Islamic Norms Common Lawand Legal Reasoning

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Islamic Norms, Common Law, and Legal Reasoning: Muslim Personal Law and
the Economic Consequences of Divorce in India
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254 Islamic Law and Society 24 (2017) 254-286 Subramanian
Islamic Law
and
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brill.com/ils
Islamic Norms, Common Law, and Legal Reasoning:

Muslim Personal Law and the Economic
Consequences of Divorce in India
Narendra Subramanian
McGill University
narendra.subramanian@mcgill.ca
Abstract
Two major judgments of the Indian Supreme Court that awarded Muslim women ali-
mony had very different consequences: Shah Bano (1985) evoked extensive conservative
Muslim protest that led to legislation meant to limit alimony among Muslims, while
Danial Latifi (2001) faced no overt opposition and was not overturned. These conse-
quences were related to the sources and modes of reasoning used. Shah Bano indepen-
dently interpreted Qurʾanic verses, suggested that commonly applicable laws may
override religious law provisions, and called for uniform family laws. Danial Latifi relied
solely on statutes of Indian Muslim law and Islamic norms. It thus followed the Indian
state’s usual approach to personal law, which is sensitive to public preference that fam-
ily life should be regulated according to religious and other cultural norms. However,
public opinion provided support to change Muslim law earlier than the 1970s. More
extensive changes could be introduced over the next decade in Muslim law based on
Islamic norms and Muslim opinion.
* The Social Sciences and Humanities Research Council of Canada, the International
Development Research Centre, and the Fonds pour la Formation de chercheurs et l’aide à la
Recherche supported the research for this paper. The author wishes to thank John Bowen, Wael
Hallaq, Muhammad Khalid Masud, Werner Menski, Sylvia Vatuk, and two anonymous review-
ers for their comments on earlier drafts of the paper, and David Stephan Powers for his valu-
able editorial assistance at various stages of the consideration of the paper. An earlier version
of this paper was presented at a workshop on “Islamic Norms and Legal Processes” organized
by John Bowen at the Institute for the Study of Muslim Civilizations, London.
ISSN 0928-9380 (print version) ISSN 1568-5195 (online version) ILS 3
Islamic Law and Society 24 (2017) 254-286

© koninklijke brill nv, leiden, 2017 | doi 10.1163/15685195-00243p03
Islamic Norms, Common Law, And Legal Reasoning 255
Keywords
Indian Muslim law – adjudication in state courts – alimony – Islamic norms and com-
mon law – repudiation – reform prospects
Judicial Reasoning in Two Alimony Cases
Two major judgments of the Indian Supreme Court that granted Muslim wom-
en alimony had very different political consequences and used different sourc-
es. The relevant cases were Mohammad Ahmed Khan v. Shah Bano Begum
(1985) and Danial Latifi v. Union of India (2001).1 This essay focuses on the dif-
ferences in judicial reasoning that contributed to the striking differences in
political consequences. The first case, popularly called the Shah Bano case
(henceforth Shah Bano), was the most noted personal law case in India’s post-
colonial history. Public debate and street protest concerning Indian Muslim
personal law and family law policy were at their most intense in India in the
aftermath of this judgment. The second judgment drew far less attention be-
cause, unlike the first, it did not lead to extensive protest by conservative Mus-
lims, although the majority of ulama (Islamic religious scholars/ religious
elites) and conservative Muslim political elites disagreed strongly with the ver-
dict, which specifically upheld Shah Bano. The intensity of protest against the
first judgment led the Indian government to pass the only piece of postcolonial
legislation regarding Muslim law, the Muslim Women (Protection of Rights on
Divorce) Act (MWPRDA). This Act was intended to reestablish the interpreta-
tion that had prevailed in the courts until 1974, to wit, that Muslim law requires
men who pronounce talaq (unilateral divorce or repudiation) to provide for
their wives only through the three-month idda (waiting period) following the
divorce. As mobilization against the second judgment was limited, the legisla-
ture faced no pressures to overturn it.
The different sources and forms of legal reasoning used in the two judg-
ments are connected to their different political and legal consequences. Shah
Bano relied on an unusual translation of the Qurʾanic verses about mataʿun bil-
maruf (usually rendered as ‘fair provision’ or ‘customary provision’ upon di-
vorce) as ‘maintenance on a reasonable scale’, and on interpretations of these
verses as requiring husbands to provide for their ex-wives until the latter’s
1 Mohammad Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945; Danial Latifi v. Union of India,
2001 (7) SCC 740.

256 Subramanian
death or remarriage. The court rejected the claims that provision for ex-wives
is a requirement only for the righteous rather than for all Muslim men and that
mata is a lump-sum payment that must be adequate to sustain the wife only
for a short period. In addition, Justice Y.V. Chandrachud, the main author of
the judgment, argued that a section of the Criminal Procedure Code (Cr.P.C.)
(Section 125), perhaps applicable to all Indians, which requires a man to give
maintenance to a wife from whom he is judicially separated or divorced for the
rest of her life if the woman is indigent, takes priority over Muslim personal
law if the latter does not require alimony. He quoted a claim that the ‘fatal
point in Islam is the degradation of woman’, albeit without clearly endorsing
this view; and said that a homogeneous set of family laws applicable to all In-
dians should replace the system of group-specific personal laws. Such a ho-
mogenization of family law would result in the formation of a Uniform Civil
Code (UCC), the adoption of which was urged by the Indian constitution. The
legislature has not so far attempted to introduce a UCC. The judgment sug-
gested, quoting Tahir Mahmood, a major scholar of Indian Muslim law that,
instead of wasting their energies in exerting theological and political

pressure in order to secure an ‘immunity’ for their traditional personal
law from the State’s legislative jurisdiction, the Muslims will do well to
begin exploring and demonstrating how the true Islamic laws, purged of
their time-worn and anachronistic interpretations, can enrich the com-
mon civil code of India.2
The loud chorus of protest in response to the judgment was motivated by the
following features: the courts presumed to interpret the Qurʾan rather than fol-
low the commentaries recognized by Indian courts since the nineteenth cen-
tury, the statement that commonly applicable laws may override provisions of
the personal laws of a religious group, the recommendation that the legislature
introduce a UCC, and the suggestion that Islam degrades women.
The second judgment, Danial Latifi, upheld Shah Bano, but relied on cer-
tain sources that Shah Bano had not used. Specifically, it relied on an inter-
pretation of the MWPRDA, passed a year after Shah Bano, in the light of this
Act’s preamble, constitutional principles, and Shah Bano’s wording, as well as
on the suggestions of a Commission on Marriage and Family Laws of Paki-
stan for changes in Muslim law, while also citing the interpretations of the
Qurʾanic verses used in Shah Bano. Danial Latifi interpreted the MWPRDA along
these lines although this Act seemed to be intended to close the door to the
2 Shah Bano, op. cit., p. 955.

requirement of alimony among Muslims. Justice S. Rajendra Babu, the author

of Danial Latifi, indicated to me that he would have been wary of decreeing
alimony in this case on the basis of constitutional provisions alone if the
MWPRDA had not lent itself to this interpretation.3 The bench he led resisted
pleas to nullify the features of uncodified Islamic law regarding alimony, and to
invalidate sections of the Act although the Act seemed to have been intended
to deny Muslim women alimony. Moreover, the judgment did not state wheth-
er a UCC would be desirable. This judgment, together with some other recent
judgments regarding talaq al-ba’in (unilateral and immediately irrevocable
male repudiation), amended certain features of Muslim law based on statutes
of Indian Muslim law as well as Islamic legal and normative traditions, but did
not attempt far-reaching reform based on constitutional principles alone. The
use of Islamic jurisprudence and Islamic norms in support of reforms in Mus-
lim personal law limited the ability of conservative elites to resist such reforms
as attacks on religious tradition.
Section I provides an overview of important features of the formation of
Muslim law and family law policy in colonial India, and Section II does the
same for the postcolonial period. Section III explores the ways in which state
courts interpreted Muslim law provisions concerning alimony. It discusses
how these interpretations changed in the light of the passage of a criminal law
statute regarding alimony and a Muslim law statute concerning support for
divorced women, with special attention to the two aforementioned Supreme
Court judgments. Section IV briefly examines changes in the adjudication of
talaq al-ba’in. Section V indicates the patterns of change in Indian Muslim law
since the 1970s and speculates about the prospects for further change in India,
as well as in other countries in which Islamic law governs certain areas of
social life.
Muslim Personal Law and the Rule of Law in Colonial India
Under British rule, the major traditions of religious law that were influential in
India were incorporated into a legal system based primarily on common law,
after being vetted according to the variously applied standard of compatibility
with ‘justice, equity and good conscience.’ Of the laws governing the major re-
ligious groups, Hindu law and Muslim law were based on common law-influ-
enced interpretations of prior religious and religio-jurisprudential traditions
and on some aspects of British law, both English and Scottish, while the main
3 Interview, Justice S. Rajendra Babu, former Chief Justice of India (Delhi), July 2 and 3, 2007.

258 Subramanian
statutes of Christian law, passed in the 1860s and 1870s, drew largely from 19th-
century British legislation. Hindu and Muslim personal law were sometimes
called Anglo-Hindu and Anglo-Muhammadan law, respectively, to capture the
ways in which they amalgamated British and Hindu/Islamic legal traditions.4
The formation of commercial and criminal law in the common-law tradition
was an important aspect of the British colonial project. Colonial administra-
tors wished to apply aspects of religious law to the regulation of family life, to
accommodate the public presence of religion and to ensure greater popular
affinity with state law. To integrate features of religious law into the common
law framework that characterized the rest of the legal system, British Oriental-
ists, colonial administrators, lawyers, and judges in the colonial courts com-
piled personal law books in the common-law tradition that incorporated some
patterns of dispute resolution prevalent among India’s major religious groups.
These books guided how the colonial courts constructed the distinct personal
law systems of the Hindus, Muslims, Christians, Parsis, and Jews.5 Community
courts continued to consider disputes, largely ignoring colonial personal-law
texts and common-law methods. Administrators tolerated the operation of the
community courts without necessarily accepting their verdicts or implement-
ing them.
In Indian political and legal discourse, the terms ‘Muslim law’ and ‘Muslim
personal law’ are used to refer to the laws applied by state courts to Indian
Muslims regarding family life and inheritance. These courts rely on statutes
applicable to Indian Muslims alone, on specific Islamic norms, and on several
criminal and civil law statutes applicable to all Indians, and sometimes also on
certain features of the Indian constitution, such as the Fundamental Rights.
Common-law conventions often influence how these courts interpret these
4 See J. Duncan M. Derrett, Religion, Law, and the State in India (New York: Free Press, 1968);
Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton,
NJ: Princeton University Press, 2010); John Mansfield, “The Personal Laws or a Uniform Civil
Code?” in Robert D. Baird, ed., Religion and Law in Independent India (New Delhi: Manohar
Publishers, 1993), 139–77; Werner Menski, Modern Indian Family Law (Richmond, UK: Curzon
Press).
5 See, for instance, Nathaniel Brassey Halhed, A Code of Gentoo Laws, or Ordination of the
Pundits: From a Persian Translation, Made from the Original, Written in the Shanscrit Language
(Holmes Beach, FL: Gaunt Publishers, 2001); Thomas Strange, Hindu Law VI: Principal with
Reference to such Portions of It as Concern the Administration of Justice in the King’s Courts, in
India (Whitefish: Kingfisher Publishing, 2007); Syed Ameer Ali, Mahommedan Law: Compiled
from Authorities in the Original Arabic (New Delhi: Himalayan Books, 1985); Dinshaw Fardunji
Mulla, The Principles of Mahomedan Law (Calcutta: Eastern Law House, 1968); idem, Principles
of Hindu Law (Bombay: N.M. Tripathi Private, 1975).

