Islamic law

Contrary to popular conception, Islamic law formed a formal and significant part of British law – in the overseas colonies. Islamic law, with significant modifications, formed the basis of criminal law in India from the late eighteenth century, formally until 1862 when the Indian Penal Code came into application. This was because the former rulers of India, the Mughals, were Muslim, and although they permitted a range of legal tribunals to function, the state courts were formally based on Islamic law.

Eventually, under British rule, the scope of Islamic law came to be limited to family matters and inheritance. Islamic law, or ‘Anglo-Muhammadan law’, as it came to be known because of the mixing of sources and procedures, eventually came to apply only to Muslims, and as a personal status law. In India, they were applied through a common judicial system, i.e. there were no separate Islamic courts.

Islamic law also provided the basis for personal status laws in Malaya and Egypt – but there they were applied by a separate sharia court system.

The essays below, written by specialists, provide insight into the diverse social groups and legal traditions encompassed within the ambit of Islamic law, as recognised by the British empire.

Khoja Ismailis and colonial law

Dr Soumen Mukherjee

The Ismailis, a branch of the Shia order, known in South Asia and parts of Africa as Khojas (or Khoja Ismailis), differ from the rest of the Shia, and indeed the wider Muslim community, in their belief in the spiritual leadership of the Imam of the Time (Hazir Imam), embodied in the person of the Aga Khan. However, this clear-cut definition of the community’s identity was by no means settled as late as down to the early twentieth century. The history of this identity formation is closely tied up with religio-legal experiments in colonial South Asia. Scholars have noted that this process was marked by a tension characterised by the preference of religious laws, that sought to streamline religious and sectarian categories, over customary laws, often closer to Hindu practices. However, this triumphalist vision of standardised religious identities is sometimes overdrawn, as the case of the Khojas illustrates. In the nineteenth century a section of the Bombay Khojas, self-styled reformers identifying themselves as Sunni Muslims, challenged the authority of the Aga Khan (I), and his Shiite claims of Khoja identity. In the 1866 Great Khoja Case that followed, the Khojas were declared by the Bombay High Court to be Shiite with the Aga Khan as the apex authority, splitting the community into Shia and Sunni denominations. In the subsequent decades further schisms occurred in South Asia and East Africa within the Shia group of the Khojas, claiming contending identities of the Twelver (or Ithna Ashariya) Shia and Sevener (Imami) Shia, following the Aga Khan. Such contestations mostly gravitated around inheritance and property matters, culminating in the 1909 Judgement in the wake of the Haji Bibi Case that declared the Khojas to be Imami Shia. Yet, for greater part of the late colonial period customary rules were often adhered to by different sections of the Khojas, defying in the process any ultimate form of standardisation.