LICITNESS OF SHARIA COURTS OR DAR-UL-QAZA IN A SECULAR SYSTEM

This essay examines the licitness or legality of a Sharia court or Darul Qaza in a
country like India where a civil justice system exists and has a secular governance
system. The AIMPLB (All India Muslim Personal Law Board) on July 8, 2018,
proposed to set up Sharia Courts or Darul Qaza across India which was slammed
by the Union Mister of State for Law and Justice and held the debate to be
superfluous, such establishment to be unconstitutional and denied the authority
to set up such courts.1 This proposal of AIMPLB sparked a row of debate across
the country, challenging the establishment of a sharia court in India and having a
parallel justice system which is against the constitution. Amidst the debates and
protest against sharia courts, the AIMPBL in a meeting on July 15, 2018, approved
the plan to establish 5 sharia courts across the country.2
This essay analyzes the nature of Sharia courts, the manner they work
under different jurisdictions and the consequences of giving recognizing orders of
sharia courts like religious courts as decrees of the state’s civil courts. It also
delves into the procedure followed by Sharia courts in deciding matters before
them and whether the presence of Sharia courts are a threat to the secular fabric
of a system. This essay also examines the need of a Sharia court and the effect of
censuring them.
Sharia courts, popularly known as Darul Qaza is an Arabic term. ‘Dar’ in the
Arabic language means ‘house’ and ‘Qaza’ denote a binding final decision or
decree. Darul Qazas thus means a decision-making house (or court) and qazi the
decision- maker (or judge).3 Over the course of Muslim history, Darul Qazas had
adjudicated civil and criminal cases and had the power to pass ex parte orders
against parties that do not appear before him. It was only after 1817, the decision
of qazi and mufti lost their binding nature when the Britishers delegitimized it by
a resolution4. However, under the Khilafat movement, Maulana Abul Mahasin
Sajjad founded Imarat-e-Sharia in Bihar in 1921 and organized Nizam-e-Qaza in
private5. Since then it is being operated as a private entity in India with no
1. https://www.ndtv.com/india-news/sharia-courts-aimplb-all-india-muslim-personal-law-board-
approves-setting-up-5-sharia-courts-1883759
2. https://www.financialexpress.com/india-news/sharia-courts-unconstitutional-aimplb-has-no-power-
to-set-up-courts-union-minister-pp-choudhary/1237352/3. Edward William Lanes, Arabic-English
Lexicon (London: Willams & Norgate 1863)
4. Rudolph Peters, Crime and Punishment in Islamic Law, pp. 109-119
5. Barbara D. Metcalfs, Islam in South Asia in Practice, pp. 254
sanction or recognition under the law even after Independence and similar Gaza
was established in Jharkhand, Orissa and Kolkata. Presently, 60 Darul Qaza has
been established and is being controlled by AIMPL6. Although it is claimed that
Darul Qaza performs the function of extrajudicial dispute resolution centres, they
are always lambasted by the critics for being a parallel justice system which is
unconstitutional and ought to be discontinued. Darul Qaza's authority and
functioning in the presence of civil courts are controversial not only in India but
also in the UK where such courts are subjected to similar disagreements.
In the UK, Darul Qaza runs by the name of Sharia Council and not by the
name of Sharia courts which is often attributed to it by its critics. The Union of
Muslim Organisations for UK and Ireland was the first to raise a demand for
introduction of Islamic law into the domestic legal structure for British Muslims by
presentation of a petition to the parliament in the year 1975, since then Sharia
councils have been operating unofficially in UK.7 According to an independent
review initiated in 2016 by Theresa May (the then Home Secretary of UK) to study
the application of Sharia Law in England and Wales, there is no exact number of
Sharia councils operating in England and Wales but estimated the figure of
around 30-85 councils and 10 online-based services are operational since 1980s.8
These Sharia councils act as a dispute resolution centres by providing the facility
of arbitration and mediation especially in the matter of divorces. The report's
findings suggested that they are not courts but councils (also claimed by the
controllers of Sharia councils), since they have no jurisdiction in the United
Kingdom in any form whatsoever and must be referred to as councils or panels or
boards or any other related term, but not the court. They have no legal status and
no legally binding authority under civil law. The Sharia councils are used by a
significant population of Muslims in the UK especially for seeking assistance in
Talaq or Khula (forms of divorce under Muhammadan Law) because their

