4.1 Shalish

In the summer of 2019, I visited my village in the Jamalpur district of Bangladesh with three friends (all women) from Dhaka city. As soon as we arrived, family members and neighbours could not stop talking about a girl from a nearby neighbourhood who was in “trouble.” When I asked what had happened, they informed us that ShantiFootnote ²⁸ had been taken (uthai nise) by the local carpenter’s son to another town. After a few months, he returned her to her home and abandoned her there. My three friends from Dhaka city were outraged. Friend-1 immediately responded with the following back-to-back questions: “How much did he ask for ransom? Did her parents pay anything? Why on earth did he return her? Wasn’t he afraid of getting caught?” Friend-2 asked: “Did the police actually search for her when she was missing? Why did no one apprehend this guy when he returned her?” An elder aunt from the village responded with the rhetorical question “What are these girls asking?” and another aunt followed up with “I always knew Mokbul’s son was bad. I told Shanti time and time again when I saw them speaking in front of Mamun’s shop. Why did she have to go with him?” Friend-1 reacted in disbelief and anger: “Go with him??? How can she ‘Go with him?’ He was her kidnapper! Kidnapping happens by force, it’s not like it was her choice!”

It took me some time to understand that my friends who grew up in Dhaka city and had very little engagement with Bangladesh’s rural context could not decipher the meaning behind the coded language of coercion in this context: uthai nawa. Phrases such as “uthai nawa” () and “tule nawa” () are local Bangla phrases, which literally translate as “taking” or “picking up.” They are also common expressions used in Bangladeshi villages to indicate that a man coerced a woman to leave with him and marry her by force. On the ground, however, there is a shared understanding that this phrase is coded language and can also be used in cases of love affairs when women elope with their partners consensually under the impression that they will get married. In the above event, it was known by the community that Shanti had had an affair with Mokbul’s son, Rahim. Yet my friends from Dhaka city could not comprehend why the aunties in my village alluded to Shanti being coercively taken while they also spoke as though Shanti consented to going with Rahim. They did not have the contextual knowledge to understand that this language of coercion—uthai nawa or tule nawa—is often how elopement cases are presented and talked about in this site as well as many other villages in Bangladesh.

This language of coercion is used due to the gendered social climate in Bangladesh where “good” and/or “moral” women are expected to be modest and naive about relationships and sex. Siddiqi states: “The legal realm, as much as the social, penalises those who contest social norms. In the prevailing landscape, a public admission of rape is considered less dishonorable than the acknowledgement that a young woman has had sex willingly.”Footnote ²⁹

She also states:

Hence, when couples consensually elope in rural areas, the language of coercion is a common framing of such events.

In Shanti’s case, Rahim “took” Shanti and married her in August 2018 because her family did not agree to their daughter getting married to a carpenter’s son, as they were from a higher socioeconomic background. Most people in the community knew that Shanti eloped with Rahim consensually; some considered that she was seduced or duped by his charms. Some claimed it was due to “irrational passion.” Her parents publicly disowned her and neither she nor Rahim was allowed to enter their house. In July 2019, less than a year after the elopement, Rahim fell in love with another woman and decided to divorce Shanti. He left her at her parents’ home and stopped all forms of communication with her. Shanti was devastated and begged Rahim not to end their marriage. She was financially dependent on Rahim and, since her family had disowned her, faced economic precarity. Moreover, she knew the social stigma and ostracization she would face as a divorced woman in Bangladesh and publicly declared that she was fine with him having another wife as long he did not divorce her. Shanti’s parents refused to let her stay with them after Rahim abandoned her since they felt “betrayed” by her choice and claimed that she had “dishonoured” them. Shanti stayed in a social worker’s house and shalish was arranged by community leaders to solve “Shanti’s problem.”

In such cases, women usually go to shalish with certain expectations: they hope that the shalishkars will mediate the situation and convince their partners to not abandon them; in cases in which couples are married in customary rituals rather than formal state procedures, women expect shalishkars to help them formally register and legalize their marriage; if men are determined to leave their wives, women expect shalish to help them get compensation of some sort—be it monetary or symbolic—and help them mitigate social ostracization from the community.

Shanti and Rahim’s shalish was held on July 2019 in the courtyard of a community leader whom both the couple knew and respected. Both parties were present along with their immediate and extended families, neighbours, friends, and other community members. Rahim’s new romantic partner was not there, but the shalishkars did not expect her presence. In this shalish, Shanti explained how she was duped by Rahim into falling in love with him and how he forced her to go away with him when she did not want to: “O amare jor kore uthai nise /He took me by force.” She said she wanted to wait and have some more time to convince her parents, but Rahim coerced her into rushing their marriage. She also mentioned that she wanted the court to convince Rahim to not leave her because she would be homeless, she could not re-marry as easily as he could, and she would have no source of income. Rahim responded with “Ek haat etali bajena,” which is a popular saying in Bangladesh that translates as “You can’t clap with just one hand.” The line was used to indicate that Rahim did not forcibly take Shanti, that she had agency, and that she had had the choice to not fall in love with him and not go away with him. He told the shalishkars to check their phone messages and note that the “taking” was staged and that she knew and agreed with the plan beforehand.

