‘Right­now, there is fearof the other’

Business Standard - - DEMOCRACY AT WORK -

There have been neg­a­tive and of­ten ex­treme re­ac­tions amongst par­lia­men­tar­i­ans to news that the All In­dia Mus­lim Per­sonal Law Board (AIMPLB) in­tend to es­tab­lish sharia courts in every district of the coun­try. Can you ex­plain why you be­lieve those who are con­cerned about sharia courts act­ing as a ‘par­al­lel le­gal sys­tem’ may have mis­un­der­stood how they op­er­ate?

An im­pres­sion seems to have been cre­ated that this move to set up darul qazas in every district is driven by an ob­jec­tive to un­der­mine the im­pact of the re­cent con­sti­tu­tional bench rul­ing in the triple ta­laq ( Sha­yara Bano vs Union of In­dia) case, which had de­clared triple ta­laq in­valid last Au­gust. But this premise has no ba­sis since darul qazas have been func­tion­ing in In­dia for a long time.

For in­stance, Imarat-e-Sharia in Patna, which has a well-oiled al­ter­nate dis­pute res­o­lu­tion mech­a­nism, was set up in 1920 and has a broad net­work of darul qazas across many north In­dian states. At that time, there was no con­tro­versy around the set­ting up of this in­sti­tu­tion. Ad­di­tion­ally, there are also darul qazas run by muftis who are not af­fil­i­ated to any darul qazas.

Mis­un­der­stand­ing around the machi­na­tions of Is­lamic law have been seen be­fore . Do you think the AIMPLB’s plan to ac­ti­vate its Tafheem-e-Shariyat com­mit­tee will help to im­prove aware­ness lev­els and even re­la­tions be­tween op­pos­ing groups?

Yes I am sure such ini­tia­tives will help to clear the air and give a true pic­ture about Is­lam, and Mus­lim women’s rights. Right now, there is so much Is­lam­o­pho­bia and fear of ‘the other’, be­cause we do not know about the tra­di­tions, cus­toms and prac­tices of Mus­lims. Through our ig­no­rance, we are brand­ing ev­ery­thing con­cern­ing Is­lam as anti-women.

As many as 95 of 100 cases stud­ied in a darul qazain Kan­pur were filed by women who wanted the dis­so­lu­tion of a mar­riage or main­te­nance sup­port, in a 2017 study by the In­dian In­sti­tute of Tech­nol­ogy, Kan­pur. What does this tell us about the role these or­gan­i­sa­tions play amongst women in this com­mu­nity?

The same is true of all the darul qazas that I have vis­ited in Mum­bai, not just this one in Kan­pur. I have vis­ited around eight that are func­tion­ing and each one said more women ap­proach them than men. A few of these stated that around 95 per cent are women.

This is be­cause when a Mus­lim woman faces do­mes­tic vi­o­lence she of­ten prefers to go to a darul qaza to dis­solve her mar­riage rather than the fam­ily court. In a darul qaza, women feel more com­fort­able since they are fa­mil­iar with the cul­ture, un­der­stand the lan­guage. Also darul qazas of­fer ex­pe­di­tious and cheaper op­tions to re­solve fam­ily dis­putes, than the civil courts.

Men ap­proach the darul qazas if their wife has de­serted them or the wife has filed a crim­i­nal case un­der Sec­tion

498A of the IPC (In­dian Pe­nal

Code). Men do not ap­proach a darul qaza for pro­nounc­ing ta­laq. Hy­po­thet­i­cally speak­ing, if darul qazas were abol­ished and per­sonal law matters brought more into the purview of the sec­u­lar ju­di­ciary, what in your opin­ion would be the im­pact on com­mu­ni­ties that had tra­di­tion­ally looked to­wards al­ter­na­tive dis­pute mech­a­nisms?

To­day our ju­di­ciary is clogged and cases drag on for a very long time. So ac­tu­ally solv­ing dis­putes through al­ter­na­tive dis­pute res­o­lu­tion mech­a­nisms like Lok Adalats (Peo­ple’s Courts), me­di­a­tion cen­tres etc are en­cour­aged. There­fore, I do not think the gov­ern­ment will abol­ish the darul qazas.

Even if they are abol­ished peo­ple can still choose var­i­ous al­ter­na­tive fora such as the lo­cal pan­chay­ats (vil­lage coun­cils), me­di­a­tion by fam­ily el­ders, re­li­gious heads and lo­cal po­lit­i­cal par­ties etc to re­solve civil dis­putes. For in­stance, even among Chris­tians and Hin­dus such al­ter­na­tives are avail­able. Chris­tians have their own church tri­bunals and many lower caste Hin­dus ap­proach their caste pan­chay­ats or vil­lage pan­chay­ats to re­solve fam­ily dis­putes.

