Methodology and research sites

This article is based on fifteen months of in-person ethnographic fieldwork in Bangladesh. I conducted participant observation in three main sites to understand what kinds of evidence is admissible in state courts and shalish to prove a marriage: Dhaka city, villages in Madaripur district, and villages in Jamalpur district. Dhaka, which is the capital city where the Supreme Court of Bangladesh is located and where the central locus of power is held, provides a perspective from an elite, urban space. Villages across Madaripur and Jamalpur districts provide insight on how rural communities practice law and what the communities’ expectations of justice are. In Dhaka city, I was a research fellow in the Dhaka head office of a leading national NGO: Bangladesh Legal Aid and Services Trust (BLAST). There are notable lawyers at BLAST who are affiliated with the Supreme Court of Bangladesh in various capacities such as barristers, advocates, law students, and researchers. Close engagement with this NGO provided insight on how evidence is handled in state courts—namely, the Supreme Court of Bangladesh. While working on different projects at BLAST as a fellow, I built my network in the urban legal community and traced potential interlocuters for further inquiries into relevant cases and interviews.

Outside the capital city of Dhaka, I conducted fieldwork in multiple villages in Madaripur district and Jamalpur district to understand how evidence is handled in shalish. In Madaripur, a NGO called Madaripur Legal Aid Association (MLAA) allowed me to attend the NGO-mediated shalish that they run. Interviews with the lawyers and field coordinators revealed how NGO-mediated shalish use procedures intermittently from both state law and shalish. Ibrahim Miah, an advocate from MLAA, suggested that the use of shalish is a familiar justice mechanism for the rural community but that the NGO-mediated shalish are partly regulated so that they have a “watchdog” that is involved in the mediation and can intervene to influence the decisions when necessary. These watchdogs are the community-based organizers who are trained by MLAA to pay attention to minority and marginalized communities that are often discriminated against within society due to asymmetries of power. The watchdogs are expected to intervene when necessary to ensure that proper justice is met. In more complex cases, those individuals with formal legal training (such as advocates) are the watchdogs. In both BLAST and MLAA, I used the snowball sampling method to trace networks and find new informants/participants for follow-up research and interviews.

Despite the benefits of studying NGO-mediated shalish, it is important to study those community-based shalish that are not regulated by NGOs or the state. It is difficult to study these kinds of shalish due to restricted access and the spontaneity with which they occur within close-knit communities. Shalish can occur in any location—be it religious sites like masjids (place of prayer and worship for Muslims), education sites like schools and madrasas, government buildings like union councils, and even private spaces like households and courtyards. My third research site centered on my own village in Jamalpur district, where I have family and extended kin. Through my personal networks, I was able to learn when a shalish was scheduled in surrounding villages and attend them. As an insider/outsider researcher, I had access to study shalish that are not governed by NGOs or the state but solely run by the community. Ethnographic accounts of these kinds of community-based shalish are the primary examples I draw from to demonstrate my arguments. If I refer to a NGO-mediated shalish, I will clarify that this is the case; otherwise, I am referring to the non-NGO-mediated shalish that I had access to through community and kin-based networks. The names of the villages where I attended shalish are not specified to protect my interlocutors and help them remain unidentifiable. Similarly, the names from the shalish and the interviewees have mostly been anonymized to maintain the respect and safety of the participants and informants of this study. I have included the real names for only those individuals who have provided consent.

My fieldwork focused primarily on marriages where women provided consent to the relationship and not coerced marriages. There are existing academic scholarship and NGO reports that discuss the dangers of nonconsensual marriage and coerced consent in Bangladesh. This article, instead, focuses on the understudied cases where women provide consent to marriage but find it difficult to produce evidence of the marriage during a dispute.

I conducted thirty-five semi-structured interviews with various informants, including barristers, advocates, and legal aid employees as well as those who run shalish such as locally elected members of the village union council, community leaders, religious figures, and women attending shalish. I also conducted unstructured interviews, which are a conversational approach that allow researchers to engage with interlocutors in the field and ask unprompted/unprepared questions depending on the conversation, and I updated the questions to cater to the interviewee’s response. Many qualitative research scholars argue that unstructured interviews provide agency and voice to participants since they are not restricted to the researcher’s pre-fixed questions or templates (Corbin and Morse Reference Corbin and Morse2003).

Though I have been closely affiliated with many of my interlocutors in the villages of Bangladesh for years, I am aware that our positionalities differ. My family moved to Dhaka before I was born, and I moved to the United States for my education in 2010. Living in cities such as Dhaka and New York symbolize social, financial, and cultural capital that prevent ethnographers from having “complete” access and understanding of the sites they study since the outsider’s presence will inevitably shift the behavior of the community (Sangtin Writers Collective and Nagar 2006). While I was self-reflexive and consciously attempted not to impose my presence or my own frameworks when documenting the events (Bourdieu and Wacquant Reference Bourdieu and Wacquant1992), it is worth noting Clifford Geertz’s (Reference Geertz1973) point that anthropological work is to some extent “fictional” since the researcher’s conclusions are always based on their own interpretations. Yet ethnographic research is valuable as it is a means to immerse oneself within the field(s) and bridge gaps (for example, language, frameworks, lived experiences) in ways that would not be possible using any other method.

In an ideal world, the women and their viewpoint that I wish to highlight in this article would be telling these stories on their own terms. While my collaborators and interlocutors have asked me to share their stories hoping to change the current legal and social structures, we should collectively work toward creating academic spaces where collaborators have more voice during the analysis of data and distribution of knowledge. I only attended the shalish where community members provided consent. I also attended some shalish to which the community gave me access in order to conduct participant observation so that I could understand how shalish operate, but they did not want me to write about the events. In 2021, a person who ran shalish in a village in Jamalpur district said: “You may sit and watch to learn how we do things, but we do not want our tragedies being circulated outside our community.”Footnote ¹ To respect the request of such interlocutors, I do not include any of those events in this article, but they have helped me gain knowledge of shalish, particularly how they handle evidence and the legal reasoning with which they operate.

Apart from ethnographic fieldwork and interviews, I also conducted archival research to study Bangladesh Supreme Court cases on family law and employed discourse analysis to study them. This article weaves together perspectives from state court case judgments, extended ethnographic accounts of shalish and NGO-mediated shalish, and close engagement with state and non-state mediators of law to demonstrate the contested epistemic frameworks of law that is present in society and to explain why evidence is handled in different ways in different legal systems. The goal is to note how events in shalish can help rethink formal evidentiary procedures that currently restrict rural women from access to justice in many ways.

This article is limited to studying only heterosexual Muslim marriages, which primarily center on shalish from two districts of Bangladesh. It is important to also explore the experiences of rural women and other gendered minorities in more districts. My hope is that this conversation will prompt discussions to rethink marriage and state laws such as Bangladesh’s Evidence Act from marginalized standpoints from across various groups and communities.Footnote ² It is imperative to include the experiences and struggles encountered by the Hindu and other religious minorities, non-Bengali and Indigenous communities, hijra and other LGBTQIA+ communities, persons with disabilities, and Rohingya refugees.