After three hours of back and forth between different family members and related parties explaining their versions of the event, the shalishkars tried profusely to reunite the couple. They scolded Rahim for having an extramarital affair and deciding to leave his wife: “Your wife is even okay with you having a second wife. That is how much she loves you. If you do this, no one here will ever support you again.” However, Rahim was determined to leave Shanti. The shalishkars reprimanded Rahim for his decision and publicly sided with Shanti: “This poor girl did nothing to deserve this. What was her fault in all of this? You are the devil Rahim for ruining a girl’s life like this.” The shalishkars explained it would be extremely difficult for Shanti to have a second husband because “our society is such that men don’t want a divorced wife.” Most community members that were present and watching this shalish also empathized with Shanti—that is, the public spectacle helped reduce some of the social ostracization that Shanti would face as a divorced woman in this community.

It is worth asking why the shalishkars did not emphasize the discrepancy of Shanti’s claims that she was forcibly taken versus the text messages that revealed that there was no coercion. Shalish occur within the community; thus, the shalishkars had the prior knowledge of this couple’s relationship and were embedded within the local context, allowing them to understand the shared meaning behind the coded language of coercion. The shalishkars themselves use this language to try and help women receive some form of compensation. For instance, the shalishkars decided that Rahim should not only pay full maintenance money and kabin Footnote ³¹ money for divorcing Shanti, but he should also publicly beg for her forgiveness as symbolic compensation for “taking” her against her will. They also stated they are aware that monetary compensation and a public apology can never fully compensate for her suffering, but it is the least that Rahim should offer her. In another case I observed in an NGO-mediated shalish in Madaripur district, there was a dispute in which the husband and his family criticized the wife for not helping much with household chores. The shalishkar used the language of coercion to side with the wife:

The same shalishkar also told the father-in-law: “Your son took a girl. How have you raised him? After what your son has done, you should be making sure that your daughter-in-law is happy and comfortable in your home instead of complaining that she doesn’t work.”

In other words, the shalishkars have the scope to recognize the asymmetrical gendered power relations and use the language of coercion that is already normalized and embedded in the existing social structures to flip the table and grant women justice in ways that are often overlooked by urban elites and global human rights organizations. While shalish have many problems, there are also many undocumented ways that shalishkars are aware of women’s unequal position and seek to safeguard them in dispute mechanisms such as shalish. Bangladesh is not the only space with this perception of justice. Wael Hallaq argues that Islamic legal proceedings function with a moral logic in which social equity is at the centre and the “weak” or disadvantaged party is given special attention as opposed to the universality of the liberal rule of law, which focuses ideologically on equality and the individual’s right.Footnote ³³ Although shalish are not precisely sharia courts, they pull from several Islamic teachings and philosophies, which might have influenced the focus on noting positionality in shalish.

An unreconstructed and non-intersectional liberal feminist frame might imply that using the phrase uthai nawa or tule nawa treats women as passive and weak because their agency and consent are not recognized in these courts; however, anthropology scholarship shows that there are alternate frames of women’s agency that the modern rule of law does not include in its model. For instance, Chandra Mohanty argues that there are hierarchies between “First-World” and “Third-World” women, where the latter are deemed as passive and lacking agency.Footnote ³⁴ Moreover, Saba Mahmood highlights the need to rethink agency with regard to how a person is situated historically and socially within the wider structure of power in order to note alternate forms of women’s agency in non-Western spaces.Footnote ³⁵ My fieldwork suggests that during these uthai nawa cases, the language of coercion is used not to treat women as passive or naive, but rather to highlight women’s positionality and the structural imbalance of power.

Moreover, Shanti was struggling to find a place to live as her parents refused to take her back into their home after she “dishonoured” them. The shalishkars considered it was part of their duty to convince Shanti’s parents to forgive her and take her back into their home. It was perhaps easier for her family to take her back as they were asked to do so by a group of shalishkars who are authoritative members of the community and also since the shalish helped foster empathy for Shanti. The shalishkars asked the community members to support Shanti because she was already suffering and said that the community will be responsible if anything dire happens to her after this. The handling of this case might seem unconventional to those who are not familiar with the context, but this is extremely common in many parts of rural Bangladesh. I have observed other shalish with similar outcomes. However, communities and villages are not homogenous. Thus, the outcomes of shalish might differ across Bangladesh based on the culture and practices of the particular group, village, community, and region.

To reiterate, I do not intend to glorify or romanticize shalish. There are many cases in which women are genuinely kidnapped and shalish force women to marry their abductors and rapists. In those instances, shalish play a significant role to reinforce gendered oppression and sexual violence. My work does not focus on those kinds of cases, nor deny their prevalence. Rather, I focus on providing instances from shalish that cater to women’s expectations from courts but are not captured in legal records, scholarly research, or humanitarian reports.

