advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Sunday, July 27, 2014

whether Dar-ul-Qaza is a parallel court and ‘Fatwa’ has any legal status. - Apex court held that Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. In fact, whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and can not be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. and further held that We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue Fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter. However, in a case the person involved or the person directly interested or likely to be affected being incapacitated, by any person having some interest in the matter. Issuance of Fatwa on rights, status and obligation of individual Muslim, in our opinion, would not be permissible, unless asked for by the person concerned or in case of incapacity, by the person interested. (imrana case) Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force. Apex court dismissed the writ as it was filed with misconception . = VISHWA LOCHAN MADAN ..... PETITIONER VERSUS UNION OF INDIA & ORS. .... RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41747

  whether Dar-ul-Qaza is a parallel court and  ‘Fatwa’  has  any legal status. - Apex court held that  Dar-ul-Qaza  is  neither  created nor sanctioned by any law made by  the  competent  legislature.   Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for  that  matter  anybody is not adjudication of dispute by  an  authority  under  a  judicial  system sanctioned by law.  A Qazi or Mufti has no authority  or  powers  to  impose his opinion and enforce his Fatwa on any one by  any  coercive  method.   In fact, whatever may be the status of Fatwa during Mogul or British  Rule,  it has no place in independent India under our Constitutional  scheme.  It  has no legal sanction and can not be enforced by any  legal  process  either  by the Dar-ul-Qaza issuing that or the person  concerned  or  for  that  matter anybody.  The person or the body concerned may ignore it and it will not  be necessary for anybody to challenge it before  any  court  of  law.   It  can simply be ignored.  In case any person or body tries  to  impose  it,  their act would be illegal.  and further held that We would like to advise the Dar-ul-Qaza or for that matter  anybody  not  to give any response or issue Fatwa concerning an individual, unless asked  for by the person involved or the person having direct interest in  the  matter. However, in a case the person involved or the person directly interested  or likely to be  affected  being  incapacitated,  by  any  person  having  some interest in the matter. Issuance of Fatwa on rights, status  and  obligation of individual Muslim, in our  opinion,  would  not  be  permissible,  unless
asked for by the person concerned or in case of incapacity,  by  the  person interested. (imrana case) Fatwas touching  upon  the  rights  of  an  individual  at  the instance of rank strangers  may  cause  irreparable  damage  and  therefore, would be absolutely uncalled for.  It shall be in violation of  basic  human rights.  It cannot be used to punish innocent.  No religion including  Islam punishes the innocent.  Religion cannot be allowed to be  merciless  to  the victim. Faith cannot be used as dehumanising force.  Apex court dismissed the writ as it was filed with misconception . =


a  declaration  that
the movement/ activities being pursued by All  India  Muslim   Personal  Law
Board and other similar organizations for establishment of  Muslim  Judicial
System and setting up of Dar-ul-Qazas (Muslim Courts) and Shariat  Court  in
India are absolutely illegal, illegitimate  and  unconstitutional. 
Further
declaration sought for is  that  the  judgments  and  fatwas  pronounced  by
authorities have no place in the Indian Constitutional system, and the  same
are unenforceable being  wholly  non-est  and  void  ab-initio.   
Petitioner
further seeks direction to the Union of India and the  States  concerned  to
forthwith take effective steps to disband and diffuse all  Dar-ul-Qazas  and
the Shariat  Courts  and  to  ensure  that  the  same  do  not  function  to
adjudicate  any  matrimonial-disputes  under  the   Muslim   Personal   Law.