Contextualizing shalish

Shalish are community-based, customary courts, commonly associated with ADR. They operate orally, with little to no documentation. The NGO-mediated shalish and state-sponsored village courts, which attempt to bridge shalish and state courts, are required to have documentation, but the unregulated community-based ones do not. As per state law, shalish are not legally allowed to mediate cases outside of family law and a few minor civil cases; on the ground, however, shalish handle disputes of all kinds, including (but not limited to) marriage, divorce, polygamy, custody, inheritance, theft, harassment, violence, and even murder (Berger Reference Berger2017). The people who run shalish are usually from within the community such as elders, local politicians, religious figures, schoolteachers, and social workers. These figures decide the outcome of shalish and are known as shalishkars or shalishdars (someone who runs a shalish). Shalishkars generally do not have familiarity with state legal doctrine, nor do they have any formal training in law. People in the rural and mufassil (towns) areas prefer to go to shalish as these courts are run by familiar figures from the community and are more accessible. Shalish are not strictly governed by state law and have been operating in Bengal prior to British colonial rule (Mollah Reference Mollah2016).

Each shalish within the same community can have a different group of shalishkars. While families can have some influence in selecting the shalishkar presiding over their shalish, notable figures with power, social influence, and financial capital within the community expect to be asked to be the shalishkars when conflict arises. Powerful figures within the community are selected as the shobapoti (leader) of the group of shalishkars, mediating the disagreements among them in a shalish. The shobapoti are often the locally elected chairman or a member of the union parishad (union council), but they can also be someone respectable in society such as a schoolteacher or a well-respected elder. The community considers a shalish to be “good” if all the shalishkars agree with their decision(s). Shalish decisions are not legally binding by the state; obligations to adhere to them rely on how powerful or well respected the shalishkars are and the symbolic significance and weight that these figures have within the community.

While a shalish is not considered to be part of the official law by state courts, a shalish is recognized within state law through the Code of Civil Procedure.Footnote ³ In this Act, section 13(1) defines mediation as a “flexible, informal, non-binding, confidential, non-adversarial, and consensual dispute resolution process in which the mediator shall facilitate the compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.” Bangladesh is not alone among states that recognize alternate legal systems within society. In the United States, for instance, the 1934 Indian Reorganization Act recognizes the operation of Tribal Court systems and Courts of Indian Offences.Footnote ⁴ The US Department of the Interior Indian Affairs (2023) mentions on its website: “Tribal sovereignty is protected throughout the Tribal justice system or through a traditional court.” The concept of “legal pluralism” recognizes that legal systems exist outside of state law. Scholars such as Sally Moore (Reference Moore1973), Sally Engle Merry (Reference Merry1988), Brian Tamanaha (Reference Tamanaha2008), Carol Greenhouse (Reference Greenhouse2019) highlight that it is important to decenter studying law from a Eurocentric and state-centric perspective since there are alternate forms of moral and normative orders that also generate rules in society. This line of scholarship suggests that the influence of non-state legal systems can be just as impactful as state law (Nader Reference Nader1990). Hence, it is important to study alternate legal systems and their frameworks of justice to rethink conceptualizing law and justice from the ground up.

Shalish are sometimes mistakenly treated as shari’a (Islamic court) by global media outlets. In Islamic courts, such as in India and Malaysia, the judge is usually a qadi/kadi/kazi Footnote ⁵ who is well versed in Islam and Islamic legal thought. Shobhapotis and shalishkars, on the other hand, are not required to be learned religious figures. Most of the time, they do not have any academic or professional background on Islamic law. They nonetheless frequently discuss morals and ethical issues using Islamic language and philosophies. Islam is the majoritarian religion in this nation, and being Muslim plays a central role in people’s identities in Bangladesh (Uddin Reference Uddin2006). As such, it is not surprising that Muslim shalishkars will use Islamic language when discussing issues of ethics and morals. Shalish is not restricted to Muslims and can be called customary courts as they draw from Bengali culture and operate across diverse groups and religions within the nation. For instance, there was a shalish that I attended that consisted of both Muslim and Hindu shalishkars, and I was informed by my interlocutors within those sites that shalish are popular within Hindu communities as well.

Each justice mechanism has advantages and disadvantages, and people move in and out of the systems depending on the case. Ibrahim Miah from MLAA suggested that it was significant to recognize women’s positionalities and lean toward the legal system that would grant them justice in that specific case: “Sometimes a case might be more favorable for women in state courts, and sometimes a woman might benefit more in shalish. For example, if a woman does not have a kabinnamma, then we try to mediate that case through shalish instead of state courts. If it is a case of violence, then state courts are the better option. It depends on the case.”Footnote ⁶ Miah emphasized that it was important for those in charge of running courts—be it in state courts or in shalish—to locate those who have less power and consider the social consequences that they might face. Due to social hierarchies that are tied to intersectional attributes of gender, sexuality, race, ethnicity, class, religion, citizenship status, and disability condition, specific individuals and groups live in more precarious conditions than others (Crenshaw Reference Crenshaw1991). As such, the court plays an important role in ensuring minority communities have access to justice. Since shalish are embedded within the local community, those individuals running them are more culturally aware, having the scope to contextualize and decode gendered coded language in ways that state courts sometimes cannot (Hoque Reference Hoque2023).

In NGO-mediated shalish, at least one member from the group of shalishkars is affiliated with a NGO in some capacity. Sometimes, they can even act as the shobhapoti. The NGO member is there to ensure that the marginalized members of the community are receiving justice. This is a valid concern due to the asymmetrical power dynamic in shalish. Generally, the shobhapoti and the shalishkars are elite members within the community and tend to be men. Hence, the decisions that these groups determine can be patriarchal and not representative of those who are not elite or from the dominant groups. Figures like the chairman or member of the union parishad are political figures, and there are many instances when their decisions in shalish are motivated by their own political agendas and personal goals of sustaining power. Md Abdul Alim and Tariq Omar Ali (Reference Alim and Omar Ali2007, 3) have written about “the dark side” of shalish; they note that studies have found “serious functional complications owing to intense factional infighting and rivalries in the villages” as well as “the pressure of the rich, influence of money or special favour, fear of the local terrorists, and domination of orthodox religious views are identified to be the main bottlenecks responsible for unfairness in shalish.” They also warn that a “shalish has sometimes acted as an instrument for carrying out the perverse ‘fatwas’ (misinterpretation of religion that mostly directed against women) issued and propagated by some local religious leaders” (3).

In other words, women and other marginalized groups in the rural communities can be silenced in these spaces, and there are no means of “appeal” to overturn decisions as there are in state courts. Global human rights groups and intergovernmental organizations frequently contrast shalish with courts that follow the modern rule of law, indicating that shalish must be amended to ensure that justice is properly implemented in Bangladesh. These dichotomizing tendencies often suggest that shalish are harmful for women because they are “too Islamic,” echoing the rise in Islamophobia that has become a global trend. While shalish draw on Islamic language and Islamic philosophical frameworks, my fieldwork indicates that they are not limited or restricted to any specific religion, and their practices are not fixed or monolithic. Drawing on feminist postcolonial theory, this research contributes to scholarship that demonstrates how these fixed labels and binaries reinscribe and essentialize modern/traditional frameworks onto spaces and communities/groups where they are not applicable, limiting the theoretical tools that we have to analyze these spaces (Kogacioglu Reference Kogacioglu2004).

