The semi-autonomous judge in colonial

India: Chivalric imperialism meets

Anglo-Islamic dower and divorce law

Mitra Sharafi
University of Wisconsin-Madison

Through a survey of 19 leading cases on Islamic dower and divorce between 1855 and 1924,
this article explores the ways in which judges acted as semi-autonomous agents by undermin-
ing the colonial legislation and personal law treatises they were expected to apply. Contrary
to the view that colonial judges consistently reinforced the patriarchal authority of husbands
in direct and immediate ways, it suggests that some colonial judges were working in the ser-
vice of their own chivalric imperialist agenda: the defence of Muslim wives. The article focuses
on two particular moves. First, colonial judges encouraged the use of inflated dower, a device
intended to make the husband’s power of triple talāq too expensive to use. Colonial legislators
invalidated inflated dower in various parts of India, but judges confirmed the validity of in-
flated dower sums whenever possible. Second, judges expanded the use of delegated divorce,
a device that helped Muslim wives counter their husbands’ right to polygamy and unilateral
divorce. In doing so, judges undermined the restricted approach to delegation taken by colonial
treatises on Anglo-Islamic law.

It is easy to overstate the degree to which law exerted an even and well-coordinated
presence in colonial India. This article questions the assumption that colonial
judges functioned consistently as ‘the state’s emissary’.1 In quiet and incremental
ways, judges deciding cases from British India acted as semi-autonomous agents
1
I borrow this phrase from Baxi, ‘“The State’s Emissary”: The Place of Law in Subaltern Studies’.

Acknowledgements: I am grateful to Hossein Modarressi, Gyan Prakash, Hendrik Hartog, Orit

Bashkin, Behnam Sadeghi and Rohit De for their comments on earlier drafts of this article. I also
thank fellow contributors to this special issue for their feedback. Any oversights remain my responsi-
bility alone. An early version of this article was presented at the American Society for Legal His-
tory conference in San Diego (9 November 2002).

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when it suited them. Scholars like Nicholas Dirks, John D. Rogers, David Washbrook
and Niels Brimnes have stressed the autonomy of the judiciary in relation to
legislative and executive branches of government.2 Even so, legal histories that
map the life of colonial statutes and treatises often understate or leave untouched
the following question: what did judges actually do with these texts in the
courtroom?3
This article assesses 19 leading cases pertaining to two contractual devices in
Anglo-Islamic marriage law4 between 1855 and 1924.5 Inflated dower and dele-
gated divorce reduced the power asymmetry inherent in Islamic marriage law.
Unlike Muslim wives, Muslim husbands enjoyed the right of unilateral and
extrajudicial divorce (talāq), and of polygamy. The two mechanisms examined
here either made the husband’s power of talāq too expensive to use, or extended
the same power of talāq to his wife by delegation. During the period in question,
both devices had to be incorporated into the marriage contract at the time the
contract was made. In many of these cases, judges upheld the inflation of Islamic
dower sums, despite the fact that colonial legislators disapproved of excessive
dower and tried to invalidate it through legislation. Colonial judges also extended
married women’s use of delegated divorce, a move discouraged by Anglo-Islamic
legal treatises. Both devices gave leverage to Muslim wives against their husbands’
right to declare arbitrary and unilateral divorce, reflecting the chivalric imperialist
agenda of some members of the colonial judiciary.

2
See Dirks, ‘From Little King to Landlord’, pp. 322–23; Rogers, ‘Cultural and Social Resistance:
Gambling in Colonial Sri Lanka’; Washbrook, ‘Economic Depression and the Making of “Traditional”
Society in Colonial India 1820–55’, p. 255; and Brimnes, ‘Beyond Colonial Law’, pp. 515–17.
3
Studies that privilege the pre-passage history of a statute over the interpretation of that statute by
the colonial courts admittedly take on a different type of project than this one. See, for instance,
Kodoth, ‘Courting Legitimacy or Delegitimizing Custom?’; Kolsky, ‘Codification and the Rule of
Colonial Difference’; and Mody, ‘Love and the Law’. See also no. 8. For a history of colonial personal
law treatises that stops short of exploring the interpretation of these treatises by judges, see Cohn,
Colonialism and its Forms of Knowledge, pp. 57–75. Compare an integrated history of a personal
law treatise: Emon, ‘Islamic Law and the Canadian Mosaic’.
4
By Anglo-Islamic law, I refer to what has also been called ‘Anglo-Muhammadan’ law. Both terms
describe ‘both the Orientalised limitation imposed on Islamic law’ in colonial South Asia, and ‘its
gradual buttressing by Anglo legal concepts’. See Kugle, ‘Framed, Blamed and Renamed’, pp. 266,
312; and Fyzee, Cases in the Islamic Law of India, Pakistan and Bangladesh, pp. xxiii–xxiv.
5
This period was chosen because the leading cases identified in late colonial legal textbooks by
authors like Baillie and Macnaghten fell within the period 1855–1924. For the list of leading cases
examined, see Cases, under Primary Sources. It was possible to delegate talāq both to a third party
(that is, not to the wife) with reference to the wife’s marriage, and to delegate talāq to the wife re-
garding any future marriages her husband might contract (Tyabji, Islamic Law, pp. 212–13). This
article addresses only the second type of delegation.

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Case law flowing from colonial legislation has received remarkably little
attention from scholars.6 Legal histories by Jörg Fisch, Janaki Nair, Radhika Singha
and Indrani Chatterjee are studies of legislation that make only timid forays into
the law reports.7 Janaki Nair notes ‘the lack of fit between the scrupulous care
with which campaigns for various kinds of legislation have been studied and the
near total neglect of how legislation finally translated into judicial practice’.8 Kunal
Parker remarks that the phenomenon of judicial legislation (judge–made law)
‘has escaped the scrutiny of contemporary historians almost entirely’.9 Histories
of colonial legislation typically end with the enactment of a particular piece of
legislation, omitting the story of its subsequent interpretation by the courts.10 Simi-
larly, we know very little about how judges applied Hindu and Islamic legal treat-
ises following the burst of legal Orientalist translation that created the corpus of
personal law textbooks, eventually enabling the abolition of the native law of-
ficers in 1864.11 By focusing on case law, this article asks what judges were really
doing while ostensibly applying legislation and treatises to the cases before them.
This study’s methodology—a survey of leading cases—is grounded in the pre-
cedent system, and deserves some explanation. Jörg Fisch suggests that a study
based on case law is not worth doing unless it is comprehensive in scope.12 Presum-
ably, he means that one ought to survey a statistical majority of cases in any par-
ticular area, rather than relying upon what lawyers call ‘leading cases’ (cases with
dominant authority based upon the status of the court and the date of the case).

