can succeed in making the wife agree to give up the
mahrand sometimes even pay some amount in
exchange for a divorce. Post divorce or even post
separation, most women find themselves dependent
on their natal families, along with their children.
The formal legal system, however, touches on the
lives of only a fraction of the people in South Asia.
Marriage and divorce are widely seen as belonging
to the private sphere, over which the more appro-
priate authority is that of the family or community-
based organizations (known in different regions by
various names such as the biraderi, the jamaat
council, jirga, panchayat). As pointed out by
Shaheed (1998, 69) in Pakistan, where women’s
mobility is severely restricted, female illiteracy is
rampant, and women’s access to information about
state laws or even practices elsewhere in the coun-
try is limited or absent, the operative practices of
the community become the absolute standard.
These community-based institutions are usually
dominated by men who rarely have training in the
legalities of divorce procedure or knowledge of the
rights of women under the Sharì≠a. Here too the wife
or her family can find themselves at a disadvantage.
Customary norms discourage women from taking
the initiative to establish their case and thereby
jeopardize the marriage, while the husband, through
his personal contacts, may be able to establish his
version of the situation over a long period before
the final break is sought. Moreover, he can simply
disregard a decision that does not suit him, as these
institutions depend on moral rather than legal
authority and cannot enforce their decisions other
than through community-based sanctions, which
are rarely brought into play for matters such as
divorce. Though studies on the working of these
institutions are not available, it is possible to see that
the procedure for divorce and settlement of dues
can involve long negotiations as each side uses the
informal and formal resources available to them to
establish their case and to avoid losing their position
in the community, and sometimes takes advantage
of the plural adjudication systems in the country.
Anthropological accounts give some idea of the
variations in practices of separation and divorce
especially where the formal legal system does not
hold sway. Among the Gujar Bakarwals of Jammu
and Kashmir, and the Meos of Rajasthan, it has
been reported that men rarely divorce their wives.
However, if a woman wants to leave her husband
she may elope with another man. Among the Meos
if the woman wants to marry another man, he must
pay compensation (jhagra) to the first husband.
Unless this amount is amicably settled, elopement108 divorce and custody: contemporary practices
can lead to serious feuds, which sometimes last for
generations (Ahmad 1976).
In the matrilineal society of Lakshwadeep there is
a minimum dislocation for a woman and her chil-
dren in the event of divorce (Dube 1999). Women
do not move to their husband’s home after mar-
riage. The husband in fact visits the wife. The chil-
dren are brought up in the mother’s household. The
divorce rate is very high and both women and men
reported multiple marriages. The formalities of the
Sharì≠a are followed in that the husband is pressur-
ized to pronounce the †alàqformula. If a woman
has to pay compensation to the husband to obtain
the divorce, she can sometimes prevail upon her
next prospective husband to pay the amount. There
is little stigma attached to divorce.
A number of the problems described here have
been controlled through marriage contracts that
incorporate stipulations regarding women’s right
to divorce and other matters. This procedure was
adopted as far back as a century ago (Caroll 1982),
though today it is hardly used.Bibliography
I. Ahmad (ed.), Family, kinship and marriage among
Muslims in India, Delhi 1976.
——,Divorce and remarriage among Muslims in India,
Delhi 2003.
N. Alam et al., Determinants of divorce in a traditional
Muslim community in Bangladesh, in Demographic
Research3 (2000), <www.demographic-research.org/
volumes/vol3/4/3-4.pdf >.
L. Caroll, Talaq-i-tafwidand stipulations in a Muslim
marriage contract. Important means of protecting the
position of the South Asian Muslim wife, in Modern
Asian Studies16:2 (1982), 277–309.
L. Dube, The meaning and content of marriage in a matri-
lineal Muslim community, in Journal of the Asiatic
Society of Bombay, n.s. 74 (1999), 78–95.
F. Shaheed et al. (eds.),Shaping women’s lives. Laws,
practices and strategies in Pakistan, Karachi 1998.Nasreen FazalbhoyWestern EuropeIn Islam marriage is regarded as a civil contract
between two adults, which entails an offer by one
partner and acceptance by the other in the presence
of two witnesses. The qà∂ì, or official, usually sol-
emnizes the marriage in a mosque, or court, or any
other location. The marriage contract sets the
defined rights and duties for each party. Because
marriage is not a sacred union, divorce in Islam has
always been permissible. Although the Qur±ànic
legislation (at least in theory) on divorce aims at
protecting women and allowing them to free them-