Fatwas have no legal standing: Supreme Court

Dr. Ravishankar K. Mor, Asst. Prof., Dept. of law, Yeshwant Mahavidyalaya, Wardha

VISHWA LOCHAN MADAN Vs UNION OF INDIA & ORS. (W.P. (civil)No. 386/2005) Date of Judgement 07.07.14

OPPORTUNITY LOST

Petitioner alleges that all 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 order to highlight the severity of issue, petitioners presented the instances of a few fatawas which seems to be pertinently violative of rights conferred under part three of the constitution of India. Lets have a look upon then,

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.

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.

Thus the contentions raised in the petition can be summarized as,

  1. Shariat courts and other bodies like Dar-ul-Qazas, Dar-ul-uloom creates parallel court system and are unconstitutional, and
  2. Fatawas issued are in contravention of fundamental rights of the citizen under constitution of India.

Thus this was the opportunity for honourable Supreme Court to decide on the issue which time and again struck news paper headlines in India. Such news of strange fatwas issued by Shariat courts and somewhat similar orders by khap panchayats are not new in India.

The stand taken by Union of India was this

  • Fatwas are advisory in  nature and no Muslim is bound to  follow  those.
  • Further,  Dar-ul-Qazas  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.
  • 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.
  • According to the Union of India, few bad  examples  may not justify abolition  of  system,  which  otherwise  is  found  useful  and effective.

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 but by a Dar-ul-uloom.

Similar was the submission by other respondents, All India Muslim Personal law Board, Dar-ul-Uloom, Deoband, State of UP and State of Maharashtra.

They all raise the same plea that Fatawas are advisory in nature and lack any enforceability. Though 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 them,  God  fearing Muslims being answerable to the Almighty, obey the Fatwas, others  may  defy them. At no point of time respondents denied that fatawas as alleged are against the fundamental rights.

Court while dealing with the issue of Dar-Ul-Qazi courts examine the issue on the basis of source of its authority and as no legislation empower such courts held they do not constitute parallel court system.

This is quite interesting to note here that source of such courts were looked at the legislations, “Dar-ul-Qaza  is  neither  created nor sanctioned by any law made by  the  competent  legislature. ” while such courts always claim authority under the religion and not statute, and court taking plea that there is no state enforceability to the decisions of such courts held they do not create parallel judicial administration, though it is apparent that they are dealing with the process of deciding rights and liabilities of the people and as such very much performing judicial function. So far as enforceability is concerned responded has accepted that god fearing Muslim will honour such fatwas. Was this not enough for the courts to declare such practice unconstitutional? Even a single instance of denying fundamental right of the individual must be dealt with highest constitutional authority; this is rather responsibility of the court to see no individual shall be allowed to waive his fundamental right. But court took lenient view and accepted the argument that such Muslim courts are like alternative dispute resolution mechanisms. This really call for further deliberation at highest level of judiciary through a constitutional bench.

On second issue, whether such fatawa are unconstitutional the court has not come out with clear opinion anyway rather has accepted the right of such bodies to issue fatwas in religious matters and held “A Fatwa is an opinion, only an expert is expected to give.” Rather than declaring any such fatwa illegal and unconstitutional court prefer to use the language “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 the careful reading one can say court has recognised rights of such courts to issue fatwas even if they touch the constitutional rights of the individual, if asked by the concerned person. Does it mean that one can waive his fundamental rights? .

This case was a good opportunity for honourable court to warn the fundamentalist that in the era of constitution, religious fanatics has no place, no such attempt will be tolerated, but court rather than issuing warning merely declared such fatwas having no legal enforceability and has miserably failed to contained the instances which bring shame to this country. This is clearly a case of lost opportunity.

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