Over the last four years, India has become the centre for a major experiment in the implementation of a so-called ‘gender-just Islam’ by Islamic feminist organisations: the formation of a non-official, female-led sharī‘ah court network, within which women serve as qāẓīs (religious judges) to adjudicate disputes within Muslim families. Presenting themselves as counterweights to more patriarchal legal bodies, including both the official judiciary and unofficial dispute resolution forums, these sharī‘ah ‘adālats employ both state-centred and community-focused strategies to assist Muslim women experiencing marital or family-related strife. Based on interviews with female qāẓīs and associated documentary sources, I examine how the women who run these courts adjudicate family conflicts according to what they understand as both the Qur’an’s ethical teachings, and its stipulations regarding the proper methods of dispute resolution. I also argue that these all-female sharī‘ah ‘adālats reflect a shift of focus away from court litigation and legislative intervention, and towards non-state, arbitration-focused practices, as the most fruitful means to protect the needs of Muslim women in contemporary India.
Introduction: Sharī‘ah Courts among the Many Rooms of Justice
For so long, men alone captured their positions by saying that only they can be qāẓīs (religious judges), and not women. We disagreed; women can also work as qāẓīs, pass judgments, interpret the religion and explain it, perhaps even better than can men. This is why we have only woman judges here.1
The north Indian city of Jaipur, most famous for its male Hindu rajas (kings), is also becoming known among sections of Indian Muslims for its female Muslim qāẓīs (religious judges). Deep in Johari Bazaar, in the city’s chaotic old centre, sits one of a network of so called sharī‘ah ‘adālats (‘Islamic courts’) developing in contemporary India. For many decades, non-state sharī‘ah councils (usually called dār-al-qaẓās) have been administered by ‘ulamā-led religious organisations in India, such as the All India Muslim Personal Law Board and the Amara’t ul-Shari‘ah. They work as forums of so-called alternative dispute resolution (ADR), separate from but parallel to the formal court system, which Muslim litigants may voluntarily consult for non-state adjudication of family disputes according to Islamic law by a designated qāẓī.2 Equally, a range of sharī‘ah councils operate in various forms and within a number of different legal-constitutional frameworks across the Islamic world, many of which have already been the subject of authoritative academic scholarship.3 In most cases, in India and beyond, these sharī‘ah judiciaries are staffed exclusively by male ‘ulamā who act as ‘qāẓīs’, based on the assumption that women are prohibited from taking such positions. However, in this regard, the Jaipur sharī‘ah ‘adālat is distinctive: it is run and staffed entirely by women.
At present, three local women serve as qāẓīs in Jaipur’s sharī‘ah court, and they are approached by Muslim women seeking shar‘ī solutions to their difficulties. They offer a spectrum of services, including counselling, social intervention and guidance on formal litigation, and they deal with problems ranging from domestic wrangles (e.g. marital breakdown, or quarrels with in-laws) to proceedings in civil and family courts (e.g. child custody, or claims to post-divorce spousal maintenance) to criminal matters (e.g. domestic violence or rape). Sometimes, they offer advice and counselling to individual, vulnerable women who are in varying states of need or desperation; in other cases, they meet with husbands or with enitre families. Every case is different, they say, as is the strategy for resolving it. The qāẓīs claim to be offering an essential ‘legal’ service to the most vulnerable women, often from uneducated or marginalised backgrounds, who may be deterred from attending the official courts by their cultural remoteness, unfamiliar procedures or high fees. They claim willingness to handle cases brought by non-Muslims as well as Muslims, and men as well as women; in practice, however, Muslim women comprise the overwhelming majority of their petitioners.
The female qāẓīs who run this and other sharī‘ah ‘adalats have built up formidable local reputations. They proudly wear their title, applying it to themselves both in personal introduction and in written correspondence. Likewise, they are referred to as qāẓīs by the litigants they serve and by the residents of their neighbourhoods; one qāẓī jokes that all they need now is a uniform. Far from being exclusively local bodies, however, these sharī‘ah courts also receive petitions from further afield: current petitioners, according to the head qāẓī of Jaipur, include an Indian couple living in Dubai, and a soldier posted in Kargil.
Individual female-led sharī‘ah ‘adālats have been operating in India in certain localities for some years,4 yet the consolidation of a tangible, even national ‘sharī‘ah court movement’ is a recent phenomenon. The Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement, known as the BMMA), a lobby of prominent Islamic feminist activists founded in 2007,5 launched its sharī‘ah ‘adālat programme in 2013, when it named its first four ‘courts’: first in Mumbai, then in Pune (Maharastra), Ahmedabad (Gujarat) and Dindigul (Tamil Nadu). Since then, the network has expanded rapidly, with some two dozen women now claiming to be certified as ‘qāẓī’ by the BMMA. The largest of these ‘adālats, such as those at Mumbai, Jaipur and Calcutta, each has multiple qāẓīs as well as designated offices and a number of volunteer support staff. In several other states, including Karnataka, Madhya Pradesh, Andhra Pradesh and Orissa, women linked to this network operate as qāẓīs in personal capacities and hold their own ‘court’ sessions. Moreover, the influence as well as number of these individual ‘adālats is doubtless growing. In the year following the formation of the shari‘ah ‘adalat movement, these courts reportedly handled approximately 300 cases collectively; now, each of the largest courts claims to be receiving close to 200 approaches per year.
Unlike some recognised or semi-official sharī‘ah court systems in other countries, the BMMA’s sharī‘ah ‘adālats, like their male-led equivalents, receive no formal recognition from India’s judiciary.6 As non-state legal bodies, they have no official jurisdiction to make binding decisions and no capacity to implement them except through the voluntary compliance of their litigants. However, as I argue in this essay, these courts have in fact been able to craft their own forms of legal agency despite their lack of executive power, something that makes sense only when they are viewed within the context of the complex patchwork of legal and quasi-legal institutions that handle questions of so-called Muslim personal law (those relating to family matters such as marriage and divorce) in India.
