Anglo-Islamic Law in Colonial India
Mitra Sharafi, Assistant Professor of Law, University of Wisconsin
In colonial India, Islamic law was famous for its flexibility. It
was one of many systems of religious law applied in the state courts, typically by European judges. Then as now, South Asia operated upon the personal law principle. For marriage and inheritance, a person’s religious affiliation determined what law would govern. Hindu law applied to Hindus, Islamic law to Muslims, and so on. State courts administered religious law, making the term “Anglo-Islamic” law the most appropriate term for the body of law applied to Muslims.
Anglo-Islamic matrimonial law offered a wider diversity of options and greater freedom of contract than other bodies of religious law in India. Divorce and the remarriage of widows were easier for Muslims than for others, for instance. Because Muslim men could divorce easily and take multiple wives, they enjoyed the greatest array of matrimonial options. However, there were also ways that Muslim women could use Islamic law to their benefit. One was the power of delegated divorce. In classical Islamic law, husbands could divorce their wives through the triple tal?q. Saying “I divorce thee” three times dissolved the marriage. However, husbands could delegate their power of tal?q to their wives in the marriage contract. Both husbands and wives could then dissolve the marriage through the triple tal?q. Another device was inflated dower. Dower is the inverse of dowry: the groom’s side pays the bride, rather than the other way around. Dower or mahr functioned as insurance for the bride. The money became payable to her if and when the marriage ended through divorce or the husband’s death. The dower sum was included in the marriage contract. The bride’s side occasionally succeeded in negotiating an excessively high figure. Inflated dower made divorce too expensive to be feasible for the husband. Both the power of delegated divorce and the use of inflated dower were answers to the husband’s power of triple tal?q—from within Anglo-Islamic law. Colonial judges favored wives in their interpretation of both practices.
Non-Muslims recognized the comparative flexibility of Anglo-Islamic law. Some even converted to Islam in order to forum shop, bringing themselves under Anglo-Islamic law to reconfigure their marital situations. Religious affiliation in colonial India was not just about values and social identity. It was also a jurisdictional matter. For some, the fact that polygamy was permitted was reason enough to convert. Unhappily married non-Muslim men in colonial India occasionally converted to Islam, left a first wife, and married a second one. In such situations, these men were technically polygamous, although they usually cohabited only with the second wife. Becoming Muslim appealed to some unhappily married non-Muslim women, too. As Muslims, these female converts—including Europeans—could divorce their first spouse more easily than under their original body of personal law. They usually re-married. Eventually, the colonial state passed legislation to nullify the legal effects of these types of strategic conversions.
Colonial India’s personal law system invited direct comparisons between different types of religious law. Among these, Anglo-Islamic law represented a heightened array of options and possibilities, making it flexible in ways that are easily underestimated a century later.
• Michael R. Anderson, “Islamic Law and the Colonial Encounter in British India,” in David Arnold and Peter Robb, eds., Institutions and Ideologies: A SOAS South Asia Reader (Richmond, UK: Curzon Press, 1993), 165-85
• Rohit De, “The Two Husbands of Vera Tiscenko: Apostasy, Conversion, and Divorce in Late Colonial India,” Law and History Review 28:4 (2010), 1011-41
• Gregory C. Kozlowski, Muslim Endowments and Society in British India (Cambridge: Cambridge University Press, 1985)
• Scott Alan Kugle, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia,” Modern Asian Studies 35: 2 (2001), 257-313
• Mitra Sharafi, “The Semi-Autonomous Judge in Colonial India: Chivalric Imperialism meets Anglo-Islamic Dower and Divorce Law,” Indian Social and Economic History Review 46:1 (2009), 57-81
Conversation with Joe Elder
Michael Kruse, staff member of Center for South Asia
Since the 2003 invasion and subsequent occupation of Iraq, the American public has learned much about the division between Sunni and Shia Muslims. In the context of South Asia, however, the situation is much more complicated than one might expect. Just ask Joseph Elder, Professor of Sociology at the University of Wisconsin-Madison. Prof. Elder has studied South Asian society and religion for over 50 years, and has produced a series of almost 40 documentary films on all aspects of South Asia.
As you can see in Part 1 of the interview, he discusses his earlier experience growing up in the Shia majority country of Iran, where Muharram is celebrated by almost everyone. Later, he witnessed tensions between Shia and Sunni Muslims around the time of Muharram while living in a small Indian village. In 2004 he was involved in making a film called “Banaras Muharram and the Coals of Karbala,” which explores the Shia festival of Muharram as it is celebrated in the Hindu holy city of Varanasi. Expecting to see many of the same tensions between Muslims as he saw before, not to mention between Muslims and Hindus, he was instead surprised to learn that the Muharram story is interpreted by all these communities in slightly different ways, but all emphasize the tragedy of unnecessary suffering.
Interview with Prof. Elder, part 1
Prof. Elder is also an active member of the Quakers, having served as a conflict mediator in the Sri Lankan Civil War, as well as other places. In Part 2 of our interview, he discusses the three times he has visited Afghanistan: once before the Soviet invasion, once shortly after the Soviet invasion, and once after the Soviets had left. He also compares these earlier experiences with the current situation and the possible role, if any, that the United States can play in that country.
Interview with Prof. Elder, part 2
In the third part of our interview, Prof. Elder discusses the foundations of Islamic Law or Sharia: the Qur’an, the Sunnah, and the Hadith. As he explains, the practical application of these three traditions can vary widely depending on which Islamic scholar is doing the interpretation.
Interview with Prof. Elder, part 3
What other traditions or practices can you think of that vary based on context in this way? Knowing that Islamic law is different in different places, does it even make sense to talk about it as one phenomenon? What other ways can we think about it? We welcome your comments.