On June 27, 1940, Vera Tiscenko, a Polish actress formerly with the Moscow Arts Theatre, “of her own free will and after due deliberation” embraced the Islamic faith at the Nakoda Mosque at 19 Chowringee Road, Calcutta. Vera Tiscenko's journey from Moscow to colonial Calcutta was a long and tortuous one. Fleeing the country after the revolution, Vera settled in Berlin where she married a Russian émigré, Eugene Tiscenko. Over the next few years they moved across Europe from Nazi Berlin to civil war Spain and finally settled in Mussolini's Rome, where Vera gave birth to a son, Oleg. In 1938, Eugene Tiscenko went to Edinburgh to qualify for a British medical degree, while Vera and her son left Rome for Calcutta after being invited by Professor Shahid Suhrawardy, her former director at the Moscow Arts Theatre. The reason for the separation between the couple remains unclear. Chief Justice Derbyshire was to speculate that Eugene Tiscenko might have intended to settle somewhere in British India after qualifying, but Vera herself admitted that the marriage had been unhappy. Finding “relief and solace in the teachings of Islam,” she cabled her husband the news of her conversion and requested that he accept the Islamic faith. Eugene Tiscenko replied that his religious convictions were unshakable and “refused absolutely” to change his faith.
1. Noor Jehan Begum v. Eugene Tiscenko, 1942 A.I.R. (Cal) 325.
2. Shurawardy, Huseyn Shaeed, Memoirs of Huseyn Shaheed Suhrawardy (Dhaka: University Press Limited, 1987), 7.
3. Telegram from Eugene Tiscenko 24, Montepelie Park, Edinburgh 10, dated July 2, 1940, as reproduced in Noor Jehan Begum v. Eugene Tiscenko.
4. The Hedaya or the Guide: A Commentary on the Mussulman Laws, 2nd ed., trans. Charles Hamilton (London: S. G. Grady, 1870) 64; Baillie, Neil, Digest of Moohummudan Law, Part I (Hanafi Law) (Calcutta, 1875), 180–81.
5. Mussmumat Ayesha Bibi v. Bireshwar Ghosh Mazumdar, 33 C.W.N., clxxix.
6. Letter from Eugene Tiscenko to Vera Tiscenko, dated September 19, 1940, as reproduced in Noor Jehan Begum v. Eugene Tiscenko.
7. Ikramullah, Begum Shaista Suhrawardy, Huseyn Shaheed Suhrawardy: A Biography (Karachi: Oxford University Press, 1991), 19. Huseyn Suhrawardy was the younger brother of Professor Shahid Suhrawardy, Vera's mentor. He later went on to become the premier of Bengal and the prime minister of Pakistan.
8. Noor Jehan Begum v. Eugene Tiscenko, 582.
9. Gul Mohammad v. Emperor, 1947 A.I.R. (Nag.) 121; Rakeya Bibi v. Anil Kumar 52 CWN 142; Andal Vaidyanathan v. Abdul Allam Vaidya, 1947 M.L.J. 402.
10. Sayeda Khatoon v. M Obadiah, 49 C.W.N. 745.
11. Robasa Khanum v. Khadadad Bomanji, 1947 A.I.R. (Bom.) 272.
12. Sarla Mudgal, President, Kalyani et al. v. Union of India et al., 1995 A.I.R. SC 1531; Lily Thomas v. Union of India and Others, 6 Supreme Court Cases 224 (2000).
13. Mallampalli, Chandra, Contending with Marginality: Christians and the Public Sphere in Colonial India, 1863–1937 (London: Routledge, 2004), 59.
14. Several forms of “jurisdictional jostling” to deal with matrimonial disputes had evolved in India. Perhaps the most visible was the case of moving to a geographically distinct jurisdiction. See the discussion on restitution of conjugal rights and Baroda divorce laws in this volume, Sharafi, Mitra, “The Martial Patchwork in Colonial South Asia: Forum Shopping from Britain to Baroda,” Law and History Review 28 (4) (2010): 979–1001.
