Muslim Women as Kazis

Breaking the Glass Ceiling: Muslim Women as KazisVasundhara Mohan

When Dr. Sayeda Hamid, Member, Planning Commission,Government of India and an Islamic Scholar, acted as Kaziand solemnized a 'Nikah' ceremony in Lucknow (Uttar Pradesh)on 12 August 2008, the media went agog. Calling it an eventthat broke traditions, the media claimed that Dr Hamidcreated history by becoming the first woman to act as aKazi. Other reported departures from tradition have beenthat the proceedings were conducted in English language;both introduction as well as the vows was read outprominently in English, although the Nikah took placeaccording to the tenets of Islam. Four women stood up aswitnesses. (1)

This path-breaking step was taken by Imran Naeem, PhDscholar from Aligarh Muslim University and Naesh Hasan,founder member of a social organisation Bharatiya MuslimMahila Andolan in the presence of eminent citizens at a cityhotel. Yet another convention that was broken in this casewas while the couple were Sunni, the Kazi belonged to theShia sect! While this was the first Nikah that Dr Hamid has solemnisedas a Kazi, India’s first woman Kazi is a lesser knownShabnam Ara Begum (26) the Muslim Marriage Registrar andhonorary Kazi of Nandigram village in West Bengal's EastMidnapore district. (2) Appointed as a Kazi in December2003, Shabnam has been restricting herself to overseeingmarriages in the community. She is reported to havesolemnised over 770 marriages and had never faced anyproblems in solemnising marriages. As she was helping herfather for many years as the Naib Kazi, she is well aware ofthe Islamic law and the rituals.

Her appointment was challenged by Mozammel Hossein, aNandigram resident and a claimant to the post, arguing thatthere is no provision in the Shari’at for appointing a woman

as Kazi. He claimed that under the Islamic law women are notallowed to carry out tasks performed by men and that allover the world, only men are Kazis. In its order dated 21July 2005, the High Court said that it did not want tointerfere in the matter and asked the Inspector General ofRegistration (Judiciary) to adjudicate within three months.Shabnam's lawyer Kazi Saifuddin Ahmad said: "She is thefirst woman Kazi in India. Some men simply cannot bear this.They should see this as a big step forward for thecommunity, one that inspires other Muslim women to getthemselves educated and move forward in life instead ofliving in the shadow of the men." When her father AbulKhadir Mohammad Fazlur Rehman, a Kazi for about 125 villagessuffered a paralytic stroke, Shabnam began assisting him inconducting Nikahs. ______________________

1. NDTV.Com, 13 August 2008 quoting Press Trust of India,12 August 2008.

2. Jaideep Mazumdar, in OutlookIndia.com (Available at http://osdir.com/ml/culture.discuss.cia-drugs/2005-08/msg00091.html)

Following his death in 2003, she applied to the InspectorGeneral Registration (Judiciary), for the post of Kazi, withthe blessings of the Nandigram mufti and community elders,who supported her. Shabnam's continuing as Kazi has become atest case for the "progressive movement" within Islam. Asher lawyer points out, "Muslim marriages are contractmarriages. Those challenging this appointment are doinggreat harm to Islam. They are misinterpreting the Quran andthe Shari’at and their views are retrograde. It's this kindof mindset that encourages extremism. Muslim women need tobe liberated." Shabnam’s appointment as Kazi had theblessings of most of the state's Muslim politicians,including Lok Sabha MP and ex-Minorities Affairs MinisterMohammad Salim and Abdur Rezzak Mollah, West Bengal’s LandReforms Minister. However, Calcutta's Shahi Imam NarurRehman Barkati did not believe a woman can officiate as a

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Kazi as "it is against the Shari’at". He commented: "Manypeople don't follow the Islamic code strictly. Many womenhave come out of purdah. It is their personal choice. So ifthe people at Nandigram want a woman Kazi, why should Icomplain?” (3)