4.2 Supreme Court

By the time uthai nawa or tule nawa cases reach the Supreme Court in Dhaka city,Footnote ³⁶ they are treated and tried as “opohoron” (), which translates as kidnapping or abduction cases. Sometimes these cases can also be tried under rape if there is evidence of sexual intercourse. This places uthai nawa cases under criminal law even though the cases explored in the previous section are more closely related to family law. State courts, especially the higher courts in Dhaka, do not treat the coded language of coercion the same way as shalish do. It could be because urban legal actors are unfamiliar with the common use of the coded language of uthai nawa, or it could be that they are familiar with the context but still have to classify cases as per the available tools and frameworks of modern state courts. When a woman or their families bring a uthai nawa case (in which the women consented to leaving with the man) in state courts but claim that the man forcibly “took” her, the focus of the case becomes finding out whether there was consent or coercion. This negates the underlying reason why women tend to go to courts in the first place; they do not demand justice for why men abducted them, but rather hope for mediation, mitigating social ostracization, and compensation.

Rural families are generally not aware of how state courts will interpret their cases, and hence both litigants and their families can be stuck navigating an unwanted lawsuit for years. In many instances, rural communities are aware that abduction is a serious offence and attempt to use it to “scare” the men and their families. However, when these cases go to state courts, especially the higher courts, it is difficult for plaintiffs to withdraw cases at will. An advocate working in Dhaka told me:

Moreover, there are several cases in which it is not women but rather their families or guardians who go to courts to intervene in the couples’ affairs. In the case Jewel Miah and Ors [2006],Footnote ³⁸ Selena Akhter’s maternal uncle Chan Miah lodged a case on behalf of her claiming that Jewel Miah and accomplices “forcibly abducted” his niece. The Supreme Court focused on finding out whether this was an abduction case or not, trying to locate consent/coercion. This case includes testimonies in Bangla script from the First Information Report (FIR) lodged at the police station. The following are witness testimonies from the case judgment that the judges relied on to release Jewel Miah and the other accused parties who were sentenced to be imprisoned; all the statements refer to how Selena was in a relationship with Jewel and eloped on purpose—that is, she was not actually abducted.Footnote ³⁹

This case is one of many in which the Supreme Court does not recognize the socio-gendered context that prevents women from expressing certain things candidly and openly in court. In the judgment, Selina Akhter is called “the so-called victim” and is treated as a liar.

The “messiness” of the situation and multilayered issues are simplified into questions of consent and coercion resembling early Western liberal feminism that understood women’s oppression through binaries of consent/coercion and domination/resistance.Footnote ⁴³ Women might elope with their partners under the assumption that they will get married and consent to sex, but if their partners refuse to marry them, what was consensual sex at one point can be understood as rape at a later point in time since sex and marriage are ideologically intrinsically tied to one another in this context; Siddiqi suggests this is due to heteronormative ideologies of marriage in which women’s consent to sex outside marriage is culturally insubstantial:

In other words, there are many reasons why women or their families might frame their grievance under uthai nawa or tule nawa. If these cases are treated as kidnapping, women are bound to lose since there is ample evidence (witness testimonies, text messages, etc.) to suggest that women provided consent and that this “taking” was performative. When court records categorize and try these cases under “abduction,” they distort the legal framing of these cases as intended by the parties on the ground. In Bangladesh’s current legal structure, men who abandon women after consensual elopement face no consequences, while women and their families face social ostracism and harassment that in some cases may even lead to suicide. The modern rule of law’s “win–lose” model is set such that women will undoubtedly lose these uthai nawa cases most of the time. It is worth noting that shalish, at least ideologically, operates with a “win–win” model that can be preferred by women in many instances; an NGO worker from MLAA states:

As seen from Shanti and Rahim’s shalish in the previous section, helping Shanti receive symbolic compensation, mitigating her social ostracization in the community, and restoring her relationship with her family are all part of what constitutes as justice in shalish. Many women in rural Bangladesh agree that failure to accommodate to these other aspects of a woman’s positionality is failing to provide justice for women.

It is also important to note that language and their meanings change as cases move from shalish to state courts; these changes have dire consequences, affecting the lives of rural women. Comparing terms, categories, and symbols across different sociopolitical contexts and economic backgrounds—namely identifying who says what, in which context, and its meanings—elucidates the legal frameworks of communities as well as the larger structures that produce and are produced by them. Our worldviews are shaped in part by the language we are habituated with and use every day,Footnote ⁴⁵ and language does not mean simply word or grammatical structures, but rather the social context in which words are used.Footnote ⁴⁶ Hence, state courts’ decontextualizing “uthai nawa” fails to decode women’s testimonies according to their standpoints and intentions. State courts and their legal records almost always filter and reframe rural communities’ perspectives according to their own language and epistemic frameworks. Siddiqi argues that “how we understand the logic behind the crime determines how we approach possible interventions” and so “misnaming can lead to the misreading of the multiply layered and intersectional relations of power.”Footnote ⁴⁷ Rural courts rely on shared vocabulary and social understandings that are not easily translatable using modern legal categories.

