Jindal Global Law Review

COMPARATIVE FAMILY LAW

VOLUME 7, ISSUE 1, 2016

Issue Editors: Saptarshi Mandal, Sachin Dhawan

Editor's Introduction:   Religious family law and legal change in comparative perspective
Saptarshi Mandal and Sachin Dhawan  (PDF)

ARTICLES

1. The market and the family, the sacred and the secular in modern comparative law
     Veronica Corcodel
      Article (PDF) | Abstract


This paper explores the operation of the distinctions between the market and the family, the sacred and the secular in Euro-American comparative legal scholarship. It contributes to existing debates by exploring the potential of the lenses of inclusion and exclusion to address the political implications of the two dichotomies. Starting from the observation that the two distinctions are often inseparable, since market law is constituted in opposition to religious family law, it puts emphasis on the ways in which the exclusionary dimension of such construction is produced. It also shows that exclusion stands in tension with comparative law’s own promise of inclusion. In this sense, the field is reducible neither to inclusion nor to exclusion, and yet it contains both. Capturing this ambivalence in the works of some of the most important Euro-American comparatists, the paper concludes with some tentative thoughts on a critical praxis of particularism.
Corcodel, V. Jindal Global Law Review (2016) 7: 9. https://doi.org/10.1007/s41020-016-0023-x.

 

2. To ban or not to ban: Lessons for India from America’s endeavour to proscribe polygamy
      Sachin Dhawan
      Article (PDF) | Abstract


Both the United States [U.S.] and India are home to communities that practice polygamy. Given this commonality and the fact that India has often been inspired by U.S. precedent on various matters of law, it is not surprising that flagship Indian cases on polygamy are influenced by U.S. polygamy law cases. However, it will be shown that this reliance on U.S. case law is confined to archaic 19th century cases. These cases, which strictly proscribe polygamy, don’t reflect the changes of the last 60 years in favor of non-enforcement of the polygamy ban by American law enforcement officials at the state and Federal level. They are also unreflective of a recent judicial trend in the U.S. that (a) indicates a shift away from imposition of majoritarian values upon the population and (b) firmly rejects the ‘public harm’ justification of polygamy proscription. Such a justification infused the writings of the 19th century U.S. Supreme Court decisions and subsequently found expression in Indian judicial pronouncements. The paper concludes by examining the relevance of the U.S. move away from its ban on polygamy to the ongoing discussion in India over whether to ban polygamy for Muslims.
Dhawan, S. Jindal Global Law Review (2016) 7: 31. https://doi.org/10.1007/s41020-016-0025-8.

 

3. Customary law of stateless nations: Some observations on the question of who can reform the Thesawalamai, the customary laws of the Tamils in Sri Lanka
      Kumaravadival Guruparan
      Article (PDF) | Abstract


Despite the definitive trend towards consolidating the Sri Lankan state as a Sinhala Buddhist state in the post-colonial context, the legal system was left intact in its plural character. In fact, the current constitution seeks to even prevent fundamental rights provisions in the constitution from overriding customary law principles in the event of clash. However, there have been calls for reform, which have focused mainly on enacting a uniform civil code. This project of uniformization advertently or inadvertently aids the monist consolidation of the Sri Lankan state. This paper argues that the Sri Lankan Parliament and courts lack political legitimacy to amend the Thesawalamai, which the paper characterizes as pre-state law, leave alone abolishing it and enacting a uniform civil code. The legitimacy deficit of Sri Lankan institutions is built on the long history of brutal repression of the Tamil struggle for self-determination. The paper suggests that a viable, politically legitimate process for reforming the Thesawalamai can only be put in place if the national question is settled to the satisfaction of the Tamil community in Sri Lanka. It further suggests that placing the responsibility of amending the pre-state law of the Tamils in the hands of institutions which they consider to be politically legitimate and representative is the best path to reforming the Thesawalamai.
Guruparan, K. Jindal Global Law Review (2016) 7: 49. https://doi.org/10.1007/s41020-016-0021-z.

