Chetana Sabnis on The Intimacy Contract and the Indian State

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, a podcast where we examine academic ideas that can propel India forward. My name is Shruti Rajagopalan, and this is the 2025 job market series, where I speak with young scholars entering the academic job market about their latest research on India. 

Our third scholar in the series is Chetana Sabnis, who is a doctoral candidate at the Department of Political Science at Yale University. Her research focuses on how states regulate intimate relationships and construct hierarchies of familial belonging. We spoke about her job market paper titled, The Intimacy Contract in Action: How Indian Courts Determine which Extramarital Relationships Deserve Recognition. We talked about extramarital affairs, polygamous relationships, Uniform Civil Code, social versus legal acceptance, and much more. 

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/podcasts.

Hi, Chetana. Welcome to the show. It is so lovely to have you here.

CHETANA SABNIS: It's so nice to be here, Shruti. I am extremely excited for our conversation.

How Courts Recognize “Family”

RAJAGOPALAN: So am I. Let's dig into it, because you are looking at a very broad interaction of two huge things, which is: How do states view families? These are the two very broad social institutions that we have. In particular, within your broader inquiry, you look at how states decide which intimate relationships qualify as “family.” In your case, in this particular paper, through large language models, you look at thousands of high court rulings where women in extramarital affairs or relationships have sought spousal protections or benefits of some sort to have the same kind of protection or the same social benefits or legal benefits as wives.

What you find is that courts, which are representative of how the state views this at some level, tend to reward relationships that look like what is the state's preferred idea of marriage. In this case, it is couples that cohabit, they have children, a relationship where there are very traditional gender roles, necessarily couples that are heterosexual—and this is between a man and a woman—and in particular, shared religiosity. It's what you call the “intimacy contract.” I would have actually called it the intimacy social contract because that sounds like an oxymoron. 

What you find is that when relationships fit that description, courts are much more likely to recognize them as family as opposed to when they don't fit that particular description. Even though at a legal level, both of them might be exactly the same. That is, women who fit that description and women who don’t. One, is this a good summary of what you're trying to do? Then we can dig into it.

SABNIS: Yes, this is a fantastic summary. This hits the nail on the head. This is exactly what the paper attempts to show.

Why This Paper? Rethinking “Family”

I think the paper comes from this deeper question of what exactly is a family. As someone in political science, the question I was especially interested in was how do states define family? Typically, we've seen, most of the scholarship in the social sciences and the humanities tend to think of families as kinship networks. This idea of family didn't sit well with me for two reasons.

We know enough non-kin being considered as family through adoptions primarily. The other reason it didn't sit well with me was, there were a lot of cases where kin-based relationships were actually not recognized formally by states. This was very much the case in the transatlantic slave trade era where a lot of Black women, their relationship with their children was necessarily severed, and these children were put on the market, very bluntly put.

Then I was exploring this idea of what family is, and what I proposed we understand family as is a set of relationships where individuals are institutionally tethered to one another. Primarily through material entitlements like inheritance, child custody, spousal support, and so on, but not necessarily only. On top of this, I argue that which individuals are tethered to one another is contingent on the ideology. The ideology reflects which relationships end up being counted as family across different contexts.

The way I've set up my dissertation is that it contains a set of case studies where each case study interrogates a relationship, whether it’s between a parent and a child or—in the case of what I present and I’m talking about today—is, in the case of India, where it's between a man and a woman and how a marriage is considered as family.

India’s Legal Patchwork: Customs vs. Code

RAJAGOPALAN: This is particularly interesting because India doesn't have this kind of Uniform Civil Code yet, so that's very much part of the discussion, the meta discussion going on in India. In India, we have a religious custom as the foundation for what forms family or not. A lot of this got codified in the early ’50s in India. The way Hindu relationships are defined legally—the legal foundations—are different from Muslim relationships and so on, so forth. One of the biggest differences is that polygamy was more a question of custom, and it was extremely regional and local in nature. In India currently, polygamy is recognized for Muslims, but it is not allowed for Hindus.

Now, you’re looking at a very particular case here where you’re talking about women who are in relationships with men married to someone else. This is, of course, in the broader context of India, where divorce is so rare and almost impossible to get and so on. These women are in what looks like a marriage to anyone else, but one, they are not married, and two, they can’t be married because we don’t allow polygamy within this particular setup. Is that a good way to think about what you’re doing?