Reverting to the Lucknow Nikah, the bridegroom was rightwhen he said that in spite of talking about progress, notonly the Muslim community but others also leave all theimportant jobs to men. According to the bride, the responsefrom the concerned families and local religious leaders hasbeen positive. Kalbe Jawwad, Shia scholar and Member of theAIMPLB, admitted that "there is nothing wrong if a womanconducts a Nikah if she has the same knowledge as her malecounterpart." The act was endorsed by noted Islamic scholarand member of the All India Muslim Personal Law BoardMaulana Khalid Rashid Firangimahali, who said that there isno bar on women performing a Nikah and "it is not un-Islamic." He however did not approve of a woman acting asKazi. He said: "It is not practically possible for women tobecome Kazi and hence religious tasks have always beenlimited to men, like all other challenging work. Anyone canperform a Nikah. But the khutba which is read alongside isperformed by Islamic scholars. All Alims have so far beenmen." Naim-ur-Rahman Siddiqui, scholar and founding memberof the Lucknow-based Ulema Council of India who was presentat the Nikah, admitted that several traditions andestablished norms had been broken but there was nothing un-Islamic about it and the role of the Kazi is not mandatoryin the strict sense. He also pointed out that the groom wasaccompanied by a male friend as witness. Mufti MahfoozIllahi, a scholar from Bhopal clarified that “under theShariah, a woman’s testimony is valued at half of a man. Soif two women or adult girls are witnesses, it meets thenorm,” (4) A more discordant note was struck by Riyaz Ahmed,an Islamic scholar and President of the Idgah Committee inFarrukhabad, who questioned the legal aspect of the Nikah,saying: "What is the status of a woman Kazi? Is she approvedby the government?" Expressing similar views, president of

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the All India Muslim Women Personal Law Board Shaista Ambersaid although women are known to have performed as Kazi andMufti in earlier times, “it would be better if religiouswork is performed by men. Women can take over in the absenceof men."__________________

3. Ibid.4. The Telegraph, Calcutta, 14 August 2008.

The issues involved are: (1) although all Alims so far mighthave been women and it may be better if religious work isperformed by men, is there any bar that disallows women fromfunctioning as Kazis?, and (2) Does it need government’sapproval or permission for a woman (or even a man) tofunction as a Kazi?

The first issue has been replied by Maulana Khalid RashidFirangimahali of the All India Muslim Personal Law Board,who said that there is no bar on women performing a Nikahand "it is not un-Islamic." Another member of the AIMPLB,Kalbe Jawwad, has also endorsed the position that "there isnothing wrong if a woman conducts a Nikah if she has thesame knowledge as her male counterpart."

The first issue having been settled, this paper tries toexamine the legalities involved in answer to the secondissue.

What is Nikah ?

Islam attaches great importance to Nikah; the Islamicmarriage ceremony, “a great bounty from Allah Ta'ala”. (5)Nikah involves the bride’s father offering his daughter (byname if he has more than one daughter) in marriage to thebride groom and the latter accepting her in marriage. Theoffer and acceptance are made in the presence of witnesses,whereupon the marriage becomes valid and both of them becomelawful husband and wife. It is also a lawful wedding if thebride groom asks the girl’s father to give his daughter tohim in marriage and if the father replies: ‘I give her to

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you in marriage’. “The Nikah will be valid irrespective ofwhether he says that he accepts or not. In other words, itis not necessary for the word "accept" to be mentioned.However, if the daughter is present and the father says, "Igive this daughter of mine in marriage to you", and theperson replies: "I accept her", the Nikah will be valid. Itwill not be necessary to mention her name”. (6)

“If the girl is not present, it is necessary to mention hername and the name of her father in such a loud tone that allthe witnesses are able to hear. If the people do not knowthe father and there is a strong possibility that bymentioning his name they will still not know whose Nikah isbeing performed, then it will be necessary to mention thename of the grand-father as well. In other words, suchidentification is necessary whereby those presentimmediately know whose Nikah is being performed”. (7) A Nikahis held valid if both the man and woman are mature, and theyperform their own Nikah by one of them saying "I am making

____________________5. Nikah (Marriage) in Islam, Maulana Ashraf Ali Thanvi

Rahmatullah Alaihi, (Available at http://www.darululoom-deoband.com/english/books/Nikah.htm)

6. ibid7. Ibid

my Nikah with you" and the other saying: "I accept”, in thepresence of two witnesses. If a person does not make hisNikah himself, but asks someone to perform his Nikah withsomeone, or, he mentions the name of the person with whom hewishes his Nikah to be performed and this person performsthis Nikah in the presence of two witnesses - the Nikah willbe valid. Even if this person rejects or denies this later,the Nikah will still be intact”. (8)

The following excerpt from the Dictionary of Islam by ThomasPatrick Hughes (1886) is also relevant in this context. (9)

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“The Muhammadan law appoints no specific religiousceremony, nor are any religions rites necessary for thecontracting of a valid marriage. Legally, a marriagecontracted between two persons possessing the capacityto enter into the contract, is valid and binding, ifentered into by mutual consent in the presence ofwitnesses. And the Shi'ah law even dispenses withwitnesses”. 

