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c hapter 5
Marital Annulment and Separation of Family
Discussion of sexuality, women’s freedom, compatibility and polygyny artic-

ulated an imagination that highlights how family was politicized and how
social transformation was inextricably linked to the question of ethics. Not
surprisingly, the annulment of marriages also featured engagement with these
issues and evoked strong responses from readers and writers. In 1938, a woman
named Mrs. Nazīr Husain used the trope of slavery to make a claim of equality
between men and women. The issue that provoked her to denounce gender
inequality was marital annulment particularly the absence of women’s right
to end her marriage in Hanafī law dominant among Sunni Muslims of South
Asia. She said:
If a slave for centuries says to their master that I am your equal, then
please tell, what will be the state of the master in anger? Listening to the
slave’s claims of equality, he will crush her sentiments even more. This is
exactly the state today of selfish men in this matter who consider women
to be their self-purchased handmaid.1
For almost a decade prior to Mrs. Nazīr Husain’s critique through the 20s and
30s, women and men in Tahzīb-un-Nisvān and ʿIsmat had addressed this prob-
lem and had propagated the practice of khulaʿ as a necessary step to help wom-
en escape domestic cruelty. This chapter highlights those debates in women’s
magazines and brings them in conversation with the theological discourse of
Ashraf ʿAlī Thānavī.2
Scholars have highlighted the efforts of Ashraf ʿAlī Thānavī on the question
of marital annulment and noted its important contribution in the passage
of the Dissolution of Muslim Marriages Act of 1939.3 Departing from these
1 Mrs. Nazīr Husain, “haqq-i khulaʿ aur musalmāno kī zahniyat,” (The right of khulaʿ and the
sensibility of Muslims) Tahzīb-un-Nisvān 41, no. 31 (30 July 1938): 813.
2 It should be added here that Thānavī was a Sunni scholar and his intervention in issues of
marital annulment represents Sunni Muslims, and the chapter does not address Shīʿa schools
of jurisprudence.
3 Muhammad Qasim Zaman, Ashraf Ali Thanawi: Islam in Modern South Asia (Oxford: One-
world, 2008), 107–116; Fareeha Khan, “Traditionalist Approaches to Sharīʿa Reform: Mawlana
Ashraf Ali Thanawi’s Fatwa on Women’s Right to Divorce” (PhD diss., University of Michigan,
2008); Stephens, Governing Islam, 74–84.
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240 Chapter 5
studies, I closely interrogate the internal structure of Thānavī’s text to empha-

size not its success or its authority but to illustrate that Thānavī and writers
in Tahzīb-un-Nisvān employed different rhetoric and modes of reasoning in
their argument. Those in Tahzīb-un-Nisvān not only emphasized the problem
of gender inequality as the fundamental question under interrogation, they
also highlighted how values of respectability had brought social stigma to
marital dissolution. By integrating a critique of respectability into the demand
for marital dissolution, they tackled marital annulment as a non-legal issue in
which powerful beliefs around shame could deter women from using marital
annulment as a serious option even if it were legally available.
Thānavī, on the other hand, retained the framework of social hierarchy in
his text and neither addressed inequality nor respectability as critical issues.
Composed in an objective and technical style, Thānavī’s text illustrates five ex-
amples under which a woman may seek marital annulment but the woman’s
claims are unreliable because of her sex and need to be verified through an as-
ssemly of jurists.4 Thānavī’s text nevertheless provided an Islamic resolution to
a key question about women’s right of divorce that arose in late colonial India
and the passage of Dissolution of Muslim Marriages Act satisfied a large sec-
tion of the Sunni Muslim elites who had participated in the debate in previous
years. It’s inability however to interrogate larger issues raging in women’s mag-
azines on oppression, freedom and equality reveals how predicaments arising
out of these desires remain unresolved in Thānavī’s framework.
Marital annulment was closely related to the payment of mahr and this
chapter addresses how mahr reflects issues of financial control and autonomy
especially of the wife. Finally marital discord was not just handled through
legal methods of separation but could also entail negotiation and rethinking
of family relationships particularly in arguments about “separate living” and
advocacy of the nuclear family structure. I now turn to the topic of divorce in
Urdū print in the nineteenth century
1 Talāq (Divorce)
As indicated earlier, William Muir, one of the most well known evangelical
commentators on Islam, saw the presence of divorce, polygyny and slavery in
4 In her dissertation, Fareeha Khan argues that instead of female oppression, “a more pressing
need informed the entire modus operandi: that of maintaining the legal authority of the
traditional fuqahā, given that modernist and secular Muslim spokesmen were also claiming
authority on this issue.” Khan, “Traditionalist Approaches to Sharīʿa Reform,” 5.
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Marital Annulment and Separation of Family 241
Muslim societies as evidence of the inherently corrupt nature of Islam and

proof of its ‘backwardness.’ Under the colonial-evangelical assault, Muslim
modernists defended divorce against the charge that it violated the sanctity of
a sacred tie and claimed that its approval in no way demonstrated that Islam
had not placed a high value on marriage.
Saiyid Ahmad Khān opens his article on divorce with an allusion to Chris-
tian evangelicals and a direct reference to the critics of Islam noting that they
have made divorce an ‘issue’ “either out of stubbornness or out of flawed ar-
gument and misunderstanding” of Islam because divorce is supposedly “op-
posed to sympathy, love and compassion.”5 To defend the practice of divorce
within Muslim societies, Saiyid Ahmad Khān expounds on the practice of
divorce in different religious traditions and identifies three types of religious
jurisprudence on the issue of divorce. The first is the Jewish tradition, where
the husband is permitted to divorce his wife for any reason, the second is that
of Christians and some sects of idol worshippers where it is illegitimate except
in conditions of rape; and the third law is that of Muslims, where divorce is
legitimate if the relations between husband and wife are so characterized by
complete disagreement and lack of love that nothing can salvage their rela-
tionship. He says that the Jewish law risks unfairness and that of Christians
and idol worshippers is against ‘human nature’ whereas that of Muslims can
protect the culture and values of society.6 By engaging in comparative analy-
sis, Saiyid Ahmad Khān hopes to persuade his readers not only that divorce
is common to other cultures, but that its Islamic rationale is reasonable and
ethically necessary.
Commenting on the general nature of marriage, he says that the nature of
this alliance and its intimacy is such that whatever problems develop in it, no
one except the two involved can gauge its true conditions. Thus, if conditions
in marriage deteriorate so much that divorce becomes a possibility, Islamic
jurisprudence has placed the onus to evaluate those conditions on the opin-
ions and temperaments of husband and wife only, and made them the judges
of their ethics.7 When a marriage fails, Saiyid Ahmad Khān says that Sharīʿa
makes divorce permissible, though still unfortunate. This does not establish
Islam’s disrespect for marriage, he adds, because in addition to restrictions on
divorce, Sharīʿa also mentions processes that could ensure reconciliation of a
5 Saiyid Ahmad Khān, “masʾala-i talāq,” (The issue of divorce) in Maqālāt-i Sir Saiyid, Volume 13,
ed. Muhammad Ismāʿīl Pānīpatī (Lahore: Majlis-i Taraqqī-yi Adab 1963), 266.
6 Ibid., 266–67.
7 Ibid., 267.
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242 Chapter 5
bad marriage.8 This process of reconciliation entails the notion of ‘three di-
vorces’ (tīn talāq).
Saiyid Ahmad Khān defends the custom of ‘three divorces’ arguing that
they allow reconciliation between husband and wife after the first and second
‘divorce.’ If after the separation of their first ‘divorce’, the husband and wife
decide to reconcile and live together again, their ‘divorce’ is nullified and mar-
riage is restored with no need for a new wedding. If, however, they separate
again, the couple is allowed to reverse their decision to ‘divorce’ a second time
as well and resume marital relations, but if the occasion for another separation
or a third ‘divorce’ arises, it must be final and the marriage is officially sev-
ered.9 Praising these steps as ‘restrictions,’ he writes, “When those who object
to divorce understand this fully and contemplate human nature, then they will
confidently, undoubtedly, comprehend that this command is the command of
the One who created human nature.”10 Saiyid Ahmad Khān’s understanding
of first and second ‘divorce’ essentially equates it to a marital separation; di-
vorce as a legal annulment only takes place after considerable reflection and
attempts at reconciliation. This, in his view, is best suited for people because it
reflects how religious injunction is agreeable to the unpredictability and com-
plexity of ‘human nature.’
Syed Ameer Ali commented on divorce in A Critical Examination of the Life
and Teachings of Muhammad. According to Ameer Ali, the right to divorce in
all parts of the world and from the beginning has been “a necessary corollary
to the law of marriage but this right, with a few exceptions, was exclusively
reserved for the benefit of the stronger sex.”11 Ameer Ali here mentions the
legality of divorce in Jewish as well as ancient Roman tradition, and to buttress
his views exalts them as “the two most prominent nations of antiquity whose
modes of thought have acted most powerfully on modern ways of thinking and
modern life and manners.”12 Although they did admit divorce, Ameer Ali says
that in both the Jewish and Roman legislation only the husband could give his
wife a divorce while the wife had no right to marital dissolution. After giving
references to the Romans and the Jews, Ameer Ali comments on Arab soci-
ety. He argues that before the intervention of Prophet Muhammad, Arab men
had ‘unlimited’ power to divorce their wives without any recognition for wife’s
8 Ibid., 268.
9 Ibid., 268.
10 Ibid., 269.
11 Syed Ameer Ali, A Critical Examination of the Life and Teachings of Muhammad
(Edinburgh: William and Norgate, 1873): 236.
12 Ibid., 237.
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sentiments. Ameer Ali says that Prophet Muhammad looked upon the practice
of divorce with disapproval but didn’t entirely abolish it because “emergencies
which, as long as human nature continues in its present condition, must nec-
essarily arise at times in the bosom of families.”13
Citing verses from the Qurʾān, Ameer Ali says that “the frequent admoni-
tions in the Koran against separations; the repeated condemnations to heal
quarrels by private reconciliation show the extreme sacredness of the mar-
riage tie in the eyes of the Arab legislator.”14 Ameer Ali’s use of the term ‘hu-
man nature’ highlights the similiarity between him and Saiyid Ahmad Khān
in their approach to the question of divorce. Both argued that divorce should
not alarm those who understood ‘human nature’ and its defects, and that it did
not infringe upon the religious decree upholding the marital contract. Both
employed a comparative approach contrasting different traditions alongside
Islam. The comparative method allows them to corroborate that Islam, while
approaching divorce differently, is not as different from other customs as it is
made out to be.
Maulvī Chirāgh ʿAlī was also prominent in reformist movements of the late
nineteenth century and wrote extensively on the political and social condi-
tions of Muslims.15 He received his primary education in Urdū, Persian and
English, and was first employed as a clerk in the district of Gorakhpur. In 1873,
he transferred to Lucknow where he met and was strongly influenced by Saiyid
Ahmad Khān, becoming a close ally in the ‘Aligarh movement.’16
Chirāgh ʿAlī’s most well known work The Proposed Legal, Political and Social
Reforms in the Ottoman Empire and other Mohammadan States was published
in English in 1883 to counter the critique that reform was not possible in Islam.
The book was translated into Urdū and published as Aʿzam-ul-kalām fī Iritqāʾ
al-Islām in 1910 from Hyderabad. In the book, Chirāgh ʿAlī explained why Islam
13 Ibid., 238–39.
14 Ibid., 241.
15 Chiragh ʿAlī was the eldest of four brothers including Vilayat ʿAlī, ‘Ināyat ʿAlī and Mansab
ʿAlī. Muhammad Bakhsh, Chirāgh ʿAlī’s father, was born around 1821 and found employ-
ment with East Indian Company in the town of Meerut because of his knowledge of
English. During his years of work, he transferred to several towns including Saharanpur
in Uttar Pradesh and Sialkot in Punjab, Pakistan, eventually retiring from the town of
Shāhpur, situated in Bihar. Despite an active professional life, he died at the age of 35 in
1856 when Chiragh ʿAlī was twelve years old. After his father’s death, Chiragh ʿAlī’s mother
moved to Meerut, where Chiragh ʿAlī spent his adolescent years. See Munawwar Husain,
Maulvī Chirāgh ʿAlī kī ‘Ilmī Khidmāt (The Intellectual Service of Maulvī Chirāgh ʿAlī)
(Patna: Khudā Bakhsh Library, 1997), 11–12.
16 Ibid., 13–4.
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244 Chapter 5
allowed divorce and how it improved relations between husbands and wives in
society. He says that men divorced women in pre-Islamic Arab society without
any respect for the women and that “passion, interest and frivolity were daily
motives for divorce.”17 Commenting further, he interprets the ‘three divorces’
as a reform of the tradition of ‘eela.’ According to Chirāgh ʿAlī, Prophet Mu-
hammad rectified the abuse of ‘eela’ where the husband separated arbitrarily
from his wife for a period of time without any assurance of future return. He
says that the Prophet fixed the time of separation at four months after which
the husband and wife had to reconcile their differences or have a final divorce.
Based on the reform of ‘eela,’ Chirāgh ʿAlī explains the decree for three ‘di-
vorces.’ He argues that since there were no limitations on how many divorces
or temporary reconciliations people could have, that husbands often left their
wives and then returned to marital life again if they felt differently and did
not wish to divorce them. Chirāgh ʿAlī says that Prophet Muhammad, striking
against the erratic nature of this practice, limited the ritual of ‘divorce’ to three
with the third one considered to be the final decision after which reconcilia-
tion was not permissible.18
Despite the present of two ‘divorces’ and a third final divorce, Chirāgh
ʿAlī clarifies that “even under the circumstances of ill-treatment or cruelty
on the part of the husband, or refractoriness on the part of the wife as well
as in general breach and incompatibility between them, the Koran has not
allowed divorce as an inevitable necessity.”19 Citing the Muslim belief that
divorce is the most disliked act in the eyes of God, Chiragh ʿAlī demonstrates
using Qurʾānic verses that divorce in Islam does not violate the sanctity of
the marital contract but ensures reconciliation and that restriction to only
two ‘divorces’ along with permission for a third and final divorce had posi-
tive consequences for Arab society. He writes, “These impediments as well
as other conciliatory measures rendered separations more rare. Ample time
was allowed for mutual consideration in the hope of bringing about a happy
termination.”20 Chiragh ʿAlī thus supported the institutionalization of three
‘divorces’ and agreed with Saiyid Ahmad Khān that it was beneficial for con-
jugality. Based on the effect these restrictive measures generated, Chirāgh ʿAlī
argues, “It is a great mistake to suppose that Muhammad gave free allowance
to the facility of divorce or let it pass on the easiest terms” and that “he never
17 Chirāgh ʿAlī, The Proposed Political, Legal and Social Reforms in the Ottoman Empire and
other Mohammadan States (Bombay: Education Society’s Press Byculla, 1883),130.
18 Ibid., 132.
19 Ibid., 134.
20 Ibid., 136.
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permitted a husband to divorce his wife without any misbehavior on her part,
without any legal procedure or appearing before a tribunal of justice.”21 Fur-
thermore, “all the rules and regulations mentioned in the Koran, specially
those of later times in which separation is tolerated are for the cases of ex-
treme domestic discord, antipathy between the husband and wife, and their
strong incompatibility to love together.”22 In his concluding remarks, Chirāgh
ʿAlī employs comparative analysis to discuss Christian views on divorce and
argues that Christ did not interfere with the social and political institutions
of the countries in which he lived; denouncing divorce he “simply shared the
public opinion regarding the scandalous divorce and marriage of Herod An-
tipas, which was already denounced by John the Baptist and against which
the public opinion was powerfully opposed.” He says that “had such a case
been brought before Muhammad, he would have also shared the same public
opinion.”23
These defenses of divorce by Muslim modernists with their assertion that
the custom of ‘three divorces’ served to foster reconciliation and marital suc-
cess illustrates how Muslim intellectauls of the late nineteenth century un-
derstood the matter differently from the contemporary stereotype of male-
dominated Islamic ‘triple talāq,’ where a husband can dissolve the marital
contract through the simple verbal formula of saying the word ‘talāq’ three
times. What is important to note in these writings, however, is the absence of
wife’s initiative to terminate her marriage if she so desires. Women’s right to
annul marriage appeared in Urdū women’s magazines in the twentieth century
along with arguments made by men like Rāshid-ul-Khairī, Ashraf ʿAlī Thānavī
and ʿAzīm Beg Chughtāʾi.
2 Divorce and Male Authority
Commenting on the male abuse of divorce, an author identified only as