The Hindu Mar­riage Act val­i­dates the di­vorces granted as per cus­tom of the caste. So if Mus­lims opt for ob­tain­ing khula (di­vorce ini­ti­ated by the wife) in a darul qaza, the hus­band also ac­cepts this fora for re­solv­ing the dis­pute and both par­ties abide by the de­ci­sion of the darul qazas, how can this be stopped?

You have pre­vi­ously said the me­dia too of­ten por­trays the plight of Mus­lim women in In­dia in­ac­cu­rately (as lack­ing rights) and ma­nip­u­lates the story to fit po­lit­i­cally charged dis­course. The re­cent pub­lic in­ter­est lit­i­ga­tion is a good ex­am­ple of this you say. Could you ex­plain what you mean by this?

Based on a study con­ducted by Bharatiya Mus­lim Mahila An­dolan (the find­ings and method­ol­ogy of which were chal­lenged by le­gal schol­ars) sev­eral ar­ti­cles ap­peared in the me­dia. A bench of the Supreme Court while deny­ing a Hindu woman right to ances­tral prop­erty, to­tally out of con­text, then made a ref­er­ence that a Con­sti­tu­tion Bench be set up to ex­am­ine the lack of rights of Mus­lim women though this was not an is­sue be­fore the court.

Sha­yara Bano is a vic­tim of do­mes­tic vi­o­lence just like 50 per cent of all In­dian women are. She had left her mat­ri­mo­nial home and was re­sid­ing with her par­ents. Reme­dies to her con­cerns (main­te­nance, ac­cess to her chil­dren and pro­tec­tion against do­mes­tic vi­o­lence) were avail­able to her un­der the Pro­tec­tion of Women from Do­mes­tic Vi­o­lence Act, but per­haps no one ad­vised her about this.

When her hus­band filed for Resti­tu­tion of Con­ju­gal Rights, she con­tacted a Supreme Court lawyer to trans­fer this case from Luc­know to Ka­shipur. As a counter blast, the hus­band’s lawyer sent her a ta­laq­nama. Since a Con­sti­tu­tion Bench was con­sti­tuted, her lawyer ad­vised her to file a writ pe­ti­tion and chal­lenge the ta­laq­nama though she her­self con­sis­tently main­tained that she does not wish to re­turn to her hus­band due to the do­mes­tic vi­o­lence. So ac­cord­ing to me this case does not strictly fit the for­mula of ‘in­stant and ar­bi­trary triple ta­laq’. But the writ pe­ti­tion gave her in­stant fame and she be­came known as a cru­sader for Mus­lim women. Re­cently I read re­ports that she has joined the BJP.

In the same ar­ti­cle you also said, the me­dia of­ten ig­nores the large num­ber of pos­i­tive court judge­ments in favour of Mus­lim women in In­dia. Can you give us an ex­am­ple from your own ex­pe­ri­ence work­ing with Ma­jlis or in­ter­ac­tions with the Mus­lim com­mu­nity?

I could men­tion so many since we are con­stantly us­ing these cases to de­fend the rights of Mus­lim women. For in­stance, in the Shamim Ara case in 2002, the Supreme Court laid down the cor­rect pro­ce­dure for pro­nounc­ing ta­laq. Even ear­lier there were judg­ments of Jus­tice Barul Is­lam of the Guwa­hati High Court in 1981 where the pro­ce­dure for pro­nounc­ing ta­laq was laid down. Since 1981 to 2002, var­i­ous High Courts had fol­lowed the Guwa­hati judge­ment. So the is­sue that ar­bi­trary triple ta­laq is in­valid was al­ready set­tled. But these judg­ments were not high­lighted in the me­dia.

So every time we have ap­proached the mag­is­trate’s court to pro­tect a Mus­lim woman un­der this Act, the other side have ar­gued that a Mus­lim woman is not en­ti­tled to claim re­lief un­der this Act and this is sim­ply be­cause me­dia had not high­lighted this is­sue enough.

Flavia Agnes, lead­ing women’s rights lawyer and co-founder of Ma­jlis, a le­gal and cul­tural re­source cen­tre that cam­paigns for and pro­vides le­gal rep­re­sen­ta­tion to women and chil­dren, tells Tish Sanghera that re­ac­tions to the prob­lems of Mus­lim women are knee-jerk and prompted from ig­no­rance. Ex­cerpts:

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