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COMMENTARY
DECEMBER 9, 2017 vol lIi no 49 EPW Economic & Political Weekly
12
Judicial Reform vs Adjudication
of Personal Law
View from a Muslim Ghetto in Kanpur
Anindita Chakrabarti, Suchandra Ghosh
A keen understanding of the
intricacies of the procedural
aspect of personal law and
internal hierarchies/fi ssures
within the community in question
need to guide our vision of
judicial reforms. Considering
the bias that exists in terms of
class, caste, gender and religion
in the implementation of law,
one wonders what would be the
real gains of bringing personal
law more and more within the
purview of the policing system.
This article looks at cases brought
by Muslim women to the Kanpur
darul qaza seeking maintenance
and/or divorce and fi nds that
these women do not lack agency.
They also approach different legal
forums to resolve their personal
and domestic issues.
The majority judgment of the
Supreme Court that struck down
triple talaq as unconstitutional
ha s be en welcom ed a s an impor tant st ep
towards ameliorating the plight of Muslim
women and is indeed a landmark legal
victory. Yet, many have expressed their
unhappiness about the fact that the verdict
was ambiguous, made ample room for
personal law, and did not do enough in
terms of upholding the constitutional
rights of Muslim women (Mehta 2017).
We would like to draw attention to a few
observations that have emerged from
two years of fi eldwork at a sharia court or
darul qaza (literally, place where the qazi
sits) situated in a large Muslim ghetto of
Kanpur.1 We argue that what is lost in
the current discourse is the truism that
personal law is a matter of resolving
“personal” problems as much as it is a
matter of “law.” They are enmeshed in
kinship rules, household economics, and
family intrigues. Here, litigants work
towards resolution where privacy, expe-
diency, and negotiation are the key terms.
The question of personal law, therefore,
needs familiarity with the processes
through which Muslim women (and
men)—especially those belonging to the
lower rungs of socio-economic hierarchy
—resolve their family and property dis-
putes, obtain divorce and custody.
While the media and public discourse
have remained focused on the constitu-
tional validity of certain practices in
Muslim personal law, there is very little
clarity around the question: how are
Muslim family and civil cases adjudicated
in India? The procedu ra l aspec t of Mu sl im
personal law is a black box even for those
well-conversant with the contemporary
discourse on law and Islam. Feminist legal
scholar and women’s rights lawyer Flavia
Agnes noted that during the six-day hear-
ing on triple talaq in May 2017, it became
apparent that even the legal luminaries
had not “done any research about the
situation prevailing on the ground” (Agnes
2017). Yet, in recent years there has been
research that shows how adjudi cation in
family matters takes place in colloca-
tion between civil, social, and religious
forums (Lemons 2010; Solanki 2011; Vatuk
2014, 2017). For example, Gopika Solanki’s
fi ne-grained analysis documents how
legal practice is loca lised and decentral-
ised by multiple legal actors such as law-
yers, clergy, family members, religious
organisations, sect councils, women’s
organisations as well as the doorstep
courts, such as residential committees and
women’s ad hoc groups (Solanki 2011).
In July 2014, the Supreme Court had
displayed both knowledge of local prac-
tice as well as practical wisdom when it
rejected a public interest litigation (PIL)
brought by a Hindu lawyer for banning all
sharia courts operating in India. The apex
court rejec ted the plea and argued t hat the
sharia court was an effective “arbitrator,
mediator, negotiator and conciliator in
matters of family and civil disputes” and
were not in confl ict with the secular
judiciary (Vishwa Lochan Madan v Union
of India 2005 Writ Pet ition Civi l No 386).
In fact, the judgment gave recognition to
these religious adjudication units as part
of what is known as “alternative dispute
resolution” (ADR) forums in the legal land-
scape of family law in India. These ADR
units used by women follow a certain tra-
jectory. A Suneetha and Vasudha Nagaraj’s
(2010: 457) resea rch in Hyderabad has
documented how Muslim women take
their complaint to “natal families, com-
munity leaders, local caste sanghams
(counc ils), basti-level women’s groups
and infl uential local personalities (often
in this order) before even approaching a
family counselling centre, let alone a local
police station (see also Vatuk 2013).
