Wednesday 2 October 2013

Dr. Noorjehan Safia Niaz



Dr.Noorjehan Safia Niaz is Ph.D in Sociology from the Yashwantrao Chavan Maharashtra Open University and an MASW from the Tata Institute of Social Sciences, Mumbai, graduated in 1992. She worked as Development Officer with Mahila Arthic Vikas Mahamandal, a Maharashtra State Government Corporation. Thereafter she joined YUVA as Project Coordinator with special focus on the Muslim women’s groups. She has worked with SAHARA in Anjuman-e-Islam, an institution working for the educational and social development of the Muslim community. From 1999 till 2008 she worked in Women’s Research and Action Group [WRAG] as Project Coordinator and thereafter as the Co-Director. There she worked on developing educational material on Muslim personal law and also initiated and coordinated the Community Outreach Programme, which worked in 30 communities of Mumbai.

She has done an Advanced Diploma in Management Programmes for Executives with specialization in Management of Voluntary Service Organisations from Narsee Monjee Institute of Management Studies. She has completed the 6-month long Common Purpose Leadership Development Programme, called Meridian. She has graduated from the 7th Cohort of the Dasra Social Impact, an executive education program, which provides successful non profits and social businesses with transformational skills necessary to build sustainable and scalable organizations to accelerate their impact. She is also an Ashoka Fellow working towards codification of Muslim family law.

She is the Founder member of Bharatiya Muslim Mahila Andolan, a secular, autonomous mass based national movement of Muslim women. She is also the Founder member and Managing Trustee of Ashana Trust which works towards supporting initiatives of women from marginalized communities for justice, peace and development. Through the years she has concentrated on developing the capacities of marginalized Muslim women, locally and nationally.

She was also a Visiting Faculty and Field Work Coordinator with the Centre of Study of Social Exclusion and Inclusive Policy, SNDT Women’s University. She taught gender and human rights.

ALTERNATIVE DISPUTE RESOLUTION FORUMS




ALTERNATIVE DISPUTE RESOLUTION FORUMS
Analyzing Legal Concerns of Muslim women and Alternative Justice Forums in the Muslim Community

Noorjehan Safia Niaz

INTRODUCTION
The Muslim community in India, as confirmed by the Justice Sachar Report is extremely marginalized on economic, social, educational and legal fronts. The reasons of backwardness being manifold suffice it to say, lies not just with the community but also with the State which has not fulfilled its responsibility for fear of losing its conservative vote bank. The communalization of the society and the impact of the state violence on the Muslim community has been unprecedented. The insecurity and alienation has pushed the community inward and that has severely impacted the social status of Muslim women who being a minority within a minority had to relegate her issues to the backburner.

The Muslim personal law as practiced in India is extremely discriminatory towards women. Historically no concerted efforts have been made by the Muslim women’s groups to bring amendments to the law. Except for a few individual women like Shahbanu the law has remain unchallenged. Justice to Muslim women is available through formal court structures as well as through social and religious groups which form part of the alternative dispute resolution mechanism. Some of these groups though patriarchal in approach are accessible to Muslim women as easy avenues for resolving her legal difficulties.

As an aftermath of the communal violence in Mumbai, there was an upsurge in the emergence of Muslim women’s groups in the poor localities. Mahila mandals were being formed and Muslim women were taking lead to resolve the issues arising within their local communities. Some of these groups also started to give legal aid and support to Muslim women as a result Muslim women had one more accessible avenue to resolve her legal disputes. Mahila mandals and other such alternative structures giving legal support must in some way align itself to the formal courts so that their decisions are legally validated by the court of law. This alignment is also mandated by the Constitution and also been experimented in some states like UP and Gujrat where Nari Adalats have successfully aided women and provided legal and social support.




