Farāmīn-i Niẓāmat: Looking at legal layers in a royal decree

By Elizabeth Lhost

The first farmān (order) (pictured below) in a volume titled Farāmīn-i Niẓāmat-i dār al-qażāʿ-yi balada, min ibtidāʿ–yi sana-yi 1339 H li-ghāyata-yi sana-yi 1350 H, daftar-i Senṫral Rikārḋ, Ḥukūmat-i Ḥaidarābād (Orders from the office of the qażī of the city, from the start of year 1339 AH to the end of year 1350 AH, Central Records Office, Government of Hyderabad) is dated 20 Muḥarram al-Ḥarām 1339 AH (October 4, 1920 CE) and recounts the following: that on 4 Ẕū al-ḥijja 1338, the Ṣadr al-Ṣadūr (chief ecclesiastical officer of the Ṣadārat al-ʿĀliya) petitioned the government with a request (ʿarż) to update the state’s penal code and to bring it in line with sharīʿa.[1] “In sharīʿa” (sharʿ-i sharīf maiñ), the request stated, a woman whose husband has been missing (mafqūd al-khabar ) for four years (chār sāl) is permitted to marry again.[2] However, Section 421 of the state’s penal code, the Taʿzīrāt-i Āṣafī, stipulated that the wife would have to wait seven years (sāt sāl) before contracting a second marriage. The Ṣadr al-Ṣadūr therefore recommended changing the penal code. Following this request, the dār al-qażāʿ’s resulting order (ḥukm) stated that the government would be consulted so that the appropriate (munāsib) order (ḥukm) could be implemented (ṣādir).

Like the other orders compiled in this book, the farmān of 20 Muḥarram 1339 AH was written in a neat hand, on high-quality paper with the state’s royal seal embossed at the top. It was bound together with 150 or so other requests covering concerns about building mosques, appointing qāżīs (notaries, magistrates), making improvements at local dargāhs (shrines), attending special events, issuing announcements related to religious observances, and other matters connected to the Ṣadārat’s activities. Most of the orders are short. They include one or two lines of text summarizing the original request, followed by a short statement stating the resulting decision. Written without additional evidence or supporting documentation, the farmāns are more like notes documenting decisions than full reports on individual situations or circumstances.

Orders like these, which appear to have been issued individually before being compiled and bound into the volumes that now reside in the Telangana State Archives in Hyderabad city, speak to the overlapping and intersecting forms of authority that operated in the princely state and disrupt narratives of forward, linear progress that diagrams like Mir Basit Ali Khan’s might offer.[3] But before jumping ahead to how sources like these might offer new opportunities to rethink legal-historical narratives, let me first offer some context for the ruling that grounds today’s essay.

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“Mafqūd al-khabar” (or, absent/missing without information) refers to circumstances in which a woman’s husband has been away and his whereabouts, anticipated return date, and status (alive or dead) are unknown. Problems arise under such circumstances when women are unable (a) to obtain material/financial support for themselves and their children (owing to the husband/breadwinner’s absence) and (b) to remarry in order to receive support from a new husband/family.[4] Around this time in British India, the lack of an appropriate and accessible legal remedy for cases involving absentee husbands not only created problems for women (who often faced dire economic conditions as a result of their economic / marital limbo) but also raised concerns among colonial officials and Muslim scholars—especially after women began to choose apostasy and conversion as a way to escape unproductive, unsupportive, and abusive marriages.

Eventually, leading Muslims and British government officials joined together to enact the Dissolution of Muslim Marriages Act in 1939, which granted Muslim women the right to judicial divorce when their cases met certain criteria. Muhammad Khalid Masud, Muhammad Qasim Zaman, Fareeha Khan, Rohit De, and others have all looked to this Act—and the opinions and inquiries from scholars like Ashraf ʿAli Thanawi that supported its enactment.[5] Many see it as a landmark piece of legislation that not only brought together different groups of stakeholders but also involved South Asia’s predominantly Ḥanafī jurists embracing talfīq (judicial borrowing/stitching together) to adopt and accept the Mālikī school’s interpretation: four years of waiting was long enough.

