are little heard. Though there are a number of autobiographical accounts by prominent women of the community, none of them deal in any detail, if at all, with issues of women's legal rights (on Parsi women more generally, see Gould Reference Gould and Sharma1994; Luhrmann Reference Luhrmann1996; Rose Reference Rose, Stausberg and Vevaina2015). Parsi women's apparent silence during the 1930s campaign for a revised PMDA contrasts with the activism of several nonsectarian women's organizations (in which some individual Parsi women did indeed take part), which had begun already in the late nineteenth century to campaign for legislation to ameliorate the conditions of Indian women and girls (see, e.g., Forbes Reference Forbes1996, 64–120).
As time went on, the policy of noninterference in Hindu and Muslim religious and family matters came to be honored more in the breach than in the observance. In the early nineteenth century, certain Hindu customs that shocked British sensibilities were banned, including the upper-caste Hindu practice of burning widows on their husbands' funeral pyres, criminalized in 1829 by the Sati Regulation Act. Later, Indian (male) social reformers began pressing the government to pass laws against other practices harmful to women and young girls. Thus, the Hindu Widow Remarriage Act (HWRA) was enacted in 1856, in response to Indian reformist activism against the orthodox Hindu prohibition on widow remarriage. The plight of virgin child widows, forced to follow an abstemious, self-abnegating lifestyle as penitence for their alleged responsibility for their husbands' premature deaths, was the key impetus for the campaign that led to the act's passage (see Carroll Reference Carroll1983).
Child marriage itself also came under strong attack by reform-minded Indians. A long-running effort, pursued against the vociferous opposition of Hindu cultural nationalists, resulted in the eventual passage of the 1891 Age of Consent Act (ACA). Ironically, whereas prevailing opinion within the Parsi community opposed placing any curbs on child marriage, the campaign to raise the age of consent—which began in the 1880s—was spearheaded by the writings of a leading Parsi reformer, Behramji Malabari. Some of his opponents charged him with “unwarranted interference” in the religion of a community to which he did not belong—that is, Hinduism—against whose customs his and his followers' efforts were mainly directed (Sturman Reference Sturman2012, 184).
The ACA raised the age at which a female (of any religion) could legally consent to sexual relations from ten (as under the 1860 IPC) to twelve. Not until almost forty years later did the equally controversial Child Marriage Restraint Act of 1929 (CMRA) increase the age of consent to fourteen. By then, significant numbers of elite women—mostly Hindu but including a few prominent Parsis and Muslims—and the influential women's organizations to which they belonged were taking a major role in developing arguments against child marriage and lobbying politically for the act's passage (Forbes Reference Forbes1996, 83–90; Sarkar Reference Sarkar2000; Sinha Reference Sinha2006).
While in 1865 Parsi women had already obtained the right to own and control both their marriage gifts and any inherited wealth, it was not until 1937 that Hindu reformers succeeded in passing the Hindu Women's Right to Property Act, giving some of their women limited property rights. Those originally involved in drafting the bill wanted to give women the same property rights that men enjoyed. However, their plans were met with strong opposition from some Hindu members of the Legislative Assembly. The watered-down version that was finally passed gave widows only a limited life interest in their late husbands' estates—as long as they remained chaste and did not remarry. Daughters received no share at all. Nor did the Act allow a Hindu woman the right of disposal over gifts (stridhan) received from her parents at the time of her marriage. Although recognized in the Mitakshara school of Hindu law, this right had been diminished over half a century through judicial decisions by the British colonial courts and was not restored in the HWRPA (Agnes Reference Agnes2000, 46–52).
A number of other laws intended to benefit women were passed during British rule but specifically excluded Hindus (and Muslims) from their purview—for example, the ban on polygamy in the Indian Penal Code (IPC) and the Indian Divorce Act, which was applicable only to Christians. In 1939, the Dissolution of Muslim Marriages Act (DMMA), enacted by a group of Muslim religious scholars (see Masud Reference Masud, Masud, Messick and Powers1996), enabled a Muslim woman to divorce her husband on a number of fault grounds, but the right of a Muslim man to have more than one wife remains intact to the present day.
For Hindu women, the ban on bigamy, the right to divorce, and the right to a share of the deceased father's estate had to wait until after Independence, with the passage of the Hindu Marriage Act 1955 (HMA) and the Hindu Succession Act 1956 (HSA). Both have been amended more than once to further enhance women's legal entitlements, although critics have observed that unforeseen outcomes prejudicial to women's well-being have accompanied some of those changes in the law. The effectiveness of some of their provisions has also been much less salutary than the legislators who drafted them had hoped. For example, it is still not unusual for a Hindu man to have more than one wife, yet very few cases of bigamy are ever filed and a negligible number are successfully prosecuted. As for a Hindu woman's inheritance rights, more than one researcher has found that few women receive the share to which they are now entitled and those few who claim their rights risk harsh criticism and even ostracism from members of their family and their larger community (Agarwal Reference Agarwal1994; Basu Reference Basu1999). The same is true for Muslim women: while entitled under Islamic law to a defined share of a parent's estate, few actually receive it (see, e.g., Fazalbhoy Reference Fazalbhoy2005).
