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Muslim Family Law, Secular Courts and Muslim Women of South Asia

A Study in Judicial Activism

Author(s): Alamgir Muhammad Serajuddin
Publisher: Oxford University Press, Pakistan
Publication Year: 2011
Pages: 326
Edition:
Binding: Hardbound
ISBN: 9780195479683
Weight: 0
Shipment time: 2-5 business days
Subject Area
The classical Shari‘a law on family relations is based on patriarchal family organization and male privileges, leading to legal and social discrimination against women, which is incompatible with present-day notions of gender equality and social justice. The discrimination is especially pronounced in such vital matters as marriage, divorce, maintenance, guardianship and custody of children and inheritance; and yet, these are the institutions which form the bedrock of security and stability in family life. In view of the sensitiveness of the issue of family law reform, the legislative and executive organs of the state are reluctant to address these discriminations. But the courts cannot refuse to adjudicate, when social justice issues are addressed to them; for, to deny relief is to nullify the judicial process and negate justice. In an admirable display of scholarship and creativity, the South Asian judiciary has shown that, by giving a liberal and pro-active interpretation to the rules of Muslim family law, it is possible to adapt many of them to the needs of a modern society, from within the Islamic legal framework.
 

The book examines the extent to which the proactive roles of the courts have liberalized these laws; enlarged the dimensions of women’s rights; and contributed to secure equality of rights and social justice to Muslim women. The book also deals with conservative opposition to judicial law- making and locates further areas where judicial activism may be useful. As India, Pakistan and Bangladesh have inherited the same legal traditions, the book argues that they can share one another’s post-colonial experiences. Furthermore, the book finds that in the absence of legislation reflecting the ijma or consensus of the Muslim community, judicial activism is the only alternative agent of social change.

 

Alamgir M. Serajuddin is a University Grants Commission Professor in Bangladesh. He was previously Professor of History and Vice-Chancellor of the University of Chittagong. Professor Serajuddin is a Ph.D. in History from London University and Barrister-at-Law from Lincoln’s Inn. He was also a Nuffield Foundation Fellow at London University and Visiting Professor at Georgetown University, USA. He is the author of Revenue Administration of the East India Company in Chittagong; Shari‘a Law and Society: Tradition and Change in South Asia (an OUP publication); and the forthcoming Cases in Muslim Law: Text, Summary and Commentary, as well as numerous articles on South Asian history and law in scholarly journals including amongst others, Journal of the Royal Asiatic Society, London, and Journal of the Economic and Social History of the Orient, Leiden.

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