Paper short abstract:

This paper discusses the remedy of conjugal restitution among Muslims. It shows that arguing from the premise that marriage in Islam was a purely civil contract was a means for asserting that the personal law was as genuinely legal in character as the law of the market in classical legal thought.

Paper long abstract:

Henry Maine's famed declaration that social progress can be measured as a movement from 'status to contract' remains familiar to scholars of 19th-century India. While the idea is now bemoaned as a relic of evolutionist social thought, less often has it been asked how the concept of status actually functioned within the law. Were the stylized terms of sociological theory merely imported as is into an equivalently stylized discourse of judicial decision-making? To what extent was the reception of the status-contract divide into law unique to India? In my paper, I begin to address these questions by looking at the development of the doctrine of the restitution of conjugal rights in India during the late 19th-century. Because conjugal restitution originated in English ecclesiastical law, the doctrine in India had tobe secured on a new basis. This gave rise to competing conceptions about whether marriage in the personal law was to be juridically cognized as a relationship of status or one of contract. In the paper, I explain why the contractual view of marriage became especially prominent within the Muslim personal law. As I argue, this was not simply due to the politics of gender subordination by which husbands increasingly took hold of the doctrine to consolidate control over their estranged wives. To the contrary, doctrinal development was also driven by a symbolic politics of communitarian identity in which arguing from the premise of contract was a means by which to prove the genuinely legal character of the Muslim personal law.