1What if the stigma of criminality could be shirked off by desperate laughter? For insouciance in the face of carcerality, a memorable exemplar came early in my ethnographic fieldwork in the Kolkata Family Court. Two young and dusty-looking men, marked as prisoners by being handcuffed together at the wrist, came running up the stairs of the court building as I was descending, singing a recent Hindi film hit song with deliberate raucous gusto. A portly policeman in his uniform of white shirt and shorts followed behind, trying to keep pace, occasionally prodding them with his long baton in an attempt to control their energy. These men were some of the rare prisoners of this lower-level civil court, where criminal prosecutions hover as constant specters and/or bargaining chips in divorce. They might be husbands who have repeatedly failed to comply with court orders to pay maintenance to wives or children, or husbands accused of domestic violence. Typically, they are men too poor to avoid jail by paying dues.

2Carcerality, the possibility of locking someone up as punishment, is a gesture of serious intent on the part of the State. For example, the global recognition of certain forms of gender-based violence—wartime rape or sexual harassment are notable examples—is often signaled through laws and policies that declare them to be crimes that merit stern carceral censure. Feminist ambivalence about State punishment spans a range of attitudes, with longstanding divides between those who believe the harshest of punishments are needed as corrective and deterrent measures, those who critique the negative effects on women (such as in the criminalization of sex work), and those who find extreme carceral solutions like the death penalty to be immoral, wasteful and a poor deterrent. This paper sits alongside these debates by examining Indian divorce: cynical about deterrent effects, it traces the gap between the potential of criminal law’s leverage to help wives secure fairer economic futures, its ineffectiveness in producing required funds, and its uneven application across social groups. The vignette above, demonstrating the limits of the carceral in either getting funds allocated or breaking spirits, reflects my argument for solutions that better match core problems in marital resource distribution and family violence.

4The occasion of our collective conversation on marriage and carcerality allowed me to reflect on the shadow of criminal law on family law, to raise questions that have long dogged my research. Here I look back at, and juxtapose, two of my long-term fieldwork projects on marriage and law in India, to draw out parallels around putative incarceration. Each looks at the legacies of feminist legal reform proposals by tracking the everyday life of the laws they imagined and argued for. The first was an ethnography of divorce, and the ways that domestic violence dominated in divorce proceedings: I conducted research from 2001 to 2012, in a variety of family law, domestic violence and marriage mediation related settings in Kolkata. Fieldwork included participant observation of the Family Courts, the Women’s Grievance Cell at the police station, and a variety of organizations that undertook marriage mediation, field visits to litigants’ homes with counselors, and interviews with judges, counselors and feminist activists. The dramatis personae (and administrations) have changed since then, but the core concerns with jail as a solution to recidivism, and the bigger structural concern with wives’ post-divorce economic situations, remains. The second draws on my research on the Indian Men’s Rights Movement (MRM). I conducted this fieldwork in eight Indian cities primarily between 2013–2015, arguably at the height of the movement’s street and media mobilization: methods included participant observation at weekly meetings and public events, content analysis of media, and semi-structured interviews with movement leaders, other members, representatives of feminist organizations dealing with gendered violence, and profeminist men’s organizations. The movement’s ongoing media and public actions, including a set of 2025 cases that generated some momentum, continue to figure in my research. Notably, while there is less public visibility than during my fieldwork, agitation initiated by the movement show their effect in legal outcomes and judicial discourse in the present.

5In my previous work, I have lamented the turn to criminal law in divorce to remedy the structural impoverishment that marriage creates for wives in India; I focused then on problematizing compulsory marriage as women’s primary material resource (Basu 2015a) This paper takes up a dimension I mostly ignored: the carceral reach within divorce, including the disparate and surreal impact on the poor, and the ways that the specter of criminalization drives civil settlements. Here, I show how criminal law performatively demonstrates the State’s alacrity, without addressing questions of power, violence and structural vulnerability.

