Interpretations of Justice: Conceptions of Family and Gender Justice at a Nari Adalat (Women’s Court) in South India
| Date | 01 December 2019 |
| DOI | 10.1177/0964663918815943 |
| Author | Sarah Potthoff |
| Published date | 01 December 2019 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(6) 755–773
Interpretations of Justice:
ª The Author(s) 2018
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Conceptions of Family
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DOI: 10.1177/0964663918815943
and Gender Justice
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at a Nari Adalat (Women’s
Court) in South India
Sarah Potthoff
Ruhr-University Bochum, Germany
Abstract
This article is a socio-legal study situated at the intersection of legal anthropology,
sociology of law, and gender studies. It addresses interpretations of family and gender
justice by analyzing a family dispute brought before a women’s court in the rural
northern part of Karnataka, a state in South India. The analysis is based on ethnographic
material collected during a 7-month fieldwork stay. The trials presented provide insight
into the potential and the limitations of the women’s court and into the structural
conditions upon which success in this comparatively new legal arena depends. In doing
so, the article identifies the power structures and obstacles within and beyond the family
that restrict women in their quest for justice. The article presents the argument that the
family itself plays an ambivalent role: It is a constraint, but can also support the woman’s
attempt to increase family and gender justice in family conflicts. To understand this
ambivalence properly, one must attend to what family and gender justice mean in any
given context and how particular family relations shape this concept beyond a normative
liberal reading.
Keywords
Contemporary India, family and gender justice, family conflicts, feminism, legal plurality,
nari adalat (women’s court)
Corresponding author:
Sarah Potthoff, Faculty of Social Science, Section Methods in the Social Sciences, Ruhr-University Bochum,
Universita¨tsstraße 150, Bochum 44801, German.
Email: sarah.potthoff@rub.de
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Social & Legal Studies 28(6)
Introduction
This article uses an empirically based case study of a nari adalat (women’s court) in
South India to examine gender and family justice. Specifically, the article asks whether,
and in what ways, does the nari adalat increase family and gender justice for women.
Addressing this question requires an understanding of the interpretations of family and
gender justice that are being envisioned and applied by the respective plaintiffs and the
court itself. The article seeks an answer by investigating one chosen family conflict
negotiated within a nari adalat over a period of 4 months. Examining the negotiations
as they proceed in this selected case and, in particular, the way in which these negoti-
ations are embedded in wider networks and institutional relationships enables us to
understand just which interpretations of family and gender justice are being envisioned
and applied by the respective plaintiffs and the court itself.
But then why is it relevant to discuss the nari adalat and the way it provides justice for
women? Over many years, in debates about gender equality and gender justice in India,
feminists and women activists put the blame on either the so-called traditional values and
patriarchy – particularly as embodied in societal legal forums – or the state’s inability to
implement its laws on discrimination against women (Kapur, 2012: 334ff). The hopes of
feminists and women activists to increase gender justice in India, as well as worldwide,
have focused on woman-friendly changes in legislation and the strengthening of the state
legal system; however, they have belied the existing and even worsening present dis-
crimination against women in India and worldwide (Turquet, 2011; UNRISD, 2005).
The feminist or activist position is based strongly on a liberal faith in state institutions
and the rule of law and neglects non-state legal structures (Cornwall and Molyneux,
2008; Hodgson, 2017; Sunder Rajan, 2003: 31ff) and ‘the realities of the individual and
all her attendant characteristics’. (Patel, 2008: 84). The present article criticizes this
liberal feminist and state-centered approach as falling short of understanding how
women’s lives are regulated. To better understand how women’s lives are regulated,
this article proposes that it is crucial to look beyond the analyses of only the state-run
legal frameworks that the large debate on gender and law has suggested are important.