India’s legal structure for adjudicating family laws comprises an intricate and pluralist web of multiple legal pathways, in which the Indian state shares jurisdiction with a variety of informal, quasi-legal bodies. Thus, while Muslim marriages, divorces and other transactions can be adjudicated by official judicial institutions such as the civil and family courts, in practice they are also handled by a spectrum of non-state, community-based organisations, including panchāyats(local or community councils), jamā‘ats (committees associated with mosques or other religious institutions), dār-al-qaẓās(sharī‘ah courts), sect-specific religious organisations and civil society groups, as well as individual muftīs and local imāms.7 Together, these multiple legal bodies share jurisdiction within a complex, murky legal structure, classically characterised by Marc Galanter as one that simultaneously provides ‘many rooms’ for dispensing justice.8
The origins of this pluralist infrastructure for managing family laws, as Galanter implies, may have roots in the cultural alienness of the formal courts for many Indians, for whom they can appear slow, expensive and immersed in impenetrable judicial vocabularies, hierarchies and procedures. Others have instead interpreted India’s legal pluralism as the product of an intentional ‘shared adjudication model’ for managing family laws, by which the state has delegated a degree of legal autonomy to community bodies as part of an unwritten contract of protecting the religious freedoms of its minorities.9 This elaborate model ensures that the workings of ‘law’ are sufficiently adaptable that they can find embodiments in the many cultural worlds of litigants. It also means that civil authorities, including lawyers and judges, are accustomed to accepting community-issued documents such as nikāḥ-nāmahs and ṭalāq-nāmahs (marriage and divorce certificates) as authoritative confirmations of marital status.
However, this same model simultaneously entrenches the power of informal and non-state legal systems, and ensures that the formal judiciary is absent from many everyday transactions of Muslim family law. As legal anthropologists have shown, perhaps a majority of Muslim marriages and divorces in India are enacted informally, without any civil registration or involvement by an official legal body.10 Several qāẓīs even told me that government personnel, from police to lawyers, sometimes try to ease their own workloads by telling Muslim women (inaccurately) that officials have no power to interfere in ‘your [Muslim personal] laws’, and use this pretext to convince women to redirect their requests for assistance, whether relating to divorce, custody or domestic violence, to their own community bodies or mosque committees.11 Even the formal legal systems, therefore, sometimes seem inclined to push Muslim women into informal channels of dispute resolution, leading these qāẓīs to speak of themselves as performing what should be “the work of the courts” (‘adālatōn kē kām) in offering legal assistance to vulnerable women.12
The female-led sharī‘ah ‘adālats are thus a recent addition to India’s non-state domain of Muslim legal and arbitration forums. They act as self-appointed counterweights to the patriarchal structures and so-called ‘pervasive paternalism’ common to all of India’s official and non-official legal arenas.13 In this essay, I offer an account of the emergence, work and aspirations of India’s female-led sharī‘ah court network. In particular, I focus upon these qāẓīs’ pursuit of so-called ‘gender justice’ (an English phrase that the qāẓīs recurrently insert into spoken Hindi), which they seek to achieve through the local and practical implementation of shar‘ī family lawstipulations that are more responsive to Muslim women’s concerns.14 To do this, they have effectively appropriated the sharī‘ah court, that most patriarchal, male-dominated institution of Islamic legal-social life, to exert women’s religious agency and to find Islamic solutions to the difficulties faced by their female petitioners.15
I also explore the sharī‘ah ‘adālat movement as a specific, local manifestation of a global discourse of Islamic feminism. The female qāẓīs in India are influenced by strategies familiar to us from the wider hermeneutics of modern Islamic feminist thought. Echoing the work of well-known Islamic feminist thinkers, they are reinterpreting the meaning of the Qur’an, seeking to recapture its central ethical message and to reject the later accretions of ḥadīth or fiqh to reconstruct a more egalitarian and compassionate body of Islamic family, marriage and divorce laws.16 Yet, the striking feature of the sharī‘ah ‘adālat movement is its attempt to implement these revised stipulations in everyday legal practice. The BMMA leadership, although well-versed in the main intellectual currents of Islamic feminism,17 is also conscious of the fundamental problem of the translatability of the Islamic feminist project: how might a hermeneutic exercise of reinterpreting the Qur’an and revising fiqh, conducted in an abstract and elite sphere of academic discourse, apply meaningfully to the normative realities of daily life?18 The movement argues that women’s collective ‘strategic needs’ for the structural acceptance of their equality and rights across society and politics must be addressed alongside the specific, everyday ‘practical needs’ of individual women, if they are to hold real value for the latter.19 The female-led sharī‘ah ‘adālats seek to fulfil this very function, by giving local meaning to global Islamic feminist revisionism and by implementing gender just shar‘ī laws in the lives of women in contemporary urban India.
I base this study on a range of sources, including internal documents and official releases from the BMMA, newspapers, discussions with women’s rights activists and professional clerics and, most importantly, interviews with five of the courts’ sitting qāẓīs, including the ‘head qāẓī’ of the three major ‘adālats in Mumbai, Dindigul and Jaipur.20 The next two sections of the article trace the background of the sharī‘ah ‘adālat movement, focusing on its origins in global Islamic discourses of juristic reform and in the local context of India’s non-state dispute resolution arenas respectively. The subsequent sections explore the judicial practice of these forums, including their ‘Islamic’ techniques of arbitration and mediation, and their engagements with a range of state and non-state strategies for pursuing justice for women.