Petitioner’s  prayer  further  is   to   restrain   the   respondents   from
establishing a parallel Muslim  Judicial  System,  inter-meddling  with  the
marital status of Indian Muslims and  to  pass  any  judgments,  remarks  or
fatwas and from deciding the matrimonial dispute  amongst  Muslims.   
Lastly
the prayer of the petitioner is to direct the All India Muslim Personal  Law
Board (Respondent No.9), Dar-ul-Uloom Deoband, and  other  Dar-ul-Ulooms  in
the country, not  to  train  or  appoint  Qazis,  Naib-Qazis  or  Mufti  for
rendering any judicial services of any kind. =

Back Ground for this petition
What perhaps prompted the petitioner to file  this  writ  petition  is  the
galore of obnoxious Fatwas  including  a  Fatwa  given  by  Dar-ul-Uloom  of
Deoband in relation to Imrana’s incident.  Imrana, a  28  years  old  Muslim
woman, mother of five children was allegedly  raped  by  her  father-in-law.
The question arose about her marital status and those of her  children  born
in the wedlock with  rapist’s  son.   The  Fatwa  of  Dar-ul-Uloom  in  this
connection reads as follows:

      “If one raped his son’s wife and it is proved  through  witnesses,  or
the rapist himself confesses it, Haram Musaharat will be proved.   It  means
that the wife of the son will become unlawful forever to him i.e.  the  son.
The woman with whom father has copulated legally or had  sexual  intercourse
illegally in both ways, the son can’t keep physical relationship  with  her.
The Holy Quran says:

“Marry not the woman whom your father copulated”

     The  Fatwa  has  dissolved  the  marriage  and  passed  a  decree  for
perpetual injunction restraining  the  husband  and  wife  living  together,
though none of them ever approached the Dar-ul-Uloom.
Another Fatwa of which our attention is drawn  rules  that  no  police
report can be filed against the father-in-law of Asoobi, who  had  allegedly
raped her.  According to the Fatwa, father-in-law  could  have  been  blamed
only if there had either been a witness to the case or the victim’s  husband
had endorsed  Asoobi’s  allegation.   Yet  another  Fatwa,  which  has  been
brought to our notice is in connection with Jatsonara, a 19 year old  Muslim
woman, who was asked to accept the rapist father-in-law as her real  husband
and divorce her husband.

     Petitioner alleges that all these  Fatwas  have  the  support  of  All
India Muslim Personal Law Board and it is striving for the establishment  of
parallel Muslim judicial system in  India.   According  to  the  petitioner,
adjudication of disputes is essentially the  function  of  sovereign  State,
which can never be abdicated or       parted with. =
   The stand of the Union of India 
is that Fatwas are advisory in  nature
and no Muslim is bound to  follow  those.
Further,  Dar-ul-Qaza  does  not
administer criminal justice  and  it  really  functions  as  an  arbitrator,
mediator, negotiator or conciliator in matters pertaining to family  dispute
or any other dispute of civil nature between the Muslims.
According to  the
Union of India, Dar-ul-Qaza can  be  perceived  as  an  alternative  dispute
resolution mechanism, which strives to settle disputes  outside  the  courts
expeditiously in an amicable and inexpensive manner and, in  fact,  have  no
power or authority to enforce its orders and, hence, it cannot be termed  as
either in conflict with or parallel to  the  Indian  Judicial  System.
The
Union of India has not denied that Fatwas as alleged by the petitioner  were
not issued but its plea is that they were not issued by any of  the  Dar-ul-
Qaza.
In any event, according to the Union of India, few bad  examples  may
not justify abolition  of  system,  which  otherwise  is  found  useful  and
effective.

  Respondent No.9, All India Muslim Personal law  Board  
does  not  deny
the allegations that it had established Dar-ul-Qazas and training Qazis  and
Naib Qazis and the practice of  issuing  Fatwas  
but  asserts  that  Dar-ul-
Qaza/Nizam-e-Qazas  are  not  parallel  judicial  systems   established   in
derogation of or in conflict with the recognised  judicial  system.  
 It  is
informal justice delivery system aimed to bring  about  amicable  settlement
of matrimonial disputes between the parties.  
According to this  respondent,
Dar-ul-Qazas  have  no  authority,  means  or  force  to  get  their  Fatwas
implemented  and  the  writ  petition   is   based   on   ignorance   and/or
misconception that they are parallel courts or judicial system.

