Sadaf Parvez
Indian courts have held, from Vishwa Lochan Madan in 2014 to a recent September 2026 ruling by the Chhattisgarh High Court, that Dar-ul-Qazas, or Sharia courts, have no adjudicatory authority. Yet these forums continue to function because the State’s own courts are burdened with more than five crore pending cases and cannot absorb the demand. This article argues that declaring these forums powerless on a case-by-case basis is a doctrine of negation, not a policy. It explains why abolition is constitutionally fragile, why neglect harms women the most, and why India already has the building blocks of an ideal regulated model. It then compares India’s approach with global legal responses to Shariah and proposes three principles for constitutional oversight: judicial presence, informed consent and appealability.
Two Systems, One Marriage
India operates two systems of family dispute resolution. One it recognises, funds and staffs. The other it tolerates, disowns and has never examined. A marital dispute can reach both, and the second often reaches it first.
The Chhattisgarh High Court confronted precisely this situation in Nirosh Abbasi v. Union of India, decided in September 2026. A Muslim woman had lodged a police complaint alleging cruelty by her husband, and an FIR had been registered. A private religious body styling itself as the Idara-e-Shariah then issued an order declaring her divorced. The High Court held that such private religious bodies could not be recognised as courts under the Indian Constitution, that they had no jurisdiction over her marital status and that their orders could not create, extinguish or alter any legal right. Religious bodies may offer opinions grounded in faith, the Court said, but they cannot assume the powers of a family court.
The ruling breaks no new doctrinal ground. It merely illustrates a pattern: courts declare these forums powerless, yet the forums continue to function. The cost of this gap falls on individual litigants, most often women, who may have to litigate for years simply to establish that a religious body never had the power it claimed.
The Judicial Position: A Doctrine of Negation
In Vishwa Lochan Madan v. Union of India (2014), the Supreme Court denied fatwas legal force without banning the Dar-ul-Qaza system. It also cautioned that no such private religious body should issue a verdict affecting an individual’s rights unless that individual had sought it.
The Court restated this position in Shahjahan v. State of Uttar Pradesh (2025). The couple had married in 2002, each entering the marriage for the second time, and the husband divorced the woman through a Sharia court in 2009. In April 2010, the family court ordered maintenance of only Rs 2,500 for her children and held that she was not entitled to maintenance herself, relying on a settlement filed before the Sharia court. The Allahabad High Court upheld that decision. The Supreme Court set aside both orders and held that a “Court of Qazi”, “Darul Qaza” or “Sharia Court”, by whatever name, has no recognition in law, and that its decisions are not binding and cannot be enforced through coercion.
What the Tradition Itself Says
The Islamic juristic tradition distinguishes sharply between advice, conciliation and adjudication. Sharia is divine guidance, whereas fiqh is the human interpretive tradition. It is what jurists produce and what forums apply, and it varies across schools, countries and historical periods. A forum presenting its decision as “the Sharia” is therefore claiming the authority of one interpretation among several.
Islamic law recognises four distinct functions of dispute-resolution forums. Ifta means giving a non-binding legal opinion. Sulh is mediation, in which a third party helps people reach their own settlement. Tahkim is arbitration, in which the parties choose someone to decide their dispute. Qada is judicial decision-making by an authorised judge whose decisions can be enforced by the State.
The Quran supports these dispute-resolution mechanisms. Verses 4:128 and 4:35 of Surah An-Nisa encourage settlement and arbitration in marital disputes. However, the parties must consent to the arbitrators and accept the process. Thus, consent is not a modern addition to Islamic law; it is central to the authority of tahkim.
Traditionally, until the Mughal era, a qazi was appointed by the ruler. After the colonial government abolished the official qazi system in 1864, Indian Muslim scholars had to reconsider how Islamic disputes could be resolved. Prominent Indian Muslim scholars such as Rashid Ahmad Gangohi allowed parties to appoint a trusted Islamic scholar as an arbitrator, but clarified that the decision would have no legal force. Ahmad Raza Khan, meanwhile, advised Muslims to obey the law of the land in political and national matters while following Shariah in their personal lives. Community-appointed qazis, introduced by the Deoband school of thought and later by the Imarat-e-Shariah, were therefore seen as a response to the absence of an Islamic judiciary.
However, these community bodies were not equivalent to State courts and did not possess the State’s coercive authority. A body that presents itself as a court and claims the power to change a person’s civil status therefore goes beyond the traditional role of such institutions.
Islamic jurisprudence does not oppose the State’s use of mediation and arbitration. Ottoman courts used sulh and tahkim, and modern States have incorporated these methods into family laws. The principle of tajdid, or renewal, also allows Islamic legal practices to adapt to changing circumstances.
A constitutional framework should therefore distinguish between these functions. State courts should exercise binding judicial authority, or qada, while community bodies may provide legal opinions, or ifta; mediation, or sulh; and voluntary arbitration, or tahkim, subject to consent and judicial review.
The Paradox of Capacity
Indian law has lived with a paradox for over a decade. The Supreme Court keeps telling these forums that they have no legal authority, while the forums continue to function because the alternative offered by the State is a judiciary that cannot absorb the demand. Official data placed before Parliament show about 4.85 crore cases pending in district and subordinate courts, 63.6 lakh in the High Courts and about 91,000 in the Supreme Court, taking the total to more than 5.4 crore. This year, in Forum for Fast Justice v. Union of India, a bench led by Chief Justice of India Surya Kant refused to entertain a petition seeking a higher judge-to-population ratio, treating the issue as one for administrative and executive action. A system in this sorry state of affairs cannot be expected to absorb the family disputes of Muslim, Christian, Parsi and Hindu sectarian and caste-based communities.
