Colonialism and Islamic Law 169no-fault exit from the marriage contract with her husband. The negotiation
involved the return of the dower or nuptial gift (mahr) that the husband had
provided to the wife upon inception of the marriage. She could also offer an
additional sum of money to the husband in order to be released from the marital
tie.
In modern times, the practice of khul was given a completely new rationale.
Many Muslim legal activists now view khul as the female equivalent of the right
to initiate divorce. This viewpoint replaced the old presumption of exclusive
male power to dissolve the marriage contract with a new presumption where
spouses to a marriage have equal power and rights. The modern incarnation
of khula, however, remained a bone of contention between different Muslim
constituencies according to the legal ideology they adopted. Reform-minded
modernisers favoured the transformation of the law to meet new social exigen-
cies; traditionalists favoured changes to the extent that these were consistent
with canonical authority. The fault line between these constituencies became
visible when the Egyptian legislature in 2002 equated the khul provisions to a
female’s right to a no-fault divorce (Arabi 2001; Muhammad 2003). Both reli-
gious traditionalists and feminists disapproved of the measure: for the former,
the parliamentary act perverted the logic of provisions formulated in classical
Muslim law, while the latter deemed the law insuffi cient from a perspective of
women’s rights (Shahine 2004).
The case of khul in Egypt effectively demonstrated that, especially in modern
contexts, as compared to earlier times, power politics was joined at the hip to
law and invariably coloured juridical practice. With the emergence of larger
social units, such as society, government and state, the latter often exercised an
overriding interest over all other community interests. In doing so, the jugger-
naut of modern statecraft incorporated Muslim laws into an altogether different
legal sociology and anthropology from its pre-colonial iterations.
Under the watch of a variety of colonial authorities from the English,
French and Italians, a distinct category of law related to the Muslim family
came into existence under the broad rubric of Muslim personal or family law,
regulating marriage, divorce, child custody and inheritance. Colonial authority
also impacted on a related body of law regulating endowments (waqf), which
managed religious and social trusts to support a range of public charitable and
welfare functions. Historically, the activities of the trusts were not explicitly
religious, but under colonial rule new notions of religion and religiosity were
secreted into colonised societies. Over time, these trusts and endowments also
gained a peculiar religious character in line with modern constructions of
religion.
Many have questioned why secular colonial authorities retained Muslim
family laws marked by a religious character while repealing other laws infl ected
by religion. Clearly, law itself was the site of contestation between the colonial