Not all the legal actors in the Supreme Court are unaware of the social pressure that women face that limits them from saying certain things directly. For instance, in the case of Abdul Mannan and Ors. v. State [1985],Footnote ⁴⁸ Akter Jahan Rina and her family accused Abdul Mannan and some of his friends of forcibly taking her against her will. In this case, the judge was aware that Rina might have used the language of coercion either to avoid social ostracization or to save her family’s honour in society: “She also denied the suggestion that the accused persons did not kidnap her by force against her will and she was denying everything at the instance of her father and for fear of social condemnation.”Footnote ⁴⁹ Yet, this awareness is not enough since the case is tried under abduction and the sole focus is on whether she was taken by force or not. The case judgment concludes:

The complexity of a woman’s consent—that is, the gendered, conditional, and temporal experience based on personal promises between romantic partners—is absent in this approach to law. It also fails to situate the problem within its own gendered and testimonial context.

A Supreme Court lawyer unrelated to the above case told me that since kidnapping is a criminal offence, the punishment can be at least seven years of imprisonment with a fine. Even if judges are aware of the women’s positionality, they consider this too extreme a punishment for men for such offences: “We are not doing any injustice because if a man did not kidnap a woman, why should he be punished for a kidnapping crime?”Footnote ⁵¹ Uthai nawa is an example that demonstrates how modern state courts are bound by the rigid categorizations and formal procedures that they have to abide by: “The minute a woman claims they have been kidnapped, we have to file a criminal charge. It is a very serious offence. We ask repeatedly if it’s true and they are adamant. We have to follow the protocols accordingly.” Hence, it is significant to bridge the disconnect between urban and rural spaces regarding the coded language of uthai nawa or tule nawa. This section demonstrates all the meanings that can be erased when cases move from shalish to state courts. The next section will explore how digitization of uthai nawa cases contributes to further erasures of women’s experiences and their standpoints.

5.1 Elitism and selection bias in official legal archives

Digital legal databases in research software include cases from the Supreme Court archives, law report books, and academic journals. In South Asia, printed law report books and journals are the most significant sources for case judgments in digital legal databases. For instance, T. N. Chandrashekar, the CEO of the legal research software Sofist India, told me that its digital database is mostly collections from existing print texts such as books, law journals, and case reports.Footnote ⁵⁴

Elite lawyers and judges from the Supreme Court or legal academics decide which cases from the higher courts are “landmark” cases and worth including in law report journals. For instance, Dhaka Law Report (DLR) was the first law report book of BangladeshFootnote ⁵⁵ and it publishes cases from the Supreme Court—from both the high court and the appellate divisions. All the popular law report books—DLR, Bangladesh Legal Chronicles (BLC), Bangladesh Legal Decisions (BLD), Bangladesh Law Times (BLT), etc.—publish cases only from the Supreme Court. Hence, the digitizing of cases is based on a narrow selection of state law, namely the utmost elite version of it—the Supreme Court.

Moreover, it is worth noting which cases are included in law report books and who makes these decisions. My findings suggest that DLR is considered the most reputable law report book in Bangladesh’s legal community. I spoke to the editor of DLR, an advocate of the Supreme Court, and he provided insight into how he selects which cases to include in DLR. He highlighted that the selection of cases has always been and continues to be a “one-handed job” and that he has one assistant to help him select cases. When asked about his selection process, he explained:

DLR’s editor mentions that having judgments published in this prominent law report book adds prestige for the judges whose cases get selected for publication; hence, some judges try to convince the editors of such law report books to include their judgments and, if the editors do not select the requested judgments, they usually face resentment from those judges. DLR’s editor assures that he is not affected by such pressures and only includes cases that are helpful for future cases and beneficial for the legal community and public wellbeing.

Moreover, most of the people who have the opportunity to be editors and can select cases for law report books are notable lawyers in the Supreme Court or legal academics in Dhaka city. Generally, they all know one another and are part of a close-knit professional and social network. For instance, BLC, which is a stand-alone law report book, is a “sister-concern” of DLR—that is, connected with those who own or run DLR. The BLC editor is an advocate of the Supreme Court and frequently speaks with DLR’s editor for advice and suggestions about which cases to include in BLC because DLR’s editor “is the senior and knows better than anyone.”Footnote ⁵⁸ BLC’s editor also added: “We make decisions together.” Hence, it is usually a small group of people within the same circle with similar pedagogies and understandings of law that make decisions on which cases get selected for law report books.

When asked about BLC’s selection process of cases, the editor said that the lawyers and judges who are involved in noteworthy cases reach out to him if they think that the judgment should be published in BLC. He also mentioned that journalists who report on certain cases will also reach out to him if they have any suggestions. Lastly, he stated that there are assigned reporters who are lawyers and tasked with collecting cases that they think should be included and shortlisting a couple of cases for him to review and select. Most of these helpful informers are already in Dhaka city or they are affiliated with state law in some way.