sources, relate them to one another, and seek to reconcile them.6 ‘Islamic law’
is used to refer to rules that are framed as based in shariʿa (the moral norms
prescribed in the Qurʾan and those embodied in the practices of the early Is-
lamic community, which are the primary sources of Islamic jurisprudence)
and fiqh (substantive rules developed on the basis of ongoing dialogue among
Islamic jurists to construe the implications of authoritative texts for particular
social situations and disputes). The term may refer to forms of Islamic jurispru-
dence prevalent in different historical epochs, the rules that state courts in
Muslim-majority countries deem Islamic and apply to Muslims, and the rules
applied by Islamic community courts in India or elsewhere. The rules of Indian
Muslim law are not identical to ‘Islamic law.’
The court practices and personal law handbooks of the colonial period re-
garding Muslim law drew substantially from two texts, the Hidaya, a major
twelfth century Hanafi juridical text, and Fatawa-e-Alamgiri, a collection of
legal opinions of Islamic scholars (predominantly Hanafi) compiled at the re-
quest of the Mughal emperor Aurangzeb in the seventeenth century. These
texts relied predominantly on the patterns of dispute resolution and the inter-
pretations of authoritative Islamic sources in the Hanafi madhhab, of which
the majority of Indian Muslims were said to be adherents. Colonial Muslim
personal-law handbooks were very different, however, from pre-colonial texts.
Crucially, the incorporation of Islamic law into a common law framework
meant that the practice of following precedent reduced flexibility in adjudica-
tion and marginalized certain processes that had enabled ongoing changes in
approaches to adjudication before colonial rule. It specifically limited the roles
of fiqh and ijtihad (an individual’s innovative legal interpretation, said to be
based on exceptional expertise as well as the exertion of maximal mental
energy to discover the implications of god’s law), especially after the courts
ended the regular consultation of Hindu and Muslim religious scholars in the
1860s.7 (Although Sunni religious scholars claimed that the gates of ijtihad
were closed around the end of the ninth century, some of these very scholars
periodically resorted to ijtihad, as Wael Hallaq has demonstrated).8 Never
theless, judges, lawyers and legal mobilizers could draw upon a variety of
sources to reason about family disputes among Muslims. The colonial courts
6 See Tahir Mahmood, Islamic Law in Indian Courts since Independence: Fifty Years of Judicial
Interpretation (New Delhi: Institute of Objective Studies, 1997).
7 S.A. Kader, Muslim Law of Marriage and Succession in India: A Critique with a Plea for an
Optional Civil Code (Calcutta: Eastern Law House, 1998); Gregory C. Kozlowski, Muslim
Endowments and Society in British India (Cambridge: Cambridge University Press, 1985).
8 Wael B. Hallaq, “Was the gate of ijtihad closed?,” International Journal of Middle East Studies
16:1 (1984), 3–41.

260 Subramanian
provided for the adherents of non-Hanafi madhhabs to be governed by the pro-

visions of their madhhabs, as they understood them. Moreover, they recog-
nized customs specific to region, sect, lineage, and family as alternatives to
religious law that were nevertheless based on cultural distinctiveness. The
courts did so systematically for some groups, relying for instance on the in-
heritance customs of certain patrilineal groups in western and northern India
that give daughters smaller shares in family property than Qurʾanic rules do. In
addition, ‘justice, equity and good conscience’ was considered an appropriate
basis on which judges should interpret law. In practice, this usually meant that
common law methods were used to interpret indigenous laws. The idea that
‘justice, equity and good conscience’ is an appropriate basis of adjudication
became a part of Indian legal culture, and has played a role in some of the re-
formist judgments handed down since the 1970s.
Many ulama initially opposed the restriction of the scope of Islamic law to
the regulation of family relations and the adoption of patterns of legal reason-
ing that they did not value. Beginning in the late nineteenth century, however,
these scholars shifted to a defence of Muslim personal law as it was imple-
mented in state courts, hoping in the process to shape its course. They thus
accommodated themselves to colonial law and linked Muslim personal law to
the recognition of Muslim religious identity.9 The adoption of this posture by
the guardians of the faith encouraged others to equate Muslim personal law
with shariʿa.10 However, the ulama claimed that they alone possessed the
knowledge and values appropriate to interpret shariʿa, a view that they ex-
pressed particularly when they disagreed with certain state court rulings; and
they longed for a day when shariʿa would reign supreme. The major religious
institutions that emerged beginning in the mid-nineteenth century, especially
the Darul Uloom Deoband, formed new networks of dar’ul qazas (institution-
alized religious courts) where they applied Islamic law in accord with how
they interpreted it. They urged their followers to take their disputes to these
courts, especially when they disagreed with how Muslim law was interpreted
in state courts, while retaining some influence over how state courts interpret-
ed Muslim law.11
9 See Paul R. Brass, “Elite Groups, Symbol Manipulation and Ethnic Identity Among the
Muslims of South Asia,” in Paul R. Brass, Ethnicity and Nationalism Theory and Compari-
son (New Delhi: Sage Publications, 1991), 75–108; Francis Robinson, “Islamic Reform and
Modernities in South Asia,” Modern Asian Studies 42:1 (2008), 259–81.
10 Brass, “Elite Groups.”
11 See Barbara D. Metcalf, Islamic Revival in British India: Deoband, 1860–1920 (Princeton:
Princeton University Press, 1982); Muhammad Qasim Zaman, The Ulama in Contempo-
rary Islam: Custodians of Change (Princeton: Princeton University Press, 2002).

Some ulama adopted a new form of ijtihad that they performed collectively.
Moreover, they rejected regional customs, most of which they regarded as un-
Islamic, perhaps Hindu. Such innovation does not accord with Paul Brass’s
contention that the ulama defended “traditional” pre-colonial Islamic law
through the colonial and postcolonial eras.12 The ulama’s rhetorical commit-
ment to limit customary practices coexisted with a willingness to accommo-
date certain customs of influential Muslim groups, e.g., the abovementioned
patrilineal inheritance practices of the upper- and middle-castes of northern
and western India, and caste endogyny, which was practiced by most Indian
groups.13 The ulama framed these departures from classical fiqh as being based
in shariʿa, and this may have contributed to the misunderstanding that the
ulama based themselves entirely on traditional jurisprudence.
Various Muslims educated in secular institutions also engaged in ijtihad,
and some of them sought in the process to appropriate the authority the ula-
ma enjoyed among Muslims. Although certain goals of theirs were different,
ulama and partly secularized Muslims agreed about reviving Muslim social life
through a return to shariʿa, limiting the role of regional customs in the gover-
nance of Muslim family life, and promoting Muslim political and social soli-
darity. To achieve these ends, they initiated the first two pieces of Muslim
personal law legislation in the late 1930s – the Muslim Personal Law (Shariat)
Application Act, 1937, and the Dissolution of Muslim Marriages Act, 1939. The
first Act made Muslim law rather than local custom the basis of the regulation
of Muslim personal life. It gave the majority of Muslim women greater inheri-
tance rights and more scope to choose a spouse. However, the increase in
women’s inheritance rights was offset by the exclusion of agricultural land
from the purview of Muslim law. To gain the consent of influential landholding
elites who wanted patrilineages to retain control over such land, rather than
cede such control to individual kin, Muslim law was not applied to agricultural
land. These elites very strongly opposed giving women title to agricultural land
because women are generally taken to leave their patrilineages when they
marry. The second Act used the principle of takhayyur (a form of eclecticism in
Islamic jurisprudence) to borrow provisions of Maliki law to enhance the di-
vorce rights of Muslim women who might otherwise resort to apostasy as a
means to gain divorces.14 The ulama who pressed for this change, particularly
12 Ibid.
13 On the justification of caste endogyny, see Muhammad Qasim Zaman, Ashraf Ali Thanawi:
Islam in Modern South Asia (Oxford: Oneworld Publications, 2008).
14 Takhayyur refers to two forms of legal eclecticism: either the choice of one of several
opinions prevalent in a madhhab about the ruling appropriate in a particular context, or

262 Subramanian
Maulana Ashraf Ali Thanawi of the Darul Uloom Deoband, communicated

with Maliki ulama from North Africa in designing their proposals.15 Later ini-
tiatives to change Indian Muslim law also followed the pattern of these efforts
of the 1930s insofar as they drew upon Islamic legal traditions and scholarship
from other regions of the world. Many Muslim public figures sought further
changes in their community’s personal law and social practices. The majority
of ulama favoured only a few of these changes. Nevertheless, these demands
gained greater support from the 1970s onward, when organizations represent-
ing women, and Muslim women in particular, became stronger.
Early Postcolonial Policy: The Indefinite Postponement of Reform
Choices Available, Choice Made

Decolonization, the adoption of a constitution in 1950, and particular features
of this constitution made several policy choices possible regarding family law
and Muslim law in particular: (a) the introduction of homogeneous family
laws applicable to all citizens; (b) the systematic reform of the personal laws
with regard to constitutional rights; and (c) changes in the different personal
laws based on the traditions, practices, and initiatives of the group in question.
(a) Homogenization: Article 44 of the Directive Principles of State Policy in
the Indian constitution directed the state to homogenize family law, leading to
the introduction of a UCC, as had happened in early republican Turkey. Many
contributors to the public debate about a UCC felt that homogeneous family
laws should be fashioned according to principles that are framed as universal-
istic, rather than as based on the traditions of particular religious or ethnic
groups. But many Indians felt close links between their personal laws and their
religious identities, Muslims in particular valued their personal laws, and the
accommodation of Muslims was considered crucial in the aftermath of the
formation of Pakistan and the accompanying ethnic violence. In recognition
of these circumstances, policymakers indefinitely postponed the homogeniza-
tion of family law.
(b) Reform based on Constitutional Rights: Of the Fundamental Rights in
the Indian constitution, Article 14 guarantees equality before the law and equal
protection, Article 15 prohibits discrimination on various grounds including
the choice of an opinion prevalent in another madhhab. The Dissolution of Muslim Mar-
riages Act involved the latter type of choice.
15 Zaman, Ashraf ‘Ali Thanawi.

sex and religion, and Article 21 protects life and personal liberty. Litigants and
judges most often referred to these articles when addressing questions of per-
sonal law. Article 21 became more relevant to personal law in 1975, when the
Supreme Court interpreted it to also provide the rights to privacy, to live in
dignity, and specifically to “the personal intimacies of the home, the family,
marriage, motherhood, procreation and child rearing.”16 Although personal
law policy differentiated rights according to religious identity, and the various
personal law systems accorded women fewer rights than men in many re-
spects, the executive did not systematically amend personal law with a view to
meeting constitutional standards. Such a project would have involved major
changes, and political elites felt that certain influential civil society organiza-
tions and political parties were likely to mobilize citizens against such exten-
sive change in the regulation of family life. The judiciary did not change
personal law along these lines either. The Bombay High Court rejected appeals
to amend the personal laws based on constitutional rights alone in Narasu
Appa Mali v. State of Bombay (1952), and later benches followed this precedent.17
(c) Culturally Grounded Reform: This was the path along which state-rec-
ognized Muslim law was changed in postcolonial Tunisia, Senegal, Libya,
Egypt, Jordan, Iraq, Iran (under the Pahlavis), Pakistan (until the 1970s), Sri
Lanka, Bangladesh, Indonesia, and Malaysia, and more recently in Morocco.18
16 See Govind v. State of M.P., AIR 1975 SC 1378.