15. Benton, Lauren, “Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State” Comparative Studies in Society and History 41 (3) (1999): 563–88.
16. Recent exceptions include, Sharafi, Mitra, “Judging Conversion to Zoroastrianism: Behind the Scenes of the Parsi Panchayat Case (1908),” in Parsis in India and the Diaspora, ed. Hinnells, John R. and Williams, Alan (London, 2007).
17. Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (New York: Cambridge University Press, 2002).
18. Mclintock, Anne, “Family Feuds: Gender, Nationalism and the Family,” Feminist Review 44 (1993): 61.
19. See, for instance, Vishwanathan, , Outside the Fold: Conversion, Modernity, and Belief (Princeton, 1998), Mallampalli, Contending with Marginality; Nandini Chatterjee, “Religious Change, Social Conflict and Legal Competition: The Emergence of Christian Personal Law in Colonial India,” Modern Asian Studies (forthcoming).
20. Benton, “Colonial Law and Cultural Difference,” 564.
21. Sharafi, “Marital Patchwork.”
22. Hirabai v. Sonabai, Perry's Oriental Cases 110 (1845); The Advocate General ex relatione, Daya Muhammad v. Muhammad Husen Huseni (otherwise called the Aga Khan), I.L.R. 12 (Bom.) 323 (1866). For a detailed discussion, see Shodan, Amrita, A Question of Community: Religious Groups and Colonial Law (Calcutta: Samya, 2001).
23. Cassumbhoy Ahmedbhoy v. Ahmedbhoy Hubibhoy and another, I.L.R. 13 (Bom.) 534 (1885).
24. Ashbai v. Tyeb Haji Rahimtulla, I.L.R. (Bom.) 115 (1882); Abdul Cadur Haji Mahomed v. Turner, I.L.R. (Bom.) 158 (1881).
25. Singha, Radhika, “Settle, Mobilize, Verify: Identity Practices in British India,” Studies in History 16 (2000): 152.
26. Anderson, Michael, “Islamic Law and Colonial Encounter in British India,” in Institutions and Ideologies: A SOAS South Asia Reader, ed. Arnold, David and Robb, Peter (Richmond: Curzon Press, 1993), 165–85; Kugle, Scott, “Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia” Modern Asian Studies 35 (2) (2001): 257–313.
27. Budansa Rowther and another v. Fatma Bi et al., 26 1914 M.L.J. 26 (260).
28. Section 10, Indian Divorce Act, 1869. Women could ask for a judicial separation on a single ground that legally gave her the right to reside separately but did not dissolve the marriage tie or give her the right to remarry.
29. Fyzee, Asaf A., Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1964), 163. For a detailed study of the same, see Carroll, Lucy, “Tallaq-e-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of a South Asian Muslim Wife,” Modern Asian Studies 16 (2) (1982): 277–309.
30. Perhaps the most famous case involving the restitution of conjugal rights and illustrating the public concerns that family matters evoked was that of Rukmabai in the nineteenth century. See Chandra, Sudhir, Colonialism, Law and Women's Rights (London: Oxford University Press, 1996).
31. Since the 1860s there had been a campaign by Brahmo reformist groups to get legislation for the introduction of a civil marriage law for all Indians, irrespective of their religious faith. Public debate and a campaign led to the enactment of Act III of 1872, which permitted civil marriages for all non-Christians. The provisions of the Indian Divorce Act would be applicable to all marriages performed under this law. However, the Act contained a clause that in effect required the couple engaging in civil marriage to renounce their religious faith. For a history of civil marriage legislation in British India and an ethnography of its contemporary working, see Mody, Perveez, The Intimate State: Love Marriages and the Law in Delhi (New Delhi: Routledge, 2008).