 

4. Transformations in Sharia’h family law in the Republic of Maldives
       Marlum Jabyn
      Article (PDF) | Abstract


In 2000, the codified Shari’ah family law of the Maldives, primarily aimed at regulating marriages and divorces in the country, also introduced a minimum age of marriage, restrictions on reconciliation, divorce and polygamy. Many of these as unique examples of a Shari’ah-based family law were targeted to incorporate Shari’ah family norms into a single code and at the same time address social issues in the Maldives around family affairs. This article examines the practice of family law in the Maldives, claiming that while significantly Shari’ah compliant, this area of law in the Maldives is transforming into a normative system that is guided by modern notions of rights of individuals, yet adhering to Islam, although not strictly bound by the formalistic Shari’ah rules. Through selected cases, the paper demonstrates aspects of legal reform and identifies the prospects and problems with the codified Shari’ah family law in the Maldives.
Jabyn, M. Jindal Global Law Review (2016) 7: 61. https://doi.org/10.1007/s41020-016-0022-y.

 

5. Women’s right to unilateral no-fault based divorce in Pakistan and India
      Muhammad Zubair Abbasi
      Article (PDF) | Abstract


Pakistani judges dispensed with the requirement of the consent of the husband for a wife’s right to unilaterally dissolve a marriage without assigning any of the reasons enumerated in the Dissolution of Muslim Marriages Act 1939. The Lahore HC laid down this rule for the first time in its decision in the Balqis Fatima case in 1959. Eight years later, the Supreme Court of Pakistan endorsed this rule in the Khurshid Bibi case. In 2014, the Federal Shariat Court of Pakistan declared this rule to be in conformity with the injunctions of Islam in the Saleem Ahmed case. In India, however, similar developments did not take place. Rather than extending women’s right to divorce, Indian judges preferred to restrict the husband’s right to divorce under Muslim Personal Law. The main argument in this article is that this divergent attitude of Pakistani and Indian judges toward Islamic divorce law is dictated by factors outside the law. While Pakistani judges felt obliged to reform Islamic family law in the absence of political consensus, Indian judges tried to harmonize Muslim Personal Law with other religious personal laws.
Abbasi, M.Z. Jindal Global Law Review (2016) 7: 81. https://doi.org/10.1007/s41020-016-0024-9.

 

6. Righting Saria Mudgal v. Union of India and Others
     Jhuma Sen
     Article (PDF) | Abstract


This paper presents a feminist alternative judgment or a feminist (shadow) judgment to the Supreme Court of India’s judgment in Sarla Mudgal v Union of India and Ors. This shadow judgment is inspired by the Feminist Judgments Projects in UK, Australia, Canada, and other places to radically reimagine the role of a judge to adjudicate differently by remaining faithful to the legal and constitutional rules that bind her. The project situates writing alternative judgments to judgments that could have been written better or written differently by using a feminist lens. In Sarla Mudgal, the Supreme Court was specifically called to examine the validity of a Hindu marriage between a Hindu man and a Hindu woman and the issue of bigamy by the former after contracting a second marriage with another Hindu woman by a fraudulent conversion to Islam. However, instead of putting the responsibility of bigamy on the Hindu men, the SC blamed the act on the plurality of personal laws and the lack of a uniform civil code. Sarla Mudgal is an example how misplaced judicial zeal ends up as Hindutva’s uniform civil code stick to beat minorities with. The shadow judgment, written in the form of a separate but concurring opinion, explores whether there was any possibility of denouncing bigamy of Hindu men and holding the bigamous men responsible without ascribing their bigamy as a product of Muslim personal laws.
Sen, J. Jindal Global Law Review (2016) 7: 97. https://doi.org/10.1007/s41020-016-0020-0.

 

BOOK REVIEW

7. Human Rights and State-enforced religious Family Laws in Israel, Egypt and India by

    Yuksel Sezgin
   Saumya Saxena
    (PDF)