By Katherine Lemons
If, as I argued in the previous essay, the paradox of minority recognition cannot fully explain the workings of Islamic law or minority politics in India, then how might everyday legal practices—particularly those initiated by women—recast our understanding of minority politics? In this essay, I turn to cases from the dar ul-qaza (Sharīʿa Court) of the Islamic institution called the Imarat-e-Sharia to show how women's practical interventions in family law proceedings reshaped legal norms, not by seeking recognition from the state, but by navigating and negotiating Islamic institutions themselves.
Women in India have long instigated change in Muslim Personal Law (MPL). In the early twentieth century, Indian Muslim religious scholars (ʿulamāʾ) faced increasing rates of women committing apostasy. Until 1939, Muslim women in India could only divorce without their husbands' consent in a narrow set of circumstances, and apostasy was one of them.[1] As Rohit De and Mohammad Qasim Zaman have shown, the burgeoning trend of women renouncing Islam was not a reflection of religious dissent but a strategy to get a divorce.[2]
The scale of the apostasy trend alarmed members of the ʿulamāʾ, who feared that the Muslim community would fragment if apostasy continued to be used as an escape route from marriage. In response, the Indian jurist Ali Thanawi (d. 1943) sought guidance from Mālikī jurists in Medina, who—unlike the Ḥanafī tradition of most South Asian Muslim jurists—allowed for broader grounds for divorce.[3] The resulting fatwā, later published as al-Ḥīla al-Nājiza lil-Ḥalīla al-'Ājiza, became key to the approval of the 1939 Dissolution of Muslim Marriages Act (DMMA).[4] The Act states:
A woman married under Muslim law shall be entitle [sic] to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so, (vi) that the husband has been insane for a period of two years or is suffering from a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated; (viii) that the husband treats her with cruelty, that is to say, (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property of prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under muslim law.[5]
To this day, the DMMA is in force, and Islamic legal institutions, including the Imarat-e-sharia, follow the fatwā's guidance in divorce proceedings.[6] This short history shows that legal reform in Muslim Personal Law has followed women' actions on the ground, rather than preceding them.
My research suggests that this dynamic continues. At the dar ul-qaza of the Imarat-e-Sharia, divorce cases are overwhelmingly initiated by women, who typically file for khulaʿ (a woman-initiated, consensual divorce with financial concessions on the wife's part) or faskh (judicial annulment). There is, however, another type of case that is always filed by men: rukhsati. In rukhsati cases, husbands petition the court to compel wives who have left the marital home to return.
Rukhsati cases are revealing because they respond to women's prior refusal to remain in the marriage. And yet, they do not simply mark the imposition of men's authority. In practice, they frequently lead to negotiated divorce—indeed, roughly 30 percent of rukhsati cases end in khulaʿ, while another 50 percent are dismissed or resolved informally outside the court.[7] These outcomes show how women's exit from the home can catalyze legal outcomes within the dar ul-qaza, outcomes that formally recognize their rejection of the marriage.
What is striking across these cases is the consistency with which qazis (judges) take women's refusal of marriage seriously. In file after file, I encountered the same phrase: "main tayyar nahin hunh—I am not ready/willing [to stay with my husband]."[8]
In one case, a woman left her husband after he developed an addiction to alcohol and gambling. The qazi noted that while alcoholism is not a ground for divorce under Ḥanafī law, the wife's unwillingness to continue the marriage warranted a khulaʿ.[9] In another, the court granted divorce after a woman said her husband could not provide for her financially—despite his family's insistence on reconciliation.[10] In yet another, a woman explained that she had left her husband after learning that he had severe physical limitations; the court granted her a divorce when their attempt to reconcile the couple went nowhere and the wife insisted that she was unwilling to remain.[11] In other cases, women cited their husband's inability or unwillingness to have sexual intercourse.[12] Some of these claims, such as charges of impotence, are grounds for divorce in Ḥanafī fiqh (law). But for other claims, such as accusations of alcoholism or disability, the grounds for divorce are not clear in Ḥanafī law. Yet across these differences in detail, women initiated these cases by voting with their feet and qazis responded, treating unwillingness to remain in the marriage as a sufficient basis for divorce.
This jurisprudential practice—the tacit acceptance of main tayyar nahin hunh in the context of concrete difficulties as grounds for divorce—suggests a quiet shift in the interpretation of Islamic law at the level of everyday adjudication. It does not amount to doctrinal reform in a formal sense. Yet in practice, qazis were expanding the acceptable grounds for divorce while preserving the institutional structure of marriage.