“In India there is little difference between the ritesthat are practiced at the marriage ceremonies of theShi'ahs and Sunnis. In all cases the religious ceremonyis left entirely to the discretion of the Qazi orperson who performs the ceremony, and consequentlythere is no uniformity of ritual. Some Qazis merelyrecite the Fatihah (the first chapter of the Qur'an),and the durud, or blessing. The following is the morecommon order of performing the service. The Qazi, thebridegroom, and the bride's attorney, with thewitnesses, having assembled in some convenient place(but not in a mosque), arrangements are made as to theamount of dower or mahr. The bridegroom then repeatsafter the Qazi the following: 

The Istighfa. ("I desire forgiveness from God.")  The four Quls. (The four chapters of the Qur'ancommencing with the word "Qul." (cix, cxii, cxiii,cxiv)

The Kalimah or Creed. "There is no deity but God,and Muhammad is the Prophet of God.”)

The Sifwatu 'l-Iman. (A profession of belief in God,the Angels, the Scriptures, the Prophets, theResurrection, and the Absolute Decree of good andevil) 

“The Qazi then requests the bride's attorney to take thehand of the bridegroom, and to say, "Such an one'sdaughter, by the agency of her attorney and by the

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testimony of two witnesses, has, in your marriage withher, had such a dower settled upon her; do you consentto it?" To which the bridegroom replies, "With my wholeheart and soul to my marriage with this woman, as wellas to the dower already settled upon her, I consent, Iconsent, I consent." 

____________________8. ibid9. ibid

“After this the Qazi raises his hands and offers thefollowing prayer: "O great God I grant that mutual lovemay reign between this couple, as it existed betweenAdam and Eve, Abraham and [Hagar], Joseph and Zailkha)Moses and Zipporah, his highness Muhammad and 'Ayishah,and his highness 'Ali al-Murtaza and Fatimatu 'z-Zahra." 

“The ceremony being over, the bridegroom embraces hisfriends and receives their congratulations”. 

When a Nikah is not valid

“In order for a Nikah to be valid, it is also essential forat least two males or one male and two females to bepresent, to hear the Nikah being performed, and to hear thetwo words (i.e. the offer and the acceptance) being uttered.Only then will the Nikah be valid. If two persons sittogether in privacy and one says to the other: "I give mydaughter to you in marriage" and the other person replies:"I accept your daughter", the Nikah will not be valid.Similarly, if the Nikah was performed in the presence of oneperson only, even then the Nikah will not be valid. If thereare no males present, but only females, the Nikah will notbe valid even if there are ten females present. Togetherwith two females, one male has to be present. If there aretwo males but they are not Muslims, the Nikah will not bevalid. Similarly, if both are Muslims but both or one ofthem is immature, the Nikah will not be valid. Similarly, if

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there is one male and two females but both or one of thefemales is immature, the Nikah will not be valid. (10)

Tradition requires that the Nikah is performed in thepresence of a large gathering so that the Nikah will be wellannounced and the people will become aware of the Nikah. ANikah should not be performed in secret and privacy.However, if due to some reason many persons are unable toattend, then at least two males or one male and two femaleswho hear the Nikah being performed in their very presenceshould be present. (11)

The Role of Kazi

It will be seen from the above account of the proceduresthat in order to hold a marriage as valid or invalid, noceremonies are needed except a proposal of marriage and itsacceptance, in the presence of witnesses. It is howeverpreferable that the Mehr (dower) amount is determined onthis occasion. Unlike in the marriages involving otherreligions, a Muslim marriage does not necessarily involvethe presence of a Kazi and a Kazi doesn't perform themarriage. His job merely is to register the marriage and toensure that all necessary elements of a valid marriage existbefore registration._______________

10.Available athttp://muslim-canada.org/marriage_dictionaryofislam.html

11.Ibid

Although the Shariat was not fully in force during theBritish rule, the official Kazis, who were paid by thegovernment, did dispense legal absolution in cases ofmarriage, divorce, dower, and so on. But when in 1864 theoffice of the Kazi was abolished, the community was left atthe mercy of the Kazis who had no official authority andwere perhaps less well-trained, and, therefore, had far lessinfluence on the community when it came to enforcing

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compliance with some of the injunctions. In this situationwomen became more vulnerable with regard to the customs andusages which deprived them of their Islamic rights.