     Respondent  No.10,  Dar-ul-Uloom,  Deoband  
admits  issuing  Fatwa  in
Imrana’s case as per Fiqah-e-Hanafi, which is based  on  Quaran  and  Hadith
but asserts that it has no agency or powers to enforce its  Fatwas.   
It  is
within the discretion of the persons or the parties  who  obtain  Fatwas  to
abide by it or not.  
However, according to  Respondent  No.10,  God  fearing
Muslims being answerable to the Almighty, obey the Fatwas, others  may  defy
them.  
In the aforesaid background, the plea of Respondent No.  10  is  that
it is not running parallel judiciary.
The stand of the State of U.P.
 is that Fatwas are advisory in  nature.
 They are not mandatory and do not prohibit any Muslim  to  approach  Courts
established by law for adjudication of their disputes.
Hence,  Dar-ul-Qaza
does not act as a parallel Court for adjudication of disputes.
 whether Dar-ul-Qaza is a parallel court and  ‘Fatwa’  has  any
legal status.

 Dar-ul-Qaza  is  neither  created
nor sanctioned by any law made by  the  competent  legislature.
Therefore,
the opinion or the Fatwa issued by Dar-ul-Qaza or for  that  matter  anybody
is not adjudication of dispute by  an  authority  under  a  judicial  system
sanctioned by law.
A Qazi or Mufti has no authority  or  powers  to  impose
his opinion and enforce his Fatwa on any one by  any  coercive  method.
In
fact, whatever may be the status of Fatwa during Mogul or British  Rule,  it
has no place in independent India under our Constitutional  scheme.
It  has
no legal sanction and can not be enforced by any  legal  process  either  by
the Dar-ul-Qaza issuing that or the person  concerned  or  for  that  matter
anybody.
The person or the body concerned may ignore it and it will not  be
necessary for anybody to challenge it before  any  court  of  law.
It  can simply be ignored.
In case any person or body tries  to  impose  it,  their
act would be illegal.
Therefore, the grievance of the petitioner that  Dar-
ul-Qazas  and  Nizam-e-Qaza  are  running  a  parallel  judicial  system  is
misconceived.

In the words  of  respondent  No.
10 “it is for the persons/parties who obtain Fatwa to abide by  it  or  not.
It, however, emphasises that “the persons who are God  fearing  and  believe
that they are answerable to the Almighty and have to face  the  consequences
of their doings/deeds, such are the  persons,  who  submit  to  the  Fatwa”.
Imrana’s case is an eye-opener in  this  context.   
Though  she  became  the
victim of lust of her father in law, her marriage was declared unlawful  and
the innocent husband was restrained from keeping physical relationship  with
her.  
In this way a declaratory  decree  for  dissolution  of  marriage  and
decree for perpetual injunction were passed.  
Though neither  the  wife  nor
the husband had approached for any opinion, an opinion was  sought  for  and
given at the instance of a journalist,  a  total  stranger.   In  this  way,
victim has been punished.  
A country governed by rule of law  cannot  fathom it.

We would like to advise 
the Dar-ul-Qaza or for that matter  anybody  not  to
give any response or issue Fatwa concerning an individual, unless asked  for
by the person involved or the person having direct interest in  the  matter.
However, in a case the person involved or the person directly interested  or
likely to be  affected  being  incapacitated,  by  any  person  having  some
interest in the matter. Issuance of Fatwa on rights, status  and  obligation
of individual Muslim, in our  opinion,  would  not  be  permissible,  unless
asked for by the person concerned or in case of incapacity,  by  the  person
interested.  Fatwas touching  upon  the  rights  of  an  individual  at  the
instance of rank strangers  may  cause  irreparable  damage  and  therefore,
would be absolutely uncalled for.  It shall be in violation of  basic  human
rights.  It cannot be used to punish innocent.  No religion including  Islam
punishes the innocent.  Religion cannot be allowed to be  merciless  to  the
victim. Faith cannot be used as dehumanising force.
Dismissed the writ as it is filed under misconception

