ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Judicial Reform vs Adjudication of Personal Law

View from a Muslim Ghetto in Kanpur

A keen understanding of the intricacies of the procedural aspect of personal law and internal hierarchies/fissures within the community in question need to guide our vision of judicial reforms. Considering the bias that exists in terms of class, caste, gender and religion in the implementation of law, one wonders what would be the real gains of bringing personal law more and more within the purview of the policing system. This article looks at cases brought by Muslim women to the Kanpur darul qaza seeking maintenance and/or divorce and finds that these women do not lack agency. They also approach different legal forums to resolve their personal and domestic issues.

We would like to thank Sudha Sitharaman, Deepak Mehta and Jillet Sarah Sam for their comments on an earlier draft of this article. We are also thankful to the anonymous referee for helpful suggestions and comments. 

The majority judgment of the Supreme Court that struck down triple talaq as unconstitutional has been welcomed as an important step towards ameliorating the plight of Muslim women and is indeed a landmark legal victory. Yet, many have expressed their unhappiness about the fact that the verdict was ambiguous, made ample room for personal law, and did not do enough in terms of upholding the constitutional rights of Muslim women (Mehta 2017).We would like to draw attention to a few observations that have emerged from two years of fieldwork at a sharia court or darul qaza (literally, place where the qazi sits) situated in a large Muslim ghetto of Kanpur.1 We argue that what is lost in the current discourse is the truism that personal law is a matter of resolving “personal” problems as much as it is a matter of “law.” They are enmeshed in kinship rules, household economics, and family intrigues. Here, litigants work towards resolution where privacy, expediency, and negotiation are the key terms. The question of personal law, therefore, needs familiarity with the processes through which Muslim women (and men)—especially those belonging to the lower rungs of socio-economic hierarchy —resolve their family and property disputes, obtain divorce and custody.

While the media and public discourse have remained focused on the constitutional validity of certain practices in Muslim personal law, there is very little clarity around the question: how are Muslim family and civil cases adjudicated in India? The procedural aspect of Muslim personal law is a black box even for those well-conversant with the contemporary discourse on law and Islam. Feminist legal scholar and women’s rights lawyer Flavia Agnes noted that during the six-day hearing on triple talaq in May 2017, it became apparent that even the legal luminaries had not “done any research about the situation prevailing on the ground” (Agnes 2017). Yet, in recent years there has been research that shows how adjudication in family matters takes place in collocation between civil, social, and religious forums (Lemons 2010; Solanki 2011; Vatuk 2014, 2017). For example, Gopika Solanki’s fine-grained analysis documents how legal practice is localised and decentralised by multiple legal actors such as lawyers, clergy, family members, religious organisations, sect councils, women’s organisations as well as the doorstep courts, such as residential committees and women’s ad hoc groups (Solanki 2011).

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Updated On : 12th Dec, 2017
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