Undoing fatwas

The Supreme Court ruling that fatwas issued by sharia courts cannot be enforced is significant in furthering the movement for securing gender justice within the framework of personal laws.

Participants at a meeting of the sharia court organised by the Bharathiya Muslim Mahila Andolan in Dindigul, Tamil Nadu.

A 23-YEAR-OLD woman is divorced by her husband because she has a scratch on her leg; a 35-year-old woman is issued triple talaq after 10 years of marriage because she has gained weight owing to thyroid problems. It may sound ludicrous but these are just two of several such cases that have come up before the women sharia courts established by the Bharathiya Muslim Mahila Andolan (BMMA) in Gujarat, Maharashtra and Tamil Nadu in the past one year.

The women allege that in most of such instances, the local qazis (Islamic judges) affiliated to the Darul Qazas, or sharia courts, which claim to be an alternative forum for settling disputes relating to marriage, divorce, maintenance and property by delivering justice on the basis of laws contained in the Quran and the Sunna (the way of life prescribed as normative in Islam), certified the talaq (divorce) without taking the women concerned into confidence or pronounced judgments that violated gender justice.

The Supreme Court’s July 8 judgment restraining the Darul Qazas from issuing fatwas (legal opinion in matters of Islamic law) that infringed on the fundamental rights of an individual has brought some hope for Muslim women who have been affected by the patriarchal interpretation of the Islamic religious texts.

The judgment, delivered by the two-judge Bench of Justices Chandramauli K. Prasad and Pinaki Chandra Ghose, declared that “the sharia courts are not sanctioned by law and there is no legality of fatwas in this country”.

It said the sharia courts could pass edicts only when an affected individual approached it or when a person having direct interest in the matter sought its opinion in cases where the affected person was unable to do so. It also stated that fatwas should not be in violation of the basic human rights. Justice Prasad, who read out the judgment, said: “No religion is allowed to curb anyone’s fundamental right…. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as a dehumanising force.”

The Supreme Court was responding to a public interest petition filed in 2005 by Vishwa Lochan Madan, an advocate, questioning the legality of the sharia courts in India. Alleging that Islamic courts functioned like a parallel judicial system in the country, the petitioner had sought a declaration that the system was unconstitutional and illegal on the grounds that it challenged the primacy of the Constitution as the fundamental source of law. The apex court, while restraining the issuance of arbitrary fatwas in violation of the fundamental right of an individual, desisted from pronouncing the practice of issuing fatwas illegal or unconstitutional.

It observed: “A qazi or mufti has no authority or powers to impose his opinion and enforce his fatwa on any one by any coercive method. Therefore, the grievance of the petitioner that Darul Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived.”

Although the pronouncements of the sharia courts do not have legal sanction, they continue to be used by husbands and in-laws to harass and intimidate women. Local qazis exert considerable influence in matters of marriage and dissolution of marriages in situations where women do not have the wherewithal to approach a civil court for resolution of disputes. Through a reasoned interpretation of the Quran, the women sharia courts have attempted to secure justice for women who have been divorced arbitrarily.

This has involved a persistent struggle with the qazis and the Darul Qazas, which often assist men in violating the provisions of religious laws to suit their own ends.

Incidentally, the All India Muslim Personal Law Board (AIMPLB) feels that as per the Quran women do not have the mandate to set up sharia courts to resolve disputes relating to marriage and divorce. S.Q.R. Illyas, a working committee member of the board, said, “In Islamic history, there is no instance of the appointment of a woman as a qazi.” According to him, the establishment of alternative dispute resolution centres by women to interpret the sharia does not have the sanction of the Quran.

Speaking to Frontline , Zakia Soman of the BMMA explained how the sharia courts continued to work against the interests of women. “Most of the Darul Qazas are male-dominated and even pronounce un-Quranic injunctions which are violative of the rights granted by the Quran in the process of divorce. For instance, giving a one-sided oral talaq without informing the woman is not sanctioned by the Quran. Some of these institutions certify such divorce when approached by men. There is a well-laid-out procedure for pronouncing talaq in the Quran, which includes a three-month period when there would be efforts at reconciliation and repeated attempts at arriving at a compromise. Talaq is pronounced only when the situation reaches a point of no return and there is no possibility of the marriage working out. Some of these institutions pronouncing a fatwa are not even aware of this.”