6
However, notable studies of case law generally include Benton, Law and Colonial Cultures,
pp. 127–66; Brimnes, ‘Beyond Colonial Law’; Chandra, Enslaved Daughters; Partha Chatterjee, A
Princely Impostor?; Ghosh, Sex and the Family in Colonial India, pp. 170–205; Mines, ‘Courts of
Law and Styles of Self in Eighteenth-Century Madras; and Shodhan, A Question of Community.
7
See Fisch, Cheap Lives and Dear Limbs; Nair, Women and Law in Colonial India; Singha, A
Despotism of Law; and Chatterjee, Gender, Slavery and Law in Colonial India. An indication of this
focus is the fact that none of these scholars’ books include a table of cases. When Radhika Singha
does mention a case, she often gives only the page reference in the law reports, omitting the case
name. See, for instance, Singha, A Despotism of Law, p. 139 at note 75, and p. 146 at note 105.
8
Nair, Women and Law in Colonial India, p. 17.
9
Parker, ‘Interpreting Oriental Cases’, p. 1715. See also Parker, ‘A Corporation of Superior
Prostitutes’, p. 559.
10
An exception is Mytheli Sreenivas’s study of the Hindu Women’s Rights to Property Act 1937,
which follows the Act from its inception through the courts. See Sreenivas, ‘Conjugality and Capital’.
11
On legal Orientalists like William Jones and Henry Thomas Colebrooke, see Ibbetson, ‘Sir William
Jones as Comparative Lawyer’; and Cohn, ‘Colonialism and its Forms of Knowledge, pp. 57–75’.
See also Kugle, ‘Framed, Blamed and Renamed’, pp. 269–80. On native law officers (maulvies, who
were experts in Islamic law and pandits, specialists in Hindu law), see Fyzee, ‘Islamic Law in India’,
p. 412; and Jain, Outlines of Indian Legal History, pp. 581–83.
12
‘The main topic of this study is legislation, not the actual administration of criminal justice. A
comprehensive analysis of the latter would moreover be extremely difficult if not impossible. Few
records of the courts have probably survived, and what is conserved is scattered over a wide range of
files’ (Fisch, Cheap Lives and Dear Limbs, p. 97).

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In the common law context, however, comprehensiveness and significance are

not coterminous. Given precedent and the hierarchy of the courts, a survey of
leading cases produces a picture not of statistically frequent judicial manoeuvres,
but of significant ones that would have shaped future judicial decisions. The moves
made by judges here, for the most part in appellate courts (including the Judicial
Committee of the Privy Council, JCPC, the final court of appeal for the British
Empire), would have been in the minds and papers of lawyers and judges from
this period on.13 Lawyers would have read and cited these cases when constructing
arguments about the cases for which they had been hired. By contrast, cases unlike
these, which were not ‘reported’ or published in the law reports (a form of legal
periodical), would have had little effect on other cases. If future lawyers did not
know that an earlier judgement existed, they would have been unable to convince
a later judge to rule consistently with it. In a precedent-based system, treating like
cases alike was seen to offer legal certainty and predictability to future parties,
and to ensure basic fairness between cases. The cases examined here formed an
organically coherent body of law, with later cases cantilevered against earlier ones
cited as precedent.
Some discussion of law and the reification of patriarchy is also required at the
outset. My findings diverge from the view of many scholars that colonial judges
reinforced patriarchal power structures in direct and immediate ways. Radhika
Singha has examined Islamic criminal law as it pertained to husbands’ acts of
violence against their wives. She finds that colonial judges reinforced Muslim
husbands’ legal powers over wives and female relatives.14 Similarly, Kunal Parker
argues that the judicial criminalisation of temple dancing girls was part of the
construction of ‘a cohesive Hindu community through the dissemination of Hindu
patriarchal legal norms’.15 Examining domestic violence cases in the Company
period, Durba Ghosh finds that judges strengthened patriarchal authority, albeit
in an interracial context that differs from the one examined in this study.16 Writing
on Islamic divorce law, Michael Anderson comments that ‘despite limited access
to khula divorce by mutual consent, most Muslim wives were formally subject to
the husband’s power to invoke a unilateral talāq’. Anderson sees the elevation of
the paterfamilias to be a pattern cutting across colonial legislation and juris-
prudence pertaining to Hindu and Muslim communities.17 Only Lucy Carroll finds

13
On the JCPC, see Haldane, ‘The Work for the Empire of the Judicial Committee of the Privy
Council’; Rankin, ‘The Judicial Committee of the Privy Council’; and Howell, The Judicial Committee
of the Privy Council 1833–1876.
14
Singha, A Despotism of Law, p. 167.
15
Parker, ‘“A Corporation of Superior Prostitutes”’, p. 589.
16
Ghosh, Sex and the Family in Colonial India, pp. 170–205.
17
Anderson, ‘Work Construed’, p. 93.

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that colonial courts were generally reluctant to void Muslim marriage contracts
by holding them unreasonable.18 These contracts were fortified with talāq–
neutralising elements that worked in the wife’s favour. Among the devices identi-
fied by Carroll were suspended or contingent talāq (that is, talāq triggered by the
occurrence of a particular event, like a second marriage by the husband) and
clauses permitting separate residence and maintenance of the wife (also typically
activated by the husband’s second marriage).19
Like Carroll’s study, this article observes that judges appeared to work against
patriarchal power and privilege in particular areas of Anglo-Islamic marriage law.
They undermined Muslim husbands’ unilateral and arbitrary power of talāq—
both by making high dower sums payable upon the husband’s use of talāq, and by
expanding the power of wives to use talāq themselves. My conclusions are not
necessarily at odds with the findings of Singha, Parker, Ghosh and Anderson.
They may simply warn against the assumption that colonial law was a consistent
and monolithic whole. Not only did legislative and judicial branches of the colonial
legal system, at times, work against each other, but even within the judiciary,
contradictory strains of legal reasoning could produce opposite results in related
areas of law. Such drift is a general feature of common law systems, in which
case law evolves organically under conditions of habitually low public visibility.
Furthermore, my conclusions do not necessarily attribute a feminist agenda to
these colonial judges. As Hendrik Hartog has argued in the context of nineteenth-
century American divorce law, the identification and disciplining of ‘bad husbands’
may have acted to cleanse and reinforce patriarchal regimes of ‘good husbands’.20
Protecting Muslim wives against their husbands’ power of divorce may have, in
fact, reinforced the legitimacy of the institution of talāq when exercised within
certain limits.

18
Carroll, ‘Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract’.
19
Ibid., pp. 284–85 (on suspended or contingent talāq), and pp. 286–90 (on separate residence
and maintenance). On suspended talāq (also known as talāq-i-taliq), see Saksena, Muslim Law as
Administered in British India, pp. 337–38; Muhammad Amin v Mst. Aimna Bibi AIR Lahore (1931)
134; Mahomed Dad Mahomed v Fatima 24 Indian Cases (1914) 881; and Bachchoo Lal v Mt. Bismilla
ILR Allahabad (1936) 387.
20
Hartog, Man and Wife in America, pp. 5, 160, 165. Borrowing from Barbara Yngvesson and
Linda Gordon, Hartog defines patriarchy as:

... a set of practices and assumptions ... that position women and children in the context of
their relation to men and that deny them legitimacy (in both private and public life) unless
they are officially connected to a man as wife or child .... As this implies, patriarchy is not
ubiquitous and should not be reified as an unchangeable moral/legal code. Its hegemony is
always in-complete. (Yngvesson and Gordon in Ibid., pp. 318–19 at note 7)

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Legal Pluralism and Islamic Law