SABNIS: Exactly. That's exactly it. These are women who are in effectively polygamous marriages, because there is one man and there are . . . Maybe here it might be helpful for me to just describe the sort of cases I see. In some cases, you actually have polygamy which is socially authorized. In certain states, like in Gujarat, for instance, there's the maitri karar system, where men are socially, not expected per se, but permitted to have a concubine alongside their actual wife. Legally, the system has been abolished, but socially it still seems to continue to be practiced as far as the data shows.

There are these cases where women who are socially accepted as concubines suddenly come to court saying that the person who they are in a relationship with has abandoned them and they expect spousal support. That’s one set of cases I see. Another set of cases are of women in relationships with men who have separated from their wives but not officially gotten a divorce. For all practical purposes, their original marriage doesn’t exist, but legally it is very much in existence, and yet they’re in relationships with these mistresses.

Then the third set of relationships I look at are the more conventional sort that we’re familiar with, which is, a man meets someone at a workplace or in a social setting and promises to leave his wife. As much as he claims to say this, there seems to be no intention of him wanting to leave his wife. Then there is this relationship that ends up existing, and this woman is exploited, abused in some contexts. In some cases, they also have to deal with the aftermath of what happens when their male partner dies, what happens in that context. These are broadly the sort of cases I see in the data set that I collect.

RAJAGOPALAN: Normally, when people think of polygamy, they think of this very, almost like a movie version where you have six wives in a harem or something like that, and there's one man. Typically, that's not how polygamous relationships and marriages, even when they were legal, worked out in India. You would typically have two separate homes, oftentimes quite close to each other. You would have two establishments and two families, except both were legal, they both had protections, and everyone knew about everyone, and the children of the second partner were not necessarily considered born out of wedlock. There was a broad degree of social acceptance.

I'm Tamilian, so you would say something like “periya veedu, chinna veedu,” which translates to “larger house or smaller house,” but what it really means is the first wife and the second wife. We have modern-day relationships that very much fit that description, but earlier, before 1950, these would have been counted as marriages. But now they are no longer counted as marriages because there is this very, very clear restriction on polygamy within Hindu marriage.

SABNIS: Correct. That's exactly it. It's so interesting you bring up what you see in Tamil Nadu because quite a few of the cases that I do see . . . One is of a woman who goes to court after her male partner has passed away, requesting that the pension benefit that his first wife used to get be transferred to her. The court insists she’s not entitled to it because she’s not the first wife. To which she says that the first wife very much had knowledge of their relationship. Not only had knowledge of their relationship but was also her older sister. 

I read through 300 cases. You can tell that the judge recognizes this social situation. They’re familiar with this sort of a situation, and yet the legal language doesn’t permit them to recognize this arrangement. They find this very interesting, convoluted way of saying, using these heuristics, which I go on to talk about in the paper: “Was there a ritual involved?” “Do the two of them, did they share a house?” “Did they have children together?” All of these elements are brought up in the context of the court to decide whether this woman is entitled to a pension or not.

RAJAGOPALAN: I found that stuff in the paper fascinating because it even includes questions like, did you wear sindoor? Did you wear bangles? Those kinds of very specific questions. Did you present yourself as a married woman as is commonly understood in society? Tamil Nadu is a great case because the first family of Tamil Nadu has this situation. Then the children out of the union of Karunanidhi are Stalin and Kanimozhi, and all of these people are very much part of the political family. They even fight like regular siblings in any other political dynasty. Tamil Nadu might be a particularly interesting case, where this is so well known that the first family is the first and the second family.

Judicial Heuristics: Rituals, Cohabitation, Children

SABNIS: It’s very interesting because socially, people seem to be aware of this phenomenon, but legally, the language hasn’t caught up to addressing this phenomenon and providing relief accordingly to the women in these situations.

RAJAGOPALAN: Before we get into the details of your paper, is one way to think about this that there was this long-standing custom, and that custom obviously can’t get upended just because the law changed, right? For instance, in India there was child marriage. Even though there was a restriction of not getting married below 18—it was even criminally punished—but if someone did get married as a child, they would still recognize the marriage because they thought that you’d be punishing the victim in some sense if you didn’t recognize the marriage. Then it would turn into child trafficking or child sex trade or something like that if you didn’t allow those marriages.

There was an inbuilt safety valve to account for the fact that society hadn’t quite caught up with the law. In this instance, there isn’t an inbuilt safety valve. The way I thought about your paper is, now judges are working really hard to figure out that inbuilt safety valve. Part of figuring out that safety valve is figuring out what is socially acceptable versus not socially acceptable, because that’s the foundation that actually requires the safety valve in the first place.