Vālida-i Mumtāz Husain (mother of Mumtāz Husain) wrote, “Selfish Muslims
now have started to use divorce in an abominable way where accusations are
used mercilessly to remove the voiceless wife as if she were a bad organ for
the sake of egoistic desire and temporary gain” adding that “she is thrown out
of the house, robbing her of dignity and respect.”24 One can hear in Vālida-i
21 Ibid., 138–39.
22 Ibid., 139.
23 Ibid., 141, 143.
24 Vālida-i Mumtāz Husain, “talāq,” (Divorce) Tahzīb-un-Nisvān 18, no. 4 (23 January 1915): 41.
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246 Chapter 5
Mumtāz Husain’s voice the critique of male Islamic prerogative to divorce

and anticipate the growing demand in the next three decades for greater par-
ity in matters of marital annulment. Comparing the condition of divorced
women to that of widows, she adds, “The way the lives of divorced women are
destroyed would perhaps not even hold true for widowed women” noting that
people express sympathy for widows or try to help them “but divorced wives
meet only an attitude of censure and reproach.” Denouncing husbands, she
says, “Tyrannical, selfish husbands in order to justify their actions also make
them (wives) the target of their condemnation.”25 The author asks if “it is
possible that this is what Islam taught?” and responds in the negative, “Islam
has strongly criticized such divorces.”26 Bringing up the issue of mutual con-
sent, she writes that Islam should have made mutual consent the cornerstone
of marital dissolution just as it had made mutual consent the foundation
of the marital contract. In cases where the wife’s consent for divorce is not
gained, those wives suffer the cruelty of being separated from their children.
In her conclusion, she asks Muslims to be wary of non-consensual divorces
because “such divorces can shake the throne of God and will certainly bring
doomsday.”27
In response to the essay, Saiyid Mumtāz ʿAlī wrote that divorce was con-
sidered permissible but an unfortunate practice in Islam. Just as doctors give
alcohol to their patients for some types of medical treatment, Saiyid Mumtāz
ʿAlī argues that Sharīʿa has similarly allowed for some practices deemed despi-
cable to alleviate certain inflictions. Based on this reasoning, he says that when
people do not differentiate between the sacred and the profane, they abuse
divorce to appease their immoral desires; they fail to distinguish between di-
vorce as a “necessary act” and divorce as an “immoral act.” This is similar to
being unable to differentiate between alcohol as a medicine and alcohol as an
addiction.28 He dismisses Vālida-i Mumtāz Husain’s suggestion that consent of
both partners be a necessary condition for divorce. If divorce were to become
a matter of choice and agreement, he said, it would, cease to be a ‘necessary,
unfortunate act’ and become a ‘desirable, free’ one.
To avoid any misunderstanding, Saiyid Mumtāz ʿAlī adds that he has always
had great affection for women and suffers deep pain whenever there is any
injustice against them or when their rights are violated. Saiyid Mumtāz ʿAlī
25 Ibid., 41, 42.

26 Ibid., 42.
27 Ibid., 42.
28 Saiyid Mumtāz ʿAlī, “is par hamāri rāi,” (Our thoughts on this) Tahzīb-un-Nisvān 18, no. 4
(23 January 1915): 42–43.
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wondered why parents would arrange marriage to a man who would behave so
unpredictably as to divorce his wife for no reason, or why they did not secure
prenuptial agreements and fixed conditions at the time of nikāh to prevent
such eventualities. Asking women to show greater consciousness, he says that
they should become aware that remaining single for life was better than marry-
ing men who could take second wives or divorce. It was not a matter of shame
that when a woman could not be married at the appropriate age, but it was
a disgrace for the community that there weren’t enough good men to secure
marriages for these women.29 It is clear from Saiyid Mumtāz ʿAlī’s views that
mutually agreed dissolution of marriage was not easy for everyone to accept
and that the issues associated with the male abuse of divorce could not be met
by simply advocating mutual consent.
Some women in later years insisted that women’s lack of authority to ini-
tiate divorce meant that they had to plead for divorce from their husbands
or live non-marital lives despite being formally married. A woman named
Shahzād Jahān Begam from Agra deplored that a large number of women in
abusive marriages wished to separate but their husbands would not divorce
them. As a result, they were neither able to live a married life nor a single one.
In these circumstances, women either lived with their parents where they
might not see their husbands for years, or they rebelled against the family
and converted to another faith.30 To support her views, Shahzād Jahān men-
tioned that she had been surprised to learn that there were two young wom-
en who were still living with their respective families, despite being beyond
marriageable age. Upon inquiry, she found out that they had been married
as children and were unable to adjust in their husband’s families. Things had
come to such a pass that they eventually separated from them; their par-
ents were now insisting that the husbands give them a divorce so they could
marry again. The husbands were adamant in their refusal trapping them in
a deadlock.31
As is evident from Vālīda-i Mumtāz Husain and Shahzād Begam, women
writers clearly perceived that wives were disadvantaged in matters of mari-
tal annulment. Women’s magazines took up respectability and inequality in-
volved in these issues and advocated khulaʿ that allowed women to end their
marriages.
29 Ibid., 43.
30 Shahzād Jahān Begam, “talāq na denā,” (Not giving divorce) Tahzīb-un-Nisvān 36, no. 24
(17 June 1933): 563.
31 Ibid., 563–564.
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248 Chapter 5
3 Respectability, Equality and Marital Annulment
A year after the passage of the Dissolution of Muslim Marriages Act of 1939,
a woman named Mohtarma Rizvān wrote that the Act would benefit women
far less than expected. Her reasoning behind the curious claim was that the
social stigma that women feared due to marital annulment would deter them
from taking legal action. “The fear of honor is preventing them from going to
the courts.”32 In a blanket judgement, she added that Act would in fact help
neither ‘respectable’ men nor ‘respectable’ women but only increase the risk
of waywardly behavior and scandal. While the woman’s claims of scandal may
be dismissed as orthodox opposition to a necessary legal change, the anxiety
over respectability and the stigma associated with dissolving marriages were
nevertheless powerful criteria that could inform decisions in women’s lives.
In this section, I explore how the debate on khulaʿ in women’s magazines was
implicated in crucial ways to the larger critique of social reform, respectability
and inequality in Muslim society of colonial India.
In Islamic law, khulaʿ refers to marital separation initiated by the woman
and unlike talāq, khulaʿ requires the approval of a qāzī (religious jurist) who
must agree with the woman who wants to leave her husband and grant her
the permission. In khulaʿ, unlike divorce, the wife forgoes the right to mahr.
The call for khulaʿ in women’s magazines gathered force in late 1920s and it
generated fears over respectability and evoked the spectre of a general ‘ethical
decline’ of Muslims. Some, in fact, saw this ethical decline as more important
than the question of religious sanction and whether Islam permits women to
end their marriages or not.
In a short story published in ʿIsmat involving a conversation between two
women named Nāsira and Rābiʿa, Mahmūd Ahsan Siddīqī criticized the grow-
ing demands for khulaʿ by women as ‘unethical.’ The character of Nāsira, as the
voice of Siddīqī, feels that claims for khulaʿ were a product of ‘western’ influ-
ence, which had already destroyed ethics in the West and the “movement to
divorce husbands was the result of this freedom.”33 When Rābiʿa intervenes to
say that khulaʿ is an Islamic right and thus has little to do with the ‘West,’ Nāsira
agrees but says that the issue is not one of religion but of ‘ethics’ and that she
wished to “focus on the ethical aspect of this movement.”34 Religion did grant
32 Mohtarma Rizvān, “Tansīkh-i Nikāh Act,” (Marital Dissolution Act) Tahzīb-un- Nisvān 43,
no. 36 (7 September 1940): 873.
33 Mahmūd A. Siddīqī, “ʿaurat kī sabse barī shikast,” (The biggest defeat of women) ʿIsmat 43,
no. 4 (October 1929): 285.
34 Ibid., 286.
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permission for divorce to end conjugal discord, says Nāsira, but it also deemed
it worst in the eyes of God; in the same vein, khulaʿ too should be undesirable.
It was legitimate on religious grounds but not ethical. Nāsira later says that as
long as women in Hindustān have ‘Eastern sentiments,’ they would consider
khulaʿ ‘a curse’ and “prefer death to it.”35 She says that the demand for khulaʿ
shows a “woman’s biggest incompetence and biggest defeat.”36
During their conversation, Rābiʿa brings up rising instances of female apos-
tasy among Muslim women to escape bad marriages. Nāsira responds that
such cases are very uncommon and says that if women were willing to leave
Islam, then they probably had little love for their faith in the first place and
are only using their husband’s cruelty as an excuse for apostasy.37 Nāsira also
objects to the use of khulaʿ in civil courts in India and feels that only Islamic
courts and Islamic judges can grant khulaʿ. Linking the use of civil courts to co-
lonialism, she says that when Muslims give an “alien government” authority to
resolve domestic conflicts, they “are making the chains of enslavement much
stronger.”38 Towards the end of the story, Nāsira warns that courts in Europe
are tired of solving domestic disputes through divorce and feels satisfied that
her claims have persuaded Rābiʿa to reject khulaʿ.
Siddīqī’s column highlights how marital annulment cannot only be reduced
to the question of religious law or scriptural interpretation. In colonial society,
some educated elites associated any critique of the reform-oriented conju-
gality with ‘Westernization’ and thus considered their opposition to be anti-
colonialism. Siddīqī’s argument that khulaʿ is permissible but not ethical is also
akin to Saiyid Mumtāz ʿAlī’s response to Vālida-i Mumtāz Husain in 1915 for
whom divorce was permitted in Islam but advocating it was problematic for
it then ceased to be ‘undesirable.’ To make marital annulment not just legally
available but also socially acceptable, women had to challenge notions of eth-
ics associated with the preservation of marriage.
Writers criticized Siddīqī’s allegations that khulaʿ indicated a decline of
ethics. Patras described Siddīqī’s views an example of male haughtiness and
cowardice adding that “is it not the height of oppression that a woman be-
comes contemptible when a man divorces her, she is also contemptible
if she asks for a divorce.”39 The author also criticizes Siddīqī’s assumption
35 Ibid., 286.
36 Ibid., 287.
37 Ibid., 290.
38 Ibid., 291.
39 Patras, “mardon kī sabse barī shikast,” (The biggest defeat of men) Tahzīb-un-Nisvān 32,
no. 42 (19 October 1929): 1014.
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250 Chapter 5
that marriages are consensual saying that it is sad that Siddīqī could not find
any marriages in India where the woman’s wishes were neglected. Questioning
his support of female obedience, the author said, “It is strange that men coun-
sel only women to acquire these traits. They have reserved jealousy, selfishness
and arrogance for themselves.”40 Patras elaborated, “Conditions in society for
many centuries have given men an illegitimate supremacy over women and
whenever there is a possibility of alleviating this supremacy, men get desper-
ate to maintain their authority.”41 With the debate on khulaʿ, men were afraid
that they would have to treat women with proper manners and ethics instead
of keeping them imprisoned. Khulaʿ, therefore, was not a ‘woman’s biggest de-
feat,’ Patras argued, but “men’s biggest defeat.” It was acceptable to insist on
marriage and to keep homes strong like mansions but the author noted, “If
there was a fire within the mansion, the helpless prisoner should be able to
throw off their chains and escape to safety but for this to happen, men would
have to change their mentalities.” They would have to abandon their arrogance
and pride; “to earn the right of friendship, they will have to relinquish the right
of possession (milkīyat).”42 The author regretted that Siddīqī’s essay proved
that this was not yet the case and making an analogy to caste concluded the
article with the question, “Will Muslim women also get the position like that
of a Shudra?”43
The striking invocation of caste suggests that Patras viewed the mistreat-
ment of Muslim women as an abuse of social hierarchy based on religious
grounds, whose continuation could lead to an abject position of powerless-
ness. In emphasizing that men must give up the “right of possession” for “right
of friendship,” Patras also outlined a framework that recognized male suprem-
acy, inequality and power difference as the fundamental problems behind the
opposition to marital annulment. The trope of chained prisoners to describe
women in failed marriages further sketches the scenario of cruelty and isola-
tion. Calling men to ‘change their mentalities,’ Patras also critiques social re-
form that had identified changing women instead of men as the primary goal
of women’s education.
Zafar Jahān Begam also responded to Siddīqī’s claim with her article in
ʿIsmat. She criticized Siddīqī’s view that a foreign government should not in-
volve itself in Muslim affairs arguing that the demand of khulaʿ did not imply
40 Ibid., 1015.
41 Patras, “mardon kī sabse barī shikast,”(The biggest defeat of men) Tahzīb-un-Nisvān 32,
no. 43 (26 October 1929): 1033.
42 Ibid., 1034.
43 Ibid., 1034.
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governmental intervention into religion but that “khulaʿ has not been entered
into law books due to ignorance of Muslims. Therefore the government obliv-
iously decides such matters according to customs of India, which is contrary
to Sharīʿa.”44 Zafar Jahān’s insistence that the absence of khulaʿ provision was
a result of ‘customs’ and that Sharīʿa needed to be enforced to ensure marital
separation favorable for women illustrates a common instance of religious in-
terpretation by women that upheld their Sharīʿa and identified it as separate
from norms usually followed in India. She noted that women would not mis-
use the demand for khulaʿ just as the provision of divorce for men had not
damaged family structure. Zafar Jahān also questioned Siddīqī’s praise of ‘fem-
inine’ qualities arguing that “when it comes to women, so many false norms
like child-rearing and pleasing husbands have been established that no room
has been left for their rejection,” adding that those who consider mothers to
have “divine qualities are wrong on principles.”45 Like Patras, Zafar Jahān thus
attacked Siddīqī not just for opposing khulaʿ but for his basic understanding of
family and gender roles in society.
Zafar Jahān Begam continued to advocate for khulaʿ in later writings arguing
that in order to safeguard rights of Muslims, khulaʿ must be available in civil courts
across the country.46 She lamented that too many people felt that allowing khulaʿ
would threaten marriage. Zafar Jahān writes that “this excuse was presented to us
repeatedly and promises were extracted from us not to talk about it. But we al-
ways laughed and said nothing” adding caustically, “We laughed really hard at the
foolishness of some of our brethren.”47 She argued that hesitation to allow khulaʿ
demonstrated distrust of women saying, “All this violation of our rights is the re-
sult of one thing only, which we interpret as suspicion and distrust.” She noted
that the time had come for the colonial government to pay attention to women’s
rights and for khulaʿ to be common all over the country.48
Others also expressed their dismay at Siddīqī’s essay noting that such views
were not expected from an educated Muslim.49 Discussion on Siddīqī’s po-
sition not only brought up questions of power and women’s rights, it also
44 Zafar Jahān Begam, “ʿaurat aur khulaʿ,” (Women and khulaʿ)ʿIsmat 43, no. 5 (November
1929): 381.
45 Ibid., 384.
46 Zafar Jahān Begam, “khulaʿ kā rivāj honā chāhīye,” (The custom of khulaʿ must exist)
Tahzīb-un-Nisvān 32, no. 49 (7 December 1929): 1181.
47 Ibid., 1182.
48 Ibid., 1182.
49 Bilqīs Begam, “ʿaurat kī ‘izzat par talāq kā asar,” (The effect of divorce on a woman’s dig-
nity) ʿIsmat 43, no. 6 (December 1929): 438–439. Bilqīs Begam took issue with Siddīqī’s
emphasis on the ‘character’ of a person involved in khulaʿ saying that sometimes people
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252 Chapter 5
generated critiques of respectability. A columnist named Bashārat Ahmad

used Siddīqī’s position to criticize the discourse of respectability. He said that
Patras’s “experience of the practical world appears broader and Siddīqī sahib
looks like the king of the imaginary world.” He added that Siddīqī’s opposition
to khulaʿ is based on two premises. The first is that “the woman should con-
quer her husband with her patience, obedience and ethics no matter how op-
pressive and unethical the husband may be and even if he destroys her rights
in any way possible. The woman is a ‘goddess,’ who should conquer the man
with the weapons of patience, forbearance and toleration.” His second prem-
ise, according to Bashārat Ahmad, is that “viewing the condition of Muslim
women, the question of khulaʿ is not very beneficial for them. People will not
view this positively” and there should be no khulaʿ until Islamic courts are
established.50
In singling out and critiquing the assumptions behind Siddīqī’s position
particularly the first premise, Bashārat Ahmad criticized the specifically gen-
dered mode of ethics that exclusively associated values of obedience and pa-
tience with wife’s conduct. He noted that Siddīqī’s views were unrealistic in a
world where “there was a dearth of excellent ethics and controlling passions
was difficult.”51 Elaborating his critique, he said
First, the position itself is wrong: One cannot conquer a man’s heart
this way when these are men whose conscience has died, from whom
all traces of respectability and compassion has been annihilated. They
have no respectability and tolerance for women. In fact they take un-
due advantage of the tolerance and forbearance of such oppressed
women.52
Questioning ‘respectability,’ Bashārat Ahmad said that he knew several in-

stances where women had complied with Siddīqī’s advice but men from ‘re-
spectable’ families persisted in behaving badly. He added, “in novels, the hero-
ine conquers the man’s mansion even in such circumstances, and maybe that
is where Siddīqī sāhib got this idea from. This kind of conquest is rare in the
may have no flaw but their living together is extremely difficult, in fact, it is impossible,
giving example of the marriage of Prophet Muhammad and Zainab bint Jahsh.
50 Bashārat Ahmad, “khulaʿ kī zarūrat: āj hindustān men kyūn nahīn,” (The necessity of khu-
laʿ: why it does not exist in Hindustān today) Tahzīb-un-Nisvān 32, no. 50 (14 December
1929): 1205.
51 Ibid., 1206.
52 Ibid., 1206.
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real world.”53 By connecting Siddiqui’s position to didactic novels, Bashārat

