Darul Qaza: Centre for Arbitration and Conciliation

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Darul Qaza: Centre for Arbitration and Conciliation

Need For Legal Protection
Eid-ul-Azha – Festival of Sacrifice

My heart bleeds when I see young couples in Court with young children ranging all ages, entangled in matrimonial disputes. Often, they waste the prime of their youth in this, and much of their savings. Noticing this precarious condition, I feel it necessary that for matrimonial disputes, there has to be some alternate Dispute Redressal Forum available that should give easy and economical access to speedy justice.
The institution of marriage has become fragile, for many reasons. The number of divorce, maintenance and judicial separation cases have multifold increased in the Courts of Law with huge pendency though special “Family Courts” are created for matrimonial cases.
Earlier, a matrimonial litigation having Muslim parties was a rare phenomenon but post Shah Bano and 1984 Act there is rise in these cases and a sudden spur after the Triple Talaq verdict.
To provide fast, economical and amicable solutions to matrimonial disputes, the All-India Muslim Personal Law Board, the Imarat-e Sharia and other Muslim organisations have established ‘Darul Qaza’, popularly known as ‘Sharayi Adalat’, at various places in the country. The efforts taken by these organisations yield fruits for the community.
SharayiAdalats were managed by the Ulema, Qazis who were trained in theology, and almost all were male. With the progress of time, certain opinions given by these theological institutions brought them a bad name and the issue was taken to Supreme Court by one Vishwalochan Madan complaining that a parallel judicial system is being run without authority and thereby injustice is being done with the Muslim Women by such SharayiAdalats, 3 incidents were made base of this petition:
1) Imrana a 28 year old Muslim, mother of 5 children was allegedly raped by her father-in-law. The question arose about her marital status and those of her children born in the wedlock with the rapist’s son. The Fatwa of Darul Uloom in this connection was:-
“If, one raped his son’s wife and it is proved through witnesses, or the rapist himself confesses it, Haram Musarat will be proved. It means that the wife of the son will become unlawful forever to him i.e. the son. The woman with whom father has copulated legally or had sexual intercourse illegally in both ways, the son can’t keep physical relationship with her.”
The Fatwa has dissolved the marriage and passed a decree for perpetual injunction restraining the husband and wife living together.
2) In case of one Asoobi, Fatwa was issued that a Police report cannot be filed against her rapist father-in-law. According to the Fatwa, the father-in-law could have been blamed only if there had been a witness to the case or the victim’s husband had endorsed Asoobi’s allegation.
3) In shocking case of Jatsonara a 19 year old Muslim woman who was raped by her father-in-law, a Fatwa was issued directing her to accept the rapist father-in-law as her real husband and divorce her husband.
The above Fatwas attracted the attention of the nation and the Supreme Court took the cognizance of injustice meted to the women. In its judgment delivered on 07.07.2014 the Supreme Court says, “No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as the dehumanising force.”
Further, Supreme Court ruled “No Darul Qazas or for that matter, anybody or Institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it. In the case of incapacity of such an individual, any person interested in the welfare of such person may be permitted to represent the cause of the individual concerned. In any event, the decision or the Fatwa issued by whatever Body being not emanating from any judicial system recognised by law, it is not binding on any one including the person, who had asked for it. Further, such an adjudication or Fatwa does not have a force of law and therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law.”
Fortunately, the prayer of petitioner Vishwalochan Madan seeking declaration that setting up of Darul Qaza a Shariat Court is illegal, illegitimate and unconstitutional was rejected by the Supreme Court and kept the movement of Darul Qaza alive with the limitations mentioned above. The restrictions on the authority of this Institution are invited because of issuance of Fatwas that went contrary to the basic human values.
The All-India Muslim Personal Law Board or other institutions have established these SharayiAdalats with a noble purpose to avoid expensive and protracted litigation and to impart speedy justice to the downtrodden and weaker section of the society. But, this purpose could not be fulfilled for many reasons, including the Qazis who are managing these Institutes as they are not trained in the modern laws, are not aware about the developments in the society and sometimes are insensitive towards the women of present times.
Despite of all the failures, the silver lining to these institutions is well developed network and their genuine efforts in resolving the disputes. These institutions are to be made viable and useful for the society, for this they require reformation and to be made compatible with the current legal system of the country.
In my opinion some of the reforms could be:
(a) Introduction of Arbitration Clause in the Nikahnama with right to each party to nominate one Arbitrator and specifying the place of arbitration so Sharayi Adalat of that place can conduct the arbitration with its Incharge as the third and independent Arbitrator.
(b) More and more women should be encouraged to take charge of SharayiAdalats, in the Arbitration Panel one woman should be place mandatorily, if, 2 are included nothing could be better than it.
(c) Rights of women ensured by other laws must be protected, they should not feel that in the name of religious sentiments they are not getting what their counterparts from other religion are getting.
(d) The SharayiAdalats should be converted into Counselling Centres. For this purpose, trained Counsellors be engaged.
(e) The person Incharge of Sharayi Adalat be given training in basic laws of land relating to matrimonial disputes.
The benefits of these reforms can be summarised as:
i. The proceedings and award will get Legal Recognition under the Arbitration and Conciliation Act, 1996.
ii. As per mandate of Section 29-A the matter must be settled within one year, even can be dealt as Fast Track as per Section 29-B.
iii. The award may be challenged before the District Court u/s.34 but the Court has to decide it within one year period.
iv. The award could be enforced through Civil Court as per Section 36.
v. The Sharayi Adalat can invoke Section 30 to get the matter settled through mediation, conciliation or other procedure.
vi. Most importantly interim measure could be ordered for benefit of the weaker party and children affected by the dispute, these interim measures are also enforceable through Court.
It is high time that the All-India Muslim Personal Law Board and other institutions of authority in Muslim society should consider these suggestions and evolve solutions to the existing problems with a large heart by accepting their failures and the unintended injustice caused to the daughters of the society.
The Hon’ble Supreme Court was kind enough to not to declare Darul Qaza as illegal entity, we must take this opportunity and prove that such Institutions are useful not only for the Muslims but for the entire society. The doors should be opened for counselling of couples, and a true Institution for alternate dispute redressal should be brought into existence.
It is a general perception that because of the protracted litigations, the valuable time of the litigating young people is wasted. Couples who feel that they are not compatible with each other may find their new ways, if, the matters could be settled in short period or by counselling the families could be saved. Therefore, the need for socially managed Institutions like Sharayi Adalat is felt more with the rise in disputes, with a rider that they be established in modern ways.

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