While the editors in Bangladesh’s law report books work towards enhancing the rights of people in Bangladesh, their perspective on law stems from an elite and modern legal standpoint that does not consider shalish as law. It is worth noting that most legal actors involved in compiling cases for law report books are recognized as highly apt lawyers of the Supreme Court, who are celebrated because of their work to ensure justice for marginalized communities in Bangladesh. I do not intend to undermine what they do. Rather, I wish to draw attention to the particular legal narrative and epistemology that they operate within. Most of the elite lawyers from the Supreme Court might know about shalish, but they are not immersed on the ground enough to understand how they operate from a nuanced perspective. Perhaps that is why the complexities of the language of coercion in uthai nawa cases are not as obvious in these spaces, and why the mislabelled abduction framing is not questioned as much by the urban legal community who are involved in the legal proceedings of these cases as well as those who document them in official legal archives.

Note that most law report books, including the most popular DLR, do not digitize their cases; however, there are digitized copies of selected cases from such law report books in legal research software such as Manupatra. How Manupatra makes decisions on which cases they digitize is inaccessible to researchers. What we do know is that the court records in digital legal databases rely on annual law report books. Hence, understanding how law report books are constructed helps to note how the resources available in digital databases can be partial and skewed.

5.2 Transnational politics

Most of the cases from the popular Bangladeshi law report books and journals are not even included in the legal research software Manupatra and subsequently BdLex that are developed in India. Bangladesh law report books are not partnered with Manupatra; the editors of DLR and BLC said that, to their knowledge, Manupatra has not reached out to them or any other editor they knew regarding a partnership to include full collections of their law report journals and books. The librarian in an NGO in Bangladesh mentioned:

Manupatra’s Bangladesh case collection does not include many court records despite the many law report books that publish new Supreme Court cases annually. This shows a lack of interest and investment from such companies to comprehensively build digital legal databases from this site.

Moreover, there are many external forces that prevent Bangladesh from fully launching and developing their own digital legal database. Bangladesh first launched its own digital legal database in 2008 called Chancery Law Chronicles (CLC). In an interview, the chief founder and editor of CLC explained that the intention behind launching CLC digitally was to ensure that lawyers from the lower courts, especially mufassils (towns), had access to view Supreme Court records and learn about law for free.Footnote ⁶⁰ She also mentioned that Manupatra had approached her requesting a formal partnership, but she refused to monetize CLC and have the online resource site be transformed into a subscription model in which only elite institutions and those financially capable would have access to it. Over time, Manupatra had more staff and finances to overpower CLC and expand, while CLC was mostly funded by private donors and ran out of funders to continue building their online database. The lack of funds and non-subscription model restricted CLC’s capacity to update their database regularly, but users can still access the site and view everything that was previously uploaded. The goals of Manupatra and CLC were different to begin with—“one aimed for profit and the other for non-profit,” says the founder and editor of CLC.

Neocolonial digitality dismantles studying power relations from the binaries of West/non-West or North-South; due to India’s higher socioeconomic position and political power, it could dominate Bangladesh’s online legal research market, demonstrating the hierarchies within South Asia. While Manupatra and BdLex include much more information and cases from India, they are marketed and packaged as though the software is diverse and inclusive of South Asia. The transnational politics and economic power-play that lead to monopolizing digital platforms and resources are often veiled in techno-utopian narratives of the digitizing of law.

5.3 Exclusion of shalish

If one searches within the digital archives of legal research software, they will leave with the impression that Bangladesh only operates under state law. The significance and presence of shalish on the ground are not included in legal research software. This is because shalish are not considered as law. This view resembles colonial ideologies of treating shalish and similar alternate legal systems as backwards and outside the realm of “real” law. If one wants to know about shalish and their legal structure, they would have to read about it via other means such as the journals of anthropology, history, or gender studies. When it comes to official legal archives, it is only cases from state law that one can find in legal research software. Even if the digitizing of court records were expanded to include the lower courts such as district courts, shalish would still be excluded since they are not part of state law.

Legal professionals from the Supreme Court, NGO workers, and community members of the villages all agreed that shalish are the more popular legal system in Bangladesh. While the Supreme Court and Bangladesh’s state law sideline shalish and hold themselves superior, they still recognize the existence of shalish. Not only legal actors, but also acts such as the Code of Civil Procedure, 1908, section 89A (Mediation) are often used by NGOs and shalishkars as a green signal from the state to run shalish in Bangladesh.Footnote ⁶¹ Yet, the presence and significance of shalish are entirely absent from Manupatra’s digital database. Applying the concept of legal pluralism when studying the digitization of law reveals that offline elite prejudices and discrimination are embedded within digitization in subtle ways. It helps dismantle the singularity and universality of law, and marks the hierarchies and unequal representation of law in the digital realm. Including only state law while excluding alternate legal systems shows how the intersection between law and digitality is closely tied to legacies of colonialism and modern practices.

