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:
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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