The State has itself built an alternative dispute-resolution architecture through Section 89 of the Code of Civil Procedure, the Legal Services Authorities Act, 1987, and the Mediation Act, 2023, precisely because courts cannot carry the load alone. A major legal conundrum follows. The State endorses consensual settlement through Lok Adalats while treating consensual settlement through the Dar-ul-Qaza as devoid of legal force. The difference lies in supervision, not in the consensual character of the process.
These forums are also not a modern aberration. Community-led Muslim dispute resolution in the subcontinent dates back to the late nineteenth century. Deoband established a fatwa office in 1892–93 that received many questions on matrimonial matters, while the Imarat-e-Shariah, founded in Bihar in 1921, established a network of Dar-ul-Qazas. A forum with this history does not disappear simply because a court declares it powerless.
Constitutional Constraints on Abolition
Article 25 sharpens the difficulty further. For many communities, resolving marital disputes through community-recognised forums is inseparable from the practice of religion, while Article 26(b) protects a denomination’s right to manage its own religious affairs. If the State tried to abolish religious adjudication outright, such a move could infringe these rights and invite the kind of constitutional challenge the Supreme Court has considered in the Sabarimala reference, which concerns the interplay between Articles 25, 26 and 14. Abolition would also be self-defeating because a prohibition would not extinguish the demand for community settlement. It would simply push that process beyond any oversight. Banning religious forums is therefore constitutionally difficult and practically unworkable.
The Cost of Neglect
Leaving these forums unregulated is no more defensible. Shahjahan shows the cost: a settlement before an Islamic court was used to defeat a woman’s maintenance claim, a High Court upheld it, and she had to litigate for years before being told that the settlement had never bound her. Nirosh Abbasi shows the same pattern repeating. The burden of discovering that a forum lacked authority falls on the person subjected to it, and only after the harm has been done.
The strongest objection to community dispute resolution needs to be stated plainly. Scholars have observed that mediation within kinship networks can favour the stronger party, and that Muslim forums, in particular, may in practice advantage husbands over wives.
Models Within Indian Law
India does not need to invent a workable framework from scratch. It already has a model in the Parsi Matrimonial Courts, constituted under the Parsi Marriage and Divorce Act, 1936. A judicial officer presides, but sits with delegates drawn from the Parsi community who function much like a jury on questions of fact. The forum is religious in composition and constitutional in supervision because the proceedings take place within the ordinary court system. Constitutional oversight does not require stripping a forum of its religious character.
A second route does not depend on legislation. The Supreme Court’s public-function doctrine asks not what a body calls itself, but what function it performs. In S. Shobha v. Muthoot Finance Ltd., the Supreme Court framed a functional test, holding that no body, public or private, should be declared immune to writ jurisdiction in advance. The Court has not applied that test to religious forums yet, and my argument is an application of it. Deciding whether a marriage has ended, who should have custody of children and what maintenance is owed are functions the State has historically performed through its own courts. A Dar-ul-Qaza performing these functions could arguably be brought within the scope of Article 226 without legislation abolishing it. High Courts could use that jurisdiction to require basic standards of notice, hearing and reasoned decisions.
How Other Legal Systems Have Responded
Absorption in Tunisia
Tunisia abolished Sharia courts and placed divorce under State courts. Unilateral talaq has no legal effect, and judges must first attempt reconciliation.
Integration in Indonesia
Indonesia has State-run Religious Courts that decide Muslim family disputes. These courts are part of the national judiciary, with appeals reaching the Supreme Court.
Constitutional Limits in Kenya, Singapore and Malaysia
These countries recognise Islamic courts but limit their powers. Kenya restricts Qazi courts to specified Muslim personal-law matters where all parties consent. Singapore has State-established Shariah Courts. Malaysia presents challenges because the relationship between civil and Shariah courts remains contested.
State-Supervised Reconciliation in Pakistan
Under the Muslim Family Laws Ordinance, 1961, a husband must notify the relevant local authority after pronouncing talaq. The authority attempts reconciliation, and divorce generally takes effect after 90 days.
A Way Out for India
1. Judicial presence
A trained judicial officer should preside over or supervise any forum determining marital status, custody or maintenance. The Parsi Matrimonial Courts provide an Indian precedent.
2. Informed and free consent
Participation must be voluntary, informed and revocable. Vishwa Lochan Madan cautions that no body may decide on an individual’s rights unless that person has sought its intervention, while Shahjahan confirms that an agreement binds only those who accept it.
3. Appealability
Every outcome should be reviewable by a civil or family court, and no such outcome should independently alter civil status, custody or maintenance.
Conclusion
The Chhattisgarh decision, following Vishwa Lochan Madan and Shahjahan, shows that courts will continue declaring religious forums powerless on a case-by-case basis until Parliament or the higher judiciary specifies the standards they must meet to operate. A woman should not have to wait for years to learn that the forum invoked against her never had the power it claimed. India already has a blueprint. What is missing is the legislative or judicial will to put it in place.
Sadaf Parvez is a Lecturer at the Faculty of Law, Jamia Millia Islamia, New Delhi. Her areas of work include Personal Laws and Comparative Constitutional Law.
The information presented in this article represents the personal viewpoints of the author and does not necessarily reflect the opinions of The Observer Post.