Woman as Islamic Judge: Local Animations of a Global Debate in Islamic Feminism
Before turning to the urban locales in which these sharī‘ah courts operate, let us begin with a few observations on a global debate within Islamic feminism to which the BMMA makes reference: the contemporary rethinking of the question of the legitimacy of the female qaẓā (judgeship) in Islam. By normative expectation, the office of qāẓī has been an almost entirely male one in Islamic legal thought and practice. Support for the contention that only men may hold the Islamic judgeship is found in the Qur’anic principle of qiwāmah (as in 4:34, which stipulates male custodianship over women),21 historical precedent among and since the time of the Companions, and ḥādīths such as“those who appoint a woman over them will never prosper.” Linked stipulations, such as procedures relating to shahādah (witness testimony), which famously ask for two female witnesses in place of one male, seem to imply the lesser legal acumen and qualification of women. South Asian digests of Islamic law (furū‘) and fatwā compilations, medieval and modern alike, often make explicit or implicit assertions that a qāẓī must be a mature Muslim male.22
Historical hostility to the appointment of female religious judges, especially in South Asia, explains the censure that these sharī‘ah courts received upon their foundation. As Mumbai’s head female qāẓī recalls, local mullahs treated the female qāẓīs with disdain when they began their legal work, instructing that they should “sit at home and manage the house.”23 In Jaipur, a male qāẓī, Khalid Usmani, pronounced that “their interpretation of Islamic law is wrong and their becoming qāẓīs is an unusual thing. It does not fit into the social set up.”24 Members of the Jama‘at-i-Islami took to media claiming that, while there is no explicit restriction within Islamic law on female qāẓīs, women may be prone by their fundamental character (shakhṣ) to make erroneous decisions.25 Others have simply sought to deprive female qāẓīs of their claims to religious authority by referring to them as counsellors or social workers, rather than Islamic judges.
In much of the Islamic world, however, there has been a discernible push for the creation or expansion of a female judgeship.26 In recent decades, the governments of many Muslim countries have actively pursued the so-called feminisation of the state judiciary, with the aim of promoting the courts’ gender sensitivity through proactive measures to appoint women as local and higher court judges. In Tunisia, for example, there has been a determined push to recruit women into the court system, with the result that today most family law cases are now decided by female judges.27 Pakistan has seen a comparable increase of appointments of so-called ‘lady judges’ at multiple levels of the state judiciary in the last decade.28 In a range of other Muslim-majority states, legislators have proposed that the appointment of female judges to handle family disputes will better serve the legal needs of women and children.29 These state-led initiatives to open up judicial careers to women reflect the assumption that a female judge is more likely, by temperament and personal experience, to adjudicate with women’s needs in mind.30
More surprising, perhaps, is the integration of women as religious judges into officially recognised sharī‘ah judiciaries in several Muslim-majority countries, especially over the last decade. In Indonesia, the longest-standing example, women have served as judges in the state’s Islamic court (Pengadilan Agama) system since 1989, and the number of female judges has increased considerably since the mid-1990s. At present, female judges are regularly recruited to chair municipal and district sharī‘ah courts, where they decide cases that pertain overwhelmingly to family affairs.31 Similarly, in Malaysia, the council of the Syariah (sharī‘ah) Court system appointed its first two female judges, Rafidah Abdul Razak and Suraya Ramli, amidst much publicity in 2010.32 Even greater publicity accompanied the appointment in 2009 of Khouloud al-Faqih, said to be the Arab world’s first female sharī‘ah judge, to the sharī‘ah courtin Ramallah.33 Female religious judges also operate within non-state sharī‘ah councils in other countries, including Amra Bone, who adjudicates in the Shari‘aCouncil of Birmingham in the UK.34
This wave of appointments of female religious judges has renewed a debate on the legitimacy of the female judgeship in Islamic reformist and feminist thought. Despite the common assumption that the office of the qāẓī is reserved for men, classical jurists never reached consensus, offering opinions ranging from a complete prohibition of the judgeship to women, to a partial or full acceptance of women’s assumption of the office.35 India’s female qāẓīs state with conviction that one finds no explicit prohibition of female judges in the Qur’an or ḥadīth. Instead, they insist, the Qur’an regards women as possessing the same faculties of reason and sound judgement (‘aql, adālah) as men, which suggests that women hold the same qualifications of character and ability to act as judges.36 The ambiguity surrounding the issue enables India’s Muslim feminists to defend the appointment of female judges with conviction.
Supporters of the female judgeship in India and elsewhere have been able to call upon several further lines of justification. When asked why there are so few female qāẓīs in Islamic history, one contemporary qāẓī, Nasreen Metai, invokes a line of socio-historical argument. She argues that assumptions in some lines of classical Islamic thought about the lesser status of women as legal authorities, whether as witnesses or judges, are based not on their intellectual unfitness, but on their social confinement. A woman who is restricted to the home can scarcely act as a witness to events outside of it, or recognise faces or voices with complete reliability; by analogy, a woman confined to the home is unqualified to serve as a judge in public life.37 If the traditional relegation of women to private spaces is being eased in contemporary times, the argument follows, then so too should be the laws stipulating women’s ability to serve as witnesses, or to take on other legal responsibilities such as those of the judge
India’s female qāẓīs also argue that certain women did in fact serve as legal professionals from the time of the Companions onwards.38 While social constraints prevented most women from serving as judges, they argue, some did act as muftīs (jurists). They cite in particular the example set by the Prophet’s wife, A’isha, who is remembered in South Asia and elsewhere for her iftā’ (issuance of fatwās) to the Companions throughout the reigns of the first three caliphs.39 The qāẓīs portray A’isha as proof of Islam’s validation of women serving as legal professionals, and they present themselves as perpetuating her legacy of offering religious guidance to women. Indeed, they often quote her when called upon to justify their legal occupation:
We have kept our training and knowledge as close as possible to that of the Prophet’s wife. On one occasion, we were on a TV programme with a [male] muftī, who mocked us by asking whether we had the same level of knowledge as did A’isha. We responded by asking whether men today have the same level of wisdom as the Prophet.40
This invocation of A’isha by these contemporary female qāẓīs is an example of how a global debate among Muslim scholars concerning the legitimacy of the female judgeship is being manifested in a particular local setting. By assuming the office of qāẓī, the female qāẓīs are translating potentially remote Islamic feminist efforts to reconsider Islamic legal teachings and defend the validity of female legal agency judges into a more visible and practical reality, as expressed through their adjudications within individual Muslim women’s lives.
From Counsellors to Qāẓīs: Building the Sharī‘ah Court Movement
Let us turn now to the foundation of these courts, and specifically, their self-declared status as ‘Islamic’ dispute resolution institutions. Why do their leaders take on the contested title of qāẓī rather than the more consensual status of counsellor or social worker, and why did they choose to give these informal legal bodies the equally controversial moniker of ‘shari‘ah ‘adālats’? Moreover, how have these qāẓīs sought to authenticate their courts as legitimate Islamic legal institutions?