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41747


                                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 386 OF 2005



VISHWA LOCHAN MADAN               ..... PETITIONER

                                   VERSUS

UNION OF INDIA & ORS.            .... RESPONDENTS


                               J U D G M E N T


Chandramauli Kr. Prasad

      All India Muslim Personal Law Board comprises of Ulemas.  Ulema  is  a
body of Muslim scholars recognised as  expert  in  Islamic  sacred  law  and
theology.  It is the assertion of  the  petitioner  that  All  India  Muslim
Personal Law Board (hereinafter referred to as ‘the Board’) strives for  the
establishment of parallel judicial system in India as in its opinion  it  is
extremely difficult for  Muslim  women  to  get  justice  in  the  prevalent
judicial system.  Further, under the pressure of  expensive  and  protracted
litigation it has become very  difficult  for  the  downtrodden  and  weaker
section of the society to get justice.  Therefore,  to  avail  the  laws  of
Shariat, according to the Board, establishment of  Islamic  judicial  system
has become necessary. According to  the  petitioner,  the  Board,  Imarra-e-
Sharia of  different  States  and  Imarra-e-Sharia,  Phulwari  Shariff  have
established Dar-ul-Qazas, spread all over  the  country.   Camps  are  being
organised to train Qazis and Naib Qazis to administer justice  according  to
Shariat. Dar-ul-Qaza and Nizam-e-Qaza are interchangeable terms.  It is  the
allegation of the petitioner that Dar-ul-Qazas, spread all over the  country
are functioning as parallel judicial system aimed to administer  justice  to
Muslims living in this country according to Shariat i.e.  Islamic  Canonical
Law based on the teachings of the Quoran and the traditions of the  Prophet.
 What perhaps prompted the petitioner to file  this  writ  petition  is  the
galore of obnoxious Fatwas  including  a  Fatwa  given  by  Dar-ul-Uloom  of
Deoband in relation to Imrana’s incident.  Imrana, a  28  years  old  Muslim
woman, mother of five children was allegedly  raped  by  her  father-in-law.
The question arose about her marital status and those of her  children  born
in the wedlock with  rapist’s  son.   The  Fatwa  of  Dar-ul-Uloom  in  this
connection reads as follows:

      “If one raped his son’s wife and it is proved  through  witnesses,  or
the rapist himself confesses it, Haram Musaharat will be proved.   It  means
that the wife of the son will become unlawful forever to him i.e.  the  son.
The woman with whom father has copulated legally or had  sexual  intercourse
illegally in both ways, the son can’t keep physical relationship  with  her.
The Holy Quran says:

“Marry not the woman whom your father copulated”



      The  Fatwa  has  dissolved  the  marriage  and  passed  a  decree  for
perpetual injunction restraining  the  husband  and  wife  living  together,
though none of them ever approached the Dar-ul-Uloom.



      Another Fatwa of which our attention is drawn  rules  that  no  police
report can be filed against the father-in-law of Asoobi, who  had  allegedly
raped her.  According to the Fatwa, father-in-law  could  have  been  blamed
only if there had either been a witness to the case or the victim’s  husband
had endorsed  Asoobi’s  allegation.   Yet  another  Fatwa,  which  has  been
brought to our notice is in connection with Jatsonara, a 19 year old  Muslim
woman, who was asked to accept the rapist father-in-law as her real  husband
and divorce her husband.



      Petitioner alleges that all these  Fatwas  have  the  support  of  All
India Muslim Personal Law Board and it is striving for the establishment  of
parallel Muslim judicial system in  India.   According  to  the  petitioner,
adjudication of disputes is essentially the  function  of  sovereign  State,
which can never be abdicated or       parted with.



