December 11, 2017

How Darul-Qaza helps the judiciary?

By: Md. Faiyaz Alam Qasmi

 The nature of human being:

A human being in his social life undergoes two situations: Individual and congressional.Hespendsmost of the time of his life in an aggregative way. Since human being was created mentally different by nature, differences are prevailed in every mind-set. This leads to quarrelling between them. This situation is definitelyavoidable for a gentleman. It is very logic that the third entity or any third item must be criteria to get rid of such critical situation.Therefore we see that every nation and every religion of the world has some rules and laws to solve their disputes.

System of Qaza in Islam:

Islam also has a strong law which is absolutely eternal. This law is totally based on the Holy Quran and Sunnat (tradition) of the prophet Muhammad (SWS). A man can easily utilize this and get his disputes solved following a simple procedure. This system is calledQaza, the person who judges according to this law is terminologically namedas Qazi-e Shariat, and the place where this auspicious procedure is done is called as DarulQaza. 

Islam hascommandedits followers to solve their disputes on the basis of Quran. Allah says: O you who believe! obey Allah and his messenger and those who are responsible of your matters, if you have a quarrel between you, then turn it towards Allah and His messenger (or His assistants) if you believe Allah, His messenger and on the day of judgment. (Surah Nisah: 59)

Darul-Qaza in Indian History:

It should be noted that Muslims have been organizing this system of Law since the prophet Muhammed’s (SWS) era, and is going on till today without any stoppage. When Muslims came in India they brought this system too. The then rajasand nawabsalso accepted this system for Muslims. When they came into power took this system under governmental guardianship. It remained superbly inIndian history till 1864 AD.  Unfortunately when the British rulers dominated India they could not digest this system and stopped appointing Qazis. However in 1921 AD.MoulanaAbulMahasinSajjad(RH) a well-known Islamic scholar of Bihar state established ImarateShariah and organized NizameQaza privately. The Imarate Sharia PhulwariShareef Patna has a network of Darul-Qazas in Bihar, Jharkhnad and Udaisa. The All India Muslim Personal Law Baord also has passed a resolution for the establishment of Darul-Qazas all over the country, at the public meeting held in Kolkata in 1992. The purpose of this system is hereby to provide justice to wronged people in short time and without any heavy expenditure; besides it decreases the burden of our courts.

Procedure of DarulQaza:

Hazrat Ali (RZA) reported to have said that the prophet Muhammad (SWS) recommended him saying: O Ali! When two persons come to you to solve their disputes, do not deliver your judgement unless you have heard other’s statement too. (SunanTirmizi: 1331)Therefore this rule is applied in all Darul-Qazas, run by All India Muslim Personal Law Board and ImarateShariahPhulwariShareef Patna. It is compulsory that the person who wants to get justice from Darul-Qaza must file a plea in the presence of Qazi Shariat and request him for the justice. The Qazi summons the defendant party for his written statement. Then both parties are called upon for hearing their disputes on a prescribed date. QaziShariathearstheirmatters carefully and recommended them to settle the matter by reconciliation. Most of the cases are solved by mutual consent. However if they do not agree on any point, which happens hardly in a few cases,  Qazi Shariat delivers his judgement according to the Quran and Sunnah of the Prophet (SWS). In some cases the second party viciously refuses to appear in Darul-Qaza or is missing for a long time, and then Qazi Shariat tries his level best to know his point of view and then finalizes the case as per the ruling of Shariat.

A wronged lady’s story:

A living example of a wronged lady hereby is reported as following whobleatinglyexpressed her grievancesin Darul-Qaza Nagpada Mumbai:

I got married a person who was very greedy of dowry. He demanded dowry just after getting married, while my maternal relatives had givenall needy articles of house which costs two lakhs. In spite of that he often demanded two lakh more to start up business. We refused to do so; therefore he and his relatives began ill-treating and abusing me. He beat me even on the day of Eidul-Fitr as my head got blooded.Ourneighbors tried to help me escape, but he blamed them of having ill-connection with me.In this critical situation, I came to my maternal home and have been there for last 5 years. In this long period he never cared of me nor did he provide any maintenance. I approached to the court for the justice. The learned judge temporary ordered my husband to paytwo thousand rupees as my maintenance;unfortunately this amount actually was cost in hiring advocate. After a few months my husband was continuouslymissing from the court. I and my mother used to wait out of the court for long time, and later we were informed that we should come on next date and sometimes after spending few hours we came to know that the learned judge has not appeared today. The court issued warrant to arrest my husband, but the police said: He is not available in his residence, we cannot arrest him. On the other side my husband called me saying that Police Walas are in my pockets, they will never arrest me.