These questions are significant because most of these qāẓīs began their work in non-confessional māhilah mandals (women’s circles) or nyāya panchāyats (dispute resolution forums), working chiefly as counsellors and providing so-called ‘legal aid’.41 Khatun Shaikh, the indomitable head qāẓī in Mumbai and one of the main architects of the sharī‘ah ‘adālat movement, is one case in point. As she recounts, she has worked as a civil society activist for twenty-five years. Prior to founding Mumbai’s sharī‘ah ‘adālat, she worked for the city’s Mahila Shakti Mandal (‘Women’s Empowerment Committee’), a non-governmental organisation that provides legal advice and counselling to women in poor, chiefly Muslim neighbourhoods.42 Other prominent leaders of the sharī‘ah ‘adālat movement have a similar personal history. Nishaat Husain, head qāẓī of the sharī‘ah ‘adālat in Jaipur, worked from 1989 onwards in charitable provision and counselling services for women in northern Jaipur, especially those with absent or imprisoned husbands.43 Both of these qāẓīs identify the major Hindu-Muslim riots in their respective cities (Jaipur 1990, Mumbai 1992-3) as major turning points. The violence, they argue, increased deprivation and ghettoization in Muslim areas and made Muslims even more reluctant to approach government courts or civic institutions for help, thus increasing demand for alternative legal services, especially among women.
In all cases, the qāẓīs claim that their decision to transform their formerly ‘secular’ legal aid groups into Islamic sharī‘ah ‘adālats was a response to the fact that many of the issues that they were encountering fell into the domain of Muslim personal laws. Frequent meetings with female victims (whom the qāẓīs term ‘survivors’) of actions like triple-ṭalāq divorce, ḥalālah (see below),abandonment or mistreatment by husbands, together with pressure from husbands or in-laws to surrender their claims to mahr (bridal gift) or to pay their own dowry (lēn-dēn) were, and remain, among the issues that they encounter most regularly. “Once we joined the BMMA”, Nishaat recalls, “we decided that since so many problems were coming up for reasons of sharī‘ah, we should re-name our centre a sharī‘ah ‘adālat.”44 Thus, the conversion of local legal aid groups into ‘Islamic courts’ was largely a pragmatic decision, taken to allow these qāẓīs to prescribe solutions to problems of Muslim family law from within an identifiably Islamic institution.
This decision to present these forums as‘sharī‘ah ‘adālats’ rather than legal aid centres also reflects theirleaders’ identification of the roots of their clients’ difficulties. The qāẓīs insinuate that neither the state nor the official courts are the principle source of women’s problems. Rather, it is male clerics, such as local imams or preachers, and male-dominated community institutions such as mosque jamā‘ats, that perpetuate patriarchal conventions within their community settings and cause injustice to women. The female qāẓīs claim that these male religious leaders are often disinclined to reflect upon the legal needs of Muslim women. Male qāẓīs, they argue, can be corrupt and patronising; they fail to take proper consideration of women’s perspectives, and they demand female obedience to husbands. They are sometimes too quick to accept male declarations of divorce, including instant triple-ṭalāq (even when it is executed by telephone or What’sApp), and do not emphasise sufficiently the desirability of marital reconciliation or amicable divorce in preference to unilateral separation. Moreover, they often inherit titles like imām or qāẓī, but do not possess any proper training in Islamic family laws.45 Similarly, mosque jamā‘ats represent similar ‘structures of patriarchy’ that uphold local male interests and make important decisions affecting women’s lives inside mosque spaces that women are not even permitted to even enter.46 Thus, powerful community institutions, like male-led sharī‘ah courts and mosque committees, make the male clerical body rather than the formal judiciary the female qāẓīs’ real challenge and compel female Muslim activists to engage the sharī‘ah directly. In turn, these women have been compelled to adopt the persona of religious authority: as Nishaat puts it, “our word has more value as a qāẓī than as an activist.”47
In an effort to win community recognition for the sharī‘ah ‘adālats as legitimate ‘Islamic’ bodies, the BMMA has established a formal training programme for these qāẓīs. Called the Dar-ul-‘Uloom-i-Niswan, this is not a brick-and-mortar madrasa (school) as the name implies,but a training programme that takes place over a number of months and gives its graduates a stamp of qualification equivalent to a madrasa certificate.48 Its curriculum encapsulates the central tenets of the brand of Islamic feminism promoted by the BMMA. For instance, the language of delivering instruction in ‘Qur’anic law’, pointedly different from the ‘sharī‘at’, is an example of the BMMA’s argument that the ‘spirit’ of the Qur’an must be recovered in order to combat the aberrations that have crept into Islamic law through later ḥadīth and fiqh. In addition to echoing global Islamic feminist methodology, the training programme also draws on certain strands of liberal Islamic political thought. The curriculum’s promise to combine training in ‘Quranic law’ and ‘Constitutional Law’, for instance, indicates the influence of certain Indian Islamic thinkers such as Asghar Ali Engineer upon the BMMA.49 The programme therefore reflects the BMMA’s core principle that these two bodies of law promote fundamentally identical values of human dignity, equality and justice. As one of the first batch of trained qāẓīs put it, “Our training was in Islamic law and the Indian Constitution, and whether … they [both] give us equal status and equal rights. They are there in the ayats: not codified but still there. So we can take our rights from [both] the Qur’an and the Constitution.”50
Their self-designation as legitimate authorities within Islamic law distinguishes these sharī‘ah courts, and the wider project of the BMMA, from another set of civil society groups that also aspire to improve women’s (and especially Muslim women’s) legal rights. Well-known organisations established in an earlier generation of Muslim women’s activism, such as Awaz-i-Niswan (founded 1987), the Muslim Women’s Rights Network (1999) and the Muslim Women’s Forum (2000) have led public debates over protecting Muslim women’s rights for the last two decades, but they have mostly refrained from directly engaging the project of Islamic jurisprudence or the revision of sharī‘ah.51 Instead, they have focused upon state-facing strategies, like advocating piecemeal legislative reforms to Muslim personal law, and upon other societal initiatives, including sponsoring legal awareness campaigns and advice groups, and offering case-based guidance to court judges.52 The strategy of the sharī‘ah ‘adālats is quite different. Instead of taking an incremental approach focused on court handling of Islamic laws or legislative intervention, they have attempted to amend these laws from within the Islamic tradition by reigniting a ‘spirit’ of legal interpretation that looks to a central ethical message within the Qur’an.