Ahmad effectively attacked reformist literature for endorsing women’s op-
pression. Calling women virtuous or ‘goddess’ did not, he said, “empty her of
all those human sentiments. She also has feelings of rivalry and selfishness. If
men want comfort and tranquility from women, then women also want the
same from men.”54
Regarding the second premise of Siddīqī’s argument, Bashārat Ahmad
writes, “I say this: if khulaʿ is not beneficial for Muslim women today, then it
will never be beneficial for them.”55 Citing attempts at religious conversion,
Bashārat Ahmad said that Muslim women were being enticed by Arya Samaj
or Christian missionaries because the law provided them with few options.56
Those who viewed such women negatively should be rejected for “it is obvious
that their nature is hard, and they do not have the discretion to differentiate
between good and bad.”57
In the face of criticism, Mahmūd Ahsan Siddīqī reiterated his views saying
“given the social conditions of Hindustān, it is absolutely unnecessary that
there be an amendment in Sharīʿa and that English courts be allowed to ad-
judicate the sensitive issue of khulaʿ ”58 He added that he was opposed to ad-
vocates of khulaʿ who use fictitious stories about male oppressors to “strength-
en agitation by developing hatred of men in women.”59 This was increasing
distrust and hostility between men and women, he said, and the aim of such
tactics was to develop ‘another world’ of women separate from men where
women are disgusted with their brothers, husbands and fathers and courts are
overrun with khulaʿ requests. He conceded that marital problems did exist but
said that conflicts were caused by the stubbornness of wives or their quarrels
with mothers-in-law and sisters-in-law instead of husband’s behavior.60 He
was willing to consider some of the arguments but said “conscience compels
me to stop and reflect on every destructive movement.”61
53 Ibid., 1207.
54 Ibid., 1207.
55 Bashārat Ahmad, “khulaʿ kī zarūrat: āj hindustān men kyūn nahīn, 2” (The necessity
of khulaʿ: why it does not exist in Hindustān today, 2) Tahzīb-un-Nisvān 32, no. 51 (21
December 1929): 1225.
56 Ibid., 1225–1226.
57 Ibid., 1227.
58 Mahmūd Ahsan Siddīqī, “khulaʿ par kuch aur,” (Some more on khula‘) Tahzīb-un- Nisvān
33, no. 6 (8 February 1930): 133.
59 Ibid., 133–134.
60 Ibid., 135.
61 Ibid., 135.
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254 Chapter 5
The editor of Tahzīb-un-Nisvān simultaneously responded to all of Siddīqī’s

points in his article, and even integrated his responses into Siddīqī’s article it-
self. He insisted that no amendment to Sharīʿa was needed to address demands
for khulaʿ but that an existing provision within Sharīʿa should be implemented.
Furthermore, he alleged that Siddīqī saw no baseness when men divorced their
wives but interpreted wives asking for a separation “as war between men and
women and the remaking of Hindustān into Europe.”62 Situations where hus-
bands had treated their wives poorly caused sufficient grief to their mothers,
sisters and grandparents, the editor wrote. Has this not already resulted in “dis-
trust and hostility between the two sexes?”63 Finally, invoking conscience, he
inquired, “When a husband, cursing, throws out a helpless woman, what does
your conscience say then?”64
In later years, women writers asserted marital annulment more forceful-
ly and continued to associate its opposition with demands of respectability.
A woman named Sultāna Āsif Faizī noted that linking respectability to the
sancity of marriage was horrific for women. “Respectability,” she said, “does not
mean that a woman be forced to spend her life with a man who is not worthy of
her respectability. Living in hell happily is much better than forced heaven.”65
Others joined in this criticism. As indicated at the beginning of the chapter, a
woman named Mrs. Nazīr Husain in 1938 compared the resistance to khulaʿ to
slavery of women. Anyone who raised their voice, she said, faced accusations
of imitating Europe. Resisting charges that khulaʿ would damage family, she
said, “how can the Hindustānī woman who has been born in the ferment of
slavery have the confidence to make excuses for khulaʿ over minor things.”66
She specifically highlighted the pitiable state of women who had been forcibly
divorced and said that many women resist threat of divorces by husbands due
to family respectability and fear of elders. Providing khulaʿ would significant-
ly improve women’s lives because men would know that women “also have a
weapon, that they are not helpless, that they will not live in whatever situation
that exists.”67
62 Ibid., 134.
63 Ibid., 134.
64 Ibid., 135.
65 Sultāna Āsif Faizī, “musalmān ʿauraton ke huqūq-i faskh-i nikāh,” (The right of marital
annulment of Muslim women) Tahzīb-un-Nisvān 41, no. 29 (16 July 1938): 706.
66 Mrs. Nazīr Husain, “haqq-i khulaʿ aur musalmānon kī zahnīyat,” (The right of khulaʿ and
the sensibility of Muslims) Tahzīb-un-Nisvān 41, no. 31 (30 July 1938): 814.
67 Ibid., 815.
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4 Debating Strategies for Change
One of the critical issues in debates on khulaʿ besides denounciation of re-

spectability and power was how Muslims could be motivated to change and
the strategies needed to pass the necessary law. Bashārat Ahmad had advocat-
ed for khulaʿ even before his disagreement with Siddīqī.68 In his earlier critique,
he had pointed out the absence of marital annulment as a crucial question at
the All India Women’s Conference (aiwc). All India Women’s Conference was
started in 1927 by the efforts of Margaret Cousins and focused largely on child
marriage and women’s education in late 1920s.69 Bashārat Ahmad wrote that
at its second conference held in Delhi in 1928, several resolutions against child
marriage and other matters were passed but “no one mentioned khulaʿ. And
how could they take it up. The reins of this conference were held mostly by
Hindu, Christian and Parsi women.”70 Bashārat Ahmad then mentioned that
several Muslim women in attendance at the conference did not understand
English well and all speeches were made in English only. He added, “I have
even heard that when some women spoke in Urdū, they were stopped forceful-
ly.” He felt that there was no expectation that any resolution passed at the con-
ference would particularly benefit Muslim women noting that child marriages
were far more common among Hindus than Muslims.71
Bashārat Ahmad also questioned the effectiveness of debates in press saying
“I don’t understand why then this song of women’s freedom is sung repeatedly
in newspapers. Is this noise and clamor only limited to paper? Or does it have
a correlate in action?”72 In other words, writing in magazines or novels had no
effect till it wasn’t accompanied by action. Similarly attending conferences and
associations was meaningless unless there were “acts through which poor and
oppressed women could benefit.” Denouncing aiwc, he said, “What after all is
this All-India Women’s Conference good for. What action are they performing?
If nothing else, they should pass a resolution for khulaʿ ”73 Bashārat Ahmad’s
68 Bashārat Ahmad, “ʿauraton kī musībaton kā vāhid ‘ilāj: khulaʿ,” (The sole solution for the
problems of women: khulaʿ) Tahzīb-un-Nisvān 31, no.1 (7 January 1928): 7–10.
69 Geraldine Forbes, Women in Modern India (Cambridge: Cambridge University Press,
1998), 78–83. Margaret Cousins was an Irish feminist associated with the Theosophical
Society headed by Annie Besant and was active in India in women’s causes. See Barbara
Ramusack, “Cultural Missionaries,” in Western Imperialism, ed. Nupur Chaudhuri, 119–136.
70 Bashārat Ahmad, “khulaʿ,” Tahzīb-un-Nisvān 31, no. 29 (21 July 1928): 701.
71 Ibid., 701.
72 Ibid., 702.
73 Ibid., 702.
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256 Chapter 5
strong words illustrate the disillusionment that some Muslims felt with aiwc
and its inability to address issues that were specific to Muslim families. He
hoped that Muslims would ask the legal bodies of the government to pass a
khulaʿ law for “the freedom of their poor and oppressed sisters.”74
Zafar Jahān Begam responded to Bashārat Ahmad’s arguments on aiwc
and endorsed several of his views. She argued that resolutions at conferences,
though they usually fail to be effective, were important. As an example, she
cited the anti-polygyny resolution passed at All India Muslim Women’s Con-
ference in 1918, which was followed by serious condemnation of the resolution
and endless debate on the resolution itself. “As far as I know, this resolution
was not abrogated. But despite this, the situation remained the same” and
polygynous marriages continued among Muslims.75 The issue of khulaʿ, Zafar
Jahān said, was a religious matter and passing resolutions would be futile if the
government did not make laws that approved khulaʿ. This required an exten-
sive effort by Muslim men particularly involving collating legal opinions of the
different Muslim schools of jurisprudence and then arguing for khulaʿ in the
assembly, but no one was willing to put in this hard work and ideally Muslim
women should push for bill but they were not even properly educated let alone
discuss nuances of religious schools. There had been some verbal commitment
by a few men, Zafar Jahān wrote, but it did not amount to any action.
But Zafar Jahān Begam reserved strongest words for ʿulamāʾ asking Bashārat
Ahmad in similar vein, “My question is what this Jamiʿat-ul-ʿUlamāʾ of yours is
good for, as it watches clearly the murder of justice but remains silent.”76 Zafar
Jahān noted that given their expertise in jurisprudence, this matter would not
be arduous for them but “the sad fact is that this matter specifically concerns
unfortunate women. Therefore even Jamiʿat-ul-ʿUlamāʾ has no interest in it.”
She added, “we cannot even complain because one complains to those from
whom one has some expectation. And the situation here is that from the be-
ginning this group has never considered women anything more than cattle.”77
She noted that ʿulamāʾ had deprived women of knowledge and all madrasas
that impart religious education were exclusively for men. Given the rising
74 Ibid., 702–703.
75 Zafar Jahān Begam, “khulaʿ,” Tahzīb-un-Nisvān 31, no. 34 (25 August 1928): 818.
76 Ibid., 819. Jamiʿat-ul-ʿUlamāʾ was founded in 1919 by a group of Deobandi scholars and
actively participated in the Khilafat Movement in collaboration with the Indian National
Congress. For their opposition to Partition, see Barbara Metcalf, “Maulana Husain Ahmad
Madani and Jamiat Ulama-i Hind: Against Pakistan, against the Muslim League,” in
Muslims against the Muslim League: Critiques of the Idea of Pakistan ed. Ali Usman Qasmi
and Megan E. Robb (Cambridge: Cambridge University Press, 2017), 35–64.
77 Ibid., 819.
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cases of female apostasy, Zafar Jahān argued that the ʿulamāʾ should intervene
and take a strong favorable position for khulaʿ.78 Zafar Jahān’s views on ʿulamāʾ
shows that some women writers clearly felt that religious authority was not
supporting them and that women’s voice was absent primarily because they
had been excluded from religious education.
Zafar Jahān Begam was not alone in criticizing ʿulamāʾ for its neglect of
women. Rāshid-ul-Khairī too commented on the issue of khulaʿ and identified
ʿulamāʾ as the major hindrance to religious reform in the 1920s. Endorsing khu-
laʿ, he writes “which of the groups nowadays from Ahl-i Qurʾān to Ahl-i Hadīth
to Hanafī, Mālikī, Shāfiʿī, Sunnī, Shīʿa, can claim that they have not deprived
women of this legitimate right?” The result of this deprivation was that wives
“inclined toward annulment of nikāh and see no solution except apostasy to
escape from the clutches of the husband.”79 Khairī pointed out that he had
been insisting on khulaʿ for years to help women in cruel marriages but no one
had paid any attention.80
Khairī supported his position with a story of a mother who complained that
her daughter, married at thirteen, was unable to get out of a cruel marriage.
Although she had been hesitant to marry her so young, the mother had eventu-
ally bowed to family pressure because the groom made good money and had a
college degree. After marriage, however, the husband and his family criticized
the girl constantly and did not allow her to see her mother. The mother blamed
herself for agreeing to the match but could now only watch her daughter sink
into deep depression. She had approached leaders, clerics and scholars for a
solution but no one could help. Her daughter’s teacher recommended that the
girl must convert to Christianity to annul the marriage, which confused the
mother. The mother said, “Muslims make grand claims about women’s rights
and write books. Newspapers and stages echo with their slogans. But it is all
false, absolutely false, most certainly false” adding, “I now say that no one actu-
ally treats women that way.”81
Khairī said that the publication of such stories was heartbreaking but also
necessary to understand the reasons for implementing khulaʿ. He disagreed
with the mother’s judgment of Muslims but acknowledged there were many
such stories. He asserted “whatever displeasure was expressed regarding Islam
78 Ibid., 820.
79 Rāshid-ul-Khairī, “khulaʿ aur irtidād,” (Khulaʿ and apostasy) in Musalmān ʿaurat ke huqūq,
ed. Rāziq-ul Khairī (Karachi: Rāshid-ul Khairī Academy, 1969), 28–29. (fourth edition).
80 Rāshid-ul-Khairī, “khula‘ kī zarūrat,” (The necessity of khula‘) in Musalmān ʿaurat ke
huqūq, 37.
81 Ibid., 35.
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258 Chapter 5
in these tragic incidents is far-removed from truth. Islam and Muslims are two
separate things;” if Muslims do not comply with Islam’s support of women’s
rights, “it is not the fault of Islam.”82 Khairī’s comments combine his own pi-
ous, almost orthodox, commitment to religion with his concern and engage-
ment on women’s issues.
Khairī particularly denounced the ʿulamāʾ saying, “The truth is that Muslims
have succeeded in crushing women and destroying their rights only with the
help of ʿulamāʾ.”83 He added that he had seen such feeble fatwas by ʿulamāʾ
that if these had been “true, then I would have been the first person to say
goodbye to Islam.” He chastised Muslims about increasing female apostasy, “If
even now Muslims do not calmly return to women those rights which Islam
bestowed on them, forget about apostasy, they will just dismiss Islam and the
responsibility will fall on Muslims and its ʿulamāʾ.”84 Given the attitude of ʿu-
lamāʾ, Muslim women may as well completely give up marriage but they do
not even understand, Khairī said, “to what extent their commands will be the
cause of disdain for this sacred faith.” Khairī emphasized the value of service
to the community and noted that Prophet Muhammad’s achievements would
not have been possible without his wife Khadīja; “The service that women have
given Islam is certainly greater than that of men.” Taking Khadīja as represen-
tative of Muslim women, he added that if women “knew how Islam would not
only dismiss their service but throw them out of humanity into the age of ig-
norance, then she probably would not even have turned towards Islam.”85 He
reiterated that Islam was unique in conferring women’s rights and then added
that for women, “Today Islam is more ungrateful and thankless than any other
religion in the world.”86
Khairī’s understanding of Islam as a separate entity from its followers pro-
duces a doctrinal notion of religion that must be defended incessantly. At
the same time, the conduct of its male adherents turns an otherwise rights-
bestowing faith into an ‘ungrateful and thankless religion.’ In this particular
article, Khairī views religion as both an orthodox believer and a reluctant athe-
ist. His mix of orthodoxy and atheism here is nevertheless compatible with the
view that religion is a set of fixed tenets. Fears of apostasy and especially of
women converting to end cruel marriages that Rāshid-ul-Khairī mentioned in
82 Ibid., 38.
83 Rāshid-ul-Khairī, “phir vahī khulaʿ kā ronā,” (The same old crying about khulaʿ) ʿIsmat 53,
no. 4 (October 1934): 384.
84 Ibid., 384.
85 Ibid., 385.
86 Ibid., 385.
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his article on khulaʿ were part of his concern, and appeared in his novels and
other articles.
5 Women’s Freedom, Female Apostasy and Marriage
Writers like Bashārat Ahmad and Zafar Jahān Begam advocating for khulaʿ
regularly mentioned the danger of female apostasy and women converting to
another religion, posing a threat to Islam. The danger came not just from Chris-
tian missionaries in the colonial context but also from the shuddhi campaign
of Arya Samaj. The Arya Samaj adopted conversion to Hinduism as one of its
notable goals from its founding and emulated Christianity as one of its models.
Arya Samaj proselytization gained strength particularly in the 1920s with the
formation of new organziations such as Bharatiya Hindu Shuddhi Sabha (All
India Hindu Shuddhi Council) that resolved to bring Hindus back to the fold.
A notable episode is the Arya Samaj efforts directed at Malkana Muslims in
the United Provinces during 1920s. In response to Arya Samaj mobilization,
Muslims particularly the ʿulamāʾ also promoted the message of scripturalist
Islam.87 In the climate of increasing communalism of 20s and worsening in-
ter-community relations, fears that Muslims would convert to Christianity or
become an Arya Samaji were expressed routinely in debates on marital annul-
ment. Women leaving an oppressive Islam to end their cruel marriages haunt-
ed Muslim reformers, intellectuals and critics. One of the most significant ar-
ticulations of this fear is Rāshid-ul-Khairī’s novel Tafsīr-i ʿIsmat (Commentary
on Honor). In Tafsīr-i ʿIsmat published first in 1928, Hashmat, the novel’s fe-
male protagonist converts to Judaism. While Arya Samaj does not figure in the
novel, the anxiety of losing Muslims in an atmosphere of religious competition
informs the arc of the story.
At the beginning of the novel, Hashmat and her husband Ashraf are in
court, Hashmat demanding khulaʿ from her husband and Ashraf insisting
that they remain married. The court is thronged with curious and angry Mus-
lims who are aware that the case also involves apostasy. Khairī writes that the
crowd “wanted to murder Hashmat to quench the fire that was burning in
their hearts.”88 Addressing the court, Hashmat says that she is aware of their
87 Yoginder Sikand, “Arya Shuddhi and Muslim Tabligh: Muslims Reactions to Arya Samaj
Proselytization (1923–30),” in Religious Conversion in India: Modes, Motivations and
Meaning, ed. Rowena Robinson and Sathianathan Clarke (Delhi: Oxford University Press,
2003), 98–118.
88 Rāshid-ul-Khairī, Tafsīr-iʿIsmat (Delhi: ʿIsmat Book Agency, 1933), 21.
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260 Chapter 5
sentiments but hopes that they were familiar with the circumstances that had
led to this day: “if you had not been miserly in giving us the rights our pure re-
ligion bestowed, then today your eyes would not have seen nor your ears heard
a Muslim girl separating from you in this way.”89 Hashmat says that if Muslims
do not attend to women, then “the trauma that has spread today will grow
each day and the Islam of thousands of girls will be sacrificed for the refuge
of apostasy due to the selfishness of their oppressive husbands.”90 Meanwhile,
Ashraf’s lawyers warn that if her request for khulaʿ is accepted, then thousands
of Muslim homes will be “destroyed and dishonored.”91 Hashmat, on the other
hand, argues that her marriage is a violation of her ‘freedom:’
The court knows very well that every person in this world is born free.
Freedom is their natural right and no power in the world is correct if it
can end any person’s freedom. They perpetuate a crime. If the freedom of
a Muslim woman were snatched by nikāh, then her only crime is that she
was born to Muslim parents and that despite the fact that Islamic nikāh is
actually like handcuffs on her wrists or chains on her feet, she never sev-
ered from Islam. The court considers me a human being but it is only so
that I can say ‘yes’ and enter a prison? God save me, I never realized that
while animals of a few feathers can fly free, while dogs and cats can leap
and rabbits can hop wherever they wish, the nikāh of a Muslim woman
imprisons her. She loses her freedom and rights by becoming a subject of
her husband.92
In addition to the animal and prisoner images, another key feature of Hash-
mat’s speech is her insistence on adhering to Islam despite her treatment,
which is clearly a marker of Khairī’s opinions. Khairī both wishes to write
against ‘Islamic nikāh’ and also retrieve ‘Islam’ as the site of female empower-
ment. Hashmat says that if the courts do not grant her khulaʿ, which is legal in
Islam, then she will leave Islam for Judaism and her nikāh will be automatically
annulled. Instead of calming them down, this short speech further stokes the
anger of the crowd. They attack her but she is saved at the last moment by a
veiled figure.
After the trial, the narrative takes strange twists and becomes almost in-
coherent. Within a year, Ashraf realizes his mistake and contacts Hashmat’s
89 Ibid., 21.
90 Ibid., 21.
91 Ibid., 22.
92 Ibid., 22–23.
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Jewish teacher who had influenced her conversion. The teacher believes
Ashraf to be Mr. Musa, a Jewish man Hashmat wants to marry. In a letter to
Hashmat, her teacher says that her marriage to Musa would be in the name
only, with little substance93 This enrages Hashmat so much that when Musa
comes to see her, she attempts to kill him. Instead of killing Musa, however, she
kills Bernard, a Christian missionary who was her childhood teacher and was
to be at her home when Musa visited.94 The reader learns that there never was
a Musa; it was Ashraf the whole time. As odd and improbable this sequence of
events, Khairī’s intent is didactic: if Musa is really Ashraf, then the marriage is
intact despite Hashmat’s conversion. At the same time, Ashraf also has to real-
ize that he cannot continue being the old, tyrannical Muslim husband. Tafsīr-i
ʿIsmat thus endorses khulaʿ primarily to prevent female apostasy and to keep
the marital contract intact.
That the novel’s focus was prevention of female apostasy, not advocacy of
khulaʿ becomes clear at Hashmat’s murder trial. Ashraf testifies that those re-
sponsible for Hashmat’s conversion include not only himself but also clerics
who “never paid any attention to the rights of women and classified them as
helpless and weak in front of men.”95 He also says that those who “consider
and convince others that the essence of woman’s nature is obedience to her
husband” are not “innocent of this sin.”96 Ashraf declares his love for Hashmat
and says that he was blind until Hashmat converted. Taking responsibility for
the killing of Bernard, he concludes that “khulaʿ is her legitimate right and we
have no right to stop it.”97 Khairī presents Hashmat as guilty and shamefaced
about her conversion. She says that she is “not unfamiliar with the pain that my
apostasy has caused Muslim hearts, not unaware, not ignorant of the feelings
that this wicked, undesirable, unfortunate woman has caused her communi-
ty” adding, “I am such a shameless, brazen and depraved person that life spits
on me and death will damn me. The world is disgusted with my face and the
afterlife is disgusted with my name. Today, my people avoid me and my neigh-
borhood flees from me. Tomorrow the grave will discard me and hell will throw
me out.”98
With these damning words, Khairī’s condemnation of Hashmat and sub-
sequently of female apostates is complete and absolute. Furthermore, given
93 Ibid., 31.
94 Ibid., 31–32.
95 Ibid., 32–33.
96 Ibid., 33.
97 Ibid., 34.
98 Ibid., 35.
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262 Chapter 5
Hashmat’s insistence on freedom in her first court appearance, it also points