MAHILA MANDALS AND NARI ADALATS

In a small but significant study done by Jagruti Kendra Mumbai to ascertain the attitudes of women towards abuse by husband and the nature of strategies used, it is shown that the more formal the justice delivery system the less chances of women approaching them. In this study 100% of the respondent did not approach the court when faced with domestic violence. [Fernandes 2009] Given the social, cultural and economic vulnerability of women the justice system is miles away from her so much so that she has no confidence in even approaching it let alone fighting her case. Given the rigidity that has set into the judicial system she is left wondering whether she is fighting the family to get justice for herself or is she fighting the justice delivery system to get justice.

Women Initiated Courts
While the State on one hand has evolved various mechanisms for resolving disputes quickly and cheaply, women themselves have taken the initiative to address these concerns. The formation of Mahila Mandals, Mahila Adalats, Nari Adalats, Mahila Samitis and Niswan groups convey that the efforts initiated by state are not enough. The traditional structures being patriarchal and state-initiated efforts not being enough, these groups have either come up spontaneously or through the efforts of women’s organizations. These non-state initiatives have proved to be very useful to women in distress. With the increase in the number of these groups, we are moving towards forming a full circle. With formation of such groups we are going back to people themselves as final arbitrators of justice. It is no longer the prerogative of a few, educated professionals but of people themselves.

Women are abused within the four walls of her home and hence it is a social malaise entrenched in patriarchal values. While law is necessary it is not enough to change and challenge anti women attitudes. A social evil cannot be remedied by a legal medicine. Accessing law in times when she is extremely vulnerable is a tall order especially when the justice system itself is insensitive to the requirements of the litigants. ‘Fight against injustice is overtaken by even more painful fight for justice’.[Iyengar Sushma] Many a times women have given up their fight for their rights as they just do not have the time, money, power and patience to manage and negotiate with a system so heavily loaded against her in the name of justice. And law is just one of the many ways to ensure justice. A woman can and should be able to access a ‘plurality of socio-legal remedies’. [Iyengar Sushma] Here are many different strategies apart from legal intervention which need to be undertaken to help the victim and those are building up her self confidence, educating her about her rights, mobilizing community support for her, and this cannot be done by law alone. Other systems will have to be mobilized for that. There is a need for plurality of support and multiple measures to ensure justice for her.

With the International Decade for Women which began in 1975, the emphasis shifted to women’s issues and her stake in the social and political developments taking place in the country. The Ministry of Women and Child Development was set up in 1985. [Iyengar Sushma] The National Educational Policy was evolved in 1986 which focused on Education for Women’s Equality. As a result of this policy Mahila Samakhya Programme [MSP] [Iyengar Sushma] was started. This programmes started in Karnataka, Gujrat and Uttar Pradesh and it encouraged women to set up women’s groups in villages to offer cheap, accessible legal aid to women. The rationale behind it was that women’s empowerment cannot come through mere economic development but by the realization that she herself is the creator of her destiny and that she needs to be leading her way for her own socio-political empowerment. Although the MSP was an initiative of the state, it assumed an autonomous nature as it became a registered society with a strong cadre of sathis and sahyoginis.

Over the years it evolved into a 3-tier system at the Village, Block and District level. Its cadre of Sathis, Sahyoginis and Coordinators [Iyengar Sushma] has reached out to scores of women in desperate need for justice. The experiences and efforts of this strong cadre of women led to the formulation of Nari Adalats. Currently many such Nari Adalats are functioning not just in Gujrat but also in other states where MSP is running. These women’s courts are called different names in different states and settings; they are called mahila mandals, nari manch, nari panch, mahila samiti, mahila sangha etc.

The Nari Adalats initially the component of the Mahila Samakhya Programme [MSP] have now been started by other women’s groups. These community based initiatives have facilitated the demystification of law as well as has been an empowering process of all women who come in contact with it, including the woman who is responsible for administering justice. Women in distress feel comfortable to approach these groups as the women belong to her own caste, class and in some cases religion. They are part of same cultural milieu and speak the same language. A woman can go to these groups on her own. She does not need a relative nor does she need a lawyer. She can represent her own case and express her problems the ways she wants to.