This strategy of interpreting Islamic law directly is distinctive to the new wave of Muslim feminist activism embodied by the BMMA and its ‘adālats. Their change of approach illustrates a clear engagement with Islamic feminist hermeneutics and greater willingness to express opinions on the stipulations of the sharī‘ah, unlocking the Qur’an’s messages of women’s equality and amicable social relations, and recovering its central ethic from later elaborations of fiqh. This alternative strategy of Muslim feminist action has been prompted by a wider trend towards the democratisation of religious knowledge, which has empowered female religious voices to challenge the law from within. However, just as importantly, their change in strategy reflects their perspective that state-focused attempts to promote Muslim women’s rights in contemporary India have been inadequate to this challenge.53 Instead, the leaders of the sharī‘ah ‘adālats consider themselves to be fighting their cause in an informal legal world from which the state is often absent, which, in turn, means employing more explicitly the techniques of ‘legitimate’ Islamic dispute resolution.
Arbitration and Dispute Resolution in Everyday Sharī‘ah
How do these sharī‘ah ‘adālats operate in their own, local environments, and what procedures do they use? Let us consider a typical open session at one of these sharī‘ah ‘adālats (which are normally held several times a week), to see how these organisations function in their normative legal world. Held in a furniture-less, hot room, with all participants sitting on floor mats, the session is presided by the sitting qāẓī and two or three staff who serve as registrars and notetakers. A family from the outskirts of the city are in attendance: a married couple, accompanied by their young daughter, and the husband’s parents. The wife is furious with her despondent husband, whom she accuses of frequent absences, drunkenness and failure to provide adequate provision for her and their child. During prolonged, heated exchanges, the wife, husband and parents hurl accusations and denials at each other. Finally, the qāẓī and her staff draft a written agreement (iqrār-nāmah) outlining an agreed course of action, according to which the husband must correct his behaviour and his parents must monitor his doing so. The agreement is then signed and distributed to all parties present, and the family departs with, in theory, a strategy for resolution. A nominal fee is charged (although, I am told, qāẓīs waive this fee when it is beyond the means of their petitioners).
A few features of this fairly typical morning of work are particularly striking. One is the informality of these ‘court’ sessions. Unlike the procedural atmosphere of a formal courtroom setting, here doors remain open, participants walk in and out and interrupt each other, and a child crawls around the courtroom. There are no lawyers (although family members effectively take on this role by speaking for the main parties), and proceedings become so heated that the the qāẓī struggles to maintain order. Yet, these same conditions give these sessions an atmosphere of openness, approachability and lack of hierarchy, quite different from the stifling and bureaucratic atmosphere of the civil and family courts.54 Only in an environment such as this, we may infer, may the most vulnerable women be drawn out of their silence.
Whenever possible, the qāẓīs seek to resolve such family conflicts outside the structures of formal institutions, chiefly by facilitating dialogue rather than initiating litigation. As one qāẓī states, “we don’t go to the police or the courts much; we mostly work through counselling and by talking to both parties, and we keep records of whatever conversation and dialogue we hold with them.”55 Another qāẓī similarly claims that “we try to solve most cases just through counselling. Very few cases need to go out and get external support.”56 This approach, they add, means that in most of their matrimonial cases, the qāẓīs are employing the proper strategies for Islamic dispute resolution as sanctioned by the Qur’an: arbitration (taḥkīm) and mediation (waṣāṭah, ṣulḥ).57 These strategies are mentioned in the Qur’an in the context of repairing marital breakdown, and all qāẓīs stress that their fundamental goal is to facilitate the reconciliation of a struggling couple whenever it might be viable. The emphasis of Islamic law and hence of the sharī‘ah ‘adālats, they argue, is to re-establish good family relationships and to reduce family conflict rather than to exacerbate it (as, perhaps, the formal courts can sometimes do through their adversarial procedures).58
The qāẓī reminds me that these principles of mediation and arbitration have distinguished roots within the Islamic legal tradition.59 Indeed, academic scholars like Aida Othman have elaborated upon how dispute resolution strategies were applied by the Companions in the generations before the standardisation of a state-led judicial procedure (qaẓā’iyā) beginning in the Abbasid period.60 This may explain why these arbitration and mediation procedures have been appropriated widely by non-state Islamic dispute resolution bodies, including by more traditional, male-run sharī‘ah councils in India and in many Muslim minority societies.61 These methods carry legitimacy as dispute resolution mechanisms in Islamic legal practice, and they arguably represent the clearest means of executing shar‘ī decisions in societies in which Islamic law is not implemented by the official judicial system.
This contemporary shift of emphasis in Islamic legal thought from judgment (qaẓā) to mediation and arbitration may well open up expanded legal roles for female practitioners. While many fiqh texts prohibit women from acting as qāẓīs on the grounds that this would require them to administer executive punishments (ta‘zīr, ḥudūd, qiṣāṣ), which in turn would contradict principles such as qiwāmah,these same works stipulate that women may serve as mediators and arbitrators on non-penal matters.62 Thus, in contemporary India, where the qāẓī has no access to the penal system and functions chiefly as an inter-personal negotiator, there can be no constraint within sharī‘ah on women taking up such roles.
