By Sheikh Khurshid Alam for TwoCircles.net
There is paucity of research on the possibility of the appointment of Muslim women to the office of Muslim Marriage Registrar (MMR) and Qazi. Generally in India and particularly in West Bengal the word ‘Qazi’ has become a misnomer. During my course of research whenever I asked people as to what did they understand by ‘Qazi’, they answered that ‘Qazi’ means Judge. The office of the MMR & Qazi is not the office of the ‘Qazi – the judge’ in the strict sense of the term because in India there is no idea of parallel judiciary. The ignorance of this fact that MMR & Qazi and the Judge are not the one and the same, has led to declaration and issuance of various fatwas that Muslim women cannot be a Qazi. I believe that when such fatwas are issued then the issuer had the same idea of the word Qazi as the masses have. It took India almost five decades, since its independence from the British to have Shabnam Ara Begum of East Midnapore in the State of West Bengal as the first women Qazi in the year 2004. The present article is an attempt to look into the issue of gender bias in the matter of appointment of Muslim women as MMR & Qazi.
Sadia Dehlvi says “Islam is dynamic, understood and practiced in a variety of ways in different cultures. Patriarchy remains deaf to the Quran’s call for equality, justice and compassion that extends to all humanity. Excluding women from leadership, patriarchy is blind to the Quran celebrating the wise consultative rule of Queen Sheba and her diplomatic engagement with Solomon. Patriarchy fails to recognise the Quran honouring women as recipients of wahy, Divine Revelation; as experienced by Moses’s mother and Mariam, or Mary. Some famous early and medieval commentators of the Quran, such as Imam Hajar Asqalani and Imam Qurtubi, include Mary amongst the prophets”
Patriarchy is prevalent in almost every society of the world. When we look back into the Islamic history, we find that Mecca, the birth city of the Prophet Muhammad, sallallahu alaihi wa salaam was a patriarchal society. When the Muslims migrated to Medina, they found the women of Medina more open and authoritative than their counterparts in Mecca. It is reported in the Chapter Mazaalim of Sahih Bukhari that Hazrat Umar, the second caliph of Islam once brought the notice of Prophet Muhammad regarding the authoritative nature of the women of Medina and on hearing this Holy Prophet just smiled at him.
The Medina period of Islam is considered as an ideal period and the historians often give references to the Medina model of governance. It is seen that the Medina model does not attract inconvenience to the women folk and patriarchy was not misused.
On being questioned about her views on the allegation of some renowned organisations like JUH, JIH, AIMPLB being patriarchal, Noorjehan Safia Niaz says, “Of course they are patriarchal, the way they have interpreted the Quranic verses, the way they have completely ignored the plight of women, the way they resist any reform process. Are these ‘renowned’ organisations not aware of the changes that have happened in neighbouring countries of Bangladesh and Pakistan, or other Islamic countries? Oral divorce has been done away with in all countries legally, but they are not willing to change the same in India? Everyday our Aurton ki Shariah Adalat receives cases where the woman has been abandoned by her husband after divorcing her on phone or by letter and has remarried. These bodies want to maintain their hegemony over the community. They don’t think Muslim women are part of the community. For them women do not exist and her plight does not affect them”.
India has reeled under the influence of patriarchy since time immemorial and the Muslim rulers of the Mughal period did not introduce much reform in this area. Though the Muslim subjects under the Mughals were governed as per the Shariah Law or the Cannon Law, the non-Muslim subjects were governed under the Common Law.
The present Muslim World has undergone a lot of changes with the change of time but India is yet to evolve its personal laws in tune with the developing circumstances.
Office of the Qazi
The origin of the institution of the Qazi in India can be traced back to pre-Mughal period. The office of the Qazi was known by various names during various periods down the history. At the time of Kutbuddin Aybak, the Chief Judge known as Qazi -ul-Quzzat was first appointed to supervise the work of the subordinate Qazisat. During the reign of Sikandar Lodhi the Chief Judge was known as Mir-i-adal. Sher Shah’s predecessors had copied the Abbasids Khalifas in establishing State Departments and hence the Judiciary under the Chief Qazi was also known as Dadbak which means chief Administrator of Justice. During the reign of the Mughal Emperors the power of appointment of judges was exclusively vested in the sovereign power. However the Sovereign could delegate the power of appointment to the Governors or to the Chief Qazi also known as Qazi -ul-Quzzat. With the advent of British rule in India, the office of Qazi was abolished in 1809. After the abolition of the office of Qazi, the functions of Qazi were transferred to the courts of British India.