When the British East India Company annexed large parts of the Indian subcon-
tinent, it asserted the right to change existing laws.21 The common law (and arguably
the ‘law of nations’ of the time) dictated that territory acquired by conquest was
to be governed by laws of the conquering power’s choice.22 However, in keeping
with Mughal traditions,23 the Company and its successor, the British Crown, iden-
tified certain zones of native law to be left untouched by Company regulations
and Parliamentary Acts: the law of the family, inheritance, and religious practice.24
Warren Hastings’ Plan of 1772 required British courts to apply native law ‘in all
suits regarding Inheritance, Marriage, Caste, and other religious Usages and Insti-
tutions [between native litigants]’. Native law meant ‘the laws of the Quran with
respect to Islamics’ and the law of the Brahmanic ‘Shasters’ for Hindus.25 Following
the Indian Mutiny of 1857 and the resulting transfer of power from the Company
to the British Crown, Queen Victoria made a similar vow of non-interference with
21
For an overview of law in India under British colonial rule, see Anderson, ‘Islamic Law and the
Colonial Encounter in British India’; Cohn, ‘Law and the Colonial State in India’, pp. 57–75, and
‘From Indian Status to British Contract’; Mendelsohn, ‘From Colonial to Post-Colonial Law in India’,
pp. 298–99; and Washbrook, ‘Law, State and Agrarian Society in Colonial India’, pp. 649-721. For a
lengthier study, see Derrett, Religion, Law and the State in India, pp. 225–351, 400–36, and 482–512.
See also Galanter, Law and Society in Modern India, pp. 15–54; and Anderson and Guha, eds, Chang-
ing Concepts of Rights and Justice in South Asia.
22
The ‘law of nations’ argument was made by counsel in the 1865 excessive dower Privy Council
case of Mulkah Do Alum Nowab Tajdar Bohoo v Mirza Jehan Kudr, Nowab Mirza, Suman Ara Begum
and Rufaatoonissa Begum 10 Moore’s Indian Appeals (MIA) (1863–66), p. 266. The earliest English
discussion of law in conquered territories is that of Sir Edward Coke in Calvin’s Case, the Case of
the Post–Nati 7 Coke Rep. 2a, 77 Eng. Rep. 309. For a useful discussion of that case, see Daniel
Hulsebosch, Constituting Empire, pp. 22–28.
23
Fyzee, ‘Islamic Law in India’, p. 414.
24
In the preface to his translation of The Hedaya, Charles Hamilton explained the Company’s
rationale:

... nothing can so effectually contribute as preserving to the latter their ancient established
practices, civil and religious, and protecting them in the exercise of their own institutes; for
however defective and absurd these may in many instances appear, still they must be infinitely
more acceptable than any which we could offer; since they are supported by the accumulated
prejudice of ages, and, in the opinion of their followers, derive their origin from the Divinity
itself. This salutary maxim was wisely adopted by the servants of the EIC on the first acquis-
ition of our Bengal territories; and to a steady adherence to it much of the present flourishing
state of those provinces must be attributed. (Hamilton, trans., The Hedaya Commentary on
the Islamic Laws, p. iv)
25
‘A Plan for the Administration of Justice, extracted from the Proceedings of the Committee of
Circuit, 15th August, 1772’, in Char, ed., Readings in the Constitutional History of India, 1757–1947,
p. 106 (Article XXIII). The formula was reiterated in Section 15 of Regulation 4, 1793, which pertained
to civil courts (Singha, A Despotism of Law, p. 121 at note 1).

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native law and religion.26 The promise was reiterated in various new territories
acquired by the British. Section 3(b) of the Oudh Laws Act of 1876, for instance,
confirmed:

... in questions regarding succession, special property of females, betrothal, di-

vorce, dower, adoption, guardianship, minority, bastardy, family-relations, wills,
legacies, gifts, partitions, or any religious usage or institution, the rule of deci-
sion shall be—...(2) the Islamic law in cases where the parties are Islamics.27

The domain of Islamic law shrank progressively over the nineteenth century.28
Slavery was abolished in 1843, and Islamic criminal law and procedure were re-
placed by colonial codes in the early 1860s. In 1872, English laws of evidence
replaced Islamic ones by statute.29 Michael Anderson notes that by 1875, ‘new
colonial codes had displaced the Anglo-Islamic law in all subjects except family
law and certain property transactions’.30
In the late nineteenth century, these last few enclaves of non-European law
acquired symbolic status. In emergent nationalist discourse, Indian society may
have been colonised on the ‘outside’—in public life and spaces. But it remained
pure, private and untouched on the ‘inside’—in the home, between husband and

26
We disclaim ... the right and the desire to impose our convictions on any of our subjects. We
declare it to be our royal will and pleasure that none be in any ways favoured, none molested
or disquieted, by reason of their religious faith or observances, but that all shall alike enjoy
the equal and impartial protection of the law; and we do strictly charge and enjoin from all
interference with the religious belief or worship of any of our subjects on pain of our highest
displeasure (Victoria, ‘Proclamation of 1858’, in Char, Readings in the Constitutional History
of India, p. 299.)
The statement was a strategic one. As Victoria told Lady Canning:

I think that the greatest care ought to be taken not to interfere with their religion, as once a
cry of that kind is raised among a fanatical people—very strictly attached to their religion—
there is no knowing what it may lead to and where it may end (Victoria in Hibbert, The Great
Mutiny India 1857, p. 167).

27
The Act did, however, include the proviso ‘except in so far as such law has been ... altered or
abolished, or has been modified by any such custom as is above referred to’ (Act XVIII of 1876
[the Oudh Laws Act] in Cranenburgh, Unrepealed Acts of the Governor-General in Council, 2,
pp. 114–15).
28
See Fyzee, ‘Islamic Law in India’, pp. 413–14, and Cases, pp. xxxiii–xxxvi.
29
These included the Indian Slavery Act (Act V of 1843), the Code of Civil Procedure (Act VIII
of 1859), the Indian Penal Code (Act XLV of 1860), the Criminal Procedure Code (Act XXV of
1861), and the Indian Evidence Act (Act I of 1872).
30
Anderson, ‘Islamic Law and the Colonial Encounter’, p. 169.

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wife, parents and children.31 Given the protected status of the Indian family, British
reform campaigns aimed at Indian women and marital relations were perceived
as particularly wounding to the Indian identity and self-respect (or at least, to that
of the Indian men who claimed to speak for their communities). To their minds,
the coloniser was intruding upon the inner space of the colonised, sullying the last
preserve of Indian dignity. As the Privy Councillors noted in the case of Moonshee
Buzloor Ruheem (1867):

... in suits regarding marriage and caste, and all religious usages and institutions,
the Mahomedan laws with respect to Mahomedans, and the Hindoo law with
regard to Hindoos, are to be considered as the general rules by which Judges
are to form their decisions; and they can conceive nothing more likely to give
just alarm to the Mahomedan community than to learn by a judicial decision,
that their law, the application of which has been thus secured to them, is to
be overridden upon a question which so materially concerns their domestic
relations.32