SABNIS: That’s exactly it because they are trying to figure out what is socially acceptable. The thing is, the Supreme Court’s judgments on extramarital relations—and some of these cases have actually reached the Supreme Court—they’re pretty ambiguous. You find a case that recognizes such a relationship, you also find a case that doesn’t recognize this relationship. The precedent that’s being set by the apex court, you can use it to support either decision. Now, in this sort of a situation where there's so much legal ambiguity, I think one definitely is, “What does society want?”

Sometimes some of these judges are also very welfare-oriented. To that end, they’re also trying to impute social justice principles into their judgment. Like, who are these women? These are vulnerable women, typically abandoned by the abusive husband. What's interesting, though, is the question that seems to emerge in most of these cases is whether this woman was deserving of certain entitlements. I look at around 2,700 cases. Of these 2,700 cases, in 40%, they recognize the woman, and in the remaining cases, they don’t recognize the woman. The question they’re really asking themselves is what makes this person entitled to state support?

Endogamy vs. Interfaith: Law, Bias, and Recognition

RAJAGOPALAN: There, there are two, three different parts. At least the way I read your paper is, it’s one way the judges are thinking about it: How do two people act within a relationship? Then the second part is, who are the two people within the relationship, in terms of what’s their identity? How they act is, do they share the same household? Do they have children? Do they maintain conjugal relationships? Is he holding her hand? Did he buy her jewelry or bangles? Did he get her a mangalsutra? Was there a ritual performed? Does she wear sindoor? These are all facets of how do two people normally act in a relationship that is called legally marriage, versus in this case, it didn’t turn into any kind of legal document.

The second part, which I found interesting, it’s also who those two people are. In your case, the most interesting result that you find is even if all the other characteristics are there, if they don't share the same religion, they are much less likely to be entitled to any of the benefits or the protections they’re seeking. That seems to come very much from either one of two places. One might be that this was happening in front of everyone, presumably in front of their families, social circles, and so on, so forth. If their immediate family has accepted it, then it would be very bizarre for us not to accept it.

The other way of thinking about it might just be, most marriages in India are endogamous, and everyone socially punishes exogamous marriages. Now even the courts are punishing exogamous marriages. This is like whatever is the love jihad nonsense that happens in UP [Uttar Pradesh], except it’s enforced both by roadside goons and also the judges. Here, now the judges have a way of bringing in that—it’s almost like legally enforced endogamy in some sense.

SABNIS: I think, to add to that, there’s also the legal architecture permits judges to not recognize these relationships. One of the cases I describe in the paper involves a Muslim woman in an extramarital relationship with a Hindu man. They solemnize their relationship by going to a temple. He applies sindoor onto her. Then they return home. For a couple of months, they share the same house.

A few months later, he steals all her jewelry, physically assaults her, and throws her out onto the streets. She goes to the police station and tries to file a basic FIR [First Information Report]. The police official rejects any registration of an FIR. Finally, this case makes its way to the high court, where the question is simply, does she have any standing to file an FIR—which is a very basic right—in anything at all.

RAJAGOPALAN: It's standing to file FIR as a domestic violence case, not in general an FIR, because he did beat her. This is a very specific question of standing.

SABNIS: Yes. Is she someone whom we can recognize as an intimate partner? Does she have standing as an intimate partner? Critically, yes. The court, the way they argue that she does not is by saying that even if she’s done a ritual, because she’s born a Muslim, it’s really hard for us to even consider under which law this relationship can actually be recognized, even on a meta level.

Besides the Special Marriage Act, which really is not so much about recognizing interfaith relationships as much as permitting interfaith relationships to exist, there is no law that automatically naturalizes an interfaith couple. This is in contrast to an inter-caste couple. As an inter-caste couple, you are immediately recognized under the Hindu Marriage Act, even if you do not wish for it to be recognized under the Hindu Marriage Act.

RAJAGOPALAN: Normally, India is like a super “marriage endogamy” kind of country. Ninety percent–plus marriages are happening endogamously within the same caste. Even after so many years of the Hindu code bill, after independence and 30 years after liberalization, we have not really switched to exogamous marriages in large numbers. That's the underlying part of it.

There is greater protection legally for exogamous marriages at the caste or the jati level relative to exogamous marriages at the religious level. I find that super interesting. You are saying that has nothing to do with greater acceptance. It just has more to do with the fact that there’s a legal framework under which we can think about it.

