(2004) JLP 49: 47-74

OFFICIAL POLICIES FOR (UN)OFFICIAL CUSTOMS:

THE HEGEMONIC TREATMENT OF HINDU DIVORCE CUSTOMS BY DOMINANT LEGAL DISCOURSES

Livia Holden

Abstract

This paper is a qualitative study based on long-term fieldwork in Madhya Pradesh. It explores and analyses Hindu customs of divorce and remarriage, focusing on actors’ agencies at the level both of customary jurisdictions and of official law courts in order to map the official policies of the dominant legal discourses in the multiple interpretative frames of their confirmation of, resistance to, fighting against and negotiation with customary matrimonial remedies. Through a transdisciplinary inquiry combining legal pluralism, feminist methods and collaborative approaches, this paper highlights the necessity of understanding, in a concerted construction of knowledge with the natives, the instances contradicting, even if not in open conflict with, the mainstream legal discourse of the sacramental and indissoluble Hindu marriage. Such a contextual knowledge is proposed as a privileged key of interpretation for assessing the influences and consequences of the official policies in the everyday legal praxis. This paper describes how customary divorce, as a practice allowing women to negotiate and make effective choices, even against the patriarchal instances of Hinduism, have been criticised, hindered, and marginalised, by both the traditionalist and progressivist policies in complete disregard of the local praxis. Ultimately, this paper suggests that in spite of the hegemony of the official legal discourses, the legal praxis in its constant transformation in adapting to the changing realities of the relationship between official and unofficial law, achieves a contextual equity and potentially carries scope for social change.