Another innovative programme was initiated in the Surendra nagar district of Gujrat by SWATI. The Mahila Nyaya Sangh offers an alternative to women for legal support; alternative to the formal court and to the traditional panchayat. The traditional panchayats are very patriarchal and their decisions are ‘adhoc and partisan’ favoring the rich, the men and the upper caste. Women have never been made part of this panchayat let alone taking any decision. [Kathurai Poonam]

Women still go to this panchayats because the formal courts are just too inaccessible. Moreover going to the court is like dragging ones family and caste honor outside the confines of the village which is a matter of shame. So whether she likes it or not she has to approach the panchayat. But with the emergence of the mahila led nyaya samitis women feel comfortable as the samiti is not alien to the village and at the same time offers support to women. It combines the formality of the court and the informality of the panchayat along with strong moorings in feminist ideology. [Kathurai Poonam]
The formality of their intervention involves taking application from the victim, registering her case in a book, sending written notice to the accused, documenting the entire process of intervention and writing down the final decisions to be used as formal documents and signed by both the parties. The informality is that it meets on a day suitable to everyone. They do not follow any rigid written down laws or procedures but go by their inherent sense of justice [Kathurai Poonam] which is polished by the intensive training on law and gender perspective.
They help in making the private public. Injustice does not remain in the domain of the house but is made into a matter of debate and discussion. These discussions are responsible for shaping attitudes which in turn facilitates a woman to live a life of dignity. The community should not know that certain attitudes and behaviour are unacceptable and that they will not be tolerated. [Kathurai Poonam]
Amongst the oft quoted reasons for its acceptability is the fact that these forums are inexpensive and accessible. Another important reason is that these groups offer ‘workable solutions’ and not stick to any textual understanding of right or wrong. Additionally there is always a possibility of going back to the samiti to renegotiate if the solution arrived at does not work. The women belong to the same milieu and have a sense of community sensibilities. They are also very hands on as they are ready to investigate, do home visits, gather information from the community about the ‘case’. [Kathurai Poonam]
It is now obvious that both the formal and the traditional justice delivery systems have failed in their objective to provide justice to the society especially to its poor and the marginalized. A third alternative apart from the formal and the traditional system has emerged which appears to be far more just and accessible to women. The very fact that women are able to come out of the confines of their homes and are able to organize themselves shows that they have reached a threshold of tolerance and with a little help can challenge the age old beliefs which stifle her life.
Such forums need ‘wider legitimacy in the social and judicial domain’. They have emerged as a response to the failure of other institutions which were meant for imparting social justice. These forums must be strengthened so that justice is brought further close to women and to the larger section which is still weak and marginalized. There are however some limitation to the functioning of NA:
The women who comprise these groups have no formal education. They are in fact semi-literate or illiterate. As a result there is no formal documentation of the process of intake or the process of helping and providing legal aid. Sometimes the Adalats receive formal notices from the other party and to which they are not able to reply because of the lack of literacy.

The decisions taken in the Adalat are documented in their record books but they are not legally validated in the court of law. The existence and the validity of the court itself can be challenged as being extra judicial and hence illegal. There must be some provision in law by which these groups can be registered as valid dispute resolution forums and the decisions taken here are legally relevant. It is important to ascertain the mandate of these kinds of groups for them to get legitimacy.

These groups must be constantly updated on knowledge and information since they cannot themselves do it due to their illiteracy. Information about law especially must be given to them. Because knowledge of law and procedures is not given on a regular basis, there is always a possibility of the groups taking a decision which is contrary to the formal codified law. Sometimes the women do not inform the mandal about the efforts which they have already taken to solve the problem. The matter becomes volatile when they do not inform even if they have filed the case in the court and the matter is still pending. The clients do sometimes behave very irresponsibly. These groups must have the support of a lawyer who will be on par with the groups and support the group in matters which require the input from the formal court.

Since these groups are not financially supported by anyone it is difficult to sustain them and their interest. Thee women who run them are volunteers who support the adalat with the commitment and time. If they are not compensated for their time then they might lose interest and the adalat may lose out on committed activists. If the system has to be sustainable and work towards building itself into an institution then financial support to its volunteers is essential.