SABNIS: Yes. I’m actually like, maybe that is leading to more acceptance. I'm not sure. I was also surprised at how many inter-caste extramarital relationships were there in the dataset. Coding caste, it's a very tedious process. I don't code caste in its specificity, but I do code for whether caste was mentioned in the case. What I found interesting is actually that caste doesn’t seem to be mentioned proactively by the judges or by the parties. This could mean one of two things. It could mean that it’s understood that this is a same-caste relationship. For me, that didn’t make sense because when caste was mentioned, it was also mentioned in the context of a same-caste marriage.

The second reason why caste might not have been mentioned so much is legally, it doesn’t have much strength in the court. I wonder if in his Articles of Faith, he describes how there is this growing sense of a Hindu identity, and part of that is recognizing different castes as constituting Hindu, even if they wish not to be considered as Hindu. It might not be outright social acceptance, but I think there is much more acceptance of inter-caste relationships than there was in the 1950s.

RAJAGOPALAN: I’m curious about this one thing. It’s also much more common for upper-caste men to take on concubines or a second relationship of women who are lower in caste. That has always been somewhat socially acceptable, but the reverse would not be true. One way to test for whether this is social acceptability versus legal acceptability is to see cases where the woman might be of a higher caste than the man. I doubt that happens. That just doesn’t happen for other socioeconomic reasons, usually.

SABNIS: Interestingly, I code for that as well. I basically look at same-caste relationships, inter-caste relationships, and within inter-caste relationships, I code for whether female is of upper caste, female is of lower caste. It seems like the rate more or less holds; the rate of recognition more or less is comparable. There is one case where . . .

RAJAGOPALAN: There are fewer unions where the female is of the upper caste, right?

SABNIS: One thing I need to qualify is that sometimes the woman we’re talking about could be a widow, could be a divorcee, could have been abandoned by her first husband. In these contexts, the person she ends up being in a relationship with is much more open-ended. There isn’t as much scrutiny, per se, because in some sense, she’s a fallen woman.

It's incredible how many such women are actually in this country. Even the prime minister—his marriage isn’t something we talk about, but he does have a wife. A lot of the relationships are also involving these women. The scrutiny of who she takes on as a partner is much less than if it had been for her primary legal marriage.

How the State Views Children

RAJAGOPALAN: Now, how much do the children start mattering?

SABNIS: Children seem to be important for two reasons. One is it signals that there is some commitment in the relationship. Two, it’s also interesting how much the courts think these children are entitled. By law, children in these relationships—illegitimate children—can lay claim to inheritance, but only if it’s self-acquired property. They cannot claim ancestral property.

Just to add some more texture for the listener on what my data set looks like—I look at civil cases and criminal cases. Within civil cases, I look at extramarital arrangements where the woman is claiming property, pension benefits, spousal support, and domestic violence protection. Then in criminal cases, I look at whether they’re able to file charges under Section 498A, which basically criminalizes the man critically for cruelty, and Section 304B, which criminalizes men for being responsible for dowry-based deaths.

I look at all of these different legal claims that women and their family members are making against these men. I find that with property, it’s very interesting. Generally, outside of spousal support, the courts are much less reluctant to recognize women. Even given that, once that has been established, the sort of women they’re more likely to recognize are women with children and women who also satisfy a few other criteria that I also discuss in the paper.

RAJAGOPALAN: Like women who wear sindoor, for instance.

SABNIS: Yes.

RAJAGOPALAN: I was like, all the Hindi movie stuff is for real. This is really happening. This “ek chutki sindoor” thing is really something.

SABNIS: It's so interesting that the parties themselves use this as facts that will establish the legitimacy of their marriage, even though they have no legal standing.

RAJAGOPALAN: It kind of makes sense. It does establish: “Did someone hide them as this shady affair on the side, or did they recognize it?” “Did they make social appearances?” “Did she look like his wife?” No one asks anyone for paperwork. In fact, even today, most marriages in India are not recorded and registered, except for a few people who are either under the Special Marriage Act, or people who are applying for visas or some kind of spousal benefit. It has to be something very specific for a marriage to be properly legally recognized. Most people don’t end up registering their marriage, and it’s simply not a requirement in India.

SABNIS: It isn’t. I think the way you make your claim for legal entitlements is by using all of these other signals to establish that you have some standing—even if you’re not legally a wife—as a wife-like figure.

Welfare Logic & Gendered Maintenance

RAJAGOPALAN: How much of this is just what’s going on within Hindu society, since that’s the specifics of this paper, versus the fact that India is not a broad-based welfare state, especially when it comes to single mothers? There are many other countries where single mothers have very specific welfare entitlements built in for them, and India is just not one of those countries.

