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
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
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.
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.
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.
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