DAY 27
ARBITRATION THROUGH AURTON KI SHARIAT ADALATS [ASA]
Implementation Of The Legal Rights Of Muslim Women
Muslim family law as practiced in India is not codified, as a result Muslim women face injustice as judgments by qazis, muftis and shariah Adalats are given based on discriminatory shariah law which is in total contrast to the Quranic injunctions. Bharatiya Muslim Mahila Andolan [BMMA] felt the need not just to draft the law but to also set up structures by which justice can be dispenses. Arbitration was also made mandatory as part of the draft law of BMMA.
According to BMMA’s draft law who is an Arbitrator?
- Any person or organization can be an Arbitrator, provided they have an impeccable record of social justice.
- This person or organization must be registered under this law to be able to function as an arbitrator.
- The organization must also be registered under the relevant registration laws.
- The organization must have least 50% women members, preferable Muslim women
What are the duties and responsibilities of the Arbitrators?
- The Arbitrators can arbitrate on all matters mentioned in this draft law .
- The Arbitrators must follow the rule of giving both the sides a chance to be heard.
- The Arbitrators are mandated to keep a record of all proceedings during this process as well as a record of all decisions taken.
- In case of a divorce, the Arbitrators should safeguard the rights of the women by listing them out on the divorce document and give true, original copy of the same to both the parties.
- After following the principles of natural justice, a just and fair decision should be made by the Arbitrators on all matters mentioned in this law.
Why did BMMA feel the need to set their own legal aid centres – Aurton ki Shariah Adalats {ASA}?
BMMA’s ASA are the arbitration bodies which have been set up to provide legal justice to women. BMMA has been able to do this campaign on Muslim family law reform because it has a vast body of experience in dealing with cases of Muslim women facing discrimination due to oral divorce, polygamy, lack custody of children, lack of maintenance etc. As a natural progression of its work on law reform it had become imperative that they scale up their work by not just drafting the law but also creating structures to implement that law.
BMMA then dovetailed its campaign on codification with a practical idea of setting up ASA which provided legal aid to Muslim women based on the provisions of the codified law which it has prepared. It was a natural progression for BMMA as it progressed from formulation and implementing model nikahnama, to formulating codified, Quran-complied family law, to setting up structures for implementing this law.
As is known that Muslim religious institutions have for long exercised their hegemony over the community and specifically over the women. They have formulated laws, they have misinterpreted the religious texts and they have set up institutions which are patriarchal, unjust, dogmatic and unIslamic. BMMA represents Muslim women’s aspiration to reclaim these spaces from Muslim patriarchal forces represented by Muslim men. BMMA represents Muslim women’s desire to not just formulate laws and wait for these patriarchal institutions to implement it but to create, sustain and nurture those institutions which will also implement these laws and are bound values of justice and equality. The drafting of a codified law and setting of the Shariah Adalats is in continuation of Muslim women’s engagement with its family law moving towards the goal of justice for Indian Muslim women.
What was the objective and rationale behind setting up the ASA?
The main concern of the ASA of BMMA is justice for the Muslim women. The formal court system is inaccessible, expensive, slow and bound by archaic rules and regulations. A poor woman does not have enough resources to hire a lawyer to fight her case. MSA are easily accessible, inexpensive, fast and women-friendly. They work as complimentary bodies to the formal courts and unlike the Shariah Adalats set up by religious groups, do not want to run a parallel system of justice. ASA works in conjunction and coordination with the formal court system.
The ASA of BMMA also do not challenge the existence of the Shariah Adalats run by the religious bodies. They do challenge the decisions which they take. The ASA works in close coordination with many qazis and muftis who are sensitive to the cause of women and support the legal aid of work on BMMA.
Many amongst the religious groups, women’s organizations, lawyers have objected to the use of the word ‘Adalat’ used by BMMA. Well, what is an Adalat/court?
To put it simply and without jargon, an Adalat/court is a place where people go seeking justice. Since the purpose of BMMA’s initiative is to enable justice delivery to the poorest Muslim women, they call themselves a ‘Adalat/court’. ASA of BMMA is an Alternative Dispute Resolution Forum the formation of which is mandated by Article 39A of the Constitution of the India. The authority to form ASA comes from the Constitution of the country which wants to enable justice delivery to the poorest of the poor. Also if the religious bodies can run the Shariah Adalats why can’t the Muslim women themselves? There is nothing in the religion nor in the law of the land which prohibits Muslim women to set up structures for better justice delivery?
The objectives of the Adalat is to provide legal aid to Muslim women based on the Quran-complied codified ‘Muslim Family Law’, to undertake activities to promote women-friendly nikaahnama prepared by BMMA and to create awareness among Muslim women and men about their legal rights of women in Islam
How are the justice cadres of ASA trained?
The Muslim women who manage the ASA are well equipped to provide legal aid as they are the victims of a discriminatory law. The legal aid providers are well versed in law and they are also aware of the various strategies that are to be employed so that a harassed Muslim woman gets legal redresser. They have undergone training in counseling and work from a very strong gender perspective. The decisions of the Adalat are based on the rights of women enshrined in the Quran. They take recourse to all secular laws like the Anti-Dowry Act, Domestic Violence Act etc and they utilize the existing legal machinery like the courts etc to help women get legal aid. They will also use the justice implementation machinery like the police and work in coordination with qazis and muftis to help the litigant.
What basic principles of Muslim law guides the work of ASA?
The ASA takes decisions based on the following Quranic guidelines:
- Triple oral/unilateral divorce is not acceptable
- Polygamy is invalid
- Whoever initiates the divorce will have to go through the process of talak-e-ahsan method of divorce.
- Women must get maintenance during her marital life from her husband
- Women must get maintenance after divorce as per the provisions of the Muslim Women’s Act, 1986
- All grounds of divorce mentioned in the 1939 Act are applicable to the women visiting the Shariah Adalat
- Halala is not acceptable at all
- No other restriction except remarriage during iddat period
- If the children are small the custody of the children will be with the mother
- If the children are the age of 7 whether boy or girl, they child will be given the right to decide.
It is hoped that in the near future, BMMA will be able to set up more such Adalats so that justice for Muslim women does not remain a distant dream.
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