What do everyday practices of Islamic law reveal about the political lives of minorities? I have returned to this question repeatedly in my research on Muslim communities in postcolonial India. In this series of essays, I revisit this question again by drawing on ethnographic and textual research from my current book project. First, though, some context is in order. How have scholars understood the dilemmas of minority politics, and what might these frameworks obscure?
Much of the critical literature on minority politics centers on a familiar paradox. Minority groups must turn to the state to secure rights and protections—they must be recognized by the state. But to achieve recognition, they must present themselves in ways that amplify the very differences on the basis of which they have been excluded. Saba Mahmood's Religious Difference in a Secular Age is foundational for anthropologists concerned with this paradox.[1] Her study of the Coptic Christian minority in Egypt demonstrates how secular rights regimes, rather than neutrally arbitrating religious differences, entrench them.[2] Mahmood shows that, to claim equality, Copts must choose between two unsatisfying options: performing difference or performing assimilation that denies historical injustice. Neither path is fully tenable.
The paradox is not new. Mahmood's insights build on Karl Marx's famous critique of liberal rights in On the Jewish Question. Marx argued that while political rights offer formal political equality, they leave deeper social inequalities untouched—or may even reinforce them.[3] As Wendy Brown has argued, the liberal grammar of rights depoliticizes claims, naturalizing and consolidating difference.[4]
Rights simultaneously include and marginalize—a paradox which has become a central theme of scholarship concerned with minority politics. For example, Joan Scott has shown how specific ideals about gender, sexuality, and religion presented as universal and neutral become tools of exclusion in French debates about the ḥijāb.[5]
The paradoxical work of rights rests on recognition, which philosophers,[6] political theorists,[7] and anthropologists,[8] among others, have shown to be equally cunning. To take one example, Elizabeth Povinelli has shown that aboriginal Australians seeking rights and recognition from the state had to present themselves as perfectly conforming to the state's view of Indigenous people.[9] Yet in so conforming, they were deemed inadequate for full membership in the modern state. Mayanthi Fernando's ethnography of Muslim French citizens further illustrates this cunning of recognition: in seeking rights, minorities must perform their difference, but only within acceptable bounds, and at the risk of exclusion on the basis of that very difference.[10]
India, where I conduct most of my research, has its own version of this paradox. Here, the role of law is unavoidable. Under colonial rule, religious personal laws—which apply to marriage, divorce, inheritance, custody, adoption, and succession—were partially codified as a separate domain of legal autonomy.[11] One key intervention, which arguably paved the way for the postcolonial legal structure, was the Hastings Plan of 1772. The Plan states that in cases of "inheritance, marriage, cast [sic] and other religious usages, or institutions, the laws of the Koran with respect to the Mussalmans, and those of the Shasters with respect to the Hindoos, shall be invariably adhered to."[12] This legal structure produced a durable association between religious identity and family law. Muslims came to be recognized as India's religious and national minority;[13] Personal Law symbolized its core. Despite Article 44 of the Indian Constitution, which provides that the "State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India," differential religious personal laws remain in force to this day.[14]
Religious personal laws place matters of marriage, divorce, succession, inheritance, and adoption within state-administered religious jurisdiction. Such personal laws thereby simultaneously make family matters the domain of religious authority. In this way, India's religious community-specific Personal Laws serve as a proxy for community identity and as the sphere of its leaders' authority. As a result, efforts to reform Personal Law are often read as threats to community autonomy and are met with vehement opposition by Muslim religious scholars ('ulamā').[15] This dynamic has created a profound tension: defending minority rights has often meant defending a patriarchal status quo. Meanwhile, calls to make good on the constitutional promise of a Uniform Civil Code (UCC) are regularly instrumentalized by Hindu nationalists as part of an anti-Muslim agenda.[16]
In the postcolonial decades, the debate about whether to implement a UCC continues unabated. Legislative interventions, and court cases in particular, have been the locus of these discussions. The question that has propelled debates about legislation and court cases alike is this: is Muslim Personal Law (MPL) bad for women? The debate began to escalate in 1973. That year, a revised Criminal Procedure Code (CrPC) came into effect to implement the recommendations of the 1969 Law Commission report. The intent of CrPC sections 125–127 was to curtail poverty among married women. It stated that
If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole,[17] as such Magistrate thinks fit.[18]
The definitions in this revised section clarify that the term "wife" "includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married."[19] In other words, divorcées were entitled to financial support from their ex-husbands.[20]
Muslim leaders argued that including divorcées in the code under the definition of wives impinged on MPL and convinced legislators to add a caveat in section 127 (Alteration in Allowance):
Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that…(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order.[21]
The caveat was interpreted to mean that if a Muslim woman had been divorced but had received her mahr, her husband did not owe her further maintenance, even if she was destitute.