The way I think about this is, courts have been activists when it comes to welfare claims across a range of things. This could be everything from slum demolition to now crazy things like what to do with stray dogs. Our Indian courts are bananas. How much of this, do you think, is about the fact that the Indian government doesn’t have this broad-based welfare system, especially for single mothers? We need to make some accommodation for it, but we can’t make an accommodation which is so crazy and so activist that it doesn’t fit with what’s happening in society, and this is one way of doing it.

SABNIS: In cases involving spousal support, there is definitely a welfare impulse that’s driving courts to make the decisions to recognize these women. What’s very interesting is that underlying this welfare impulse is this expectation of who is entitled to welfare, and it’s primarily women, and a certain type of woman who is unable to make an income or is virtuous, hasn’t shown any interest in other sorts of relationships.

In contrast, some of the cases I look at are of men in extramarital relationships who are physically handicapped, unemployed, and hoping to make some claim of spousal support. What’s interesting is that the court doesn’t even recognize these men as deserving of economic support, and they're very quick to dismiss these men. 

One of the cases that I do see is of a man in Telangana who basically claims that he’s entitled to maintenance from his “wife.” His basis for making the claim is that he’s unemployed, he is physically handicapped, and he was supporting her at some point, and now she’s abandoned him and is now staying with her legal husband. He makes this claim, and then the Telangana High Court is incredulous. They say something to the effect of how this is a mockery of the maintenance provision, and economic dependence can only work in one direction, where the woman is economically dependent on the man and not the other way around.

Establishing that this is how the dynamic should work, there’s also a case where a woman is shown as being self-sufficient, as having the economic profile to be able to sustain a life for herself, but the court insists that even if she is self-sufficient, the man is expected to provide for her so that his mistress can maintain the life standard that they used to maintain when they were in the relationship. There is very much a welfare impulse, but the manner in which the courts imagine welfare is very much based on this idea of a relationship where the woman is a homemaker and the man is a breadwinner.

One thing I also wanted to note—and I like that you mentioned this earlier—is that it’s very much a heterosexual couple. I don’t mention these cases in the paper, but there are these cases where they discover that the woman is transgender—was initially a man and now has transitioned. There’s also a case where the woman is discovered to not have a uterus. In these cases, the question the court has to confront is, were these close to marriages? The answer is unambiguously, no. We can only understand economic dependence when it comes from a straight woman. 

UCC and the “Intimacy Contract” 

RAJAGOPALAN: This is so interesting. Now, when I think of some of the policy implications of your paper, it could go one of two ways. Let me zero in on the Uniform Civil Code [UCC]. One way to think about it would be, Uniform Civil Code is a terrible idea because clearly, we passed this Hindu code bill in the ’50s; 70 years have passed since then. Society has still not quite caught up to legality, and there are all these other relationships that exist, and we leave them quite vulnerable. That’s one way of thinking about it. We certainly shouldn’t have the state getting more and more involved in upending custom. That’s the way I would frame it.

Another way of thinking about it is actually, the Uniform Civil Code is not a terrible idea because look, we did this for the Hindus, and it turned out fine because clearly there’s a safety valve, and the courts will understand what is custom and what is acceptable. The same thing is going to start happening to Muslim women who are accustomed to a polygamous custom within their local custom, or within their kin, and the kinds of marriages that they normally see. If they also end up in one of these situations, there will be some kind of legal protection that we’ve already extended to Hindu women, except they’ll ask the same questions.

Instead of asking about sindoor, they’ll be asking a bunch of other questions. Was there a ritual? Was there a religious ceremony? Was there a Qazi and so on, so forth? Which way do you land on this question? To me, from your paper, you could go either way.

SABNIS: That's a great question, and I’ve honestly been wrestling with it because my instinct is, given the motivation for the UCC, it seems like what it really wants to do is vilify the Muslim community as being backward, regressive, and committed to this practice that is definitely disadvantaging women. Like you said, the issue with that criticism is that it doesn’t see that these women who are recognized as part of polygamous arrangements are actually secure in some sense because they’re able to access entitlements that they wouldn’t have been able to otherwise. My instinct is to say UCC, especially given its motivation, is a worrying promise.

RAJAGOPALAN: The way you phrase that, I would disagree. The way you phrase that, I would say, is, “We should have a Uniform Civil Code, except allow polygamy for everyone.”

SABNIS: Yes.

RAJAGOPALAN: The natural reaction to what you just said is, Muslim women seem to have these protections. Hindu women have been left without these protections. It’s obviously part of custom. The state wants to vilify it. The state should get out of banning polygamous marriages in either case.