Practical Counsel and Adjudication
In Kanpur, a mahila thana, Lok Adalat,
and a mediation unit associated with the
family court function to redress family
disputes. In our fi eld, we found that
We would like to thank Sudha Sitharaman,
Deepak Mehta and Jil let Sarah Sam for their
comments on an earlier draft of this article. We
are also thankful to the anonymous referee for
helpful suggestions and comments.
Anindita Chakrabarti (aninditac@iitk.ac.in)
teaches sociology at the Department of
Humanities and Social Sciences, IIT Kanpur.
Suchandra Ghosh (gh suchi@iitk.ac.in) is a
research scholar at the same department.
COMMENTARY
Economic & Political Weekly EPW DECEMBER 9, 2017 vol lIi no 49 13
Muslim women routinely resolved their
family confl icts by approaching (some-
times simultaneously) civil courts, darul
qazas as well as local, neighbourhood
forums for redressal and help. A case
that was resolved at a mahila thana was
brought to the darul qaza due to non-
payment of maintenance promised by the
husband. The wife accused the husband’s
sister of “controlling” her husband and
fi nally the case ended in divorce. This
was not atypical. Very often, women came
to the darul qaza for khula (a provision
in Islamic law by which a wife appeals for
divorce) when the husband faltered on
paying the maintenance decreed by the
family court. In several cases, they lodged
dowry harassment/domestic violence
complaints under Section 498A of the
Code of Criminal Procedure (CrPC) and at
the same time approached the darul qaza
for khula. In this context, Section 498A
exerted pressure on the uncooperative
husband to show up at the darul qaza.
So far as adjudication of personal law was
concerned, these multiple forums gave
women the agency to decide which forum
to approach in order to redress their
familial confl icts/troubles. Moreover, they
used the rulings of a forum to argue
their case in another judicial forum.
At times, women also decided not to
approach any of these legal or religious
forums and take their case to the neigh-
bourhood (mohalla) committees for
resolution. A woman interviewed at the
Kanpur family court pointed out that she
was withdrawing her divorce case and
taking it to the committee ( jamaat) in her
neighbourhood. Her wedding (nikah) had
taken place there and all the people
knew her well. She was confi dent that
she would receive a better (and faster)
settlement in her neighbourhood jamaat
than in the family court. Cases also
travelled from the darul qaza to the
mohalla in order to reach a settlement.
A complicated case was brought to the
darul qaza where the husband had elop-
ed with his wife’s younger sister but re-
fused to divorce the elder sister. There
were confl icting accounts of the husband’s
and the younger sister’s “shameful” con-
duct and the qazi could not reach any
resolution. At this point, the wife’s
family convened a mohalla panchayat.
A settlement (samjhauta) was drawn up
where the plaintiff (the elder sister) was
released from the marriage and her
younger sister was declared to be the
wife. Our interviews with the commu-
nity leaders in the ghetto suggest that a
very large number of disputes were reg-
ularly resolved with the intervention of
the family members of the confl icting
parties. The leaders and notables of the
community also played the role of me-
diators and effective negotiators.2
At the Kanpur darul qaza where we
collected more than a hundred cases,
close to 95% of the cases were brought by
women. Why did they come to the darul
qaza? Women came to seek mainte-
nance (kharcha) from their husbands
and if the husband was unwilling or
unable to provide maintenance, she could
fi le for divorce (khula). At the darul qaza
the most common grounds for divorce
were domestic violence and non-payment
of maintenance: both religiously valid
grounds for women to obtain divorce. In
several cases the qazi annulled the mar-
riage invoking faskh (a mode of divorce
where the husband’s consent was not
necessary) if the husband was missing,
or found not fulfi lling duties to his wife.
Divorce, we found, was also granted on
charges of the husband’s impotency. At
times, the darul qaza adjudicated on
property redistribution as women pre-
ferred it over civil court for its inexpensive
and expedient nature. The quiet, non-de-
script building situated within the mohalla
was perceived as a space women could
access with ease. For them it was like an
extension of the private domain where
they could speak their mind and state
their “real” problems without worrying
about the legal merit of their arguments.