On the other hand, some scholars treat shalish in a similar way to panchayats, another popular dispute mechanism with a long history in South Asia. Dina Siddiqi (Reference Siddiqi2015), who studies women’s rights and shalish, states that, while shalish may resemble non-state models of adjunctions such as Northern India’s khap panchayat and Pakistan and Afghanistan’s jirga, it is distinct; shalish are much more fluid and flexible. Tobias Berger (Reference Berger2017), on the other hand, explores the ideologies and language of the secular rule of law (which might have origins in Europe) and how its meaning changes by the time it reaches Bangladesh villages. Local NGO workers attempt to translate state law and secular ideologies through the lens and language of Islam and Bengali culture. For example, Berger mentions how the local grassroots NGO actors emphasize on “samaj justice,” (which can be translated as “community or “social” justice), and they “translate the normative vocabulary of the secular rule of law into the language of Islam and Islamic law” since that is the shared language and social reality of the majority in those communities (9). If the NGO workers want to enhance women’s participation, they try to show how the state-backed law adheres to Islam and the local culture.

While the shortcomings of shalish are reported in various local and global academic research and human rights reports, these reports pay little attention to how the modern state courts that are considered more liberating and attuned to women’s rights can also be discriminatory toward women. My goal is to unpack how the alternate legal epistemologies and evidentiary processes that these shalish offer respond to the positionalities and particular problems that women face in rural Bangladesh in ways in which the doctrines and procedures of state law do not.

A case from Shalish: proving the marriage of Pakhi and Sujon

How can a person prove their marriage when there is no official record of it?Footnote ⁷ I attended a shalish in Jamalpur district in 2021 that explored this question. In this case, the couple—Sujon and Pakhi—got married without telling their family members and neighbors. The husband—Sujon—wanted to keep their marriage a secret, while the wife—Pakhi—wanted to tell their parents. She wanted to move into his house where he stayed with his parentsFootnote ⁸ and start their shongshar (domestic life). They frequently had arguments about whether to keep their marriage a secret or tell everyone. One day, the argument escalated, leading to Pakhi telling her parents about the marriage. Sujon was angry with Pakhi for telling her parents against his wishes and stopped all contact with her. Word got around in the community that Pakhi and Sujon were married. Sujon and his family denied it. After desperately trying to communicate with Sujon and his family and being denied every time, Pakhi and her family were compelled to request a shalish and ask the community leaders to help them solve this problem.

A shalish was arranged in Pakhi’s home courtyard. The shalishkars—respected elders of each family, two hujurs (Islamic religious figures), a schoolteacher, and some other local elites and community leaders—were accepted by the families of both parties. The neighbors that lived around the area, including young children, came to watch. The shobhapoti was a schoolteacher who both parties accepted as fair and of good moral character. Both Sujon and Pakhi lived in the same community and knew the shobhapoti and shalishkars well. Before the shalish started, the shalishkars told me that their aim was to try to reconcile the couple since shalish primarily focus on reconciliation, community harmony, and restorative justice. Pakhi told the shalishkars in advance that she wanted them to convince Sujon to publicly accept her as his wife and take her to his home so that they could start their shongshar. My conversation with the shalishkars prior to starting the shalish indicated that they were sympathetic to Pakhi, a subaltern rural woman in a precarious position. Such bias toward one side of a dispute would be considered inappropriate for a judge in a modern state court, but most of the shalishkars recognized that the community questioned Pakhi and her family’s moral character as well as their Muslimness, which resulted in social ostracization and scandal for them all. Pakhi’s mother stated: “Who will marry her [Pakhi] now? Who will marry my daughter? Who will marry my younger daughter [Pakhi’s younger sister] after this scandal? It is not just one life? So many lives are ruined/destroyedFootnote ⁹ now.”

While mediation was the primary goal, the shalishkars also discussed amongst themselves that if Sujon was still adamant about leaving Pakhi at the end of the shalish, then they would try to ensure that Pakhi receives compensation of some sort. The first layer of compensation was making sure Sujon apologized to her publicly for deceiving her and neglecting her (and her family’s) attempts of mediation. The second layer of compensation was symbolic, where they planned to confirm to the community that Pakhi did not commit any transgression or sin out of wedlock, safeguarding her safety and mitigating social ostracization. The third layer was financial compensation. The shalishkars wanted to ensure that, if Sujon abandoned Pakhi, then she could claim her den mehr Footnote ¹⁰ —the money Muslim women are entitled to receive upon divorce, which men in Bangladesh often try to avoid paying.

During this shalish, Sujon admitted that he and Pakhi had an affair but denied that he had married her: “What is the proof that I married her? Ask her to show some proof.” Pakhi could not provide the kabinnamma. Sujon and his family claimed that Pakhi lied about being married. Pakhi responded: “He is lying. Sujon and his three friends came near my home. We rode to Imul’sFootnote ¹¹ house, and we got married there. He brought a kazi (marriage/nikah registrar), and we said kobul (consent),Footnote ¹² his friends were witnesses, we did everything. Then I went back to my parents’ house. He told me to keep it a secret until he saved enough money to host a proper event.” The schoolteacher asked: “Did you sign any papers?” and Pakhi replied: “Yes, of course I did.” One of the members of the community (who was not a shalishkar) whispered in my ear: “Do you understand? He made her sign fake papers. This man has been a bodmaish (rascal) since he was a child.”Footnote ¹³ I asked him: “How do you know he made her sign fake paperwork?” He replied: “These things are common. Look at his acharon (behavior) and his bhab-bhongi (attitude/body language). We know him. Poor girl. Even we are sometimes too late to catch his tricks; how can she?” The schoolteacher then asked Pakhi: “Do you have his friend Imul’s address or the phone number of anyone else who was there?” She did not, but she claimed would recognize them if she saw them. Sujon responded: “Yes, we went for a ride on my bike [motorcycle] and then went to my friend’s house, but we never got married. We never signed any kabinnamma. You can ask any of my friends.” Pakhi’s uncle screamed from the side: “Of course his friends will vouch for him.”

In a state court, a marriage that lacks a kabinnamma or registration by a state-appointed kazi would typically not be considered a valid marriage. A lawyer I met during my fieldwork in Dhaka city told me (in English): “No kabinnamma, no marriage. It is as simple as that.”Footnote ¹⁴ There are a few exceptional cases where the Bangladesh Supreme Court (which consists of the Appellate Division and the High Court Division) has accepted alternate forms of evidence to establish a marriage in the absence of a kabinnamma or marriage registration. In these cases, the courts concluded that marriage and divorce for Muslims are under personal laws and that Islamic or Muslim law in South Asia has long had alternate means of establishing a marriage in the absence of a kabinnamma. Some types of alternate evidence are witness testimonies, verifying that the couple got married, checking whether the couple has any children or if the woman is currently pregnant, noting long-term cohabitation, and checking with the community to see whether they accept the couple as husband and wife.Footnote ¹⁵ A similar practice in the West is common law marriage.