17 Narasu Appa Mali v. State of Bombay, AIR 1952 Bom 84.
18 Mounira M. Charrad, States and Women’s Rights: The Making of Postcolonial Tunisia, Alge-
ria, and Morocco (Berkeley: University of California Press, 2001); idem, Charrad, “Tunisia
at the Forefront of the Arab World: Two Waves of Gender Legislation,” Washington and
Lee Law Review, 64 (2007), 1513–27; Ann Elisabeth Mayer, Islamic Law in Libya: Analyses of
Selected Laws Enacted Since the 1969 Revolution (London: School of Oriental and African
Studies, Department of Law, 1977); Lama Abu-Odeh, “Modernizing Muslim Family Law:
The Case of Egypt,” Vanderbilt Journal of Transnational Law, 37 (2004), 1043–1146; Lynn
Welchman, “The Development of Islamic Family Law in the Legal System of Jordan,”
International and Comparative Law Quarterly, 37:4 (1988), 868–86; Kristen Stilt, “Islamic
Law and the Making and Remaking of the Iraqi Legal System,” George Washington Inter-
national Law Review, 36 (2004), 695–756; Arzoo Osanloo, The Politics of Women’s Rights in
Iran (Princeton: Princeton University Press, 2009); Matthew J. Nelson, In the Shadow of
Sharīʿah: Islam, Islamic Law, and Democracy in Pakistan (New York: Columbia University
Press, 2011); Ridwanul Hoque and Md. Murshed Mahmud Khan, “Judicial Activism and
Islamic Family Law: A Socio-Legal Evaluation of Recent Trends in Bangladesh,” Islamic
Law and Society, 14:2 (2007), 204–39; John R. Bowen, Islam, Law, and Equality in Indonesia:
An Anthropology of Public Reasoning, (Cambridge: Cambridge University Press, 2003);
Michael G. Peletz, Islamic Modern: Religious Courts and Cultural Politics in Malaysia,
(Princeton: Princeton University Press, 2002).

264 Subramanian
India’s political elites introduced culturally grounded reforms in the late 1940s
and the 1950s in the laws of the Hindu majority, but not in the laws of the reli-
gious minorities. The changes in Hindu law soon after independence were
based largely on culturally specific sources – Hindu legal traditions as they had
been constructed in the colonial period, and recently formed visions of revital-
ized Hinduism and Indian modernity. These changes promoted the authority
of the nuclear family and increased women’s rights in some respects, while
maintaining the authority of men and patrilineages in other respects. Policy-
makers said that changes in the laws pertaining to religious minorities would
be left to the initiative of unspecified representatives of the relevant group,
though without making formal commitments in this regard. Moreover, they
usually considered conservative religious and political elites to be the voices of
the religious minorities, including the Muslim community. The tendency to
defer to such leaders was greater regarding Muslim law for the following rea-
sons: Muslim law was least codified; as a result of this, classic religious texts
and commentaries on these texts were standards of reference much more of-
ten about Muslim law than regarding India’s other personal laws; and the ma-
jority of state elites were unfamiliar with Islamic religious traditions and legal
reasoning. As the majority of political elites and participants in Indian political
debate understood conservative Muslim religious and political elites to oppose
changes in personal law, the informal influence of the latter elites appeared to
make changes in Muslim law unlikely.
By desisting from changing the laws of the religious minorities, policymak-
ers claimed that they were respecting the wishes of these groups. However,
public opinion and legal mobilization around the time of independence did
not provide greater scope for Hindu law reform than for similar culturally
grounded changes in the laws of India’s two largest religious minorities, the
Muslims and the Christians. We saw that Muslim public figures had initiated
changes in Muslim law in the 1930s, and that some of them sought further
change based on the norms, practices, and opinions of Muslims. Various ula-
ma, such as Maulana Hussain Ahmad Madani of the Darul Uloom Deoband,
Muslim elites educated in secular institutions such as the lawyer-jurists Badru-
ddin Tyabji and Asaf Ali Fyzee, Muslim women’s organizations like the Anju-
man-i-Khavatin-i-Islam (All India Muslim Ladies’ Conference), and certain
Muslim leaders of the All India Women’s Conference (the strongest women’s
organization of the time) wished to proceed further with the reforms begun in
Muslim law in the 1930s. The Anjuman Khavatin-i-Islam demanded that po-
lygamy and unilateral male repudiation no longer be recognized, and that the
minimum marriage age be increased from fourteen to sixteen; and its demands
drew support from various male Muslim public intellectuals. While she was

the President of the All India Women’s Conference in the 1930s, Begum Sharifa
Hamid Ali prepared a model nikahnama (marriage contract) that gave a wom-
an talaq-i-tafwid (delegated divorce right) if her husband married another
woman without her consent or if he failed to fulfil other conditions stipulated
in the contract, without requiring her to forfeit her mahr (dower), as Hanafi
law required when a woman initiates a divorce petition. Baji Rashida Latif, Be-
gum Hafeezuddin and Begum Qudsia Aizaz Rasul, leaders of the Muslim
League (the last of whom joined the Congress Party after independence), de-
manded the application of Muslim law to the inheritance of agricultural land
as well.19
Such reformist currents influenced the positions adopted by some Muslim
leaders in the Constituent Assembly debates on family law. Most Muslim lead-
ers wished to retain distinct personal laws, but remained open to changes in
these laws if they had the relevant group’s consent. Some, like Naziruddin Ah-
mad and Hussain Imam, were willing to accept the future introduction of a
UCC if all religious groups agreed with this.20 Early postcolonial policymakers
did not engage with such sentiments to change Muslim law because of their
limited association with the mobilization of Muslims and their unfamiliarity
with the language of fiqh in which these initiatives were conceived. While it
was not evident that these initiatives represented preponderant Muslim opin-
ion, it was equally unclear that the Hindu law reforms introduced in the 1950s
enjoyed support among the majority of Hindus. Thus, the architects of these
reforms were unable convincingly to rebut criticisms that there was more sup-
port among Muslims for a ban on bigamy (a change that they did not attempt
in Muslim law) than there was among Hindus for the introduction of divorce
rights (a change that they did introduce in Hindu law in 1955). As the Muslim
community was in disarray amidst the violence and population movements
that accompanied Pakistan’s formation, even Muslim representatives who
were open to changes in Muslim law did not propose specific reforms along
these lines at that time. These positions of the Muslim representatives, the
19 Faisal F. Devji, “Gender and the Politics of Space: the Movement for Women’s Reform,
1857–1900,” in Forging Identities: Gender, Communities, and the State, ed., Zoya Hasan
(Delhi: Kali for Women, 1994), 35–63; Gail Minault, Secluded Scholars: Women’s Education
and Muslim Social Reform in Colonial India (Delhi: Oxford University Press, 1998); Muham-
mad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of Change (Princeton:
Princeton University Press, 2002); Ayesha Jalal, Self and Sovereignty: Individual and Com-
munity in South Asian Islam since 1850 (London: Routledge, 2001); Barbara Metcalf, Husain
Ahmad Madani: The Jihad for Islam and India’s Freedom (Delhi: Oneworld, 2009).
20 Constituent Assembly of India, Constituent Assembly of India Debates, 10 vols., Lok Sabha
Secretariat, New Delhi, 1999, vol. 7, pp. 541–3, 546.

266 Subramanian
disengagement of most policymakers from Muslim initiatives, and the failure

to involve Muslim leaders of the Congress Party in designing Muslim accom-
modation, resulted in no changes being made in Muslim law. Although Chris-
tian reformers did not focus as much as Muslims did on personal law, some
Christians had begun to demand increased divorce rights by the 1950s.21
While the executive and legislature missed an opportunity to change Mus-
lim law soon after independence, some judges did change certain features of
Muslim law. They did so initially in 1960, when the Bombay High Court award-
ed a Muslim woman judicial separation and maintenance from a bigamous
husband in Itwari v. Smt. Asghari Begum (1960).22 Beginning in the 1970s, judg-
es changed certain features of Muslim law more extensively. Shah Bano and
Danial Latifi were important signposts along this path of piecemeal judicial
reform.
Muslim law in the state courts drew upon a variety of sources during this
period of legal change. The main sources were as follows: (i) statutory Muslim
law – which dealt only with divorces initiated by women and, after 1986, the
maintenance rights of divorced women; (ii) uncodified Islamic legal traditions
– primarily though not exclusively as reflected in periodically updated person-
al law texts; (iii) other Islamic norms and traditions – primarily the Qurʾan, the
Hadith, and interpretations of these texts; (iv) the predicaments which many
Indian Muslims felt their community faced, such as regarding the appropriate
response to the increase in indigence among divorcées; (v) emergent Indian
Muslim initiatives, such as to grant all women rights to Qurʾanic shares in the
inheritance of agricultural land, increase mahr amounts, specify mahr in gold
and silver to protect its value in the face of inflation, and recognize talaq-i-
tafwid even if a couple’s nikahnama did not contain this provision; (vi) laws
and customs specific to region, sect or caste, such as the matrilineal practices
of the Mappilas of southwest India; (vii) Islamic state law in other countries,
primarily those that had experienced significant modernist reform, such as
Tunisia, where soon after independence women were granted the right to ali-
mony, unilateral male repudiation was made contingent on judicial ratifica-
tion, and polygamy was criminalized; (viii) certain interpretations of Islamic
21 Alice Jacob, “Uniform Civil Code: Reforms in Christian Family Law,” in Engendering Law:
Essays in Honour of Lotika Sarkar, ed. Amita Dhanda and Archana Parashar (Lucknow:
Eastern Book Company, 1999), 375–86; India, Parliamentary Debates, Lok Sabha Secretar-
iat, Delhi, 1954, pp. 2511–12; interviews, Jyotsna Chatterji, founding President, Joint Wom-
en’s Programme (Delhi), May 3, 2003, June 19 and 24, 2006; Dr. John Dayal, President, All
India Catholic Union (Delhi), July 26 and 29, 2006.
22 Itwari v. Smt. Asghari Begum and others, AIR 1960 All 684.