In the following years the clergy kept demanding that theoffice be revived with judicial and non-judicial powers,arguing that cases regulated by Islamic law can and shouldbe tried by Kazis alone and not by non-Muslim judges. TheBritish government, however, turned down all such demands.However, owing to pressure, in 1879 the government agreed toenact a law to authorise provincial governments to recogniseKazis performing private, non-judicial functions — that is,duties/ ceremonies prescribed by Muslim Law. The Kazi Actwas passed in 1880, making it clear that Kazis will not haveany exclusive jurisdiction even in the exercise of theirnon-judicial functions. An angry clergy started setting upthe Darul Iftaa (Institute of Juristic Verdicts) in variousplaces in the following years headed by muftis as parallelcourts of justice. Since the verdicts of muftis lacked bothofficial sanction and binding force, a number of aggrievedMuslims chose to take their cases to the courts.

The Kazi Act 1880

The Kazi Act 1880 is still in force in India. The importantSections of the Act are reproduced below:

“WHEREAS by the preamble to Act No.XI of 1864 {Repealedby Act 8 of 1868.}… … it was (among other things) declared that it was (among other things) inexpedient that the appointment of Kazi-ul-Kuzaat, or of City, Town or Pargana Kazis should be made by the Government,and by the same Act the enactments relating to the appointment by the Government of the said officers wererepealed;

“and whereas by the usage of the Muhammadan community in some parts of (India) the presence of Kazis appointed by the Government is required at the

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celebration of marriages and the performance of certainother rites and ceremonies, and it is therefore expedient that the Government should again be empoweredto appoint persons to the office of Kazi; It is hereby enacted as follows:-“

“2. Power to appoint Kazis for any local area - 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”.

”If any question arises whether any person has been rightly appointed Kazi under this section, the decisionthereof by the State Government shall be conclusive”.

”The State Government may, if it thinks fit, suspend orremove any Kazi appointed under this section who is guilty of any misconduct in the execution of his office, or who is for a continuous period of six monthsabsent from the local area for which he is appointed, or leaves such local area for the purpose of residing elsewhere, or is declared an insolvent, or desires to be discharged from the office, or who refuses or becomes in the opinion of the State Government unfit, or personally incapable, to discharge the duties of theoffice”.

*** *** ***“4. Nothing in Act to confer judicial or administrativepowers; or to render the presence of Kazis necessary; or to prevent any one acting as Kazi: Nothing herein contained, and no appointment made hereunder, shall be deemed -

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(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 atthe 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”.

It will be seen from the foregoing that a Kazi does not“perform” a Muslim marriage and especially during the Nikahceremony it is the absence of witnesses that invalidates a Nikah and not theabsence of a Kazi. The 1864 Law which empowered the British toappoint Kazis was repealed as they found that it was“inexpedient that the appointment of Kazi-ul-Kuzaat, or ofCity, Town or Pargana Kazis should be made by theGovernment” and the 1880 Act was promulgated solely at theinstance of the Muslim clergy, with the specific conditionthat the Kazis shall not have any judicial and non-judicialpowers. (12)

The Act vests the power to appoint Kazis in the StateGovernments. Section 2 of the Act says that the StateGovernment “may, if it thinks fit”, after consulting the principal‘Muhammadan’ residents of such local area, select one ormore fit persons and appoint him or them to be Kazis forsuch local area”. This means that the Government may appointone or more Kazis “if it thinks fit”, which means that theGovernment is not obliged to appoint Kazis. Secondly, inlegal parlance, “him” means and includes “her” also. Thusthere is no bar or prohibition in the Act if the Governmentappoints a Muslim woman as a Kazi on the recommendations ofthe local residents.

The Kazis so appointed under the Act have no judicial ornon-judicial powers and any person appointed as a Kazi underthe Act cannot prevent “any person discharging any of the functions of aKazi”. Thus, in accordance with the Law, any man or even awoman who possess sufficient knowledge of the Islamic tenetscan perform the functions of a Kazi and conduct the

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proceedings at a Nikah and such a Nikah shall be valid,provided it meets the other requirements that validate it.

Decisions of the High Court of Andhra Pradesh

The right of the government to appoint a Kazi, the need fora Kazi and the nature of a Kazi’s functions and thefunctioning of any other person as a Kazi in spite of therebeing a government appointed Kazi etc., were considered indetail in a Writ Appeal (Quazi Mohd. Najmuddin & Othersagainst the State of Andhra Pradesh in the Revenue (Wakf)Department before a Division Bench consisting of JusticeShri Bilal Nazki and Justice Shri S. Ananda Reddy of theAndhra Pradesh High Court) in 2005.

