AURTON KI SHARIAH ADALAT, ARBITRATION CENTRES - CENTRES OF JUSTICE DELIVERY

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. 

Legal Justice for MUslim Women

INDIAN MUSLIM WOMEN AND THE PROCESS OF FAMILY LAW REFORMS

A BRIEF UPDATE

Zakia Soman and Dr. Noorjehan Safia Niaz

It took BMMA a process lasting over eight years to draft the Muslim Family Law. Hundreds of consultations were held across the country with Muslim women, lawyers, academics, religious experts and many more supportive stake holders. On 18^thJune 2014 this draft was made public through the media. The process of consultation towards improving the draft and building a consensus is an ongoing one. The copies of the draft have been sent to several members of parliament, members of local legislative assemblies in different Indian states, the women’s’ commissions, the law commission of India, academic institutions etc. We are working towards the draft getting tabled in the parliament with the help of some progressive MPs. Salient features of this draft are end of unilateral divorce, polygamy, halala and muta marriage, age of marriage to be 18 and 21 years, minimum mehr to be equivalent to grooms annual income, mother and father to be natural guardians of the child and equal distribution of property amongst siblings.

The need to draft the law by a group of activists was felt because our centres in different parts of the country were thronged by Muslim women who faced legal and social hurdles within the family. Either they were orally divorced or were denied divorce, their husbands remarried with impunity leaving them abandoned with children and nowhere to go, widowed Muslim women were deprived custody of their children citing that only father is the natural guardian of the children, halala, another name for prostitution was imposed on women in the name of religion, young Muslim women in the southern parts of the country were duped into temporary marriages, not to mention meagre mehr amounts, marriages without consent and underage marriages. All these rampant violations of Quranic injunctions were happening unchecked so much so that malpractices such as triple divorce have become synonymous with the Indian Muslims. BMMA felt that part of the problem could be addressed if there is a law in place which women can access. Since none existed and it looked that it will never be brought into existence by the hegemonic and steeped in patriarchy mullahs, BMMA took upon itself the task of drafting the law. In line with our slogan which says, my struggle, my leadership, the drafting process itself was an enlightening and educational process where women and men were given an opportunity to look out for solutions rather than wallowing in the problem. We were clear that we needed to explain how the violations were unQuranic and we had to go on publishing translations of Quranic verses concerning marriage and divorce to convince the ordinary people that they were being told untruths.  

During consultations it came across very clearly that the educated middle class professionals are cut off from the large swaths of the poor and assetless mass of the Muslims. Comments from a male practicing lawyer, ‘what is wrong if a girl is married at the age of 13’ or suggestion from a female NGO worker, ‘even boys should be married at the age of 18’, suggests that change and reforms in law cannot come from those who may be educated but are not steeped in values of equality and justice. Peace and dignity to women cannot come from those who though have the means and education to push for change but will still want to maintain the status quo. Largely many individuals including Muslim men contributed effectively to the consultations but fought shy of making their views public citing fear of the mullahs.  Allegations such as these women are propped up by the Hindu right wing, that they are out to change the Quran itself, that they are not wearing the hijaab, that they are inspired by western feminism, that they are not Muslims at all because they don’t “look Muslims” – were some of the comments that BMMA activists faced during the course of the consultations indicating the hard battle which was in store for us.

Many reactions came after this draft was released. As expected the religious groups rejected the draft as well as the movement terming it unIslamic. They opined that everything was perfect the way it was and calling for any change would be heretic. They also said that the Muslim law is divine and therefore it cannot be changed or codified. The women’s movement in India which has a strong track record of highlighting women’s issues still maintains a deafening silence over the effort apart from some individual feminists and a few groups who understand the issue. A women’s’ rights lawyer went to the extent of saying that the existing shariah law requires no reform and is in fact in many matters better than the Hindu law. We received tremendous support from ordinary women both Muslim and Hindu. Apart from ordinary women themselves several jurists, academics and ordinary citizens  have wholeheartedly supported the provisions of the draft and have lauded the efforts of BMMA for taking up the most neglected but the most politicized aspect of a Muslim woman’s life.

