Codification of Islamic law in South Asia, or how not to do comparative law

ABSTRACT

Comparative law is a fecund field of study capable of yielding insights not obtainable otherwise. It comprises a vital tool not only for academics but also for law and policymakers. It also happens to be a delicate undertaking, and prone to several pitfalls if not approached carefully. Given the shared legal and political antecedents of South Asian nations, a South Asia-specific comparative law discourse of at least some measure of robustness ought to have emerged by now. This expectation lies largely frustrated. Scholarly engagement with comparative law is both sporadic and unsatisfactory, the latter attributable to recurring shortcomings such as a tendency to cherry-pick. Such desultoriness is consequential, given comparative law’s capacity to provide inputs to states’ lawmaking and policymaking projects. In this paper, I explore a little-known instance, one that involves an initiative of the Indian state of Kerala to reform and codify certain aspects of Islamic personal law. It borrowed considerably from the reform initiatives of Pakistan and Bangladesh but, unusually, chose not to acknowledge this fact. It also deviated from the latter in several crucial respects. And in deviating, it also succeeded in undermining its own stated objectives. In this paper, I examine the two initiatives; their similarities and differences; and the implications that these similarities and differences carry, particularly in the light of avoiding pitfalls while doing comparative law.

KEYWORDS:

• law
• comparative law
• South Asia
• India
• Pakistan
• Bangladesh
• Kerala law reforms commission
• gender equality
• Islamic law
• Islamic personal law
• legal reform

Acknowledgments

Thanks are due to the following for their help and assistance: Ananya Bharadwaj, Bishwa Kallyan Dash, Md Saiful Karim, Satish Padhi, Shamita Sarkar, Sucharita Sengupta, and Tulip Suman.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Frankenberg, “Critical Comparisons: Re-thinking Comparative Law,” 415.

2. I use the term ‘pristine’ in a technical sense here: it references the law that derives from scriptural and customary sources and has not been subjected to reform or codification.

3. Ibid.

4. Ibid.

5. Ibid., 414.

6. In the Asian context, the seminal contributions of MB Hooker on the law of Malaysia, Singapore, and other jurisdictions such as Hong Kong come readily to mind See e.g. Hooker, “The Relationship between Chinese Law and Common Law in Malaysia, Singapore, and Hong Kong”; Hooker, “Chinese Customary Law in Contemporary Malaysia and Singapore”. Another instance is Hussain, “More Than One Law for All: Legal Pluralism in Southeast Asia” (Indonesia, Malaysia, Thailand). Examples pertaining to other jurisdictions include Ghandour, “Religious Law in a Secular State” (Israel and Palestine); and Tamanna, “Personal Status Laws in Morocco and Tunisia” (which also addresses Bangladesh).

7. See e.g. Galanter and Krishnan, “Personal Law and Human Rights in India and Israel”; and Subramanian, Nation and Family.

8. E.g. ‘The present article … is not a legalistic study. It views the problem from a political perspective.’ Ghosh, “The Issue of Personal and Customary Law in South Asia,” 180.

9. Mahmood, “Law and Social Development in India and Afghanistan: A Comparative Perspective”.

10. See K Muhamma Latheef v. Nishath, All India Reporter (AIR) 2004 Kerala 22; Abdurahiman v. Khairunneesa, 2010 (1) Kerala Law Times (KLT) 891; and Parakkattil Abu v. Pachiyath Beekkutty. AIR 2011 Kerala 38.

11. Section 2(viii)(f) of the Dissolution of Muslim Marriages Act 1939 (DMMA 1939) recognizes as cruelty (and hence a ground for divorce) the failure to treat any wife within a polygamous marriage equitably in accordance with Quranic injunctions.

12. Pakistan Law Digest (PLD) 1967 Supreme Court (SC) 334.

13. See e.g. Abeysundere v. Abeysundere, (1998) 1 Sri Lanka Law Reports 185 (Sri Lanka); Re Devendra, (1920) 1 Malayan Cases 51.

14. Law Reform (Marriage and Divorce) Act 1976.

15. Singapore Women’s Charter 1961.

16. See Law Commission of India, “The Indian Divorce Act (Report 164)”; Law Commission of India, “Laws of Civil Marriages in India (Report 212)”; Law Commission of India, “Conversion/Reconversion to Another Religion – Mode of Proof (Report 235)”.

17. Law Commission of India, “Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws (Report 205)”.

18. These include Australia, New Zealand, UK, Egypt, US, Pakistan and Indonesia, in that order. Why only these and not other countries find mention is not clear. See Law Commission of India, ibid., 26–28.

19. 1970 Kerala Law Times (KLT) 4, para 21.

20. 1984 Criminal Law Journal (Cri L J) 1062 (Kerala High Court), paras 3, 7.

21. 2008 (4) KLT 885.

22. Ibid., para 13–14.

23. Law and Justice Commission of Pakistan, “Reports of Ad hoc Law Reform Commissions”.

24. Ahmad, “The Muslim Family Laws Ordinance of Pakistan,” 39.

25. Ibid., 39–40.

26. Pakistan Legal Decisions (PLD) 2000 Federal Shariat Court (FSC) 1.

27. Cf. ‘The most important aspect of the Muslim Family Laws Ordinance was its section on polygyny.’ Ibid., 40.

28. The Quran, 4:35. See also Starkovsky, The Koran Handbook, 432.

29. See Mahmood, Good Governance Reform Agenda in Pakistan.

30. MFLO 1961, Section 2(b).

31. For some reason, Issues as vital as the validity of marriages; intestate succession; wills; gifts; wakfs (or trusts); and guardianship have been altogether left out.

32. The Quran, 4:3. See also Starkovsky, The Koran Handbook, 428.

33. Pakistan Legal Decisions (PLD) 2000 Federal Shariat Court (FSC) 1, para 82.

34. Criminal Petition No. 1252 of 2016, decided on 21 February 2017.

35. PLD 1968 Lahore 587.

36. PLD 1963 Supreme Court (SC) 51, para 35.

37. (1987) 39 Dhaka Law Reports 333, para 3.

38. See e.g. Muhammad Aslam v. Ghulam Muhammad Tasleem PLD 1971 Lahore 139, Para 10.

39. Pearl, “Family Law in Pakistan,” 188–89 (further references omitted).

40. Hossain, “In Search of Equality,” 100.

41. Mention of it can be found as of 14 May 2017 on the Kerala Law Reforms Commission website, http://www.keralalawcommission.nic.in/.

42. ‘Law Commission Mooted for State’. 2007. The Hindu, 18 October.

43. Government of Kerala, “Government Order (Ms) No 253.2007/Law”, Personnel and Administrative Reforms Department (PARD). 17 November 2007. http://pard.kerala.gov.in/pard_webservice/go/G.O. (Ms)No.253_2007_Law_16_17_11_2007.pdf.

44. Kerala Law Reforms Commission, “The Final Report”.

45. Curiously, the contents page does not enumerate these specific issues. Indeed, a cursory look at the contents page does not make it entirely clear just how the document is organized.

46. Shahulameedu v. Subaida Beevi, 1970 KLT 4, para 21.

47. Yusuf Rowthan v. Sowramma, 1970 KLT 477.

48. Kerala Law Reforms Commission, “Kerala Muslim Marriage Bill”.