In Hyderabad, Section 421 of the penal code (as revised in 1324 F / 1338 AH)[6] followed the wording of Section 494 of the Indian Penal Code (Act XLV of 1860), albeit in Urdu, not English.[7] Under the heading “offences relating to marriage,” (jarāʾi-i mutaʿallaqa-yi izdiwāj, in Hyderabad’s Urdu code), Section 421 forbid individuals from marrying during the lifetime of a living spouse (husband or wife, shauhar yā zauja). Exceptions to this prohibition allowed those whose previous marriage a court had declared void (mansūkh) and those whose spouse had been continually absent for a period of seven years (izdiwāj kē waqt musalsal sāt sāl tak ūskē pās sē ghāʼib rahā yā rahī) to remarry.[8] The Ṣadr al-Ṣadūr’s petition matter-of-factly—and without reference to any jurisprudential arguments or texts—recommended a change to bring this section of the penal code in line with Mālikī-cum-Ḥanafī-sharʿī interpretations for mafqūd al-khabar cases.

Subsequent evidence from Hyderabad state suggests that the four-year waiting period became the accepted standard but even without this additional contextual knowledge, the farmān remains an anomalous legal source that shows how multiple legal forms (penal codes, official decrees, interpretations of sharīʿa) operated side by side.[9] In the farmān, the Ṣadr al-Ṣadūr critiques the penal code for its inaccuracies relating to mafqūd al-khabar cases. In the penal code, Section 421 follows the Indian Penal Code and criminalizes polygamy (i.e., entering a new marriage when already legally married) but does not specifically refer to mafqūd al-khabar. The farmān’s resulting order (ḥukm), in turn, refers the question to the government (ḥukūmat) so that the correct order (ḥukm) can be enacted.

While it is clear from this farmān, one of several similar such orders in the bound volume of farāmīn, that multiple sources, influences, offices, and genres went into the making of law in princely Hyderabad, the farmān itself leaves many questions unanswered. It leaves unanswered questions about why the ṣadr framed Section 421 of the Hyderabad penal code in terms of mafqūd al-khabar. It leaves unanswered questions about how the ṣadr determined that according to sharīʿa a wife may contract a second marriage after waiting only four years. It leaves unanswered questions about what happened next, and it leaves unanswered questions about how Section 421 applied to non-Muslim marriages, as much of Hyderabad state’s population was Hindu. Such questions not only serve as a provocation to take princely state sources like these more seriously but also to think about them alongside sources, conversations, and debates taking place in directly ruled territories. They also encourage historians to consider how the circulation or interaction of ideas shaped legal history across territorial demarcations.

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In my next essay, I address this idea directly by looking at letters and postcards that were sent into and across princely Hyderabad in the service of answering legal questions.

Further reading:

1. Rohit De, “The Two Husbands of Vera Tiscenko: Apostasy, Conversion, and Divorce in Late Colonial India,” Law and History Review 28, no. 4 (2010): 1011–41, https://doi.org/10.1017/S0738248010000751.
2. Fareeha Khan, “Traditionalist Approaches to Shari`ah Reform: Mawlana Ashraf `Ali Thanawi’s Fatwa on Women’s Right to Divorce” (PhD diss., University of Michigan, 2008).
3. Muhammad Khalid Masud, “Apostasy and Judicial Separation in British India,” in Islamic Legal Interpretation: Muftis and Their Fatwas, eds. Muhammad Khalid Masud, Brinkley Morris Messick, and David Stephan Powers, Harvard Studies in Islamic Law (Cambridge, Mass: Harvard University Press, 1996), 193–203.
4. Mīr Bās̲iṭ ʻAlī Khān, Tārīkh-i ʻadālat-i Aṣafī, Yaʻnī Salṭanat-i Āṣafiyya kī ʻadālatoṉ ke Qiyām va Irtiqā kī dō sad sāla tārīkh aur Ḥażrat Bandgān-i ʻālī Āṣafjāh-i sābiʻ ke ʻahd-i Humāyūnī ke ʻadālatī iṣlāḥāt va taraqqiyāt kā tafṣīlī tazdhkīra (Hyderabad, India: Shams al-Islām Press, 1937).
5. A. Muttalib, Administration of Justice under the Nizams, 1724-1948 (Hyderabad: State Archives, Andhra Pradesh, 1988).
6. Muhammad Qasim Zaman, Ashraf ʿAli Thanawi: Islam in Modern South Asia, Makers of the Muslim World (Oxford: Oneworld, 2008).