THE “CRIMINAL” PRESENCE IN FAMILY LAW

6Both my fieldwork projects hearken back to Indian feminist campaigns for laws against gender-based violence in the 1980s (influenced by and executed during the UN Decade for Women, 1975–1985). Their demands eventually led to the 1980 laws criminalizing dowry transactions, the recognition of family violence against daughters-in-law (often associated with dowry), the retooling of rape law, and the establishment of Family Courts designed to be easier to access for women. Feminist scholars have had much to say about the gaps between these aspirational laws and their everyday application (Agnes 2005; Basu 2015a; Baxi 2014; Roychowdhury 2020), but it would be fair to acknowledge that the laws have precipitated greater judicial attention to economic support for wives, and to questions of addressing family violence.

7Criminal punishment loomed large in feminist legal reform proposals not only in order to get the State to acknowledge the seriousness of gender based violence, but also in matters such as divorce, as a means to solve problems caused by recalcitrance and defiance of court orders, a feminist goal on a very different register. As the following sections show, intersecting (and indeed contradictory) rationales for resorting to threats of imprisonment include: (a) the hope that defaulters might be urged into prompt action on recidivism in alimony. (b) the possibility of preventing imminent or long-term violence, and (c) the idea that people might be motivated to fend off stigma, a scar against reputation, status and livelihood.

9One of the main constituencies fomenting this skepticism is the explicitly anti-feminist Men’s Rights Movement (MRM) in India, which bitterly complains about the legal burden of men being charged simultaneously in criminal cases and civil filings. They point out that criminal cases potentially lead to jail or job loss, not to mention the loss of social standing, and that the hassle of running to multiple cities to attend to different cases renders everyday work lives impossible. Their families are threatened with incarceration and sometimes jailed per the provisions of S498A (family violence), and MRAs (Men’s Rights Activists) are quick to point to the plight of their mothers and sisters as examples of the hypocrisy of laws designed to protect women. They allege they are harassed and extorted by corrupt police and lawyers in these processes. Questioning gender roles such as the dependent wife and the provider husband, they challenge husbands’ liability to pay alimony as a double standard.

11In the following sections, I trace the shadow of carcerality in marriage through the prism of imminent imprisonment: who it immobilizes, who faces detriment, who can treat it defiantly, and who it serves. We see the ways that jail appears as a form of ultimate threat, occasionally opening up productive possibilities; however, it also routinely provides no possibilities for resources to flow. It has the potential to shame, but that potential can be affectively defused.

FEMINISTS AND CARCERALITY

13As to the narrower purposes of a central topic of this paper, jail appears particularly ineffective as a tool to reduce domestic violence. Across social classes, jail may at best provide a temporary reprieve, a cooling-off space, but does not positively alter the power and control dynamics of domestic violence. Scholars of criminal sentencing show repeatedly that jail terms increase domestic violence recidivism (Collins, Bouffard and Wilkes 2021; George 2012; Loeffler and Nagin 2022). Typically, people who cannot afford bail are imprisoned, and the confinement further diminishes their contributions to an economically struggling household, as will be echoed often in later sections. Victoria Law’s (2014) essay fiercely argues that the focus on “increased policing, prosecution, and imprisonment” in domestic violence empowers a violent state: it draws resources away from social and economic resources including shelters, and punishes the most vulnerable of victims when it “ignores the ways in which race, class, gender identity, and immigration status leave certain women more vulnerable to violence” and greater criminalization often places these same women at risk of violence from the state. The legal scholar Weissman critiques the ways that domestic violence is often excluded “from criminal legal reform initiatives and decarceration efforts” which focus on structural issues of political economy as a way to reduce crime, and could have had a far more effective impact (2021:872).