SABNIS: Absolutely. I think that’s such an interesting idea because honestly, I was torn about the UCC for two reasons. One is just because all these women lose access to entitlements, but the other is that there stops being this religious divide that currently exists in the legal architecture. What you propose is much more interesting, which is: Recognize all relationships. I’m actively thinking about this right now. I think it’s good.

There is also a flip side to this, which is, do you want to be considered as part of the family? I don’t talk about the set of cases that they will eventually make their way in the final book project, but there are a set of cases where the mistress is considered as part of the family and has to be criminally liable. There are cases where the first wife sues the second wife/the mistress for being cruel to her and taking her husband away from her. Here she uses the idea that because the other woman is basically her husband’s second wife, she’s effectively family and therefore Section 498A, which criminalizes not only the husband but the husband’s relatives. The husband’s relatives . . .

RAJAGOPALAN: I love it. This is the most creative interpretation I have seen of this provision. The second wife is a relative, except you don’t recognize her as a second wife.

SABNIS: There are so many such cases in the data set. In fact, I think John Idiculla, which is a case that was heard by the Kerala High Court a couple of years ago, where the judge vehemently said that for all practical purposes, this mistress needs to be considered as a relative of the husband because that way she will not get away with having been cruel to the first wife. These are women who have proactively entered relationships with a married man, and they need to pay the cost for it. To your point . . .

RAJAGOPALAN: I like how in all of this, the man has no agency and is not to blame at all. This is entirely about women being cruel to women.

SABNIS: It’s insane how many women, first women, feel so much rage about the second woman. In fact, there’s one case where a woman is based in the UK and she is taken to task for having slept with this woman’s husband while she was in the UK. It’s a whole saga. She is being sued on the basis that this is her husband’s relative. I describe these set of cases to say that as much as it’s a privilege and you get access to a whole host of entitlements by being considered the second wife, there are also certain responsibilities you take by being considered as family.

That’s why I hesitate when you say that maybe we should recognize all relationships because then there is a more normative question that we need to ask ourselves, which is, do we want all relationships to be recognized? Which relationships do we want to commit to for life, in some sense? Which relationships do we want to see as family? Which relationships do we just want to think of like non-family? Maybe this is my bias also entering here, but I wonder if there is some value in having a boundary between family and non-family. I don’t have a position on this, but I think that is the question we have to ask when we sit.

The Role of the State

RAJAGOPALAN: My issue is not so much that should we remove all boundaries; it is who is the deciding factor? Should it be the state, should it be the family unit, or is it custom? For me, that’s the bigger question. Normally, my very classical liberal belief would be, the state should be completely out of this because these things are bottom-up processes. In most parts of the world, as places grow richer and as there’s structural transformation and you start relying less on kith and kin networks, you do see a decrease in polygamous relationships and things like that. These things have happened in various tribes in Africa; they’ve happened in India.

The question is, do we need the state involved? I think the UCC is such a tinderbox because there is this very clear effort to say that there is going to be one religion which will be dragged into modernizing whether they wish to or not, and there’s this other group which will not be forced into modernizing at all. I say “modernizing”—whatever is the Victorian version of modernizing. They have the exact same explanation for both cases, which is to protect women. In the Hindu case, we’re going to abolish polygamy to protect women. In the Muslim case, we’re going to keep polygamy and legally recognize it to protect the Muslim women. That’s the part which becomes complicated.

The question is not whether to remove boundaries, it is who should have boundaries. There are lots of unions where we don’t allow people to adopt a child, for instance. The intimacy contract, in your case, you were talking about something much beyond, say, Carole Pateman’s Sexual Contract. This is bigger than that. Now if we think about children, adoption and so forth, we do have a separate boundary for adoption than we have just for unions. They would never recognize an adoption for one of these second marriages the way they would for the first marriage, for instance.

SABNIS: Absolutely.

RAJAGOPALAN: I think that’s more the question. Socially, if there is very clearly a boundary, do we need to reinforce it with a legal boundary?

SABNIS: What I’m also taken by is the number of women who seem to be coming to the courts.

RAJAGOPALAN: That thrills me.

SABNIS: I feel like part of this idea of bottom-up processes also seems to be about women claiming or demanding state support. In these socially unsettling situations where they’re not getting what they expect to get from the man, they seem to be looking at the state as an arbitrator, as someone who can decide whether they’re entitled to it or not. As much as the UCC is a top-down effort, it also seems that the state courts are responding to some sort of bottom-up demand. All these cases are coming through family courts. I feel like what we’re looking at is at the tip of the iceberg, honestly, because these are . . .