out Khairī’s ambivalence about ‘women’s freedom’ with respect to family re-
lations. Khairī thus viewed apostasy as arising in part out of the discourse of
women’s freedom that featured so prominently in the Urdū press. The figure
of Bernard is also important here because she represents Khairī’s complex and
often-conflicting opinions on issues of social activism and women’s education.
As a Christian missionary, Bernard works with Muslim women and orphans,
exerting a powerful influence on Hashmat as her teacher. Later, however, when
she learns of Hashmat’s conversion, she writes a letter emphasizing the value
of ʿismat (honor) saying that it is “the asset of your father and grandfather, you
can do what you wish” but “there must be no breach in it and there must be
no change made to this honor.” She also adds, “Dear Hashmat, have mercy and
do not be caught in the deceit of ego. Do not leave behind such a reputation
where future generations of girls will damn you.”99 Bernard hopes to persuade
her to retract her decision and prevent her apostasy. As a Christian missionary,
Bernard therefore is both a figure of ‘bad’ influence and also of ‘correction.’ It is
no coincidence then that in having her kill Bernard, Khairī castigates Hashmat
for committing the worst of errors and cements his portrayal of her as a ‘bad
Muslim woman.’ As indicated in the murder trial, Hashmat may have convert-
ed but she will never find happiness in such decision and only bring ruin to
herself but more importantly to her family.
Towards the end of the trial, Hashmat says, “I committed treachery against
my religion, rebellion against my elders and disloyalty to my parents. My im-
pure self was a victim of my egoism and my faith a victim of my selfishness.”100
These lines suggest that decisions related to marital annulment and subse-
quently to female apostasy were not limited to contractual matters but in-
volved a whole set of obligations and duties that upheld one’s religious, ethical
and familial heritage. The acts defined as disloyal, treacherous and rebellious
were deeply rooted in values of family obligation. Hashmat finally says that she
should have battled Ashraf with courage, for that is part of a “Muslim wom-
an’s heritage.”101 After the speech, the court acquits Hashmat of any crime and
Muslims arrange for a procession of celebration to Jama Masjid, where she is
remarried to Ashraf. The question of what constitutes a “Muslim woman’s her-
itage” lies at the heart of Tafsīr-i ʿIsmat. When subjected to oppressive family
traditions and strict religious codes, she must fight within to change and there-
by uplift the ‘community.’ In Khairī’s worldview, female apostasy is the worst
99 Ibid., 27.
100 Ibid., 35.
101 Ibid., 35.
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of offenses against family, against Muslims, against one’s heritage, against one’s
past because instead of fighting for family, for Muslims, for heritage and for the
past all embodied in the virtue of ‘ʿIsmat,’ it radically rejects them.
While Khairī strongly condemned female apostasy in his novel, he was toler-
ant even supportive of it in some of his articles. Explaining the causes of female
apostasy, he wrote that for a ‘Muslim man,’ “Wrong expositions of the Qurʾān,
the invalid Hadiths of lying narrators and incidents of egoistic sermons serve
as guides that will prevent him from the correct path.”102 He added that if ‘Mus-
lim men’ truly wish to understand the reasons for female apostasy “they should
pay attention to women” because “they themselves are the biggest cause.”103 It
was not enough to read opinions of women in newspapers and magazines but
said it was necessary to understand “what is the distress today that makes her
run thousand of miles away from Islam. The only answer would be that she was
once the queen of home but today is the slave girl of the family.”104
Khairī continued to insist that ‘Islam’ had once been better for women
and family but now indicated their enslavement. Elsewhere he vehemently
supported female apostasy noting that Muslims “who have missed no detail
in destroying women’s rights are desirous that when a human is killed after
repeated suffocation and stabbing, even the bones should not escape their
clutches.”105 With this allegory of murder and absolute enslavement that even
outlives death, Khairī turned the religious subjection of women into an all-
encompassing assault. Living in such circumstances was practically equal to
death and to not expect apostasy to follow was akin to imprisoning a corpse’s
bones. He explained that when women had been reduced to enslavement and
deprived of their rights in Islam, “Is it not her natural right to break the chains
of religion to escape oppression, which has befallen only because she is a Mus-
lim?”106 Advocating khulaʿ, he adds, “When Muslims destroyed this right, then
there was no way out except to take refuge in apostasy.”107 Khairī’s comments
indicate just how embedded female apostasy had become in conversations
about marriage, patriarchal oppression and women’s rights.
102 Rāshid-ul-Khairī, “irtidād kā sabab,” (The causes of apostasy) in Musalmān ʿaurat ke

huqūq, 44.
103 Ibid., 45.
104 Ibid., 46.
105 Rāshid-ul-Khairī, “irtidād kā ʿilāj,” (The cure of apostasy) in Musalmān ʿaurat ke huqūq, 51.
106 Ibid., 52.
107 Ibid., 52.
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264 Chapter 5
Saiyid Imtiyāz ʿAlī Tāj, son of Saiyid Mumtāz ʿAlī, also noted the connection
between marital separation and increasing female apostasy. He wrote that An-
glo-Muhammadan Law enacted during the colonial period gave men the au-
thority to divorce but omitted khulaʿ for women. The colonial legal apparatus
had thus undone a positive feature for Muslim women.108 He added that bill
called ‘qanūn-i faskh nikāh’ (Law for Marital Annulment) had been introduced
in the Assembly. After the passage of the bill, Imtiyāz ʿAlī said, “Oppressive
husbands will not be able to act tough with their wives without any care or
concern.”109 He claimed that there would no Muslim in Hindustān who would
be opposed to the bill including educated men and women.110 This bill became
the Dissolution of Muslim Marriages Act of 1939 (dmm Act).
6 Two Men on Divorce: Dissolution of Muslim Marriages Act of 1939
Muhammad Khalid Masud has noted that between 1920 and 1930, there was an
increase in cases of separation on grounds of apostasy and “Muslims in India
felt threatened by these conversions and began to demand reforms in the pre-
vailing laws.”111 The most well known effort in this direction came from Maulā-
na Ashraf ʿAlī Thānavī, who published a treatise in 1932 called al-Hīlat al-Nājiza
lil Halīlat al-ʿAjiza (The Perfect Strategy for the Powerless Wife) to legitimize
divorce by Hanafī Muslim women based on Mālikī law.
Before we analyze Thānavī’s position, it is crucial to highlight that Muslims
who were not formally trained in Islamic jurisprudence like Thānavī were
also expressing the concern for marital annulment and women’s rights. Mirzā
ʿAzīm Beg Chughtāʾī (brother of famous Urdu Writer ʿIsmat Chughtāʾī) figures
most prominently among them. He wrote extensively in support of women’s
rights and his writings address a range of issues like the role of arts in women’s
education, pardah and matters related to marriage and family. His intervention
on the issue of marital annulment was first published in 1931 as a story titled
Tafvīz: aik hairat angez khwāb (Delegation: A disturbing Dream). In the intro-
duction to the tale, Chughtāʾī also mentions that the Minister of Education
108 Saiyid Imtiyāz ʿAlī Tāj, “musavvada qanūn-i faskh nikāh,” (Draft of law for marital annul-
ment) Tahzīb-un-Nisvān 38, no. 49 (7 December 1935): 2059.
109 Ibid., 2060.
110 Ibid., 2060–2061.
111 Muhammad Khalid Masud, “Apostasy and Judicial Separation in British India,” in
Muhammad Khalid Masud, Brinkley Messick and David S. Powers, ed., Islamic Legal
Interpretations: Muftis and their Fatwas (Karachi: Oxford University Press, 2005), 195.
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of the princely state of Bhopal Anwār-ul Haq was also preparing a treatise,
Tahaffuz-i huqūq-i zaujain, in which he was to discuss Islamic injunction about
divorce and marital separation.112 Chughtāʾī makes a plea to inform readers
about the significance of tafvīz (handing over, placing in trust) among Muslims
and notes that this right is the best gift that parents could give their daughter
on her wedding. He also attacks the limitations of the Hanafī school of juris-
prudence ridiculing the idea that a woman whose husband disappears must
wait 90 years to remarry.113
The story involves a young male lawyer who imagines that he is a woman in
a dream married to a maulvī (religious scholar) against her wishes. The wom-
an wants to end her marriage and argues it was invalid because she did not
consent. She soon learns that the only option available for her is khulaʿ, which
cannot be executed without the husband’s permission.114 Furthermore, this in-
sistence on husband’s consent is the injunction of Islamic jurisprudience. The
wife is forced to live with her husband and is subjected to severe cruelty and
domestic violence.115
In the story, the wife manages to rescue herself through the accidental dis-
covery of Anglo-Muhammadan law. One day as she is cleaning the house, she
stumbles upon a text of Anglo-Muhammadan Law. Reading it, she discovers
that the marriage can be annulled with religious conversion.116 With great ex-
citement, she wonders whether she should convert to Hinduism or to Christi-
anity but concludes that conversion to Hinduism would not be very beneficial.
Following her conversion to Christianity, the marriage is annulled and the wife
feels relieved as she is released both from a cruel marriage and from the cus-
tom of pardah.117 She marries a Christian and finds that several Muslim women
like her had also converted and are living happy lives with their Christian hus-
bands. Throughout the story, the wife blames her problem persists not due to
Islam but due to the position taken by Indian Muslim ʿulamāʾ including that of
Jamiʿat-ul-ʿUlamāʾ-i Hind.
In the last section of the story, the wife reads the text of Anglo-Muhammadan
law again and discovers the pages that address tafvīz, which opens the possibil-
ity of making stipulations in the marriage contract that automatically grant the
112 Mirzā ʿAzīm Beg Chughtāʾī, Tafvīz: aik hairat angez khwāb (Karachi: Urdū Academy Sindh,
1959), reprint, 6.
113 Ibid., 13.
114 Ibid., 17–32.
115 Ibid., 40–41. Her husband also has a second marriage. (45–46).
116 Ibid., 50–51.
117 Ibid., 54.
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266 Chapter 5
wife the right to divorce in cases of cruelty. She wonders why Muslim women
were not aware of these advantages and laments that even though “they hold
meetings, pass resolutions and publish articles in the newspapers appealing
to the good sense of the community,” they remain ignorant of possibilities in
their religion that would give them agency.118 Chughtāʾī’s own position is that
a wife should be able to exercise khula‘ without any regard to her husband’s
wishes.
Chughtāʾī’s intervention sets a good background for Thānavī’s treatise that
considers the possible conditions for divorce and suggested a strategy for mar-
ital annulment. Qasim Zaman has noted the significance of Thānavī’s treatise
in his biography of Thānavī.119 Zaman’s focus, however, is on the accomplish-
ment of Thānavī and although it provides a good summary of the text, it does
not illustrate adequately the place of women in Thānavī’s argumentation. It
is worthwhile here to demonstrate Thānavī’s words and his reasoning in the
text, and examine how it gives more weight to men than women in conjugal
matters. It thereby retains the patriarchal framework that constituted the rea-
soning for most social reformers during the colonial period.
Thānavī’s intervention was part of a series of debates and discussions that
culminated in the ratification of the dmm Act.120 The Act allowed Muslim
women to obtain a judicial divorce for reasons of cruelty and ill-treatment
by husband, husband’s inability to provide for the wife and venereal diseas-
es. Thānavī’s text is divided into two parts titled tafvīz-i talāq ba-vaqt-i nikāh
(Surrendering Divorce during Nikāh) and Tafrīq bain-al Zaujain (Separation of
the Couple). In the first part of the text, Thānavī writes that in response to
the debates on wife’s right to divorce, some people have suggested solutions
where the wife stipulates conditions during nikāh, which give her permission
to divorce. Writing in question-answer format, Thānavī asks if such conditions
are legitimate according to Sharīʿa law and when they should be stipulated. In
his response, Thānavī writes, “such a statement where the wife has the right to
divorce and she can use that in a situation is indeed legal on Sharīʿa grounds
and is called tafvīz-i talāq.”121 Such a statement can be written either before
118 Ibid., 60.

