{"id":18596,"date":"2019-12-12T10:51:05","date_gmt":"2019-12-12T05:21:05","guid":{"rendered":"http:\/\/www.jgls.edu.in\/?page_id=18596"},"modified":"2020-05-14T13:34:29","modified_gmt":"2020-05-14T08:04:29","slug":"volume-7-issue-1-2016","status":"publish","type":"page","link":"https:\/\/jgu.edu.in\/jgls\/jglr\/volume-7-issue-1-2016\/","title":{"rendered":"VOLUME 7, ISSUE 1, 2016"},"content":{"rendered":"\t\t
VOLUME 7, ISSUE 1, 2016<\/p>\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
Issue Editors: <\/b>Saptarshi Mandal, Sachin Dhawan<\/p>\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t Editor's Introduction: <\/span>Religious family law and legal change in comparative perspective<\/span> ARTICLES<\/strong><\/span><\/p> 1. The market and the family, the sacred and the secular in modern comparative law<\/strong> \u00a0<\/p> 2. To ban or not to ban: Lessons for India from America\u2019s endeavour to proscribe polygamy<\/strong> \u00a0<\/p> 3. Customary law of stateless nations: Some observations on the question of who can reform the Thesawalamai, the customary laws of the Tamils in Sri Lanka<\/strong> \u00a0<\/p> 4. Transformations in Sharia\u2019h family law in the Republic of Maldives<\/strong> \u00a0<\/p> 5. Women\u2019s right to unilateral no-fault based divorce in Pakistan and India<\/strong> \u00a0<\/p>
Saptarshi Mandal and Sachin Dhawan <\/span>(PDF)<\/a><\/p>\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
\u00a0 \u00a0 \u00a0Veronica Corcodel
\u00a0 \u00a0 \u00a0 Article (PDF)<\/a> | [expand title=”Abstract”]
This paper explores the operation of the distinctions between the market and the family, the sacred and the secular in Euro-American comparative legal scholarship. It contributes to existing debates by exploring the potential of the lenses of inclusion and exclusion to address the political implications of the two dichotomies. Starting from the observation that the two distinctions are often inseparable, since market law is constituted in opposition to religious family law, it puts emphasis on the ways in which the exclusionary dimension of such construction is produced. It also shows that exclusion stands in tension with comparative law\u2019s own promise of inclusion. In this sense, the field is reducible neither to inclusion nor to exclusion, and yet it contains both. Capturing this ambivalence in the works of some of the most important Euro-American comparatists, the paper concludes with some tentative thoughts on a critical praxis of particularism.
Corcodel, V. Jindal Global Law Review (2016) 7: 9. https:\/\/doi.org\/10.1007\/s41020-016-0023-x.[\/expand]<\/p>
\u00a0 \u00a0 \u00a0 Sachin Dhawan
\u00a0 \u00a0 \u00a0 Article (PDF)<\/a> | [expand title=”Abstract”]
Both the United States [U.S.] and India are home to communities that practice polygamy. Given this commonality and the fact that India has often been inspired by U.S. precedent on various matters of law, it is not surprising that flagship Indian cases on polygamy are influenced by U.S. polygamy law cases. However, it will be shown that this reliance on U.S. case law is confined to archaic 19th century cases. These cases, which strictly proscribe polygamy, don\u2019t reflect the changes of the last 60 years in favor of non-enforcement of the polygamy ban by American law enforcement officials at the state and Federal level. They are also unreflective of a recent judicial trend in the U.S. that (a) indicates a shift away from imposition of majoritarian values upon the population and (b) firmly rejects the \u2018public harm\u2019 justification of polygamy proscription. Such a justification infused the writings of the 19th century U.S. Supreme Court decisions and subsequently found expression in Indian judicial pronouncements. The paper concludes by examining the relevance of the U.S. move away from its ban on polygamy to the ongoing discussion in India over whether to ban polygamy for Muslims.