traditions – such as those that treat mataʿun bil-maruf as obligatory and the
equivalent of alimony; and (ix) criminal laws relevant to matrimonial life, such
as that requiring alimony for indigent divorcées. Some petitions and judg-
ments also referred to the Fundamental Rights in the Indian constitution and
features of transnational human rights law such as the Convention for the
Elimination of All Forms of Discrimination against Women (CEDAW), but judg-
ments were not based on these sources alone. The availability of such a wide
array of sources and the uncertain relationship between some of these sources
increased the room for judicial interpretation.
Landmark Judgments and Legal Reasoning
We now move to the forms of legal reasoning that entered the major reformist
judgments regarding alimony. The courts also changed laws concerning talaq
al-ba’in and the rights of a woman to maintenance, separate residence, and,
perhaps, divorce from a bigamous husband. The following discussion of the
alimony cases is based on an examination of the judgments and their prec-
edents, as well as interviews with actors who played crucial roles in them,
including the judges who wrote the currently definitive Supreme Court judg-
ments on alimony and talaq al-ba’in.
The colonial courts accepted certain interpretations of Islamic law and rec-
ognized particular Islamic norms that provided fewer rights for women, while
ignoring many alternative interpretations offered by major Muslim jurists cen-
turies earlier, as well as the novel understandings developed by reformist Is-
lamic scholars in India and elsewhere beginning in the nineteenth century. For
instance, they required a man to give his ex-wife maintenance only during her
waiting period, which lasts three months after divorce or until the end of the
woman’s pregnancy if she was pregnant at the moment when the husband ini-
tially announced his intention to divorce her. In addition, some courts required
a man to give his wife her deferred mahr and any gifts she might have received.
According to this interpretation, only one of the forms of support from a hus-
band to his ex-wife mentioned in the Qurʾan is mandatory – nafaqa (mainte-
nance during idda, based on Q. 4:34) and not mata (sometimes translated as
provision, mentioned in Qurʾan 2:236, 240, 241). All Muslim jurists consider na-
faqa mandatory if the wife submits to her husband’s authority.
But most Hanafi jurists give the ex-husband discretion over whether to
grant mata and over the extent of support awarded thereby to the divorcée.
The other major madhhabs (including the Ithna Ashari and the Shafiʿi, both of
which govern significant portions of the Indian Muslim population) consider
mata obligatory, but qazis (Islamic religious judges) affiliated with these madh-

268 Subramanian
habs do not appear to have systematically required such awards when inter-
vening in matrimonial disputes in India.
The colonial courts accepted the validity of talaq al-ba’in, following the pre-
dominant view in Hanafi and Shafiʿi law, despite the fact that all madhhabs
consider such divorces irregular and urge a man to attempt reconciliation with
his estranged wife before he finalizes the repudiation; and certain schools –
the Ithna Ashari, Mustaʿlian Ismaʿili, and Ahl-i-Hadith – do not recognize such
divorces. In 1905, a court regularized the rationale for this view by saying that
such divorces are “good in law, though bad in theology.”23 Postcolonial courts
followed these precedents until the 1970s.
When some courts later departed from these precedents, Muslims engaged
with the directions taken by official Muslim law wanted judicial interpreta-
tions to be based on Islamic norms as broadly understood in the community.
They subjected the judicial interpretations of Islamic norms to greater critical
scrutiny in response to a decline in Muslim representation in various elite
spheres and specifically in the judiciary after the partition of Pakistan from
India and thereafter. The feeling that Muslim viewpoints were inadequately
represented in state institutions sharpened Muslim scepticism about innova-
tive interpretations of Muslim law. This trend made certain judges particularly
attentive to justifying their decisions in terms of Islamic sources and sharp-
ened opposition to alternative interpretations. Muslim reactions to judicial
reforms of Muslim law depended more on whether these decisions were based
on Islamic norms than on whether the judges were Muslims. As we will see,
conservative Muslims opposed judgments by both Muslims and Hindus that
restricted unilateral male repudiation, as well as judgments that required ali-
mony. But when judges grounded their innovative decisions in Islamic norms,
conservative Muslims were either unable to mobilize widespread Muslim pro-
test or did not attempt to do so because they expected such efforts to fail.
Many scholars misunderstand how Muslim law has developed in the post-
colonial Indian courts. For instance, Archana Parashar, Ratna Kapur and Bren-
da Cossman, and Rajeswari Sunder Rajan argue that the courts interpreted
legislation to increase women’s rights in Muslim law in certain respects in the
1970s and 1980s. But they claim that the majority of Muslims active in civic life
opposed these reforms, which they understood to undermine the recognition
of their religious identity, leading the legislature to abandon Muslim law re-
form and reinstate precedent.24 These claims, which refer mainly to alimony
23 Sarabai v. Rabiabai (1905) ILR 30 Bombay 537 at 537.

24 Archana Parashar, Women and Family Law Reform in India: Uniform Civil Code and Gender
Equality (New Delhi: Sage Publications, 1992); Ratna Kapur and Brenda Cossman,
Subversive Sites: Feminist Engagements with Law in India (New Delhi: Sage Publications,

rules, are inaccurate. We will see that even many conservative Muslims viewed
only some of the judicial reforms in Muslim law as threats to their religious
freedom and that they rallied only against those reforms. Some conservative
Muslims welcomed certain reformist Muslim law judgments, which prompted
them to understand Islamic traditions differently. Although the only piece of
legislation that the postcolonial parliament passed concerning Muslim law,
the MWPRDA, was intended to limit the obligation of Muslim men to maintain
their ex-wives, certain courts interpreted the Act in ways that left Muslim men
responsible to provide for these women until their remarriage or death, either
by giving her alimony or giving her a share of their property at the time of di-
vorce. These judgments faced limited Muslim resistance because they inter-
preted Muslim law based on Islamic legal traditions, rather than prioritizing
criminal law over Muslim law or overruling aspects of Muslim law based on
constitutional rights. As a result, the legal changes introduced by these judg-
ments were not overturned.
a Alimony – Criminal Law Reform

Concern about the growth of vagrancy among divorcées led the legislature to
amend Section 125 of the Cr.P.C. in 1974 to require that men support their indi-
gent ex-wives. However, at the same time, Section 127(3)(b) of the Cr.P.C. de-
ducted any amount a husband may have given his ex-wife, based on the
provisions of the personal law governing the couple, from the payment that
Section 125 required the husband to provide her. This sub-section was intro-
duced in response to the demand of some Muslim legislators that mahr pay-
ments be deducted from the maintenance obligations of Muslim men towards
their ex-wives, a demand that ignored the consensus among ulama that mahr
is distinct from nafaqa and that mahr is a consequence of marriage rather than
of divorce. Some Muslim men argued that Section 127(3)(b) of the Cr.P.C.
meant that they are obliged to support their ex-wives only for three months.
This interpretation was supported by the majority of ulama and the All India
Muslim Personal Law Board (AIMPLB), an alliance of Muslim religious and
community organizations formed in 1972 to coordinate conservative Islamic
legal mobilization, defend Muslim law precedent, and prevent the introduc-
tion of a UCC. Women’s organizations and other civil society organizations
grew in strength around the same time, and some of them pressed for reforms
in Muslim law. They argued that Muslim divorcées should be given alimony,
either on the grounds that Section 125 of the Cr.P.C. overrides Muslim law or by
1996); Rajeswari Sunder Rajan, The Scandal of the State: Women, Law, Citizenship in Postco-
lonial India (Durham, NC: Duke University Press, 2003).

270 Subramanian
interpreting mata to be obligatory and the equivalent of alimony. These orga-

nizations and their motivating visions came into conflict with one another in
the Shah Bano and Danial Latifi cases.
Between the passage of the alimony provision in 1974 and Shah Bano (1985),
the majority of High Courts ruled in favour of alimony for Muslim divorcées,
relying on one or more of the following arguments: that Section 125 of the
Cr.P.C. applies to all Indians, as the legislators intended Section 127(3)(b) to
only deduct amounts that a man provides his ex-wife based on his personal law
from the obligations imposed by Section 125; that Section 125 should supple-
ment Muslim law if Muslim law is understood to require husbands to provide
maintenance only through idda, as Muslim law does not address the possibility
of vagrancy among divorcées; and that the Qurʾanic verses about mata require
husbands to provide maintenance until their ex-wives marry someone else or
die.25 According to the first two arguments, criminal law supplements the rules
of Muslim law in certain contexts. The third justifies alimony until death or
remarriage with reference to Islamic norms and accepts certain reformist in-
terpretations of Islam’s founding text, breaking with the predominant judicial
practice of reliance on authoritative commentaries, textbooks of Muslim law,
and case precedent. Bai Tahira v. Ali Hussain Fisalli Chothia (1979) and Fuzlunbi
v. Khader Vali (1980), the Supreme Court’s first two alimony verdicts, made the
first argument, interpreting Sections 125 and 127(3)(b) of the Cr. P.C. with refer-
ence to Article 15(3) of the constitution, which stipulates that non-discrimina-
tion based on ascriptive identity does not preclude special provisions for
women and children.26 These verdicts evoked no protest from Muslim reli-
gious and political elites.
b Shah Bano
Shah Bano attracted considerable attention because individuals and organiza-
tions that had long engaged with Muslim law became involved in the case
when it reached the Supreme Court. Some conservative Muslim organizations,
including the AIMPLB, intervened on behalf of the husband who claimed that
his obligations towards his ex-wife ended with the maintenance payments he
25 The relevant verses say: “For divorced women, let there be a fair provision. This is an obli-
gation on those who are mindful of God”; and “Let the divorced women dwell where ye
dwell, according to your means, and do not harm them, to reduce them to straits.” (Syed
Abdul Latif, al-Quran: Rendered into English [Hyderabad: Academy of Islamic Studies,
1969]). To date, the courts have not followed the suggestion that the latter verse gives
divorcées rights in the matrimonial home.
26 Bai Tahira v. Ali Hussain Fisalli Chothia, AIR 1979 SC 362; Fuzlunbi v. Khader Vali, AIR 1980
SC 1730.