6. All List of Darul Quaza Established by AIMPLB. http://aimplboard.in/darul-qazah_All.php

7. Jørgen S. Nielsen, Muslims in Western Europe (1992). p. 109
8. The independent review into the application of sharia law in England and Wales, Presented to
Parliament by the Secretary of State for the Home Department on February 2018.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/67
8473/6.4152_HO_CPFG_Report_into_Sharia_Law_in_the_UK_PRINT.pdf
marriage is not civilly registered and thus no relief from civil courts could be
granted.
 The Sharia councils in the UK are often accused of being discriminatory
towards the women and demands have been raised timely to regulate the
manner of their working. The Sharia law review initiated by Theresa May also
emphasized the need to establish a regulatory body over these councils but was
outrightly rejected by Home Office stating that establishing a regulatory body
over these council will legitimize these councils which have no jurisdiction and
legal recognition in the UK.9 Although the government in the UK has been
reluctant to recognize Sharia councils and give them legal status, they have also
not regarded these councils as unconstitutional and illegal and the decision
pronounced by these councils are recognized as that of an extrajudicial dispute
resolution centre whose decision is not binding and not legally enforceable. They
have made their stand clear to maintain the status quo and see Sharia council as
another religious council whose consultation is not prohibited under any existing
law and is not illegal unless contrary to the national law.10 However the situation
in the UK seems to be changing with the landmark Judgment delivered by a High
Court Judge Mr Justice William, where he recognized a marriage which was not
registered under civil law but conducted by a ceremony called Nikah (Marriage is
Islam), thus giving recognition to Sharia law for the first time in the country.11 It is
settled now that the Sharia councils are not any shadow legal system or a parallel
legal system operating in clandestine, away from the eyes of the law in the UK. It
is just another religious council like Jewish Beth Din and Roman Catholic Tribunals
which plays an important part by providing a platform of ADR mechanism for the
resolution of the dispute in relation to Family law12. But the question on the
consequences of giving Sharia courts like religious courts legal recognition under a

9. UK rejects proposals to regulate sharia councils. https://www.thenational.ae/world/europe/uk-

rejects-proposals-to-regulate-sharia-councils-1.701243
10. Government Response on petition to close Sharia council in UK
https://petition.parliament.uk/archived/petitions/160883
11. British court recognises sharia law in landmark divorce case
https://www.telegraph.co.uk/news/2018/08/01/british-court-recognises-sharia-law-landmark-divorce-
case/
12. Machteld Eveline Zee, Choosing Sharia? Multiculturalism, Islamic Fundamentalism and British Sharia
Councils. pp. 219-224
See also, The independent review into the application of sharia law in England and Wales (2018) pp. 24-
25
secular legal system and their orders the status of decrees of the state’s civil
courts still remains.
Religious courts are usually seen as a menace to the secular judicial system
but and legalization of such courts is a matter of debate in most of the countries
with secular laws. Co-existence of secular courts and religious courts without any
clash is hard to imagine. In Israel, there is a unique setup of legal pluralism in the
judicial system which consists of both secular and religious courts.13 Israel
maintains a system of Jewish, Muslim, Druze and Christian religious courts. These
courts have jurisdiction over cases such as marital problems, conversion and
appointment to positions of religious leadership.14 But even this legal pluralism of
having both secular and religious courts with defined jurisdiction doesn’t seem to
answer the question of operation of religious courts under the secular system.
There have been several instances in Israel where there has been a clash between
its secular court and religious courts. The case of Yemini v Great Rabbinical Court
15
is one of the several instances where there was a head-on collision between the
two judicial authorities. It was a divorce case in which the wife applied for an
equitable division of the marital property in accordance with the Spouses
(Property Relations) Law of 1973 of Israel. The precedent16 of the Supreme Court
of Israel mandates the application of the provisions of the Women’s Equal Rights
Law 1951 by their religious courts in adjudicating matters before them and follow
the principle of community property17, which was absent under Jewish law.
However, the Rabbinical court in a conference declared that they will continue
denying the directions of the Supreme Court and follow Jewish law strictly. In
Yemini case, the Great Rabbinical court circumvented the application of
community property but the Supreme Court refused to acquiesce, made a judicial
review into the matter and overturned the rulings of the Great Rabbinical court.
This case brings into the picture the aftermath of giving recognition to the
religious courts as a recognized court and thus the outcome of the judicial setup
13. Judiciary: The Court System. https://mfa.gov.il/mfa/aboutisrael/state/pages/the%20state-
%20judiciary-%20the%20court%20system.aspx
14. Ellie Fisher, The Role of the Rabbinical Courts Law (Marriage and Divorce) 5713-1953 in the Creation
of Israeli Citizenry.
See also, https://www.justice.gov.il/En/Units/ShariaCourts/Pages/default.aspx
15. HCJ 9734/03 Yemini v. Great Rabbinical Court (publication forthcoming).
16. 3 HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court 12 PD 1528
17. HCJ 1000/92 Bavli v. Great Rabbinical Court, 48(2) PD 221
in Israel repudiate the idea of giving legal recognition to religious courts as proper
court in the presence of secular courts and their decree the status of decree
passed by the of the state’s civil courts.