The societal legal structures must be examined – including the family dynamics and the
power relations of which the individual woman is a part. This approach is augmented by
the fact that, in India, the state-run legal system is barely affordable or accessible for the
majority of the people who are living in poverty (Chowdhry, 2004: 32ff; Vatuk, 2013). In
general, the state-run legal system is only used as a last resort to solve family conflicts,
even when it is accessible and affordable for the particular plaintiff (Solanki and Gang-
oli, 2016; Vatuk, 2013). This means, in effect, that most family conflicts never reach a
state-run court, and if a case is brought up before a state-run court, efforts toward
mediation or reconciliation in the matter have already been attempted (Basu, 2006:
48, 52; Berti, 2010: 237; Hong Tschalaer, 2017).
Examining the trials at the nari adalat provides insights into the potential and the
limitations of societal legal structures for women and into the structural conditions upon
which success in this comparatively new legal arena depends. In doing so, the article
identifies the power structures and obstacles within and beyond the family that restrict
women in their struggle for justice. The article thereby shows that the institution of the
Potthoff
757
family itself plays an ambivalent role as it is a constraint but, at the same time, can also
provide support in the woman’s pursuit to increase family and gender justice. To under-
stand this ambivalence, it is necessary to attend to what family and gender justice mean
in any given context and the way in which particular family relations shape this concept,
beyond a normative liberal gender-equality reading. Postcolonial and post-structuralist
feminist perspectives are valuable because they enable one to critically rethink the
normative, liberal conjunction of agency and freedom with justice (Mahmood, 2012
[2005]; Solanki, 2011; Solanki and Gangoli, 2016), and the understanding of freedom
as individual liberty. This perspective generates the understanding that women within
dependent relationships can gain the capability to transform the social relations they live
in, even though they depend on such relationships. Mahmood points out that
if the ability to effect change in the world and in oneself is historically and culturally
specific [ . . . ], then the meaning and sense of agency cannot be fixed in advance, but must
emerge through an analysis of the particular concepts that enable specific modes of being,
responsibility, and effectivity. Viewed in this way, what may appear to be a case of deplor-
able passivity and docility from a progressivistic point of view, may actually be a form of
agency – but one that can only be understood from within the discourses and structures of
subordination that create the conditions of its enactment. In this sense, agentival capacity is
entailed not only in those acts that resist norms but also in the multiple ways in which one
inhabits norms. (Mahmood, 2012 [2005]: 14–15)
The case of Sabita1 and Wahab presented here suggests that a woman’s pursuit of
family and gender justice at the nari adalat is regulated by her embeddedness in family,
neighborhood, and caste relations, but that such embeddedness can also provide
resources. The case shows that the woman, as well as the nari adalat, must take this
complex mesh of social relations of which the woman is a part into consideration – to do
otherwise can only be done so at a risk for the woman herself. Thus, because the woman
lives in extremely unequal and dependent relationships, she can only change her situa-
tion by transforming her positioning within these relationships, not by ignoring them.
The article accordingly puts forward the argument that family and gender justice in such
a socioeconomic and cultural context cannot mean individualization and emancipation
from the family. Rather, it means the chance for modifications within the family rela-
tions. The significance of the nari adalat is that it takes the woman’s lived reality into
account in its jurisdiction, which cannot be avoided when one wishes to transform power
relations within a woman’s web of social relations. This article thereby shows that
looking beyond a normative, liberal gender-equality understanding of family and gender
justice allows one to recognize the valuable effects of the nari adalats on women’s
situation within the family and marriage, even though the practices at the nari adalat
have been criticized by several scholars (Iyengar, 2007; Vatuk, 2013) for remaining
within the limits of gender-biased constructs, which implies being an obstacle to gender
justice.
The article conceptualizes the nari adalats as a legal forum within the Indian legal
landscape and critically reconsiders the liberal conception of justice with individual
freedom and agency associated with the state legal system. Next, the article describes
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Social & Legal Studies 28(6)
the founding and functioning of the nari adalats in northern Karnataka and then presents
the case of Sabita and Wahab. The data were collected within the context of my dis-
sertation during 7 months of fieldwork in the district of Gulbarga in 2011/2012 and
included the use of...
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