7 October 1937, the Sharì≠a laws became applica-
ble to all Muslims “notwithstanding any custom or
usage to the contrary, in all questions (save ques-
tions relating to agricultural land) regarding intes-
tate succession, special property of females,
including personal property inherited or obtained
under contract gift or any other provision of Per-
sonal Law, marriage, dissolution of marriage, in-
cluding talaq, ila, zihar, lian, khulaand Mubara±at,
maintenance, dower, guardianship, gifts, trusts and
wakfs” (Hidayatullah and Shankardass 1968, 3).
In India, custody of children was governed by the
Guardians and Wards Act 1890, which distinguished
between custody and guardianship: while the cus-
tody of children under £anafìrules would allow
the mother custody of sons for seven years and
daughters for nine years, the guardianship re-
mained with the father. The religious status of the
children was considered primary in awarding cus-
tody should the mother’s religion change due to
remarriage (Pearl and Menski 1998, 413–16). In
practice secular courts ensure that the best interests
of the child are usually considered of primary
importance.
In 1986 the Muslim Women (Protection of Rights
on Divorce) Act was passed by the Indian Legis-
lature in response to a supreme court judgment
with reference to the Mohammad Ahmad v. Shah
Bano Begum case for maintenance. The case was
filed under section 125 of the 1973 Criminal
Procedure Code, which would enable an indigent
woman to receive maintenance from her former
husband. The supreme court ruled that secular law
superseded personal law, a decision in keeping with
earlier high court rulings dealing with the same
issue. The court ruled that non-payment of mainte-
nance after the prescribed period stipulated by
Muslim personal law would be against the inten-
tion of the Qur±àn and the mahr payment to the
wife at marriage could not be regarded as mainte-
nance at divorce and ordered the husband to pay
Shah Bano both maintenance and the mahrowed
her. The chief justice urged the government to pass
the Uniform Civil Code specified under article 44
of the Indian constitution (Pearl and Menski 2000,
210–11), which would bring all Indians under sec-
ular law.
The Shah Bano case raised fears of assimilation
in the conservative and well organized groups of
the Muslim community who immediately denounced
the judgment and demanded it be repealed. The
agitation that ensued led to a hasty effort on the
part of the government to undo it through legisla-
tion. The resultant Muslim Women’s Bill deprived
Muslim women of the right to appeal for main-470 law: modern family law, 1800–present
tenance using section 125 of the 1973 Criminal
Procedure Code but created other provisions for
their benefit, which, due to judicial interpretations,
have proven more generous to women. Part 2 of the
act mandates that a Muslim woman be accorded
fair provision and maintenance at the time of her
divorce (Pearl and Menski 1998, 212–14). The
wife’s relatives or the State Waqf Boards, cited in
the act as options should the husband fail to pro-
vide maintenance, have not been considered as
viable or as important as enforcing maintenance
and fair provision from the husband. The new law
was also immediately challenged as unconstitu-
tional (a hearing is still pending in the supreme
court).pakistan
The Shariat Act of 1937 and the Dissolution of
Muslim Marriages Act of 1939 (which had been
inherited from India) were modified by the passage
of the Muslim Family Law Ordinance of 1961,
which was supported by the All Pakistan Women’s
Association (APWA), an organization that Begum
Liaqat Ali Khan established after independence in- The Muslim Personal Law of Shariat of 1948
was the first legislation elaborating on the initiative
of the 1937 statute to recognize the right of Muslim
women to inherit property from their father’s and
husband’s families (Esposito and DeLong 2001,
85). Pakistani feudal customs including unilateral
divorce and unrestricted polygamy accelerated the
need for changes in family laws that were designed
to go beyond the Shariat Acts of 1937 and 1939.
APWA set up five committees to deal with the out-
standing issues confronting women: Women and
Family Law, Responsibility of Family and Com-
munity, Education, Political Rights, and Women in
Economic Rights and Facilities. These committees
were to lobby government on behalf of women. In
the struggle that followed over six years, these
groups worked within the framework of estab-
lished Islamic traditions in order not to raise the ire
of the ≠ulamà±establishment of Pakistan who were
always ready to challenge women’s rights.
The Marriage Commission’s Report 1956, a pre-
cursor to the ordinance, revealed the differences
between Muslim modernists and traditionalists
over interpretation of Muslim personal law and the
extent to which ijtihàdor individual reasoning
could be exercised by judges rather than religiously
trained scholars. The modernists tried to use ijtihàd
as a way of enabling change in the status of women
(Haidar 2000, 294, 299), which the traditionalists
rejected, seeing it as an encroachment of Western
ideas on Islam. The commission used the conserva-