In the aforesaid background, the petitioner has sought  a  declaration  that
the movement/ activities being pursued by All  India  Muslim   Personal  Law
Board and other similar organizations for establishment of  Muslim  Judicial
System and setting up of Dar-ul-Qazas (Muslim Courts) and Shariat  Court  in
India are absolutely illegal, illegitimate  and  unconstitutional.   Further
declaration sought for is  that  the  judgments  and  fatwas  pronounced  by
authorities have no place in the Indian Constitutional system, and the  same
are unenforceable being  wholly  non-est  and  void  ab-initio.   Petitioner
further seeks direction to the Union of India and the  States  concerned  to
forthwith take effective steps to disband and diffuse all  Dar-ul-Qazas  and
the Shariat  Courts  and  to  ensure  that  the  same  do  not  function  to
adjudicate  any  matrimonial-disputes  under  the   Muslim   Personal   Law.
Petitioner’s  prayer  further  is   to   restrain   the   respondents   from
establishing a parallel Muslim  Judicial  System,  inter-meddling  with  the
marital status of Indian Muslims and  to  pass  any  judgments,  remarks  or
fatwas and from deciding the matrimonial dispute  amongst  Muslims.   Lastly
the prayer of the petitioner is to direct the All India Muslim Personal  Law
Board (Respondent No.9), Dar-ul-Uloom Deoband, and  other  Dar-ul-Ulooms  in
the country, not  to  train  or  appoint  Qazis,  Naib-Qazis  or  Mufti  for
rendering any judicial services of any kind.



      The stand of the Union of India is that Fatwas are advisory in  nature
and no Muslim is bound to  follow  those.   Further,  Dar-ul-Qaza  does  not
administer criminal justice  and  it  really  functions  as  an  arbitrator,
mediator, negotiator or conciliator in matters pertaining to family  dispute
or any other dispute of civil nature between the Muslims.  According to  the
Union of India, Dar-ul-Qaza can  be  perceived  as  an  alternative  dispute
resolution mechanism, which strives to settle disputes  outside  the  courts
expeditiously in an amicable and inexpensive manner and, in  fact,  have  no
power or authority to enforce its orders and, hence, it cannot be termed  as
either in conflict with or parallel to  the  Indian  Judicial  System.   The
Union of India has not denied that Fatwas as alleged by the petitioner  were
not issued but its plea is that they were not issued by any of  the  Dar-ul-
Qaza.  In any event, according to the Union of India, few bad  examples  may
not justify abolition  of  system,  which  otherwise  is  found  useful  and
effective.



      Respondent No.9, All India Muslim Personal law  Board  does  not  deny
the allegations that it had established Dar-ul-Qazas and training Qazis  and
Naib Qazis and the practice of  issuing  Fatwas  but  asserts  that  Dar-ul-
Qaza/Nizam-e-Qazas  are  not  parallel  judicial  systems   established   in
derogation of or in conflict with the recognised  judicial  system.   It  is
informal justice delivery system aimed to bring  about  amicable  settlement
of matrimonial disputes between the parties.  According to this  respondent,
Dar-ul-Qazas  have  no  authority,  means  or  force  to  get  their  Fatwas
implemented  and  the  writ  petition   is   based   on   ignorance   and/or
misconception that they are parallel courts or judicial system.



      Respondent  No.10,  Dar-ul-Uloom,  Deoband  admits  issuing  Fatwa  in
Imrana’s case as per Fiqah-e-Hanafi, which is based  on  Quaran  and  Hadith
but asserts that it has no agency or powers to enforce its  Fatwas.   It  is
within the discretion of the persons or the parties  who  obtain  Fatwas  to
abide by it or not.  However, according to  Respondent  No.10,  God  fearing
Muslims being answerable to the Almighty, obey the Fatwas, others  may  defy
them.  In the aforesaid background, the plea of Respondent No.  10  is  that
it is not running parallel judiciary.



