Sarabai v. Rabiabai – Divorce as Evasion in Modern India

By Dixie Morrison

This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.

Case Summary:

Sarabai v. Rabiabai is a family law case decided in the Bombay High Court in 1905, during the period of British imperial rule over India. The plaintiff is the former wife of the deceased Adam Haji Sidick, and the respondent is Sidick’s estate. Sarabai alleges that Sidick never validly divorced her prior to his death and that she is therefore entitled to a greater share of his estate. The main issue of the case is whether Sidick validly divorced Sarabai under Islamic law even though a) Sarabai alleges she was never informed of the divorce and b) Sidick was ill when he divorced her. Sidick’s estate prevailed, with the judge determining that Sarabai is entitled to no greater share of inheritance than any divorced woman because a) Sidick’s divorce pronouncement to a qāḍī (judge) was sufficient notice and b) Sidick’s illnesses were not obviously fatal at the time of his divorce. This post discusses how the judge reasons through the case, focusing on the second question of Sidick’s illness. 


Sarabai v. Rabiabai, (1906) 8 BOMLR 35 (India).


Sarabai, the plaintiff, sued her deceased ex-husband’s estate for inheritance rights, alleging that she and Adam Haji Sidick were never validly divorced. As Muslims living in Bombay,[1] the parties are in the Bombay High Court. Given the year and court, the judge in question is likely Sir Stanley Lockhart Batchelor, a member of the Indian Civil Service.[2] This post analyzes Batchelor’s role as a non-Muslim interpreter of Islamic law and his use of analogical reasoning and experts to arrive at a conclusion.

As the judge in charge of ruling on the case, Batchelor seems to make a good-faith effort to fulfill the role of mujtahid (jurist) in “exert[ing] to the utmost his intellectual faculties with a view to arriving at a solution,”[3] establishing at the outset that “the parties are Hanaf [sic] Sunnis and are therefore governed by the Law applicable to that division of Mahomedans.”[4] At this time, colonial British authorities in India applied Muslim personal law to Muslim parties in matters of marriage and inheritance, among other personal issues.[5] Throughout his decision, Batchelor reveals his lack of personal expertise on Islamic law by referring to secondary British sources for guidance on how to apply it, such as Charles Hamilton’s al-Hidayah translation and Baillie’s Islamic law digest.[6] Batchelor’s deference to existing scholarship on Islamic law speaks to his intention of properly applying Islamic legal principles but also to the challenges of applying Islamic law under a non-Muslim political structure.

A significant portion of the decision concerns whether Sidick’s health problems, which he was suffering when he divorced Sarabai, invalidate his divorce through “evasion.” The court breaks down the issue into two questions: 1) Would a terminal illness constitute “evasion” under Islamic law? 2) Did Sidick have a terminal illness, or just typical old-age ailments? Tackling the first issue, Batchelor examines references to “evasion” in Islamic law. The “underlying legal principle” behind why a dying man cannot divorce his wife is “that a wife’s slowly accrued rights shall not be suddenly defeated by the caprice of the husband while laboring under such mental infirmity as usually accompanies the approach of death.”[7] For this reason, “repudiation by a man in his last illness is always referred to as repudiation by a[n] . . . evader.”[8] Since death is theoretically imminent for us all, mere illness is not enough to invalidate a divorce. Batchelor quotes Baillie noting, “[O]ne is not an evader though he were surrounded by the enemy, or in the line of battle . . . because in all these cases a way of escape may be found.”[9] Knowledge of the unlikelihood of escape from peril makes a man an evader. If Sidick can be shown to have known he was mortally ill when he divorced Sarabai, he would be an “evader” and the divorce invalid.

By identifying known unlikelihood of escape as the common denominator among evaders, Batchelor is using analogical reasoning, a cornerstone of Sunnī Islamic legal reasoning. The ratio legis is the “attribute common to both the new and the original cases” and is one of the four elements of qiyās, or analogical reasoning as a method of legal interpretation.[10] For example, mujtahids deciding that date-wine is prohibited just as is grape-wine might note that the “common denominator, the ratio legis, is the attribute of intoxication.”[11]

In order to determine if Sidick is an evader, Batchelor must determine if his case shares the ratio legis of evasion. This question turns on what kind of ailments afflicted Sidick, which would shed light on whether he was aware of his impending death when he divorced Sarabai.

Batchelor turns to a combination of witnesses and experts to answer this question of fact. Both parties marshal witnesses to characterize Sidick’s health problems to their favor, but only the respondents produce witnesses who have some professional expertise in the relevant field of medicine. While the plaintiff’s witnesses attempt to argue that Sidick was in the grip of heart disease, a mortal illness that would make any divorce “evasion,” Batchelor states, “[I]n my opinion there is overwhelming evidence that is not so. Upon this point it should suffice to refer to the two experienced doctors who attended Sidick during his last illness,” instead of referring to the plaintiff’s witnesses with “their elementary ignorance of medicine.”[12] By using expert witnesses to help decide a question of fact, Batchelor follows in the footsteps of established Islamic jurisprudence, which “recognizes the validity of the opinion of experts in various fields on the basis that their opinion is normally convincing” and includes “the physician’s judgment about the physical ability of a person to perform certain religious obligations.”[13]

While a strict textualist might balk at using experts to help judge a case, thus substituting human judgment for interpretation of the divine word, the policy argument behind this practice is that “[i]t is experts who determine whether the application of a law will result in disorder.”[14] Mixed questions of law and fact like the ones with which Batchelor grapples in this case show the necessity of supplementing divine authority with human discretion. Even if the Qur’ān and other authorities establish that a man cannot divorce his wife as an “evasion,” the text is unfortunately silent on the specific question of whether Adam Haji Sidick was an evader.

Early in his decision, Batchelor notes, “[W]e are not in medieval Arabia, but in modern India.”[15] Nevertheless, his reasoning is an example of how principles of Islamic legal reasoning formulated in medieval Arabia can apply to Muslims living centuries later. Any legal system that applies through centuries and across nations must make room for flexibility in matters of custom and reasoning, and Sarabai displays both in its consideration of analogy, expertise, and policy.


[1] See Sarabai v. Rabiabai, (1906) 8 BOMLR 35 (India) at 1:5, 7:20 [hereinafter Sarabai].

[2] SIR S.L. Batchelor, High Court of Bombay, (last visited Oct. 2, 2019).

[3] Wael B. Hallaq, Shari‘a: Theory, Practice, Transformations 110 (2009).

[4] Sarabai, at 1:3.

[5] See K. K. Abdul Rahiman, History of the Evolution of Muslim Personal Law in India, 11 J. of Dharma: Dharmaran J. of Religions and Philosophies 249, 254 (1986).

[6] See Sarabai, at 2.

[7] Id. at 4:13.

[8] Id.

[9] Id.

[10] Hallaq, supra note 3, at 101.

[11] Id.

[12] Sarabai, at 6:18.

[13] Hossein Modarressi, The Legal Basis for the Validity of the Majority Opinion in Islamic Legislation, in Under Siege: Islam and Democracy 81, 87 (Richard W. Bulliet ed., 1993).

[14] Id. at 85.

[15] Sarabai, at 3:12.

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