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Darul Qaza - an alternative dispute resolution forum: its impact on access to

justice

Article · August 2018

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Sheikh KHURSHID Alam

Azim Premji Foundation
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About the Article:

This Article was first submitted in the form of a research paper in the Course of Legal System
Reforms in LL.M (Law and Development) at School of Policy and Governance, Azim Premji University
(2017-18 Batch). Abu Talha Jamal Qasmi, In-Charge of Eastern Crescent, Kolkata conducted the
interview of Qazi Falahuddin Qasmi at the request of the author and compiled the data of Darul
Qaza, Topsia. The Interview was conducted on 22nd April 2018.

About the Author:

Sheikh Khurshid Alam is an Associate with Azim Premji Foundation and presently placed at
Chattisgarh. Prior to joining Azim Premji Foundation, he was a legal practitioner based in Kolkata. He
has an LL.M in Islamic Jurisprudence from Aliah University, Kolkata and an LL.M in Law and
Development from Azim Premji University, Banglore.
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Darul Qaza - an alternative dispute resolution

forum: its impact on access to justice
In December 2016, the Madras High Court gave a very peculiar judgement regarding the
functioning of Shariah Court in one of the mosques of Chennai. The Court held that no
judicial forum can be operated from the premises of a religious institution like temple,
mosque or church. The court passed the order after hearing a PIL filed by one Abdur
Rahman. The petitioner, an England-based NRI was dissatisfied with the Shariat Council’s
decision regarding his plea to reunite him with his wife. In an article on the said judgement of
the Madras High Court in the Hindustan Times, Faizan Mustafa, a renowned legal scholar
said, “The Madras High Court order on Shariah courts is strange as the Supreme Court itself
in its landmark decision on July 7, 2014 has held that Shariah courts are not courts as the
Indian legal system doesn’t recognise a parallel judicial system.”

Darul Qaza: Informal Justice Institution

Shariah Courts or Darul Qaza has been running in India in one form or the other for a very
long time. In many states of India, there are state approved Muslim Marriage Registrar &
Qazi, who function both as a marriage registrar as well as a mediator between disputing
parties. On the other hand, there are institutions like Darul Qaza, which are characterised as
informal institutions as they lie outside the threshold of the state sponsored formal justice
system, operate at the local and community level and are manned by non-state actors as
traditional and religious leaders and by civil society organisation. Imarat Shariah states in its
website that Darul Qaza has been established to decide the disputes of the Muslims with
regard inheritance, marriage, divorce, waqfs in particular and others in general in accordance
with Shariat laws so that the Muslims could be saved from costly and time taking procedures
of general courts of land. Disputes are solved amicably. In 2014, a petitioner had alleged in a
PIL before the Supreme Court of India that Darul Qaza was running as a parallel judiciary in
India but Supreme Court disposed off the said writ petition and observed that the object of
establishment of such a court (Darul Qaza) may be laudable but they (the Supreme Court) did
not have any doubt in their mind that it had no legal status. It was bereft of any legal pedigree
and had no sanction in laws of the land. They were not part of the corpus juris of the State. A
Fatwa is an opinion, only an expert is expected to give. It is not a decree, not binding on the
court or the State or the individual. It is not sanctioned under our constitutional scheme. But
this does not mean that existence of Darul Qaza or for that matter practice of issuing Fatwas
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are themselves illegal. It is informal justice delivery system with an objective of bringing
about amicable settlement between the parties. It is within the discretion of the persons
concerned either to accept, ignore or reject it.

There are two broad classes of arguments related to the existence and functioning of Darul
Qaza. One class of argument emphasises on the merits of Darul Qaza and is advocating
securing to it the status of a mediation entity, a type of alternative dispute resolution forum.
In a 2014 paper on the efficacy of the Darul Qaza, Bittoo Rani, a scholar from West Bengal
noted, “Sharia courts today are important alternative dispute resolution (ADR) mechanism;
its role is complementary to the formal judiciary...By settling private disputes of such a big
community as that of the Muslims, the Darul Qaza is complementing the formal Indian
judiciary...The institution is fully adapted to the profile and requirement of its community
members.”

