The semi-autonomous judge in colonial India

Abstract

Through a survey of 19 leading cases on Islamic dower and divorce between 1855 and 1924, this article explores the ways in which 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 defence 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 talāq 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.