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Th at was the context of the precolonial period, but in colonial India, judges no longer had such wide discretion, because the state imposed a uniform law for all Muslims. In their frenzy to codify the law, Muslim scholars in South Asia simply lifted laws from pre colonial Hanafi texts to rule that women whose husbands go missing must wait a minimum of ninety years before remarrying. Th ereafter, that was the law, and judges were bound by it. Muslim scholars in colonial India recognized that it was an unjust law that would eventually need to be patched or hacked。

So, the predominantly Hanafi Indian legal scholars came up with a way to change the law that did not appear to be a radical break from the precolonial tradition. Th ey turned to ancient fi qh texts from the rival Maliki legal school, which hold that a woman can get a divorce and remarry if her husband goes missing for only four years. It was tempting to adopt the Maliki opinion in this case, but the Indian Hanafi scholars could not simply import it wholesale.

Th e Indian Hanafi legal scholars, who were nonetheless desperate to adopt the Maliki law, solved their problem by resurrecting a statement from a respected nineteenth-century Hanafi scholar, Ibn ʿAbidin who himself quoted a sixteenth-century Hanafi ruling about a diff erent topic that said, “In times of need, there is no harm in adopting a legal opinion [fatwa] from the Maliki school.”

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