Moreover, since most uthai nawa cases operate in shalish, they are absent in the state’s legal records, undermining the ideologies that digital databases provide exhaustive resources for researchers. Digital databases in legal research software rely on information that is from “authoritative” sources such as the state law’s legal archives. Shalish are not only excluded from digital databases, but remain as an “non-credible” and “unreliable” source, lacking the legitimacy demanded by companies that produce legal research software. One can only cite Supreme Court records to strengthen their case, not cases from shalish. In addition, research software reinscribes hierachies and promotes the ideology of the “superiority” of elite courts. By including selected cases from the Supreme Court of Bangladesh, there is an implicit assumption that these cases are those that are the “best” and “most relevant” for research/citation. Easy access to these cases aids in recycling particular legal frameworks by lawyers, academics, and other researchers. This is an embodiment of neocolonial digitality.

In other words, the digital databases of Manupatra and other legal research software not only exclude cases from shalish, but the current digital structure does not have any space to include the complexity and interactions between state and non-state law. It is very rare that cases such as uthai nawa reach the Supreme Court. While the social meanings and language shift by the time they reach the higher courts, the cases take on another level of distortion when they are digitized. While the Supreme Court of Bangladesh might hold itself superior to shalish, it still recognizes the impact and influence of shalish. Legal research software exceedingly marginalizes alternate legal systems and the people who participate in them, as they do not recognize the significant role that shalish play in Bangladesh’s legal landscape.

5.4 Oral legal systems

The concept of neocolonial digitality illuminates how the current practice of digitizing law holds no space for oral legal systems. Most legal archives comprise print media and electronic media, and there is a gap regarding cases that are conducted orally. Shalish are primarily mediated orally and there are rarely any formal recordings of their proceedings. In the databases of legal research software, print and digital technologies are much more closely intertwined, while orality is noticeably marginalized. I do not suggest that there are sharp demarcations of media forms—digital-print-orality—nor do I intend to suggest that alternate courts do not engage with print or digitality. Many scholars undermine colonial binaries that pit orality and literacy against one another. For example, Brinkley Messick and Jessica Marglin demonstrate how practices of orality and print closely interact with each another in Islamic courts.Footnote ⁶²

While shalish are mostly conducted orally, there are some documentation practices in shalish as well. For instance, in my fieldwork, I observed that some shalishkars take a blank piece of paper and ask all parties to sign the document before the shalish starts as a form of commitment that they will adhere to the decisions made by the shalishkars, even if they disapprove of them. After the shalish is complete, the shalishkars write a paragraph or two highlighting what the key problems were and solutions/advice provided by the shalishkars. One of the shalishkars generally keeps the document in case there is a future shalish with the same parties and same issue. While these documents are part of “formal” legal paperwork, they hold symbolic power within rural communities where state and non-state legal procedures are often blurred.

Moreover, shalishkars often take photographs and videos on their mobile phones. These photos and videos are usually taken after a successful mediation with the two parties either holding hands or hugging that are also stored either in some of the shalishkars’ personal archive (phone, email) or a semi-public online archive (Facebook, WhatsApp group). Hence, it is significant to dismantle the idea that shalish operate only orally and that these courts do not engage with digitality. Digital photographs or videos taken on the shalishkars’ phones are often used as records for references and future mediation proceedings.

A key question is: Should we advocate to record shalish so that it can be easier to digitize? My findings indicate that women in rural Bangladesh prefer their pain and vulnerable moments best forgotten by the public. An NGO worker said: “A divorce, no not even that, even a scandal, can end a rural women’s current and future prospects. It can ruin her family’s prospects. It can even impact her sister or daughter’s marriage.” Many women have expressed to me that they consider having a permanent record of one of the worst moments of their life as a violation of their basic human rights. This view is not restricted to Bangladesh. The right to be forgotten is an emerging conversation in Europe and America as well. It is worth noting that some NGO workers suggested that including shalish events by obscuring data and identification of the parties can lead to a more inclusive legal database to help researchers. My point is not debating whether shalish should be digitized or not. Rather, my goal is to note the exclusions within digital legal databases and the self-reflexivity that users of digital archives must have when they draw knowledge from such partial resources.

5.5 Silence and silenced: gendered digital archives

A critical component that current digital legal databases do not capture is a woman’s silence. Silence plays a significant role in a woman’s testimony. For instance, women in uthai nawa cases are silenced in overt and implicit ways in Bangladesh. In my field visits to MLAA, I observed cases in which women discussed their problems with MLAA workers and noted how the information of the case was written down in MLAA’s forms. While expressing their sufferings, many women fell silent mid-sentence; the MLAA workers, who were predominantly male, filled in the silences with their own words—both verbally and in the forms they were taking notes on. In one case I observed in 2021, a young woman, Shejuti, who had eloped with her husband, now faced the risk of a divorce as her husband was having an extramarital affair. She came in with her small child and fell silent in the middle of telling her story: “And what about my babu [child], my husband doesn’t even : : :.” The MLAA worker filled in for her: “He doesn’t even pay for your child, right?/kono taka poisha, khoroj pati dei na baccha ke, tai to?” Is this what Shejuti intended to say? Is there a way to document this silence? Do the MLAA employees and the rural women who seek legal aid have a shared vocabulary and worldview? Filling in the silences indicates that, from the very start of documentation, there are multiple layers of distortion with the words uttered and not even uttered by subaltern women.

