Bengali reformer’s tract against polygamy among upper castes holds lessons on legal pluralism

Prime Minister Narendra Modi is pressing for the speedy implementation of a Uniform Civil Code as envisioned by Directive Principle 44 of the Constitution, claiming a nation like India cannot thrive under “two laws”.

Critics were quick to point out that the prime minister’s call to realise the Uniform Civil Code may have less to do with a genuine commitment to secular law than with a concern to advance his own party’s electoral advantage.

Many in fact suspect the Bharatiya Janata Party is more than willing to stigmatise the religious customs of minority communities like the Muslims to reach such an end. When Modi works to evoke revulsion at customs like triple talaq or polygamy, for instance, does he demonstrate his willingness to trade on harmful stereotypes?

Such criticisms are not easily dismissed. The weaponising of one community’s customary practices by a party pledged to the supremacy of Hindutva is a terrifying thing. At the same time, women from across many religious communities have long sought, and continue to actively press for, genuine progress toward laws that would eradicate gender discrimination and redress the disempowerment of women in India.

Some do grant that the idea of the Uniform Civil Code has significant appeal in this regard, even if they are careful to stress that without proper implementation, the promulgation of laws banning practices like polygamy will inadvertently harm women in bigamous Muslim marriages.

There are alternatives to a one-size-fits-all code. Legal activists like Flavia Agnes argue that the way forward must lie in reforms from within particular communities to eliminate gender discrimination, and seem confident there is evidence of such progress emerging within Muslim leadership groups.

I have been watching these debates unfold while thinking about a translation I recently completed of a late-colonial polemic against the abuses of Kulin polygamy in Bengal.

Published by Ishwar Chandra Vidyasagar in 1871, Against High-Caste Polygamy makes the case that the customary practice of hypergamous marriages – “marrying up”, or to a man of higher caste-class status – distinctive to Bengal’s Brahmins and Kayasthas was not only invalid according to Hindu law, but was also morally bankrupt and socially destructive. Vidyasagar’s appeal was addressed to the British colonial government, which he called upon to enact legislation banning the practice of Kulin polygamy.

According to Vidyasagar’s analysis, Kulinism had by his day devolved into nothing less than a business in which women were exchanged for wealth in the heartless efforts of upwardly mobile families to achieve or maintain high clan status. Kulin women were always the losers, married to husbands with multiple wives and condemned to lives of isolation, suffering, and trauma. Vidyasagar argued there were no valid shastric grounds for such a customary practice. Quite apart from legal hermeneutics, he made a compelling appeal to the moral instincts of his fellow Bengalis to recognise the suffering of Kulin wives and widows under such a system.

At the time, many agreed with Vidyasagar that whatever Kulinism may once have represented, it had degenerated into a source of real social evil. That said, neither the British government nor Vidyasagar’s Bengali contemporaries were willing to pursue social change through colonial legislation in this manner. It would not be until 1955 that polygamy among Hindus was finally outlawed under the terms of the Hindu Code Bill, nowithstanding ongoing and considerable resistance from traditionalist groups like the Hindu Mahasabha.

I cannot help but ask whether Vidyasagar’s attack on Kulinism and his vision of some form of legislative remedy has anything to offer for the purposes of reflection on the current moment. The most relevant point of contact between then and now may be found in the way Vidyasagar frames his appeal. He pointedly sought only the targeted redress of one particular area of social harm, in relation to one religious community, in one region of India.

In fact, so focused is he on the very specific history and abuses of Kulinism among Bengalis with privileged caste status, that he only broaches the issue of Muslim polygamy at one point in the work. But that is not because of his myopia or bigotry. It is clear he treats the topic this way out of a respect for what we may think of as legal pluralism.

To see how this plays out in Against High-Caste Polygamy, it helps to know the work is structured around Vidyasagar’s response to seven key objections that might be made whenever talk turned to a possible ban on Kulin polygamy. It is when answering the seventh and last of these objections that he raises the issue of Muslim family law. Put simply, his concern is to address concerns around how his targeted denunciation of Kulin marriage customs – premised as it is on a set of customs distinctive to Bengal – might relate to broader questions of legal change in India.