In the meanwhile BMMA also released the national study which sought the views of 5000 women on reforms in Muslim family law. 92% of the respondents wanted a complete ban on the practice of oral divorce while 91% were against the practice of polygamy. An overwhelming 83% wanted the Muslim family law in India to be codified indicating that our demand for reforms and codification is not without support. Followed by this study was a 115 case studies compilation of victims of oral divorce which again threw light on the manner in which Muslim women were divorced by their husbands. These evidentiary and empirical studies were circulated widely amongst the state and quasi-state bodies like the national women’s commission, minority commission, law commission, human rights commission. The purpose was to let the state authorities know that Muslim women are suffering because of these horrendous practices and that it cannot shy away from intervening and ending those practices. As part of our campaign, BMMA also sent a letter requesting the attention of the Prime Minister of India towards the plight of Muslim women. On 28^th October 2015 BMMA sent the copy of the draft to National Legal Services Authority [NALSA]for their perusal and attention.

These efforts bore fruit as in November the Supreme Court bench of Justice Dave and Justice Goel took a suo moto cognizance of the legal discrimination faced by Muslim women. They asked the Attorney-General and the NALSA which are state institutions, to reply whether gender discrimination suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants. This decision came up during discussions on the issue of a daughter’s right to equal shares in ancestral property under the Hindu succession law.

In the meanwhile BMMA wrote to Supreme Court requesting it to appoint an amicus curie for the PIL as we did not have the resources and the wherewithal to pursue the case.

JUH, a powerful body of clerics in India states that has said the MPL flows from the Quran and cannot be subjected to any scrutiny from the Supreme Court based on the principles of the Constitution. It says the Muslim personal law is not a ‘law’ and hence cannot be subjected to the scrutiny of the Part 111 of the Constitution which ensures fundamental rights. The JUH has very conveniently forgotten that the Constitution of the country allows for religion based laws as all majority and minority religious community in India are governed by their own religion based laws. All that the Muslim women are saying is even the Muslims in India must have a Quran based personal law so that justice is ensured.  They are conveniently also ignoring that all Islamic/Muslim countries have a justiciable codified family law including neighbouring Pakistan and Bangladesh, countries which came into existence just a few decades back.

We have received a lot of inspiration and support from Islamic feminists and scholars world over. We are happy and proud to be part of Musawah and the global movement for gender justice in Islam. Our experience suggests that the Muslim woman wants change for the better. She is fed up of the injustices such as triple talaq and halala. She is beginning to read the text and apply her own ideas of justice and equality to her real life situation. She is no more willing to be oppressed by the patriarchal mindsets that have ruled the roost in our society. Besides, the Indian democracy provides a unique opportunity for the women and men to demand their rights legally and socially. The values of justice and equality are a common thread across the Quran and the Constitution of India. The BMMA hopes that in the coming years we will be able to provide the example of a just and fair face of our religion. And the ordinary Indian women will make this happen.

First published by Musawah

Women's Shariah Court - Muslim Women's Quest for Justice

Women's Shariah Court-Muslim Women's Quest for Justice
An Alternative Dispute Resolution Forum for and by Muslim Women

https://notionpress.com/read/women-s-shariah-court-muslim-women-s-quest-for-justice

Would it be easy to imagine a court where justice is dispensed not by women and men wearing black flowing gowns but by ordinarily dressed, uneducated women? Muslim women living in slum communities of Mumbai took upon themselves the job of providing legal aid to other distressed women. Need for justice is as crucial as other needs, especially for women who face marginalization on a large scale. This book looks closely at the genesis of these groups, their history, their interventions, their motivations and their contributions to women’s movement.

The book suggests recommendations for strengthening alternative dispute resolution forums where justice will be dispensed not by learned lawyers but by ordinarily dressed unlettered women. These women, through their innate sense of justice reaches out passionately towards other equally battered women and together they journey towards a life of dignity.