'Wrong to brand everything concerning Islam anti-women': Lawyer-activist Flavia Agnes speaks on darul qazas, triple talaq
Studies have shown that the main beneficiaries of Islamic alternative dispute resolutions largely consist of women, agitating for divorce, land and other family disputes.
By Tish Sanghera
To dissect the uproar and shed light on the reality of how darul qazas operate, IndiaSpend spoke with Flavia Agnes, a leading women’s rights lawyer and co-founder of Majlis, a legal and cultural resource centre that campaigns for and provides legal representation to women and children.
A prolific writer and activist, Agnes, 71, has written widely on issues concerning domestic violence, minority law reforms, secularism and human rights. Her work has been published in national publications, such as The Hindu, The Indian Express and Economic and Political Weekly. Her autobiography ‘My Story…Our Story: Of Rebuilding Broken Lives’ published in 1988, revealed the yawning gaps in legal services available to survivors of domestic abuse and was received as an important marker for the women’s movement in India. She is also a practicing lawyer at the Bombay High Court and an advisor to the Maharashtra State Government’s ministry of women and child development department.
Majlis recently celebrated its 25th birthday. During this quarter century, it has worked with victims of the 1999 Mumbai and 2002 Gujarat communal riots. Agnes’ organisation began a legal advocacy program for sexually violated women in relief camps following the violence in Gujarat, and, according to its website, is “consistently countering the rising wave of Hindu fundamentalism in the country”.
There are currently over 2.7 million cases waiting to be heard across various Indian courts, 24 percent for more than five years. Alternative dispute resolution centres could prove useful in a country where a slow judicial system leads to extreme delays, such as a 2011 Delhi High Court decision to grant a divorce to an 85-year-old man after a three-decade-long legal battle.
Studies have shown that the main beneficiaries of Islamic alternative dispute resolutions largely consist of women, agitating for divorce, land and other family disputes. With each court visit costing litigants on average Rs 350 per day (25 percent of earnings for those with a household income of less than Rs 100,000 per annum), many lower-income and subsequently disempowered individuals can feel financial barriers block their path to justice.
In an email interview, Agnes explains why at a time of heightened Islamophobia, we must avoid politicised readings of darul qazas in order to fully understand how the communities themselves are using and potentially benefiting from their work.
There have been negative and often extreme reactions amongst parliamentarians to news that the All India Muslim Personal Law Board (AIMPLB) intends to establish sharia courts in every district of the country. Can you explain why you believe those who are concerned about sharia courts acting as a ‘parallel legal system’ may have misunderstood how they operate?
An impression seems to have been created that this move to set up darul qazas in every district is driven by an objective to undermine the impact of the recent constitutional bench ruling in the triple talaq (Shayara Bano vs Union of India) case, which had declared triple talaq invalid last August. But this premise has no basis since darul qazas have been functioning in India for a long time.
For instance, Imarat-e-Sharia in Patna, which has a well-oiled alternate dispute resolution mechanism, was set up in 1920 and has a broad network of darul qazas across many north Indian states. At that time, there was no controversy around the setting up of this institution. Additionally there are also darul qazas run by muftis who are not affiliated to any darul qazas. In fact, the AIMPLB does not have the monopoly of setting up darul qazas. Any learned mufti who is socially conscious may set up a darul qaza to help resolve family disputes.
Misunderstandings around the machinations of Islamic law have been seen before--such as the 2006 Imrana rape case, when a fatwa obtained by a journalist from a minor cleric in Uttar Pradesh was widely upheld as an example of a binding and ultra-conservative Islamic verdict. Do you think the AIMPLB’s plan to activate its Tafheem-e-Shariyat committee — charged with educating lawyers, judges and the public about sharia law — will help to improve awareness levels and even relations between opposing groups?
Yes I am sure such initiatives will help to clear the air and give a true picture about Islam, and Muslim women’s rights. Right now, there is so much Islamophobia and fear of ‘the other’, because we do not know about the traditions, customs and practices of Muslims. Through our ignorance, we are branding everything concerning Islam as anti-women.
Recently, at a Muslim women’s conclave, titled ‘Muslim Women – Rights and Reality’, some activists mentioned a project they have started in Hyderabad called ‘Adopt a Mosque’. They invite a group of students and concerned citizens to visit a mosque, interact with the Imam of the mosque and also observe the namaz (prayers) that takes place and the rituals that are followed. To this I wish to add, we can all visit a darul qaza and find out for ourselves how disputes are resolved before making erroneous and invalid presumptions about them. This might help to clear the air.
As many as 95 of 100 cases studied in a darul qaza in Kanpur were filed by women who wanted the dissolution of a marriage or maintenance support, in a 2017 study by the Indian Institute of Technology, Kanpur. What does this tell us about the role these organisations play amongst women in this community?