The interpretation has been tested in the intervening years, most famously in the 1985 Supreme Court case Mohd. Ahmed Khan vs Shah Bano Begum. The question at issue was, as the case header states, "Whether section 127 (3) (b) debars payment of maintenance to a divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to maintain a divorced wife is limited to the period of iddat.'"[22] Iddat is the roughly three-month period following a divorce. During this time, a woman cannot remarry, and her husband must provide maintenance. The Shah Bano case originated in 1978 when Shah Bano sued her husband, a wealthy lawyer, for maintenance after he unilaterally divorced her. The High Court decided in Shah Bano's favor, but her husband appealed to the Supreme Court on the ground that as a Muslim, his ex-wife had not right to further maintenance.
The Supreme Court decided the case in Shah Bano's favour, upholding the decision of the High Court. In the final paragraphs of the judgment, the Court writes:
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that 'The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.' There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.[23]
The case remains prominent in debates about the UCC, MPL, and minority women's rights in and beyond India.[24]
Despite the Supreme Court's findings, some Muslim leaders, and the All India Muslim Personal Law Board, protested that the state was interfering with MPL. Shah Bano refused to accept the awarded maintenance on religious grounds. And Parliament followed up by passing the Protection of Muslim Women's (Rights in Divorce) Act (MWA), which specified that a divorced Muslim woman was entitled to "a reasonable and fair provision and maintenance [to] be made and paid to her within the iddat period by her former husband,"[25] as a means of support for herself and any children for whom she was responsible. The MWA was long interpreted as limiting a woman's right to post-divorce maintenance. Yet in 2001, Danial Latifi (Shah Bano's lawyer) won another Supreme Court case that reinterpreted the MWA to mean that Muslim husbands must pay a "reasonable and fair provision for the future" and that the payment must be made within the iddat period.[26] If, however, a woman is unable to maintain herself following the iddat period, she may sue her relatives and thereafter the State Waqf Board for maintenance.[27]
Shah Bano, the MWA, and Latifi demonstrate how Muslim women's rights in and following marriage have been an epicenter of debates about the autonomy of MPL and the rights of the community. The discourse about these cases continues to circle around the question of whether and when group rights override individual rights in a way that place Muslim women at the symbolic center. These are important but intractable debates.
Often missing from these debates about minority politics are everyday practices: how legal norms are interpreted, contested, and reworked at the margins of the state's gaze and beyond. Too much analysis focuses on what minority rights represent rather than on what legal actors do and how they inhabit and transform normative arrangements.
In my own research—especially in my book Divorcing Traditions—I have attended to everyday legal practices, showing how large-scale legal dynamics play out on the ground.[28] Studying non-state Islamic legal institutions in India, I found that they replicate the logic of the state's Personal Law system, reinforcing the symbolic link between family and religion. Yet within this constrained domain, non-state Islamic legal institutions operate according to their own internal logics shaped by Islamic legal training and reasoning, social need, and everyday legal practice. Historian Elizabeth Lhost's complementary book demonstrates that these legal practices I observed are longstanding—stretching back at least to the 18th century, while political theorist Sagnik Dutt's recent work offers an analysis from the perspective of research in women-run sharīʿa courts.[29]
In subsequent essays, I will share material from my fieldwork in a non-state Islamic legal body in north India. I will draw on published subpoenas, interviews with litigants and judges (qazis), and legal cases, to complicate the dominant narrative about minority politics. These stories show how religious legal practices can simultaneously reflect and exceed the paradoxes of minority politics. They offer a glimpse into how communities craft legal agency at the limits of recognition in an effort not just to survive but to flourish.