119 Zaman, Ashraf ʿAli Thanawi, 107–116. Fareeha Khan, on the other hand, focuses on the con-
struction of religious authority through the publication of Thānavī’s text and her disserta-
tion is an excellent in-depth analysis of Thānavī. See Khan, “Traditionalist Approaches to
Sharīʿa Reform,” 85–156.
120 Ibid.,196; also see Minault Secluded Scholars, 303–305.
121 Ashraf ʿAlī Thānavī, al-Hīlat al-Nājiza lil Halīlat al-‘Ajiza (Karachi, Dār-ul Ishā‘at, Karachi,
1987, reprint),19.
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nikāh, during nikāh or immediately afterwards but it is best to do it before or

during the nikāh. In his support, Thānavī cites two major texts from Hanafī
law, Shamī and Fatāwa-i ʿAlamgīrī where the wife stipulates during nikāh that
she is getting married on the condition that she must be able to divorce him
and thus divorce is intimately tied to the marital contract itself. Thānavī adds
that if the wife doesn’t make such stipulation during nikāh and she wishes to
add it afterwards, it would not carry force and she would not be able to divorce
her husband.122 Thānavī, however, qualifies this stipulation adding, “Because
the woman is weak in reasoning, to give her absolute power to divorce is not de-
void of dangers (emphasis mine).” Therefore, it is appropriate that the tafvīz-i
tālaq “be restricted by conditions so that the fear of absolute power could be
dispelled.”123
Explaining the process, he counsels that at the time of nikāh, either the wife
or a guardian or a representative or a qāzī conducting the nikāh should say
“that this nikāh is being held in such a away that if you have pain as result of
your husband and if two out of ten people present at the nikāh confirm this
suffering, then the matter will be in the hands of either the guardian or repre-
sentative or the wife.”124 Thānavī then advices women not to divorce in haste
and that they should give at least a week to think about it and should consult
their well-wishers before taking any decision.125 Thānavī also warns that once
husbands agree to tafvīz-i talāq, they cannot retreat from the position for the
wife becomes the owner of the marital contract. Therefore, husbands should
also think and consult educated people so that there is no regret or difficul-
ty afterwards. While counseling husbands, Thānavī suggests in the footnote
that when husbands agree to tafvīz-i talāq, they could impose the condition
of waiving the right of mahr even providing exact language for such a stipula-
tion.126 As is evident from Thānavī’s approach, even though wife could initiate
divorce through nikāh stipulation, the conditions attached with it do circum-
scribe wife’s autonomy.
The second part of Thānavī’s text is titled Tafrīq bain-al Zujain be Hukm-i
Hākim. In this part, Thānavī discusses five types of marital separation based
on the reasoning of the wife. These include problems that arise when wife
discovers that husband is impotent, when wife considers her husband a luna-
tic, when the husband is missing and nothing is known about him, when the
122 Ibid., 21–22.

123 Ibid., 23.
124 Ibid., 23.
125 Ibid., 24.
126 Ibid., 26.
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268 Chapter 5
husband is oppressive and doesn’t support his wife and finally when the hus-
band has deserted her but his whereabouts are known.127 Thānavī then gives a
prelude about the legal process regarding these situations. Some details given
in Thānavī’s text are according to Hanafī law while the rest of the situations
are based primarily on the analysis of Mālikī law. In addition to his own inter-
pretations of the Mālikī texts, in all the instances of Mālikī law, Thānavī seeks
support through the use of fatwas from the scholars based in Mecca in Hijaz.
All the issues elaborated in the second part depend on the command
of the authorized qāzi or the Muslim jurist, that is, a woman on her own
or her guardian do not have control over divorce or the annulment of the
nikāh. They are required to approach the qāzi, file the suit and the qāzī is
required to institute a formal enquiry based on Sharīʿa that is accompanied
by witnesses.128 In his support, Thānavī cites noted Arabic texts (Tanqīh al-
Hamidiya, al-Mujtahadāt, al-Durr-al-Mukhtār) from Islamic jurisprudence
that go over three pages.129 Thānavī then laments that in India in the existing
circumstances, there are few qāzīs or they are absent. Under these circum-
stances, Thānavī says that if the government official or the judge is a Muslim
and if they take into account the principles of the Sharīʿa law, then their or-
der is acceptable just like a qāzī. But the judgment of a non-Muslim judge
is unreliable and of little use to secure a divorce.130 Even if a non-Muslim
assistant prepares the reports and the details of the case for a Muslim judge
or vice-versa, it is not acceptable. A non-Muslim cannot replace a Muslim
judge during the process of enquiry in the relevant cases. Sharīʿa law and the
presence of Muslims thus define the terms of annulment of marriage. For
these positions, Thānavī gives support from Arabic texts of al-Bahr-al Rāʾiq
and al-Durr-al Mukhtār.
Thānavī writes that in places where there are no Muslim judges or parties
aren’t allowed to take their cases to Muslims courts, Hanafī school doesn’t
allow for the wife to initiate the divorce but only push for khulaʿ. But if the
husband doesn’t agree and is tyrannical or is missing or is considered luna-
tic, Thānavī adds that Mālikī school allows an ‘assembly of Muslims’ in lieu of
judges to decide the case.131 The condition, however, for this assembly is that
they should be at least three ‘pious’ Muslims in it. Since the Hanafī school al-
lows the use of Mālikī law under difficult circumstances, the recourse to Mālikī
127 Ibid., 29.

128 Ibid., 29.
129 Ibid., 29–32.
130 Ibid., 33.
131 Ibid., 34.
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law here is justified although Thānavī suggests that there be utmost care not
to shift schools. If such shift is undertaken, there must be consultation with
educated ʿulamāʾ and theologians who have full expertise in Islamic jurispru-
dence (mahārat-i tāmma). Citing from jurisprudence, Thānavī says that such
a need can be legitimately established only when the theologians identify it
as an ‘urgent necessity’ (zarurat-i dāʾīya).132 These theologians must also be
familiar with customary practices and requirement of the time. Thānavī claims
that since the current age is ‘bad’ (pur-fitan) religiously, there must be two or
more theologians (muftī) who can confirm this necessity of borrowing from
another school. Otherwise, there is a fear of dismantling of the foundation of
religious schools.133
After laying this approach to religious jurisprudence, Thānavī presents dif-
ferent ways in which the issue of borrowing from other religious schools has
been discussed. He particularly addresses those past scholars who disallow
borrowing after the ‘closure of ijtihād.’ In their opinion, it is only a scholar of
mujtahid stature who can do it. Thānavī however does not approve of this stern
opinion.134 Following this discussion, Thānavī then describes the characteris-
tics of the ‘Muslim assembly’ required in Mālikī law. According to Mālikī law,
the first characteristic of this ‘Muslim assembly’ (jamāʿat-i muslimīn) is al-ʿadūl
or Muslims endowed with the quality of ʿadl (justice). Here ʿadl implies the
absence of religious offense and absence of violation of religious law. If the
Muslim member commits the offense, they should immediately repent. Thus,
according to Thānavī, the Muslim who takes bribe or is dishonest or is irreg-
ular in prayers or shaves his beard cannot be part of this assembly. In Mālikī
school, the qāzī must also be endowed with those qualities. In Hanafī law, how-
ever, there are no such restrictions. But if one is borrowing from Mālikī, all
these restrictions must be followed.135 It is also required that the members of
this assembly should all be literate and educated. If this isn’t possible, then at
least one educated member should be asked to be included. If even this isn’t
possible, then all the matters decided by this assembly should be referred for
approval to expert theologians (ʿulamāʾ-i muhaqqiqīn). Without this referral,
the judgment would be invalid even if it were in accordance with Mālikī law.136
132 Ibid., 35.

133 Ibid., 35.
134 Ibid., 35–40. Mujtahid is a high rank religious scholar who has expertise in the practice of
ijtihād or interpretation. For debate about the closure of ijtihād, see Wael Hallaq, “Was the
gate of ijtihād closed?” International Journal of Middle East 16, no. 1 (March 1984): 3–41.
135 Ibid., 40.
136 Ibid., 41.
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270 Chapter 5
There should be unanimity in the judgment of the assembly for its absence
would declare it invalid. The woman, however, can appeal for reconsideration
of the judgment.137
After these introductory comments, Thānavī gives details of each of the five
cases. He begins with the issue of impotency (zauja-iʿinnīn) that includes four
questions. Thānavī asks first who is impotent juristically. Second, whether the
wife of an impotent husband will have the authority to annul marriage. Third,
if she is given this authority, what would be its form and on what conditions.
Fourth, after separation, will the impotent husband be asked to pay full or half
mahr and will she have to commit to ʿiddat.138 Regarding impotence, he says
that it is the condition where the man is unable to have sexual relations with
the woman due to any disease, old age or weakness. He also adds that if some-
one can have sexual relations with some women and not with others, then
too the man is considered impotent with respect to the women with whom
he is unable to perform sexually.139 As for annulment, the wife may take her
complaint to the qāzī who will ask the husband about wife’s claims of his im-
potency. If he agrees to her claims, he is given one year for treatment.140 If, on
the other hand, he doesn’t agree to her claims, then older women will deter-
mine wife’s virginity to establish if husband’s claims are true. If she is a virgin,
husband is given one year for treatment.141 If she isn’t, the husband will have to
take an oath. If he refuses to take an oath, wife’s claim will be considered valid
and the husband will be given one year for treatment. If the husband recovers
during the year of treatment, the wife will lose her claim for separation. If he
doesn’t, the qāzī will again evaluate wife’s claims after one year. If the husband
agrees with his wife’s claims of impotency after one year, the qāzī will ask if the
wife wants separation. There can also be a divorce here or the qāzī can issue
the separation.142 If the husband challenges that he has recovered, then wife’s
claim would be evaluated. If she wasn’t a virgin at the beginning of treatment,
husband must take an oath. If he rejects the oath, the wife will be able to sep-
arate. If she was a virgin earlier and still is now, the qāzī will give the choice
to wife to separate or not without asking husband for an oath.143 Despite the
137 Ibid., 42.

138 ʿIddat is the duration of time that a divorced woman or a widow must wait before she can
marry again.
139 Ibid., 43.
140 Ibid., 45.
141 Ibid., 45.
142 Ibid., 46.
143 Ibid., 46–47.
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separation, the husband owes wife the mahr and if she separates, she must
complete the period of ʿiddat.144
The second case that Thānavī takes up is whether the wife has the right to
ask for separation from a husband she considers lunatic. If so, what should
be its form and conditions, and what should be the rules for mahr and the
period of ʿiddat. Thānavī responds to the first question with a detailed passage
from major Hanafī texts including al-Durr-al mukhtār, al-mabsūt and Fatawā-i
ʿAlamgīrī. He concludes that according to the founders of the Hanafī school,
Abu-Hanifa and Abu-Yusuf, the woman has no power to ask for separation from
a lunatic husband. But a second major disciple of Abu-Hanifa, Muhammad
Shaibani, allows it on the condition that the lunacy of the husband is such that
it is impossible to live with him and to extent that the wife fears for her life.145
The leaders of the other three schools, Mālikī, Shāfiʿī and Hanbalī, also allowed
annulment in cases of husband’s lunacy. There is also a discussion about the
chance of treatment of lunacy and it is permitted in Fatāwā-i ʿAlamgīrī. But
ʿAlamgīrī also differentiates between lunacies and allows treatment only for
recent cases.146 If it isn’t cured, the woman should be immediately allowed to
separate following a full investigation. Thānavī here refers to several types of
‘lunacy’ that figure in jurisprudence texts like ʿAlamgīrī and Hidāya. He notes
that one should ignore all these details and the ‘lunatic’ be given one year for
treatment particularly when the case is not in the court of the Muslim qāzī and
is referred to the ‘assembly of Muslims.’147
In response to the second question, Thānavī says that wife should appeal to
the court of qāzī and prove that the husband is a danger to her life. The qāzī
should investigate her claim followed by yearlong treatment. After that year,
the wife visits the court again and if the husband still isn’t cured, the marriage
will be annulled.148 There are some conditions for separation. For this annul-
ment to be valid, the wife must not know about the husband’s illness before
her marriage. Moreover, she cannot have sexual relations with her husband
after the discovery of ‘lunacy’ for that would imply that she accepts him. If
the separation is decided before consummation of marriage, then mahr will
get annulled. If the marriage had been consummated, then all mahr must be
paid.149 Thānavī writes that for Muhammad Shaibani, only if the husband was
144 Ibid., 49.

145 Ibid., 52.
146 Ibid., 53.
147 Ibid., 54.
148 Ibid. 54.
149 Ibid., 56.
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lunatic before marriage is annulment possible. Mālikī law also takes cases
when the illness develops after marriage and also discriminates between its
various levels and the right of wife to annulment in those conditions.150 He
also raises the question that this annulment (faskh) in some Mālikite texts is
called talāq, and if it is talāq, the husband only has privilege of ‘two talaqs’
instead of ‘three.’
In the third type of annulment, the husband is missing and Thānavī adds
that in such cases, almost all the Islamic schools unanimously agree that the
property owned by the husband cannot be claimed by anybody till those of
husband’s age group aren’t very old so that one may assume that husband is
dead. The schools differ on the issue of wife’s remarriage. According to Hanafī
and Shāfiʿī laws, says Thānavī, the wife must wait till those of husband’s age
group are very old to remarry so as to confirm that husband is probably dead.
Mālikī school, however, allows the wife to remarry after 4 years.151 Thānavī
says that in this particular case, Hanbalī school endorses Mālikī school in cer-
tain situations. Thānavī then elaborates that the evidence for the correctness
of Hanafī school is very strong but in consideration of fears of wives’ extra-
marital affairs, Hanafī scholars have pronounced verdicts of separation in
light of Mālikite principles.152 Thānavī supports himself here with fatwas from
scholars from Medina. In his text, he says that he formulated six situations as
questions and sent them to Mālikī scholars at Medina, sought their fatwa and
their responses, which he is summarizing in the text. The questions that he
formulated were first, how a wife should separate from a husband who has
disappeared and in spite of all enquiry there is no news of his life or death and
how long should she wait before initiating separation. Secondly, when does the
beginning of this ʿiddat start, that is, whether from the time of disappearance
or from the time of the appeal to qāzī. Thirdly, can the wife annul the marriage
on her own or does she need a qāzī. Fourthly, if the separation is contingent
upon the qāzī, should the qāzī start an enquiry or should the friends and guard-
ians of the wife do the enquiry. Fifth, in areas where there are no qāzīs, how
can this situation be resolved. Finally, are the situations prevailing in dār-ul
Islām or dār-ul harb different from each other and is India part of dār-ul Islām
or dār-ul harb.153
In response to these questions, Thānavī gives the following responses from
the Medina scholars. Within dār-ul Islām, the wife must approach the qāzī and
150 Ibid., 56–57.