The other class of arguments advocates the closure of all forums like Darul Qaza and matters
be solved in the regular courts. Few Muslim women activists are against the functioning of
Darul Qaza in any form as they believe that Darul Qaza will deprive women further of their
rights as citizen of India. This article will focus on the first class of argument and look into
the impact of Darul Qaza in the access to justice.

Family Cases in Family Courts and Lok Adalats

In 2002, the National Commission for Women published a report on the ‘Working of Family
Courts and Model Family Courts’ in India. The report mentions, “In 1975, the Committee on
the Status of Women recommended that all matters concerning the family should be dealt
with separately. The Law Commission in its 59th report (1974) had also stressed that in
dealing with disputes concerning the family, the court ought to adopt and approach radical
steps distinguished from the existing ordinary civil proceedings and that these courts should
make reasonable efforts at settlement before the commencement of the trial.” The
establishment of family courts was part of the reformative measures taken to address the issue
of backlog of cases as well as providing speedy justice to women.

Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987.
Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree
of a civil court and is final and binding on all parties and no appeal against such an award lies
before any court of law. If the parties are not satisfied with the award of the Lok Adalat
though there is no provision for an appeal against such an award, but they are free to initiate
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litigation by approaching the court of appropriate jurisdiction by filing a case by following

the required procedure, in exercise of their right to litigate. With all those noble objects in
mind, Lok Adalats have been functioning for quite some time and cases from family courts
have been referred to Lok Adalats for quick disposal.

In a study of Lok Adalats in India, a very sharp observation has been made by Jayanth
Krishnan, who at present is a professor of Law at Indiana University. His study reveals that
when a case is brought before a Lok Adalat, the same principle is present; the judicial panel is
asked, for example, in the case of a Muslim couple seeking a divorce to apply the norms set
forth in the Shariat. But oftentimes neither the judges nor the parties are familiar with what
can be complex provisions in the Shariat regarding divorce. In these situations, deference is
frequently given to the lawyers who presumably have practiced for years in this area and are
more familiar with how the law should be applied. In the instant case, the usual business of
one party remaining absent till the case is reverted to regular court is played on. It has also
been observed that in Lok Adalats, the cases dealing with principles of Muslim Personal
Laws are not dealt with properly due to limited knowledge of the lawyers as well as the
judges.

In March 2016, the Dharwad Bench of Karnataka High Court, on a criminal petition under
section 482 of Cr.P.C, quashed the proceedings of JMFC – II Court of Belgavi (Belgaum).
The basis on which the High Court quashed the proceedings of JMFC – II Court was that the
parties to the dispute had reached an amicable settlement before the Family Judge Court,
Belgavi (Belgaum) and later approached the High Court for quashing of the pending
proceedings before JMFC – II Court. It is interesting to note the order of the High Court
mentions that the fact that the wife has agreed to enter into a ‘Khula Nama’ (a kind of divorce
wherein the wife demands separation from the husband and the husband obliges) before the
Darul Qaza of Belgaum. This raises the question about the role of Darul Qaza. Is it only
limited to drafting of ‘Khula Nama’ or also has the authority to facilitate the proceedings
preceding the act of entering into the ‘Khula Nama’?

Darul Qaza’s role in the formal adjudication system.

In Islam, marriage is a contract and both the bride and bridegroom are free to register any
clause in their nikahnama (marriage contract), which is not against the basic tenets of Islam.
The steps prescribed by the Qur’an, in the matters of dissolution of the marriage, involves
mediation as a requisite preceding dissolution of the marriage. Mediation process in India
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may either be agreed to by parties through a contract, or ordered by a court hearing the
dispute. The courts hearing the disputes between Muslim couples have the discretionary
power to refer the matter for mediation.