Notes:

[1] The Ṣadr al-Ṣadūr was head of the Ṣadārat al-ʿĀliya. In the state’s English-language administration reports, the name of this department is translated as the “Ecclesiastical Department,” making the Ṣadr al-Ṣadūr the chief ecclesiastical officer. In my work, I use a more literal translation of the department and refer to it as the “noble secretariat” and refer to the ṣadr as the head officer or head of heads.

[2] The farmān provides no indication of what sources, references, or interpretative mechanisms the ṣadr was using to make this claim, nor does it make claims to authority within a specific school of jurisprudence. The text simply says “in sharīʿa.” In other materials from Hyderabad’s Ṣadārat al-ʿĀliya, I have found references to specific works of Ḥanafī jurisprudence, including the Radd al-muḥtār and the Waqiʿāt al-Muftain for similar cases.

[3] I introduced this diagram in my previous essay.

[4] Orhan Pamuk’s My Name is Red has a memorable example of a woman in such a situation forum shopping for a response from a favorable muftī.

[5] Muhammad Khalid Masud, “Apostasy and Judicial Separation in British India,” in Islamic Legal Interpretation: Muftis and Their Fatwas, eds. Muhammad Khalid Masud, Brinkley Morris Messick, and David Stephan Powers, Harvard Studies in Islamic Law (Cambridge, M.A.: Harvard University Press, 1996), 193–203; Rohit De, “The Two Husbands of Vera Tiscenko: Apostasy, Conversion, and Divorce in Late Colonial India,” Law and History Review 28, no. 4 (2010): 1011–41, https://doi.org/10.1017/S0738248010000751; Rohit De, “Mumtaz Bibi’s Broken Heart: The Many Lives of the Dissolution of Muslim Marriages Act,” Indian Economic & Social History Review 46, no. 1 (2009): 105–30; Fareeha Khan, “Traditionalist Approaches to Shari`ah Reform: Mawlana Ashraf `Ali Thanawi’s Fatwa on Women’s Right to Divorce” (PhD diss., University of Michigan, 2008); Muhammad Qasim Zaman, Ashraf ʿAli Thanawi: Islam in Modern South Asia, Makers of the Muslim World (Oxford: Oneworld, 2008).

[6] Hyderabad state used a (modified) Fasli (harvest) calendar.

[7] Hyderabad’s penal code includes a concordance table, indicating how individual sections in the Taʿzīrāt correspond to the Indian Penal Code (Act XLV of 1860).

[8] Note that the term “mafqūd al-khabar” does not appear here and that the penal code does not differentiate based on the couple’s religion.

[9] See, for instance, the discussion of an incident from 1950 in the final chapter of my book. Elizabeth Lhost, “Whose law is it, anyway? Navigating legal paths in late colonial society,” in Everyday Islamic Law and the Making of Modern South Asia (Chapel Hill: University of North Carolina Press, 2022), 222–43.

(Suggested Bluebook citation: Elizabeth Lhost, Farāmīn-i Niẓāmat: Looking at legal layers in a royal decree, Islamic Law Blog (Mar. 16, 2023), https://islamiclaw.blog/2023/03/16/faramin-i-ni%e1%ba%93amat-looking-at-legal-layers-in-a-royal-decree/)

(Suggested Chicago citation: Elizabeth Lhost, “Farāmīn-i Niẓāmat: Looking at legal layers in a royal decree,” Islamic Law Blog, March 16, 2023, https://islamiclaw.blog/2023/03/16/faramin-i-ni%e1%ba%93amat-looking-at-legal-layers-in-a-royal-decree/)