151 Ibid., 59–60.
152 Ibid., 60.
153 Ibid., 61–62.
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they should enquire from witnesses her claims. Once the disappearance of the
husband has been established, the qāzī institutes a formal enquiry and if hus-
band cannot be traced, the wife should commence her ʿiddat from the day of
qāzī’s enquiry for four years. If the husband returns in four years, marriage is re-
sumed. If he doesn’t, the husband is declared dead by the qāzī and the wife un-
dergoes ʿiddat subsequent to which she can undergo the second marriage.154
Thānavī then states here that the wife should still take a second permission
from the qāzī even after four years. But within dār-ul harb, theologians from
Medina stated that only Hanafī law applied, which meant that most likely the
wife would not be able to remarry. Also, under no circumstances could the
woman initiate the separation autonomously but must have permission of the
qāzī. The qāzī also should not rely on enquiry conducted only by wife’s family
but also institute it independently.155 If the qāzīs aren’t present, the same pro-
cedure that followed the case of impotence would be adhered in which the
absence of Muslim judges would transfer the case to a Muslim assembly under
the guidance of educated theologian.156 Finally, Thānavī notes that procedure
to secure divorce from the disappeared husband is different in dār-ul harb and
dār-ul Islām. But a country like India would be considered dār-ul Islām because
the symbols of Islam (shaʿāʾir-Islām) are present in India.157 The primary part
of the procedure is the space for proper enquiry according to the law.
Following this defense of divorce according to Mālikī law, Thānavī asks a
series of questions that could disrupt the second marriage. If the once believed
dead husband returns after four years and wife’s second marriage, should the
first husband remarry his wife and is the first husband considered valid. Sec-
ond, in case of a new marriage, will he have to pay a new mahr. Third, will
there be a phase of ʿiddat for the second husband (who is now unacceptable)
and where will it take place. Finally, if from the second marriage there is a
child, what is the genealogy of that child.158 Thānavī says that according to
Mālikī law, if the second marriage has been consummated, then the wife’s sec-
ond marriage will be upheld and she has no ties to the returned husband. But
Hanafī law states that in all cases, the wife must return to the first husband.
Thānavī then says that in cases where the disappeared husband returns, there
is no need to take recourse to Mālikī law and the wife must follow the Hanafī
law for this situation isn’t critical enough to qualify shifting schools. Thus,
154 Ibid., 62.

155 Ibid., 64.
156 Ibid., 65.
157 Ibid., 66.
158 Ibid., 67.
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274 Chapter 5
once the first husband returns, the second nikāh is automatically annulled.159
Further, there is no necessity to renew nikāh with the first husband even if
there was consummation of the second marriage and there is no need of a
new mahr. But the wife must complete ʿiddat for the second marriage, which
includes three months.
In the fourth case of marital annulment, the husband refuses to support
his wife. Thānavī asks in what way the wife could free herself from such a hus-
band, whether the qāzī has the power of annulling their marriage, whether
the wife return to her marriage after annulment if the husband changes his
behavior and if so, is there a difference between the first nikāh and the sec-
ond nikāh. Thānavī advises that it is inevitable for such a wife to get freedom
from her husband through the mechanism of khula‘ but if this isn’t possible,
one can borrow from the Mālikī school.160 Thānavī writes that urgent need
of resorting to Mālikī law here is that there is no one to take care of the wife’s
expenses nor is she in a position to arrange it on her own. Furthermore, even
if she does manage her expenses, there is a fear of extra-marital affairs. In both
these situations, the wife can take the case to a qāzī and if there is no Muslim
qāzī, then to a Muslim assembly who then investigate the wife’s claims to es-
tablish its veracity. Such a husband should first be persuaded to reform himself
or divorce her. If he doesn’t do either, then the wife can ask for annulment.161
Thānavī writes that in case the husband improves after annulment and the end
of ʿiddat period, then the husband has no right in that marriage and cannot
return to his marriage. If the wife wishes to return, then a second marriage can
take place with the consent of both husband and wife. If the wife wishes to
return before the end of ʿiddat, then that annulment could be taken as a talāq-i
rajaʿī, which means that she can return without the need to remarry. If the qāzī
regards it as talāq-i baʾin, then the annulment is final and another marriage
would be necessary. Thānavī here mentions the theologian Allāma Saleh who
preferred the first option in which the annulment is talāq-i rajaʿī. Thānavī also
agrees with this position and adds that even if the wife doesn’t wish to return
to her husband, she will have to stay in the house because in the case of talāq-i
rajaʿī, the woman’s consent is not important.162
In the fifth type of annulment, the husband has left the wife and is living
separately. As in other cases, Thānavī starts with two questions. First is if hus-
band has left but his address is known and he never visits his wife, doesn’t
159 Ibid., 69.

160 Ibid., 73.
161 Ibid., 74.
162 Ibid., .74.
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care for her expenses and doesn’t wish to divorce her, how can separation be
ensured so that the wife can remarry legitimately. The second question is after
the annulment, if that man returns and agrees to live with his wife and takes
care of her, should that wife return to her first marriage. For the first question,
the best way according to all schools is that husband should agree to a khulaʿ.
If he doesn’t but nevertheless both wife and husband agree to live separately,
that is the best option. But if she can neither live separately nor any of her
relatives can take care of her, then according to Mālikī law, she appeals to the
qāzī, establishes that she is her legal wife through witnesses and claim that
she can’t support herself.163 The qāzī should ask the husband to present him-
self and respond to all the claims of the wife. If after a month, the husband
doesn’t respond, the qāzī can annul the marriage. The qāzī’s message cannot be
delivered via postage to the husband but through two individuals as witness-
es who insist that the husband respond. If the husband lives far away where
the two witnesses cannot reach him, then the qāzī launch his own enquiry
to investigate the claims of the wife. If the husband returns, there could two
situations. First, if he returns within the ʿiddat period and agrees to take care
of the wife, he retains his status. But if he returns after the ʿiddat period is over
and successfully falsifies his wife’s statements and claims, then too husband
retains his status even if the wife had remarried and had children. If the wife
remarried, only the first marriage to the previous husband will hold true and
the second marriage will become invalid. The wife then must complete ʿiddat
for the second nikāh and resume her first marriage. During the ʿiddat period,
she can go to her first husband’s house. The second husband will have to give
his wife full mahr but if the marriage wasn’t consummated, payment of mahr
isn’t necessary. On the other hand, if the husband is unable to refute his wife’s
claims after return, marriage is annulled.164
Thānavī’s discussion of Mālikī law illustrates that ʿulamāʾ were willing to
accommodate demands for marital separation under some conditions. As the
analysis above demonstrates, however, the marital annulment can only be se-
cured by qāzī or by a Muslim jury under the guidance of educated theologians,
who decide if the complaints and claims of the wife are legitimate grounds for
divorce. Thus, Thānavī’s attempts to provide space for divorce according to the
precepts of Mālikī law opens up possibility for women to initiate divorce but
still keeps it restrictive, conditional and not autonomous for women. Thānavī’s
reasoning that full autonomy cannot be given to the wife because of women’s
163 Ibid., 77.

164 Ibid., 78–79.
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276 Chapter 5
weak reasoning skills also shows that the patriarchal framework was not com-
pletely abandoned. Thānavī’s rhetoric thus stands in contrast to the debates in
women’s magazines that raised issues of power and respectability in advocat-
ing for marital annulment for women. Thānavī’s consultations, nevertheless,
with ʿulamāʾ from Hijaz and his incorporation of Mālikī law for Sunni Hanafī
followers in colonial India during the early 30s provided critical support for the
passing of dmm Act.
The Act had already received support from Saiyid Imtiyāz ʿAlī Tāj when it
was first introduced in the Assembly and was welcomed by others when it was
ratified. Rāshid-ulKhairī was not alive when Act passed into law but Raziq-
ul-Khairī, his son, noted that his father had given speeches advocating khulaʿ,
had advised women to include the right of khulaʿ in their marital contracts
and had met with both Assembly and Council of State members to push them
in their efforts toward khulaʿ.165 Along with other advocates, Bashārat Ahmad
was present in the gallery of spectators when the bill was passed in the Assem-
bly. He insisted that the bill did not represent ‘progress’ for Muslim women but
only adherence to Islamic norms that had been violated till now. He hoped
that similar bill could be passed for Hindu women and even suggested that
they follow the Islamic law as a template.166
A year after the passage of the Act, commentators continued to discuss
problems that women seeking divorce might face. ʿAbd-ul-Hakīm Khān not-
ed that the fees of lawyers and the court could be a serious problem for poor
women.167 To avoid this expense, he warned that poor women would remain
in their bad marriages while those with wealthy parents would have an easier
time. Furthermore the Act’s requirement that women prove their husband’s
cruelty would be a restrictive obstacle for women who practiced pardah and
weren’t familiar with bureaucratic measures. If lawyers recommend reconcil-
iation as they often do, he wrote, marriages become even worse because hus-
bands resent having wives call out their behavior and thus become harsher
in their treatment.168 ʿAbd-ul-Hakīm Khān acknowledged that the Act had an
‘ethical’ impact especially with respect to women’s rights but the impact could
only sustain if other social problems associated with women’s conditions were
also taken into consideration.169
165 Rāziq-ul-Khairī, “qanūn-i khulaʿ,” (Khula‘ law) ʿIsmat 62, no. 4 (April 1939): 252–254.
166 Bashārat Ahmad, “khulaʿ bill aur jamiʿat-ul ʿulamaʾ,” (Khulaʿ bill and Jami’at-ul ‘ulama’)
Tahzīb-un-Nisvān 42, no. 12 (18 March 1939): 241.
167 ʿAbd-ul-Hakīm Khān, “Muslim Tansīkh-i Nikāh Act,” (Muslim Marital Dissolution Act)
Tahzīb-un-Nisvān 43, no. 32 (10 August 1940): 777.
168 Ibid., 778.
169 Ibid., 779.
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7 Mahr and the Economy of Marriage
As has been seen, it was not just colonial law that had a bearing on separa-
tion and divorce but also agreements stipulated at the time of marriage. Mahr
is one of the stipulations in the nikāh that was closely intertwined with the
prospect of marital annulment. One of the most important decisions made at
the time of nikāh is to stipulate the amount of mahr that a husband pays to a
wife as part of marital contract. There are two kinds of mahr: muʿajjal, money
that is paid promptly at the time of nikāh, and muʾajjal or muvajjal, which is
paid afterwards at the husband’s convenience. Although mahr is mandatory, in
most Indian families, if the marriage lasted, it was never paid and the custom
eventually developed of the wife ‘forgiving’ the husband before his death over
non-payment of mahr.
Given the nature of the exchange involved in mahr, it was not surprising
that the bride’s family often used it to their own benefit. The amount of mahr
remained a key point of dispute in the performance of weddings in debates in
the early twentieth century. Some noted that a high mahr was desirable as a
good deterrence against a polygynous marriage as demand for high mahr could
prevent the husband from getting a second wife. A woman named Mrs. ʿAziz-
ud-dīn wrote, “It is certainly appropriate for the mahr to be high for the pro-
tection of rights of girls.”170 Wealth, she noted, enabled polygyny as rich men
considered more marriages. But “if money itself was wife’s, then how would
the husband remain boastful.”171 Some writers, however, also complained that
brides’ families took pride in securing a high mahr and that it caused inconve-
nience to grooms’ families.172 The bride’s family often rationalized the demand
for a high mahr as a long held familial custom or a form of guarantee against
the possibility of unfair divorce without regard for the wife’s feelings and with
the potential to harm their children’s futures.173 But a high mahr also increased
the possibility of failure of payment. When a high amount was fixed, some felt
that the husband and their family only agreed to the amount for the sake of
pacifying the bride’s family and never had any intention about paying it. Call-
ing such practices sinful, they argued that a high mahr was encouraging false
intent and neglect of religious duty.174
170 Mrs. ʿAziz-ud-dīn, “mahr,” Tahzīb-un-Nisvān 13, no. 51 (17 December 1910): 601.
171 Ibid., 602.
172 Mrs. Maulvī Muhammad Zakī Unnavī, “mahr,” ʿIsmat 7, no. 2 (August 1911):12.
173 Ibid., 13.
174 Ibid., 14.
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278 Chapter 5
The possibility of the non-payment of mahr was an oft-repeated argu-

ment against high mahr and directed at brides’ families. Khvāja Muham-
mad Aslam argued that demanding a high mahr increased the probability
of non-payment. He felt that the best way to resolve the predicament of one
family demanding a large sum and the other trying to keep it small was to
base it on the material capacity of the husband and not the wishes of the
wife’s family.175 Any mahr that was not in the husband’s capacity to pay, he
says, becomes invalid, and when mahr was invalid, the marriage was not le-
gitimate.176 He added that mahr should be made a ‘marriage tax’ and paid
monthly or yearly according to the husband’s ability. A moderate mahr also
made sure that wives were not compelled to ‘forgive’ it and husbands re-
mained bound to pay.177
Women wrote back to refute the idea of mahr based on the husband’s abil-
ity to pay. They objected to Muhammad Aslam’s labeling of high mahr as in-
valid and his characterization of such marriages as illegitimate. Regardless of
the husband’s status, they asserted that any amount of mahr was valid and
a low value did not make the marriage legitimate.178 They also dismissed the
idea of considering a man’s ability to pay, saying that the command in Islam is
that the amount of mahr is the decision of the wife, not of the husband, and
that the law has dictated the acceptance of that amount by all parties. If the
husband cannot pay an amount asked by a particular woman, then he must
marry someone who would agree to a lesser amount.179 Other women felt that
it was absurd to ask wives to lower mahr while ignoring other emerging social
conditions such as increasing consumerism and commercialism. According
to them, men routinely asked for the latest and most expensive fashions for
their weddings, and most men hardly followed a pious life but never hesitated
to raise elaborate claims of husband’s ability to pay when it came to mahr.180
They felt that it was better to stipulate an amount based on the wife’s wishes
and they could wait for the husband’s financial condition to improve and get
the money later.181
These debates about mahr raised questions about the legitimacy of mar-
riage and the authority of the bride to make decisions about the marital
175 Khvāja Muhammad Aslam, “mahr,” ʿIsmat 8, no. 3 (March 1912): 57–58.
176 Ibid.,58.
177 Ibid.,60.
178 H.T Begam, “mahr,” ʿIsmat 8, no. 6 (June 1912): 77.
179 Ibid.,77.
180 Kh. B, “mahr,” ʿIsmat 7, no. 6 (December 1911): 39.
181 Ibid., 40.
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contract. Women continued to dispute Muhammad Aslam’s categorization of

‘invalid mahr’ and ‘illegitimate marriage.’ They argued that mahr was neces-
sary because of marriage rather than marriages depending on mahr.182 Insist-
ing on the wife’s authority to decide upon mahr, they said that if husband’s
capacity had predominance over wife’s wishes, then mahr would be settled
based on the past mahr traditions of the husband’s family and not of the wife’s,
which was the norm.183 They added that in cases of high mahr, the wife could
lower the amount due afterwards, or even ‘forgive’ it if she wished, but it was
highly unlikely that the husband would later give an amount higher than the
one stipulated during the wedding, even if he had the financial means to do
so.184 On the other hand, some said that high mahr was a violation of ‘men’s
rights.’185 A high mahr, one columnist said, was destroying numerous families.
If a wealthy husband died, the wife inherited all wealth as part of mahr, leaving
the husband’s other family members poor. If the wife had died before husband,
then the wife’s family claimed the husband’s wealth as mahr, leaving him and
his immediate family members helpless.186 Mahr should be fixed based on
wife’s status and family, and not on the husband’s means. In response to the
article, Zafar Jahān Begam agreed that a high mahr that could not be paid was
not very helpful for the marriage. But she pointed out that mahr must be based
on the husband’s means because it was his prerogative to pay, and not on the
basis of wife’s wealth or rank.187 She also disagreed with the idea of considering
wife’s wealth, saying that she advised all her family relatives that those who
enquire into prospective wife’s wealth were selfish families that should not be
considered for marriage.188
After the first quarter of the twentieth century, discussions about khulaʿ and
divorce intersected increasingly with debates on mahr. In one of his articles op-
posing khulaʿ, Mahmūd Ahsan Siddīqī argued that khulaʿ was sometimes more
harmful than beneficial for women. He pointed out that under terms of khulaʿ,
a wife must return her mahr after separation. Given the poor state of educa-
tion and skills among Muslim women, this could leave women economically
182 M.B, “mahr,” ʿIsmat 8, no. 1 (July 1912): 9.