Earlier, the said Quazi Md. Najmuddin had filed a writpetition (No.22788 of 1999) challenging the appointment ofanother person (the 4th respondent in the Petition) as Kaziby the Government, before the High Court of Andhra Pradesh.While passing orders on the petition filed by the 4th

Respondent seeking vacation of the stay granted in the saidwrit petition on 3.February 2000, the single Judge made thefollowing observations:

“……This Court prima facie believes that this Act could be asource of exploitation of the poor and innocent people ofthe State. Section 4 of the Act makes it abundantly clearthat Kazi has no powers whatsoever; neither judicial noradministrative. This section makes it also clear that anyperformance of religious ceremony of Muslims shall not berendered illegal in the absence of a Kazi. Therefore, thequestion which haunts the Court is what is the necessity forappointing a Kazi? … … The next question would be withrespect to mode of appointment. Should this powerexclusively vest with the Government or should this powervest with somebody else because Section 2 of the Act itselfis prima facie ambiguous which says that the Governmentshall appoint Kazis after consultation with prominentMohammedans of the local area. But prominent

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_______________________

12. Kya Karega Kazi, by Arif Mohammed Khan (former Union Minister), originally published in the Indian Express, 1 August 2007 (Available at http://www.worldsikhnews.com/1%20August%202007/Kya%20Karega%20Kazi.htm)

Mohammedans are also not defined in this Section. Assuch there is vagueness even in Section 2 of the Act”.

The Judge ruled that since this matter has some publicimportance, the same may be placed before a Division Bench.Accordingly, the case was heard by the Division Bench. Thefollowing excerpts are taken from the final orders of theCourt:

“The learned Single Judge, who referred the matter,expressed the view that whether there was necessity ofappointing Kazis, as under the Act, it was not servingany purpose and Kazis appointed under the Act had nopowers. The learned Additional Solicitor Generalappearing for the Union of India submitted that the Actis almost a Century old Act and vires of this Act hasnot been challenged, therefore, this Court cannot gointo its Constitutional validity. He expressed thatthere was a historical background to this piece oflegislation and was necessitated by the situationprevailing at the time of its promulgation. Hesubmitted that after the end of the local Rule, whenthe British Crown took over the Rule of the country,the legal and judicial system prevailing at that pointof time was replaced by Court system, by the Crown.This created apprehensions in the minds of certainsections of the Society and in order to come to terms

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with such a situation, the Act was promulgated. He hasdrawn our attention to the ‘Statement of Objects andReasons’ given in the Act”.

“According to the learned Additional Solicitor General,office of the Kazi before the British Rule, wasperforming functions which were akin to the functionsbeing performed by Civil Courts and even Magistrates,and with the establishment of Civil Courts andMagistracy, these offices of Kazis continued to performthe functions which were essentially religious,although prior to that they were performing evensecular functions. Realizing these problems, theGovernment made certain Legislations even prior to theAct. At one point of time, the Government felt thatthere remained nothing to be performed by Kazis exceptsome ceremonial and religious functions and thereforethere was no necessity for the Government to appointthese officers. Accordingly, in 1864, Act 11 of thatyear, all the Regulations relating to the appointmentof Kazis by Government and duties to be discharged bythem were repealed. This Act, however, added aprovision, “Nothing contained in this Act shall be construed so as toprevent a Kazi-ul-Kuzaat or other Kazi from performing, when required todo so, any duties or ceremonies prescribed by the Muhammadan law”.After this Act was promulgated, it raised somedifficulties, which were not anticipated at the time itwas passed. Therefore, a Select Committee was appointedand the present Act was promulgated”.

The Division Bench also referred to and quoted extracts fromthe report of the Select Committee which commented on theBill before its enactment.

“It has been urged by some of the authorities consultedthat the Act should define the duties of the Kazis tobe appointed under it, and should give them anexclusive right to perform those duties. Any attempt todo this would, we consider, be altogether outside thescope of the Bill as introduced and referred to us, and

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would, moreover, give a weight, which they have not atpresent, to the objections that have been taken to theBill on the ground that it would practically force uponmany persons the services of Kazis whom they did notcare to employ”.