During the 1891 Age-of-Consent controversy, British campaigners targeted

child marriage by raising the age of consent for sexual intercourse from 10 to 12
for girls. According to Mrinalini Sinha, Indian men perceived the Act to be delib-
erately emasculating. They saw it as an intrusion upon their private social customs,
which had no relevance to British interests.33 Gayatri Chakravorty Spivak describes
the campaign to abolish Hindu widows’ self-immolation on the funeral pyres of
their dead husbands, or sati, as ‘white men saving brown women from brown
men’.34 Both scholars examine legislative reform campaigns affecting the Indian
family, case studies of chivalric imperialism in which British legislators justified
their intervention in Indian family life by the claim that they were rescuing the
‘downtrodden Indian woman’.35 This article examines another instance of chivalric
imperialism, this time in the judicial arena and with reference to the Muslim family.
31
‘This inner domain of culture is declared the sovereign territory of the nation, where the colonial
state is not allowed entry, even as the outer domain remains surrendered to the colonial power.’ Partha
Chatterjee also notes Gandhi’s use of the ‘colonised outer/uncolonised inner’ metaphor (Chatterjee,
The Nation and its Fragments, p. 237). See also Chatterjee, ‘The Nationalist Resolution of the Women’s
Question’, p. 238; Amin, The World of Muslim Women in Colonial Bengal, 1876–1939, p. 3; and Nair,
Women and Law in Colonial India, pp. 180–81.
32
Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, and Jodonath Bose v. Shumsoonnissa
Begum 11 Moore’s Indian Appeals (1866–67) 614.
33
Sinha, Colonial Masculinity, pp. 138–80.
34
Spivak, ‘Can the Subaltern Speak?’ p. 297.
35
I have borrowed Barbara Ramusack’s phrase describing the stereotypical British view of Indian
women. Interestingly, the same image gave British women the opportunity to exert their influence in
India through ‘maternal imperialism’. Antoinette Burton sees the Indian woman as the foil against
which the Victorian women’s movement defined itself (Barbara Ramusack and Antoinette Burton in
Sinha, Colonial Masculinity, p. 60).

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The British noted several aspects of Islamic marriage law that differed from
the common law. Islamic law permitted polygyny. Sunni men could marry up to
four permanent wives.36 Sh…’as could additionally enjoy an unlimited number of
temporary wives through a type of marriage contract that expired at the end of a
predetermined period.37 Both types of Muslim men were allowed as many con-
cubines as their ‘right hands possess’.38 Sunni Muslim men also had the power to
arbitrarily divorce their wives extrajudicially by repeating the phrase ‘I divorce
thee’ (talāq), or by using vaguer words with the requisite intention, three times.39
Furthermore, Islamic law required that the man pay the woman a dower, theor-
etically half upon demand following marriage,40 as opposed to the Hindu or English
dowry, which passed in the opposite direction (from woman to man).41 Finally,
the doctrine of unity, which fused the legal person of a woman with that of her
husband upon marriage, had no equivalent in Islamic law. Married women retained
legal personhood in Islamic law and, as such, could be parties to a contract and
could own property, unlike their English counterparts.42

36
Hamilton, Hedaya, p. 88 (Book II, Ch.1). The Hedaya was a main primary source on Hanafite
doctrine in colonial South Asian courts.
37
Querry, Droit Musulman, pp. 639, 689–95. British courts in colonial India looked to Querry’s
work on Sh…’a law. I have been unable to identify an English translation of the work, and cite the
French original instead. On other treatises of Sh…’a law cited in colonial courts, see Wilson, Principles
of Hindu and Mohammadan Law, pp. xxiii–xxiv. See also Ali, Mahommedan Law compiled from
authorities in the original Arabic, 2: 398–404. On modern temporary marriage in Sh…’a law (par-
ticularly in Iran), see Nasir, The Islamic Law of Personal Status, pp. 57–59; Ghodsi, ‘Tying a Slipknot’;
and Haeri, Law of Desire.
38
Surah 4 (Al-Nisa): 25. Technically, the passage refers to female captives under a man’s control.
39
See Hamilton for Hedaya, pp. 201–313. Sh…’as do not consider vaguer words sufficient to con-
stitute divorce by talāq.
40
There was much debate over the timing of the payment of dower. In most parts of colonial
India, part of the dower would be ‘prompt’ (that is, payable in part upon demand after marriage) and
the other part, ‘deferred’ (that is, payable upon the husband’s death or divorce). In one case, deferred
payment was declared ‘inexact and unworkable’ by appellate judges, who established full and prompt
payment upon demand for the Madras presidency (Masthan Sahib v Assan Bivi Ammal ILR 23 Madras
[1900] 376). For an example of the discussions surrounding this issue, see ‘Prompt and Deferred
Dower in Mahomedan Law’.
41
Dower did, however, effectively exist in England through the early modern period. It consisted
of one-third of the husband’s real estate. See Staves, Married Women’s Separate Property in England,
1660–1833.
42
For a brief summary of the legal position of married women in nineteenth-century Britain, see
Parashar, ‘Do Changing Concepts of Gender Justice Have a Place in Indian Women’s Lives?’ For a
more detailed picture, see Holcombe, Wives and Property; Horstman, Victorian Divorce; Okin, ‘Patri-
archy and Married Women’s Property in England’; Shanley, Feminism, Marriage, and the Law in
Victorian England, 1850–1895; Staves, Married Women’s Separate Property; Lawrence Stone, Road
to Divorce; and Wright, ‘De Manneville v De Manneville’.

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Despite this last redeeming feature, British commentators viewed Islamic

marriage law (generally of the Hanafite school of legal interpretation in the South
Asian context)43 as imposing a gross power imbalance: Husbands enjoyed far-
ranging privileges and powers over their wives, and had the concomitant duty of
financial support. A district judge in Bengal, applying Islamic marriage law in
1870, expressed his frustration with its inequality of rights between the sexes:

The Mahomedan law gives great facilities to the husband to divorce his wife,
but puts every obstacle in the way of the wife divorcing her husband, and this
was the natural consequence of Mahomedan society as it was when the law
was made, and indeed as it now exists. It is unequal and unfair, but with this
we have nothing to do. We have only to administer the law as it stands.44

He was echoing comments made by the Privy Council just three years before:

[t]he matrimonial law of the Mahomedans ... favours the stronger sex. The
Husband can dissolve the tie at his will, subject to the condition of paying the
Wife her dower and other allowances; but she cannot separate herself from
him except under the arrangement called Kolah, which is made upon terms to
which both are assenting parties, and operates in law as the divorce of the Wife
by the Husband. It cannot, we think, be doubted that, whilst the tie subsists, his
power over her is considerable.45

Thomas Metcalf comments that Islam was seen as a religion ‘peculiarly calcu-
lated for despotism’, and the Islamic household, with its polygyny and female
seclusion, a miniature version of a despotic polity.46 The Privy Council expressed

43
This article generally refers to Hanafite law, unless specifically identified as Shāfi’… or Sh…’a.
On Sh…’a law in colonial South Asia, see n. 37 and Saksena, Muslim Law, pp. 27–30, 33–34. Sh…’a
centres in colonial India included Bombay and Lucknow. See Lokhandwalla, ‘Islamic Law and Ismaili
Communities’; and Jones, ‘The Shi’a Muslims of the United Provinces of India, 1890–1940’. On
Sh…’a law in contemporary South Asia, see Carroll, ‘The Ithna Ashari Law of Intestate Succession’.
On the Shāfi’… school of Sunni legal interpretation, see Saksena, Muslim Law, pp. 45–50. Shāfi’…
populations were concentrated along the south-west coast of colonial India.
44
Badarannissa Bibi v Mafiattala 7 Bengal Law Reports (1871) 443.
45
Moonshee Buzloor Ruheem, p. 610.
46
Metcalf, Ideologies of the Raj, pp. 8–9. Metcalf characterises the British view of women in the
Hindu tradition as equally negative, but for opposite reasons:

[a]s India’s Hindu women, so the British conceived, were degraded by their sexuality and
their vulnerability to priestly influence, so too was their religion itself feminised in its character.
Above all, the British looked on in horror at a Hinduism that venerated female deities imagined
as vicious and licentious in nature, such as Kali (Ibid., p. 100).

