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

Southasia - - Book review -

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.

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