“We may add that in many places, owing to the way inwhich the Muhammadan population is split into sects,not always well defined; it would be almostimpracticable to confer upon one or more persons amonopoly of the office. We think it is clear that theBill should be carefully confined to its originalobject, namely, that of providing a Kazi appointed by theGovernment for those who desire to avail themselves of the services ofsuch a Kazi; and, as it has been suggested to us that aKazi appointed under the Bill as originally framedmight possibly be held to have an exclusive claim toperform the duties of a Kazi and to have a right torestrain others from performing those duties in thelocal area for which he was appointed we have added aclause to section 4 to make it clear that he will not”.

“The result of the Bill as it now stands will be thatthere will be a Kazi appointed by the Government forthose who choose to avail themselves of his services,but that those who prefer to employ any other so called Kazi will be atliberty to do so.” (Emphasis added: VM)

The Additional Solicitor General submitted before theDivision Bench that whether the reasons which were availablewhen the Act was promulgated are still valid or not, is amatter exclusively in the domain of the Legislature and assuch the Court may not be in a position to declare the Actultra vires or even unnecessary. However, the Bench pointed outthat the Act had many difficulties in its application andsaid:

- “Section 2 of the Act, which gives power to theGovernment to appoint Kazis for any local area,

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prescribes that wherever it appears to the StateGovernment that any considerable numbers of the Muslimresidents in any local area desire that one or moreKazis should be appointed for such local area, theGovernment may, after consulting the principalMuhammadan residents of such local area, select aperson and appoint him as Kazi for that area. Power ofappointment of a Kazi for a particular area is with theGovernment, but the question remains that this powerhas to be exercised after consulting the principalMuhammadan residents. There is no definition of‘principal Muhammadan resident’ in the Act”. The Courtwondered as to who would be the Muhammadan who could becalled ‘principal Muhammadan’, who would be consultedby the Government before appointment of a Kazi.

- “Similarly, under Section 4 of the Act, it is laid down

that nothing in the Act would confer any Judicial orAdministrative power to any Kazi. The presence of a Kazi orNaib Kazi is not necessary at the celebration of any marriage or theperformance of any rite or ceremony. If Section 2 lays down avague mode of appointment of Kazis, Section 4 makes itclear that they do not have any power, but at the sametime, they are appointed by the Government and theyhave a stamp, and poor innocent and gullible peoplebelieve that these Kazis are as good as the Courts ofLaw”. The Additional Solicitor General submitted thatthe State Governments could issue guidelines in orderto remove difficulties in the implementation ofSections 2 and 4 of the Act.

- The Court felt that “the Act, in our view, does notserve any purpose. But according to the learnedCounsels appearing for the parties, the striking downof the Act would create problems rather than solvethem”.

One Mr. Mahmood Ali, appearing for one of the parties,submitted that for more than hundred years, Kazis appointed

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by the Government were performing marriages in the State ofAndhra Pradesh and it had become a way of life although their presence isnot necessary in order to perform a ‘Nikah.’ As to the role of Kazis,it was submitted to the Court that the Kazis write theNikahnama at the time of Nikah and a copy of such Nikahnamaremains with the Kazi and another copy is sent to the WakfBoard, where it is preserved and in case of any disputesregarding the factum of marriage, this evidence is readilyavailable. The Bench said: “We may add at this juncture thatwe have reservations about accepting what has been stated by the learned SingleJudge in para 19 that the Kazi’s presence is a must at the marriage ceremonyand other religious ceremonies. According to us, marriage underMuslim Law is a contract, where the only requirement is thatpersons entering into the marriage should consent to suchmarriage in the presence of witnesses”.

*** *** ***In the light of the arguments advanced at the Bar and thejudgments relied upon, the Division Bench of the High Courtsaid that while it did not want to go into the into thequestion of the legality of the Act, “we would like toreiterate that this Act neither gives any power to any Kaziappointed under it, nor grants any privilege to the Kazisappointed under the Act. This Act also does not close doors for Muslimsto appoint anybody else, than a Kazi appointed by the Government forperforming the functions or ceremonies, which are performed by Kazisappointed under the Act. We also want to keep on record thatSection 2 of the Act is vague and in the absence of adefinition to the ‘principal Mohammaden’, the appointment ofKazis by the Government would also be a difficult task.However, these are matters, which Government may consider orthis Court may have to consider in future in an appropriatecase”. (Emphasis added: VM)

The legal position of Kazis under the Kazi Act 1880 havingbeen settled by the orders of the High Court of AndhraPradesh, we may now briefly consider the question ofregistration of Muslim marriages.  