This emphasis on arbitration and conciliation has exposed these sharī‘ah ‘adālats to some criticism. Detractors of these courts, including more secular-leaning women’s rights NGOs, warn that their emphasis on non-state dispute resolution channels may, like the more traditional male-led sharī‘ah ‘adālats, work against the best interests of vulnerable wives. For instance, Flavia Agnes, activist and leader of the Mumbai-based women’s rights NGO Majlis, has argued strongly that facilitating women’s access to formal judicial institutions like the civil and family courts represents the best strategy for protecting the rights of Muslim women. Indian legislators and judges, she argues, have proven adept at finding incremental ways to protect women from the potential consequences of Muslim personal law, through both legislative intervention and case precedent.63 By contrast, non-state forums such as the sharī‘ah ‘adālats, which she characterises as little more than “counselling centres” or “NGO[s] devoid of any power or authority to enforce orders”, risk guiding women on an uncertain path deeper into informal legal spaces. The danger of such bodies, she argues, is that they may unwittingly perpetuate women’s ignorance of their formal legal rights, prolong “the denial of crucial rights to the concerned woman”, and further entrap women within the same community-level structures that have caused their difficulties.64
In response to Agnes’ claim that these sharī‘ah courts are powerless, however, we might argue that the unofficial status of these courts gives them far more real legal power than they might otherwise enjoy as official bodies. They are situated at a healthy distance from India’s state judiciary, which is often perceived as alien and impenetrable by marginalised Muslim communities. Moreover, and most importantly, India’s model of shared adjudication of family laws between state and non-state forums means that community-level arbitrators can execute matrimonial or divorce transactions that are to all intents and purposes recognised at both community and official levels, so long as they have the consent of all parties.
For instance, all qāẓīs report that they negotiate divorces cases and, they explain, when their petitioners agree to their role in mediation, any courses of action that they recommend or written agreements that they issue will be acknowledged as authoritative decisions. Some of the qāẓīs report having facilitated the negotiation of khula‘ divorce, which entails persuading a husband to agree to separation at the will of the wife in exchange for the return of her mahr.65 Khula‘ in most contemporary Muslim societies is now adjudicated by official bodies, such as government courts or certified registrars or arbitrators.66 In India, however, while family courts can officiate khula‘ procedures, women’s sharī‘ah ‘adālats and other community forums often also help to elicit consensual, authoritative khula‘s without calling upon any state legal institution for certification. Within the domain of community-led law, therefore, these qāẓīs have found ways to exert agency in brokering marriage and divorce arrangements, despite holding no executive appointment to do so.
Even more interestingly, some qāẓīs report that they have successfully facilitated Islamic divorce by mutual consent (known as mubārāh).67 This procedure, they argue, is their preferred form of divorce, for it does not require the woman to rescind her mahr, and it gives a qāẓī more flexibility to negotiate an agreement that is “fair for both people.”68 In practice, this form of Islamic divorce is often overlooked by the civil courts and by the male-led sharī‘ah ‘adālats: first, because it is based on agreement and thus does not require the officiation of a legal agent, and second, because there is no explicit reference to it in the Qur’an.69 By overseeing divorce by mutual consent, therefore, the female qāẓīs’ are doing more than merely taking charge of established procedures of divorce. Rather, as one BMMA leader put it, they are “slowly but surely remaking [the] norms” being adhered to within the adjudication of Muslim family laws, exercising forms of divorce that better protect the principles of negotiation enjoined by the sharī‘ah.70
Towards Gender-Just Muslim Marriages and Divorces
While the female qāẓīs readily apply strategies of arbitration and mediation in cases in which channels of communication between petitioners remain open or when marital reconciliation seems achievable, how do the qāẓīs respond in situations in which such relations have broken down entirely? How do the qāẓīs attempt to protect women from mistreatments that they may suffer within the framework of Muslim family law?
Various legal practices that the qāẓīs regard as deviations from Qur’anic instruction persist in India under the personal law system. All the qāẓīs I spoke to, for instance, reported frequent meetings with women whose husbands had issued unilateral, immediate divorce (the notorious ‘triple ṭalāq’, or ṭalāq-i-bid‘ah, which was legally proscribed by the Supreme Court only in 2017). Some also report being visited by victims of ḥalālah (taḥlīl), a controversial marital practice that requires an ex-wife to enter into an intermediate marriage with a third party that must be consummated and then terminated before she may remarry her former husband.71 One qāẓī recalls a case in Rajasthan in which a husband recited the triple ṭalāq while intoxicated, without his wife being present or even aware of the divorce. Subsequently, in an elaborate conspiracy, he drugged her and arranged for another man to marry, rape and divorce her, so that he might re-marry her. Controversial matrimonial practices such as these, long restricted or outlawed in most Muslim societies, have continued to occur in India, finding space in the shadowy and unregulated world of community-level Muslim personal laws.72
The female qāẓīs see their engagement with Islamic laws as the way to bring practices such as these to an end, and to develop a prototype for a wider, gender-just sharī‘ah. In this section, I discuss how these sharī‘ah ‘adālats apply a range of formal and informal strategies to seek solutions to an array of matrimonial problems. Since the tribulations experienced by women, and their possible solutions, are so diverse, the qāẓīs serve as legal brokers who direct their petitioners through a combination of official and non-official channels. As one qāẓī put it, “there are different windows for different situations”, and the qāẓī’s key function is to identify the optimal pathway forward.73
Formal channels sometimes offer the best mechanisms for seeking justice, certainly for issues that are subject to clear criminal and civil legislation. For instance, all the qāẓīs with whom I spoke claimed that one of the issues that they encounter most frequently is domestic violence, a criminal offence that falls under the Protection of Women from Domestic Violence Act of 2005. In these cases, the qāẓīs usually direct abused women to file a report (known as an FIR: First Information Report) with the police. For some other matters, the qāẓīs may offer guidance to women on navigating the procedures of the official civil and family courts, for instance, when applying for a divorce or filing a case against a former husband who is failing to provide post-divorce maintenance payments or child custody entitlements.
Frequently, however, the path towards resolution is more complex, and in these cases, the qāẓīs must turn away from the state and fall back on their own strategic manoeuvres. Indeed, some female qāẓīs speak with pride about the cunning devices that they have identified for solving specific problems, in line with the judicial acumen traditionally required by the qāẓī.74 Sometimes, these strategies involve adopting somewhat controversial tactics located on the boundaries of lawfulness to seek solutions to women’s troubles.