The talaq

Talking about the broad pattern of cases that come up in the women sharia courts, Zakia Soman said, “There are instances when a woman is not even aware that a husband was married a second time. Then there are instances of women who are sent to live with their parents following a quarrel with their husbands learning that they have been divorced by post.” Yasmin, 38, of Kalamboli, Navi Mumbai, was at her wits’ end dealing with constant demands for money from her husband. Yasmin is a doctor. When she received a talaq letter authorised by the local qazi in April 2012, it was nothing short of a bolt from the blue. She was not even aware that her husband wanted a divorce. She approached a women sharia court, which helped her in approaching the civil court to file an application for maintenance.

Shakeela Qureishi, 28, never thought that a domestic quarrel, followed by her going off to her parents’ home, would culminate in talaq. She was married for nine years when she got the letter pronouncing the triple talaq permitted by the qazi of Bandra West in Mumbai in March this year. Shakeela Qureishi’s husband was unhappy with her “incompetence” in carrying out domestic chores. She approached a women sharia court, which helped her file a suit for maintenance in a family civil court.

Even more ludicrous is the case of a 22-year-old housewife from Juhapura in Ahmedabad whose husband pronounced the triple talaq in a drunken state in May and then got it sanctioned by a local qazi. She approached a women’s sharia court in Ahmedabad, which approached the husband to attempt a reconciliation.

In another case, a 21-year-old woman was divorced by her husband by uttering the triple talaq, which was then sanctioned by the qazi of Juhapura. The woman approached the BMMA-run court, which is now trying to attempt a reconciliation.

Noorjehan Dewan, who runs one of the women sharia courts in Ahmedabad, pointed out that the Darul Qazas continued to exert influence on the lives of women. “Women are driven out of their homes after their husbands get the talaq certified. The most common cases that come up are those of women who have been divorced by triple talaq or those whose husbands have entered into a second marriage without even informing them.”

Khatun Shaikh, who is in charge of a number of women sharia courts in Mumbai, said they faced resistance from erring husbands, helped by local qazis. “Early this year, a 23-year-old woman who had been granted a divorce after a quarrel with her husband approached us. We tried to work things out with her husband, but to no avail.”

The AIMPLB’s stance The AIMPLB, which runs a number of Darul Qazas across the country, however, denied allegations that these institutions were working against the interests of women.

Ilyas said: “The Darul Qazas serve as an alternative dispute resolution forum. They have successfully delivered speedy justice to a large number of Muslims in a country where there is a huge backlog of cases in the judicial system. Since 1917, these institutions have disposed of 24,000 cases, of which only 11 have been referred to the higher judiciary. Of these, in 90 per cent of the cases, the judiciary has upheld the findings of the Darul Qaza. The Shariat Application Act of 1937 is the basis of most of the judgments.”

On being asked if these institutions were gender sensitive, Ilyas said, “Some of these institutions have a counselling committee, which consists of women. Their opinions are taken on board while pronouncing the judgments.”

On the allegations that the qazis continue to sanction triple talaq, Ilyas said, “When a man pronounces a triple talaq, its validity is to be decided by the Darul Iftaa [a forum of scholars on Islamic law who can issue fatwas on socio-religious matters]. The Darul Qaza only gives opinions on disputes, it does not pronounce fatwas. Also, the Supreme Court judgment has said that the pronouncement of fatwas in itself is not illegal and that one may not object to the issuance of a fatwa as long as it does not infringe upon the fundamental rights of an individual guaranteed under the law.”

Illyas said that there were instances when the Darul Qazas had worked in a gender-sensitive and just manner. “There was a case in a Darul Qaza in south Delhi in 1994 where the court helped the woman to get back the entire amount of mehar [dower] from the husband after the divorce. The Islamic sharia is favourable to women, both the Quran and the Sunna.”

The apex court judgment comes against the backdrop of informal justice delivery mechanisms continuing to align with regressive patriarchal forces. There are attempts by women to counter the clout of these institutions through a more progressive, liberal interpretation of religious texts. It remains to be seen if, and in what ways, the Supreme Court judgment will further this movement for securing gender justice within the framework of personal laws.