had given her during idda. Danial Latifi, the lawyer who represented Shah
Bano when her case reached the Supreme Court, brought to bear on this case
a familial tradition of advocacy of Muslim law reform and an extensive knowl-
edge of Islamic traditions. (The later landmark case about Muslim alimony
bore his name because he led the team that requested the Supreme Court to
clarify the implications of the MWPRDA). His grandfather, Badruddin Tyabji,
and his uncle, Asaf Ali Fyzee, were authors of major textbooks of Muslim per-
sonal law and advocates of innovative Islamic legal reasoning; and his aunt,
Begum Sharifa Hamid Ali, had pressed successfully to ban child marriage and
attempted to increase Muslim women’s matrimonial rights. Earlier in his ca-
reer, Latifi had defended communist revolutionaries and trade unionists and
had appeared in cases to clarify the cultural and educational rights of religious
and ethnic minorities.27 He welcomed the first Supreme Court verdict that
supported alimony and argued that it was based upon Islamic norms, although
the court itself had not offered this argument. He argued that alimony is con-
sistent with the Qurʾanic verses regarding mata, as understood by major classi-
cal jurists such as Shafiʿi and Jaʿfar al-Sadiq, the “founders” of the Shafiʿi and
Ithna Ashari schools, respectively.28 This claim became a crucial part of his
petition on behalf of Shah Bano, which argued that the relevant Qurʾanic vers-
es make it clear that mata is obligatory. Latifi recognized that he was advocat-
ing the application of a non-Hanafi position to Hanafis, and he presented his
reasoning as a legitimate exercise in takhayyur that followed the precedent set
by major ulama in 1939 when they imported Maliki provisions to increase Mus-
lim women’s divorce rights.29 By contrast, the AIMPLB’s lawyers argued that
Section 127(3)(b) of the Cr.P.C. excludes Muslims from the purview of Section
125, that mata is an optional lump-sum payment, and that the award of de-
ferred mahr and nafaqa is the only necessary material consequence of divorce.
The Shah Bano judgment incorporated Latifi’s arguments, as well as the
claims of earlier Supreme Court benches, that maintenance rights should be
understood in light of the growth of indigence among divorcées. Justice Y.V.
Chandrachud, who led the Shah Bano bench, suggested that the Qurʾanic vers-
es unambiguously require alimony and that the Hanafi position that these
27 Anil Nauriya, “In Memoriam: Danial Latifi, 1917–2000,” India Seminar (2000), <http://
www.india-seminar.com/2000/492/492%20memoriam.htm>; Accessed: May 14, 2016.
28 Danial Latifi, “The Muslim Women Bill,” in The Shah Bano Controversy, ed., Asghar Ali
Engineer (Bombay: Orient Longman, 1988), 102–07; Danial Latifi and Syed Ameenul
Hasan Rizvi, “Views on Maintenance for Divorced Women,” in Shah Bano and the Muslim
Women Act, a Decade On: The Right of the Divorced Muslim Woman to Mataa, ed. Lucy
Carroll (Grabels Cédex, 1998), 65–8.
29 Latifi and Rizvi, “Views on Maintenance,” 27–9.

272 Subramanian
verses imply no such obligation merits no consideration despite its long-

standing authority. He found in Section 125(3) of the Cr. P.C. a justification for
Section 125 to take priority over Muslim law if the latter does not require alimo-
ny.30 By referring early on to the view that Islam degrades women, the judg-
ment pointed to the larger problem that religious laws support many forms of
unequal gender relations in society. The reference to the statement in the
Manu Smrti, the first authoritative Hindu moral code, that women do not de-
serve independence, was perhaps meant to establish the credentials of an en-
tirely Hindu bench as equally critical of India’s major religious traditions,
rather than only of Islam. If the call for judicial reform in the face of injustice
was meant to inspire the judiciary, the indication of a need for a common Civ-
il Code suggested how the legislature might proceed. Even the need for a UCC
was presented tactfully in the words of Tahir Mahmood (quoted above), a
prominent Muslim legal scholar, to involve the confluence of India’s religious
laws and religious traditions, rather than an end to the recognition of religion
in family law.
Conservative Muslims, including the strongest Muslim religious and politi-
cal organizations, responded to Shah Bano with the most extensive mobiliza-
tion concerning personal law in India since the 1950s. As indicated earlier, they
objected to the following features of the judgment: its adoption of an interpre-
tation of certain Qurʾanic verses that differed from the commentaries that had
been recognized by Indian courts for at least a century, the prioritization of
commonly applicable laws over a group’s personal laws, the recommendation
that the legislature introduce a UCC, and the suggestion that Islam degrades
women. Latifi himself called these features of Shah Bano “exuberances of ex-
pression offensive to Muslim sentiment.” Moreover, Tahir Mahmood, whose
call for a syncretic UCC was quoted approvingly in Shah Bano, abandoned this
position once the Hindu nationalists appropriated rhetoric regarding a UCC as
a means to demand minority assimilation in an Indian culture constructed
30 Ibid.; Section 125(3) enables a woman to live apart from her husband and claim mainte-
nance from him if he has another conjugal relationship. Justice Chandrachud considered
this contrary to the right of a Muslim man to have up to four wives, and so found in this
Section a basis to override Muslim law. However, we saw that, twenty-five years earlier, a
High Court had allowed a Muslim woman to obtain a judicial separation and mainte-
nance from a bigamous husband based on the understanding that in prevalent social con-
ditions, bigamy amounts to cruelty to one’s spouse and cruelty is a ground on which
Muslim law allows separation. See Itwari (1960). In 1987, the Supreme Court accepted a
Muslim woman’s petition to divorce her bigamous husband based on the same argument.
See Begum Subanu alias Saira Banu and another v. A.M.Abdul Gafoor 1987 INDLAW SC 235.

largely in terms of upper caste Hindu norms.31 It was opposition to these fea-
tures of the judgment, rather than to the requirement of alimony, that united
the coalition against Shah Bano, as Rina Verma Williams recognized.32
Certain ulama and political leaders who rallied against the judgment were
willing to accept the requirement of alimony. This was particularly true of the
Ithna Asharis and Shafiʿis (such as Maulana Kalbe Sadiq, the Vice-President of
the AIMPLB, and Ayatollah Syed Aqeel-ul Gharavi, the Vice-President of the
Muslim Majlis-e-Mushawarat, a conservative Muslim political organization),
whose madhhabs regarded mata as mandatory. The predominant Hanafi inter-
pretation was that mata is optional and most ulama believed that it was meant
to be a lump-sum (rather than a monthly) payment that need not provide for
the divorcée’s material requirements until her death. This was the position of
prominent Hanafi ulama such as Maulana Mujahidul Islam Qasmi, who found-
ed the Islamic Fiqh Academy and was the AIMPLB’s President, Maulana Khalid
Saifullah Rehmani, the current President of the Islamic Fiqh Academy, Mufti
Mukarram Ahmed, the Shahi Imam of Fatehpuri Masjid, and Athar Hussain,
whose book on Muslim Personal Law was published by the AIMPLB.33 Never-
theless, Syed Ameenul Hasan Rizvi, a legal advisor to the conservative Hanafi
Islamist organization, the Jamaat-i-Islami Hind, recommended legislation that
would give the courts the discretion to require mata and determine its amount,
and reported the support of certain prominent Hanafi ulama for this proposal
in 1981, five years before the court delivered Shah Bano.34 These ulama accept-
ed this proposal in response to the first Supreme Court decree in favour of
Muslim alimony, Bai Tahira (1978), and to the widespread sense that the growth
of indigence among divorcées needed to be addressed. Such Muslim conserva-
tives might have initiated an interpretation of mata as the equivalent of ali-
mony as well in response to the needs of the day as they saw them. However,
31 Danial Latifi, “Muslim Women Benefitted: Shah Bano Revisited,” in Carroll, Shah Bano and
the Muslim Women Act, 143–48; interview, Dr. Tahir Mahmood, legal scholar; former mem-
ber, Minorities Commission; member, Law Commission of India, April 5, 2003; July 21,
2006
32 Rina Verma Williams, Postcolonial Politics and Personal Laws: Colonial Legal Legacies and
the Indian State (New Delhi: Oxford University Press, 2006), 144–45.
33 Interviews, Maulana Kalbe Sadiq, Vice-President, AIMPLB (Lucknow), August 11, 2006;
Maulana Khalid Saifullah Rehmani, President, Islamic Fiqh Academy (Delhi), July 16,
2007; Mufti Mukarram Ahmed, Shahi Imam of Fatehpuri Masjid (Delhi), July 3, 2007; Aya-
tollah Syed Aqeel-ul Gharavi, Vice-President, Muslim Majlis-e-Mushawarat (Delhi), July
30 and August 4, 2007.
34 Latifi and Rizvi, “Views on Maintenance,” 66–67; Interview, Maulana Syed Jalaluddin
Umri (whom Rizvi had consulted), President, Jamaat-i-Islami Hind (Delhi), April 10, 2003.

274 Subramanian
when an entirely Hindu Supreme Court bench adopted such an interpretation,

added the suggestion that Islam may be inimical to women’s dignity, and
pointed toward a UCC, they, and even some of their more liberal fellow-reli-
gionists felt compelled to oppose it. Certain reformist Muslims supported the
judgment (although some like Latifi had their misgivings about it), as did many
Muslim women. But many more Muslims opposed the judgment.
c Muslim Women (Protection of Rights on Divorce) Act

The strength of the opposition to Shah Bano and community pressures in-
duced Shah Bano herself to renounce the alimony that the court had awarded
her. The mobilization against Shah Bano temporarily reduced the influence of
reformist Muslims and Muslim civil society activists who favoured the judg-
ment. Moreover, it pressed a national government facing erosion in its support
to introduce the MWPRDA (1986), with a view to deny Muslim women alimony
rights. This Act was an alternative to a private member’s bill introduced by
G.M. Banatwala of the Indian Union Muslim League to make the alimony pro-
vision in Section 125 of the Cr.P.C. inapplicable to Muslims. The incorporation
of some phrases used in Banatwala’s bill, the consultation of AIMPLB leaders in
framing the Act, as well as the debate prior to the legislation suggested that the
Act was meant to overturn Shah Bano. When presenting the bill, the Union
Law Minister, Ashoke Kumar Sen, said that Shah Bano’s understanding that
Muslim law requires men to provide their ex-wives with maintenance beyond
the waiting period did not reflect the predominant view among Indian Mus-
lims and did not conform with the provisions of Islamic law in most Muslim-
majority countries, and that the judgment’s call for a UCC ignored Ambedkar’s
assurance to the Constituent Assembly that such a code would be introduced
only if there was consensus among the various concerned communities. He
pointed out that the bill was meant to clarify that it was the natal kin of indi-
gent Muslim women or community waqf (religious endowments), rather than
former husbands, who would be expected to provide these women with eco-
nomic support beyond the waiting period.35 A large number opposed the Act
in Parliament, through signature campaigns and public demonstrations, based
on the same understanding of its consequences.36
However, some of the provisions of the Act did not clearly limit Muslim
men’s maintenance obligations to the waiting period. While Section 3 restricted
35 India, Lok Sabha Debates (New Delhi: Lok Sabha Secretariat. 1986), 309–18.
36 The All India Democratic Women’s Association gathered the signatures of a million
women, including 252,000 Muslims, in the largest signature campaign against the
MWPRDA. Writ Petition No. 1001 of 1986, 5.