32. Section 4, Indian Christian Marriage Act, 1872.
33. Mallampalli, Contending with Marginality, 74.
34. Ibid., 77.
35. Native Converts Marriage Dissolution Act, 1866, § 3. Interpretation-clause: "Husband." In this Act, “Husband,” “Native husband” shall mean a married man domiciled in India who shall have completed the age of sixteen years, and shall not be a Christian, a Muhammadan nor a Jew; "Wife," "Native wife" shall mean a married woman domiciled in India who shall have completed the age of thirteen years, and shall not be a Christian, a Muhammadan nor a Jewess; "Personal law" shall mean any law, or custom having the force of law, of any persons domiciled in India other than Christians, Muhammadans, and Jews.
36. Mallampalli, Contending with Marginality, 75; Vishwanathan, Gauri, “Coping with (Civil) Death: The Christian Converts Rights of Passage in Colonial India,” in After Colonialism: Imperial Histories and Postcolonial Displacements, ed. Prakash, Gyan (Princeton, N.J.: Princeton University Press, 1995), 183–210, 201–3 (Huchi's case).
37. Section 10, Indian Divorce Act, 1869.
38. Viswanathan, “Coping with (Civil) Death,” 198.
39. Emon, Anver, “Conceiving Islamic Law in a Pluralist Society: History, Politics and Multicultural Jurisprudence,” Singapore Journal of Legal Studies (2006): 341. The choice of the Hedaya over Badr al-Din al-‘Ayni's (d. 1451) al-Binaya: Sharh al-Hidaya, a multivolume commentary with greater jurisprudential insight, was an indicator of colonial attitudes to Islamic law.
40. Kugle, “Framed, Blamed and Renamed,” 270.
41. Metcalf, Thomas, Ideologies of the Raj (Cambridge: Cambridge University Press, 1997), 132–48.
42. Narantakath Avullah v. Parakkal Mammu, I.L.R. 45 (Mad.) 986 (1922).
43. Ata Ullah v. Azim Ullah, I.L.R. 12 (All.) 494 (1890); Maula Baksh v. Amiruddin, I.L.R. 1 (Lah.) 317 (1920); Queen Empress v. Ramzan, I.L.R. 7 (All.) (1885).
44. Sastri Yagnapurushdasji v. Muldas Bhurdas Vaishya and another, 1966 A.I.R. (SC) 1119.
45. Baker Ali Khan v. Anjuman Ara Begum, 30 I.A. 94 (1903).
46. Apart from the their frequent mention in the cases discussed in the paper, they are all mentioned specifically by Syed Ameer Ali and Fyzee as leading authorities on Muhammadan law. See Ali, Syed Ameer, Mahommedan Law: Tagore Law Lectures, vol. 1 (Calcutta: Thacker, Spink and Co., 1929), iv–vi; Fyzee, Appendix G (1964), 492.
47. The Hedaya or the Guide, 66.
48. Baillie, Neil, Digest of Moohummudan law, Part I (Hanafi Law) (Calcutta, 1875), 180–81, 182.
49. Wilson, Ronald K., Anglo-Muhammadan Law, 6th ed. (London, 1930), 156.
50. Ameer Ali, Mahommedan Law, 388.
51. Ibid., 393.
52. Kugle, “Framed, Blamed and Renamed,” 258.
53. For a broad overview of this process, see Anderson, “Islamic Law and Colonial Encounter,” 165–85, and Emon, “Conceiving Islamic Law,” 340–46.
54. Ameer Ali, Mahommedan Law, 392.
55. Amin Beg v. Musammat Saman, I.L.R 33 (All.) 90 (1910). The wife in this case was represented by an ulama, Maulvi M.Shahfi-uz-zaman, who also preferred the opinion of the approved authority.