There is also a possibility of the adalat becoming personality centred. Usually the woman who starts and brings name and credibility to the group enjoys an immense clout amongst the women as well as the larger community. In her shadow others do not grow and develop or rather do not get a chance to take on larger responsibility. If the founder happens to leave then the group flounders unless somebody or some organization pitches in to keep the effort going. The leader also has the responsibility to groom second rung leadership under her tutelage for continuous work and output.

Right now these forums are considered to be too informal. They lack an ‘authorized institutional mandate’.[Iyengar Sushma]  They need more standardization in documenting their interventions. They also need more interactions with the formal systems, to understand their procedures and processes. They need to know law that exists for women. They need to know other paradigms through which women’s issues can be perceived. [Iyengar Sushma]

There is excessive emphasis on reconciliation; they almost pride themselves when they say that they are not the ones who will break any ones home. Hum talaak nahi dilwate’. There are two reasons for hesitating to admit the role which they play anyway, that of helping women get divorce. One is the fear of the community where they are situated and the other is their own deeply ingrained patriarchal values which wants them to retain the family intact at any cost or atleast a maximum effort should be made or should be seen to be made to not allow a woman to break away from the family. We have heard of women saying that ‘we adjusted within our families for so many years, nowadays girls are not willing to put up with even a little inconvenience’. Like many other institutions in our society these are also steeped in patriarchal values. There is a tendency to preserve the family for which a women victim is sometimes pressurized to ‘adjust’ and forced for reconciliation. Divorce is still a dirty word. Understanding of gender and feminist values must be sharpened through continuous workshops and activities.

Also the responses to man who has been wronged by women or have cast false accusations, the responses are very gendered and biased. When the man was in the wrong they were very aggressive and when the man was wronged the members of the NA became very maternal and protective towards this one man who was wrongly accused. [Iyengar Sushma]
The Nari Adalats are confined only to resolving marital disputes. Other disputes do not come to them. The groups must increase their outreach to other issues too especially issues that effect the weaker sections within the society. They have been able to impact gender relations within the village but issues of exploitation of the dalits, tribals, issues of land and water and forests must also be addressed too as these too impact women. Women should lead not just another women but the entire community. That would indeed bring in a paradigm shift in the way our social relationships are constructed. [Kathurai Poonam]
The NA falls between the traditional set up and the formal system. They have neither totally rejected the traditional patriarchal values nor do they apply the formal laws completely. [Iyengar Sushma] It is flexible than both of them and have women’s interest only as their agenda. They are cheaper, faster and more accessible than both.  There is a need felt to incorporate the NA in the formal legal system so that their efforts gain recognition. But for that to happen the NA will have to address their drawbacks and rectify their weaknesses.

But the broader question remains that do we even want the NA to get incorporated in the larger system? Will they not lose their informality which is the hallmark and the reasons for their efficacy? In the need to get them recognition are we going to compromise on their basic character? Will they become another LA which was reduced to an extended arm of the formal system and thus inherited all that was wrong with the parent body? In the process of formalizing the NA will we make them like NP which tried in vain to combine the formal and the informal? May be the NA should remain within the informal domain and rectify their shortcomings to better functioning. Otherwise there is a possibility of it becoming formal and bureaucratic and at the same time retaining its adhocism thus creating a strange combination which is neither here nor there. [Iyengar Sushma]

The pertinent question before the nari adalat is whether it is one of those systems which the society has thrown up just because the formal and tradition system is dysfunctional? Is it only a stop gap arrangement or is it something which can be assessed independently for its efficacy. Iyengar raises a pertinent question, are nari adalats a supplementary forum involved in pre litigation settlements or are they complimentary forums which are as equal and probably more acceptable way of dealing with issues of women? [Iyengar Sushma]

The members of the NA do not want to give up their USP which is the fact that they provide space to women and that fact should not be sacrificed to overcome the stated limitations. The NA do not want to become gender neutral and loose the sight of women’s rights within the larger human rights framework. Human rights will have to be seen from the perspective of the women who faces abuses on a daily basis.[ Iyengar Sushma]

We are moving towards forming a full circle. With formation of such groups we are going back to people themselves as final arbitrators of justice. It is no longer the prerogative of a few, educated, professional but of people themselves who believe in delivering justice. But in a nation state it is no longer possible to ignore the formal system. We cannot go back to a system where the state machinery has got no role to play. But the authority of the state will have to be shared and distributed amongst the people. Justice will have to move closer to people through people’s own agencies. Nari adalats have come to occupy a very significant place in the whole debate around the ADR.