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considerable concern for upper-caste Indian wives—Hindu and Muslim alike—

because of their seclusion:47

In India the Mussulman woman of rank, like the Hindoo, is shut up in the
Zenanah, and has no communication, except from behind the Purdah, or screen,
with any male persons, save a few privileged relatives or dependants; the culture
of the one is not, generally speaking, higher than that of the other [i.e. Hindu
and Muslim], and they may be taken to be equally liable to the pressure and in-
fluence which a Husband may be presumed to exercise over a Wife living in
such a state of seclusion. Their Lordships must, therefore, hold that this Lady
is entitled to the protection which, according to the authorities, the law gives
to a Purdah-nusheen...48

This article’s survey of case judgements finds colonial judges consistently hand-
ing down judgements in favour of Indian Muslim wives seeking divorce and dower,
compromising their adherence to Anglo-Islamic legal treatises and colonial legis-
lation.49 Leaving aside the colonial promise not to interfere with Indian marriage
law (a promise breached by the fact that the colonial courts themselves interpreted
and applied the personal laws), the manoeuvre is noteworthy, given the English
legal tradition’s disapproval of judicial activism (or ‘judicial legislation’).50

Excessive Dower

British Indian courts accepted the minimum legal mahr51 or dower in Islamic law
to be 10 dirhāms, as specified by hadith.52 Ten dirhāms was the equivalent of three

47
Although the caste system was technically limited to the Hindu society, there are references in
the case law to Indian Muslims also having caste. See, for example, Moonshee Buzloor Ruheem, p. 557.
48
Moonshee Buzloor Ruheem, pp. 585–86. See, generally, Sorabji, The Purdahnashin.
49
For other instances of colonial judges favouring Muslim wives, see the 1855 case of Ameer-
oon-Nissa v Moorad-oon-Nissa 6 Moore’s Indian Appeals (1854–57), 211 (expiration of limitation
period not relevant to dower demand by a Muslim wife); and Poonoo Bibee v Fyez Buksh 15 Bengal
Law Reports (1875) 5 (invalidity of certain clauses of a marital contract voided only those clauses,
not the entire contract).
50
In the British imperial model of the personal law system, it was colonial courts that applied
Hindu and Islamic law. By contrast, the Ottoman Empire’s millet system allowed local courts operated
by ethno-religious communities themselves to handle cases specific to those communities. See Karpat,
‘Millets and Nationality’, pp. 141–43; Inalcik, ‘Ottoman Archival Materials on Millets’, p. 437; both
in Braude and Lewis, eds, Christians and Jews in the Ottoman Empire.
51
Throughout this paper, I have used the transliteration system of F.J. Steingass’ Comprehensive
Persian-English Dictionary for Perso-Arabic legal terms. Mughal legal sources being used would
have been most immediately in Persian, the language of the Mughal law courts. That said, some
colonial Islamic law textbooks drew upon sources in the original Arabic, and most legal terms in the
Persian sources would be derived from Arabic terms, in any case.
52
Hamilton, Hedaya, 1, p. 122.

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to four rupees.53 The Hedaya explained the rationale for this sum: ‘ten Dirhams ...
being the lowest amount of a theft inducing the punishment of amputation of a
limb, which shews that such sum is the least that can be regarded in an important
or respectable light’.54 David Pearl and Werner Menski offer a harsher reading.
They argue that the analogy probably arose because ancient jurists likened the
loss of virginity to the loss of a limb.55
Islamic law did not, however, specify any maximum limit for dower sums.
The practice of setting inflated dower sums arose among South Asian Muslims in
an attempt to prevent husbands from divorcing their wives.56 Although technically
payable (at least in part) upon demand after marriage, dower was customarily
only paid upon divorce or following the death of the husband. The practice was
also a matter of prestige: agreeing to a huge dower for one’s wife spoke well of a
man’s social status. Excessive dower sums were considered ‘improper’, but not
illegal under Hanafite doctrine.57 However, textbooks of colonial Islamic law dis-
couraged the practice.58
The question for the colonial courts was what to do when excessive dower
sums actually became payable. Should the courts uphold these sums literally? Or
was it preferable to replace the inflated sum with a reasonable figure, particularly
when the husband had died and not divorced his wife arbitrarily, and where his
heirs would otherwise be deprived of an inheritance? Often the inflated dower
sum surpassed the value of the deceased’s entire estate.59 As dower was considered
a debt, it ranked alongside the deceased’s other debts and ahead of inheritance
claims. The wife would often take the entire estate, which represented just a fraction
of her literal dower sum, leaving nothing to the deceased’s heirs. Such suits became
particularly acrimonious in polygynous families, in instances where the wife claim-
ing her dower was not the mother of the heirs.60

53
Asma Bibi v Abdul Samad Khan ILR 32 Allahabad (1910) 167.
54
Hamilton, Hedaya, I, p. 123. See also K.R. Wilson, Islamic Law: A Digest, p. 117.
55
Pearl and Menski, Muslim Family Law, p. 180.
56
Macnaghten, Principles and Precedents of Moohummudan Law, pp. xxv–xxvi, 288; Tyabji,
Islamic Law, p. 174; Ameer Ali, Mahommedan Law, 2, p. 435.
57
Ameer Ali, Mahommedan Law, 2, p. 434.
58
The author of one textbook commented that ‘excessive mahrs are often oppressive to creditors
and unfair to heirs, especially to children of predeceased wives’. He encouraged judges to consider
whether ‘absurdly high figure[s]’ were genuinely intended to be paid or were a ‘mere sham’ declared
purely ‘for the purpose of “reputation”’ (Tyabji, Islamic Law, p. 174).
59
In Sugra Bibi, the entire estate (worth Rs 2,000–3,000) represented only 4–6 per cent of the
widow’s dower (worth Rs 51,000) (Sugra Bibi v Masuma Bibi ILR 2 Allahabad [1877] 573). In Syed
Amjad Hosain, the widow sued for a dower of Rs 70,000, whereas the estate was only worth a
quarter of that sum (just under Rs 17,000) (Syed Amjad Hosein v Mt. Ummatul Askari 79 Indian
Cases [1924] 644).
60
See, for example, Mulkah Do Alum Nowab Tajdar Bohoo, p. 252.