14Many feminists who advocate for “abolition” recommend community-based or restorative justice solutions (Weissman 2021). However, it bears mention that legal anthropologists have long demonstrated women’s problems with trusting communities as the alternative to the State (Hirsch 1998; Moore 1999). Moreover, restorative justice is often inappropriate for crimes of interpersonal violence. Terwiel recommends a “spectrum of decarceration” (2020:431), a range of approaches and alternatives whose goal is “not whether to engage with the state but how best to do so” (2020:432) or to “engage the state more ambivalently and strategically” (2020:436).

15Indian feminists have long argued for using criminal law to combat gender-based violence, but there is also, contrarily, a deep scepticism of State motives and modes of enforcement in other feminist quarters. These include a critique of patriarchal control of women, and the abundant use of criminal law to further this control. As Saumya Uma trenchantly describes the harm, families’ own violence is erased while transgressions of sexual or endogamous codes are violently pursued: “A powerful state controls families and communities, which, in turn (and in addition), police women” (2023:1). Even those feminist groups who have engaged in recent changes to law, including attempts to dampen the prevailing enthusiasm for the death penalty, have found their ideas superseded (Baxi 2016; Dash 2021; Iyer 2016). Baxi and Iyer argue that the core of the problem is the State’s performative zeal for punishment, while it grossly neglects basic structural assistance towards victims, and touts patriarchal discourses of rape (Baxi 2016; Iyer 2016). Dash (2021:22), focused on the “disparate impact [of enhanced punishment] on marginalized communities,” is more overtly critical of feminist interventions in rape law, particularly how it fails to speak out on questions of sentencing and appropriate punishment: “the feminist movement in India must develop its own discourse on punishment and carcerality … Failure to do so has not only exposed inconsistencies within feminist discourse on sexual violence laws but also enabled the state to get away with harsh punishments as the only response to sexual crimes” (Dash 2021:21–23). Dash reminds us here that the object is to transform patriarchal discourses, as well as to advocate for structural change. It recenters the question on feminist conceptions of justice, and the role that punishment should play.

16This paper picks up the challenge posed by critics of carceral approaches such as Dash to wonder what a feminist framework of justice might look like in divorce law in India, if criminal law were not a primary strategy. This paper is not a call for the abolition of criminal laws given their potential strategic advantage, unless the problems generated by existent alimony laws are also simultaneously fixed. But it is an invitation to open up criminal law in divorce to a scrutiny of economic disparity, and to notice how jail is recoded by the people who encounter it.

THE JAIL IN FAMILY COURT

17My preparatory research before fieldwork on Family Courts had taught me that the global trend for Family Courts had been inspired in part by feminist demands to have courts that would seem less intimidating to women, where they could say their piece in plain language to judges or mediators without the complicated framing of lawyers. In India these were lower-level civil courts which heard matters of Family law (called “Personal Law”), primarily divorce, but were theoretically lawyer-free and focused on direct access to judges in a comfortable, non-threatening venue. It was shocking, then, to walk into the courts –a “regular” courtroom rather than an alternate sort of space—and find a cell for confinement occupying a prominent spot in the room. In my ten years of visits to the court, I saw it occupied only once. Next door, a room that had been repurposed for mediation sessions held by staff who were called “counselors” had a similar “jail” cell, piled high over the years with heaps of discarded files.

18The jail-like enclosure seems at odds with the notion of a comfortable, friendly space, but the awkward architecture of menace illustrates my broader argument about Family Courts (Basu 2015a). While these courts move cases along slightly faster, they work through familiar forms of legal discipline and process (Basu 2015a). Legal hierarchies are not displaced: the law sought to enhance the power of judges while curbing that of lawyers, rather than empowering litigants.

