Islam, Gender Justice and Role of Darul Qaza: Critical Analysis

Darul Qaza

  On 23rd January 2022, a public meeting was organized by the Kamsar-o-Bar’s region of the Muslim community (commonly known as Biradary) in Dildar Nagar, district Ghazipur (UP). In this meeting, formally Darul Qaza (it refers to home of judgment) office was inaugurated and a Qazi has been appointed by office bearers of the All India Muslim Personal Law Board (IIMPLB) to look into matters related to talaq, khula, maintenance and other family disputes such as inheritances and distributions of properties, etc. in the light of the Islamic shariah and teachings of the Prophet. In this meeting, some prominent members of the Muslim Personal Law Board have expressed their opinion regarding the need and importance of the Darul Qaza in the Muslim community. The meeting has also been attended by a large numbers of social workers, local leaders and media personalities including Muslim women of adjoining villages of Dildar Nagar.

Although, the body like Dural Qazas have no legal status under the law of land and its decisions are not binding on victims. But, so far steps taken by this Islamic institution across the country have been appreciated by the secular Courts including the Supreme Court, as alternative dispute resolution bodies and reducing the burden of the judiciary. It is an empirical fact that Darul Qazas (Shariah Courts) have reduced the burden of the Courts by resolving the said problems without taking much time and financial assistance from the victims. The experiences of different States of India have shown that most of the poor and women were used to register their grievances in the Darul Qazas. In most of the cases, this body used to adopt reconciliatory approach (while adopting the path of Sulah in the light of the Quranic injunctions) rather than giving judgments. These points were earlier underlined by members of the Board and also echoed by the respective speakers in the said meeting.

While addressing the gathering, Mualana Ateeque Ahmad (a convener of Darul Qaza, Muslim Personal Law Board)  emphasized that the ultimate purpose of said institution is to establish unity among the Muslims. In doing so, our larger objective is to spread and foster the communal harmony and culture of love rather than culture of hate in the society at large, added by Maulana Ahmad. Having said that let me first discuss the historical trajectory of Darul Qaza in the context of India and elsewhere too.

To be precise here, the concept of Darul Qazas or shariah courts was prevalent during the times of the Prophet and later it was spread in different Islamic and non-Islamic countries.  Besides Muslim countries, Darul Qazas are also established in the United Kingdom (UK) and other European countries. In the context of India, it could be traced out at the time when the Muslim traders came to India especially in the coastal areas of southern States. The local Hindu Kings had recognized the role of the Qazi and accordingly the matters related to the private spheres of Muslims (as stated above) were used to adjudicate. The said institution also continued to prevail during the Mughal Empire. At the time, the department like Darul Qazas was officially established by the State and rulers. The shariah laws were made and interpreted by the learned Islamic jurists in the light of the Quran and teachings of the Prophet and while keeping the present needs and problems in mind.

After the arrival of British masters in India, said department was disbanded around 1862 and since then the post of the Qazi no longer exists. However, due to constant demand of Ulema and Muslim political class, the Shariat Application Act was passed in 1937 by the Colonial State. During the course of anti-colonial struggle (when consistent demands were put forward by Muslim leaders and Ulema), the Indian National Congress had also promised to restore the Shariah law in the post Independent India. In this respect, the Indian Constitution has also given space and recognized the cultural and religious freedom of minorities. Yet, the Constitution has also mentioned in article 44 that if favorable conditions emerge in future, the State should move towards formulating the Uniform Civil Code (UCC).  In this respect, the judiciary and more importantly, the Hindu nationalist force have also emphasized that there is a need to formulate the UCC.

After the ShahBano case, debates around the UCC and gender justice in India had taken a new lease of life. A section of feminists and secularists had criticized then the Rajiv Gandhi government for succumbing to the pressure of the conservative Ulema and Muslim leaders. They criticized the government for passing the protection of Muslim women divorce Act in 1986. For feminists, gender justice and autonomous rights of Muslim women were heavily compromised on the ostensible grounds of protecting the Islamic shariah and safeguarding the conservative views of the Muslim Personnel Law. Amidst hues and cries, the Hindu nationalist forces put forward the demand for the UCC. And it was also supported by the feminists and a section of liberals for the sake of achieving gender justice in the public sphere. However, later on the secular and feminists have abandoned the demand for the UCC and started to talk about legal pluralism and gender just laws.