Two prominent themes recur in the recent historical literature on women, family, and the law in India. One is that many of the personal laws enacted for the ostensible purpose of benefiting women have had the side-effect of strengthening male control over property, wives, and children. As Newbigin observes—with reference to Hindu male reformers during British rule—“[w]hile they often framed their arguments in the language of women's rights and equality, [they] … sought to change Hindu personal law in order to secure stronger individual rights for men” (2009, 101). Thereby they created “particular [new] forms of patriarchal authority and gender inequality” (2009, 83).
Most of the legislative activity in which the Parsi male leadership was engaged during the colonial period was similarly justified in terms of improving women's legal status, particularly with respect to inheritance, control over property, marriage, and divorce. However, Sharafi introduces the caveat that these leaders were also constantly weighing the balance between their own self-interests as husbands and fathers and the “civilizing” mileage that they could gain by promoting women's rights (2014, 166). She gives the example that, whereas certain provisions of the laws that the male Parsi leaders lobbied for diminished or removed some of the gender-biased perquisites that they had been enjoying—such as the freedom to practice polygyny and carry on extramarital dalliances with prostitutes—their passage also strengthened patriarchal power over wives and children.
Opposition within the Parsi community to proposals for legislation against child marriage also reflects this dynamic. Sharafi links the objections raised against including a clause against child marriage in the 1865 PMDA to men's accustomed ability to arrange marriages for their young children. This had been an indispensable strategy for making and solidifying business and professional alliances. In the mid-1930s, by which time the CMRA was in effect and child marriage among the Parsis had, for that and other reasons, practically died out, fathers still wanted to be able to control the marriages of their offspring. However, the issue now was different: the growing prevalence of “love marriages,” many of them contracted by adolescents against their parents' wishes. Parsi men's concerns about losing control over their teenage children thus gave rise to an ultimately unsuccessful campaign to require parental consent for any marriage of a girl under eighteen or a boy under twenty-one years of age (Sharafi Reference Sharafi2014, 184–87).
A second recurring theme in the literature on women and the family in the late-nineteenth to the mid-twentieth centuries centers on the growing emphasis placed on the married couple, on companionate marriage, and on the ideal of the conjugal family. The latter was conceived of as a unit of a man, his wife, and their children, not necessarily entirely separate from the coparcenary joint family—to which a Hindu man acquired membership at birth—but occupying a very different place within it, especially with regard to control over women and over property. Sreenivas calls this family form “a site for the production of ‘new’ patriarchies,” as power shifted from older men (and women) as heads of three- or four-generation families owning all property in common, to younger men as husbands and fathers using their own earnings for the sole benefit of themselves and their immediate dependents (2008, 6–7; see also Walsh Reference Walsh2004; Majumdar Reference Majumdar2009; Sturman Reference Sturman2012).
One of the arguments for the enactment of the Hindu Gains of Learning Act of 1930 had been that it would improve the lot of widows by allowing them to inherit their deceased husbands' estates, rather than remaining dependent on and at the mercy of the elders of the coparcenary joint families into which they had married. The author of the original bill had also repeatedly stressed that its passage would benefit the community as a whole, by freeing up liquid assets for investment and facilitating the circulation of capital within the wider economy (Newbigin Reference Newbigin2013, 102–05). But its main purpose was actually to allow members of this class of nonagricultural, Western-educated Hindu men to keep for their own use their earnings from government employment, private professions, or business enterprise, rather than allowing them to be merged into joint family assets. One of the law's important outcomes was to make the women of these new conjugal families increasingly subservient to their husbands, groomed to occupy the role of the respectable “modern” wife within a new Indian middle-class order (see Newbigin Reference Newbigin2009, 92–93).
As far as the Parsi family was concerned, Sharafi describes the wealthier merchants of the community in the eighteenth and early nineteenth centuries as having only a “weak version” of the joint family. All members did not necessarily live under one roof, but they ate, worshipped, and traded together. After the father's death, all sons inherited equally. Some might then set up separate, economically independent households (2014, 143). In this way, as time went on, the conjugal family became the general norm within the community. Thus, by the time Hindu men were beginning to actively agitate for the right to retain for themselves their own “gains of learning,” legal issues around a man's right of disposal over his individual earnings had already become fairly well settled among the Parsis.