20I read the effusiveness of the two men in the opening example as bravado and defiance in the face of public punishment. The scene marked a profound irony, a legal, economic and social paradox: imprisonment is the only threat that can be held over husbands’ heads to enforce legal orders of maintenance, but it is only symbolically punitive, and not of tangible economic benefit to the wife, who can expect no financial help when the husband is in prison. Also, for men with scant earning opportunities, who routinely experience abuse and insults associated with their economic marginality, jail looms less large as a signifier of loss of status or income. The State’s promise to “protect” women through the Family Courts is thus limited by this impasse. Moreover, gender and class privileges are validated rather than undone: the economically marginal man is publicly punished as an exemplar of irresponsibility, but middle- and upper-class men’s role as family saviors is highlighted. Imprisonment may even be a relief to those men in situations of deep precarity, as senior counselor Malati showed when she recounted the case of an extremely poor man who had been sent to jail: “that saved him/ “o to benchey gelo.” The man had been starving, living on the street. Imprisonment would be an (only temporary) relief; he might still be accountable for the debt afterwards, remaining legally vulnerable. His wife would not recover anything in either case.

21In my daily visits to the Family Court, most intensively between 2001 and 2004, I would often hear litigants, State counselor-helpers, and judges weigh the salience of jail and monetary recovery, as they argued over how much was owed and what could be paid off. Like the handcuffed men described above, there would often be defiant alimony/custody debtors in court. I saw several hearings of a man who did not appear in person. His brother said once to the judge, “why don’t you send him back to jail?” (she refused to entertain this argument because he had no standing to speak for his brother). He was rebuked more strongly at a second appearance in his brother’s place, told “he better be here next time if he doesn’t want some big losses/noile khoti hobey,” but in his response to the judge, he merely repeated “jail bhej dijiye/just send him to jail.” This case was complicated by the problem that the defendant had already been jailed for 42 days (the common term was one month) for arrears accrued over ten months, and was being newly sought for continued recidivism, with a fresh filing by his wife. It was unclear how much of his debt had been canceled through jailing, likely only a third. Court counselors (helpers) often made personal visits and pleas as part of their mediation. His assigned counselor Chhobi recounted that she had paid the defendant a visit on a Sunday, at the small corner where he sold fruit on the pavement. They sat on two stones by the side of the road and talked for a while, Chhobi trying to persuade him to come to court and ask to pay in instalments, because the alternative might be a “distress warrant” where they seized some of his property. This was before his brother appeared for him a second time. As in many cases, this one was complicated by his hope of reconciliation, and hence his choice not to seek divorce, even though she reminded him that he could not get anyone back by holding on to money. In any case, he would have owed on the debt, and appeared to have little enough to support himself, let alone to produce the Rs 500 a month, relatively small though the amount was. The prospect of jail did not raise the stakes enough for him, while the ongoing case meant he could still hold on to the marriage.

22In other cases, husbands’ non-payment might be a form of punishment and control. Among husbands who appeared affluent in appearance was one whom the counselors knew to be someone who had turned his wife and children out of the house after much overt violence. She was being housed by her in-laws out of sympathy. She made barely any money collating scrap paper, and had a very small maintenance and custody amount. But the husband was challenging even that amount because the 16-year-old daughter had just got a small job as a tailor’s apprentice. Every legal directive to pay was met with the response, “send me to jail.” It seemed he could wait out the threat, even though he well knew the hardship he was causing.

24In other cases, here among the far less elite, the criminal force of bigamy was held off because a conviction would, crucially, mean job loss. No matter the feelings of wives about bigamy, they could not afford economic disruption. Far below the former example on the economic scale was a man from the Dom community who held a government job as sweeper. His job came with government quarters at the morgue grounds; his wife, from the same community, lived with her family on the outskirts of one of the crematoriums in much less permanent housing. He had a long history of neglectful and violent behavior (such that many of his kin and neighborhood backed his wife), and continued to bully his wife in public even while waiting for a court date. He flaunted his new marriage (likely a registered one whereas the first one had been a religious one, not formally registered) by bringing the new wife to the court; the counselors had heard he had already changed his benefits nominations to her name. The counselors had worked hard to get his wife some maintenance money, which he had blocked through various obfuscations and delays. They were wondering if they could get hold of his marriage registration and his change in benefits to build a strong criminal case of bigamy, but they held off because they knew that any criminal convictions would cause suspension and the eventual loss of his government job. Their client, they surmised, would resist the move since it would not solve her dire economic necessities. This case reminded the counselors of many others where wealthy and middle-class women prefer to avoid the questions of husbands’ infidelities/bigamy—partly to keep their children and home, partly to keep their lifestyle, partly to retain their social status, which they might have lost with divorce in a way that could affect children’s marriages—and opt to negotiate for reconciliation. The selective application of criminal law demonstrates the triumph of materials needs and expectations over the possibilities of punishment.