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Registration of Muslim marriages

The plight of women fighting for their rights under marriage— like maintenance and custody of children, was under theconsideration of the Supreme Court in 2007. The NationalCommission for Women, and others brought to the notice ofthe Court that that non-registration of marriages affectedwomen the most. Listing out the benefits of registration ofmarriage, the NCW said it would help "prevention of childmarriages, check bigamy/polygamy, help women exercise theirmatrimonial rights, enable widows to claim inheritance anddeter men from deserting their wives".

In fact, in February 2006, the court had held thatcompulsory registration of marriages of all religions wouldbe a step in the right direction for the prevention of childmarriage -- a practice that is still widespread in manyparts of the country. It said that one way to curb thepractice was to make it legally binding on all couples toregister their marriages, mentioning their ages at the time.(13) In October 2007, the Supreme Court passed an order oncompulsory registration of marriages of couples belonging toall religions across the country and directed the states andunion territories to amend the law or frame rules forcompulsory registration of marriages in respect of personswho are citizens of India irrespective of the religions towhich they belonged and notify them within three months. Theapex court held that compulsory registration of marriages ofall religions would be a step in the right direction forprevention of child marriage a practice still prevalent inmany parts of the country. It had felt that this ruling wasthe need of the hour as certain unscrupulous husbands werealtogether denying marriage, leaving their spouses in thelurch, be it for seeking maintenance, custody of children orinheritance of property. (14)

__________

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13.By February 2006, only four States had statutes for thecompulsory registration of marriages -- the Bombay Registration of Marriages Act, 1953 (applicable to Maharashtra and Gujarat), the Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976, the Himachal Pradesh Registration of Marriages Act, 1996, and the Andhra Pradesh Compulsory Registration ofMarriages Act, 2002. In five states, provisions existedfor voluntary registration of Muslim marriages viz., Assam, Bihar, West Bengal, Orissa and Meghalaya)

14.A Bench of Justices Mr. Arijit Pasayat and Mr. P Sathasivam passed the order on October 25, 2007 based on a petition filed by a divorced woman, Seema, seekingdirections for making marriage registrations compulsory.

However, the Supreme Court order was opposed by some Membersof the All-India Muslim Personal Law Board. Mohammed HashmiKanpuri, a Member of the Board, stated that every Muslim wasbound with Shari’at laws, adding: "Any marriage in Islam iscertified by three people including a Kazi, and there is noneed for any other certification. Muslims are governed bytheir own rules which are different from the rules of othercommunities”. He pointed out that according to Shari’at law,a girl can marry once she attains the age of 16 years,whereas the Constitution allows marriage only after the girlreaches the age of 18. (15) Opposition to the compulsoryregistration of Muslim marriages also was voiced by theMuslim religious leaders of Kerala (Samastha Kerala Jam IyyathulUlema, an organisation that oversees about 25,000 Madrasasin Kerala, Karnataka, Tamilnadu and the Andaman NicobarIslands) on the plea that “the marriage thus will not beaccording to Shariah law and this will not be acceptable toIslam”. (16) In view of the apex court’s order, TahirMahmood, Member of the Law Commission prepared a proposalfor registration of all Muslim marriages.

Conclusion

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We admit that even among the Hindus, there are no femalepundits (Vadhyar in Tamil and Purohit in Telugu and Kannadalanguages) who conduct the elaborate marriage ceremonies.But, there is no bar on a woman taking up the mantle. Withthe Pundit tribe getting diminished day by day, they are ingreat demand especially during the marriage season and itwould be no wonder if some women emerge as pundits.

However, in the case of Islam, it is obvious that there isno bar on a woman being a Kazi When this position isestablished even under the law there is no reason for thecommunity being agitated. It is true that there have notbeen many women Kazis so far. But, if some women, who arelearned and know their Quran and the Shariah, and conductthe Nikah proceedings observing all the stipulatedformalities, why should they be not allowed? ____________

15. Rediffnews.com, January 24, 2008

16. Kerala Muslim clergy slam move on marriage registration, 28 November 2007. Available at http://www.nerve.in/news:253500102507 | channel. Incidentally, registration of Muslim marriages is compulsory in Bangladesh under the Muslim Marriages andDivorces (Registration) Act 1974. Section 3 of the Act reads: ‘Notwithstanding anything contained in any law, custom or usage, every marriage solemnized under Muslimlaw shall be registered in accordance with the provisions of this Act’. Ministry of Law, Justice and Parliamentary Affairs, Government of Bangladesh