RAJAGOPALAN: These are Karnataka high court cases. These are already very privileged people.

SABNIS: What’s very interesting is that women seem to be finding the courts to be a place where they can hold their partners accountable.

RAJAGOPALAN: You’re absolutely right. There’s very clearly a demand for some kind of legal and social recognition. Once you have social recognition, that becomes the basis for legal recognition, which is what your paper really shows. Now, given that there’s a demand for legal recognition, is it a demand for legal recognition because the Hindu religious code has left these women unprotected and a Uniform Civil Code might do a better job? Or is it a demand irrespective of that, that this has nothing to do with the existing legal code, this would have happened anyway?

SABNIS: That’s a great question. I don’t talk about this, but there are also cases of Muslim men in extramarital relationships. This is very interesting because these are men who we expect that—the moment everyone thinks of Muslim men in India, they think of them as having the permission of having four wives, and they can have this.  

RAJAGOPALAN: They have the legal permission, but they may not have the social permission.

SABNIS: A certain set of cases I managed to collect through data scraping were also of cases of women who were legally not wives of Muslim men. These were Muslim women who were actually in extramarital relationships with these Muslim men. The question they have to confront is . . . It seems like even for those who have polygamy as a legal option, there invariably seems to be somebody who’s being left out.

RAJAGOPALAN: That’s a great point because Muslim custom recognizes both polygamy and also concubines in certain cases, and children born out of wedlock in the case of concubines, other than the wives—other than legally recognized wives. That’s super interesting that even in those cases, it’s not like these men, these Hindu men would have married these women but for having this restriction on polygamy. It’s like these are complicated relationships, and now we’re looking for some kind of social protection in light of this complication.

SABNIS: Absolutely. That’s exactly it. That’s what I find interesting about this idea of monogamy. I think, especially theoretically, institutional imposition of monogamy is understood as removing relationships. But I don’t think it removes relationships as much as it makes relationships invisible to the state.

RAJAGOPALAN: There’s definitely a big de-recognition. That idea is also very Victorian and not from the subcontinent. There’s something really to dig into this. We have exceptions for Muslims, we have exceptions for scheduled tribes, and so on. Now the situation we’re in, as you find in your dataset, is that the largest majority of women are the ones who are left out, but because they also are, in some sense, more visible to the state overall, they’re able to go negotiate this through the courts and so on, so forth.

SABNIS: Exactly. It makes me think of all of the women who have been abandoned by their male partner, who have been promised marriage. We know these cases socially. We hear about this person’s friend who was in a relationship with this person who turned out to be married, but now we don’t know what’s going to happen. He keeps promising he’ll get a divorce, but it’s unclear what’ll happen next.

Contract vs. Sacrament

RAJAGOPALAN: The last thing I’ll ask you about is, the term that you use is “intimacy contract,” right? Hindu marriage, famously, is not a contract, it’s a sacrament. The way we normally define a contract is there’s an offer, “Do you, So-and-so, take So-and-so to be whatever”; there's acceptance, which is “I do”; and then there is consideration, which is either reciprocal promises like “in sickness or in health,” or in the case of Muslim marriages, there’s a literal consideration, which is your Mehr rakam and things like that.

Now, a Hindu marriage is not a contract between a man and a woman. It is a sacrament made by the man to the gods. That’s why there was never a concept of divorce or dissolution of Hindu marriage, because only contracts can be dissolved. Sacraments cannot be broken. I have been through a Hindu ritual wedding. Apparently, my husband has promised the gods we’re going to be together for seven lifetimes or something like that, but it’s not something we promised each other necessarily. I really dug into it actually at my wedding ritual.

I was like, “What is exactly happening here?” I really looked into this. Now the question is, how do we think about this language of contract, legibility, and recognition in a world where you are promising the primary relationship on a custom, which is a sacrament and was never intended to be a contract, which is also why divorce rates are so low?

SABNIS: That’s a great question. I, in fact, have to theoretically work through this idea of contract. My idea of contract is honestly drawing from Carole Pateman’s idea of sexual contract and also from Hobbes and Rousseau. It comes somewhat from them. I see contract not exactly as an agreement between two parties, but as a set of conditions that are tying two individuals together. The reason I use the word “contract” is because it has social recognition and social power.