26Thus, the prospect of civil jail, is a spectral threat, supposedly persuading recidivists to reach for their money to avoid punitive consequences. It sometimes produces results, in the cases of those who can afford it, though the court is routinely clogged with such folks who pay, stop, get a summons, pay again, stop again. For those who can’t, jail appears as one surreal option in a range of difficult situations: meagre daily wages may not produce the money needed, or families may not be willing to step up for their debts. There are typically no other realistic options for wives in such situations to gain access to any State support or be supported by their natal families. Wives’ economic interests are cited by judges or counselors as the catalyst for carceral interventions, but wives get occasional and partial help at best.

DOMESTIC VIOLENCE AND THE CARCERAL

27The leverage of jail hits very differently when domestic violence cases involving jail terms for husbands and families are launched during the process of divorce, commonly involving middle- or upper-middle-class men. This section conveys some of the movement and member strategies of resistance and resilience to prospects of jail—it demonstrates how the accused or convicted confront carceral force, whether as status loss or for economic impact. While the conviction rates under these laws are so low that incarceration is typically quite short-term, jail is keenly felt nonetheless. MRAs public outrage over jailing fuels public sympathy in ways that husbands accused of violence might not otherwise have mustered, turning carceral force to political and cultural advantage.

29The Indian Men’s Rights Movement (MRM), however, has made such criminal charges a central focus of action, dubbing them an extortionate strategy, while bypassing questions of their own culpability in violence. Their experience with charges has become an asset in organizing: many leaders, typically urban middle-class,upper-caste men, proudly touted the expertise they developed to counter such cases, drawing on their own experiences of going to jail for a period of a few days to a few months to a couple years. They turned this into knowledge for advising others who are accused: one of the major tasks of many local MRM groups (who consider themselves largely self-funded social movement organizations) is to provide strategies for avoiding jail. For example, facilitators help with the language and processes of anticipatory bail, with securing property as collateral or having it stay off the record, with providing lists of documentation that their clients should have handy. People faced with forthcoming charges would often call in on the hotline in the midst of my interviews, and MRM leaders demonstrated impressive alacrity in helping them think about dealing with the police. The leader of one of the MRM-associated women’s auxiliaries described how she was helping the mother of a man whose wife had filed a suit against the family, to get anticipatory bail before going to the police.

30I have previously written about how men charged in S498A (family violence) cases build a joking camaraderie of common experiences in the courtroom (Basu 2015a). Narratives about jail described below serve a similar purpose: they amplify bravado and a sense of the surreal, find common cause for a discourse of unfair accusation, and recover masculine triumph in the form of courage and resilience, affirming leadership. Importantly, the marginal education/ economic status of the majority of convicts in Indian prisons allowed for the typically middle-class members of the MRM to describe themselves as “out of place” and as being targets of humiliation in jail. But they too had horrific stories of police impunity and bribability, casting further doubt on the validity of their crimes and arrests.