One example is the procedure used by some qāẓīs when helping a woman who plans to initiate divorce proceedings through a civil or family court. Typically, a woman who adopts this course of action rescinds her post-divorce entitlements to spousal maintenance, and is often immediately ejected from the marital residence, even before reclaiming her personal possessions. So, as one qāẓī reports, whenever she is approached by a wife who wants a divorce, she encourages the woman to first return home to retrieve her belongings, before informing her husband of her decision to seek divorce. If the husband suspects that she intends to leave him, the qāẓī advises her to lie to him, in order to re-establish access to her home, and to pack her bags before filing divorce proceedings. In cases in which a husband or in-laws are hostile, the sharī‘ah ‘adālat sends representatives with the wife to help her gain access to the marital residence. Once her possessions have been safely retrieved, the sharī‘ah ‘adālat can assist the woman in filing the request.75
Other tactics that have been used by qāẓīs are even more audacious. One qāẓī narrates a case of a woman who was subjected to violence from her husband. First, she went to her local police station, but the officers dismissed her, telling her that she should take the issue to her local mosque leaders. When the woman approached the sharī‘ah ‘adālat, the qāẓī shrewdly advised her to douse herself in kerosene and return to the police station with a false threat of self-immolation. Once she did this, the police were suddenly willing to file her report.
Female qāẓīs have adopted similarly fearless strategies to address other issues, such as one instance in which a qāẓī acted to prevent the occurrence of ḥalālah. A couple who had divorced but wished to remarry had met with a local male muftī,who instructed them to perform ḥalālah. Wishing to avoid this, the couple approached the women’s sharī‘ah ‘adālat for advice. The female qāẓī sought out the muftī in question to challenge him, but he denied having made such a recommendation. In response, the sharī‘ah ‘adālat organised a sting operation, sending a volunteer to the muftī’s office in the guise of an ex-wife seeking remarriage to an ex-husband. Not only did the muftī advise the woman that ḥalālah is obligatory, but he even offered to find ‘a man’ who would perform this service for a fee of 2500 rupees. Unknown to the muftī, the conversation was recorded, and the recording was handed to several news outlets, which subsequently published the story.76
The sharī‘ah ‘adālats are also developing longer term strategies for avoiding such abuses in Muslim matrimonial practice. A key example is their emphasising of the nikāḥ-nāmah: the marriage contract. Like the BMMA and many other Muslim feminist groups, the female qāẓīs argue that the nikāḥ-nāmah is a religiously prescribed mechanism for stipulating and protecting marital rights.77 Yet, they argue, its importance is often neglected. As one qāẓī put it, local male clerics often do not take the nikāḥ-nāmah seriously or offer any instruction as to its content, but rather they just “come along, perform the nikāḥ [ceremony], leave, and take no responsibility for what happens afterwards.”78 Proper contracts, the qāẓīs argue, should include detailed stipulations of each partner’s obligations and rights, which may include the husband’s responsibility to treat his wife considerately, pay the mahr upfront, provide a viable living allowance, or refrain from taking a second wife. All qāẓīs with whom I spoke claimed that they had helped couples to identify or to draft nikāḥ-nāmahs that affirm, in writing, the rights of both parties.
Moreover, by means of a stipulation in the nikāḥ-nāmah,it is possible for a husband to ‘delegate’ the right of divorce to his wife (known as ṭalāq-i-tafwīẓ) in case of his infringement of the conditions in the marriage contract, thus expanding the grounds on which a woman may petition for divorce. Curiously, the inclusion of ṭalāq-i-tafwīẓ stipulations in marriage contracts was advocated byseveral Deobandi muftīs beginning in the late 1920s, as a means of facilitating a woman’s lawful separation from a callous husband.79 Thus, while female qāẓīs blame male religious leaders such as these for the everyday difficulties faced by Muslim women, they themselves have adopted a comparable mechanism for protecting women from perilous marriages, albeit in a much expanded form.
Of course, to enact more equitable shar‘ī marriage practices,the qāẓīs must work with the existing structures of Islamic clerical leadership in specific localities. Since many Muslim communities are sceptical about the legitimacy of a female Muslim judge, these qāẓīs must sometimes refer their clients to male clerics who are recognised as authorities in their communities, rather than attempting to direct solutions themselves. In Mumbai, female qāẓīs say that they are able to work with ten to twelve local male imāmsand maulvīs who they know to be sympathetic to their cause and who are more sensitive to women’s needs in marital or divorce-related cases.80 In Jaipur, the sharī‘ah ‘adālat works with ‘one or two’ local muftīs and imāms.81 The fact that female qāẓīs call upon assistance from male religious authorities points to their recognition of the fact that, within conservative local communities, a vulnerable woman is likely to need the sanction of a recognised male facilitator, rather than the more controversial option of a female judge, if a legal decision is to be accepted among her kith and kin.
This latter point illustrates one of the major limitations of these sharī‘ah ‘adālats. As most marital and divorce-related issues are handled at community level, female qāẓīs realistically need acceptance not just from individual petitioners, but from their wider community networks, if their decisions are to be upheld. Some qāẓīs point out that some women are dissuaded from attending the sharī‘ah ‘adālats because they doubt that their relatives will recognise any resolutions recommended by these courts.
An example of the limitation on a female qāẓī’s social authority is the question of her certification of Muslim marriage. Traditionally, only men officiate at nikāḥ signings and, in practice, the ceremony is often conducted by a male qāẓī. Nevertheless, all the BMMA’s female qāẓīs have received training in officiating nikāḥs,and some claim to have performed one on a handful of occasions. The reason that they are not invited to solemnise marriages more often, one qāẓī explains, is that couples fear that their families will not accept a nikāḥ contract certified by a woman, rendering any such marriage meaningless within their local community. The hope, the qāẓī suggests, is that there will be a gradual change in public perception. Women who have been helped by a sharī‘ah ‘adālat in the past, she tells me, have pledged to her that they will seek a female officiant for their marriage if they remarry, or for the future marriages of their children.82 It may, she suggests, take one or more generations for female Islamic judges to be commonly accepted, but when they are, female qāẓīs will take on the full spectrum of legal and social roles previously reserved for their male counterparts.
