With the Congress-led UPA government submitting its affidavit in the Supreme Court over the legal validity of Darul Qazas (Shariat courts), a fresh debate has erupted over the functioning of this age-old Muslim institution.
Though these courts neither have any legal validity nor power to enforce their judgements, Kudha ka dar (the fear of God) has been protecting them for centuries.
The Supreme Court had last year issued notices to All India Muslim Personal Law Board (AIMPLB), Darul Uloom Deoband, Muslim for Secular Democracy and some state governments on the petition of ML Madan questioning the legal validity of these institutions popularly known as "Qaziyat".
The people agreeing to reconciliation are driven more by religious compulsion than any other pressure. "Accept it or face consequence on the Last Day of Judgment" is an oft-repeated argument in these courts. Largely flooded with divorce cases, women constituted a majority of the petitioners in these courts. Mostly the lower strata of Muslim society have been frequenting these institutions for justice.
Though not covered under Shariat Application Act 1937, these courts have been delivering judgment on Muslim Personal Law protected under the Act. Darul Qazas never entertain cases already pending in government courts. These courts are not empowered to take up civil and criminal matters.
The Shariat-based courts have also been mostly dealing with family cases like divorce, guardianship, inheritance issues and Mehar (dower). Mehar should not be confused with the civil law concept of alimony. Mehar is an amount unrelated to divorce, which is due from the husband to the wife as a consideration for the marriage itself. It is always a one-off payment and is not envisaged as a form of maintenance.
The whole concept of these courts is based on "fear of God", as Naib Imam Eidgah Maulana Khalid Rashid put it. While there are nearly 30 Shariat courts in UP, prominent are in Lucknow–Nadva and Firangi Mahal courts, Kanpur, Gorakhpur, Sitapur, Meerut, and Saharanpur.
Senior advocate and member All India Muslim Personal Law Board (AIMPLB) Zafaryab Jilani told Hindustan Times that Shariat courts were "fastest and cheapest" institutions of dispensation of justice for the community in family matters.
While not more than Rs 200 is spent on the entire litigation, he said judgments were delivered within three to six months. He said in Delhi Darul Qaza more than 70 per cent cases were being disposed of within six months. He said decision could be delayed but not for more than two years only if there was problem in calling the rival party.
Deciding the case as per Islamic jurisprudence, the thrust is normally on reconciliation and arbitration. Jilani said darul qazas were better than family courts in deciding disputes connected with Talaq, mehar, inheritance cases. He said at least 90 per cent cases settled in these courts did not go to any other court. While in family courts there was hardly any move for reconciliation, Jilani said shariat courts made personal efforts to amicably settle the cases.
The system is simple. The applicant is to move a petition on plain paper. With no involvement of lawyers the Qazis directly issue notices to the rival party after verification. Even family members and other close relatives could be involved for reconciliation. Since the inheritance issue is covered under personal law, the courts have been taking such cases. Jilani said in the Bihar government courts had been referring inheritance cases to Imarate Sharia for opinion under Islamic laws. In the past Qazis had judicial power under Qazi Act 1860 but later these powers were withdrawn. In some of the cities like Meerut and Kanpur Qazis are still appointed by the government under this act.
In fact Darul Qazas have been working just as advisory bodies within the defined framework of the religion but some time their decisions have evoked wider criticism in the community. In the absence of "Ijtihad" (application of reasoning to textbooks) these institutions normally fall back to hackneyed system of fatwa causing uproar in the community. In the past people listened to turbaned Mullahs quietly but now there are voices of dissent hankering for a change. Shaken over fatwa on the Imrana and later on Muslim women contesting panchayat poll, the Darul Uloom Deoband has now decided to be careful in issuing edicts.
Darul Qazas have been high on the agenda of the AIMPLB during the last few years. The board maintained that there was no confrontation with the country's judicial system on the issue. The board has already made it clear that Qaziyats were not "parallel judicial system" as had been made out by the petitioner in the court. Basically the institution is arbitration council having no judicial power or authority for the implementation of its decision. "Thus Qaziyats could not be called a parallel judicial system," said board member Dr Naim Hamid.