Here, I am not going to discuss these contentious issues, so far much has been talked about and written by the scholars. In this essay, I will limit my discussion around the institution like Darul Qaza and its role in promoting gender justice and equality in the private spheres. Secondly I will also try to examine whether the functioning of Darul Qazas are compatible with the Indian Constitution or not?

In the backdrop of the Shah Bano’s controversy, a section of feminists including the Hindu nationalists have had consistently argued that gender justice has often been compromised in the name of protecting the conservative ‘communitarian laws’ as stated above. They are not comfortable with Islamic shariah (which is against the egalitarian and broader norms of gender justice and equality). For feminists and women’s organizations, most of the community owned Islamic institutions are still dominated by the Muslim upper-caste males and govern by their patriarchal mindsets. For instance, on the basis of experiences of Muslim women in the shariah courts (mostly dominated by male Qazis), they have underlined that the Qazi had been some times influenced by the males counterparts while adjudicating domestic problems.

However, Ulema and members of Muslim Personnel Law Board have had consistently argued that so far empirical evidences have demonstrated that most of cases in Darul Qazas, related to personnel matters were registered by Muslim women. Unlike secular Courts, Darul Qazas are easy to access and provide speedy justice. Due to much expensive and not easy to access the civil Courts, most of the Muslim women preferred to register their grievances in the Darul Qazas. In doing so, said institutions have played a positive role and reduced the burden of secular Courts. These points have also been accepted by the Courts in their various judgments, as underlined by prominent members of the Board.

Recent experiences (in which most of the Muslim males have given divorce to their wives on pity and minor issues) have shown that patriarchal mindsets of Muslim males are widely responsible for the sudden rise of cases of instant triple talaq. As a result, large numbers of cases were registered in respective Courts. And that prepared the ground for why a section of Muslim women’s organizations have shown tacit agreement with the recent Act, passed by the BJP government against the instant triple talaq.  However, I have argued elsewhere that the present Act aims to criminalize the Muslim males rather than providing gender justice to the Muslim women.

Yet, question arises why the Board and its prominent members have not taken pre-emptive measures to resolve these issues within the institution like Darul Qaza and deliver justice to Muslim women in accordance with the true spirit of Islam.  Given the patriarchal mindsets of Muslim men, empirical data demonstrated that it is not so conducive for Muslim women to get justice within the framework of communitarian laws. The experiences have shown that culture of wife beating, domestic violence and harassments to women are the part of the Indian culture and society and the Muslim community is not exception in this regard

However, a section of Muslim feminists like Asma Barlas, Amina Wadud including well known scholar like Asghar Ali Engineer have argued that Islamic text like the Quran is not an essentially anti-women and against gender justice per se, as propagated by the Hindu nationalists, colonial and western scholars. It is the patriarchal and conservative interpretations of shariah laws that have had infringed the rights of Muslim women. For these Muslim scholars, if Islamic text will be interpreted in the light of gender justice and equality, it would resolve the problems and issues pertaining to the domestic and family affairs of Muslim women and Muslim men.

In the present political scenario, there is decline of the public institutions and the credential of Courts (judgment on Babri Masjid can be taken as a case in point here) are under the scrutiny. In this situation, it is difficult for Muslim women to access the expensive and much delay judicial process.

To sum up our discussions here, the purpose of establishing the Darul Qazas would be served well when it will deliver justice to Muslim women in a truly Islamic sprit rather than rely on conservative interpretations of Islamic shariah (which often contradict with gender justice), as propagated by a section of  clergy and Muslim males. More importantly, while establishing the Darul Qazas are necessary but it would not be sufficient conditions to deliver the gender justice and equality in the deeply patriarchal Muslim community. To realize the goal of truly gender just society within the community, it is important to demolish the ‘illiberal’ community culture (for instance, wife beating, domestic violence and restriction to women’s freedom, etc, in the name of preserving culture and traditions). In doing so, it is necessary to ‘reform’ the conservative communitarian laws  including  the functioning of Darul Qazas on the lines of egalitarian principles of Islam and gender justice, enshrined in the Quran and the Indian Constitution, as put forward by Muslim women’s organizations such as the Bharatiya Muslim Mahila Andolan and civil society groups  in their several documents.

Badre Alam khan is a research scholar, Department of Political Science, University of Delhi.


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