13. Judiciary: The Court System. https://mfa.gov.il/mfa/aboutisrael/state/pages/the%20state-

%20judiciary-%20the%20court%20system.aspx
14. Ellie Fisher, The Role of the Rabbinical Courts Law (Marriage and Divorce) 5713-1953 in the Creation
of Israeli Citizenry.
See also, https://www.justice.gov.il/En/Units/ShariaCourts/Pages/default.aspx
15. HCJ 9734/03 Yemini v. Great Rabbinical Court (publication forthcoming).
16. 3 HCJ 202/57 Sidis v. President and Members of the Great Rabbinical Court 12 PD 1528
17. HCJ 1000/92 Bavli v. Great Rabbinical Court, 48(2) PD 221
 The status of Sharia courts or Darul Qaza in India is quite similar to that of
UK. The Supreme Court of India in Vishnu Lochan Madan18 case held that Darul
Qaza is not court as the Indian judicial system doesn’t recognize any parallel legal
system but also held that this does not mean that existence of Dar-ul-Qaza or the
practice of issuing fatwas is themselves illegal. The petitioner, in this case, sought
to achieve a ban on Darul Qaza throughout India but the court neither accepted
his prayer nor passed any directions to impose a ban on Darul Qaza. The apex
court instead said that Darul Qaaza is an informal justice delivery system with an
objective of bringing about an amicable settlement between the parties and it is
in the discretion of the interested parties to accept, ignore or reject it. The Darul
Qaza provides a quick and cost-efficient method to resolve disputes related to
personal laws and it has been found that Darul Qaza combines the principles of
Islamic Jurisprudence with progressive state laws and judgements in settling
matters before them and delivering justice.19 The ADR mechanism of Islamic
jurisprudence provide 7 methods to resolve dispute namely – Private settlement
(ṣulḥ), Settlement by an appointed judge (qaḍā), Arbitration (taḥkīm), Med-Arb
(A combination of sulh and tahkīm), Ombudsman (Muhtasib), Informal Justice or
Chancellor (Walī al-Mazālim) and Expert Determination or non-binding evaluative
assessment (Fatāwā of Muftīs).20 Darul Qaza uses the ADR mechanism of Islamic
Jurisprudence in consonance with the state laws and judgments but their decree
is not enforceable in any court throughout India and can be struck down for non
conforming with the state laws.
Darul Qaza has no authority to decide criminal cases and their subject
matter is limited to personal laws. The forum is mostly approached by women for
Talaq or Khula or maintenance and by men for restitution of conjugal rights but
the number of cases brought by women is far greater than that to men.21 Darul
Qaza complements the formal judicial system of India by playing a major role in
dissolving the disputes of such a large Muslim population in the country.
18. (2014) 7 SCC 707
19. Gopika Solanki: Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and
Gender Equality in India Cambridge University Press, 2011, 400 pp
20. Syed Khalid Rashid, “Alternative Dispute Resolution in the Context of Islamic Law”. The Vindobona
Journal of International Commercial Law and Arbitration, (2004) 7 VJ (1), 95 – 118 at 95
21. Anindita Chakrabarti, Judicial Reform vs Adjudication of Personal Law
See also, Sylvia Vatuk’s Marriage and its Discontents: Women, Islam and the Law in India;
Bittoo Rani, Sharia Courts as Informal Justice Institution in India
There is a greater need for institutions like Darul Qaza in a country like India
where there is a huge crisis of judges (judge-population ratio is 10 to 1 million)22
and a pile of pending cases (approx 3.3 crores)23 but at the same time proper
regulatory mechanism is required to ensure no injustice is being done to any
women and it is in conformity to the state laws.
Thus it clear that Sharia courts often referred to as Darul Qaza or Sharia
council or panel or other related terms has melded itself into the secular fabric in
most of the jurisdictions secular setup around the world and provides a platform
for redressal of dispute which is quick and cost-efficient. It is, though not legally
recognized in most of the jurisdiction with secular laws, but an accepted forum
for dispute redressal in the matter concerning personal laws. Arguments are
raised to close or ban Sharia courts for being discriminatory to the women but
this may not be the solution to the problem. There is clear evidence which on how
they support the formal judicial setup by providing an ADR platform for dispute
redressal and there is a great community acceptance for these courts as they help
to suffice the religious conscience of a person. Censoring these courts would force
them underground and it will then be more difficult to ensure no injustice is being
done in these courts. What is needed is to identify their existence and
importance, provide for a regulatory setup over these courts and allow them to
function as an extrajudicial dispute redressal platform and not as a recognized
court.

22. Vacancies in lower courts at all-time high

https://timesofindia.indiatimes.com/india/vacancies-in-lower-courts-at-all-time-
high/articleshow/62320296.cms
See also, The Problem of Pending Cases in Indian Courts: How to tackle?
https://www.clearias.com/pending-cases-in-indian-courts/
23. 3.3 crore cases pending in Indian courts, pendency figure at its highest: CJI Dipak Misra
https://www.businesstoday.in/current/economy-politics/3-3-crore-cases-pending-indian-courts-
pendency-figure-highest-cji-dipak-misra/story/279664.html
22. Vacancies in lower courts at all-time high
https://timesofindia.indiatimes.com/india/vacancies-in-lower-courts-at-all-time-
high/articleshow/62320296.cms
See also, The Problem of Pending Cases in Indian Courts: How to tackle?
https://www.clearias.com/pending-cases-in-indian-courts/
23. 3.3 crore cases pending in Indian courts, pendency figure at its highest: CJI Dipak Misra
https://www.businesstoday.in/current/economy-politics/3-3-crore-cases-pending-indian-courts-
pendency-figure-highest-cji-dipak-misra/story/279664.html