Evaluating Female Qāẓī-Justice
In this essay, I have argued that India’s all-female sharī‘ah ‘adālat movement, which has achieved considerable visibility and influence, represents a fresh, bold strategy for protecting Muslim women’s rights, and for furthering the local reach of the central stipulations of Islamic feminism in contemporary India. The movement has developed notions of women’s dignity and equality based in the language of Qur’anic principles and sharī‘ah values and, even more significantly, has co-opted the sharī‘ah ‘adālat as a vehicle by which these values might be embodied in normative legal practice. Moreover, the movement is significant for its identification of the informal world of alternative dispute resolution bodies, rather than the official judicial system, as the natural space in which to pursue this goal most immediately. These characteristics of the sharī‘ah ‘adālat movement reflect, and advance, wider tendencies in contemporary Muslim gender activism in India, including a movement away from public-facing, state-centred and policy-focused discourse, towards more ground-level, culturally sympathetic and arbitration-oriented efforts at protecting Muslim women.
I have hinted at several explanations for the swift expansion of the sharī‘ah ‘adālat movement. These courts seem to have several advantages in delivering justice to Muslim women that official judicial institutions do not. Compared to the civil and family courts, the sharī‘ah ‘adālats are accessible, approachable, inexpensive and speedy.83 They represent what the qāẓīs term a “mobile justice”: qāẓīs are bound to neither a specific place nor to one set of laws.84 Moreover, the female qāẓīs themselves serve as inspirational personal models. These women are usually from humble backgrounds, and many of them have themselves fled bad marriages or domestic violence; their ascent to the status of religious authority thus provides a model of personal as well as community empowerment.85 Just as some modern trajectories of Islamic feminism rely upon the circulation of ‘life stories’ of women who embody their cause, the ‘courage’ (ḥimmat), ‘enthusiasm’ (umang) and ‘passion’ (jizbah) of these qāẓīs can inspire those who interact with them.86
However, the sharī‘ah ‘adālats face numerous functional challenges. They remain under-resourced, lack systematic administrative organisation, and are sometimes misrepresented in public by their many critics.87 The cloud that hangs over the Islamic legitimacy of a female judgeship impairs the consensual acceptance of women’s sharī‘ah ‘adālats within Muslim communities inside and outside the courts’ own cities. Some community leaders accuse these courts of attempting to impose social changes upon Muslim families that may imperil community integrity, especially in the contemporary political climate, which is often perceived as being potentially hazardous for the Muslim minority. Indeed, the fact that the bulk of cases handled by the sharī‘ah ‘adālats deal with marital breakdowns has exposed the qāẓīs to allegations of being ‘home wreckers’ or ‘divorce lovers’ (ghar tōrnē-walī/ ṭalāq dilnē-walī ‘aūratēn), an accusation that the qāẓīs, who claim to emphasise marital dialogue and reconciliation whenever viable, treat with disdain.88 Perhaps most importantly, the sharī‘ah ‘adālats’ lack of executive power is a major weakness. All qāẓīs acknowledge that, on account of the non-binding nature of their decisions, cases can sit on the books unresolved, or can be shuttled back and forth between different legal forums. Since their decisions rely upon sustained consent, some qāẓīs estimate that perhaps only half of their cases reach any final resolution.
Be that as it may, the non-official status of these sharī‘ah ‘adālats may actually give them greater legal agency than they would have possessed as official legal bodies, for several reasons. First, under India’s personal law system, in which Muslim marriages and divorces are frequently adjudicated outside of court, female qāẓīs can execute marriages and divorce settlements that are recognised by their holders whenever they can command approval at the community level. Their officiation of nikāḥs and their negotiation of mubārāh and khula‘ divorce proceedings are examples of matrimonial services that they can perform with authority. Second, since India (in contrast to many Muslim-majority countries) does not have any ‘official’ hierarchy of religious scholars or advisors with the power to make decisions about Islamic family law, these qāẓīs have been able to present themselves to litigants as authentic ‘Islamic’ voices, which would be more difficult for women in a legal system with a recognised Islamic judiciary. While the legal authority of female qāẓīs is often contested, especially on gender grounds, they have operated in a free legal marketplace within which their claims are clearly compelling for many clients. Third, the qāẓīs’ autonomy from the judiciary gives them the ability to choose between a series of both state- and non-state-centred strategies in support of individual women. They show considerable adaptability and mobility in steering their petitioners towards a range of alternative official and community-based legal bodies depending on the circumstances. And fourth, their non-official status means that they can claim autonomy from the formal legal system, which is frequently accused of being patriarchal in its mindset and structures.
As even some of the female qāẓīs acknowledge, the considerable community power that they have acquired within India’s informal legal spaces places them in a paradoxical position. The leaders of the sharī‘ah court movement insinuate that the injustices faced by Muslim women are caused by the lack of formal regulation or codification of Muslim family law in India, which allows community organisations to impose patriarchal interpretations and to adjudicate without constraint.89 However, to address injustices experienced by Muslim women within their community networks, the qāẓīs must operate within the same, informal legal domain that they see as being ultimately responsible for these injustices. They lament that family law issues are often adjudicated outside of the official legal system, but they themselves adjudicate through means similar to those that they disparage, thereby perhaps confirming this informal and non-state domain as the natural territory of dispute resolution.
Yet, this paradox cuts two ways. Viewed more generously, these female qāẓīs have successfully appropriated the pillars of Islamic life that they blame for empowering a patriarchal clerical leadership, namely the figure of the qāẓī and the institution of the sharī‘ah court, and have adapted these prototypes to build a separate, all-female vehicle for advancing Muslim women’s rights. Thus, the sharī‘ah ‘adālat movement in contemporary India represents a particularly creative example of Islamic feminism’s search to find ways of translating its wider, strategic agenda into new practical, everyday realities. It also reveals how the campaign to uphold justice for Muslim women in India is developing fresh manifestations, both by developing new, adjudication-based methods of implementing a more equitable sharī‘ah, and by pushing ever deeper beyond the formal judiciary into India’s legal shadows.
This essay is based on research and interviews conducted in Mumbai, Jaipur, Delhi and Patna in 2017-18. All vernacular terms here have been transliterated, but proper nouns have been left in their typical Roman spelling. The author is grateful to all his respondents, and to other members of the Bharatiya Mahila Muslim Andolan who assisted him with arrangements and procuring documents, especially Zakia Soman, Noorjehan Safia Niaz, Mariya Salim and Shahnaaz Khan. Funding for this research was provided by the Arts and Humanities Research Council. The author also thank the journal editors and anonymous reviewers for their advice.