Among Hindus of the new middle classes, notwithstanding the increasing emphasis on “companionate marriage” within the neolocal conjugal family, parentally arranged marriages continued, as before, to be the norm. Often, such marriages joined two people who had never met or even seen one another before their wedding day. It was assumed—or at least hoped—that romantic love would develop between them once they began to live together as man and wife. However, premarital romantic attachments were severely frowned upon, bringing shame, not only upon the woman herself, but upon her entire family. So-called love marriages—marriages of personal choice entered into without the consent or sometimes even the knowledge of the couple's parents—were viewed with strong disapproval. Furthermore, they were thought to be fragile and unlikely to last. Similar attitudes persist to the present day, although the ways in which the marriages of educated offspring are arranged have undergone significant modifications in the intervening years (see, e.g., Donner Reference Donner2016).
The limited data available on Parsi marriage patterns in the pre-Independence period present a quite different picture. Arranged marriages—always within the community and very often between cousins or other close relatives—were, according to Sharafi, typical of the Parsi way of life in the past. However, at least by the beginning of the twentieth century, love marriages had become quite common and were no longer viewed with disapproval. Whereas Sharafi is unable to quantify this trend, findings from a quantitative and qualitative sociological study of Parsis in Bombay and its rural hinterland in the 1960s and 1970s are suggestive. Interviewing a sample of 1,133 ever-married Parsi men of all ages, Axelrod found that 34 percent of those born before 1906 had married for love and this percentage had increased markedly in each subsequent decadal birth cohort. Fifty-seven percent of men born between 1916 and 1925—most of whom are likely to have married before Indian Independence—had had a love marriage. A high of 74 percent was reached by those born during the decade of the 1940s (Axelrod Reference Axelrod1990, 409). Both married and unmarried men and women of the latter cohort expressed in interviews a strong disinclination for coresiding with their parents after marriage and indicated a preference for remaining single until they could find suitable and conveniently located accommodations in which to set up separate, neolocal conjugal family households. Axelrod accounts for this attitude in terms of the community's emulation of British ways in this and other spheres of life. Although they “vigorously retained their religion and distinctive form of dress … [they] embraced Western behaviours and values in other domains” (1990, 408; see also Axelrod Reference Axelrod1974).
Given the many social and cultural differences between Hindus and Parsis and the very different positions that they occupied vis-à-vis their British rulers, it is not surprising that their respective trajectories along the still-unfinished road to gender equality under the law were so divergent. There were, of course, some commonalities, notably in the ways in which their respective male reformist leaders managed to retain and in some cases expand the scope of their patriarchal power over the women whose legal rights they were engaged in securing. However, by the time India gained its independence from Great Britain, Parsi women—insofar as property ownership, inheritance rights, and the ability to legally exit an unhappy marriage were concerned—were well ahead of their Hindu sisters. Later, with the passage of the 1955 HMA and the 1956 HSA, the legal situation for Hindu women underwent drastic changes in each of these areas. Parsi personal law was also altered in some respects by amendments enacted after 1947 to achieve even greater equality of the genders.
There are many in India who are critical of the existing system of religion-specific personal laws and question the wisdom of retaining it. They propose to replace it with a so-called Uniform Civil Code (UCC) of family law that would be applicable to all Indians. In arguing for the abolition of the present pluralistic personal law system, its proponents point, in particular, to provisions of Muslim Personal Law (MPL) that allow men up to four wives and permit them to divorce at will, unilaterally and instantaneously. Claiming that these provisions of MPL put Muslim women at a severe disadvantage relative to women of other religions, depriving them of their fundamental, constitutional right to equality under the law, feminist women's organizations have, in the past, been strong advocates of such a move. However, since the enactment of a UCC has recently become a key demand of right-wing Hindu-chauvinist elements in the political arena with which feminists wish under no circumstances nor in any manner to be allied, they have, by and large, retreated on this point. Instead, they are now recommending that each religious community reform its own personal laws, “internally,” thus working piecemeal toward the eventual goal of gender equality for all.
Another motive behind this shift in approach by women's groups is that, whereas neither the Parsi nor the Christian community leadership has been particularly vocal on the question of a UCC, the Muslim religious leadership has adamantly opposed it. They view the idea of doing away with the personal law system as an unwarranted attack on their community's longstanding right to be governed in family matters by Islamic law. Given the realities of Indian politics, their position on the matter presents a practically insurmountable barrier to passing a UCC, at least in the foreseeable future.
Yet, even as the prospect of a UCC has dimmed, there has been a noticeable trend, over time, toward greater convergence—insofar as women's rights are concerned—in the personal laws of Hindus, Parsis, and Christians. India's vibrant women's movement has played a major role in fostering this development over the past several decades by proposing and seeing to the passage of a great deal of legislation—outside the sphere of personal law—to protect and enhance the rights and well-being of all Indian women, regardless of religious or community identity. But that is another story.