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Colonial legislation explicitly opposed the inflation of dower sums. The Oudh
Laws Act (XVIII of 1876) required excessive dowers to be struck down in the state
of Oudh (now Awadh), a province on the upper Ganges in north-central India.
Section 5 of Part III, Chapter I read as follows:

Where the amount of dower stipulated for in any contract of dower by [an]
Islamic is excessive with reference to the means of the husband, the entire sum
provided in the contract shall not be awarded in any suit by decree in favour of
the plaintiff, or by allowing it by way of set-off, lien, or otherwise to the defend-
ant; but the amount of the dower to be allowed by the Court shall be reasonable
with reference to the means of the husband and the status of the wife.61

The provision was originally imported into Oudh in 1856 when the Punjab Code
of 1854 was introduced into the newly annexed territory.62 Clause 10, Section VI
of that Code gave some insight into legislators’ rationale:

Among Mahomedans it is usual, as a safeguard against capricious divorces, to

stipulate for an amount of dower far beyond the means of the bridegroom to
pay. Such contract, if enforced by a Court, would ruin a Defendant who has di-
vorced his wife, without reflecting on the liability to which he was subject.63

In the eight excessive dower cases surveyed here, excessive dowers were upheld
in four cases, while in the other four, excessive dower was replaced with a lesser
sum, namely the woman’s ‘proper dower’. The pattern seems inconclusive until
one realises that the four cases in which excessive dowers were quashed all fell
under Section 5 of the Oudh Laws Act, while none of the other four cases did. In
other words, where judges were unfettered by the clearly disapproving language
of the Act, they awarded excessive dower sums to widows at the expense of heirs,
lending judicial muscle to the social practice of setting excessive dowers. I shall
not discuss the four Oudh Laws Act cases here, focusing instead on the creative
efforts made by judges to reach the opposite result in the four cases to which the
Act did not strictly apply. 64
The first judicial saving device was to avoid the application of the Oudh Laws
Act wherever possible. When a couple married and lived in the state of Oudh, the

61
Italics added. See the Oudh Laws Act (XVIII of 1876) in Cranenburgh, Unrepealed General
Acts, 2, p. 115.
62
The British annexed Oudh (alternatively spelled Oude) in 1856.
63
Italics added. Punjab Code of 1854 cited in Mulkah Do Alum Nowab Tajdar Bohoo, pp. 252–53.
64
The Oudh Laws Act cases include two Privy Council cases, namely Mulkah Do Alum Nowab
Tajdar Bohoo and Suleman Kadr v Mehdi Begum Surreya Bahu ILR 21 Calcutta (1893) 135. The
other two judgements were by courts in Oudh: Syed Amjad Hosain v Mt. Ummatul Askari and Baqar
Mirza v Mehdi Hasan AIR Oudh (1917) 392.

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Act clearly applied; when they married and lived outside of Oudh, it technically
did not. But did it apply to couples who had married in Oudh, and then moved out
of the state? Colonial contract law followed the general lex loci contractus rule:
the law of the place where a contract was made would govern that contract’s val-
idity.65 However, marriage contracts were different. Under the rules of domicile,
a suit relating to marriage had to be heard by a court in the jurisdiction in which
the husband and wife had their fixed permanent home, and to which they had the
intention of returning.66 This rule allowed judges to sidestep the legislated ban on
excess dower for couples who had married in Oudh, then left. In Zakeri Begum v.
Sakina Begum (1892), a Muslim man residing in Patna (in the state of Bihar) had
married the plaintiff while he was in Lucknow (in Oudh), where she lived. Lord
Hannen, delivering the majority opinion, agreed with the subordinate judge that
the Oudh law was not applicable to the marriage in question, and happily endorsed
the practice of inflating dower sums as an anti-divorce mechanism in the wife’s
favour: ‘[d]ower is often high among Mahomedans, to prevent the husband divorc-
ing his wife, in which case he would have to pay the amount stipulated’.67 In the
subsequent Allahabad case of Rukia Begam v. Muhammad Kazim (1910), the widow
and her deceased husband had been married in Lucknow, but had then moved out
of Oudh to Muzaffarnagar, where the husband had been a vakil. As in Zakeri
Begum,68 the judges in Rukia Begam also found that the law of Oudh did not apply.
They were thus free to award the widow her deceased husband’s entire estate,
itself representing only a fifth of her dower, which deprived the heirs of any part
of their inheritance.69 This ruling is striking. Although the Oudh and Punjab legis-
lation was not of binding authority outside of Oudh and Punjab, it certainly would
have had persuasive authority. In other words, although judges were not strictly
required to follow this legislation in cases outside of Oudh and Punjab, they would
have been encouraged to do so. Colonial legislators clearly opposed inflated dower.
The judges in Rukia Begam explicitly refused to rule in line with the legislation
once they realised that they were not strictly bound by it.
In other cases, judges pretended to rule in accordance with the legislation,
while in fact undermining the legislated model. Judges required that the sum be
‘reasonable’, but then unravelled this requirement by adopting criteria that would
allow them to describe inflated dower sums as ‘reasonable’. Had they wished to

65
See, for example, Subraya Pillai v Subraya Mudali 4 Madras High Court Reports 14; and Sujan
Singh v Gunga Ram ILR 8 Calcutta 337.
66
Oppé, ed., Wharton’s Law Lexicon, pp. 344–45.
67
Lord Hannen in Zakeri Begum v Sakina Begum ILR 19 Calcutta 698.
68
Although colonial judges claimed to be applying Islamic law, they resorted without explanation
to a common-law-style reliance on case law precedent, rather than on the more Islamic reliance upon
jurists’ fatwa precedent.
69
The widow’s dower was Rs 1,25,000, but she only sued the heirs for Rs 25,000, which represented
the assets of the husband (Rukia Begam v Muhammad Kazim and others).

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further the spirit of colonial legislation, they would have defined ‘proper dower’
as ‘reasonable’ with reference to both the means of the husband and the status of
the wife, as well as to the claims of the heirs.70 Instead, judges adopted a test that
used family custom as its yardstick: if a woman’s female relatives had also set in-
flated dower sums, hers would be deemed ‘reasonable’. This judicial contortion
produced the exact opposite effect of what colonial legislators had intended for
Oudh and Punjab, namely to avoid ruining a man (through divorce) or his heirs
(following his death).
The case of Sugra Bibi v. Masuma Bibi (1879) illustrates this twist in legal logic.
Pearson J. suggested that the inflated sum was in fact reasonable, given that it
was perfectly on par with the size of dower that other women in the widow’s fam-
ily had contracted: ‘in this instance it happens that, if a dower of Rs 51,000 had
not been agreed to by him [which it had been in this case], she would have been
entitled to a dower of that amount, because such an amount has been customarily
fixed as dower for ladies belonging to the family of which she is a member’.71
Pearson’s trick was to ignore the fact that the relatives’ dowers may also have
been excessive. He used this strained logic to award the husband’s entire estate to
the widow, leaving nothing for the heirs.72
We can also return to the case of Zakeri Begum v. Sakina Begum, where the
Privy Council considered the Oudh law inapplicable because the couple had moved
out of the state of Oudh, where they had married. Despite this first conclusion, the
judges did in fact assess the dower sum’s reasonableness. However, they did so
by adopting the family custom test, which enabled them to validate an excessive
dower sum: ‘this [sum] was the minimum dower used in the plaintiff’s [that is,
the wife’s] family, and it was proved that her sister had received a much larger
dower’.73 Again, the move purports to follow the spirit of the colonial legislation,
but in fact turns it on its head by making the unreasonable ‘reasonable’.
Judges exploited the Hanafite definition of ‘proper dower’ while ignoring the
larger Islamic distaste for excessive dower, shared by Sh…’a and Sunni jurists
alike.74 The family custom test was probably inspired by the Hanafite notion of
‘proper dower’, which defined a reasonable dower as a sum comparable to the