Even though the parties themselves might not have agreed to it. Very much the case in child marriage, whether—even in the case of, say, Muslim unions or Christian unions, it very much, like in the child marriage, would still have constituted a contract in my framework, in that it was a socially recognized set of conditions that brought these two people together. That's how I think of contract.

It draws from this idea that a lot of people have been trying to understand the slave and master relationship. The question that most people are trying to answer is, is there a contract? Is there not a contract? I escape all of those questions by just holding on to this idea that the contract is just a set of conditions tethering two people together. These set of conditions have power and become a contract because of its social recognition.

RAJAGOPALAN: When I read your paper, the language that the judges are using—and probably because they’re just like me, all lawyers, have learned contract 101: You need an offer, you need an acceptance, you need to be of sound mind, there needs to be consideration, etc. The language they use is very much of a contract, which is, “Did you do steps A, B, and C to signal offer and acceptance of something that looks like a marriage union?” versus not. Offering sindoor and wearing sindoor is one of those actions of contract.

I wonder if it’s possible for you to escape that entirely if the data that you’re looking at is court cases. If the data you’re looking at is more generally like survey data or how women talk about these things, that might be a separate matter. I don’t know if recognition is the only lens through which you can look at this because lawyers will use a very legal definition for a contract, as opposed to the way you are describing it. You’re describing it more in terms of there are lots of threads binding two people; now let’s count the number of threads and see how strong the bond is, is how you’re looking at it.

SABNIS: Yes. I think you’re right. The case study I’m now working on is about functional parents in the context of the US. I’m trying to see which functional parent, who has effectively no legal claim on the child, can claim child custody and child visitation rights. I’m looking at this, and it is very much in the language of contract. Have you financially provided for the child? Have you given gifts to the child? Are you kin? Are you not kin? It’s very much in the language of contract. I think restricting myself to court cases helps.

RAJAGOPALAN: I would actually reverse that intuition. When it comes to children’s cases, it’s usually not a contract, at least not with the child. Maybe it’s a contract with the state. I would say those are a set of conditions. Because a child cannot contractually get out of them.

SABNIS: Absolutely. At least until a certain age.

RAJAGOPALAN: At least until a certain age, right?

SABNIS: Yes. I think so. Once we get into contract theory, it’s mind-boggling.

RAJAGOPALAN: There’s no simple answer. There are some relationships where there is no question of contract, like one between a parent and child, for instance.

SABNIS: It does arise in the question of these parent-child relationships, especially functional parents, because they don’t have default legal recognition. The reason I say there is some sort of a contract is, if there is some sort of violation on the end of the parent, then the court immediately says you don’t have custody over the child.

RAJAGOPALAN: I would actually rethink that. There’s a decent literature on this in law where there’s a difference between contracted relationships versus custodian or trust relationships. When the relationship is one of a custodian or the relationship is held in trust, then even if the other party contracted or accepted being beaten, you’re not allowed to beat them.

SABNIS: This is interesting.

RAJAGOPALAN: It might be worth looking into custodian relationship just for parents and children because that’s how we usually view this.

SABNIS: This is very helpful. I’ll definitely look into it. Honestly, I’m coming at this as a political scientist with a fledgling interest in feminist and contract theory. For me, I'm thinking contract in a very meta sense similar to a Hobbesian contract or like Pateman’s contract, just this idea that there is something that binds two people together.

RAJAGOPALAN: I totally understand that. This entire area of research is absolutely fascinating. I’m really excited for this work, and I’m so excited for the data that you’re looking at. It just brings to life so much of what’s happening in India. We constantly talk about how India’s got very low divorce rates and all of those things, but India’s a really complicated place when you lift the hood. This is giving us that picture of what’s actually happening underneath. It’s really complicated, as one would expect it to be.

SABNIS: It is absolutely complicated. One of the cases I see is absolutely mind-boggling. It’s of this woman who falls in love with this man. She runs away with him, and they have two children together. They have a marriage—a legal marriage. They have their own household. The woman’s sister keeps visiting them, and the sister falls in love with her sister’s husband. They end up having a relationship and they have children as well, and they all stay in the same house.

At some point, the relationship becomes exploitative. The sister who enters this arrangement late ends up going to court and files a charge under Section 498A under cruelty. She says that “this man has basically been exploiting me and my sister,” the first wife. It was just insane for me because there’s a love marriage here, there are sisters falling . . . It was a very interesting situation to see.

RAJAGOPALAN: It’s complicated, and we see this more often than we realize. Thank you so much for coming on the show. Thank you for sharing all of this. This was a lot of fun.

SABNIS: Thank you so much again, Shruti.