      The plea of the State of Madhya Pradesh is that Fatwa issued  by  Dar-
ul-Qaza has no legal value.



      The stand of the State of U.P. is that Fatwas are advisory in  nature.
 They are not mandatory and do not prohibit any Muslim  to  approach  Courts
established by law for adjudication of their disputes.   Hence,  Dar-ul-Qaza
does not act as a parallel Court for adjudication of disputes.



      From the pleadings of the parties  there  does  not  seem  to  be  any
dispute that several Dar-ul-Qazas presided over by the Qazis exist and  they
do issue Fatwas. In the present case, what  we  have  been  called  upon  to
examine as to whether Dar-ul-Qaza is a parallel court and  ‘Fatwa’  has  any
legal status.



      As  it  is  well  settled,  the  adjudication  by  a  legal  authority
sanctioned by law is enforceable and binding and meant to be  obeyed  unless
upset by an authority provided by law itself.  The power to adjudicate  must
flow from a validly made law. Person deriving benefit from the  adjudication
must have the right to enforce it and the person required to make  provision
in terms of adjudication has to comply that and on its failure  consequences
as provided in law is to ensue.  These are the  fundamentals  of  any  legal
judicial system.  In our opinion, the decisions of Dar-ul-Qaza or the  Fatwa
do not satisfy any of these requirements.  Dar-ul-Qaza  is  neither  created
nor sanctioned by any law made by  the  competent  legislature.   Therefore,
the opinion or the Fatwa issued by Dar-ul-Qaza or for  that  matter  anybody
is not adjudication of dispute by  an  authority  under  a  judicial  system
sanctioned by law.  A Qazi or Mufti has no authority  or  powers  to  impose
his opinion and enforce his Fatwa on any one by  any  coercive  method.   In
fact, whatever may be the status of Fatwa during Mogul or British  Rule,  it
has no place in independent India under our Constitutional  scheme.  It  has
no legal sanction and can not be enforced by any  legal  process  either  by
the Dar-ul-Qaza issuing that or the person  concerned  or  for  that  matter
anybody.  The person or the body concerned may ignore it and it will not  be
necessary for anybody to challenge it before  any  court  of  law.   It  can
simply be ignored.  In case any person or body tries  to  impose  it,  their
act would be illegal.  Therefore, the grievance of the petitioner that  Dar-
ul-Qazas  and  Nizam-e-Qaza  are  running  a  parallel  judicial  system  is
misconceived.



       As  observed  earlier,  the  Fatwa  has  no  legal  status   in   our
Constitutional scheme.  Notwithstanding that  it  is  an  admitted  position
that Fatwas have been  issued  and  are  being  issued.   All  India  Muslim
Personal Law Board feels the “necessity of establishment  of  a  network  of
judicial system throughout the country and  Muslims  should  be  made  aware
that they should get their disputes decided by the  Quazis”.   According  to
the All India Muslim Personal Law Board “this  establishment  may  not  have
the police powers but shall have the book of Allah in  hand  and  sunnat  of
the Rasool and all decisions  should  be  according  to  the  Book  and  the
Sunnat.  This will bring the  Muslims  to  the  Muslim  Courts.   They  will
 get justice”.

