The recent Supreme Court judgment on fatwas and the decisions given by Dar ul Qazas, which are courts dealing with matters of Muslim personal law, pronounced that they have no legal status and are not binding, but refused to ban them. The judgment was met with a great deal of debate, the dominant view being that the court’s refusal to ban Dar ul Qazas and fatwas was an important victory for secularism.

But those who suffer the consequences have a different story to relate.

Two years after Nargis (name changed) secretly married her neighbour, she was shown a blank paper by her in-laws. It bore her husband’s signature, and a line saying he was divorcing her. The husband was then working in one of the Gulf states. When she refused to accept it, arguing that she needed to be told this by him, they got a qazi to send it to her on his letterhead, as a fatwa.

Backed by Awaaz-e-Niswaan, Mumbai’s first Muslim feminist organisation, the 20-something Nargis marched to the qazi’s office to demand how he could have sent a fatwa terminating her marriage without as much as summoning her.

“In the Sharia, the wife need not be told,” he replied.

“Who gave that qazi the right to issue this kind of fatwa?” she asks. “Fatwas should be banned.”

The Supreme Court judgment has laid down guidelines: fatwas can only be issued to the parties concerned, and imposing them is illegal. But that is in ideal form. In reality, they are issued to all and sundry, and imposed every day on women.

The practice of Muslim divorce
Take Shama (name changed). Her husband divorced her for leaving the house without his permission to attend a funeral in her mother’s family. Yet she says she waited for him to come home so she could take his permission, but his grown-up son – from his first wife – told her she could go. When she returned, her husband flung a scrap of paper on her face with the word talaq written on it thrice.

When the Bharatiya Muslim Mahila Andolan (BMMA), a seven-year-old Muslim women’s group that works in 15 states, demonstrated outside the masjid where her husband was a trustee, they were told to get a mufti’s opinion. The mufti gave a fatwa that the divorce was indeed valid. Like Nargis, Shama is now back at her parents’ home. The families of both are slum-dwellers. Nargis has started giving tuitions to the neighbourhood children to cover her expenses, while Shama, who was thrown out with her children, works from home as a tailor.

The Quranic concept of divorce demands that such a permanent disunion take place only after arbitration. The woman must get back her mehr (dower) and also be given maintenance. But in India, fatwas legitimising unilateral divorce by the husband, given in the wife’s absence, and where the woman gets nothing, are a dime a dozen.

Patriarchy, not Religiosity
In a survey of Muslim women conducted across ten states, the BMMA found that such divorces are routinely upheld by Darul Qazas. The lack of an codified personal law leaves any qazi or mufti free to pronounce whatever he wants on matters as life-changing as marriage, divorce and maintenance.

Fatwas urging halala, wherein a divorced wife must consummate her marriage with a second husband before being able to re-marry the first, are regularly pronounced in Lucknow, the BMMA found.

Codified Personal Law
The BMMA conducted the survey while working on a draft of a codified Muslim personal law. The code that they have drawn up, after seven years of consultations with Islamic scholars, qazis, lawyers and the poorest Muslim women, makes unilateral divorce, halala and polygamy illegal.

But it is men who run Darul Qazas and give fatwas. How do we reconcile their pronouncements with what women, who have to obey them, want? Noorjehan Safia Niaz, co-founder of the BMMA, which also runs Sharia courts for women, feels the spirit of the Supreme Court judgment points towards a need for a codified personal law.

How to make clerics accountable?
“The judgment recognises that alternate dispute redressal mechanisms such as Darul Qazas are necessary, because courts can’t reach the most marginalised. But it says their decisions must not impinge on anyone’s legal rights. How does one bind clerics to this without a law that they must follow? How do you make them accountable?’’

Hasina Khan, who spent many years as secretary of Awaaz-e-Niswan, feels the Court should have gone further. “It has not given any solution on how to counter the repercussions of defying these fatwas, which we have always found to be unconstitutional.’’

It’s not just money that prevents women from challenging them in court, she says, citing the example of an economics professor in Mumbai whose husband forced her to leave her job after the Darul-Uloom Deoband issued a fatwa in 2010 declaring it haraam for a family to accept the earnings of a woman who worked alongside men.

“If a Muslim woman who had achieved so much could not defy this fatwa,” said Khan, “imagine the plight of women living in ghettos and small towns. Fatwas forbidding music at weddings, or mobile phones for girls, are not unheard of. The court should have allowed third parties to approach the court to nullify these fatwas.’’

It is precisely because they have no legal status that fatwa-givers and Dar ul Qazas – much like khap panchayats – enjoy limitless power. “If the state leaves it to the community to sort out its disputes, the weakest sections of society have to bear the brunt,’’ said Hasina.