70
Oudh Laws Act (XVIII of 1876), Part III, Ch. I, s. 5 in Cranenburgh, Unrepealed Acts, 2, p. 115.
In the Oudh case of Baqar Mirza v Mehdi Hasan (1917), an appellate court in Lucknow developed s.5:
... we think the principal matters to be considered are the extent and nature of the claims of
the various persons who as heirs are entitled to divide the estate. If it were made to appear
that the payment of a certain sum on account of dower would reduce the divisible estate to
such an extent as to leave the heirs poorly provided for, it might reasonably be held that such
a sum was excessive (Baqar Mirza v Mehdi Hasan AIR Oudh [1917] 397).
71
Italics added. Sugra Bibi, p. 581 (per Pearson J.).
72
See Sugra Bibi, p. 581 (per Pearson J.) and p. 582 (per Turner J.).
73
Zakeri Begum, p. 692.
74
Ameer Ali, Mahommedan Law, 2, p. 434.

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value of the dowers of the woman’s female relatives on her paternal side.75 How-
ever, the original sharia test only allowed the comparison with women whose
husbands had equivalent wealth and lineage to that of the husband in question,
and with women of comparable ‘intellectual attainments or personal attractions’.76
The British colonial test broadened this model, applying the comparison to all
female relatives of the woman, and omitting the husbands’ comparable wealth re-
quirement. These alterations widened the potential pool in which to find other in-
flated dower sums. More significantly, colonial judges ignored the general Hanafite
condemnation of excessive dower. They did not refer to textbooks of the period
that characterised excessive dower as a ‘mere sham’77 set up by the parties ‘without
any intention to pay’, often with another figure being agreed upon in private.78
Nor was it noted that even in Islamic law, the qadi was entitled to reduce excessive
dowers.79
Excessive dower cases, thus, exhibit subtle strategies of judicial manipulation.
Where a case took place exclusively in Oudh or Punjab, judges could not avoid
the legislation that replaced excessive dowers with ‘reasonable’ ones, assessed in
light of the position of the man and his heirs, and of the status of the wife. Where
a case fell outside of Oudh or Punjab, some judges explicitly refused to adopt the
approach desired by legislators. Others pretended to apply the reasonableness
standard—although not strictly obliged to do so—while gutting it of its intended
meaning. By expanding the ‘proper dower’ family custom test so as to maximise
the chance of finding other inflated dowers in the family, these judges aimed to
legitimate excess dower by deeming it customary and, thus, ‘reasonable’. The test
produced the exact opposite result of what legislators intended for neighbouring
territories, reflecting colonial judges’ ability to disregard the big message of colo-
nial legislation.

Delegated Divorce

A second opportunity for judicial creativity presented itself vis-à-vis the application
of Islamic law as represented by Anglo-Islamic legal treatises.80 Islamic law allowed
a husband to delegate his right of unilateral divorce or talāq to a third party

75
For the Hanafite test, see Ibid., p. 436.
76
Baillie, Digest of Moohummudan Law compiled and translated from authorities in the original
Arabic, 1, p. 95; Ameer Ali, Mahommedan Law, 2, p. 437.
77
Tyabji, Islamic Law, p. 174.
78
Ameer Ali, Mahommedan Law, 2, p. 436.
79
Ibid.
80
Many of these treatises relied upon translations and compilations originally commissioned by
the executive branch of the colonial state. See Wilson, ed., Principles of Hindu and Mohammadan
Law republished from the Principles and Precedents of the same, by the late Sir W.H. Macnaghten,
pp. v–xxix; Cohn, ‘Colonialism and its Forms of Knowledge, pp. 57–75’; and Emon, ‘Islamic Law
and the Canadian Mosaic’, pp. 10–12.

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 The semi-autonomous judge in colonial India / 73

through the device known as talāq-i-tafwid or -tafweez. He could even delegate

that power to his wife such that she could divorce herself from him, typically if he
assaulted her or took another wife without her permission.81 However, where the
power of talāq had been delegated to a wife, Islamic law imposed very strict re-
strictions upon its use: a woman, generally, had to use the power immediately
upon learning of the offending act. My survey of case law found judges leaning in
the opposite direction. The colonial judiciary pretended to apply Hanafite doctrine
but, in fact, unravelled it by expanding the woman’s ability to use delegated talāq.
Hanafite opinion stipulated that where the power of talāq had been delegated
to a wife in the clearest of terms (whether in the marriage contract or following
it), she had to use the power almost immediately upon learning of the triggering
act. As the textbook authority Amir Ali put it, ‘this right is restricted to the precise
place or situation in which she receives the power, and falls to the ground on her
removal from there, as that circumstance proves her rejection of the power’.82 The
wife’s right of delegated talāq expired rapidly unless express words in the
agreement allowed her to exercise the right at any time following the triggering
act (for example, ‘whenever you choose’). The delegation was non-revocable by
the husband, and did not extinguish his own right of talāq. 83
Judges used creative reasoning in Ayatunnessa Beebee v. Karam Ali (1908) in
order to avoid these restrictions. In that case, a woman lived with her husband for
a year following his second marriage before she divorced him using the power
delegated to her in their marriage contract. The husband’s counsel argued that the
wife’s option to divorce had to be exercised soon after she became aware of her
husband’s violation. Failure to act then meant that the option expired, inaction
implying consent. The leading Anglo-Indian textbooks stressed that swift action
was essential in delegated talāq cases.84 And yet, according to Coxe and Dose J.J.:

[w]e think that, when a power is given to a wife by the marriage contract to di-
vorce herself on her husband marrying again, then, if her husband does marry

81
Some Sh…’a jurists (for example, Imam Ja’far-as-Sadiq) argued that the power of talāq could not
be delegated to a wife (Tyabji, Islamic Law, p. 212; Baillie, Digest of Moohummudan Law, 2, p. 109).
82
Italics added. Ameer Ali, Mahommedan Law, 2, p. 495.
83
Sainuddin v Latifannessa Bibi ILR 46 Calcutta (1919) 148. In Sainuddin, the original delegation
did expressly extend the time limit by allowing the wife to use her power ‘whenever she chose’, such
that no judicial acrobatics were necessary to uphold the divorce. On non-cancellation of the husband’s
power of talāq, see Sainuddin, p. 147; and Nga Kyaw v Mi Hla 49 Indian Cases (1919) 97.
84
This was more so when the delegation took the form of ‘amr-ba-yed delegation (leaving the
matter ‘in her own hands’) than of mashiat delegation (giving her the option to divorce her husband
‘at her pleasure’) (Ameer Ali, Mahommedan Law, 2, p. 496). It is significant that the specific wording
of the contractual term and thus type of delegation, important elements in Islamic law, were not spe-
cified in the Ayatunnessa Beebee judgement (Ayatunnessa Beebee v Karam Ali ILR 36 Calcutta
[1909] 26). For other textbook accounts of the swiftness of action required, see Wilson, Islamic Law,
p. 145, and the list of treatise authorities cited by the husband’s counsel in Ayatunnessa Beebee, p. 24.