32In a related strategy, the MRM preached to those who sought their help that they should endure the legal process with equanimity, a version of “don’t negotiate with terrorists.” They recommended calmly appearing in legal settings and benefitting from legal delays, waiting out those keen to settle an amount and get a divorce, rather than resisting and getting into the judge’s disfavor (Basu 2015b). Leadership firmly asserted that settlement amounts would become lower if only husbands could stay their ground—by this logic, going to jail demonstrated steady purpose. It underlined that they had nothing to lose, after losing their jobs, a prime signifier of masculine capitalist status. They valorized the loss as a deliberate reclaiming of power, describing jail as an experience that forged personality. As Vibhas, the Delhi meeting leader, said with a sting, reassuring an older man that he would survive the situation, “God gives us trouble so something good can happen. I’m thankful to my wife for the opportunity to learn.”

33The bravado and defiance narrated in this section doesn’t necessarily mean that MRAs have prevailed against the volume of criminal filings. The scale of the MRM’s organized efforts demonstrates, rather, their focus on combating law enforcement and blocking substantial settlements to wives. They advise meeting the feared punishments head on, demonstrate that job loss only worsens the prospects of wives receiving alimony, and argue that status loss can’t hold much power over them when legal troubles have already eroded it among workmates, kin and community. Carceral threats, or even charges, are received not as occasions to amend violent or controlling behavior, but as warnings to gather their forces for complicated legal battles. Jail works neither as deterrent nor as shame.

CONCLUSION

34In the course of my ethnographic work on divorce and criminal law, it has become evident that the prospect of carcerality has little power to disentangle the core problems of resource distribution and violence that barrage the courts. Jail offers Family Court judges a handy solution to cajole or threaten, but the power exhausts itself through putting these men in jail, providing no ability to translate incarceration into overdue payments. S498A filings, similarly, may result in jail sentences, but these punishments do not commonly lead to monetary resolutions or a reduction in violence. Moreover, this disciplinary power becomes a form of confinement and detriment for the economically marginalized: jailing husbands is especially counterproductive for penurious women, while it also broadens precarious situations for husbands who cannot afford to pay, and whose poverty is likely produced by caste-class-religious hierarchies in the distribution of resources.

35If potential, the possibility of criminal accusation, is what gives the carceral its force, then its beneficial effects are likewise dubious. Alimony recidivists from the middle- and upper-classes in Family Court can pay their way out. MRAs return from S498A (family violence) related bouts of jail to resume good jobs. Some even proceed to inspire crowds with their strategy of defusing leverage by refusing to budge on settlement, and by shedding the stigma of jail, while denying violent behavior in their ranks. Wives filing cases face uncertain settlements, or are left with no help within violent homes.

36Instead of using criminal law in the hope of achieving deterrence or modifying behavior, a solution that matched the problem would squarely address structural inequities of gender and class. Poor women, for example, would benefit from state support rather than the hope of accessing their husbands’ scant resources. Attention to a fair division of matrimonial resources, including residence options, might help obviate the ungainly hitching of divorce and domestic violence cases as a way to leverage settlements. Some feminist groups have argued for the alternative of matrimonial property based on the joint resources accrued in the marriage as a fairer way to divide conjugal assets (Basu 2015 [2018]). If such structural questions of wives’ access to matrimonial property was dealt with in its place in Family Law, domestic violence could be better addressed as a harm requiring separate kinds of remedies (criminal or not). MRM groups vociferously objected to the idea of matrimonial property when the proposition was politically alive, but their objections are a measure of the potential such a provision has to equalize resources in marriage.

37Because the specter of incarceration fails to either scare or shame its intended recipients, whether alimony recidivists or those accused of domestic violence, I conclude in solidarity with feminist calls to treat the carceral with due suspicion. I echo Iyer’s vision of “a feminism that is self-critical, that balances competing interests and harbors a suspicion of state power while engaging with it” (2016:27). If the Indian feminist movement were to “develop its own discourse on punishment and carcerality” (Dash 2021:22) in the context of divorce, its reassessments could ideally include a material analysis of jailing, consideration of women’s access to housing and economic resources such as matrimonial property, and an imagination of safe domestic spaces without carcerality.