Section 89 of the Code of Civil Procedure reads:

1. Where it appears to the court that there exist elements of a settlement which may be
acceptable to the parties, the court shall formulate the terms of the settlement and give
them to the parties for their observations and after receiving the observations of the
parties, the court may reformulate the terms of a possible settlement and refer the
same for –
a) arbitration;
b) conciliation;
c) judicial settlement including settlement through Lok Adalat; or
d) mediation.

Further, Section 2(d) of the Code says, ‘Where a dispute has been referred – for mediation,
the court shall effect a compromise between the parties and shall follow such procedure as
may be prescribed.’

The court the has power to refer matters for mediation and I argue in this article that if Darul
Qaza can be recognised as valid mediation centres then such step will be instrumental in
quick and effective disposal of family cases related to Muslim couples and a move towards
ease of access to justice.

Joseph Schacht, in his book, an Introduction to Islamic Law has mentioned, “The most
important single act in the closing years of British rule in India was the Shariat Act of 1937,
which abolished the legal authority of custom among the Muslims of British India almost
completely and imposed upon them the official doctrine of the Shariah as modified by statute
and interpreted by Anglo-Indian jurisdiction.

Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937 states;

Application of Personal law to Muslims.—Notwithstanding any custom or usage to

the contrary, in all questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including personal property inherited
or obtained under contract or gift or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,
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maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other
than charities and charitable institutions and charitable and religious endowments) the
rule of decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat).

The various forms of dissolution of Muslim marriages demand a sound knowledge of the
Islamic principles, which are duly satisfied by the Qazi of a Darul Qaza.

Functioning of Darul Qaza

Bittoo Rani says further in her paper, “The proceedings of Sharia courts are marked by a
degree of flexibility. Strict rules of evidence are not followed. The proceedings are informal
and non-legalistic and marked by simplicity and absence of delay. The plaintiff himself
makes representation of his case in front of the Qazi or the judge. Absence of prosecutors and
cross examination of witnesses renders proceedings swift and easy. No legal experts are
required to present and defend cases; the parties directly approach the traditional community
leaders and mediators to find amicable solutions. Devoid of cumbersome legal procedures
and legal jargons cases are disposed within a relatively short time in opposition to the weeks,
months or years that are spent in facing hassles and complexities of the legal system.”

The interview of Qazi Falahuddin Qasmi of a Darul Qaza in Kolkata and the data collected
from the said Darul Qaza sheds light on the quick disposal of cases. The said Darul Qaza is a
unit of Imarat Shariah, Phulwari Sharif. It has various other units in Bihar, Odisha, Jharkhand
and West Bengal. There is an understanding between the All India Muslim Personal Law
Board and Imarat-e-Shariah that the places where the Board has Darul Qaza, there Imarat
Shariah will not have any unit and vice-versa. This forum is open for all the Indians to get
their disputes resolved through mediation. The founder of Imarat Shariah, Qazi Mujahidul
Islam, besides resolving disputes of Muslims, used to resolve disputes of the Hindu brethren
also. Darul Qaza entertains civil matters only. It is pertinent to mention that such cases which
have already been filed at any police station or court are not registered at the Darul Qaza,
therefore, the registered number of cases as shown in Figure 1, do not include those cases
which have been rejected for the reason mentioned above. It is the practise of the Darul
Qaza to advise the parties to withdraw the police complaint before entering into the mediation
process.