the husband’s maintenance obligations to the waiting period, Sections 3(1)(a)

and 4 called for the man to provide his ex-wife “fair and reasonable provision”
(perhaps in addition to maintenance) for an unspecified length of time “within
the iddat period.” Sections 3(1)(a) and 4 readily lent themselves to the inter-
pretation that the husband should, within a period of three months after pro-
nouncing divorce, make a lump-sum payment that would support his ex-wife
for an indefinite period. As Shah Bano used the word “maintenance” to refer to
nafaqa and “provision” to refer to mata (before declaring that the distinction
did not matter), the MWPRDA seemed to endorse Shah Bano’s understanding
that mata is obligatory, that it should support the divorcée until remarriage or
death, and that it may be paid on a monthly basis rather than as a lump-sum.
AIMPLB officials expressed concerns about the ambiguities of the Act, as did
some legislators critical of the bill’s possible restriction of alimony. But bureau-
crats at the Prime Minister’s office are reported to have pressed them to accept
the Act as initially drafted, and the Law Minister used a whip37 from the ruling
Congress Party to ensure that Parliament passed the bill without amendment.38
In a number of cases filed on behalf of Muslim divorcées between 1986 and
2001, lawyers argued that the MWPRDA should not be understood to restrict the
husband’s maintenance obligations to the waiting period. They did so with ref-
erence to Sections 3(1)(a) and 4 of the MWPRDA, which they understood to re-
quire alimony, the alleged incompatibility of inadequate provision for indigent
women with the constitutional rights to life and dignity (Article 21), the pre-
sumed incompatibility of authorizing different alimony rights according to
religious group membership with the rights to equality and non-discrimina-
tion (Articles 14 and 15 of the Constitution), and the putative legislative intent
to apply Section 125 of the Cr.P.C. to all Indians.
The High Courts responded differently to these alimony petitions, much as
they had before the MWPRDA was passed. The majority of them ruled in favour
of alimony, finding justification for their verdicts in the MWPRDA’s call for “fair
and reasonable provision,” which they understood to apply to the period until
the divorcées’ remarriage or death, in the claims to protect Muslim women’s
rights in the Act’s preamble, and by interpreting the Act in light of the con-
37 In parliamentary systems, the party leader uses a whip to require all members of his party
to vote as he recommends on a particular bill. If any of these legislators vote otherwise,
they run the risk of being expelled from the party.
38 Such concerns were expressed for instance by H.A. Dora of the Telugu Desam party, who
wished to require Muslim men to pay their ex-wives alimony. India, Lok Sabha Debates,
1986, 335–7; Interviews, Yusuf Hatim Muchchala, Convenor, AIMPLB Legal Committee,
(Delhi), July 1, 14 and 31, 2007; Dr. Qasim Rasool Ilyas, Secretary, AIMPLB (Delhi), April 10,
2003; July 20, 2007; Maulana Syed Jalaluddin Umri.

276 Subramanian
stitutional rights to life, dignity, and equality.39 Some courts considered such
provision compatible with the Qurʾan,40 while others understood the MWPRDA
to override uncodified Muslim law in this regard if the latter indeed restricted
maintenance rights to the waiting period.41 Yet other courts based alimony
decrees on the argument that the mandate of Sec. 125 of the Cr.P.C. for the
husband to provide permanent maintenance overrode the Act.42 In certain
cases in which women were given maintenance beyond the idda period, the
amounts granted were well in excess of 500 rupees per month, the maximum
that could be decreed under Section 125 of the Cr.P.C. until this ceiling was
removed in 2001.
However, a minority of High Courts ruled against alimony by interpreting
the MWPRDA to require of the ex-husband nothing but maintenance during
the waiting period and the payment of dower,43 or based on the interpretation
that mata is optional.44 They left it to the legislature to assess whether these
rules are contrary to constitutional rights. In most of these cases, the courts
did not direct natal kin or waqf boards to support the divorcée, although the
MWPRDA called for the one or the other to assume maintenance responsibili-
ties after the idda period. In the few cases in which courts required this, they
did not ensure that this responsibility was fulfilled.45
39 The major High Court judgments that adopted these positions were Arab Ahmedhia
Abdullah v. Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj 141 (the first such decree); Ali v.
Sufaira, 1988 (3) Crimes 147 [Kerala]; Aliyar v. Pathu, 1988 (2) KLT 446; Mohd. Tajuddin v.
Quomarunnisa Begum, II (1989) DMC 204 AP; Ahmed v. Aysha, II (1990) DMC 110 Kerala;
Abdul Khader v. Smt. Razia Begum, 1990 INDLAW KAR 35; M. Subhan v. Smt. Mazbul Be, 1991
INDLAW AP 19; Jaitunbi Mubarak Shaikh v. Mubarak Shaikh, 1993 (3) Mh LJ 694; Smt. Hami-
dan v. Mohd. Rafiq, 1994 Cri LJ 348; K. Zunaideen v. Ameena Begum, II (1998) DMC 468 (DB);
Majitha Beevi v. Yakoob, 1999 (1) KLT 796; Karim Abdul Rehman Shaikh v. Shehnaz Karim
Shaikh, 2000 Cri LJ 3560; Abdul Latif Mondal v. Anuwara Khatun, 2001 INDLAW CAL 310;
and Naseemunia Begum v. Shaikh Abdul Rehman, 2002 (2) Mh LJ 115.
40 E.g.: Arab Ahmedhia Abdullah (1988).
41 E.g.: Ali (1988); Aliyar (1988).
42 E.g.: Abdullah Rauf Khan v. Halemon Bibi, 1989, 67 Cut LT 285; Noor Saba Khatoon v.
Mohammad Quasim, 1997 (7) JT SC 104.
43 See, for instance, Ramzan v. Smt. Salma, 1987 Cr LJ (Raj 324); Mehboobkhan v. Parvinbanoo,
1988 Mh LJ 781; Rupsan Begum v. Md. Abdus Sattar, II (1990) DMC 253; Abdul Rashid v.
Sultana Begum, 1992 Cri LJ 76; Begum Bibi v. Abdul Rajak Khan, 1994 INDLAW ORI 125; Sha-
hadabi M. Isak v. Abdul Ajij Abdul Latif, 1996 INDLAW MUM 81; Abdul Haq v. Yasmin Talat,
1998 Cri LJ 3433; and Aziza Khan v. Dr. Amir Hussain, 1999 INDLAW RAJ 158.
44 E.g.: Usman Khan Bahamani v. Fathimunnisa Begum (also called: All India Muslim Advo-
cates Forum v. Osman Khan Bahmani), AIR 1990 AP 225.
45 E.g.: Syed Fazal Pookaya Thangal v. Union of India, AIR 1993 Kerala 308; Sadique Ali v. Apar
Sessions Naiyai Dheesh, Basti & Ors. II (1995) DMC 222.

d The Danial Latifi Case

The differing signals from the High Courts motivated a team led by Danial La
tifi to approach the Supreme Court to clarify Muslim divorcées’ rights. This
team argued for alimony and the confirmation of Shah Bano based on both the
understanding of mata they had offered in the earlier case and on the pream-
ble and Sections 3(1)(a) and 4 of the MWPRDA. Thus, their claims were based
on Islamic norms and Muslim law statutes, not on constitutional rights or
criminal law. The National Commission for Women (a government body) and
some women’s civil society organizations that intervened on behalf of the pe-
titioners argued that the constitutional rights to liberty, equality, equal protec-
tion, and non-discrimination require the court to give the commonly applicable
alimony law (Section 125 of the Cr.P.C.) priority over both the MWPRDA and
uncodified Muslim law, as well as to overrule Sections 3(2), 4, and 5 of the
MWPRDA, which, they argued, discriminate against Muslim women, while also
claiming that Qurʾanic mata requires the payment of alimony.46 The AIMPLB
argued that Shah Bano had misinterpreted mata and that the MWPRDA had
overturned Shah Bano. The Indian government, led by the Hindu nationalist
Bharatiya Janata Party, also argued to restrict Muslim men’s maintenance obli-
gations based on the view that this was the intention behind the MWPRDA, and
because it felt that this would aid its portrayal of Muslim law and the Muslim
community as incapable of reform and thus requiring state tutelage and the
imposition of a UCC.
The entirely Hindu Danial Latifi bench approached the case with the aim of
providing a fair verdict, while avoiding the protest that had followed Shah
Bano. It navigated the conceptual and political difficulties posed by the case
primarily along the lines suggested by Latifi, disregarding the legislative intent
behind the MWPRDA (the focus of the Indian government’s intervention) and
the predominant interpretation of ulama (the AIMPLB team’s emphasis). But
the court resisted the pleas of the National Commission for Women and the
women’s civil society organizations involved in the case to give criminal law
priority over Muslim law and to overrule certain sections of the MWPRDA. Jus-
tice Rajendra Babu, who led the bench, and Justice Shivaraj Patil, felt com-
pelled to bring to bear a sense of ‘justice, equity and good conscience’ on their
adjudication, following a standard of judicial construction established in colo-
nial times.47 Both of them sensed that it would be wise to adhere to Islamic
46 Writ Petitions No. 996, 1001, 1055, 1062 of 1986, 868 of 1996 in Danial Latifi and Ms. Susheela
Gopalan v. Union of India.
47 The way that Justices Babu and Patil engaged with landmark cases such as this one gained
them repute among policy elites, and led to their appointment to the National Human
Rights Commission after their retirement from the judiciary.

278 Subramanian
traditions to limit protest. Neither the careers of Justices Doraiswamy Raju and
D.P. Mohapatra nor interviews with them indicated that they had sharply de-
fined judicial or social visions. Justice G.B. Pattanaik, who voiced many Hindu
nationalist stereotypes about Muslims, was uncertain about whether to enable
greater women’s rights in Muslim law or to regard Muslim law reform as a lost
cause. Justice Babu convinced him and the other members of the Court to fol-
low the course that he had laid out.
Interpreting the MWPRDA in terms of legislative intent and taking Section
127(3)(b) of the Cr.P.C. to give personal law priority over Section 125 to deny
Muslim women alimony would have avoided arousing the disaffection of well-
organized conservative Muslims. This approach would have disappointed civil
rights organizations and more liberal Muslims, but the court could well have
indicated that it felt constrained by the intention behind the MWPRDA and
prior judicial disinclination to change personal law based on constitutional
rights alone. Such a course was contrary, however, to the sense of justice that
animated Justices Babu and Patil. Justice Babu especially felt compelled to
award alimony because the Muslim women with whom he had spoken after
the passage of the MWPRDA shared his sense that the denial of alimony to indi-
gent Muslim divorcées was unjust. Giving Section 125 of the criminal law prior-
ity over both statutory and uncodified Muslim law would have granted Muslim
women the right to alimony. Such an approach might have been justified by
following the view taken in Shah Bano that Section 125 was meant to deal with
vagrancy, which is a problem for women of all religious groups, and that the
interpretation of mata as optional ignored the prevalence of vagrancy among
divorcées. However, Justice Babu sensed that such an argument was bound to
provoke Muslim protest, in response to which the legislature might amend the
MWPRDA to close the door unambiguously to alimony for Muslims. Moreover,
this approach would have provided maintenance only to women who could
credibly claim that they would otherwise be indigent, rather than giving all
Muslim divorcées a right to alimony. Justices Babu, Patil, and Pattanaik felt
that it would be unwise to offer independent interpretations of the relevant
Qurʾanic verses, to accept a particular scholarly interpretation, or to urge the
introduction of a UCC for the same reason. Nevertheless, the bench had to en-
gage with the alternative interpretations of mata offered by the litigants.
The bench adopted an approach that addressed both the conceptual diffi-
culties and the political predicaments posed by the case. It assumed that rules
regarding matrimonial relations should be interpreted in light of the gendered
nature of resource access and social roles among all religious groups and social
classes in India. These circumstances led most women to focus on their do-
mestic roles to the detriment of their careers, thus making them more depen-
dent on their husbands. As a result, they argued, divorce was more damaging