ALTERNATIVE DISPUTE RESOLUTION AND THE MUSLIM COMMUNITY
The current study is about the mahila mandals run by Muslim women in the ghettos of Mumbai and the impact of their legal intervention strategies. In the previous paragraphs we saw the difficulties associated with the ILS and consequently the evolution of ADR forums both state owned as well as initiated by women’s organization. Here we will understand the various procedures followed by religious groups in the country to carry out the legal aid giving process.

ADR procedures for marital disputes are followed by all religious groups in India. This procedure is mandated by the Constitution. [Datta Aniket] These bodies do not handle criminal matters. For its resolution it must approach the formal court for redresser. Since the study is focusing on Muslim women legal aid givers, it is important to understand the other forums which offer legal aid to Muslim women.


Legal Aid in Muslim Community
In India for the Muslim community for matrimonial issues, apart from the formal court there exist the darul qazas to whom are affiliated muftis and qazis who arbitrate and take decisions on receiving complaints of marital discord. The procedure of institutions like the Imaarate shariah involves taking application from aggrieved parties. The other party is called and counseling is done. If the matter is not resolved and one of the party needs a divorce than the process is carried out by the Mufti. [1]

Time and again the conservative elements within the community have demanded that all Muslim matrimonial cases must be tried only in the shariah court which would run parallel to the formal courts. A similar suggestion was made in the Bhopal convention of the AIMPLB. [Sikand Yoginder] The suggestion was later retracted after an uproar from the Muslim community as well as from the right wing groups. The Board itself is a non –statutory body and any decision taken by it also has no legal standing apart from being just an opinion expressed. The Muslim community continues to go to the court and has been struggling for justice just as the rest of the others are doing. A large number of clerics go to the court themselves [Khan Ayub]

It would be interesting to look at the issue of darul qaza from the perspective of ADR mechanism. Just as there are other out-of-court forums for arbitration, similarly the darul qazas could be perceived as just another non-formal forum acting as complimentary body to the formal courts. This formal linking of darul qaza with the courts would be effective in reducing the burden on courts as well as make the litigant get justice in a far quicker time. But the shariah courts in order to qualify for beign a legally recognized ADR must look at some of its own drawbacks. The shariah courts are run by different schools of thought. [Khan Ayub] A single school of jurisprudence may dominate these bodies. People approaching the court may be from a different school and this may lead to confusion and difficulty in taking a decision. It goes without saying that the shariah courts do not have one single woman judge on them [Khan Ayub] Just like the traditional panchayats here too women have no role to play. They also subscribe to a very patriarchal interpretation of the Quran. This misinterpretation has caused heavy damages to the Muslim woman who has to bear the brunt of a patriarchal ruling. They also do not have qualified lawyers with them who can help them integrate into the formal court procedures. 

It would be interesting to explore another dimension of this issue as it is unfolding in Canada. In spite of the backlog in Ontario’s courts there is a resistance to ADR from within and outside the Muslim community in Canada to the effort by the Islamic Institute of Civil Justice to formalize the ADR. Women and human rights activists did not support the move as it would mean that ‘political Islam will gain legal credibility to attack women’s rights’ [Kutty Faisal] The Canadian Council of Muslim Women (CCMW), wanted the same laws to be applied to them as are applicable to other Canadian women as they are then governed by the Charter of Rights and Freedoms. The supporters of the ADR justify the setting up such forums on the grounds that such a process will be voluntary and any decision can be appealed in the civil courts. Also the decisions taken in these ADR forums will have to be consistent with the law of the land. By setting up such forums not only will be civil courts be unburdened but will ‘revive the rich Islamic tradition of arbitration (tahkim), mediation (wasatah) and conciliation (sulh)’. [Kutty Faisal]