Notes:
[1] Saba Mahmood, Religious Difference in a Secular Age: A Minority Report (Princeton University Press, 2016).
[2] Mahmood, Religious Difference, 22.
[3] Karl Marx, Marx: Early Writings (Penguin Books 1975), 219.
[4] Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton University Press, 2025), 97.
[5] Joan Wallach Scott, The Politics of the Veil (Princeton University Press, 2009).
[6] Georg Wilhelm Friedrich Hegel, Phenomenology of Spirit (Clarendon Press, 1977), 110–11; Charles Taylor, Multiculturalism: Examining the Politics of Recognition (Princeton University Press, 1994).
[7] Patchen Markell, Bound by Recognition (Princeton University Press, 2003).
[8] Elizabeth A. Povinelli, The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Duke University Press, 2002).
[9] Povinelli, Cunning of Recognition, 153–86.
[10] Mayanthi L. Fernando, The Republic Unsettled: Muslim French and the Contradictions of Secularism (Duke University Press, 2014).
[11] Julia Stephens. Governing Islam: Law, Empire, and Secularism in Modern South Asia (Cambridge University Press, 2018); Ayesha Jalal, Self and Sovereignty: Individual and Community in South Asian Islam since 1850 (Routledge, 2000); Flavia Agnes, Law and Gender Inequality: The Politics of Women's Rights in India (Oxford University Press, 1999).
[12] Quoted in Robert Travers, Ideology and Empire in Eighteenth-Century India: The British in Bengal (Cambridge University Press, 2008) 118–19.
[13] Aamir R. Mufti, "Secularism and Minority: Elements of a Critique," Social Text 45 (1995): 75–96.
[14] Agnes, Law and Gender Inequality, 72–73; Rajeswari Sunder Rajan, The Scandal of the State: Women, Law, Citizenship in Postcolonial India (Duke University Press, 2003), 147–73.
[15] Agnes, Law and Gender Inequality, 112.
[16] Rajan, Scandal of the State, 147–73.
[17] The upper limit of rs. 500 was omitted by Act 50 of 2001, w.e.f. 24.9.2001.
[18] The Code of Criminal Procedure, 1973, § 125.
[19] The Code of Criminal Procedure, 1973, § 125(1).
[20] Tahir Mahmood, The Muslim Law of India (LexisNexis Butterworths, 2002), 76.
[21] The Code of Criminal Procedure, 1973, § 127(3).
[22] Mohd. Ahmed Khan v. Shah Bano Begum and ors. AIR 1985 SC 945.
[23] Mohd. Ahmed Khan v. Shah Bano Begum and ors. AIR 1985 SC 945.
[24] Rajan, Scandal of the State.
[25] The Muslim Women (Protection of Rights on Divorce) Act, 1986 § 3(1)(a).
[26] Danial Latifi & Anr v. Union Of India. 2001 AIR 2001 SC 3958.
[27] Danial Latifi & Anr v. Union Of India. 2001 AIR 2001 SC 3958.
[28] Katherine Lemons, Divorcing Traditions: Islamic Marriage Law and the Making of Indian Secularism (Cornell University Press, 2019).
[29] Elizabeth Lhost, Everyday Islamic Law and the Making of Modern South Asia (University of North Carolina Press, 2022); Sagnik Dutt, In the Shadow of Minority Rights: Decolonizing Gender, Liberalism and the Politics of Difference (Cambridge University Press, 2025).
Suggested Bluebook citation: Katherine Lemons, Beyond Rights and Recognition: Muslim Personal Law in India, Islamic Law Blog (Oct. 2, 2025), https://islamiclaw.blog/2025/10/02/beyond-rights-and-recognition-muslim-personal-law-in-india/.
Suggested Chicago citation: Katherine Lemons, "Beyond Rights and Recognition: Muslim Personal Law in India," Islamic Law Blog, October 2, 2025, https://islamiclaw.blog/2025/10/02/beyond-rights-and-recognition-muslim-personal-law-in-india/.
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