56. Sardar Mohammad v. Musammat Maryam, 1936 A.I.R. (Lah.) 666.
57. Mussamat Bakho v. Lal, 1924 A.I.R. (Lah.) 397.
58. Mussamat Rehmate v. Nikka et al., 1928 A.I.R. (Lah.) 954.
59. Mussamat Sardaran v. Allah Baksh, 1934 A.I.R. (Lah.) 976.
60. As recorded in Mussamat Resham Bibi v. Khuda Baksh, I.L.R. (Lah.) 277 (1937).
61. Charlotte Abraham et al. v. Francis Abraham, 9 Moore's I.A. 195 (1863). For an extensive discussion of the above case, see Chandra Mallampalli, “Meet the Abrahams: Colonial Law and Mixed Race Family from Bellary, South India, 1810–1860,” Modern Asian Studies 42 (5) (2008): 929–70.
62. Skinner v. Orde, 14 Moore's I.A. 309 (1871).
63. Tyabji, Faiz Baddruddin, Muslim Law, 4th ed. (Bombay: N. M. Tripathi, 1968), 8; Wilson, Anglo-Muhammadan Law, §11–12.
64. Mussamat Bakho v. Lal, 1924 A.I.R. (Lah.) 397.
65. Mussamat Rehmate v. Nikka et al., 1928 A.I.R. (Lah.) 954.
66. Mussamat Sardaran v. Allah Baksh, 1934 A.I.R. (Lah.) 976.
67. Sardar Mohammad v. Mussamat Maryam Bibi, 1936 A.I.R. (Lah.) 666.
68. Mussumat Resham Bibi v. Khuda Baksh, I.L.R. (Lah.) 277 (1937).
69. Ibid., 285–86.
70. Abdool Razack v. Aga Mahomed, 21 I.A. 56 (1894).
71. Sharafi, Mitra J., “The Semi-Autonomous Judge in Colonial India: Chivalric Imperialism Meets Anglo-Islamic Dower and Divorce,” Indian Economic and Social History Review 45 (1) (2009): 57–81.
72. Sharafi, “The Semi-Autonomous Judge,” 15.
73. Masud, Muhammad Khaled, “Apostasy and Judicial Separation in British India,” in Islamic Legal Interpretations: Muftis and Their Fatwas, ed. Masud, Muhammad Khalid, Messick, Brinkley, and Powers, David (Cambridge, Mass.: Harvard University Press, 1996), 193–203.
74. Musummat Saidan v. Sharaf, 1937 A.I.R. (Lah.) 759; Sardar Mohammad v. Mussummat Maryam Bibi, 1936 A.I.R. (Lah.) 666.
75. Zaman, Muhammad Qasim, Ashraf Ali Thanawi: Islam in Modern South Asia (Princeton, N.J.: Princeton University Press, 2008).
76. There are nine reported decisions by the Lahore High Court between 1924 and 1937 where a Muslim woman dissolved her marriage through apostasy. Although the number was nowhere close to the thousands that Maulana Thanvi believed, it is more significant than one might think. Only a fraction of cases involving domestic disputes would go to court and even fewer would reach the High Court on appeal. Finally, only those decisions deemed by the editors of law journals to be of significance would actually be published in the reporters. For a complete list of cases, see Comment by the Government Pleader of Lahore on the Dissolution of Muslim Marriages Bill, Opinions on Muslim Dissolution of Marriages Bill, Home Judicial, File No 36/30/35, NAI.
77. Quazi Mohammad Kazmi's Bill to Amend the Child Marriage Restraint Act to exempt Muslims from its operation (lapsed), Home Judicial, File 36/VIII/35, 1935, NAI.
78. Statement of Objects and Reasons, Dissolution of Muslim Marriages Act, 1939.
79. For a discussion on the social coalition that forged the legislation and the many meanings of this act, see De, Rohit, “Mumtaz Bibi's Broken Heart: The Many Lives of the Dissolution of Muslim Marriages Act, 1939,” Indian Economic and Social History Review 46 (1) (2009): 105–30.
80. Masud, “Apostasy and Judicial Separation in British India,” (1996), 193–203.
81. Zaman, Ashraf Ali Thanawi, 62; Extract from Legislative Assembly Debates, vol. 5, no. 11, Home Judicial, File No 36/30/35, 1939, NAI.