183 Ibid., 10.
184 Ibid., 13.
185 M.A Samd. “khavātīn se shikāyat,” (Complaint with women) Tahzīb-un-Nisvān 32, no. 34
(24 August 1929): 836.
186 Ibid., 836.
187 Zafar Jahān Begam, “khavātīn se shikāyat,” (Complaint with women) Tahzīb-un- Nisvān
32, no. 39 (28 September 1929): 937.
188 Ibid., 938–939.
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280 Chapter 5
bereft.189 Siddīqī noted, “Khulaʿ does not cause that much harm to men as
it does to poor women.”190 In response, Bashārat Ahmad said that return of
mahr in khulaʿ was not necessary but contingent upon other conditions. The
Qurʾānic principle, according to Ahmad, is that after any marital separation,
the wife should not be asked to return mahr.191 There were some circumstanc-
es, however, when this did not hold true. In cases of khulaʿ, he writes, “The
woman claims that man is the oppressor or that he has not fulfilled her rights
in marriage, but it is also possible that the woman’s allegations are completely
false and she wants separation for some other reason” adding “or she is also
at fault.”192 In such events, it would be unfair for the husband not to ask for
return of mahr and still separate from his wife. Bashārat Ahmad adds that the
return of mahr was permissible even in such conditions, though not necessar-
ily a requirement. To insist on return of mahr when husband was guilty of bad
conduct was an act of “clear coercion and oppression.”193 He also added that it
was surprising that the fear of the return of mahr was being stoked in debates
on khulaʿ when it was only “in exceptional and rare circumstances that mahr
is paid.” If a people who paid mahr dutifully made this objection, he said, it
would be acceptable, although not fully valid. But “the objection that women
will be unable to support themselves if they do not get mahr is extremely inap-
propriate and laughable in a country where mahr is agreed to only in the belief
that it will be forgiven on the husband’s death bed.”194
The debate between Siddīqī and Ahmad indicates the complexity involved
in promoting khulaʿ. Siddīqī’s objection that khulaʿ is not favorable for women
and that it harms them financially because they would have to return mahr
could not be completely refuted by Bashārat Ahmad’s shaky statements about
determining who is ‘at fault’ in a failing marriage. At the same time, Ahmad’s
response that concerns over mahr in khulaʿ were ‘laughable’ is not far-fetched
given that payment of mahr in Indian society was generally forgiven, and actu-
al payment was unusual.
Women considered the non-payment of mahr to be a problem and contin-
ued the discussion about the amount of mahr. One Nādir Jahān Begam Tahira
189 Mahmūd A. Siddīqī, “khulaʿ par kuchh aur,” (Some more on khulaʿ) Tahzīb-un- Nisvān 33,
no. 7 (15 February 1930): 153.
190 Ibid., 154.
191 Bashārat Ahmad, “kya khulaʿ men mahr ka sāqit honā zarūrī hai,” (Is it necessary to forego
mahr in khulaʿ) Tahzīb-un-Nisvān 33, no. 14 (5 April 1930): 319.
192 Ibid., 320.
193 Ibid., 321.
194 Ibid., 321.
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proposed a few solutions. She noted that few wives had the gall to demand
the actual payment of mahr when it was not the norm, and those who did
were labeled “free and disobedient.”195 As a fix, she argued that mahr must be
set based on husband’s financial situation. To ensure payment, he could pay
the amount in installments after marriage by putting the money in his wife’s
bank account. If the family were involved in agriculture, a plot of land could
be loaned to the wife to be returned once the payment of mahr is complete.
Another option that she proposed was that if the husband was already earning
when the marriage was arranged, he could start payment of mahr as soon as
the proposal is considered formal and finish on the day of the nikāh.196 These
steps would ensure, she added, that mahr is not seen as something that exists
only on paper.197
Readers who responded to Nādir Jahān’s essay agreed with some of its sug-
gestions and rejected others. Mumtāz Ahmad Fārūqī, from Calcutta, noted that
mahr is “a woman’s right and the husband should adhere to it when he can.”198
He agreed with idea of payment in installments but felt that in case of unex-
pected death, the method was not very reliable. Therefore, he suggested, every
husband should get life insurance based at least on the value of mahr and to
the maximum of his financial means. He also advised women that they should
keep the money received as mahr exclusively for themselves and not spend it
on their husband’s or children’s wishes.199 Another woman, Sāliha Khātūn, not-
ed that she considered mahr to be a reliable means for “oppressed, weak and
voiceless women” to stay married. Without mahr, men would find the smallest
excuse for divorce. This was especially true if amount of mahr were low and
easily payable.200 Mahr thus had to be high enough to ensure that husbands do
not easily divorce their wives.201 Another writer, Jamīla Hāshmī, said that mahr
was kept high only for appearances and that a high mahr was unfair for the
husband. The idea of paying mahr in installments also made little sense since
it placed unnecessary financial strain on a marriage in addition to the usual ev-
eryday expenses.202 Some insisted that mahr must be kept low just so that this
195 Nādir Jahān Begam Tāhira, “mahr,” Tahzīb-un-Nisvān 34, no. 52 (26 December 1931): 1309.
196 Ibid., 1309.
197 Ibid., 1310.
198 Mumtāz Ahmad Fārūqī, “kuch mahr ke mutaʿalliq,” (A few things related to mahr) Tahzīb-
un-Nisvān 35, no. 3 (16 January 1932): 59.
199 Ibid., 60.
200 Sāliha Khātūn, “mahr,” Tahzīb-un-Nisvān 35, no. 4 (23 January 1932): 77.
201 Ibid., 78.
202 Jamīla Hāshmī, “kuch mahr ke mutaʿalliq,” Tahzīb-un Nisvān 35, no. 5 (30 January
1932): 99–100.
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282 Chapter 5
basic right of the wife could be fulfilled. One writer said that she had once been
shocked to discover at a wedding that the husband earned only sixty rupees a
month but the mahr was more than a hundred thousand ruppees. When she
inquired about this discrepancy, she was informed that high mahr was a family
custom and a mahr is fixed to ensure that wife can exercise control and pres-
sure on the husband, not for actual payment. A high mahr could prevent the
male abuse of divorce. The author disagreed with this view calling it contrary
to Sharīʿa because mahr was compulsory payment and not a choice.203
Tahzīb-un-Nisvān eventually received so many columns that the editors de-
cided to publish a summary of them instead of publishing each one separate-
ly. Some supported the suggestions made by Nādir Jahān but felt that mahr
should be low and realistic so that it is paid. Others criticized the insistence
on immediate payment of mahr on the grounds that when mahr is paid im-
mediately, it belongs to the bride’s parents and not to the wife.204 Some writ-
ers noted that no matter what the mahr is, it would create problems in a bad
marriage. Amat-ul-Vahī, from Delhi, mentioned two cases where the mahr was
used to harass the wife. In one, after many years of an abusive marriage, the
husband divorced his wife but kept the custody of his infant son. After several
deliberations between the two families and pleas of the wife, he agreed to give
the wife and her family custody of the son, only if the wife forgave the mahr.205
In another case, a well-educated husband had a polygynous second marriage
and would neither divorce his first wife nor stay with her. He divorced her on
the condition that she renounce her mahr.206 Amat-ul-Vahī insisted that mahr
should be low but also advocated for wife-initiated divorce. If the husband has
not stayed with his wife for three years and the wife is unhappy, the marriage
should be considered over. The wife should then have the right to divorce and
also receive her mahr upon the annulment of marriage.207 Commenting on
the general condition of women, she said, “Muslim women today having been
deprived of all their rights either change religion or are inclined to freedom. Or
they are living sorrowful lives.”208 As evident in Amat-ul-Vahī and Khairī ear-
lier, female apostasy and women’s freedom were inextricably associated with
divorce, khulaʿ and mahr.
203 A. S sāhiba, “mahr,” Tahzīb-un-Nisvān 35, no. 6 (6 February 1932): 119–120.

204 Editor et. al, “mahr,” Tahzīb-un-Nisvān 35, no. 7 (13 February 1932): 160–162.
205 Amat-ul-Vahī “talāq aur mahr,” (Divorce and mahr) Tahzīb-un-Nisvān 36, no. 45 (11
November 1933): 1089.
206 Ibid., 1090.
207 Ibid., 1091.
208 Ibid., 1090.
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As the debates suggest, women often secured a high mahr to ensure that the
husband did not divorce his wife on a whim but a high mahr did not always
work in the wife’s favor when it came to securing marital happiness. Besides
the arbitrary nature of divorce, women also worried about being trapped in
bad marriages if their husbands refused to give them a divorce. A common
reason for this stubborn conduct, women complained, was that if the mahr
was fixed at an amount too high for the husbands to pay, and a divorce oc-
curred, they would simply not grant them a divorce. This critique is particu-
larly important because despite all the conversation on ensuring proper sums,
the convention in Indian society was that mahr was usually paid in cases of
divorce and ‘forgiven’ otherwise. Thus mahr became an instrument of both
safety and entrapment for women. A high mahr enabled them to restrict arbi-
trary divorce (a right that they did not have under Hanafī law), but at the same
time, it also trapped women in troubled marriages.
8 Ethical Dilemmas: Non-Legal Familial Conflict
While debates on how to secure marital annulment continued in magazines

and the courts, instances of separation that did not necessarily involve divorce
or khulaʿ were not uncommon. “Family” involved a whole set of relations and
networks in addition to husband and wife, and conflicts and disagreements
between parents-in-law, uncles, aunts, nieces and nephews along with other
relatives could also result in separation of family. These issues were also taken
up in women’s magazines and Urdū novels. In his novel, Husn-i Muʿāsharat,
Bashīr-ud-dīn Ahmad presents an example of ‘incompatible’ couple in the
characters of Farkhunda and his ill-educated wife, Lādlī Begam. Farkhunda is
a well-educated male employed as a Deputy Collector in the town of Meerut.
Lādlī Begam, on the other hand, is ignorant, uneducated, arrogant and lazy.209
She has fights and arguments not only with her husband but also with Sardār
Begam, her mother-in-law. Showing little proclivity for self-improvement, she
leaves her parents-in-law to live with her mother. For two years, she and her
husband live separately. Not surprisingly, since it was Lādlī Begam who exited
the relationship, she and her family are condemned by Bashīr-ud-dīn Ahmad.
He describes Lādlī Begam’s mother as someone who “would have arranged a
divorce for her daughter but not arrange a reconciliation with Farkhunda.”210
209 Bashīr-ud-dīn Ahmad, Husn-i Muʿāsharat (1914), 52–64. (Press Unknown).

210 Ibid., 100.
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284 Chapter 5
Expressing his views more clearly on divorce and separation, Bashīr-ud-dīn

Ahmad puts the blame for the collapse of the marriage squarely upon Lādlī Be-
gam and her family. When Farkhunda’s mother suggests that he approach Lādlī
Begam and reconcile, he rejects her advice and refuses any efforts towards rec-
onciliation saying that Lādlī left “without my permission and was autonomous
(khud-mukhtār).”211 As the days and months pass, however, Lādlī Begam begins
to miss marital bliss and feel lonely in her mother’s home. Her health deterio-
rates and she finally realizing her mistake, returns to Farkhunda. But instead
of establishing a new home, Lādlī Begam dies of cholera a few months after
reconciling with Farkhunda.212 The guilty in Bashīr-ud-dīn Ahmad’s novel is
not just Lādlī Begam but her mother as well and she influences her marital
decisions more than Lādlī herself.213
Women writers also projected tales in which relationships with parents-in-
law or other family members are the source of familial separation and divorce.
In 1931, Fātima Begam, editor of Sharīf Bībī, published Ghairat kī Putlī (Portrait
of Honor) that placed care of elderly members of the family at the center of a
successful marriage.214 In the novel, Samiʿ-ud-dīn (Samīʿ) who comes from a
family of Saiyid lineage but little wealth, is married to Najm-un-nisāʾ (Najm).
Samīʿ’s mother hopes that dowry will bring considerable wealth to restore their
old crumbling mansion.215 But Najm’s father is unable to gather enough money
and Samīʿ’s family agrees to the match, treating Najm coldly and eventually
forcing her to leave.216 Najm leaves a note to Samīʿ saying she will return only
when the money her father promised is paid. Unable to cope with the shock,
Najm’s father commits suicide.217 Before his death, however, he insists that
Najm should never return to her husband or her parents-in-law. Her family
sells all their property, managing to get 9000 rupees, and moves to Lahore,
where Najm and her siblings pursue an education under different names.
After Najm’s departure, Samīʿ’s parents marry him to Ashrafī Khānam,
daughter of a wealthy courtesan who brings considerable wealth to the
211 Ibid., 101.

212 Ibid., 114.
213 In the second part of the novel, Farkhunda remarries and his second wife, Maʿsūma is,
unlike Lādlī, skilled at managing her home and an avid reader of magazines like Tahzīb-
un-Nisvān, ʿIsmat and Tamaddun, and authors like Nazīr Ahmad, Altāf Husain Hālī and
Shiblī Nuʿmānī along with texts like Muhammadī Begam’s Rafīq-i ʿArūs. Ibid., 140–157.
214 Sharīf Bībī was founded in 1910 and edited by Fātima Begam, daughter of Mehbūb ʿĀlam,
editor of Urdū newspaper Paisa Akhbār.
215 Fātima Begam, Ghairat kī Putlī (Delhi: Mahbūb-ul Matābiʿ Barqī Press, 1931), 6.
216 Ibid., 9–14.
217 Ibid., 16.
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family. But she is unable to adjust to Samīʿ’s parents, whom she finds very ‘old-
fashioned.’ Fātima Begam portrays Ashrafī as arrogant who does not respect
Samīʿ’s parents and is proud of her wealth.218 With such an attitude, Samīʿ’s
parents begin to miss Najm and Samīʿ’s mother particularly realizes that she
had been greedy and rude. Situation deteriorates further when Samīʿ’s father
dies and Ashrafi shows little grief or attachment to the family’s tragedy and
moves to Lahore. When Samīʿ and his mother, Naʿīma, join Ashrafī in Lahore,
she insists that Naʿīma live separately from them and that she is a hindrance
to their marriage. Though Samīʿ worries that it will be difficult for his mother
to live alone as a widow, Ashrafī’s opinion prevails and Naʿīma moves back to
their old town.219 This separation of Samīʿ and Naʿīma proves disastrous for the
marriage and Samīʿ comes to believe that Ashrafī does not care for his mother.
He secretly arranges for a separate apartment for his mother and visits her ev-
eryday after work. When Naʿīma falls ill and needs medical care, Samīʿ decides
that he cannot live with his wife and that he will divorce her. When Ashrafī
hears of the divorce, she is shocked because she felt that their conjugal life had
no apparent problems except for her stresses with her mother-in-law.220 The
central pivot of the conflict between Samīʿ and Ashrafī is her inability to take
care of his widowed mother and her lack of effort to build a relationship with
her mother-in-law.
Meanwhile none other than Najm, who trained to be a doctor after her sep-
aration from Samīʿ and is now known as Anjum Ārā, treats Naʿīma to better
health. Upon seeing her again, Naʿīma asks for, and receives, forgiveness from
Anjum Ārā.221 It is revealed that Anjum Ārā has a son, Nūr-ud-dīn, fathered by
Samīʿ, who is being raised by Anjum’s mother.222 In the end, Samīʿ, Nūr-ud-dīn
and Anjum start living in Lahore as a family, in which both Samīʿ and Anjum
are working parents.223
Issues arising from conflicts and maladjustment with various family mem-
bers point to the urgency of understanding marriage not as a bond between
two people but as a set of obligations and attachments to other individuals and
whole network of associated relatives, friends and sometimes even clan. Some
218 Ibid., 18–22.

