Muslims ruled in India before Britain stepped in and took down the Mughal Empire. Since then, the Muslims in India have had to deal drastic changes in power of the course of Indian history. First they lost their powerful ruling status to the British Empire during the revolution, then they had to live in the significantly regulated government of British India, and finally they now deal with living in the modern independent India. During these changes the laws of the area changed along with the Muslims’ status. For example, laws on divorce during the Mughal Empire to contemporary India have changed significantly within the Indian government. During the Mogul Empire there was little to no overarching laws on divorce, however in the current government there are legally binding methods about to how couples can get a divorce. Muslim law has changed dramatically since the time of the British colonization as compared to contemporary times, especially in how divorce laws have changed and survived in the government and in Muslim law.
Divorce for Muslims before British rule was not under a unified ruling and could be easily gained. If a Muslim did not like the ruling of one court, he or she could easily go to another court to find a result that the couple and families preferred. “In pre-British India there were innumerable, overlapping local jurisdictions and many groups enjoyed one or another degree of autonomy in administering law to themselves” (Galanter, 66). Each religious group in each region had different local courts that had similar but not the same system and did not have to rely on an overlapping set of laws. Divorce was achieved if the circumstances were acceptable in Shari’a law, with no overarching rule of divorce stopping a Muslim couple from gaining a divorce.
British colonization drastically transformed the system of government in India. However, this caused a lot of drawbacks experienced by Muslims. For example, he British believed that Muslims could not exist under the secular government that the British put in place to rule over the Indians. According to William Wilson Hunter, a Muslim must choose “whether he shall play the part of a devoted follower of Islam or of a peaceable subject of the Queen” (Hunter, 11). This was the perspective of many British people ruling over Muslims. During this time, Muslims’ ability to get a divorce changed from local authority to governmental courts that had very little to no interest in catering to traditional laws, since the courts were based on the British secular justice system. When the local tribunals made a decision they “sought compromise or face-saving solutions acceptable to all parties, the government’s courts dispensed clear-cut ‘all or none’ decisions” (Galanter, 70). This new system of government changed how Muslims were able to get divorces drastically.
On the opposite end of the spectrum, there were Muslim Indians that argued that Muslims could live and work in a secular government while maintaining their ability to be a Muslim and still get divorces in a legal method that works with Islam. Khan states that Muslims can live in a secular government while still being Muslim and gives the example that even “[Muhammad] himself ordered his staunchest followers to take refuge in the Christian kingdom of Abyssinia. To say, therefore, that zealous [Muslims] could not remain quietly in British territory, and that they felt themselves bound to repair to the frontier is as untrue as it is uncalled for” (Khan, 23). The laws around divorce are going to change, yet the Muslim laws can and still exist. The schools of jurisprudence are different ways that groups of people interpret the sources of Islamic law, and they are flexible to new environments. Chiragh ‘Ali explains that even though there are schools of jurisprudence, the founders and followers never claim to make their beliefs final and unchangeable for future generations (‘Ali, 279). The laws around divorce in these schools are not set in stone for future generations; these divorce laws are adaptable to this new government of British India.
Contemporary India has changed much since the late nineteenth century. Shari’a law has been integrated into the Indian government and this integration has helped solve legal problems that are heavily involved with Shari’a law while balancing the secular ideals of the government. The main problem in divorce laws during contemporary times as compared to the 1800’s is how much involvement from the government is there that is specifically catering to Muslim Laws and how much the court is altering Muslim Law because of its involvement. For example in debates in the 1970’s around whether a man is required to permanently pay for his ex-wife or just the three months was inflamed by the passing of the Criminal Procedure Code which required men to pay permanent alimony (Subramanian, 14). Contrary to the 1800’s, when the state often disregarded Muslim law and pushed for Muslims to stop practicing or minimally practice, in modern times, the government is passing laws that specifically influence Shari’a.
Although the government is becoming more heavily involved, it is trying to be general by passing uniform civil code for both Hindus and Muslims and it is becoming more prevalent that court cases are more contradictory when dealing with Hindus versus Muslims (Rudolph, 34). The government is trying to pass laws to support and allow the use of traditional laws in Hinduism and Islam on divorce, yet it is creating more conflict between the two religious groups within the government. In morerecent debates, women are calling for an end to the traditional law where if a man tells his wife three times he wants to divorce her, they become divorced. As seen by this image, many women have gathered to pray for this Muslim law to be banned by the government and pushing for governmental involvement in the Muslim laws on divorce (Fenton).
Shari’a law is not an immutable justice system, it adapts to new environments, as explained above, the laws have changed and adapted into the government of contemporary times as during the mid to late nineteenth century. India has a very diverse culture and keeping the laws as equal or general as possible to be compatible with most of the people views. To ensure this, many traditions have to change or adapt in order to still exist within the system. The case of divorce in Muslim law is a prime example of the law changing so that it can function within the Indian governmental system.
Moulavi Chiragh Ali, “The Proposed Political, Legal, and Social Reforms,” in Modernist Islam, 1840-1940, ed. Charles Kurzman (New York: Oxford University Press, 2002), 277-290.
Fenton, Siobhan. “Muslim Women Call for an End to ‘verbal Divorces’ in India.” The Independent. August 1, 2015. Accessed November 4, 2015.
Galanter, Marc. “The Displacement of Traditional Law in Modern India*.” Journal of Social Issues. April 14, 2010. Pp 65-91. Accessed October 14, 2015.
- W. Hunter,Indian Musalmans: Are they bound in conscience to rebel against the Queen? 2nded., (London: 1871 ).
Syed Ahmed Khan, Review of Dr Hunter’s Indian Musalmans (London: 1872).
Rudolph, Susanne, and Lloyd Rudolph. “Living with Difference in India.” The Political Quarterly. December 22, 2002. Pp 20-38. Accessed October 14, 2015.
Subramanian, Narendra. “Legal Change and Gender Inequality: Changes in Muslim Family Law in India.” Law and Social Inquiry. August 22, 2008. Pp 631-672. Accessed October 14, 2015.