The Semi-Autonomous Judge in Colonial India: Chivalric Imperialism Meets Anglo-Islamic Dower and Divorce Law

Indian Economic and Social History Review, Vol. 46, No. 1, pp. 57-81, 2009

Univ. of Wisconsin Legal Studies Research Paper No. 1125

29 Pages Posted: 19 Aug 2010  

Mitra J. Sharafi

University of Wisconsin Law School

Date Written: August 18, 2010

Abstract

Through a survey of nineteen leading cases on Islamic dower and divorce between 1855 and 1924, this article explores the ways judges acted as semi-autonomous agents by undermining 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 service of their own chivalric imperialist agenda: the defense 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 tal-q too expensive to use. Colonial legislators invalidated inflated dower in various parts of India, but judges confirmed the validity of inflated 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.

Keywords: Islamic law, South Asia, colonialism, judges, marriage

JEL Classification: N4

Suggested Citation

Sharafi, Mitra J., The Semi-Autonomous Judge in Colonial India: Chivalric Imperialism Meets Anglo-Islamic Dower and Divorce Law (August 18, 2010). Indian Economic and Social History Review, Vol. 46, No. 1, pp. 57-81, 2009; Univ. of Wisconsin Legal Studies Research Paper No. 1125. Available at SSRN: https://ssrn.com/abstract=1661197 or http://dx.doi.org/10.2139/ssrn.1661197

Mitra J. Sharafi (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Paper statistics

Downloads
136
Rank
174,876
Abstract Views
868