Can the shariah [Islamic law] not be enforceable through the formal courts in India? Right now the Muslim law is part codified and part uncodified. The codified law comprises of laws related to women’s right to divorce her husband [1939] and the women’s right to maintenance after divorce [1986]. Other aspects of law like the amount of mehr, polygamy, restrictions on men’s right to oral unilateral divorce, adoption, custody of children are left uncodified. With regards to these aspects the 1937 Shariat Application Act says that the Muslim community will be governed by the shariah. These parts of the shariah are enforced in the court of law as per the written text. Other aspects not being codified is left open for interpretations by lawyers and judges who go by previous case laws.

Also Muslim community being heterogeneous, each sect has its own understanding of what shariah is. This leads to confusion with regards to the content of law which varies from sect to sect within the Muslim community. There is also no formal process by which someone can be authorized to interpret Islamic law.[ Kutty Faisal]  And it goes without saying that this diversity in interpretations is not always in favour of women as most interpretations are extremely patriarchal shaped by retrograde male clerics.  

Apart from the shariah courts, there are various jamaats which head the lakhs of sub-sects within each sect and they too arbitrate on family issues. For eg the cutchi memon jamaat of the Sunni hanafi sect is very well organized and undertakes a lot of social and developmental work within the community apart from arbitrating on matrimonial issues. Similarly the qureishi jamaat too is fairly organized to arbitrate. The Shia sect is more organized in arbitration procedures. The khoja and bohra communities of the Shia sect have arbitration councils to take up family matters. The challenge is to evolve a manner in which these arbitration processes can be legalized and made to come in line with not only the quranic but also the constitutional values.

To answer the question asked in the beginning is that the shariah which is consistent with quranic and constitutional injunctions must be enforced through formal courts with complimentary procedural support from various arbitrating bodies like the shariah courts, mahila adalats etc. The whole process of arbitration carried out by these bodies must be ‘legalized and made transparent and accountable’. [Kutty Faisal] The decisions arrived at should be after following proper laid down procedures and rules of conduct. In the process Constitutional values and laws should not be violated.

The first step involves a full codification of the Muslim law taking into account the Constitutional and the Quranic values. The procedure for accessing this law must also be laid threadbare. All non-formal justice delivery systems, be they the shariah courts, the jamaats, the NGOs, the mahila samitis etc. should be authorized to intervene in the matrimonial cases. These bodies must be allowed to register themselves within this new codified act. They should give an undertaking that they will follow the provisions of this law and will not take any decision contrary to the provisions of this law.

The mahila mandals run by Muslim women can avail of these facilities and authenticate their decisions in the court of law. The decisions by the shariah courts must also be submitted to the courts for authentication. There should be a provision by which all non-formal institutions can validate their processes which they undertake to provide legal aid to women. The process will benefit both the parties and most importantly it will benefit the women who otherwise would never be able to access justice through the regular, formal justice delivery system. Instead of rejecting the ADR within the Muslim community especially the shariah courts there should be efforts to integrate them with the formal systems of law to ensure speedy justice to women.

Emergence of Muslim women’s groups
Many Mahila mandals belonging to the Muslim community have emerged in Mumbai especially after the communal violence of 1992-93. Some of them have been supported by NGOs and some others are associated with political parties but a majority of them have been spontaneous formations taking up wide ranging issues like counseling, legal help, public distribution system, civic amenities etc. They are also part of the Mohalla Committee formed to restore peace and communal amity between the communities. Some of these groups also started to give legal aid and support to Muslim women as a result Muslim women have one more accessible avenue to resolve her legal disputes. Mahila mandals and other such alternative structures using innovative strategies have emerged as a result of widespread incidences of domestic violence and the inability of state structures to remedy the situation.  Also because the ILS with its disadvantages has not really been able to provide with speedy justice to the millions who then resort to other means available for solving their problems. Because of the emergence of alternative forums legal, constitutional and religious rights have been made available at her door steps. This delivery of justice is cheap, accessible, non-intimidating, easy, practical and gender-just. The system is also beneficial to the violator as even for him it is less intimidating than the formal courts and he knows that either ways the dispute will get resolved faster than any other formal court.