There are a couple of notable cases in the Bangladesh Supreme Court that have considered alternate evidence to prove a marriage. For example, in Momtaz Begum v. Anowar Hossain, the Appellate Division overturned a High Court ruling that decided that a marriage was invalid because the couple did not have a kabinnamma as evidence.Footnote ¹⁶ The Appellate Division disagreed with the High Court, arguing that consummation followed by cohabitation was a valid means for women to prove marriage. The Appellate Court wrote: “There are even options that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice. The High Court Division, in the premises, erred in holding that mere living together as husband and wife did not bring it within the bound of marriage.”Footnote ¹⁷

Similarly, the judgment of Md. Chan Mia v. Rupnahar states that failure to register a marriage in a state-appointed kazi office does not indicate that a marriage is invalid:

Chan Mia used the absence of a kabinnamma to claim that he was not married to Rupnahar in order to avoid his legal financial obligation in the event of a divorce. This judgment emphasizes that marriage between a couple is valid when there is “a declaration made by one contracting party being followed by a corresponding acceptance from the other,” and it notes that cohabitation and joint finances can also act as evidence of a marriage in the absence of a kabinnamma.Footnote ¹⁹ Apart from using Islamic law, Supreme Court lawyers sometimes turn to international law and human rights’ guidelines to help women. The judgment of Momtaz Begum v. Anowar Hossain cites a Harvard Law Review article to show that cohabitation is a common way of proving marriage in other parts of the world as well.Footnote ²⁰ Under Anglo-American common law, the court explained: “The only evidence of the agreement may be that the parties have lived together as husband and wife: from this a common law marriage is often inferred, even without proof of an express agreement: an implied agreement being sufficient.”Footnote ²¹

Yet these decisions within state courts are not the norm and often deemed as landmark or exceptional cases as they stray away from treating the kabinnamma as the sole evidence to validate a marriage. In most state courts on the ground, the kabinnamma holds precedence over all other forms of evidence to prove a marriage, especially in the cities. When I asked mediation and legal officers in Dhaka city how they responded when a client without a kabinnamma approaches them with marriage/ divorce issues, most said that they usually turn away such clients: “Without a kabinnamma, it is hard to make a case. If they have children, we can try but without children it’s close to impossible.”Footnote ²² However, in shalish, these forms of alternate evidence are not only acceptable but also common and popular ways to validate a marriage in the absence of a kabinnamma.

In Sujon and Pakhi’s case, the shalishkars tried to use these other means to prove that the couple was married. When Sujon and his family stated that there was no kabinnamma, the shalishkars asked about the friends who were present and who might offer witness testimonies. Since Pakhi did not know the names or contacts of Sujon’s friends who were present, the shalishkars then asked her: “Do you have any children? If you have his child, then he has given you his wife’s place.” She did not have any children. They asked whether she was pregnant. She was not. Then they tried to find out whether there was any cohabitation at any point during their relationship: “Did you stay with him for a while in this friend’s house? Are there any witnesses that can attest to you staying with him for a few days?” Pakhi replied:

Pakhi’s testimony eliminated the possibility of cohabitation and witness testimonies. She could not provide the contact details of the kazi either. One of the elites in the villages said: “Sujon you have duped an innocent girl. Everyone here knows about your habits and your reputation. It is not too late to do the right thing and properly take this girl—your wife—home with you. Start your shongshar properly.” Sujon’s mother responded to him: “We do not know if she is his wife. Where is the proof? This girl is a liar.”

It seemed that Pakhi had no valid evidence to prove that she was married to Sujon. She failed to provide the evidence demanded by the state court—that is, the kabinnamma or marriage registration. She also lacked any of the alternate evidence (popular in Islamic/Muslim law in South Asia) that might prove her marriage in shalish. But, then, when all hope seemed lost, Pakhi opened her Itel smartphoneFootnote ²³ and announced: “I’m not a liar. Here are all the text messages he sent me. Here are all the chat messages he sent to me on Facebook.” Enter digital evidence to prove a marriage in shalish.

Admissibility of digital evidence in shalish

When accused of being a liar and when all other doors to establish her marriage had failed, Pakhi resorted to the personal digital archive in her smartphone to convince the shalishkars and the community that she was married. She showed a conversation thread between her and Sujon on Messenger from the night they had planned to elope and get married in secret. One message from Sujon was, “” (“Waiting for when I can call you my wife”).Footnote ²⁴ Pakhi showed another conversation where Sujon suspected her of having an affair with another man and threatened to divorce her: “” (“Talk to the person you are having an affair with you slut. I will divorce you.”Footnote ²⁵ Pakhi asked the shalishkars: “If I am not his wife, then why is he saying that he will divorce me? Why did he say he can’t wait to call me his wife [on the same day we got married]? This is proof (proman)! What other proof can I provide? Try to understand my situation (Amar kotha ta ectu bujhar chesta koren).” Most of the shalishkars nodded in agreement, and Pakhi also started to show screenshots of some Facebook photos that Sujon had shared of them on his profile but then deleted later. An elder community leader said: “Stop, you do not have to show us anything anymore. How much more dishonor/humiliation (beizzat) does this girl have to go through?”

The shalishkars concluded that the chat messages were valid evidence to prove that Sujon and Pakhi were married. Their reasoning was that the online messages proved Sujon’s promise and intent to marry Pakhi as well as the intimacy between them: “The kind of intimacy that only husband and wife share.” The logic was that, even if they were not married under state law, these messages proved that they were married “under the eyes of God.” In addition, there was evidence that Sujon intended to marry Pakhi at a certain moment in time and then had treated her as his wife since that date: the schoolteacher said: “In Islam, it is the niyat (intent) that is the most important. If the niyat of the words uttered during talaq (divorce) holds weight, then the niyat of the words uttered for marriage also holds the same weight. Sujon clearly intended to marry her, and the messages prove that he treated her as his wife since that day. That is proof of the marriage.”Footnote ²⁶

The focus on the intent to determine a marriage for Muslim couples is a practice that has historical roots in Islamic legal thought and expands outside of shalish as well. For instance, section 15 in the Supreme Court’s judgment of Md. Chan Mia v. Rupnahar states: “Marriage is legally contracted by a declaration made by one contracting party being followed by a corresponding acceptance from the other.”Footnote ²⁷ Intent and declaration are key signs of acceptance and validity of a Muslim marriage in South Asia. Both Pakhi and Sujon’s shalish and the Supreme Court in Rupnahar highlight the importance of intent, declaration, and the acceptance of one another as husband and wife as key indicators of a marriage for Muslims. In legal systems worldwide, people attempt to use digital media such as text messages, social media posts, audio recordings, images, and videos as evidence in court. Judicial limitations on certain forms of digital evidence can affect whether a litigant wins or loses their case. Studying how state courts and shalish accept, reject, and analyze digital evidence is telling of the legal reasoning within which they operate.