In this context he is quick to emphasise that his appeal is not for a universal ban on polygamy. In fact, it is not even a call to ban polygamy among all Hindus. As he puts it, he has no desire to use this one instance as an “occasion to interfere” in the area of Muslim law. Nor, he says, does he have any desire to see the British Government “enact a law regarding marriage that would universally apply to the public of India”. In other words, his target is solely the pernicious Kulin marriage economy in Bengal.

Left unstated, but nonetheless implicit in this framing of his objectives, is Vidyasagar’s presumption that for progressive change to be viable within Muslim communities, it must emerge from within those communities. Unless or until that moment arrives, he is willing for that to be the case. As he puts it, “The Muslim community . . . practices polygamy; let them continue to do so. The petitioners have no objection to this.”

There is one further element of Vidyasagar’s discussion at this point that calls out for reflection. For all his apparent orientation toward an environment of legal pluralism, Vidyasagar’s decision to stay clear of the question of Muslim law evidently had its strategic purpose. He was writing just over a decade after the rebellion of 1857 and was well aware that British anxieties around Muslim resentment and the question of “disloyalty” remained high. He knew his appeal was directed to a government now all but unwilling to take up any reforms that might engender unrest.

Ever the canny strategist, at one point he explicitly reassures official readers that should legislation be passed on the issue of Kulin polygamy, it “need not upset the Muslim community in this region, nor the Hindu and Muslim communities in other regions of India.” Deference to legal plurality here takes a back seat to the task of persuading a nervous and reluctant government.

It is fascinating to watch as Vidyasagar charts his way through these waters, deferring to British anxieties at one point while shaming the British for their timidity when compared to the reforming zeal of earlier leaders like Governor-General William Bentinck. Thus, no sooner has he reassured the government that it need not fear social or political unrest upon enactment of a law banning Kulin polygamy, he reminds them that in an earlier era Bentinck had vowed to abolish sati even if it meant British rule would last but one day as a result.

Vidyasagar says to the British, where is your moral commitment today? Had the British so cravenly chosen to prioritise the preservation of ruling power over the need to foster the welfare of the Indian people? Had the government really fallen this far? Playing for advantage, he then reassures his readers, not to worry, “the English are not as stupid, incompetent, or weak as that”!

What can we take away from this colonial era push-and-pull between respect for the will of India’s religious communities and the felt need for aggressive governmental action in the name of justice and women’s rights? The times are so different, of course, Vidyasagar’s and ours. But does his 1871 tract offer any wisdom on how the long-cherished goals of secular governance can be balanced with the constitutional pledge to respect the freedom of religious expression?

Setting aside his savvy efforts to goad a reluctant government into action, can we say he defers to the integrity of Muslim personal laws only for strategic purposes? Or is it not the case that he truly had no interest in advancing a universal solution? Even when we recognise that he typically had little to say publicly about Muslim religious and social life, must we not take him at his word here when he says he has no interest in legislating Muslim family life? Writing in an age well before the framing of such guiding ideals as sarva dharma sama bhava, Vidyasagar nonetheless seems to have endorsed a vision of respect for religious diversity.

While there surely can be no model in Vidyasagar’s tract that would serve to guide current public debate on these matters, there may at least be three general values to abstract from Against High-Caste Polygamy.

One is simply Vidyasagar’s commitment to addressing gender injustice and violence against women. He wrote specifically about abuses to Hindu Kulin women, but one can scarcely believe his views on gender stopped at the boundaries of his community. The further advance of protections for women seems consistent with his overall vision.

The second take-away might simply be Vidyasagar’s acceptance of a plural legal landscape. While he articulates no general theory in this regard, and in fact never broaches the complicated legacy of personal law as developed under colonial rule, it is evident his appeals to the government rested on a rejection of any once-for-all solution.

The third take-away may be, finally, a cautionary note on how not to proceed. Clearly the days of the heroic – and privileged – male reformer are behind us. The space for leadership and debate must be expansive, open, and plural.

The excessive authority of pandits, ulema, sadhus, and priests must be tempered lest women once again are the losers. If nothing else, India’s commitment to secular democracy is only weakened to the degree that entrenched religious authority is given sole power to determine what is right and just.

Brian A Hatcher is Packard Professor of Theology at the Department of Religion, Tufts University. His latest book is Against High-Caste Polygamy (Oxford, 2023).