      The object of establishment of such a court may  be  laudable  but  we
have no doubt in our mind that it has no legal status.  It is bereft of  any
legal pedigree and has no sanction in laws of the land.  They are  not  part
of the corpus juris of the State.  A Fatwa is an opinion, only an expert  is
expected to give.  It is not a decree, not  binding  on  the  court  or  the
State or the individual.  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.  It is within the discretion of the  persons
concerned either to accept, ignore or reject  it.   However,  as  the  Fatwa
gets strength from the religion; it causes serious psychological  impact  on
the person intending not to abide by that.  As projected by  respondent  No.
10 “God fearing Muslims obey the Fatwas”.  In the words  of  respondent  No.
10 “it is for the persons/parties who obtain Fatwa to abide by  it  or  not.
It, however, emphasises that “the persons who are God  fearing  and  believe
that they are answerable to the Almighty and have to face  the  consequences
of their doings/deeds, such are the  persons,  who  submit  to  the  Fatwa”.
Imrana’s case is an eye-opener in  this  context.   Though  she  became  the
victim of lust of her father in law, her marriage was declared unlawful  and
the innocent husband was restrained from keeping physical relationship  with
her.  In this way a declaratory  decree  for  dissolution  of  marriage  and
decree for perpetual injunction were passed.  Though neither  the  wife  nor
the husband had approached for any opinion, an opinion was  sought  for  and
given at the instance of a journalist,  a  total  stranger.   In  this  way,
victim has been punished.  A country governed by rule of law  cannot  fathom
it.

In our opinion, one may not object to  issuance  of  Fatwa  on  a  religious
issue or any other issue so long it does not infringe  upon  the  rights  of
individuals guaranteed under law.  Fatwa may be issued in respect of  issues
concerning the community at large at the instance of a  stranger  but  if  a
Fatwa is sought by a complete  stranger  on  an  issue  not  concerning  the
community at large but individual, than the Darul-Qaza or  for  that  matter
anybody may consider the desirability  of  giving  any  response  and  while
considering it should not be completely unmindful of the  motivation  behind
the Fatwa.  Having regard to the fact that a  Fatwa  has  the  potential  of
causing immense devastation, we feel impelled to  add  a  word  of  caution.
We would like to advise the Dar-ul-Qaza or for that matter  anybody  not  to
give any response or issue Fatwa concerning an individual, unless asked  for
by the person involved or the person having direct interest in  the  matter.
However, in a case the person involved or the person directly interested  or
likely to be  affected  being  incapacitated,  by  any  person  having  some
interest in the matter. Issuance of Fatwa on rights, status  and  obligation
of individual Muslim, in our  opinion,  would  not  be  permissible,  unless
asked for by the person concerned or in case of incapacity,  by  the  person
interested.  Fatwas touching  upon  the  rights  of  an  individual  at  the
instance of rank strangers  may  cause  irreparable  damage  and  therefore,
would be absolutely uncalled for.  It shall be in violation of  basic  human
rights.  It cannot be used to punish innocent.  No religion including  Islam
punishes the innocent.  Religion cannot be allowed to be  merciless  to  the
victim. Faith cannot be used as dehumanising force.



      In the light of what we have observed above, the prayer  made  by  the
petitioner in the terms sought for cannot be granted.  However,  we  observe
that no Dar-ul-Qazas or for that matter, any  body  or  institution  by  any
name, shall give verdict or issue Fatwa touching  upon  the  rights,  status
and obligation, of an individual unless such an  individual  has  asked  for
it. In the case of incapacity of such an individual, any  person  interested
in the welfare of such person may be permitted to  represent  the  cause  of
concerned individual.  In any event, the decision or  the  Fatwa  issued  by
whatever body being not emanating from any  judicial  system  recognised  by
law, it is not binding on anyone including the person,  who  had  asked  for
it.  Further, such an adjudication or Fatwa does not have  a  force  of  law
and, therefore, cannot be enforced by any  process  using  coercive  method.
Any person trying to enforce that by any method shall be illegal and has  to
be dealt with in accordance with law.



      From the conspectus of what we have observed  above,  we  dispose  off
the writ petition with the observation aforesaid, but without any  order  as
to the costs.



   ………………………………………………………………J

   (CHANDRAMAULI KR. PRASAD)



                           ………………………………………………………………J

                                   (PINAKI CHANDRA GHOSE)

NEW DELHI,
July 7, 2014.

-----------------------
18





No comments:

Post a Comment

Note: Only a member of this blog may post a comment.