The qazi’s role was not only to adjudi-
cate but to play the peacekeeper and
counsellor for warring family members.
Strains in conjugal relations are very
often rooted elsewhere—in the matrix of
kinship. A large number of vicious fi ghts
were between sisters-in-law: emotionally
charged battles for family resources and
affect. In one case a stepmother came
with the complaint that she was thrown
out of the house by her stepdaughter.
In a long-drawn case, the mother and
her children teamed up and fought with
the husband who they accused of having
an extramarital affair. Once on a hot
summer afternoon, two sisters—tearful
and scared—rushed inside the darul
qaza. As they sobbed, they told the qazi
that their brother was abducted by his
brothers-in-law. The qazi consoled them
and asked them to immediately report it
at the local police station. In this case his
role was simply to offer good counsel
and practical guidance. Real life person-
al t ro ubl es ne ed ed t hi s g oodw il l a s mu ch
as it needed reformed personal law.
Kinship Issues Across
Communities
The triple talaq judgment might see a
sharp increase in court cases brought by
wives contesting divorce by triple talaq and
seeking maintenance from their husband.
But we need to wait and see how it
would work in the lives of the women
who have been at the receiving end of
this unjust practice.3 Researchers and
activists working closely with local com-
munities have often shown the counter-
intuitive consequences of legal rights
and judicial reform. Jeffery (2001) had
found that despite having very different
legal standing, there was hardly any
difference in the hardship that Muslim
and Hindu women of rural Uttar Pradesh
faced when their marriage failed. It
was family, kinship, and custom that
take care of the lives of the poor, rural
women and there was no difference in
their social standing whether they were
Muslim or Hindu (Jeffery 2001). As we
bring in legal reform we also need to
understand the context of personal law:
the intricacies of kinship, property, and
poverty. The varying legal outcome of
the Muslim Women (Protection of Rights
on Divorce) Act, 1986 (MWA), w hic h w as
brought in the aftermath of the Shah
Bano judgment, is a good example to
clarify this point. Surprisingly, the act
which was perceived as being anti-women,
was found to be used by judges to give
divorced Muslim women a “reasonable
and fair” compensation. At times, their
rights under the MWA were more than
what they could have received under
any other personal law as well as Sec-
tion 125 CrPC (Agnes 2001; Solanki 2011).
Yet, Vatuk’s research shows that while the
COMMENTARY
DECEMBER 9, 2017 vol lIi no 49 EPW Economic & Political Weekly
14
MWA works for families with economic
means, for the poor, it becomes an im-
possible task to get the order executed as
the husband—without work or regular
income—does not have the capacity to
pay the agreed upon amount (2017: 265).
These fi ndin gs caution us that we shoul d
keep a watch on varying judicial out-
comes of legal reforms, especially in the
lives of the precariat.