This lady is living with her maternal mother. Her father has expired. Her husband does not keep her peacefully nor does he give her Talaque or Khula. She is deprived of maintenance for five years. She also has a son of 8 years, who is also rundown along with his mother. She got disappointed of getting justice from the court and hence she refused to follow the case anymore. Eventually the case dismissed from there without any final judgment.

However when she came to know about Darul-Qaza Mumbai she approached it for justice. We sent notices to her husband through registry post three times.He accepted the letter but refused to follow the case here. The age of the lady was 20 at the time of marriage, now she fall 29th in her age. Now think, her life is passing being destroyed.To provide justice to such downtrodden women is illegal?

We tookher statement and her witnesses and finally delivered judgment and permitted her to marry another man for the sake of survival and not indulging in any mischiefs.

Is to provide justice illegal?

It was just an example, otherwise thousands of women undergo with such critical conditions. Their husbands abuse and beat them brutally, and most of them mentally tortured by demanding dowry, cash, bikes and cars etc. If such women prosecute against their husbands in the court they rarely get justice as soon as they want. Besides to hire the advocates is very expensive for them. If a newly bride files a petition against her husband praying for the maintenance or dissolution of marriage the judgment surely comes after three or four years when she would have been aged or old. If the loser party files appeal for reconsidering of the previous judgment,we cannot imagine when she actually would get true justice. This critical condition leads women to commit suicide, adultery and other mischiefs and some others compelled to live with the same husbands unwillingly. On the contrary to Darul-Qaza one gets justice here within atleast two or three months.

A glimpse of the pended cases in courts:

Imagine the slow proceeding of our courts in the below survey:

Supreme court:                              58519

High court:                                    4324742

Sub Ordinate courts:                      26986307

Total:                                             31369568

There are 31369568 cases pending in the judiciary of India except Jammu and Kashmeer.There are 7898351cases pending since five years or more. A report of Times of India said that the figure of pended cases would increase up tofifteencrore till 2040. (Times of India 17th January 2017). The chief Justice of Andhra Paradesh Mr. V.V Rao said that we need 320 years to solve the pended cases. (Times of India 6th March 2010)A recent survey says that there are more than 2.18 crorecasespending in only district courts across the country; 12 states have more than 5 lakh cases to decide; while a little more than one case, on an average, is awaiting conclusion for at least 10 years of the total pending cases, more than 20 lakh — almost 10 per cent — have been filed by women. (Times of India:9th June 2016)

Looking at this statistics of the pended cases in the courts does DarulQaza not sport the courts to solveout disputes of Indian Muslims?

Darul-Qaza in the sight of Indian Judiciary

In the year of 2005 a Hindu advocate namelyVishvaLochanMadan filed a case in Supreme Court seeking ban over DarulQaza and DarulIfita. The court issued notices to DarulUloomDeoband, All India Muslim Personal Law Baord, ImaratShariahPhulwari Sharif Patna, the government of Utter pardesh, and Mdhyaparadesh for the written statement. They all defendants submittedtheir statementsand followed the case carefully in all hearing dates, finally a bench of the SupremeCourt delivered judgment on 7th July 2014. The court disposed of the writ petition with no order. However the observation and the opinionof the court are highly admirable, which follows:

 It is not sanctioned under our constitutional scheme. But this does not mean that existence of Dar-ul-Qaza or for that matter practice of issuing Fatwas are themselves illegal. It is informal justice delivery system with an objective of bringing about amicable settlement between the parties. (Case No:386 Civil of 2005)

In 2014 Nazir Noor Ali a so-called social worker filed a case as public interest against DarulQaza Mumbai in Bombay High court praying that these DarulQazas are paralleled courts in India. This system of judiciary is harmful to the Indian Judiciary. Alhamdulillah the Bombay high courtdisposed of the petition on 24th November 2016. saying that this system is not illegal as per apex court has already declared so. ( PIL 56/2014)

How judgments of Darul-Qaza are implemented:

Nowadays some people areaccusingUlamathat they enforce their judgments and fatwas on the public. Actually it has no connection with the realty. DarulQaza has no police authority nor do they have force for implement their judgments, still people follow them on the basis of Iman and fear of Allah. As Allah says in the Holy Quran:

O Muhammad by your Lord! they will not be a true Mumin (believer) unless they make you judge to solve out their disputes, and whatever you finalize they must obey that, and find not any hesitation in their hearts to accept it. (Nisa: 65)

However to accept the judgment of Qazi is a command of Allah. It is a source of goodness in the world and hereafter too.


Qazi ShariatDarulQaza Mumbai

mdfaiyazqasmi@gmail.com

 

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