It is important to note that Muslim women doing legal aid is an extremely political work. By doing so that are firstly, challenging the patriarchal values, secondly they are challenging the formal courts by being more useful to women and providing to them something which the constitutionally mandated bodies cannot and thirdly and mostly importantly they are challenging the clergy by usurping for themselves the traditionally male dominant role of interpreting and applying shariah laws for women. And they perform these functions in a communally sensitive society where they themselves are a minority within a minority and live an extremely marginalized life in a ghetto.

The Bohra community of the Shia Muslim sect has their arbitration procedures for dispute resolution. While other sects of the Muslim community like the Sunnis lack any centralized authority, the bohras require the permission from the Syedna or his representative for both marriage and divorce. The individual or couple has to put up their request before the local Amil and he tries all moral persuasion and counseling before granting the request. The authority of the Amil works both ways. If, for example in the case of divorce, the couple are non compliant with Islamic norms than the Amil will counsel the party for a divorce. [Blank Jonah]

In the Christian community divorce is not possible in the church. For divorce the couple of the individual has to approach the civil court under the Indian Divorce Act. The Church will only issue an annulment after a long deliberate process. Without the annulment, marriage in the Church is not validly possible. The diocesan tribunal examines all the cases that come to them. For marriage also strict rules are laid down which also decides the marriage between Roman Catholics and Protestants. [Chaplin Joseph]

There are two ways in which a Parsi matrimonial dispute is taken to the court; mutual consent and contested. In case of mutual consent both the parties engage their own lawyers. The lawyers prepare the consent terms. And this consent terms are submitted to the court. The court accepts whatever is mentioned in the term paper and gives an order accept the mutual consent terms. The jury is part of the court. The court decides on the basis of law and the jury decides on the basis of facts.

Members of the jury are from the community, they are persons of integrity and character. The jury members can change as per the case. The lawyer of one party can take objection to the appointment of a particular jury member. The jury can also be the same for a particular session. There are 2 sessions in a year. It could be more or less depending on the number of cases. When a divorce is filed as per the mutual consent there is no objection from the court or from the jury.

In case the matter is contested, it is like a regular matter in the court with regular filing and examination of the case. Jury is there for contested matters also. In case of other matters like maintenance, custody etc. the court does not wait for the jury session. An interim application can be filed by the parties in the court. And the court can take a decision. The jury latter can object to the decision, but the parties need not wait for the session to be held. [2]

Although all cases of the Hindu community have to necessarily be referred to the court, there are some communities within the Hindu fold who are allowed by law to arbitrate and settle the dispute out of the court. [3]

As seen the justice delivery to a large extent has been decentralized. The minority communities have to a large extent evolved community based systems which act as a buffer between the people and the formal judicial system. It is a matter of concern that these community based justice delivery forums do not necessarily function from a feminist perspective. There have been innumerable instances of patriarchal, anti-women rulings which ruin the life of a woman. But the solution is not to do away with them but to evolve ways in which the processes and decisions of these bodies are consonance with the Constitutional principles and the rule of law. We need people managed justice delivery systems which are in synergy with the formal justice delivery system so that justice comes within the reach of the masses. Development is preceded by peace which is preceded by justice. Justice is thus mandatory and the closer we bring it to people the better and faster chances of peace and development.




Notes:

1. Information shared by Maulana Moosa Qazi

2. As narrated by Yasmin who is a Family Court lawyer handling cases of the Parsi community in the court.

3. Information shared by Ms. Pratibha from Special Cell for Women and Children, Mumbai.

References:
Baxi, Upendra, ‘Alternatives in Development: Law The Crisis of the Indian Legal System, Vikas Publishing House, New Delhi, 1982

Blank Jonah, Islam and Modernity among Dawoodi Bohras, Mullah on the Main Frame, The Univesity of Chicago Press, Chicago and London.

