Anatomy of a Divorce

A BLACK WOODEN door leads to a dark staircase. On the first floor of this building in Delhi’s Jamia Nagar, a long red-carpeted room is lined on one side with stacks of cardboard boxes marked either ‘female’ or ‘male’. On the other side, Mohammad Kamil Qasmi is seated on the floor with a few desks in front of him, poring over files and books. Apart from these and some bookshelves, there is no furniture in the room.

As the qazi (‘judge’) at this Dar-ul-Qaza, a Sharia court for south Delhi that uses Islamic jurisprudence to adjudicate on civil matters, Qasmi awaits the arrival of the complainant and complainee of a case listed for the day. Turning the pages of a diary, he says it’s about a woman in her early twenties who wants a ‘khula’—a divorce—from her husband of ten months because of divergences in their ‘mijaaz’ (temperament). This would be the couple’s third hearing. In the first two, the qazi had tried to convince them both to resolve their differences.

Qasmi has been the judge here ever since it was set up in 1994 under the aegis of the All India Muslim Personal Law Board (AIMPLB), the premises of which serve as a courtroom, and has taken up 655 cases so far. “We do not divulge the names or numbers of complainants,” he says.

As he goes back to his reading, footsteps at the entrance interrupt. It’s a new case. A lone woman in a headscarf, dressed in a long kurta over palazzos, takes her slippers off at the door and takes a seat across the qazi’s main desk. She is here with a plea for divorce from her husband of 11 years. She speaks softly, explaining why. Qasmi just listens. He asks if she can read Urdu and hands over a form to be filled. His assistant Ahsanullah takes down notes to put in a new file.

Her story is not very unusual. Now 38, she is a doctor with a Bachelor’s degree in Unani Medicine from a Delhi college who was married to a man who ran a motor-parts business and had studied no further than class 10. “He got involved with a woman last October and has started living away for the past three-four months,” she says, “Now he doesn’t even work. I take care of my two children. I asked him to give me a divorce but he refused, so I thought of taking [the help of] the Sharia court.”

Like several others who walk up the steps to the Dar-ul-Qaza, though, she is unaware that the verdicts of this court are not upheld by Indian law. In 2014, India’s Supreme Court held that fatwas issued by Dar-ul-Qazas and other such bodies do not have any legal sanctity and cannot be enforced if they enfringe the fundamental rights of an individual. This ruling was in response to a Public Interest writ petition filed in 2005 over the case of a woman from Kukda village in Muzaffarnagar district of UP, who, after allegedly having been raped by her father-in-law, needed respite from a panchayat fatwa that nullified her marriage and designated the rapist as her new husband.

Last year, the Madras High Court banned unauthorised Sharia courts functioning on the premises of mosques in Tamil Nadu while hearing a petition from a husband who said he was forced to pronounce ‘talaq’ by one such court in the city. Traditionally, Muslim men have been able to divorce their wives unilaterally by uttering that word thrice in one go, a practice successfully challenged in the Supreme Court by women of the community. Not only does a failure to space each utterance out by a month—an iddat period—go against injunctions of their faith, it represents gender inequality, since the only divorce option for a wife rests on the approval of a qazi.

The Unani doctor, however, has an explanation for her decision to approach the Dar-ul-Qaza. “The judicial system takes a long time and costs much more,” she says, “I don’t want my marriage to linger on. Once it’s over, I will be free. Besides, I have faith in the laws of Sharia.”

While a Sharia court might offer Muslim women freedom from bad marriages, it comes at a price. They get no maintenance from divorced husbands for themselves and their children, if any. “There is no alimony for the woman [asking for] a khula,” says Maulana Mohammad Amin Usmani of the Islamic Fiqh Academy located nearby, “In several cases, the husband asks for money to give a divorce. Husbands should not be demanding more than the mehr, but these days they ask for more.” The Fiqh Academy was set up in 1989 partly as a forum for scholars to discuss Islamic law; and the mehr refers to a lump sum specified in the standard nikaah nama that is to be paid to a divorcee by way of severance compensation. If a husband issues a talaq, he must pay his former wife this sum. In cases where it is a rupee figure (instead of, say, gold), the sum often turns into a pittance as a result of inflation over time, as seen in the Shah Bano case of the mid-1980s that resulted in a law being enacted in favour of the tradition after Islamic clerics protested an apex court award of alimony to a Muslim woman divorcee by that name. It was only in 2001, after Shah Bano’s lawyer Danial Latifi challenged the law, saying it was discriminatory to Muslim women, that the Supreme Court, while endorsing the Act’s validity, ruled that the duty of a former husband should extend beyond the iddat phase.

The Unani doctor leaves assured that if the court cannot get her a khula, which the husband must agree to grant, then the qazi can use his authority to pronounce a faskh-e-nikaah (annulment)

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The dense details of modern legalese, however, tend to escape the pious.

The Unani doctor leaves assured that if the court cannot get her a khula, which the husband must agree to grant, then the qazi can use his authority to pronounce a faskh-e-nikaah, an annulment of the marriage, for her to obtain her freedom. She will return with the form duly filled to pursue her case.