A clear end to the marriage is not all that the qazi grants when he negotiates a khulaʿ, however. That 30 percent of rukhsati cases culminate in khulaʿ adds another layer to the story. Whereas rukhsati cases are always a response to women having taken matters into their own hands by leaving their marital homes, a khulaʿ is effectively a separation initiated by the woman, negotiated by the qazi, and carried out by the husband. Another way to put this is that if rukhsati responds to women's practical critique of the legally circumscribed characteristics of the institution of marriage, khulaʿ simultaneously exhibits private judges' efforts to secure the husband's cooperation and to regulate marital separation.
Here, rukhsati functions much like Thanawi's fatwā; it takes women's agency as a starting point, and it reframes that agency not as a threat to Islamic norms but as an opportunity for legal responsiveness. If Thanawi's intervention enabled women to remain within the fold of Islam while exiting untenable marriages, rukhsati cases today bring informal separations under religious authority, legitimizing and managing them in a way that affirms both individual choice and institutional continuity.
The broader point is this: what takes place in the dar ul-qaza is not merely a reiteration of religious doctrine or a symbolic performance of community identity. It is a site of social and legal struggle—where litigants seek redress for deeply personal grievances, and where qazis attempt to mediate between normative ideals and lived realities. These are not spaces of rights-claiming in the liberal sense; they are spaces of moral negotiation, institutional consolidation, and pragmatic jurisprudence.
Acknowledgments: The research on which these essays are based was generously funded by the Social Sciences and Humanities Council of Canada. I am grateful to Nadia Hussain and Abdul Majeed Peedikayil for their excellent research assistance.
Notes:
[1] Rohit De, "Mumtaz Bibi's Broken Heart: The Many Lives of the Dissolution of Muslim Marriages Act," The Indian Economic & Social History Review 46, no. 1 (2009): 114.
[2] De, "Mumtaz Bibi's Broken Heart," 105–30; Muhammad Qasim Zaman, Ashraf 'Ali Thanawi: Islam in Modern South Asia (Oneworld, 2008) 69.
[3] Fareeha Khan, "Traditionalist Approaches to Shari'ah Reform: Mawlana Ashraf 'Ali Thanawi's Fatwa on Women's Right to Divorce," (PhD diss., University of Michigan, 2008), 11–12; Zaman, Ashraf 'Ali Thanawi, 18.
[4] De, "Mumtaz Bibi's Broken Heart," 118; Ali Thanawi, al-Ḥīla al-Nājiza lil-Ḥalīla al-'Ājiza, ed. 'Abd al-Razzāq Qāsimī Amrūhī (Imarat-e-Sharia, n.d.).
[5] The Dissolution of Muslim Marriages Act, 1939, §2.
[6] Katherine Lemons, Divorcing Traditions: Islamic Marriage Law and the Making of Modern India (Cornell University Press, 2019), 69–99, 106.
[7] Imarat-e-Sharia case registers 2013-2018, held at the Imarat-e-Sharia dar ul-qaza archives, consulted by K. Lemons between 2018 and 2022.
[8] Private cases held in Imarat-e-Sharia dar ul-qaza archive; researcher anonymized to protect the privacy of litigants.
[9] Private Case no. 17 from the Imarat-e-Sharia dar ul-qaza archive (2015–2016); researcher numbered and anonymized to protect the privacy of litigants.
[10]Private Case no. 19 from the Imarat-e-Sharia dar ul-qaza archive (2022–2023); researcher numbered and anonymized to protect the privacy of litigants.
[11] Private case No. 1R from the Imarat-e-Sharia dar ul-qaza archive (2019); researcher numbered and anonymized to protect the privacy of litigants.This case was initiated as a case for khulaʿ but I include it here as it included a counter-claim for rukhsati and the court made a serious effort to help the couple reconcile before finalizing the divorce.
[12] Private case No. 36 from the Imarat-e-Sharia dar ul-qaza archive (2017–2018); researcher numbered and anonymized to protect the privacy of litigants.
Suggested Bluebook citation: Katherine Lemons, Muslim Personal Law as Struggle, Islamic Law Blog (Oct. 16, 2025), https://islamiclaw.blog/2025/10/16/muslim-personal-law-as-struggle/.
Suggested Chicago citation: Katherine Lemons, "Muslim Personal Law as Struggle," Islamic Law Blog, October 16, 2025, https://islamiclaw.blog/2025/10/16/muslim-personal-law-as-struggle/.
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