HARDLY a week goes by when the inequities of life and the law that women suffer do not receive press attention. A recent reading of an old judgement took me to the ever-present issue of child marriage.
Badal Aurat was a poor Bengali woman. Misfortune visited her early. It came in the form of matrimony. When only five years old she was given in marriage, by her mother. By the time she attained puberty, her husband, Joy Lal, had been convicted of a crime and was in jail. She married Poran Shaikh. Joy Lal pressed charges. Both Badal Aurat and Poran Shaikh were prosecuted for bigamy. They were found guilty and sentenced to prison terms.
Syed Ameer Ali was a barrister of the Inner Temple. A man of letters and of the law. He was a prolific writer, author of several books on the history and laws of the Muslims, a jurist and a politician. In 1890, he was made a judge of the Calcutta High Court. Later in 1906, he co-founded the Muslim League.
In 1909 he became the first South Asian to be appointed a member of the Judicial Committee of the Privy Council, the highest court of appeal for the colonies and the Commonwealth. He remained so till his death in 1928.
On Sept 21, 1891, Badal Aurat had her first stroke of good luck. Her appeal came up before a division bench (a bench of two judges) of the Calcutta High Court over which Syed Ameer Ali presided. In two short sentences, he cut through the cobwebs to reach the heart of the matter: “This is not a case as to … the validity of a marriage … This is a prosecution for a criminal offence… .”
As it was a criminal case, in order to succeed, the prosecution had to prove its case beyond a reasonable doubt. If it failed to do so the accused had to be acquitted. The judges found that the evidence to prove the first marriage was insufficient. It was accordingly invalidated. Badal Aurat and Poran Shaikh were acquitted. This was all that was required to dispose of the case.
More than a century later, the Badal Aurat story refuses to run out of sequels.
Noting, however, that such prosecutions were not infrequent among the Muslims of India, Syed Ameer Ali, regarded this as a good opportunity to deal with the broader issue of child marriages, as well. He disposed it off in a short paragraph. Both the Shia and Sunni schools gave to the minor girl, on reaching puberty, the “absolute power” to either ratify or cancel the underage marriage.
As Joy Lal was in prison when Badal Aurat reached puberty it was “not necessary for her to specifically ratify or cancel the unauthorised marriage.” Her second marriage to Poran Shaikh was “sufficient to ascertain” that “she never ratified the unauthorised first marriage...” That being the case no judicial order was required to effectuate the cancellation.
I learnt about this case from a recent book by Sohaira Z.M. Siddiqui, Islamic Law on Trial: Contesting Colonial Power in British India. This illuminating book about how Muslim lawyers and judges of India engaged with Islamic law in a colonial judicial setting — a terrain designed intentionally to alienate and disempower them — needs to be written about separately. I wanted to read the judgement but was unable to find it, on my own. My young and capable Lahori-lawyer friend, Ali Bhandari, found the law report for me.
Besides the substance of the case what captivated me was how a matter of such importance was dealt with in eight short paragraphs. That is in almost the permissible word limit for this essay. It teaches us that length does not always signal learning. Pretentious language never improves the quality of wri-ting. To the contrary, it often results in confusion. Woolly words lead to woolly thinking.
When an issue is clearly understood, dealing with it in simple language makes the decision elegant and effective. It is not a secret, that judgements which are easiest to comprehend are also the most difficult to write. That explains their dearth.
It also teaches us how the law can be creatively interpreted with empathy for the ordinary litigant to provide much-needed relief. Of course, the judge is not a free agent. He has to navigate the constraints of legal rules. But these are not absolute. Law works through language. The complex interplay between language, law and values provides sufficient space to ease the burdens of life for the disadvantaged. More than a century later, as recent controversies over underage marriage and premarital thalassemia testing demonstrate, the Badal Aurat story refuses to run out of sequels. Hence the never-ending need for judges like Syed Ameer Ali.
The writer is a senior advocate of the Supreme Court.
Published in Dawn, October 27th, 2025