In response to the MLAA worker’s question, Shejuti responded:

The MLAA worker asked: “So, he gives money but not any attention to your child?” She responded: “He calls me only when he wants to talk to babu. He never calls to talk to me.” And then the MLAA worker said: “Did he visit your son recently?” to which Shejuti responded, “No, he hasn’t come home for three months.” The MLAA worker’s narrative of this case focused more on how Shejuti’s husband was having an affair and how he was an absent father who was not providing the expenses of his son and wife. Shejuti’s concerns about her husband not paying her any attention or not buying her clothes did not make the cut in the formal documentation. It is possible the MLAA worker wanted to only include relevant information that would help her “win” her case or did not factor some of Shejuti’s claims as worthy of being put into a legal file. While legal aid offices wish to fix family disputes through shalish, if cases go to state courts, their records become foundational documents for those procedures. These kinds of paperwork are at the front line of legal documentation. Women’s experiences are not recorded according to their own words or standpoints, but rather according to the NGO worker who fills in their standardized paperwork or local police officer who files the FIRs.

Moreover, women can choose silence to enforce agency as well. As Mahmood suggests, agency is complex, and we must situate women within their social structures. Women who stay silent in uthai nawa cases might do so out of societal pressure and gendered asymmetry of power, but they might also do so as a strategic decision. In a shalish I observed in Jamalpur district, the woman in question did not utter a single word, even when questions were directed at her. The couple, Lopa and Sajid, were in a relationship and had eloped to get married against both their families’ approval four years previously. After a fight with her husband, Lopa left his house, moved to her maternal grandmother’s house, and wanted a divorce. A shalish was held to mediate this case and reunite the couple. The only time Lopa spoke was to say “no” when the shalishkars asked her to go back to Sajid’s house and give their marriage another try. A few months later, a friend of Lopa’s reflected to me:

Lopa’s silence was a strategic decision based on awareness of the barriers she would face in shalish: “I know how these things work.” She employed silence as a form of agency because she knew that would be her best chance to reach her goal. Since court records rely on verbal testimonies, the messages and powerful meanings of silence are not documented. Lopa’s silence played a central and powerful role in her desire to get a divorce and these forms of agency and legal competence employed by women are not reflected in offline records, and hence they have no scope to ever enter online legal records. In short, the ways in which rural women use silence to creatively construct their legal narrative do not enter digital databases.

The current erasures in digital databases about how silence is both a tool of oppression and emancipation for women leave out significant components of how women navigate around law and legal matters in Bangladesh; this is neocolonial digitality. Digital legal databases are gendered archives in which women have their perspectives filtered and rewritten according to the bounds of modern state law and its elite participants. The increase in the volume of digitized court records does not imply that the archive is expanding, inclusive, or diverse. There are overwhelmingly more Muslim judges and legal actors in Bangladesh who are men. Marginalized communities and groups such as women, Hindus, persons with disabilities, hijras, indigenous communities, non-Bangalis, and so on tend to have their stories and legal narratives recorded in print and electronic/digital forms from dominant voices and standpoints. Hence, the digital legal archives that are used to produce knowledge today are largely based on elite, heteronormative, ableist, and patriarchal versions of events.

5.6 Digitizing the demarcation of religion

Since documents are essential components of digital legal archives, it is important to note how religious perspectives are either disregarded or reframed in the documentation process by lawyers or NGO workers. A case in a district court I visited in 2019 involved a woman who claimed she was possessed by a jinn or some other external spiritual force that had made her kill some farm animals of her neighbour. The neighbours claimed that she was lying and that she had killed the animals out of animosity. Many people in the community believed that a jinn had possessed this woman, coercing her to act in a way that she would not have otherwise. Yet this component never made it into any of the lawyer’s formal paperwork. Instead, it was recorded that the woman in question was jealous because she assumed that her husband was having an affair with her neighbour and so she killed the farm animals out of spite. When I asked the lawyer about the jinn testimony, he said: “I’m a lawyer. I might not work in Dhaka city or in America, but I know better than to include this rubbish/gibberish (abul tabul). We all know what the truth is.”