Many urban lawyers regard shalishkars as whimsical and prejudiced, while they themselves uphold “proper” legal norms by following standards and protocols. However, Pakhi and Sujon’s case demonstrates that shalishkars do not approach justice arbitrarily; rather, they have a system of accepting and analyzing evidence that is grounded in an alternate framework of legal reasoning to determine the bastobota (truth or reality) of the situation, noting the consequences that can occur within the community. This alternate approach to the law, paired with shalish’s non-doctrinal and flexible legal reasoning, allow this site to incorporate digital evidence to prove a marriage. The shalishkars were accustomed to using common alternate evidence—witness testimonies, cohabitation, having children—to prove a marriage, but using digital evidence to determine a marriage was unprecedented within this community. While accepting digital evidence to prove a marriage was novel, the flexibility of shalish to incorporate evidence outside fixed normative practices is not uncommon. In other words, shalish can provide a creative means to grant women rights in ways that state courts cannot since the latter courts are bound by codified law and formal procedures that limit them from easily accepting non-normative forms of evidence.

A different shalishkar said: “Pakhi has said a valuable thing. What other proof can she provide? She is just a woman. Men and women are not the same. We have to consider that while we are making our decision.” One take from this view is that it demonstrates the prevalence of patriarchy and the prejudiced assumption that men and women are not equal in society. A more nuanced take implies that this view might not refer to women’s unequal position but, rather, to their unequal positionality and the structural asymmetry of power. In this case, the shalishkars assured Pakhi, declaring to the community that she was indeed married. Hence, justice here is much more closely related to helping restore the balance through the lens of social equity rather than equality. Equality is defined in terms of the individual subject before the law, and equity is defined in terms of the social justice that the law promises but rarely delivers. It is not just shalish; other legal systems center on this form of moral logic as well and have done so historically. For example, Islamic law scholar Wael Hallaq (Reference Hallaq2009, 61) suggests that “[t]he Muslim court succeeded precisely where the modern court fails, namely, in being a sanctified refuge within whose domain the weak and poor could win against the mighty and affluent. A case in point is women. Considerable recent research has shown that this group received not only fair treatment in the Muslim court but also even greater protection than other groups.”

It is worth remembering that most societies today continue to perpetuate inequalities and fail to recognize the positionalities of gendered minorities that can hinder them from receiving fair verdicts. How the shalishkars frame Pakhi’s case has the power to impact not only her life but also her family’s life, including the risk of increasing the economic and social precarity of her younger sister who was innocent of all transgressions in this case. Pakhi’s desire and expectation was for the court to mediate the situation and allow her to reconcile with Sujon. A non-intersectional liberal feminist approach might suggest that Pakhi is “weak,” “passive,” or “not empowered,” but postcolonial feminist scholarship suggests that there are alternate forms of women’s agency and desires that are not included within liberal feminist frameworks developed in the West (Mahmood Reference Mahmood2005; Mohanty Reference Mohanty, Ashcroft, Griffiths and Tiffin2005). These frameworks can lead to harmful projects of “saving” Muslim women through Western ideologies and civilizing missions. For instance, Lila Abu-Lughod (Reference Abu-Lughod2013) explores how the rhetoric of saving Muslim women from Islam and Muslim men are used as justifications for Western military invasion in Muslim societies. Epistemologically, a large portion of academic research continues to treat Muslim women’s desires and agency through Western feminist frameworks. Pakhi is a woman with agency and intelligence. She told the shalishkars what her expectations from them were and the harmful consequences awaiting her and her family; she was the one who thought to show the digital evidence when no one else thought of it; and she crafted her own legal narrative, meticulously weaving together conversations with whatever evidence she had to support her claim. She played the central role in delivering her story to persuade the shalishkars, who were elite and powerful men within the community, and she leveraged any means possible to convince the attendees of the shalish.

Pakhi’s desire for mediation was practical, and she was aware of the repercussions that could lead to her, as well as her family, being ostracized from their community. In a private conversation with me, she said that she still loved Sujon and believed that, once the community accepted them as husband and wife, they would both be happy as the love between them was still there on both ends. I probed her on why she thought Sujon still loved her if he was denying their marriage so vehemently in the shalish. She told me that it was because of the pressure he received from his family. They were enraged and hurt that he got married without their blessing and permission. Sujon’s public behavior served to prove to the community that he was making his family a priority and attempting to pacify his parents’ and elder family members’ anger. I asked her why she came to this conclusion, and she simply said: “Ami ore khub bhalo moton chini” (I know him very well). Sujon had broken the custom and kinship rules of marriage and was being punished for it, leading him to endanger Pakhi’s situation even more. Sujon was also from a higher income family compared to Pakhi and her family. Pakhi’s choice of mediation was closely connected to her position within society and the scope that she had to navigate within existing class and gendered power structures. Her take on justice entailed the public recognition of her relationship with Sujon and the community accepting her marital status. Yet Pakhi’s expectation of justice had little to no space in state courts.

After the shalishkars established that Pakhi and Sujon were married, they rebuked Sujon for how he treated his wife and convinced his family to accept her and allow her to live in their home. Sujon eventually admitted that he had married Pakhi with good intentions but felt betrayed that she disobeyed him and told her family about the marriage against his will. He claimed that his mother had a weak heart, and, as a result, this unexpected news could have killed her. He stated that Pakhi’s disregard for his mother’s health and disrespect of his promise to her that he would host a big event and welcome her to his home at a more appropriate time were the reasons why he was angry and did not want to be with her anymore. The shalishkars called a local kazi and married the couple with a kabinnamma on the spot with a den mehr of three lac taka (thirty-five hundred dollars), which was a large amount of money in this context. The shalishkars reminded Sujon that, if he left Pakhi again, he would have to pay the entire amount of den mehr money and maybe even more depending on the circumstances. Pakhi and Sujon’s case is an example of a shalish’s scope and means of accepting digital evidence in new and creative ways to ensure women have their positionalities and frameworks of justice recognized.

Even though judgments in shalish are not legally binding by the state, the kabinnamma is. The shalishkars recognized this difference in power and made sure that Sujon could not evade the state law’s repercussions for leaving Pakhi again. There is no sharp binary between state and non-state legal systems, and, on the ground, they interact with each other in complex ways. For instance, the fact that the shalishkars called a state-appointed kazi to formally register Pakhi and Sujon’s marriage in a shalish and that state courts ask couples to try and mediate their problems in a shalish first before formally filing a case indicate that state law and non-state law do not operate in isolation. On the other hand, it is also important to note that, while shalish decisions might not appear to hold any “formal” legal binding, they are authoritative and hold weight in the community. Pakhi and Sujon’s case is just one example of how a shalish’s approach to evidence can benefit rural women.

Another example of how evidence is analyzed differently in shalish and modern state courts is to compare how silence is treated in each site. I attended a shalish where the husband (and his family) wanted the community members to convince the wife to return to his home after she left indefinitely.Footnote ²⁸ She returned to her own village and stayed with her grandmother and refused to go back to her husband even after he came to visit her to take her back several times. When the shalishkars asked her what the problem was, why she left, and why she would not go with him, she was silent. The shalishkars took turns to ask her kindly at first, then with irritation, then with anger, and, finally, with threats that silence would lead to worse consequences for her. Throughout the multiple interrogations by various members of the community, she did not utter a single word. She looked at her interrogators with no overt expression and just remained silent. The shalishkars asked a few women from her community to ask her privately inside a religious figure’s house with closed doors. She still said nothing.

