Muslim law

Sharia courts divide opinion even among Muslims – but they are not a parallel justice system

Darul Qaza, which the All India Muslim Personal Law Board wants to have in every district, is essentially an arbitration council whose verdicts are not binding.

The All India Muslim Personal Law Board’s decision to establish a sharia court in every district of the country has drawn wide criticism, and strong condemnation from the Bharatiya Janata Party.

Although the board has clarified that the courts will merely interpret sharia, or the Islamic law, for Muslims who approach them for arbitration, the ruling party is not mollified. By remarking that India is not an Islamic republic, BJP leaders are seeking to project the proposed courts as an attempt by the minority community to set up a parallel justice system in the country.

The decision has even angered some Muslim groups which are worried that the BJP will employ it as another trope of the Muslim “other” to ratchet up communal rhetoric ahead of next year’s general election. Moreover, they point out, Indian Muslims have far more serious matters to worry about.

Others have defended the decision. Hyderabad MP Asaduddin Owaisi asked BJP leaders to read the Supreme Court’s judgement on sharia courts before commenting. “AIMPLB believes in inclusiveness,” said the All India Majlis-e-Ittehadul Muslimeen president who is part of the personal law board. “These are Darul Qaza and they resolve disputes speedily at very little expense.”

The Supreme Court ruled in July 2014 that sharia courts have no legal sanction and their decisions are not binding. It, however, refused to ban them.

Zafar Sareshwala, former chancellor of Hyderabad’s Maulana Azad National Urdu University, dismissed the BJP’s allegation that the proposed courts will function as a parallel judicial system. The personal law board has proposed to set up Darul Qaza that have no authority to get their decisions implemented through any enforcement agency, he explained. So, they cannot be termed to “in conflict with or parallel to the Indian judicial system”.

What’s a sharia court?

Sharia, in Arabic, means Islamic jurisprudence. Muslims, especially of the majority Sunni sect, have traditionally relied on what is now know as Darul Qaza for guidance in matters of Islamic law and to resolve disputes related to marriage, divorce, inheritance. In popular terminology, Darul Qaza – literally, house of judgement – is referred to as “sharia court”. It is essentially an arbitration council headed by Qazi, a scholar of Islamic law, who acts as the judge. The personal law board runs 50 Darul Qaza in the country, with the first starting in 1993.

“We are running them within the ambit of the Constitution,” said Zafaryab Jilani, the board’s secretary. “The Supreme Court has allowed them, saying they are are not a parallel system.”

For many Muslims, the appeal of sharia courts lies in that, unlike the formal legal system, they are speedy and inexpensive.

To settle a dispute, a Muslim man or woman can approach Darul Qaza and submit an application. If all parties to the dispute agree to arbitration, Qazi will summon them and their witnesses, take their written statements, examine the matter in light of the Islamic law and deliver a ruling. It’s up to the parties involved whether they want to abide by the ruling or not. If any of the parties does not agree to the verdict, there is nothing Qazi can do.

Rehnuma, 30, a resident of Sahranpur, Uttar Pradesh, decided to separate from her husband and moved a family court. As the case went unresolved for over two years, forcing Rehnuma to hold off on her plan to marry the man she had started living with in Gurgaon, where she works, she approached Sahranpur’s Darul Qaza. She obtained a divorce in no time, enabling her to have a nikah, or Muslim wedding, with her partner even as the case in the family court for the custody of her daughter and maintenance is pending.

The main objection to sharia courts that most critics have concerns the enforceability of the verdict. They insist it is binding, which makes Darul Qaza a parallel court.

Jeelani said this is not true. Qazi has no power to enforce his verdict. “It is just a decision on a particular mater in light of sharia,” he explained. “It is not binding. Qazi is not an enforcement agency.”

Split verdict

Abdul Hameed Mohammad Saleemul Qadri, 80, is Qazi of the sharia court in Badaun, Uttar Pradesh. He regularly hears matters brought by Muslim men and women. Once, he was even approached by a Hindu trader for help. “His shop was burnt and he suspected it was done by Muslims,” recalled Qazi’s nephew Mujeeb-e-Haque. “Qazi offered him compensation on behalf of Muslims and also sought his forgiveness. The trader was overwhelmed and refused to take anything. A riot was thus averted in the city.”

Mostly, Darul Qaza are called upon to resolve marital disputes. They seek to reconcile the couple and recommend separation only after all other options are exhausted, said Qazi Maulana Mustaqeem Nadwi of Lucknow. Nadwi said he gets 10-12 such cases a month.

Sharia courts, however, have their fair share of critics within the Muslim community. Khatija, 35, a social activist in Lucknow, claimed that decisions of Darul Qaza, because they are not binding, give too much leeway to men. “If recommendations are in their favour, they accept, else they ignore them,” she said. “While settling marital disputes, they talk about sharia and we accept it, but the same sharia should be followed while giving share in family property to daughters.”

The Shia sect is also largely opposed to sharia courts. Syed Waseem Rizvi, head of the Uttar Pradesh Shia Central Waqf Board, maintained that Darul Qaza are illegal. “India does not have sharia government, then how can AIMPLB appoint Qazi?” he asked. “It is against the Constitution and it is anti-national activity. Such courts must not be allowed and AIMPLB should be banned. No section of the society can be given the authority to run such courts.”

Yousuf Mohani, spokesperson of the All India Ulema and Mahsaikh Board, said he is in favour of sharia courts but criticised the Muslim Personal Law Board for “raising the issue at a wrong time”. “Darul Qaza have been running successfully for quite some time,” he said. “There is no objection to them. But the timing of raising this issue by AIMPLB is wrong. One can see what the political situation is in our country. Raking up this issue now is not good.”

Rehnuma is an assumed name to protect her identity.

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