The argument is not to deny the neces-
sity of reform in ascertaining the rights
of women, but to pon der wha t sh oul d be
the site of that reform. Those engaged
in the struggle of Muslim women such
as the Bharatiya Muslim Mahila Andolan,
the All India Muslim Women Personal
Law Board as well as those standing for
Muslim personal law represented by the
All India Muslim Personal Law Board,
have come up with their versions of
gender-just model nikahnama or marriage
contracts. We asked a community leader
in the locality where the Kanpur darul
qaza is located why these model nikahna-
mas are not being used. He pointed out
that the people approach the local
imams for conducting marriages. They
struggle to make ends meet and t he reli-
gious specialists themselves hardly know
anything, let alone about the model
nikahnama. The urban blight that we
walked through to reach his house sub-
stantiated his claim. Codifi ed texts,
however carefully drafted, wilt in these
labyrinths of collective unemployment,
underemployment, and poverty.4
A keen understanding of the intricacies
of the procedural aspect of personal law
and internal hierarchies/fi ssures within
the community in question need to guide
our vision of judicial reforms. Moreover,
in India, where disputes are fi rst brought
to the police, the distinction between
civil and criminal cases remains blurred
and intertwined. The criminal law pro-
vides unbridled discretionary power to
the police. Considering the bias that
exists in terms of class, caste, gender
and religion in the implementation of
law, one wonders what would be the
real gains as we bring personal law more
and more within the purview of the
policing system (Verma 2001). Research
from family courts show that the legal
professionals themselves do not always
have clarity about the various provisions
in law and how they may be used to the
litigants’ benefi t (Vatuk 2017: 252). How
would the recent judicial reform in per-
sonal law be enforced and implemented
is something only time can tell. In the
current discourse, we are constantly pit-
ting constitutional law versus personal
law, freedom versus religion, Article 14
versus Article 25: emergent from a com-
partmentalised understanding of Muslim
women’s lives, as the actual struggles
of these women remain as “objects of
reform,” bereft of agency.5 Yet , eth n o -
graphy shows how women resolve their
myriad personal troubles at different legal
forums, including those considered as
bastion of Islamic patriarchy. In the cele-
bration of our judicial victory, we should
not forget that citizenship rights and in-
ternal reforms, including socio-economic
on es h ave to g o han d in h and. Unp acking
the monolith that goes by the name of
“Muslim community” as well as dusting
the pages of the Sachar Committee re-
port might be a good way to start.
Notes
1 These darul qaza function as extrajudicial dis-
pute resolution centres. Fieldwork at the darul
qaza affi liated to the Jamiat Ulema-e-Hind was
conducted between December 2014 and January
2017. Both the qazi and the assistant qazi were
trained at Dar al-Ulum Deoband, an Islamic
seminary of higher learning. The darul qaza is
functional for two to three hours on Sundays.
The qazi is a schoolteacher whereas the assistant
qazi teaches at a madrasah. They considered
their service at the darul qaza as voluntary en-
gagement that accrued religious merit. They do
not draw any remuneration for the work. There
are a few other darul qaza in the city affi liated to
different sectarian divisions but we found that
they do not function regularly. A few cases were
also followed at Farangi Mahal in Lucknow as
well as the family court in Kanpur. Currently we
are conducting in-depth interviews with the resi-
dents and leaders of the ghetto.
2 Srirmati Basu’s research on family courts and
mediation units attached to police station also
demonstrates how civil society actors—local
infl uential citizens, social workers, non-govern-
mental organisation (NGO) personnel and re-
spectable professionals—who do not possess
any civil or criminal enforcement powers effec-
tively def used hostilit y between contending
couples and ensured cl ients’ compl iance wit h
the negotiated settlements (2016: 318).
3 Fai zan Mustafa, c ommenting on the nu ances of
this issue, has pointed out the impossibility of
judging marriage (and its failure) with the
yardstick of constitut ionality (11 May 2017).
Mainten ance is a differ ent issue but who would
like to continue with a failed marriage? The
women we inter viewed in the neighbourhood
after t he triple talaq judg ment were categorical
about the fac t that if a husband pronounces
triple talaq, the wife’s family members would
never let their daughter/sister continue to stay
at her matrimonial home.
4 Faisal Devji has recently argued that “just a s
Hajj is non- controversial for the most pa rt,
because it is state regulated, non-sectarian and
effi cient, so too might personal law become if
properly administered by the Government and
effectively de-politicised” (8 September 2017).
Though appealing, the problem with the proposal
lies in fathoming: how does one “administer”
personal law and to whom? While i n the rit ual
sphere sectarian competit ion between Barelvis
and Deobandis is well known, in kinship, caste-
like biradari dominates. The question there-
fo re r ema ins , ho w do w e “ad mi nis ter ” pe rso nal
law to a “Musli m community”?
5 A Suneetha has shown how this bina ry bet ween
citizenship and communit y breaks down in the
lives and work of Muslim women activists who
use the Islamic concepts of haq and taleem to
inculcate a sense of self-reliance and moral respon-
sibility in bringing changes in the fi elds of
“education, family dispute resolution and eco-
nom ic su rvi val o f Musl im wo men” (201 2: 60).
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