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again, she is not bound to exercise her option at the very first moment she
hears the news. The injury done to her is a continuing one and it is reasonable
that she should have a continuing right to exercise the power.85

The notion of a ‘continuing right’ due to a ‘continuing injury’ would prove

useful in later cases as well. In the case of Mi Nafizunissa alias Ma Enda v. Bodi
Rahiman (1913), the marriage contract stipulated that if the husband abused or
assaulted his wife, she could exercise the option of divorce. He beat her severely
on several occasions, and only after the last incident did she divorce him by dele-
gated talāq. The judge held that while a series of beatings could not be called a
‘continuing injury’, they could be characterised as ‘a cumulative one’. As a result,
her power of divorce did not expire following the first beating:

No doubt, she put up with them for a time till she saw there was no hope of
improvement, and on the next repetition of his ill-treatment, she exercised her
power at once. I am of opinion that the divorce she then pronounced was a
valid one.86

The concepts of continuing and cumulative injury were handy ways for colonial
judges to ignore the treatises’ instructions to deny delegated talāq to all but the
most legally informed and decisive of wives. While pretending to apply Anglo-
Islamic law as it appeared in their textbooks, colonial judges fashioned their own
law in order to better the lot of Muslim wives.

Conclusions

A final issue deserves consideration. Who were the judges making these quiet
departures from colonial legislation and treatises? How may their ethno-religious
identity have informed their decisions? Most of the judges surveyed here were
British (79 per cent), but the remaining eight of 38 judges were South Asian (21 per
cent).87 Of these, six were Hindu (16 per cent).88 Only two were Muslim (5 per
cent).89 The courts in question were generally appellate courts. The lower the court,
the greater the proportion of South Asian judges and magistrates would have

85
Italics added. Ayatunnessa Beebee, p. 26.
86
Mi Nafizunissa alias Ma Enda v Bodi Rahiman 20 Indian Cases (1913), p. 644.
87
The 30 British judges (including ‘Assessors’ or judicial advisors to the JCPC) were: Ainslie,
Beachcroft, Bruce, Colvile, Couch, Coxe, Fletcher, Glover, Hannen, Hobhouse, Kendall, Kingsdown,
Knox, Jackson, Leigh, Lindsay, Macnaghten, Newbould, Oldfield, Parlett, Pearson, Peel, Robinson,
Ryan, Saunders, Shand, Spankie, Stanley, Turner and Woodroffe.
88
The six Hindu judges were: Banerji, Doss, Lal, Mitter, Mookerjee and Mookerjee. The second
Mookerjee was Sir Asutosh Mookerjee, who was a child when the first Mookerjee heard the case of
Badarannissa Bibi.
89
The two Muslim judges were Husain and Shams-ul-Huda.

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been.90 As the late colonial period progressed, though, the proportion of Indian
judges also increased at the upper levels of the judiciary.91 During the mid-to-late
nineteenth century, any Indian judge was typically paired with a British judge,
who generally delivered the decision himself.92 The Indian judge normally con-
curred in a few lines at the end.93
In the 1919 Sainuddin case from Calcutta, however, a Muslim judge named
Syed Shams-ul-Huda wrote an extensive, seven-page judgement that included
two pages of Arabic text. The judge’s contribution was an interesting one not just
because it reflected the newly recovered voice of Indian judges, but also because
being Muslim by itself did not imply Arabic reading ability or any expertise in
Islamic law.94 This was particularly true at a time when most of the first South
Asian judges had received English barristers’ educations in London.95 The other
Muslim judge in these cases, Syed Karamat Husain, was a reformist, and may
have sided with Muslim wives as part of a larger agenda: the reformulation of his
own community’s identity in progressive form. 96 The Hindu judges may have
had different reasons for ruling in favour of Muslim wives. A strain of nationalist
discourse, for instance, emphasised Muslim ‘backwardness’, portraying Muslim
men as conservative, hyper-religious and oppressive towards their wives and female
relatives.97 What is important to note is that it was largely British and Hindu judges
who were carrying out the defence of Muslim wives in the case law analysed.

90
See Schmitthener, ‘A Sketch of the Development of the Legal Profession in India’; and Jain,
Outlines, pp. 670–74.
91
See Sharafi, ‘Judging Conversion to Zoroastrianism’, p. 173.
92
One exception is the case of Syed Amjad Hossein, which was heard by a single judge,
Mr Kanhaiya Lal, J.C. in the Oudh Judicial Commissioner’s Court in 1923.
93
See, for example, the cases of Ashraf Ali (Meer) and Badarannissa Bibi.
94
The inverse was also true: some of the leading textbooks in colonial personal law were written
by South Asians who were not followers of the religion in question. See, for example, the work of
Parsi jurist Dinshaw Fardunji Mulla: Mulla, Principles of Mahomedan Law and Principles of Hindu
Law.
95
On South Asians at the Inns of Court, see Duman, The English and Colonial Bars in the Nineteenth
Century, p. 132; Lahiri, Indians in Britain, pp. 4–10, 29–31; Visram, Asians in Britain, pp. 149–62;
and Sharafi, ‘A New History of Colonial Lawyering’, pp. 1082–83. On South Asian law students at
the University of London, see Mitchell, ‘Law and India at King’s College London’.
96
Syed Karamat Husain was an advocate of female education, and founder of the Karamat Husain
Girls’ College in Lucknow. See Dutta, ‘Fleeting Impressions’, pp. 279–80. The best known Islamic
reformist movements of the late colonial period were the Aligarh movement and the Deoband school.
On Aligarh, see Hasan, The Aligarh Movement and the Making of the Indian Muslim Mind, 1857–2002;
Jain, The Aligarh Movement; and Muhammad, ed., The Aligarh Movement. On Deoband, see Metcalf,
Islamic Revival in British India.
97
The origin of this discourse is W.W. Hunter’s The Indian Musulmans. The reformist Muslim
intelligentsia itself adopted some of this view (Hardy, The Muslims of British India, pp. 92–115).
The ‘backward Muslim’ stereotype is also reflected in Nehru’s writing. See Nehru, The Discovery of
India, pp. 394–95.

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Colonial judges were willing to pull away from the Oudh Laws Act for the
benefit of Muslim wives seeking to exit from their marriages. They applied strained
legal reasoning in their blurring of excessive and ‘reasonable’ dower through the
family custom test. They developed strategies to avoid requirements of Islamic
law like the time restrictions placed upon the use of delegated talāq by means of
the idea of a ‘continuous’ or ‘cumulative wrong’. These findings confirm the image
promoted by Dirks, Rogers, Washbrook and Brimnes of the colonial judge as semi-
autonomous agent.98 The question at the heart of this article applies across the
common law world: what were judges really doing? In two pockets of Anglo-
Islamic marriage law, largely British and Hindu judges were ignoring or distorting
the logic of colonial legislation and Anglo-Islamic treatises in order to strengthen
the position of Muslim wives vis-à-vis their husbands.

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98
See n. 2.

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∗Rukia Begam v. Muhammad Kazim and others ILR 32 Allahabad (1910) 477.
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