In another case, a Muslim woman, Yasmine, went to a local legal aid NGO in Jamalpur district to ask for a divorce. Even though she had voluntarily eloped, she wanted a divorce now because her husband was an avid gambler and she did not want Allah’s naraz (displeasure) to befall her and her family; she had had a miscarriage and considered that to be a sign to leave her “unholy” household. Khaleda, the local aid NGO officer handling this case, was a religious Muslim woman and agreed with Yasmine’s reasoning of how gambling might lead to Allah’s naraz. Khaleda later told me: “Poor Yasmine. It’s good she’s leaving him. Allah will never bless the household of a gambler.” Yet, when Khaleda filed the paperwork, there was no mention of Allah’s naraz as the main reason why Yasmine as well as others at the NGO-mediated shalish validated why she should get a divorce. The paperwork only indicated that the man was a gambler, did not return to his house many nights, and did not show any love or compassion towards his wife. When I asked Khaleda why she omitted the part of Allah’s naraz in her report despite it being such a significant part of Yasmine’s story, she was surprised and responded in an amusing tone: “You don’t write these things in paperwork! The things you say (ki jebolen, apa).” I responded: “Won’t it help her case?” She responded: “Everyone knows it. We don’t have to write it.” Khaleda was one of the shalishkars and, despite her personal view and advocacy in the shalish that Allah’s naraz is a legitimate reason for divorce, this aspect of the event never made it into any written record.

These cases indicate that the formal paperwork of institutions requires a detachment from religious or faith-based practices to maintain legitimacy, and hence are subsequently unable to be part of the digital legal databases that rely on state legal records. In state and legal aid records, women’s words and intentions have to be “rationalized.” Sometimes paperwork might refer to religious remarks in the form of testimonies, but some of the early documents of state courts—NGO reports or police FIRs—must hold a “secularized” position. NGO documents are not included in the digital legal databases in legal research software, but many NGOs publish annual reports on their websites. These documents are significant because they can trickle up. FIRs are often referred to in the Supreme Court, and legal aid NGO documents are often submitted in the lower courts when the case moves from shalish to state courts. Hence, these types of writing practice add to the continuation of the writer being forced to secularize their voice and disassociate religion from formal paperwork, which contributes to print texts producing a particular narrative and erasing the legal reasoning and moral logics that can be driven by faith or religious proclivities. In doing so, this results in neocolonial digitality as the digitizing of cases inadvertently reproduces the religious/secular binary and circulating particular secularized narratives of events.

5.7 Data analytics: uthai nawa = abduction

When uthai nawa cases are included in Manupatra, they are never treated as the complex uthai nawa cases on the ground, but rather as abduction cases. All the messiness and nuances that were lost in the Supreme Court are reinscribed in digital databases through online tags and filters that mark such cases as abduction. Learning about uthai nawa cases that are labelled as kidnapping from digital archives is particularly critical because the coded language can be misunderstood even by those who speak Bangla. Such mistranslations reinforce neocolonial digitality and can generate further harm. For instance, mislabelling these cases as abduction creates false statistics in research software. It generates biased data analytics and crime patterning that suggest a village has a higher kidnapping rate than it does in reality. Research and studies that draw from such online resources can also be used to justify policing and surveillance by the state. These false statistics of kidnapping lead to the communities living in the villages to be treated as the “barbaric” and “backwards” others who need monitoring by the state, urban local elites, international NGOs, and intergovernmental organizations.

5.8 Exception: not the norm

The databases of legal research software record the exceptions, not the norms. Thus, can these records be used to generate normative statements about Bangladesh’s law and legal scenarios? The Supreme Court’s treatment of uthai nawa cases is not the norm in most parts of Bangladesh; it is the anomaly and exception. In addition, most consensual uthai nawa cases are handled within the community and never reach the Supreme Court. Hence, the cases in legal research software that are based on the Supreme Court are the anomalies that do not represent how most Bangladeshis approach law and experience legal proceedings in their everyday lives. Bangladeshi rural women’s perspectives about law and their role in legality are only recorded in official legal archives at moments of disruption. These records often rely on moments of vulnerability and records of testimonies that are summarized and paraphrased by police officers, NGO workers, or lawyers.Footnote ⁶⁴ Hence, legal judgments and research built on the exceptions slowly become normalized—the legal archive built from exceptional standpoints becomes the norm.

Moreover, archives have a complex role in blurring temporalities: past, present, and future. Michel-Rolph Trouillot states that archives play a crucial role in the production of history as they can silence people and erase historical events.Footnote ⁶⁵ He further states that there is an asymmetry of power regarding who gets to write records and who gets to decide what kinds of sources are worth including in archives. Despite the power imbalance and partial narratives, Trouillot argues that these sources end up shaping historical facts that lead to current and future writings that supplement the existing dominant narrative. Hence, archives are not just physical or online locations that contain information of the past; they also play a significant role in shaping the idea of what will be or what could be in the future. Ann Stoler encourages scholars to think about “archives not as sites of knowledge retrieval, but of knowledge production”—that is, as “cultural agents of ‘fact’ production.”Footnote ⁶⁶

Digital databases reinforce neocolonial digitality as they disproportionately disseminate knowledge that can marginalize communities such as rural women living in post-colonial states in the Global South, and yet they operate with the rhetoric that they are inclusive and beneficial for such communities. If the current uthai nawa case records are used as the primary sources for generating current and future digital legal databases, then, over time, they will help develop a linear legal archive that appears coherent in telling and retelling the same types of stories and generating a consistent narrative about events.