The cardboard boxes along the wall contain documents that the AIMPLB considers proof of support within the community for its stance on Triple Talaq and a Uniform Civil Code (UCC). They have the responses of Muslims across the country to whom it posed a set of questions after it rejected the recent Law Commission proposal of a common code. According to the Board, 48,347,596 Muslims—27,356,934 of them women—are in favour of Sharia and opposed to a UCC. In April, a delegation of the Board led by its general secretary Maulana Mohammad Wali Rahmani had met Law Commission Chairman Justice Balbir Singh Chauhan to hand over scanned copies of the signatures of nearly a quarter of India’s 172 million Muslims.

Framed by Islamic jurists over centuries past and said to be drawn from the sayings of Prophet Muhammad, Sharia is not applicable in India to cases of crime under the prevalent penal code. “In Sharia courts here, they do not deal with criminal aspects,” says Manzoor Alam, chairman of the Institute of Objective Studies, a research organisation allied with the Fiqh Academy, “[They only judge] matters relating to family disputes, marriage, divorce, land and property.” The AIMPLB’s aim has been to retain their power over civil cases.

Marital discord takes up most of the South Delhi Dar-ul-Qaza’s time. Since this January, Qasmi claims to have resolved 15 of the 28 cases that came up. The majority of these, he says, looking up his meticulous records, are of women seeking separation and husbands having vanished without fulfilling their financial obligations, while some are male complaints of a wife not returning from her parents’ home, says Qasmi. Of the cases dispensed with, he issued a faskh divorce in eight, effected a reconciliation in four, and oversaw a mutual break-up in three. “The cases of women seeking khula have gone up,” he says. Some have involved women over 70, though such relationships are easier to patch up in his observation.

It doesn’t perturb him that the litigants are not legally bound by his judgments. “Is a lower court judgment binding on the high court?” he asks, “Or the high court’s on the Supreme Court?” Justice is low-cost and speedy. A complainant pays a fee of Rs 300 (only in rare cases do expenses exceed that sum), and by Qasmi’s statistics, half the cases are resolved within three months.

A middle-aged man walks in with a financial complaint against a man who runs a madrassa at Batla House, not far from the court. The Dar-ul-Qaza will take it up only if both sides appear before it. The man accepts the judge’s word and leaves looking crestfallen. At 1 pm, Qasmi departs as well. The young couple scheduled to appear in court have skipped the hearing. “I just hope it is because they have decided to live together,” says the qazi, “I don’t know if there’s some other reason.”

Qasmi, like other jurors in Sharia courts, had undergone a year- long training programme at Imarat Sharia, Phulwari Sharif in Patna, after he completed his fazeelat at Darul Uloom in Deoband. There are similar training centres in other places too, all of them working to fulfill the AIMPLB’s 2003 resolution to set up Islamic courts across the country; Delhi now has two of these, while Kolkata, Mumbai, Bengaluru, Hyderabad, Lucknow, Jaipur, Pune, Ahmedabad and Indore have courts as well.

SHARIA COURTS SERVE as an arbitration system, according to Manzoor Alam of the Institute of Objective Studies, whose office is located next to that of the Islamic Fiqh Academy nearby. In Islam, he says, a nikaah is a social contract with talaq as an exit clause, and this often calls for dispute resolution. The advisory role of qazis, he argues, is of much social value among the faithful. He cites a case narrated to him by the qazi of a Sharia court in Patna about a property dispute involving two sons of a zamindar. Upon the landlord’s death, his will bearing his thumb impression was found to have left all his property to the younger son. The elder contested the will at the high court and then the apex court, both of which ruled in favour of the younger. When the case came to the qazi, he invited the lone inheritor to stay with him as a guest for a few days, during which he spoke to him about the importance of honesty and piety. On the last day of the stay, the younger son confessed that he had taken the thumb impression of his dying father on a document he’d drafted. This, says Alam, shows the power of moral suasion.

“The Government should see [the issue] from a wider prism,” says Alam. The Muslim Personal Law (Shariat) Application Act enacted by the British in 1937 brought under its purview marriage, divorce, property disputes, trust properties and wakfs (except charitable institutions and religious endowments) where the parties are Muslims, and the AIMPLB wants it kept that way.

Maulana Usmani also has a story to highlight how Sharia courts get the truth out of the God-fearing. In a land dispute case in Bihar, a Hindu man goes to court against a Muslim. The court rules in favour of the Muslim but the Hindu is dissatisfied and approaches a Dar-ul-Qaza. The qazi asks the Muslim to put his hand on a copy of the Qur’an and tell the truth. The Muslim confesses that the land is not his.

Somewhere between faith and justice, belief and individual rights, practice and heterodoxy, Sharia courts seem to have made space for themselves in Muslim-majority localities of many an Indian city. As a mechanism for mediation, they do afford women like the Unani doctor the freedom they desire, but many walk out of a Dar-ul-Qaza with only half justice and half their rights.

About The Author

Amita Shah