82. For an exploration of the multiple narratives behind the legislation, see De, “Mumtaz Bibi's Broken Heart.”
83. See, for instance, the submissions by Bar Association of Mercara, the Madras Presidency, Muslim League, Messrs. Haji Hassan Bava Sahib Muthavalli and F.M Bahaduddin Sahib, Hon Magistrate Tirupur, in Opinions on Muslim Dissolution of Marriages Bill, Home Judicial, File No 36/30/35, NAI. It is to be noted that almost all the objections on this ground came from Muslims from South India.
84. Demi Official letter by Sir Manmatha Nath Mukherji (Law Member) to R. F. Mudie, Home Member, Government of India, dated September 2, 1938, Home Judicial 39/12, 1936, National Archives of India, New Delhi (NAI).
85. Comment by the Secretary, Shri Bharat Dharma Mahamandal, Benares on the Dissolution of Muslim Marriages Bill, Opinions on Muslim Dissolution of Marriages Bill, Home Judicial, File No 36/30/35, NAI.
86. Gupta, Charu, Sexuality, Obscenity and Community: Women, Muslims and the Hindu Public in Colonial India (New Delhi: Permanent Black, 2001), 22–259; Bachetta, Paola, “Communal Property/Sexual Property: On Representations of Muslim Women in a Hindu Nationalist Discourse,” in Forging Identities: Gender, Communities and State, ed. Hasan, Zoya (New Delhi: Kali for Women, 1994), 192; Sangari, Kumkum, “Gender Lines: Personal Laws, Uniform Laws, Conversions,” Social Scientist (27) (5/6) (1999): 17–61, 45; Gail Minault, “Women, Legal Reform and Muslim Identity in South Asia,” Jura Gentium: Journal of Philosophy of International Law and Global Politics, http://www.juragentium.unifi.it/en/surveys/rol/minault.htm.
87. Gupta, Sexuality, Obscenity and Community, 241.
88. Speech of Sir Syed Ghulam Bhik Naraiang, Extract from Legislative Assembly Debates, vol. 5, no. 11, Home Judicial, 1939, File No 36/30/35, NAI.
89. §4, Dissolution of Muslim Marriages Act (1939).
90. Speech of Quazi Muhammad Ahmed Kazmi, Extract from Legislative Assembly Debates, vol. 6, no. 8, September 20, 1938, Home Judicial, File No 36/30/35 1935, NAI. For more on Bhai Parmanand, see Gupta, Sexuality, Obscenity and Community, 257–58.
91. Speech by Sir Nripendra Sircar, Extract from Legislative Assembly Debates, vol. 1, no. 9, February 14, 1939, Home Judicial, 1939, File No 36/30/35, NAI.
92. Comment by the Rajputana Provincial Hindu Sabha on the Dissolution of Muslim Marriages Bill, Opinions on Muslim Dissolution of Marriages Bill, Home Judicial, File No 36/30/35, NAI.
93. The Hedaya or the Guide, vol. 1, bk. 2, chap. 5, 177, and Ameer Ali, Mahommedan Law, 384.
94. Mussamat Ayesha Bibi v. Bireshwar Ghosh, 33 C.W.N. clxxix.
95. Haripada Roy v. Krishna Benode Roy and others, 1939 A.I.R. (Cal.) 430.
96. I. B. Sen, “A Much Debated Ex Parte Decision” 33 C.W.N. clxxxvii.
97. Sengutpa, Naresh Chandra, “Dissolution of a Hindu Marriage by Mahomedan Law,” Calcutta Law Journal 50 (1929): 40n, 43n.
98. Lord Advocate v. Jeffrey, 1 A.C. 146 (1921).
99. Letter from Mr. Sen, I. B., Calcutta Law Journal 50 (1929): 53n; response by Mr. Sengupta, N. C., Calcutta Law Journal 50 (1929): 58n.
