chapter  4
36 Pages

Custom and Law

The emerging local praxis on Hindu divorce shows that, within Hindu tradition,

there exist instances contradicting the mainstream models of Hindu marriage as

indissoluble and eternal. Not only is divorce accepted as a Hindu custom, but

remarriage with the possibility of the mutual choice between the spouses, as well as

the establishment of a marriage contract, seem to offer an escape from the rigidity

of the orthodox Brahmanic model of Hindu marriage. Notwithstanding the gender

inequality on which the dominant Hindu tradition is grounded, at the level of the

village, probably much more than among the Westernized urban middle-classes,

women can, in particular situations, negotiate and make choices concerning their

conjugal life. Their ability to act is based on a legal awareness that, shaped by the

contingent and changing circumstances of everyday life, appears to offer effective

remedies to correct some of the gender imbalances in Hindu tradition. Successful

argumentations in favour of Hindu divorce, we have seen, do not conflict with

Hindu tradition and are essentially elaborated within gendered worlds. In this

particular context, custom ensures a much greater legal certainty than both the

codified Hindu tradition and the much less exploited secular law. However, the

broad scope of custom that makes of it a fertile field for individual agencies,

potentially beneficial for women, leaves at the same time much room for their

patriarchal re-interpretation. The stories of Chapter 3 made even more urgent a

broader scrutiny of the reception and the efficacy of these practices within the larger

picture of the Indian legal system. I will continue with a gradual enlargement of

the scale of analysis, including the official discourses on Hindu divorce elaborated

in more official contexts at the level of the village of Piparsod and of the towns of

Shivpuri and Gwalior.