219 Ibid., 25–30.
220 ibid., 48;53.
221 Ibid., 55.
222 Ibid., 59–60.
223 Ibid., 62. Samīʿ divorces Ashrafī and sends her a letter saying that she had caused him and
his mother deep pain and sorrow through her conduct and that no relation was possible
between them.
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writers considered this web of ties a problem that damaged relationships be-
tween husbands and wives. Perhaps the most well known source of conjugal
conflict for young wives living in extended family settings in Indian society was
establishing good relations with husband’s family particularly mothers-in-law
or sisters-in-law. Describing it as a custom peculiar to Indian society, Shaikh
ʿAbdullāh writes that making young brides live under the “influence and gov-
ernment” of mothers-in-law and sisters-in-law was a disturbing custom and
concluded that it was the worst problem facing married women.
ʿAbdullāh notes that this animosity is ‘natural’ because mothers-in-law or
sisters-in-law who have always had full authority over the man must share it
with someone new.224 He says that brides spend long periods suffering due to
the cruelty of mothers-in-law and sisters-in-law. This despair is then passed
onto children and can cause the child to become irritable and depressed.
Bringing child-rearing into the conversation, he says, “All day and all night,
mothers-in-law fight with daughters-in-law and bring grief to her heart due to
which her life is made miserable, and the children are raised poorly.”225 As a
solution, he suggested that the couple should live separately from other rela-
tives like in the West. He notes that the bride should be the master of her home
and wishes that in “Hindustān she should have full freedom in her husband’s
home and should become master of everything on her own.”226
Hāmidullāh Afsar disagreed with Shaikh ʿAbdullāh claiming that the eco-
nomic conditions of Muslims did not permit the existence and management
of two separate households. If, for instance, the man was not employed at the
time of his marriage and was living with his parents, it would be extremely
difficult for the parents to simultaneously pay for two households if the hus-
band and new bride wished to live separately.227 Implementing such advice,
he noted, was nearly impossible for most households; more importantly only
“an oppressive and cold-hearted man would agree to abandon his mother and
younger sisters or brothers for his wife, and even if he does abandon them,
what can the wife expect from such a irresponsible man”228 But the biggest
difficulty in establishing a separate home was the daughter-in-law’s youth and
lack of experience. Most newly married women, he said, would not be able to
224 Shaikh ʿAbdullāh, “social islāh kī zarūrat,” (The necessity of social reform) Tahzīb- un-
Nisvān 32, no. 26 (29 June 1929): 597.
225 Ibid., 578.
226 Ibid., 599.
227 Hāmidullāh Afsar, “aik aham social islāh kī zarūrat,” (The necessity of an important social
reform) Tahzīb-un-Nisvān 32, no. 28 (13 July 1929): 680.
228 Ibid., 680.
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manage a household independently and they needed better education. Fur-

thermore, pardah ensured that many of them were unfamiliar with the world
and needed help of adults to start their family life.229
What emerges from Hāmidullāh Afsar’s response is that the rise of nuclear
family structure would actually strengthen the norm of domesticity for new
wives. Reformist patriarchy therefore was further entrenched as Indian society
transitioned from extended family structure to the nuclear family unit, com-
prised of the couple and their children. Hāmidullāh Afsar then takes Shaikh
ʿAbdullāh to task for citing the US and Europe as examples, insisting that it is
blind imitation and that ignores their better economic conditions, their social
structures that allow women to work and marry at a mature age of 25, and the
presence of numerous associations and societies for the welfare of the poor
especially widows.230 He ended the article with the note that education and
not separation of families was the solution to the problem of familial discord.
Zafar Jahān Begam criticized Hāmidullāh Afsar, and particularly his argu-
ment about the poor character of a husband who abandons his mother or sis-
ter for his wife. She wrote, “I ask: if leaving younger siblings or a mother for
the wife is cold-heartedness and oppression, does not the wife have siblings
and her own mother? She leaving her siblings and mother for the husband
is also cold-heartedness and oppression. But the world continues this.”231 She
added that just as nothing can be expected from a husband who abandons
his family, similarly nothing should be expected from the woman who must
abandon her loved ones for her husband. Nobody wants men to abandon their
duties towards their parents but she said that it was possible to fulfill all the
“rights of parents and siblings” while living separately.232 She mentioned that
the purpose of marriage was to ensure that men and women leave the tutelage
of their parents to begin their own life. It was a huge mistake to force marriage
on them when the man could not earn to give mahr or support his wife, and
the wife could not manage the house.233 Zafar Jahān also argued that repeating
claims about women’s education as a solution to problems of familial distress
were not useful because a young daughter-in-law who was aware of her rights
would not be able to adjust to her mother-in-law who is ‘ignorant’ and does
not understand her condition. As for “parents’ rights,” she added that it was the
229 Ibid., 681.

230 Ibid., 681.
231 Zafar Jahān Begam, “aik aham social islāh kī zarūrat” (The necessity of an important
social reform) Tahzīb-un-Nisvān 32, no. 34 (24 August 1929): 829.
232 Ibid., 830.
233 Ibid., 831.
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288 Chapter 5
duty of sons to fulfill them, but if they could not follow through on this duty,
daughters-in-law were not at fault because they were not responsible for the
upbringing of those sons.234
A woman named Jaudat Khānam, from Travancore, also took side with
Shaikh ʿAbdullāh against Hāmidullāh Afsar saying that the problem of poverty
could be solved easily if the man married only when he was employed. She
insisted that parents forced marriages on young men in most cases before their
employment. She also questioned Afsar’s notion of abandonment of mother
and younger siblings by the husband saying that separating from one’s fam-
ily did not mean severance of all ties and that if it was indeed cold-hearted
abandonment, then he must consider it compassionate to destroy the life of an
underage girl who is forced to carry out the orders of her mother-in-law.235 She
argued that mothers-in-law were most responsible for the discord between
husbands and wives for they continually picked at the flaws of their daughters-
in-law and reported them to their sons.236 Taking living separately as an ideal
solution for conflicts within families, she noted that her family always had the
policy of living separately to prevent discord because of which all her sisters
and their mothers-in-law had affectionate relationships.237 She also added that
education did not redress these problems because it took time; as long as peo-
ple were not educated enough, such malaise would continue in families and an
alternative for the present was urgently needed.
Zafar Jahān Begam followed this debate with another article defending
her position. She wrote that it was pointless to blame either mother-in-law
or daughter-in-law for family quibbles but that the fault lay with society. She
noted, “There can never be a solution to this misery till they do not stop liv-
ing together” adding that “there can be no greater happiness for parents than
to see their children comfortable and happy and if happiness can be had in
separation, then there is no reason to not draw benefit from it.”238 Under such
circumstances, she noted that they will not see each other every day but when
they will, they do see each other, they meet with regard and affection. Afzal Be-
gam, from Sindh, responded to say that most of the conflicts between mother-
in-law and daughter-in-law were caused by mother-in-law’s desire to control
234 Ibid., 832.

235 Jaudat Khānam, “aik aham social islāh kī zarūrat,” (The necessity of an important social
reform) Tahzīb-un-Nisvān 32, no. 30 (29 July 1929): 717.
236 Ibid., 718.
237 Ibid., 719.
238 Zafar Jahān Begam, “hamārī muʿāsharat,” (Our society) Tahzīb-un-Nisvān 29, no. 47 (20
November 1926): 774–775.
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the life of her daughter-in-law and prevent freedom and intimacy between her
son and his wife. She noted that this was so because when boys reach adult-
hood and marry, they are unable to provide as much care and devotion to their
elderly parents; they now have wives and children to attend to, leaving the par-
ents with a sense of disappointment and betrayal.239 Caught in between, the
husbands can neither support their wives nor their mothers.
Another feature of this conflict, she noted, was that young girls were not
prepared for marriage and often married into completely unfamiliar families
where they had to adjust quickly to new norms of living.240 Endorsing separate
living, she wrote that the “meaning and intent of marriage is that a boy and a
girl establish their own separate home and freely present their own ways of
living and management.” Highlighting oppression by women, she noted, “It is
sad that it is a woman who is always the cause of oppression to woman, wheth-
er she be in the guise of mother-in-law or sister-in-law or daughter-in-law or
co-wife.”241 She concluded with a plea for affection between family members
particularly between mothers-in-law and daughters-in-law.242
More women wrote to Tahzīb-un-Nisvān to address the issue of living sep-
arately. Zakiya Khātūn wrote that the conflict between daughter-in-law and
mother-in-law existed because daughters-in-law felt they “had no authority or
claims (haq) over the home, and that they were strangers or maid-servants.
And in the presence of sisters-in-law and mothers-in-law, one would have to
spend all their life as subjugated.”243 In addition to education, she felt that
daughters-in-law should also know that they have a full authority over their
homes and can manage them without interference. Zakiya Khātūn also felt
that there were other advantages to living separately. For example, as a result
of separate living, it was highly unlikely that young girls would be forced into
marriage at young age curtailing the problem of child marriage.244
Although separate living was offered as an example for a discord-free home,
some wrote that separate households was not a feasible option for most Mus-
lims in the country. Bashārat Ahmad made this argument in his critique of
Shaikh ʿAbdullāh accusing him of elitism. He agreed with Shaikh ʿAbdullāh
239 Afzal Begam, “aik aham social islāh kī zarūrat,” (The necessity of an important social
reform) Tahzib-un Nisvān 32, no. 32 (10 August 1929): 773–774.
240 Ibid., 774.
241 Ibid., 776.
242 Ibid., 776–777.
243 Zakiya Khātūn, “social islāh kī zarūrat,” (The necessity of social reform) Tahzib-un- Nisvān
32, no. 35 (31 August 1929): 844.
244 Ibid., 845.
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290 Chapter 5
that separate living was a way to resolve conflicts in the home but added that
Shaikh ʿAbdullāh was accustomed to the university society at Aligarh and “can-
not imagine the state of poverty and penury among Muslims. The average sit-
uation is that one person earns and ten eat” adding, “wife and children, elderly
mother and father, brother and sister; the source of everybody is related to the
life of one person. Therefore, sometimes, when this one person dies, whole
families get devastated.”245
Bashārat Ahmad also said that comparisons with the West were completely
inappropriate because women had earning capacity in those societies; to ex-
pect an elderly woman from a sharīf background in India to support herself
and another household was not practical or acceptable. A son managing two
separate households was also unacceptable and would put too much financial
strain on him. It was possible in most Muslim families, according to Bashārat
Ahmad, to live in one household and still manage financially. He says, “The
struggles of living nowadays leave even the best distraught. Thus, for a man of
middle class, to carry the burden of two households is not just difficult but also
impossible.” Arguing further against separate living, he said that the son could
set aside some amount of money for mother and sister, say twenty rupees out
of 100, says Ahmad but then adds that “if he thinks that giving twenty rupees
to his mother and sister involves fulfilling their rights, then there can be no
greater oppression than this.” Such a living, Ahmad added, would not “take
the community to any high ethics. But it will put them on the path of egoism
and selfishness, destroying Islamic generosity and the self-sacrifice of excellent
ethics. After all, there is also something called ethics in this world.”246
As is evident, the question of living separately to avoid conflicts between
daughters-in-law and mothers-in-law was very much rooted in the idea of an
‘ethical’ family and those like Bashārat Ahmad, who otherwise advocated khu-
laʿ for women, felt that any kind of separate living that collapsed the extended
family structure upon which obligation and duty rested was a destruction of
ethics. In today’s world, Ahmad wrote, one could not expect any kind of care or
attention for older parents if they were to live separately from children, since
even wives within the same home complain that husbands do not attend to
them. Adding that older people need as much care as children, he says that to
abandon them “for a Muslim son is to damn both religion and the world.”247
Illustrating his point further, Bashārat Ahmad identified two major causes for
245 Bashārat Ahmad, “aik aham social islāh kī zarūrat,” (The necessity of an important social
reform) Tahzīb-un-Nisvān 32, no. 38 (21 September 1929): 917.
246 Ibid., 918.
247 Ibid., 919.
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this conflict within extended families: one was the mothers’ unrealistic ex-
pectation about their sons and the other was the wife’s lack of respect for her
husband’s relatives.248 Other reasons for this acrimony were inter-generational
conflicts between daughters-in-law and mothers-in-law involving disputes on
everything from fashion to home to child rearing.249 He noted that this conflict
could not be resolved till both mother-in-law and daughter-in-law had proper
rearing and cultivated good ethics.250
As the debates about separate living suggest, conflicts within the family of-
ten involved issues of obligation to family members, and especially to elders
who were expected to have greater social authority. Problems experienced by
wives and young brides in their marital homes were viewed as larger issues of
women’s rights but parents’ rights also carried weight in these debates. The
framework of family ethics in Urdū discourse thus dictated how familial dis-
cord was discussed and how it could be resolved. The economic discussion
in Bashārat Ahmad’s article, among others, highlights how financial security
affected the ways families organized their lives, and shows that concerns of
poverty could not be disentangled from ethics.
9 Conclusion
The issues of marital annulment, separation and divorce perhaps involved the
strongest use of Islamic language in the discussion of women’s issues. As Zafar
Jahān Begam pointed out, it was a religious matter and since women were not
trained in religious jurisprudence, any legal solutions were contingent primar-
ily upon the efforts of Muslim men, of which the publication of Ashraf ʿAlī
Thānavī’s text was important. The debates on the question of marital annul-
ment were held in women’s magazines as well, and as I have shown, highlight-
ed the issue of inequality more strongly than Thānavī.
The advocacy of khulaʿ was an important corrective to the absence of fe-
male initiative of demanding divorce. Khulaʿ particularly precipitated a debate
about the norms of respectability and gendered ethics that also characterized
the larger conversation about marriage and family in the colonial period. Some
of the fear animating the discussion of khulaʿ was the threat of female apostasy
248 Bashārat Ahmad, “aik aham social islāh kī zarūrat,” (The necessity of an important social
reform) Tahzīb-un-Nisvān 32, no. 39 (29 September 1929): 941.
249 Ibid., 943.
250 Bashārat Ahmad, “aik aham social islāh kī zarūrat,” (The Necessity of an Important Social
Reform) Tahzib-un Nisvān 32, no. 40 (5 October 1929): 964.
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292 Chapter 5
and those like Rāshid-ul-Khairī and others addressed this clearly in their writ-
ing. On the issue of apostasy and marital separation, Rāshid-ul-Khairī some-
times defends religious orthodoxy whereas elsewhere, he rejects it.
The issue of mahr was closely connected to the arrangement of marriages
as well as the issue of divorce and seen by many as an instrument for female
control of marriage. As the debates however show, the stipulation of mahr and
its payment (or non-payment) had more complex consequences for wives in-
stead of merely increasing their control. In the absence of women’s initiative
to annul marriages, some felt that a high mahr trapped women in an abusive
marriage because husbands did not wish to pay that amount and thus refused
divorce while others thought that it controlled the power of husbands to ar-
bitrarily divorce their wives. Similarly, some felt that the bride’s family must
make all decisions about mahr as it is their prerogative whereas others felt
that it must be contingent upon the financial capacity of husband if it involves
actual payment and not just a false promise. Finally, issues of marital discord
went beyond the conjugal couple to include other family members and the
‘success’ of a marriage was dependent upon the relations of wives with their
husband’s family and not just him. The demands of family particularly parents’
rights and wives’ rights feature in this discussion, illustrating that ethics was at
the center of marital separation, discord and the vision of familial harmony.
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­c hapter 5

Marital Annulment and Separation of Family

Discussion of sexuality, women’s freedom, compatibility and polygyny artic-

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004438491_007 Asiya Alam - 9789004438491

studies, I closely interrogate the internal structure of Thānavī’s text to empha-

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Muslim societies as evidence of the inherently corrupt nature of Islam and

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Asiya Alam - 9789004438491

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2 Divorce and Male Authority

Commenting on the male abuse of divorce, an author identified only as

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Mumtāz Husain’s voice the critique of male Islamic prerogative to divorce

25 Ibid., 41, 42.

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3 Respectability, Equality and Marital Annulment

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generated critiques of respectability. A columnist named Bashārat Ahmad

Questioning ‘respectability,’ Bashārat Ahmad said that he knew several in-

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real world.”53 By connecting Siddiqui’s position to didactic novels, Bashārat

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The editor of Tahzīb-​un-​Nisvān simultaneously responded to all of Siddīqī’s

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4 Debating Strategies for Change

One of the critical issues in debates on khulaʿ besides denounciation of re-

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5 Women’s Freedom, Female Apostasy and Marriage

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Hashmat’s insistence on freedom in her first court appearance, it also points

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102 Rāshid-​ul-​Khairī, “irtidād kā sabab,” (The causes of apostasy) in Musalmān ʿaurat ke

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6 Two Men on Divorce: Dissolution of Muslim Marriages Act of 1939

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118 Ibid., 60.

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nikāh, during nikāh or immediately afterwards but it is best to do it before or

122 Ibid., 21–​22.

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127 Ibid., 29.

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132 Ibid., 35.

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137 Ibid., 42.

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144 Ibid., 49.

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150 Ibid., 56–​57.

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154 Ibid., 62.

c hapter 5

The editor of Tahzīb-un-Nisvān simultaneously responded to all of Siddīqī’s

102 Rāshid-ul-Khairī, “irtidād kā sabab,” (The causes of apostasy) in Musalmān ʿaurat ke

122 Ibid., 21–22.

150 Ibid., 56–57.

The possibility of the non-payment of mahr was an oft-repeated argu-

203 A. S sāhiba, “mahr,” Tahzīb-un-Nisvān 35, no. 6 (6 February 1932): 119–120.

8 Ethical Dilemmas: Non-Legal Familial Conflict

209 Bashīr-ud-dīn Ahmad, Husn-i Muʿāsharat (1914), 52–64. (Press Unknown).

Expressing his views more clearly on divorce and separation, Bashīr-ud-dīn

218 Ibid., 18–22.