One of the leading shalishkars stated: “We cannot forcibly send her back to her husband’s house. Shalish’s goal is mimangsha (reconciliation), but she must have been treated so cruelly that she is afraid to speak up in fear of what will happen if we send her back to him? They will probably beat her and use her words/testimony against her. That is probably why she is quiet. We cannot do this injustice. We have to ensure her protection and make sure she receives justice.” I was informed after the shalish that she was happy that the shalish resulted in her separation from her husband rather than reconciliation. An interlocutor later told me that the reason for staying silent was so that her words could not be “twisted” because “that’s what they always do.” Western feminist ideology of women’s emancipation is “speaking up” but that is not always possible in Bangladesh due to many factors that prevent women from engaging in open dialogue such as fear of being harmed, structural inequality, and precarious financial and employment positions. Women’s silences are not absent of meaning, but they convey how gendered issues might not be easily articulated but have shared meanings and social understandings within the community. In Pakhi and Sujon’s case, the shalishkars had noted Sujon’s behavior and his attitude/body language in the shalish.

The modern state court has very little space to integrate the complex meanings of silence and non-verbal speech as verbal testimonies hold higher value. If a woman refuses to speak or file a case, then there are few means to help her in state law, whereas, in shalish, a woman’s silence is not absent of meaning but, rather, a form of testimony itself. Incorporating silence as evidence is part of a shalish’s approach of flexible thinking, allowing it to include sensorial and affective responses as well as non-verbal cues to locate the pain, fear, and precarity that women may face that might not have empirical evidence (testimony/scars/wounds) to back it up. Islamic law scholar Brinkley Messick (Reference Messick, Quraishi and Frank2008, 164) analyzed marriage cases in Yemen, noting how non-verbal cues such as tears and other bodily expressions can help in interpreting consent or non-consent in shari’a courts: “In these suggested legal readings of the nonverbal signs of the female inner state, fleeing “from room to room” indicates consent while the more extreme fleeing “from house to house” is taken as non-consent.” These forms of indications are culturally specific and might differ from group to group. As such, community leaders who are running the courts, when aware of the cultural context, reduce barriers to decode gendered coded language—be it silence, verbal speech, or other forms of communication such as haptics (touch), proxemics (space/distance), and kinesics (movement/gesture).

(In)Admissibility of digital evidence in state courts

While digital evidence is readily accepted in shalish, it is still restricted in many ways in state courts, even outside of marriage and divorce cases. It was not until 2022 that Bangladesh’s 1872 Evidence Act, which was constructed during the British colonial period and only slightly updated since then, was modified to include digital or electronic evidence.Footnote ²⁹ Despite the general inadmissibility of digital evidence prior to 2022, there have been exceptional instances when state courts have allowed digital evidence. For example, if a case was tried under the Speedy Trial Tribunal Act or the Anti-Terrorism Act, digital evidence could be admissible (Apurbo Reference Apurbo2020). In 2019, Abrar Fahad, a student at the Bangladesh University of Engineering and Technology, was murdered, and digital evidence played a critical role in being able to prove who was involved in his murder. In order to ensure that evidence such as Facebook posts, mobile data, and digital forensics would be admissible in court, this case had to go through a special legal tribunal known as the Dhaka Speedy Trial Tribunal (Sheikh, Afroj, and Iqbal Reference Sheikh, Afroj and Iqbal2024).

Even though the Evidence Act has been amended to include digital evidence, there is still a general distrust of digital media. This is because of the popular assumption that digital media is much easier to fake and manipulate than official documents. Moreover, some individuals suggest that the Bangladesh courts do not have the proper infrastructure and expertise widely available to monitor and validate these forms of evidence. While there is much conversation on how to incorporate digital evidence in criminal law in a suitable way, there is much less attention paid to family law. In family law, the admissibility of digital evidence might be at the judge’s discretion, but my interviews and ethnographic fieldwork suggest that documentary evidence holds the most weight, and it is not that common to accept digital evidence in marriage and divorce cases.

The demarcation of family law as “separate” from the rest of “law” stems from deep- seated colonial ideologies of sidelining family matters in formal courts.Footnote ³⁰ Historian Julia Stephens (Reference Stephens2018) describes how colonial administration in Bengal domesticated issues such as marriage, divorce, and custody, separating them into the private realm. Colonial courts played an important part in ingraining new structures of law while modifying existing practices. According to Stephens, these modifications often benefited the colonial state in the guise of benefiting the local inhabitants. Moreover, family law was categorized under personal or religious laws, and the codification of these laws was predominantly through the lens of colonial officials who had little to no knowledge on local practices on the ground, especially in the rural areas. Family law is a site where religion and law interact in intricate ways, generating complex power structures. The colonial vision of the Muslim Personal Law (Shariat) Application Act, 1937 intended to govern family matters such as marriage and divorce for Muslims, but the understanding of shari’a and Islamic or Muslim law stem from Eurocentric and orientalist ideologies of Islam that do not align with how Bengali rural communities view their Muslimness.Footnote ³¹ Colonial officials sometimes completely excluded local rural practices in the conceptualizing of personal laws, or they incorporated their own understanding or local elite perspectives.

In Bengal, most of the local elites tended to be non-Muslim zamindars (landowners) who had little knowledge about Islamic law and the Muslim rituals of marriage and divorce. The zamindars owned land and had the power to mediate knowledge between the rulers and the working class (including the “peasant” population who were mostly Muslims). Elite Muslim figures from other parts of the region, such as Northern India, might have had some influence on the codification of Islam and the development of Muslim law within British India. However, the Muslim population in Bengal—particularly, those residing in East Bengal, which is where current-day Bangladesh is located—did not have the power or the scope to have much influence. This is important since Islam developed in Bengal in distinct ways, and the practices of Islam within this region differ from other spaces even within the Indian subcontinent. Historian Richard Eaton (Reference Eaton1993) argues that Islam in Bengal is syncretic, incorporating different ideologies, cultures, and philosophies with each new encounter, which has led to the development of a language and practice of Islam that caters to the histories and cultures of people within this region. As such, the codification of British Indian law and, later, postcolonial Muslim law does not include the Muslims of Bengal in many ways.

In addition, codification also marked a distinction between which practices are “religious” and which are “cultural,” reducing the fluidity of how people approached rituals on the ground. Shahab Ahmed (Reference Ahmed2015) has shown how Islam is not only constituted via doctrinal and judicial institutions but also other aspects of lived experience by those who identify as Muslims. Ahmed emphasizes that Muslims have practiced and experienced Islam in ways that do not follow any fixed, singular canon. Instead, Islamic philosophy, art, poetry, and Sufi thought in the Indian subcontinent might appear to contrast, or even be in opposition to, the strict doctrinal, judicial, and textual (scripture) interpretation of Islam. Muslims for generations have attempted to justify how such contested experiences are very much part of what constitutes their Muslimness.