Dhawan, S. Jindal Global Law Review (2016) 7: 31. https:\/\/doi.org\/10.1007\/s41020-016-0025-8.[\/expand]<\/p>
\u00a0 \u00a0 \u00a0 Kumaravadival Guruparan
\u00a0 \u00a0 \u00a0 Article (PDF)<\/a> | [expand title=”Abstract”]
Despite the definitive trend towards consolidating the Sri Lankan state as a Sinhala Buddhist state in the post-colonial context, the legal system was left intact in its plural character. In fact, the current constitution seeks to even prevent fundamental rights provisions in the constitution from overriding customary law principles in the event of clash. However, there have been calls for reform, which have focused mainly on enacting a uniform civil code. This project of uniformization advertently or inadvertently aids the monist consolidation of the Sri Lankan state. This paper argues that the Sri Lankan Parliament and courts lack political legitimacy to amend the Thesawalamai, which the paper characterizes as pre-state law, leave alone abolishing it and enacting a uniform civil code. The legitimacy deficit of Sri Lankan institutions is built on the long history of brutal repression of the Tamil struggle for self-determination. The paper suggests that a viable, politically legitimate process for reforming the Thesawalamai can only be put in place if the national question is settled to the satisfaction of the Tamil community in Sri Lanka. It further suggests that placing the responsibility of amending the pre-state law of the Tamils in the hands of institutions which they consider to be politically legitimate and representative is the best path to reforming the Thesawalamai.
Guruparan, K. Jindal Global Law Review (2016) 7: 49. https:\/\/doi.org\/10.1007\/s41020-016-0021-z.[\/expand]<\/p>
\u00a0 \u00a0 \u00a0 \u00a0Marlum Jabyn
\u00a0 \u00a0 \u00a0 Article (PDF)<\/a> | [expand title=”Abstract”]
In 2000, the codified Shari\u2019ah family law of the Maldives, primarily aimed at regulating marriages and divorces in the country, also introduced a minimum age of marriage, restrictions on reconciliation, divorce and polygamy. Many of these as unique examples of a Shari\u2019ah-based family law were targeted to incorporate Shari\u2019ah family norms into a single code and at the same time address social issues in the Maldives around family affairs. This article examines the practice of family law in the Maldives, claiming that while significantly Shari\u2019ah compliant, this area of law in the Maldives is transforming into a normative system that is guided by modern notions of rights of individuals, yet adhering to Islam, although not strictly bound by the formalistic Shari\u2019ah rules. Through selected cases, the paper demonstrates aspects of legal reform and identifies the prospects and problems with the codified Shari\u2019ah family law in the Maldives.
Jabyn, M. Jindal Global Law Review (2016) 7: 61. https:\/\/doi.org\/10.1007\/s41020-016-0022-y.[\/expand]<\/p>
\u00a0 \u00a0 \u00a0 Muhammad Zubair Abbasi
\u00a0 \u00a0 \u00a0 Article (PDF)<\/a> | [expand title=”Abstract”]
Pakistani judges dispensed with the requirement of the consent of the husband for a wife\u2019s right to unilaterally dissolve a marriage without assigning any of the reasons enumerated in the Dissolution of Muslim Marriages Act 1939. The Lahore HC laid down this rule for the first time in its decision in the Balqis Fatima case in 1959. Eight years later, the Supreme Court of Pakistan endorsed this rule in the Khurshid Bibi case. In 2014, the Federal Shariat Court of Pakistan declared this rule to be in conformity with the injunctions of Islam in the Saleem Ahmed case. In India, however, similar developments did not take place. Rather than extending women\u2019s right to divorce, Indian judges preferred to restrict the husband\u2019s right to divorce under Muslim Personal Law. The main argument in this article is that this divergent attitude of Pakistani and Indian judges toward Islamic divorce law is dictated by factors outside the law. While Pakistani judges felt obliged to reform Islamic family law in the absence of political consensus, Indian judges tried to harmonize Muslim Personal Law with other religious personal laws.
Abbasi, M.Z. Jindal Global Law Review (2016) 7: 81. https:\/\/doi.org\/10.1007\/s41020-016-0024-9. [\/expand]<\/p>