The same is true of all the darul qazas that I have visited in Mumbai, not just this one in Kanpur. I have visited around eight that are functioning and each one said more women approach them than men. A few of these stated that around 95 percent are women.
This is because when a Muslim woman faces domestic violence she often prefers to go to a darul qaza to dissolve her marriage rather than the family court. In a darul qaza, women feel more comfortable since they are familiar with the culture, understand the language. Also, darul qazas offer expeditious and cheaper options to resolve family disputes, than the civil courts.
Men approach the darul qazas if their wife has deserted them or the wife has filed a criminal case under Section 498A of the IPC (Indian Penal Code). Men do not approach a darul qaza for pronouncing talaq. This is usually done privately in the presence of witnesses and the talaqnama is drawn by a qazi and sent across by a lawyer along with a legal notice.
Hypothetically speaking, if darul qazas were abolished and personal law matters brought more into the purview of the secular judiciary, what in your opinion would be the impact on communities that had traditionally looked towards alternative dispute mechanisms to resolve certain issues?
Today, our judiciary is clogged and cases drag on for a very long time. So actually solving disputes through alternative dispute resolution mechanisms like Lok Adalats (People’s Courts), mediation centres etc are encouraged. Therefore, I do not think the government will abolish the darul qazas.
Even if they are abolished, people can still choose various alternative fora such as the local panchayats (village councils), mediation by family elders, religious heads and local political parties etc. to resolve civil disputes. For instance, even among Christians and Hindus, such alternatives are available. Christians have their own church tribunals and many lower caste Hindus approach their caste panchayats or village panchayats to resolve family disputes.
The Hindu Marriage Act validates the divorces granted as per custom of the caste. So if Muslims opt for obtaining khula (divorce initiated by the wife) in a darul qaza, the husband also accepts this forum for resolving the dispute and both parties abide by the decision of the darul qazas, how can this be stopped? At the most, after the khula is obtained, the parties may still file a declaratory suit in a family court, that is all to obtain a formal decree. But the parties may not consider it necessary.
You have previously argued that the media too often portrays the plight of Muslim women in India inaccurately (as lacking rights) and manipulates the story to fit politically charged discourse. The recent public interest litigation filed by Shayara Bano against “instantaneous triple talaq” is a good example of this you say. Could you explain what you mean by this?
Based on a study conducted by Bharatiya Muslim Mahila Andolan (the findings and methodology of which were challenged by legal scholars) several articles appeared in the media. A bench of the Supreme Court while denying a Hindu woman right to ancestral property, totally out of context, then made a reference that a Constitution Bench be set up to examine the lack of rights of Muslim women, though this was not an issue before the court.
Shayara Bano is a victim of domestic violence just like 50 percent of all Indian women are. She had left her matrimonial home and was residing with her parents. Remedies to her concerns (maintenance, access to her children and protection against domestic violence) were available to her under the Protection of Women from Domestic Violence Act, but perhaps no one advised her about this.
When her husband filed for Restitution of Conjugal Rights, she contacted a Supreme Court lawyer to transfer this case from Lucknow to Kashipur. As a counter blast, the husband’s lawyer sent her a talaqnama. Since a Constitution Bench was constituted, her lawyer advised her to file a writ petition and challenge the talaqnama, though she herself consistently maintained that she does not wish to return to her husband due to the domestic violence. So according to me, this case does not strictly fit the formula of ‘instant and arbitrary triple talaq’. But the writ petition gave her instant fame and she became known as a crusader for Muslim women. Recently, I read reports that she has joined the BJP.
In the same article, you also said, the media often ignores the large number of positive court judgments in favour of Muslim women in India. Can you give us an example from your own experience working with Majlis or interactions with the Muslim community, where you believe a successful or monumental case has gone unrecognised because it may not suit the narrative of certain media organisations?
I could mention so many since we are constantly using these cases to defend the rights of Muslim women. For instance, in the Shamim Ara case in 2002, the Supreme Court laid down the correct procedure for pronouncing talaq. Even earlier, there were judgments of Justice Barul Islam of the Guwahati High Court in 1981 where the procedure for pronouncing talaq was laid down. Since 1981 to 2002, various high courts had followed the Guwahati judgement. So, the issue that arbitrary triple talaq is invalid was already settled. But these judgments were not highlighted in the media.
Similarly in another important judgement, Danial Latifi vs Union of India in 2001, the Supreme Court held that a divorced Muslim woman is entitled to a fair and reasonable settlement for her entire life. But no one bothered to highlight this historic judgement and media continued to project that after divorce a Muslim woman is devoid of rights. Also, the fact that Muslim women are entitled to relief under the Domestic Violence Act has not been sufficiently highlighted in the media. So every time we have approached the magistrate’s court to protect a Muslim woman under this Act, the other side has argued that a Muslim woman is not entitled to claim relief under this Act and this is simply because media had not highlighted this issue enough.
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