These contested lived experiences of Muslims and contradictions with Islamic doctrine are factors that colonial officials did not consider, resulting in a limiting, Eurocentric version of family law in most postcolonial states. After Bangladesh became an independent nation-state in 1971, the Constitution of Bangladesh adopted the 1937 Muslim Personal Law (Shariat) Application Act from colonial times and the 1961 Muslim Family Laws Ordinance from when the region was part of Pakistan.Footnote ³² There have been minor amendments to these laws since then. While the Evidence Act was updated to include digital evidence in 2022, most of these other laws that are related to marriage and divorce have not yet been updated as much, which make it even harder to accept digital evidence in these cases.

While state courts limit the use of digital evidence in family law cases, such evidence is readily accepted in shalish. Shalishkars in the villages do not hesitate to incorporate digital evidence such as text messages, social media posts, and mobile phone photos and videos. Shalish are not bound by Bangladesh’s Evidence Act, the Muslim Personal Law (Shariat) Application Act, and the Muslim Family Laws Ordinance, meaning that these courts have the scope to handle digital evidence differently than the state courts. Pakhi and Sujon’s case took place in 2021 when digital evidence was not part of Bangladesh’s Evidence Act. Women had the chance to use their personal archives (using various forms of media) in shalish, even though they were barred from doing so in the state courts. While the Evidence Act has been updated to include digital evidence in 2022, most of these other laws that are related to marriage and divorce have not yet been updated, which makes it even harder to accept digital evidence in these cases.

If the state courts were to have determined Pakhi and Sujon’s case using primary evidentiary protocols—that is, the kabinnamma—they would have determined that Pakhi was not married to Sujon. As mentioned previously, in some rare, exceptional cases, the Supreme Court accepted alternate evidence to determine a marriage as long as it falls under existing codified Muslim laws in Bangladesh. In Pakhi and Sujon’s case, the state courts would still not have determined that they were married since Pakhi did not have the relevant alternate evidence—witness testimony, cohabitation, children, or community acceptance. Even if the digital evidence that Pakhi provided was admissible, would that have changed the state court’s stance on this matter? Probably not. The evidence she provided was not part of the list of alternate evidence that might be used to prove a marriage. I do not intend to list new forms of evidence—digital or otherwise—that can be added to the existing corpus of state law but, rather, unpack the legal reasoning that has allowed such evidence to prove a marriage in shalish in the first place. While digital evidence is a site that allows us to explore the emerging complexities of marriage in rural Bangladesh, the goal is locating how the flexible legal reasoning within shalish and the community’s perspective of justice allowed them to reformulate what counts as admissible evidence to prove a marriage.

Flexible legal reasoning: shalish and state courts

Problematizing the marriage certificate/kabinnamma

State courts in Bangladesh treat the marriage certificate or kabinnamma as the most important piece of evidence to prove a marriage exists because it is a document produced by state and state-recognized authorities. Considering the state-sponsored marriage certificate as the sole evidence of marriage suggests that the state’s recognition of marriage trumps the lived experiences and meanings of marriage for people on the ground. While marriage registrations have increased in contemporary society compared to the past, it is very common for people in Bangladesh to get married via customary rituals even today. Customary marriages are well accepted within society even when there are no kabinnammas. When disputes occur in these circumstances, women prefer to go to shalish as these sites are familiar with the norms of customary marriage and accustomed to mediating or providing some form of compensation to women.

Many global as well as local (usually elite urban) human rights activists and lawyers claim that shalish’s “erratic” practices would not be needed if rural women were “educated” and obtained the “proper” legal documents in the first place. This argument does not consider the barriers women face to obtain the official legal documents. A woman from one shalish in Jamalpur district said: “I do not have access to any documents. My husband and mother-in-law keep all of that locked away. But I have my phone. I can show evidence from my phone.” Official documents are usually out of reach from women, which make it difficult for them to provide as official evidence when required. In a shalish that I attended in Jamalpur district, Moin married a second time without his first wife Anika’s consent. He admitted to Anika that he had a second marriage after she initially confronted him but denied it to her and everyone else afterwards. Anika went to her local legal aid office (a NGO) with evidence that she found while secretly going through Moin’s phone: a picture of Moin and his second wife, some comments of them flirting on his Facebook profile, and a never-posted TikTok video (in drafts) of Moin and his second wife in bed together. Since the video was private, Anika recorded the video from his phone using her smartphone’s built-in camera. The legal aid office turned her away, saying that state courts would not accept these forms of evidence to validate that he had a second marriage; only the existence of a second kabinnamma could prove that. Anika said: “I don’t even have my own kabinnamma and you are asking me to bring this other woman’s kabinnamma? There is nothing you can do to help me?” The legal aid office tried to mediate the situation through a shalish, but Moin refused to attend any of the arranged shalish. He had a job in Dhaka city, and the local community’s hold on him was not as strong. Anika was left with the option to either wait for him to contact her or formally initiate a divorce in court.

Anika protested against the legal aid officer: “This is not justice. I showed you proof and there is nothing you can do. This is not justice.” The legal aid officer explained: “No, but this is reality (bastobota). This is our law.” Anika responded: “The reality is you won’t help me, and I have nowhere to go. If that is the law, then the law is for men and rich people. That is the reality.” While Anika’s outburst is something that is not seen frequently, it was a reaction commonly experienced by rural women when their positionalities and barriers are not recognized in legal systems.Footnote ³⁹ It is the frustration that the courts do not recognize their lack of access to “valid” forms of evidence and dismiss the kinds of evidence that they can manage to provide within their means/scope.

During my fieldwork, my interlocutors in Dhaka mentioned that it is difficult to incorporate digital evidence for family law in state courts as it can be manipulated and altered easily, and yet this same line of scrutiny is not extended to documentary evidence such as the kabinnamma. It is common knowledge in the villages that kabinnamas are often forged. For example, when men marry girls that are underage, they or their families bribe the kazi to change the age. This is not a rare practice. There are also many instances when men generate fake kabinnammas to harass women. For example, the Supreme Court case of Amirul Bor Chowdhury v. Nargis Sultana involved the consideration of the validity of a couple’s kabinnamma.Footnote ⁴⁰ In this case, there was a debate between the two parties about whether Nargis Sultana had married a second time or whether her ex-husband had generated a fake kabinnamma in order to restrict the custody of their children. Sultana claimed that this was her ex-husband’s attempt to harass her and insinuate that her priority would be her new family and not raising children from her previous marriage. Sultana’s legal team countered that she had never signed a kabinnamma: “The so-called Kabinnamma which has been produced before this Court is a forged one and the petitioner created the same with the help of his men only to create a new story and to make delay in handing over the minors to the mother.”Footnote ⁴¹ Other instances of kabinnamma forgery involve the amount of kabin/den mehr money that the husband is legally bound to give the wife in case of a divorce. I have been to two shalish where the shalishkars determined that the husbands had bribed the kazi to change the kabinnamma to reduce the den mehr money without the knowledge of their wives and in-laws.