The Act of XI of 1864 abolished the offices of Muhammadan law officers, the Qazi -ul-Quzzat and subordinate Qazi, however in 1880 the Kazis Act XII was passed which gave power to the Local Government to appoint Qazi in any local area after consulting the principal Muslim residents of such local area. These Qazi did not possess any judicial or administrative powers; the only function which they usually perform now is the registration of marriage and divorce. It is pertinent to mention that the presence of such Qazi is not essential during the marriage ceremony, the Qazi can register the marriage or divorce even after the event has taken place.
Qazi: the Judge in Mughal India
Qazi had a bigger role in the judiciary system in the state and he held the court and gave justice. Qazi-ul-Quzzat or the Chief Judge was the Supreme Judge of the Empire, and also ‘the Qazi of the Imperial Camp’. He always accompanied the Emperor. Every city and even large village had its local Qazi who was appointed by the Chief Qazi. His court was the chief criminal court of appeal. He was not debarred from deciding original suits. But his main function was to hear appeals from the subordinate courts. The role of Qazi as the chief judge is a practice evident since the Mughal rule. The institution of sharia courts under the royal Mughal patronage was decisive in its articulation which continued unabated until the British intrusion.
Qazi: The Muslim marriage registrar in independent India
Section 3 of The Bengal Muhammadan Marriages and Divorces Registration Act, 1876 states:
“It shall be lawful for the [State] Government to grant a license to any person, being a Muhammadan, authorizing him to register Muhammadan marriages and divorces which have been effected within certain specified limits, on application being made lo him for such registration; and in like manner it shall be lawful for the said [State] Government to revoke or suspend such license:
Provided that no more than two persons shall be licensed lo exercise the said function within the same limits; and provided further that, when two persons are so licensed to act within the same limits, the one shall be a member of the Sunni, and the other of the Shia, sect.
Kazis Act 1880 also provides that:
Wherever it appears to the State Government that any considerable number of the Muhammadans resident in any local area desire that one or more Kazis should be appointed for such local area, the State Government may, if it thinks fit, after consulting the principal Muhammadan residents of such local area, select one or more fit persons and appoint him or them to be Kazis for such local area.
Nothing in Act to confer judicial or administrative powers; or to render the presence of Kazi necessary; or to prevent any one acting as Kazi.- Nothing herein
contained, and no appointment made here under, shall be deemed- (a) to confer any judicial or, administrative powers on any Kazi or Naib Kazi appointed hereunder; or (b) to render the presence of a Kazi or Naib Kazi necessary at the celebration of any marriage or the performance of any rite or ceremony; or (c) to prevent any person discharging any of the functions of a Kazi.
Reformative measures
Various strategies have been suggested to tackle the obstacles being faced by the Muslim community. The issue of the appointment of a woman as a Muslim Marriage Registrar and Qazi is not related directly to the Muslim personal laws in India but the office of the MMR and Qazi is instrumental in preservation of the personal laws.
Dr. Kauser Edappagath, in his book, Divorce and Gender Equity in Muslim Personal Law of India writes, “The issue of reform of the Muslim personal Law in India has, for some time past, been a battle-field between progressive and the reactionary elements in the society.”
Hence, it is seen that there is no bar on Muslim women to hold the office of the Muslim Marriage Registrar and Qazi in modern India and moving a step further; it is the need of the hour to establish more Shariah Courts and appointment of women Qazi to increase the rate of disposal of cases. Shariah courts do not create a parallel Judiciary, rather it acts as an Alternative Dispute Redressal (ADR) system and this would be a positive step towards nation building by lessening the burden from the judiciary and at the same time empowering the Muslim women and more.
The author is a member of Calcutta Society for Socio-Legal Research, a non-profit organisation addressing the current and future dynamics of the Minorities of India, overall public-awakening activities and research projects.