Protecting her Rights
Title: Muslim Family Law, Secular Courts and Muslim Women of South Asia: A study in Judicial Activism Author: Alamgir Muhammad Serajuddin Published by: Oxford University Press, Pakistan (2010) Pages: 310 pages, Hardback Price: PKR. 995 ISBN: 9780195479683
Awoman’s individual identity is often questioned and compromised in South Asia. Family law in this region which ought to encompass areas of women’s rights also accommodates gender discrimination. The center of society is the family unit, yet woman, the main character, is often ignored in getting acknowledgement socially as well as legally. Family law here has provided ground for debate for feminists in search of laws with respect to gender.
In South Asia, complex personal laws that cater to marriage, inheritance, divorce and custody are in practice and are influenced by cultural and religious traditions. Secular laws also exist that try to homogenize rights on the basis of citizens rather than religion or community. However, in the South Asian context, since community and family have always been a priority, existence of secular and religion-based laws has negatively affected women’s development and their legal protection.
The South Asian judiciary, in the absence of legislation reflecting Ijma or consensus of Muslim community, has given a proactive interpretation to family law within the Islamic framework. It is interesting to see that the South Asian judiciary has proved that it is beneficial for entire societies to adapt to the need of a forward-looking Muslim society. Alamgir M. Serajuddin, in this book “Muslim Family Law, Secular Courts and Muslim Women of South Asia: A study on judicial activism” provides an in-depth analysis of South Asian countries where Muslim family laws are in practice in combination with modern civil laws.
The book comprises five chapters and concluding observations. The author provides an overview of the existing legal system in the Muslim countries of South Asia and problems faced by women due to narrow interpretation of the laws based on Sharia. In such a situation, judicial activism has brought a ray of hope for women in Muslim countries where Muslim family laws were drafted keeping in view the needs and changing situations of the contemporary world.
To explain the basic argument in the book, the author has made interesting observations on the Muslim legal system in South Asia, “It might have been expected that in the secular Republic of India, judicial interpretation would take the path of activism and liberalism, and in the Islamic Republic of Pakistan passivity and conservatism. In fact, in 1950s and 1960s the opposite was the case. While the Indian courts held that they were bound by the doctrine of precedents to follow the rules of interpretation laid down by the Privy Council in Aga Mahomed v. Koolsom Bee Bee and Baker Ali Khan v. Anjuman Ara, the Pakistan courts refused to abide by these decisions and claimed and exercised the right of independent interpretation of the rules of Sharia law. This has interesting results; Muslim personal law remained more or less rigid and conservative in India but became flexible and progressive in Pakistan. No wonder, the law in Pakistan and Bangladesh has diverged in a good many areas from that in India.”
It is good to see that the author has separately dealt with Muslim laws in India, Pakistan and Bangladesh instead of generalizing them under a South Asian category. Due to different systems of governments and policies in the center, the judicial system in different South Asian societies did get its share of influences of the center on its working. Individual country case studies give an idea about the situation in each country and the difference in obstacles that Muslim women face in different socio-political settings across the region.
Muslim-majority countries follow a dual court system where, if the government is secular, Muslims can choose to bring familial and financial disputes to Sharia courts. The exact jurisdiction of these courts varies from country to country, but usually includes marriage, divorce, inheritance, and guardianship.