to women and divorcées should be compensated for the economic conse-

quences of divorce.48 The bench also approached the case with reference to
some features of the context in which the MWPRDA had been legislated, but
not others. It said that the introduction of the Act in the aftermath of Shah
Bano made it appropriate to interpret the Act’s use of the terms ‘maintenance’
and ‘provision’ in light of how these words had been deployed in Shah Bano –
where ‘maintenance’ stands for nafaqa and ‘provision’ for mata. The judgment
conceded that the apparent purpose of the MWPRDA was to overrule Shah
Bano and deny Muslim women alimony (746–7), but the bench did not feel
constrained to interpret the Act in terms of this aim because the Act could also
be interpreted so that it would be compatible with both constitutional rights
and criminal law. As the Act could be interpreted thus, the bench did not find
it necessary to overrule any of its provisions.49
Danial Latifi found it ‘difficult to perceive that Muslim law’ would place the
responsibility to compensate a divorcée entirely on people and entities uncon-
nected to the matrimonial relationship, such as the woman’s natal kin and
waqf, that the MWPRDA made responsible to provide divorcées maintenance
beyond the waiting period.50 From this consideration, the court found justifi-
cation for its understanding that the Act obliged the husband to offer the wom-
an provision until her remarriage or death. It thus understood conjugality as an
important source of economic obligations, and it went beyond the predomi-
nant view in Islamic traditions that natal bonds are more consequential than
affinal ties. However, it also said that the woman’s natal kin and community
endowments would be required to provide a divorcée with maintenance if her
former husband lacked the resources to provide for her or failed to do so de-
spite having the means. The judgment found support for such an understand-
ing in Shah Bano’s interpretation of the Qurʾanic prescription for mata.
Moreover, Justice Babu argued that even if mata was originally meant to be a
lump-sum payment, allowing a husband to pay its equivalent on a monthly
basis is not a problem if this makes such provision more feasible for him.51
A colleague to whom Justice Babu showed a draft of the judgment called it
“a marvellous acrobatic exercise.” Some of the other members of the bench
were initially wary of such a construction of the MWPRDA, as they felt that it
would encounter criticisms from legal and political elites for departing from
legislative intention, as well as from conservative Muslims for being contrary
48 Danial Latifi (2001), 742–3.

49 Ibid., pp. 746–7.
50 Ibid., pp. 742–3, 757–8.
51 Ibid., pp. 744, 762.

280 Subramanian
to Hanafi law. However, Justice Babu convinced his colleagues that this was the
best response to the petition.52
Although the bench felt comfortable interpreting this statute in light of the
constitution, which it believed to be the judiciary’s mission, it would not have
been equally at ease interpreting verses of the Qurʾan and Islamic norms by the
same standards. The incorporation of certain Islamic norms about the eco-
nomic consequences of divorce in a statute thus made judges more willing to
adopt a reformist interpretation of this aspect of Muslim law. This belied the
fears of many when the MWPRDA was passed that the legislation would close
the door to Muslim alimony. By adopting this approach, Danial Latifi made ali-
mony a Muslim divorcée’s right and avoided the ceiling that Section 125 of the
Cr.P.C. placed on the maintenance that a man is required to pay his ex-wife.
(The ceiling was removed later in 2001). Thus, legislation meant to end the
right to alimony for Muslim women cleared the path for judges to give Muslim
women this right without departing from cultural accommodation in personal
law.
In this case, the recognition of group norms might have advanced Muslim
women’s rights further. The role assigned by the Qurʾan to custom in determin-
ing the amount of mata might have been used to adopt the customs of matri-
lineal Muslim groups, such as the Mappilas of Kerala, who give a divorcée a
share of her ex-husband’s property upon divorce, much as the customs of cer-
tain groups that give women shares in matrimonial property and that distrib-
ute the property of the deceased bilaterally were incorporated into Islamic law
in Indonesia.53 The MWPRDA’s requirement that men provide “fair and reason-
able provision” for their ex-wives could also have been interpreted to give a
divorcée a share of matrimonial property. The bench did not consider this op-
tion because the petition did not propose it, but courts may do so in the future.
52 Interviews, Justices S. Rajendra Babu, former Chief Justice of India (Delhi), July 2 and 3,
2007; Shivaraj C. Patil, retired judge, Supreme Court of India (Delhi), June 21, 2007; G.B.
Pattanaik, retired judge, Supreme Court of India (Delhi), June 30, 2007; D.P. Mohapatra,
retired judge, Supreme Court of India (Delhi), August 2, 2007; Doraiswamy Raju, retired
judge, Supreme Court of India (Chennai), August 7, 2007.
53 Mark E. Cammack and R. Michael Feener, “Joint Marital Property in Indonesian Custom-
ary, Islamic, and National Law,” in The Law Applied: Contextualizing the Islamic Shari’a, ed.
Cammack, Feener, and Ruud Peters (London: I.B. Tauris, 2007), 104–27; Mark E. Cammack,
“Islamic Inheritance Law in Indonesia: The Influence of Hazairin’s Theory of Bilateral
Inheritance,” Australian Journal of Asian Law, 4.3 (2002), 295; R. Michael Feener and Mark
E. Cammack, Islamic Law in Contemporary Indonesia: Ideas and Institutions (Cambridge:
Harvard University Press, 2007).

The approach taken in Danial Latifi to justify alimony in terms of Islamic

norms without overruling aspects of Muslim statutory law or independently
interpreting Islamic traditions limited the room for conservative Muslims to
oppose the judgment as contrary to religious tradition. Conservative Muslims
chose not to protest the judgment for other reasons as well. The political con-
text had changed considerably between 1985, when Shah Bano was decided,
and 2001, when the court delivered the Danial Latifi verdict. Hindu nationalism
had grown much stronger, partly through criticisms of Muslim resistance to
personal law reform, violence against Muslims had increased, and the national
government provided greater tacit support for anti-minority violence under
the Bharatiya Janata Party’s leadership from 1998 to 2004. Moreover, following
9/11, Hindu nationalists had cultivated greater international tolerance of their
attacks against Muslims by characterizing the violence as a form of counter-
terrorism. In addition, modernist, feminine, and feminist interpretations of
Islamic traditions and Islamic law had gained greater support among Indian
Muslims and civil society organizations, challenging the influence of conserva-
tive ulama and political elites.54 These conservative Muslim elites were con-
cerned not to provide Hindu nationalists with an excuse to launch another
round of extensive anti-Muslim violence and wished to retain what they could
of their status as reputable interpreters of Islam in the eyes of Indian Muslims.
For these reasons, they found it wise to mute their opposition to Danial Latifi,
which made the legislative overturn of Muslim alimony rights unlikely.
Another Recent Change in Muslim Law
Another recent judicial reform in Muslim law took an approach similar to that
of Danial Latifi, and limited conservative opposition for this reason. A little
over a year after Danial Latifi, the Supreme Court ruled talaq al-ba’in invalid in
Shamim Ara v. the State of Uttar Pradesh (2002), based on certain verses of the
Qurʾan, recent commentaries on these verses, and hadith about certain early
Islamic practices. The author of this judgment, Justice Ramesh Chandra La-
hoti, indicated at great length that social context and considerations of ‘justice,
equity and good conscience’ had a significant influence on the ‘progressive and
54 Sylvia J. Vatuk, “Islamic Feminism in India? Indian Muslim Women Activists and the
Reform of Muslim Personal Law,” Modern Asian Studies, 42:2–3 (2008), 489–518. Organiza-
tions such as the All India Muslim Women’s Personal Law Board interpreted Islam from
the perspectives of Indian Muslim women, but did not adopt systematically feminist
analyses, as did certain other organizations, such as the Awaaz-e-Niswaan.

282 Subramanian
purposive’ approach he took to the construction of law.55 This judgment was

based entirely on interpretations of Islamic norms, highlighted High Court
precedents (Jiauddin Ahmed v. Anwar Begum [1978] and Rukia Khatun v. Abdul
Khalique Laskar [1981]) authored by a Muslim judge knowledgeable about Is-
lamic traditions (Justice Baharul Islam), referred to legislation in Muslim ma-
jority countries like Iraq that requires judges to consider the reasons provided
for male-initiated divorce, did not explicitly consider constitutional rights (al-
though Justice Lahoti told me that he had taken constitutional principles into
account implicitly), and avoided the call for a UCC controversially voiced in an
earlier High Court judgment on this question (Rahmat Ullah v. State of U. P. and
Khatoon Nisa v. State of U. P. [1994]).56 A concern to avoid conservative Muslim
protest dissuaded the court from invalidating unilateral repudiation under all
circumstances because, according to the judges, Islamic traditions do not of-
fer a basis for such a decree. The verdict did not require judicial approval of
unilateral repudiation, which is necessary in Tunisia and Jordan, but made the
validity of repudiation open to judicial consideration. It required that the liti-
gant should state in his initial petition that he had repudiated his wife, rather
than adding this claim as the case unfolds, and that eyewitnesses or documen-
tary evidence must corroborate the claim. This meant that, if a man were to
pronounce a divorce in the midst of a case in which his wife was seeking main-
tenance or the restitution of conjugal rights, the divorce would not be valid.
Conservative responses to this judgment varied. It was supported by the
Ithna Ashari, Musta‘lian Isma‘ili, Zaidi, and Ahl-i- Hadith schools, which do
not recognize talaq al-ba’in, and by a conservative organization that included
the adherents of madhhabs with different views of such repudiation (the Mus-
lim Majlis-e-Mushawarat). Although they recognized talaq al-ba’in, India’s two
main Hanafi institutions (Dar Ul-Uloom Deoband and Dar Ul-Uloom Manzar-
e-Islam) had launched social reform programmes in the 1990s that discour-
aged such a mode of repudiation. This meant that, while not supporting the
judgment, the most politically mobilized Hanafis were reluctant to oppose it
strongly. Conservative Muslims were less opposed to the introduction of con-
ditions for the validity of unilateral repudiation than to the requirement of
55 Shamim Ara v. State of U. P., 2002 AIR SCW 4162.