While a woman acting as Kazi is not strictly forbidden inIslam nor is it irregular in the eyes of the Law, there area number of other issues which the community should fight

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against. One is the practice of dowry, which has beenaffecting large number of Muslim families. The evil ofdowry, which might have been adopted by the Muslims fromothers, has been crippling a number of families, leavingeither the girl unmarried for a long time or driving theparents into debts. (17) The community should also worryabout the insignificant Mehr promised during Nikah, whichultimately is not paid to the wife; a legal right under theIslamic law, which the women have come to perceive as afavour. Also, according to the study by Gangoli and Kazi, ina number of Muslim families “very few women had a formalNikah with witnesses; nor a formal Nikahnama drawn up.Considering that several women were married while they werevery young, the notion of consent or legal signature isirrelevant.” (18) The Supreme Court orders on compulsoryregistration of marriages helps the women of the Muslimcommunity too, in as much as in a number of cases the womenare left with no proof of marriage, due to the failure ofthe Kazi who conducted the Nikah, to register the Nikahnamawith the Wakf Board or otherwise maintain a copy of thedocument in his possession. If the Kazi who conducted theNikah fails to get the Nikahnama registered or fails tomaintain a copy, who suffers? When the Government of AndhraPradesh passed the “A.P. Compulsory Registration of MarriageBill, 2002” which provided that either the districtregistrar of marriages or the marriage officer of the localarea will issue marriage certificate duly registering thename of the bridegroom, bride and two witnesses, the Muslimcommunity was outraged and dubbed the Law as a “grossinterference'' with the Muslim Personal Law.

While women, in general, are subject to patriarchy in almostall societies, Muslim women live under the added strainimposed by Islamic culture and religious traditions asimposed or insisted upon by the religious leaders. We do nottalk about the purdah system, which is not as much adeterrent to women’s advancement in the society, as arechild marriages and lack of education. It may be recalledthat when the Child Marriage Restraint Bill was under

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consideration, a section of the Muslim leadership of theperiod wanted Muslims to be exempted from the provisions ofthe Act. The Begum of Bhopal supported the Bill. Muslimwomen members of the AIWC presented a memorial in support ofthe Bill and told the Viceroy: “We, speaking also on behalfof the Muslim women of India, assert that it is only a smallsection of Mussalman men who have been approaching yourExcellency and demanding exemption from the Act. This Actaffects girls and women far more than it affects men, and wedeny their right to speak on our behalf.’ If child marriagesaffect the health of the Muslim women, lack of education notonly pushes them into ignorance and poverty but also casts _______________________

1. See, ‘Customary Practices among Muslims in Gomia, Bihar’. Geetanjali Gangoli and Seema Kazi, in Women Living under Islamic Laws, (Available at http://wluml.org/english/pubs/pdf/dossier18/D-18.pdf)

2. ibidits shadow on future generations. Muslim women are also notencouraged, if not totally prevented, from competing in theParliamentary and Assembly elections for an elected office.Muslim women’s fight for their marital rights, even thosesanctioned by the Shariah have been denied to them, leadingto the formation of a separate Muslim Women’s Personal LawBoard. Prevention of their entry into mosques has led to arevolt and the establishment of a separate mosque for women.There are a number of other problems that the Muslimcommunity faces as revealed by the Sachar Committee Report.It is high time that the Muslim leadership pays attention tothese problems so that Muslim women do not attempt to breakthe glass ceiling.

______________

Dr (Mrs.) Vasundhara MohanDirector (Programmes)Institute of Indian CultureAndheri-East, Mumbai-400093, IndiaEmail: [email protected]

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____________________

Note: 1. The spellings of some of the words have been adopted as

they appear in the original source.

2. This paper was an Occasional Paper of the Centre for Studyof Society and Secularism, Mumbai in August 2008 andpublished in Indian Currents (Delhi), Vol. XX, IssueNo.35, 25-31 August 2008.

OCCASIONAL PAPER, AUGUST 2008

BREAKING THE GLASS CEILING: MUSLIM WOMEN AS KAZIS

Dr (Mrs.) VASUNDHARA MOHANDIRECTOR (RESEARCH)

CENTRE FOR STUDY OF SOCIETY AND SECULARISMSANTACRUZ-EAST, MUMBAI

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