100. Noor Jehan Begum v. Eugene Tiscenko, 1941 A.I.R. (Cal.) 582, para. 50.
102. Muncherji Kursetji Khambatta v. Jessie Grant Khambatta, 1935 A.I.R. (Bom.) 5.
103. In the matter of Ram Kumari, I.L.R. 18 (Cal.) 264 (1819).
104. Noor Jehan Begum v. Eugene Tiscenko, 1942 A.I.R. (Cal.) 325, (J. Nasim Ali), para. 10–13.
105. Ibid., para 9.
106. Rakeya Bibi v. Anil Kumar, 52 C.W.N. 142.
107. Sayeda Khatoon v. M Obadiah, 49 C.W.N. 745.
108. Robasa Khanum v. Khadadad Bomanji, 1947 A.I.R. (Bom.) 272.
109. Justice Chagla, who delivered the judgment in Robasa Khanum, was a “nationalist Muslim” and a fierce critic of Jinnah and the Muslim League. After retiring he was to join the Congress Party and serve as a member in Nehru's cabinet. See Chagla, Mahomedali Currim, Roses in December: An Autobiography (Bombay: Bharatiya Vidya Bhavan, 1974).
110. Ayesha Bibi v. Subodh Ch. Chakravarty, 1949 A.I.R. (Cal.) 436.
111. Ibid., para. 28.
112. Ibid., para. 14.
113. Robasa Khanum v. Khadadad Bomanji, 1947 A.I.R. (Bom.) 272, para. 11.
114. Report of the Hindu Law Committee (New Delhi: Government of India Press, 1955), 19.
115. Benton, “Colonial Law and Cultural Difference,” 564.
116. Gupta, Sexuality, Obscenity and Community, 307–20.
117. John Jiban Chandra Datta v. Abinash Chandra Sen, I.L.R. (Cal.) 12 (1939).
118. Sarla Mudgal, President, Kalyani et al. v. Union of India et al., 1995 A.I.R. (Cal.) 1531.
119. Crews, Robert D., For Prophet and Tsar: Islam and Empire in Russia and Central Asia (Cambridge, Mass.: Harvard University Press, 2006), 185–86.
120. “No. 657, 1944. Present residence, Krishnagar. In the name of God the merciful the compassionate. I declare to this effect that Atreyee Devi daughter of Birendra Lal Boy, age 18 years of Krishnagar, without any force or compulsion, of her own will and accord having expressed her disgust at the Brahmanic religion, renounced the same, and recited the Kalma Shahadat (the Moslem confession of faith) and embraced the Islamic religion. The Islamic name of Ayesha Bibee has been given to her. Musulmans should henceforth behave towards her as a Mussulman, and teach her the injunctions of the Islamic religion (precepts like prayer and fasting etc). I have granted this sanad (certificate) that it may be of use in time. May the God Almighty keep her firm (in the path of religion), (Signed by the Iman-Jamai Musjit). Nakoda Mosque, Calcutta, dated the 11th of the month of Ramazan year 1362 of the Hejira 12th September 1942 (sic)” (cited from Ayesha Bibi v. Sutodh Ch. Chakravarty, 1949 A.I.R. (Cal.) 436, para. 16.
121. Comment by District Judge of Cuddupah, Madras Presidency on the Dissolution of Muslim Marriages Bill, Opinions on Muslim Dissolution of Marriages Bill, Home Judicial, File No 36/30/35, NAI.
122. Vatuk, Slyvia, “Divorce at the Wife's Initiative in Muslim Personal Law: What Are the Options and What Are Their Implications for Women's Welfare?” in Redefining Family Law in India: Essays in Honour of B. Sivaramayya, ed. Parashar, Archana and Dhanda, Amita (London: Routledge, 2008), 200–235.
123. Benton, Law and Colonial Cultures, 258.
124. 227th Report of the Law Commission of India, 2009.
125. Ikramullah, Huseyn Shaheed Suhrawardy, 19.
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