At present the filing fees is Rs. 500 which includes all the costs of the proceedings. Till last
year the fees was Rs. 300 only. The maximum cost has never crossed Rs. 1000 for a case.
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Matters like marital disputes between spouses, dissolution of marriage and issues related to
division of property among heirs as per Islamic laws are entertained by Darul Qaza. When
either of the parties approaches with a complaint, the Qazi takes a written statement from
him/her. If the petitioner is illiterate then he writes down his/her account and get it signed.
This statement is sent to the respondent via registered post and the respondent is asked to
respond to it. When the respondent communicates either through post or in person then the
mediation process begins. The Qazi makes both the parties sit together in his presence and
talk to each other. There are instances when the matters have been resolved in the initial
sitting itself. When there is no solution from the first sitting then the Qazi calls the elders and
witnesses from both sides, listen to them and then finally tell them the Islamic ruling on the
concerned matter. If the parties agree to it then a sulahnaama (settlement agreement) is
drafted and both put their signatures to it. If there is any matter where there is no evidence,
either oral or written, to support the claim or dispute, then the Qazi does not entertain such
cases. In case of non-satisfaction from the opinion of the Qazi, the aggrieved party can
approach the Central Darul Qaza, Imarat Shariah within 90 days from the date of the outcome
of this forum to register their dissatisfaction. There has been no appeal from the Darul Qaza,
Topsia to Central Darul Qaza so far.

In the year 2015-16 and 2016-17, a number of 51 cases were officially registered at Darul
Qaza, Topsia. Out of 51 cases 39 cases were resolved, 10 cases were decided in favour of
wife and the Qazi annulled the marriage (faskh e nikah) and 2 cases were not resolved as the
husband did not show up. (Figure 1)

Out of 51 cases, 27 cases were resolved within and less than 50 days, 13 cases were resolved
within 51-100 days, 7 cases were resolved within 101-150 days and the rest of the cases were
disposed of within a year. (Figure 2 and 3)
 Page 8 of 10

30

25

20
Cases Registered

15 Resolved
Ex-Parte

10 Unresolved

0
2015-2016 2016-2017

Figure 1: No. of cases before Darul Qaza, Topsia (Kolkata) in 2015-16 and 2016-17

250

200

150

No of Days
100

50

0
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 34 25 26

Figure 2: This Chart shows the no. of days taken for disposal of cases in year 2015-2016
 Page 9 of 10

250

200

150

No of Days
100

50

0
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 34 25

Figure 3 : This Chart shows the no. of days taken for disposal of cases in year 2016-2017
 Page 10 of 10

Challenges of the Darul Qaza

The cases coming to Darul Qaza are not referred by the courts and there are a number of
reasons for which the parties approach this forum. It is cost-effective as well as time-efficient
not only in terms of the number of days taken to dispose the case but also because it is locally
situated, which saves the commuting time.

Two Circles Network, an online news portal brought out a report on the functioning of Darul
Qaza in 2009. The report covered the challenges of the Darul Qaza. It highlighted, “AIMPLB
adopted resolutions on the issue of Darul Qaza at Hyderabad in 1985, Jaipur in 1993,
Hyderabad in 2002 and Munger in 2003. The Resolution No. 4 of the Munger conclave
requested AIMPLB President to expand the task of establishing Darul Qaza to cover the
whole country and nominate a committee which may strive for and establish Darul Qaza in
various cities and regions as per need… But the pace of establishing Darul Qaza…remained
very slow… On problems in setting up a Darul Qaza, Waquaruddin says: “We do not have
trained Qazis in good number for two reasons. There is no training institute except the one set
up by former Board president late Maulana Mujahidul Islam Qasmi at the premises of the
Imarat Sharia…They run a two-year course to train madrasa graduates as Qazi. Only 8-10
persons are getting training every year. Second reason is madrasa graduates are not willing to
take up research work and go through the training of Qazi.

Conclusion

There is no data available which can show the number of cases dealing with Muslim Personal
law and it is hoped that when the courts start referring the disputes, the solution of which lies
in the Muslim Personal Law, then a number of cases would be taken out from the docket of
the court. Since the Darul Qazas operate at the local and community level and are manned by
non-state actors as traditional and religious leaders and by civil society organisation, the state
will not be burdened with the establishment and maintenance of such forums.

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