Sharia Courts and Muslim Personal Law in India: Intersecting Legal Regimes

• Date: 01 September 2018
• Published date: 01 September 2018
• DOI: http://doi.org/10.1111/lasr.12351

Sharia Courts and Muslim Personal Law in India:

Intersecting Legal Regimes

Katherine Lemons

In July 2005, a Delhi lawyer filed suit with the Supreme Court of India seek-

ing to ban “sharia courts” (dar ul qazas) and Islamic legal opinions, arguing

that they constitute a “parallel judicial system” that undermines the state’s

legal institutions. The Supreme Court decided in 2014 that dar ul qazas are

not parallel but appropriate alternative forums. In this article, I analyze sev-

eral divorce cases in Delhi and Patna dar ul qazas to show that, rather than

being alternative or parallel, dar ul qazas intersect with state courts. Attend-

ing to this intersection, I argue, has implications for how we understand

legal pluralism, secularism, and the relation between them. Specifically, I

argue that because of how cases travel between dar ul qazas and state courts,

dar ul qazas help to consolidate the oppositions between religious and secu-

lar law, kin relations, and rights upon which secularism relies.

In July 2005, a Delhi lawyer filed suit with the Supreme Court of

India seeking to ban “sharia courts” (dar ul qazas)andIslamiclegal

opinions (fatwas) throughout India (Vishwa Lochan Madan v. Union of

India 2005, Petition: 45–47).

1

The suit alleged that dar ul qazas were

unconstitutional on the grounds that their decisions were issued by

religious authorities and were not overseen by the state’s legal appa-

ratus. According to the lawyer who filed the suit, Vishwa Lochan

Madan, this meant that dar ul qazas constituted a “parallel judicial

system” in competition with the secular state’s legal institutions. His

petition focused on Muslim marital disputes, arguing that they

should be dealt within state courts, not in Muslim legal forums.

In 2014, the Supreme Court decided that, as dar ul qazas’

decisions were not legally recognized, they did not undermine

state law. The Court clarified that fatwas that interfere with or

contradict the individual rights granted by the Constitution and

laws of India should be ignored. The court thereby recognized

state courts as legally superior to religious institutions. Madan and

the Supreme Court agreed that state courts and dar ul qazas con-

stitute distinct legal spheres and that the distinction between these

Please direct all correspondence to Katherine Lemons, Department of Anthropol-

ogy, McGill University, Montreal, Quebec, Canada; e-mail: katherine.lemons@mcgill.ca.

1

For an analysis of the Madan case as indicative of an institutional turn in legal plu-

ralism in India, see Redding (2010).

Law & Society Review, Volume 52, Number 3 (2018)

©2018 Law and Society Association. All rights reserved.

603

spheres maps onto secular and religious normative orders,

respectively. Although Madan viewed this aspect of Indian legal

pluralism as a threat to justice and the authority of the state, the

Supreme Court saw it as a useful alternative for members of the

Muslim minority. At stake in this disagreement was the question

of whether authority over marriage should rest solely with the

secular state courts, as Madan argued, or whether it should reside

in religious forums.

In this article, I draw on my research on two Indian dar ul

qazas—one in Patna, Bihar and one in Delhi—to investigate the

relationship, in practice, between dar ul qazas and state courts.

Dar ul qazas, broadly speaking, are Islamic (or sharia) courts.

They are adversarial dispute adjudication forums that base their

judgments on witness testimony and extended discussions with lit-

igants and their families. The judges in dar ul qazas, who are

called qazis, are trained in seminaries rather than in law schools,

and their legal procedures and resources come mainly from the

Hanafi school of Sunni jurisprudence. Litigants in the dar ul qaza

are all Muslim, while their economic status ranges from destitute

to upper class. Dar ul qaza judgments are nonbinding from the

perspective of the state and they cannot be directly appealed.

However, as their authority rests on the qazi’s religious legal cre-

dentials, and because all parties agree at the outset to abide by the

qazi’s decision, they can function as binding.

Based on my research in the Patna and the Delhi dar ul qazas,

I contest the view articulated in Madan that dar ul qazas and state

courts occupy completely separate spheres, whether alternative or

parallel. I suggest instead that dar ul qazas and state courts inter-

sect, in particular when adjudicating marital disputes.

2

Dar ul qazas

are distinct from state courts, as they follow different procedures,

refer to different legal philosophy and history, and occupy a posi-

tion beyond the state. Yet, historically and in current practices,

cases travel between dar ul qazas and state courts. A document I

was given outlining the dar ul qaza process in Patna specifies the

kinds of disputes it hears: marriage, divorce (talaq, khul, faskh), wills,

inheritance, custody, and maintenance. This aligns with what I

found in the 71 cases I studied. Cases heard in the dar ul qazas do

not include criminal matters. This means that dar ul qazas instanti-

ate a separate legal forum from the state courts even as they abide

by the state’s determination of which matters are appropriately

adjudicated by religious authorities: even in state courts family

matters are adjudicated according to religious law.

2

While I do not give an in-depth analysis of the history of such intersection here, I

agree with Redding (2014) that dar ul qazas share “mutually conditioned historicities”

with the state (2014).

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