56 Interview, Justice Ramesh Chandra Lahoti, former Chief Justice of India (Delhi), June 26,
2007. The crucial High Court precedents that declared talaq al-ba’in to be revocable were:
A.Yousuf Rawther v. Sowramma, AIR 1971 Kerala 261; Mohammed Hanifa v. Pathummal
Beevi, 1972 Ker LT, 512 (in obiter); Jiauddin Ahmed v. Anwar Begum, (1978) 1 GLR 375; and
Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375. The Shamim Ara bench resisted
following the precedent of basing such a verdict on constitutional rights. See Rahmat
Ullah v. State of U. P. and Khatoon Nisa v. State of U. P., II (1994) DMC 64.

alimony because reputable commentators, while offering different interpreta-

tions of mata, agreed that the Qurʾan recommends that repudiation should be
revocable and should be followed by efforts at reconciliation. As its constituent
organizations disagreed on the status of this mode of repudiation, the AIMPLB
did not intervene in cases in which its validity was contested. Smaller asso-
ciations of Muslim religious elites or lawyers defended precedent in some of
these cases, but had fewer resources at their disposal.57 The support of some
conservative Muslim elites and the lack of resistance from major conservative
organizations made it easier to consolidate the reform of Muslim divorce law
than that of Muslim alimony law. Masroor Ahmed v. State of Delhi (2007), a high
court judgment, underlined that talaq al-ba’in is revocable even among Hana-
fis and Shafiʿis, although their madhhabs interpret such a pronouncement of
divorce to terminate a marriage. It added that a man must communicate to his
wife that he has pronounced divorce in order for the divorce to take effect.58
Patterns of Change in Muslim Law in India
The courts justified the changes that they introduced over the last generation
in Muslim law with reference to Muslim law statutes and Islamic legal and nor-
mative traditions. They also referred to constitutional rights, but departed
from precedent only when they felt that group law and group norms offered
plausible support. Neither the judiciary nor the legislature seems likely to over-
turn these changes in Muslim law over the next generation. The absence or
weakness of resistance to these judgments is likely to encourage further judi-
cial reform based on Islamic norms, especially with the growing influence of
modernist, feminine, and feminist interpretations of Islam.
Policymakers’ visions of group norms and the implications of group rec
ognition have shaped and limited legal change, and seem likely to continue
to do so in the foreseeable future. These considerations constrained the Su-
preme Court from overruling sections of the MWPRDA, as certain petitioners
57 For instance, the Islamic Shariat Board (based in Kerala) intervened in Shamim Ara, and
the Tamil Nadu Advocates Meelad Forum in Parveen Akhtar v. Union of India, Writ Peti-
tion No. 744 of 1992 (2002). An AIMPLB lawyer, Zafaryab Jilani, intervened in Rahmat
Ullah, but did not represent the AIMPLB in doing so. Interview, Zafaryab Jilani, Member,
AIMPLB Legal Committee (Delhi), July 12, 2006.
58 Masroor Ahmed v. State (NCT) of Delhi, Crl MC 10078/ in Bail Appln. 4746/2006; Interviews,
Justices Ramesh Chandra Lahoti (Delhi), June 26, 2007; P. Venkatarama Reddi (Delhi),
July 2, 2007 (Shamim Ara judges); Aziz M. Ahmadi, former Chief Justice of India (Delhi),
July 9, 2007; Badar Durrez Ahmed (author of Masroor Ahmed) (Delhi), August 1, 2007.

284 Subramanian
demanded in Danial Latifi and Maharshi Avadhesh v. Union of India (1994), and
from invalidating unilateral male repudiation, banning polygamy, and provid-
ing daughters with shares of family property equal to those of sons, as the pe-
titioner demanded in Ahmedabad Women’s Action Group (AWAG) v. Union of
India (1997). The judges felt that they could accommodate these demands only
if they considered the validity of the relevant personal laws with exclusive ref-
erence to constitutional rights, which they did not find appropriate, and there-
fore left it to the legislature to consider whether to adopt these reforms.59 But
legislators did not introduce these changes or require judicial approval of male
repudiation. Nor did they allow woman-initiated no-fault divorce through ju-
dicial mediation or unilateral female repudiation, extend rights to inherit agri-
cultural land to women in all states (they currently have this right in about half
of the Indian states), give women who are judicially separated or divorced
shares in matrimonial property, recognize the matrilineal customs of certain
Muslim groups, or extend adoption rights to Muslim couples, although activ-
ists highlighted the bases of these proposals in reformist interpretations of Is-
lamic tradition. Policymakers did not introduce these reforms because there
had been limited mobilization and litigation to demand these changes, these
rules did not seem to them a part of the sense of group tradition shared by
many Indian Muslims, and their vision of the normative family did not suggest
that these changes were imperative. The extent to which such demands are
met in the future will depend on how far they coincide with changing judicial
and legislative visions of current Islamic norms, the forms of family life desir-
able to promote among Indians, and the appropriate scope of government
regulation of personal life.
Islamic Law Reform: Toward a Comparative Perspective
States apply distinct personal laws based on group norms to the family lives of
about a third of the world’s population, mostly residing in Asia, Africa, and the
Middle East. Many members of the religious groups, sects, and ethnic groups
governed by personal laws see the family not merely as a realm of economic
necessity, but also as an important arena in which to express cultural and
national identity. Thus, changes in personal laws are likely to gain significant
support only if they are based on prevalent group norms.
59 Maharshi Avadhesh v. Union of India 1994 Supp (1) SCC 7313; Ahmedabad Women’s Action
Group (AWAG) and Others v. Union of India (1997) 3 SCC 573; Interview, Justice Ahmadi,
author of Ahmedabad Women’s Action Group.

The pattern of change in Indian Muslim law since the 1960s conforms to the
pattern in most societies in which states apply Islamic law. The realization that
changes in Islamic law are likely to gain broad popular acceptance and not
provoke extensive opposition only if they are based on widely shared visions of
Islamic norms has influenced legislative and judicial approaches to Islamic law
in many countries. This was the case with reforms that increased women’s
rights and individual liberties in Tunisia, Libya, Egypt, Jordan, Iraq, Iran (under
the Pahlavis), Pakistan (until the 1970s), Sri Lanka, Bangladesh, Indonesia, and
Malaysia, and, more recently, Morocco. In Senegal, Léopold Senghor and the
Socialist Party introduced a secular and uniform family law. But, when this
move aroused opposition from influential Islamic groups, the regime retained
legitimacy by giving Muslims the choice to be governed by Islamic law. By con-
trast, in Turkey, Mustafa Kemal Pasa and the Republican Party made no modi-
fications to their secularization of family law in 1926, and adopted Western
commercial and criminal codes at the same time, despite widespread opposi-
tion.60 As a result, the Republican Party enjoyed only narrow support, mainly
among the urban middle classes, and it retained power only by resorting to
authoritarian rule and repression.
Mobilizers for Islamic law reform are likely to shape their strategies over the
next generation in view of the preference of most Muslims that family life
should be governed according to Islamic norms. However, the sources from
which actors draw their visions of Islamic norms vary, making it likely that we
will continue to see different forms of culturally grounded Islamic law reform
across the world. For instance, in Indonesia, and to some extent in Malaysia,
both Islamic and secular jurists have long valued group customs that bear an
uncertain relationship to classical Islamic sources.61 By contrast, most ulama
resist such customs in South Asia and, to some extent, in the Arab world as
well. In response to these orientations, reformers incorporated many local
customs into Islamic law in Southeast Asia, and these reforms were broadly
accepted because they were grounded in widely shared normative visions.
60 Leonardo Villalón, Islamic Society and State Power in Senegal: Disciples and Citizens in
Fatick (Cambridge: Cambridge University Press, 1995); Lucy Creevey, “Islam, Women and
the Role of the State in Senegal,” Journal of Religion in Africa 26.3 (1996), 268–307; Ahmet
T. Kuru, Secularism and State Policies Toward Religion: The United States, France, and Tur-
key (New York: Cambridge University Press, 2009); Ahmet T. Kuru and Alfred C. Stepan,
Democracy, Islam, and Secularism in Turkey (New York: Columbia University Press, 2012);
Ihsan Yilmaz, Muslim Laws, Politics and Society in Modern Nation States: Dynamic Legal
Pluralisms in England, Turkey, and Pakistan (Farnham: Ashgate, 2005).
61 See footnote 53; Michael Peletz, Islamic Modern: Religious Courts and Cultural Politics in
Malaysia (Princeton, NJ: Princeton University Press, 2002).

286 Subramanian
Customs without a definite basis in classical Islamic sources were not similarly
incorporated into Islamic law in South Asia although some of them provide
women more rights than Islamic law currently does. In contrast with Southeast
Asian experience, policymakers who initiated extensive changes in Islamic law
in Arabic-speaking countries such as Tunisia, and, later, in Morocco, made spe-
cial efforts to present these reforms as based in Islamic jurisprudence, even if
these reforms departed from the predominant forms of Islamic reasoning and
met with scepticism or opposition from ulama. The framing of these reforms
as “Islamic” enabled broad support and helped the regimes contain opposi-
tion. Indeed, the Islamic law reforms passed in Tunisia in the 1950s became so
popular that the moderate Islamist Ennahda Party, which came to power when
the country transitioned toward democracy starting in 2011, did not seek to re-
verse these changes. Rather, in the face of pressure from women’s organiza-
tions to increase women’s rights, the Tunisian government in 2014 made the
conditions of CEDAW applicable to family life for the first time.62
62 Mounira M. Charrad, “Family Law Reforms in the Arab World: Tunisia and Morocco”,
Report for the United Nations Department of Economic and Social Affairs, 2012; Human
Rights Watch, “Tunisia: Landmark Action on Women’s Rights”, 2014, <https://www.hrw.
org/news/2014/04/30/tunisia-landmark-action-womens-rights> (Accessed: May 14, 2016);
Vickie Langohr, Marwa Shalaby, Hind Ahmed Zaki, and Mona Tajali, “Women in the Mid-
dle East Political Sphere after the Uprisings”, POMEPS Panel, 2016, <https://vimeo.com/
160134128> (Accessed: May 14, 2016).
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Islamic Norms, Common Law, and Legal Reasoning:

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Islamic Law and Society 24 (2017) 254-286

Judicial Reasoning in Two Alimony Cases

Islamic Law and Society 24 (2017) 254-286

instead of wasting their energies in exerting theological and political

2 Shah Bano, op. cit., p. 955.

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requirement of alimony among Muslims. Justice S. Rajendra Babu, the author

Muslim Personal Law and the Rule of Law in Colonial India

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provided for the adherents of non-Hanafi madhhabs to be governed by the pro-

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Islamic Law and Society 24 (2017) 254-286

Maulana Ashraf Ali Thanawi of the Darul Uloom Deoband, communicated

Early Postcolonial Policy: The Indefinite Postponement of Reform

Choices Available, Choice Made

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16 See Govind v. State of M.P., AIR 1975 SC 1378.

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disengagement of most policymakers from Muslim initiatives, and the failure

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Landmark Judgments and Legal Reasoning

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23 Sarabai v. Rabiabai (1905) ILR 30 Bombay 537 at 537.

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a Alimony – Criminal Law Reform

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interpreting mata to be obligatory and the equivalent of alimony. These orga-

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verses imply no such obligation merits no consideration despite its long-

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when an entirely Hindu Supreme Court bench adopted such an interpretation,

c Muslim Women (Protection of Rights on Divorce) Act

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the husband’s maintenance obligations to the waiting period, Sections 3(1)(a)

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d The Danial Latifi Case

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to women and divorcées should be compensated for the economic conse-

48 Danial Latifi (2001), 742–3.

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Islamic Law and Society 24 (2017) 254-286

The approach taken in Danial Latifi to justify alimony in terms of Islamic

Another Recent Change in Muslim Law

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purposive’ approach he took to the construction of law.55 This judgment was

55 Shamim Ara v. State of U. P., 2002 AIR SCW 4162.

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alimony because reputable commentators, while offering different interpreta-

Patterns of Change in Muslim Law in India

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