In shalish, as in many legal systems, documents are usually supplemented by oral testimony. Brinkley Messick (Reference Messick2002, 262–63) observed that in shari’a legal proceedings in Yemen, “documents do not stand alone,” and “writings have to be converted to spoken testimony to have evidential value.” Similarly, documentary evidence such as kabinnammas hold importance in shalish but not in the same way as in state courts. When there are claims and hints that suggest that the kabinnamma is forged, shalishkars rely on other evidence to mediate the situation. Documentation is a collective human process, and official documents gain legitimacy and authority through affiliation with the state and “official” judiciary rather than through any intrinsic quality or nature of the medium itself (Messick Reference Messick1996; Johns Reference Johns1998; Hull Reference Hull2012). It is important for state law to recognize the shortcomings of considering kabinnammas as the primary evidence of marriage as access to gaining such documents are restricted to women and can be unavailable during customary marriages. While state legal actors express concern that digital evidence can be manipulated easily, the same concern is not extended for state documents such as kabinnammas, which can also be easily altered through bribes and other fraudulent practices.

Many women in the villages do not obtain a kabinnamma when they get married because they believe that this form is only an Islamic document and not a state-sponsored form. In order to secure themselves, many women in rural Bangladesh insist on having a “court marriage”Footnote ⁴² with the assumption that documents endorsed in law firms provide the official paperwork for marriage. A court marriage is when couples go to a lawyer and sign an affidavit stating that they are married or intend to get married. Most lawyers and legal aid officers state that this document holds almost no validity in state law to establish a marriage. Affidavits are generally used in court to verify an oath or promise between parties, but such documents do not count as evidence to prove a marriage in state courts. Yet, many women believe paperwork from lawyers holds more legal value than the kabinnamma, which they see as a religious piece of paper. At an NGO-mediated shalish in Madaripur district, I asked a woman why she chose to have a court marriage instead of going to the kazi office to get a kabinnamma. She responded:

Apart from the kabinnamma, the term “kazi” has a long-standing history of being affiliated with Islam since the kazi/qadi/kadi are judges or magistrates of the shari’a court in many parts of the world. In Bangladesh, the kazi is a person who registers marriages and divorces, formally known as a “nikah registrar,” and they are appointed by the state under the Muslim Marriages and Divorces (Registration) Act, 1974.Footnote ⁴⁴ Even though these figures are sanctioned by the state, the common perception is that a kazi is tied to religion, while a lawyer is someone who handles professional and formal state procedures.

There are mixed feelings about court marriages on the ground. An advocate from Madaripur Legal Aid Association said: “This is just a money-making scheme and should be banned.” On the other hand, in a shalish in Jamalpur district, a man who abandoned his wife after getting a court marriage, stated: “The lawyer told us that we should get a kabinnamma within thirty days, otherwise the court marriage will be annulled (batil hoye jabe). We didn’t get a kabinnamma in thirty days. That means the marriage has been annulled. So, there is no need for any divorce, and I do not have to pay any kabin.” The shalishkars did not consider this marriage annulled because they knew that the woman was misled into thinking she was getting married, would face ostracization, and that her morality and honor would be questioned by her community members. But, in state law, there was no marriage registered in the first place, and there was no way for the woman in this case to get redress and support.

In another shalish in Jamalpur district, a nineteen-year-old girl who had a court marriage told me: “People will say I’m used now; who will marry me,” referring to how society will shame her for not being a virgin and having sex with someone who was not “officially” her husband. Even though documents from court marriages are not enough to establish a marriage in state courts, they hold some weight in shalish to establish the intention and efforts of the couple to get married. The point is, even when women attempt to secure the official documents, there are many factors that prevent them from following the “proper” protocols of marriage. There are also many cases where men have coerced women to sign a marriage certificate with violent threats ranging from throwing acid to rape. In such cases, shalish have attempted to reduce the validity of the kabinnamma, highlighting the lack of consent based on social context and local knowledge. Men can use a kabinnamma to claim legal status of a marriage and trap women into forced marriages. As such, instead of looking only at a kabinnamma, a shalish will try to mitigate the situation, focusing on determining the relationship of a couple. My interlocutors from the MLAA said that the opposite can also happen where a man can be coerced into signing a kabinnamma by a woman or a woman’s family, albeit such cases are far fewer in number.

Getting married through audio or video calls has become an increasingly common practice within the middle- and lower-income populations in rural Bangladesh. Marrying remotely is an appealing option due to the increase in Bangladesh labor migration to countries such as Saudi Arabia, the United Arab Emirates, Malaysia, Kuwait, United Kingdom, and Italy, which prevents workers from returning home to get married due to financial or visa restrictions. In a NGO-mediated shalish, there was a dispute between a husband, Rony, who lived in Italy, and his wife, Rina, who lived in a village in Madaripur district. The couple got married via a WhatsApp video call, and, after nine months, Rony had yet to meet his wife in person. If he left Italy, he would be unable to return because his visa had expired. He did not have the required paperwork or finances to sponsor his wife to join him in Italy either. This was an arranged marriage. The kabinnamma included both family’s signatures (witnesses), but the space for the husband’s signature was left blank. A legal aid NGO worker from the MLAA who had accompanied me to this shalish wanted to mediate the dispute between the two families within the shalish since he was aware that the validity of the marriage would be questioned in the state court because the husband’s signature was not on the form.

The NGO worker told me that, if the husband fell in love with someone else in Italy or chose to leave his wife for any other reason, he would try to get out of this marriage without paying any den mehr. He could find a loophole in the state law to argue that a marriage for Muslims relies primarily on the kabinnamma, and, in this instance, the contract had not been fulfilled properly since he had not signed the paper. This potential problem is evident in the following point made by the High Court Division in the judgment of Khodeja Begum and Others v. Md. Sadeq Sarkar: “The Muslim marriage is a socio-religious contract and the signatures of both the parties are very essential to prove the contract of marriage written in the form of Kabinnama. In such circumstances no amount of oral evidence will cure the deficiency and no amount of oral evidence will be sufficient to prove the marriage when the plaintiff failed to prove the Kabinnama according to Law.”Footnote ⁴⁵ In this case, Begum was happily married to Delwar Mollah, but the plaintiff Sarkar argued that he had been married to Begum previously. A kabinnamma with no signature of the bride was produced, and, thus, Begum’s legal team claimed that it was fabricated evidence. While the decision might have benefited Begum and can benefit women in these kinds of circumstances, it can have consequences in other instances such as in Rina and Rony’s case.

In a state court, Rina’s claim of marriage would have been further weakened by the fact that the couple had never cohabited or consummated the marriage, which can be grounds annulment. All these factors might lead a state court to decide in Rony’s favor rather than in Rina’s. The NGO worker said: “He is in Italy, what will happen to him? Plus, he is a man. It is the helpless [oshohai] woman who will suffer here.”Footnote ⁴⁶ The stakes and consequences of marriage and divorce are gendered. These types of decisions might be at the state court’s discretionary power, but digital platforms and technology continue to play a central role in making visible how the complexities of marriage and divorce on the ground are not captured by state law and the shortcomings of treating the kabinnamma as the ultimate form of proof that a marriage exists. The examples above indicate that the kabinnamma does not always depict facts. State law considering such paperwork as the primary (if not the only) form of evidence to prove a marriage in Bangladesh is limiting. The “proof” of the marriage certificate is meant to convey one meaning—marriage; yet all the other meanings and circumstances that are woven into the social fabric of society are not reflected in a state court’s recognition of marriage. The Evidence Act, along with family law more broadly, needs to be reformulated in ways that integrate the lived experiences of people and their expectations of justice.