University of California Press, 2015, pp. 280
Reviewed by Debarati Sen
Srimati Basu’s monograph, The Trouble with Marriage, explores how discourses of marriage and marriage-related disputes govern the lives of women and men in postcolonial India. Through a multi-sited ethnography of courtroom dynamics, while attending to the minutia of related legal infrastructure, Basu presents a meticulous study of how marriage and conjugality are reflected and constituted through law, litigation, and strategic uses of the legal in a deeply patriarchal society. This monograph is also an ethnography of state-society relationships seen from the vantage point of marriage, law, and gender. In the anthropological literature on gender and state, Basu’s monograph delves into the nuts and bolts of lived realities of law to demonstrate how state-making, gendered interpretation of law and use of legal pluralism are deeply intertwined. In her words, “accounts of marital discord serve as a diagnostic, as ‘trouble cases’ in the classic legal anthropological sense of revealing cultural frameworks” (3).
Every discord in marital life troubles the structures and representations of good citizens, subjects and a “harmonious” community that sustains hegemony of the state. The state, Basu, asserts, is disaggregated rather than cohesive. Along with law, it is experienced as both distant and intimate, benevolent and productive. Governing marriage and sexuality in multiple sites become one way in which the state tends to appear as a benevolent and overarching entity. Basu traces these layered processes through the legal ramifications that were instituted in wake of global feminist legal reforms, particularly the Indian women’s movement of the late 70’s and 80’s. Basu asks a key question: “Has the heavy emphasis on law as the instrument of achieving gender equity been effective? (3) Put simply, her answer is no. While women seek more legal help driving up the divorce rate, legal reforms, and the assemblage around family law (i.e. counselors, alternative dispute resolution venues, lawyers) brought along unanticipated changes. The unintended consequences were the formation of new kinds of subjectivities and imaginations around marriage and divorce. In a way legal reforms and structures led to the reiteration of societal gender/sexuality norms in creative ways. For example, Basu shows how rape laws were invoked by parents to interfere in their children’s marriage and partner choices. Or, alternate dispute resolution mechanisms are used to reconcile couples. Thus, the intention of the legal reforms got lost in the practice of law used to guard women’s sexualities or to subtly enact dominant patriarchal preferences of the state.
Basu’s ethnography takes the reader through labyrinths of legislative debates and interpretations of family legal practices in courts, and alternative dispute resolution venues in Dhaka, Kolkata and Mumbai with relative ease. The book highlights legislations or “construction of laws” that sought to give voice to women and lays bare gender ideologies undergirding them. It discusses the Muslim Dissolution of Marriage Act of 1939 (MDM), Hindu Code Bill Debates 949 and Family Courts Bill debates in 1984. Described as the “last progressive legislation pertaining to Muslim women,” MDM enabled Muslim women to seek divorce within judicial parameters. Basu notes that although the MDM bill was seen as a modernizing move to benefit Muslim women, the question of women’s economic rights remained conspicuously unaddressed. The MDM set the standard for all the subsequent reforms of personal law. Basu also shows that the economic rights of women were undermined in legal processes. Thus, the sacrosanct status of marriage survived despite the numerous feminist and progressive critiques of gender inequalities concerning the status of women.
In subsequent chapters, Basu demonstrates how laws unfold in family courts, which are semi-formal venues of dealing with divorce cases. Marital disputes and divorce cases were usually referred to such alternative venues because regular courts require lawyers and are expensive. At times women found these alternate venues more comfortable to express themselves. Therefore, Basu underscores that “law seems enabling but insufficient” (86). While these family courts are meant to facilitate divorce, they are premised on certain contradictory goals. These goals are justice without lawyers, efficiency in the legal bureaucracy, and divorce through reconciliation. There were inherent contradictions between these goals. These gaps lead to debates among the feminists regarding the effectiveness of family courts.
Basu’s monograph also highlights deep tensions between law and its application evident from judges’ moralistic attitudes about the effects of divorce on children’s well-being. Counselors’ engagements reflect the moral baseline when judging working women’s divorce decisions. Often progressive elements in codified family law, which are cited by litigants in family courts, are criticized because of their indifference to customary gender hierarchies. Basu upholds that the purpose of these courts i.e., efficient adjudication, is defeated because they are excessively invested in preserving marriage. The emphasis on conciliation also leads to formulating complex problems of domestic violence in the language of monetary compensation even when women litigants are disinterested in monetary compensation.
An interesting aspect of Basu’s meticulous ethnography is to underscore how family courts etch out a space separate from the formal world of law and its detrimental consequences. The judges are appointed by the courts and the procedures of cross-examination are similar to that of formal courts. Yet, litigants are discouraged from seeking formal legal help. Interestingly, on several occasions well-prepared women litigants who tried to cross-examine their partners in front of the judge were reproached. On the other hand, counselors shift between law and tradition to rationalize and uphold marriage and family over conjugality. Counselors, who are paralegals, advice litigant couples, but particularly women to bear the burden of fitting into conflict or violence-ridden environment in the family or the extended family.
Basu, thus, concludes that the life of the laws that seek to represent women in the legal framework of the nation-state (or feminist legal reform) is checkered. Right from their legislation to implementation in the concrete situations of adjudication, the laws and its agents reconstitute or reiterate patriarchal structures in different ways creating new subjectivities and desires subsequently upholding marriage and family. Throughout this study—located at the intersections of the legal, marital and the conjugal—Basu draws in readers to consider the significance of feminist engagements with law and reflect on its potentials and pitfalls. General readers, students and scholars interested in the questions of state-making, law, gender studies and South Asia will certainly benefit from reading this rich monograph written in engaging and precise prose.
Dr. Debarati Sen is an Associate Professor of Anthropology and Conflict Management, Kennesaw State University.