Champlin M Joseph, Questions About Annulment, Catholic Update October©2002- http://www.americancatholic.org/newsletters/cu/ac1002.asp
Chitkara M.G, ‘Lok Adalat and the Poor’, S.B Nangia Ashish Publishing House, New Delhi, 1993.

Datta Aniket, Research paper on Alternative Dispute Resolution, http://www.scribd.com/doc/12896390/Aniket-Datta-Research-Paper-on-Adrsee. Accessed on 14th October 09

Fernandes, Annie G. ‘Attitudes of Women and the Strategies they Follow Towards    Abuse by Husband in Jeri Meri, Mumbai, Jagruti Kendra, Jeri Meri, Facilitated by: IGSSS, Western Region, Pune, January 09

Iyengar Sushma, A Study of Nari Adalats [Women’s Courts] and Caste Panchayats In Gujrat, http://regionalcentrebangkok.undp.or.th/practices/governance/a2j/docs/CaseStudy-05-India-NariAdalat.pdfadd, accessed on 14th October 09.

Jaykumar, Y.F The Icfai University Journal of Alternative Dispute Resolution, Conciliation and Family Dispute Resolution in Indian Legal System, http://www.iupindia.org/105/IJADR_Indian_Legal_System_40.html (accessed on 8th Oct 2009)

Kathuria Poonam, Ensuring Gender Justice,
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Noorjehan Safia Niaz is an MASW from TISS and currently pursuing doctoral studies from the Yashwantrao Chavan Open University. She is the founder member of Bharatiya Muslim Mahila Andolan, which is a mass based national movement of Muslim women

Conflict And Resistances: Challenges Before The Women’s Movement




Conflict And Resistances: Challenges Before The Women’s Movement
Noorjehan Safia Niaz

Internationally 100 years have passed since the time women initiated the first revolt against injustice. Since then the women’s movement has achieved a lot and as it marches along in the 21st century, newer challenges confront it.

While the movement is still struggling with domestic violence, lethargic implementation of laws for women, glass ceiling etc, it is also struggling to address concerns arising out of increasing deforestation, privatization of irrigable land, fierce onslaught of capitalist forces and increasing commodification of women’s bodies. Globalization, large scale displacement, dispossession and migration, criminalizations of politics, fundamentalism and communalism – all have had their impact on the status of women in our country.

Feminist analysis of women’s lives has been confined to a particular set of women. The leaders of the women’s movement in India too have been from the upper caste and class and because of that composition of the leadership certain kinds of experiences of a certain section of women have been left out. A big chunk of women from the dalit, muslim, tribal and other backward communities have been left out of the empowerment process. It is important to start where the women are stationed in their social political life. The movement needs to analyze where the woman is and what is she doing for her own empowerment. There is certain discomfort when we pick up theories and notions of women’ empowerment from a different socio-political, cultural context and apply them in a different one to see whether the women fits into that notion of empowerment. This fitting-in of women’s experiences with pre-established notions of empowerment belittles their huge efforts in entering the public domain despite their marginalization.

The movement has to some extent remained isolated and has not engaged with citizens groups, environmental groups and issue based groups for larger struggle for social justice, democracy and survival. The movement has not done enough to go to galli, mohallas and bastis to form decentralized women’s groups and equip them for their local struggles and also involve hem in highlighting state, national and international issues. Newer groups of women, those working in the retail sector, sex workers, bar women and girls and many more such disadvantaged groups need to be organized.

The larger challenge at the ideological level has been the movement’s definition of secularism and feminism. Does the movement feel the need to revisit their own notions of these terms? Does the term secularism mean absence of religion, does the movement think of believer to be a secular person? Can somebody be a feminist and yet be believing in the institution of marriage, family? Does one have to be anti-men to be a feminist? Can the women’s movement turn into a non-party political movement of all segments of women? These questions also indicate the probable reasons for the women’s movement failure to attract masses of women. These and allied questions are a challenge before the women’s movement.
Abstract for X111 Indian Association of Women’s Studies, National Conference, Wardha, 21-24 January 2011