Rethinking Marriage: Blurring the “Legal” and the “Social”

Abstract Is a marriage rendered invalid in the absence of a marriage certificate? How does the absence of state recognition influence the legitimacy of a marriage across different legal and cultural systems? In Bangladesh, customary marriages—where a marriage might not be formally registered with the state—are common. This article explores how shalish (community-based courts) accept alternate evidence to prove a marriage, noting the ways in which this approach can benefit women. Drawing on ethnographic fieldwork in urban and rural courts in Bangladesh, archival research studying court records, and interviews with diverse interlocutors, my findings indicate that Muslim women who do not have a kabinnamma (marriage certificate) prefer to go to shalish to mediate disputes because this site is embedded within the community and attuned to the cultural context of marriage. I provide a comparative analysis on the admissible evidence used to prove a marriage in state courts and in shalish, examining the legal reasoning within each system. Shalish operates with a flexible legal reasoning, which in theory has the capacity to recognize social hierarchies, balancing power and implementing justice in more equitable ways. Noting the kinds of cases where marginalized women benefit from the decisions in shalish compared to decisions from state courts reveals the gaps in state law, challenging the claims of universality and superiority over other forms of law as well as a need to rethink evidentiary protocols from the ground up. This article highlights alternate epistemic frameworks of justice that recognize and center rural women’s positionalities, desires, and standpoints, thereby decentering thinking about law and evidentiary processes rooted in Eurocentric, patriarchal, and urban frameworks.