A Challenge to develop visionary system and magnetise faithful to righteous path
By SYYED MANSOOR AGHA
An indirect attempt to bring India under universal uniform civil law was frustrated when the Supreme Court dismissed a PIL to declare Fatwa and Dar-ul-Qaza as un-constitutional. The petition was filed by one Vishwa Lochan Madan in 2005 after infamous Imrana rape case. All India Muslim Personal Law Board (AIMPB), Imarat-e-Shari’ah and Dar-ul Uloom Deoband were made respondents along with Union and some State Governments. Fatwa is declaration of religious opinion and Dar-ul-Qaza is the Islamic system to settle disputes according to the Islamic Shari’ah.
The two-member bench presided over by Justice Chandramauli Kumar Prasad with Justice Pinaki Chandra Ghose, in a unanimous judgment pronounced on 7 July 2014 held that the act of issuing religious opinion (Ifta) and resolution of disputes (Qaza) under Dar-ul-Qaza system are not illegal. A Fatwa or decree of Dar-ul-Qaza is not legally binding in India, and parties are at liberty to ignore or accept it; it does not constitute ‘parallel Justice System’. Though these opinions of Mufti and Dar-ul-Qaza do not hold legal sanction, yet they are not illegal at all. However, media reports created a lot of confusion.
THE PETITION
The petition pleaded that Fatwa and Dar-ul-Qaza constitute parallel legal system and should be banned. Rejecting the argument of the petitioner, who is an Advocate in SC, the court declared, “The writ petition is based on ignorance and/or misconception that they are parallel courts or judicial system.”
The petitioner sought reliefs as under:
a. A declaration that the movement/ activities being pursued by AIMPLB and other similar organisations for establishment of Muslim Judicial System and setting up of Dar-ul-Qazas in India are absolutely illegal, illegitimate and unconstitutional.
b. The Fatwas and the judgments pronounced by Dar-ul-Qaza have no place in the Indian Constitutional system, and the same are unenforceable being wholly non-est and void ab-initio.
c. A direction to the Union of India and the States concerned to effectively disband and diffuse all Dar-ul-Qazas and the Shari’ah Courts and to ensure that the same do not function to adjudicate any matrimonial disputes under the Muslim Personal Law.
d. 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 among Muslims.
e. To direct the AIMPLB, 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.
These prayers shed enough light on the petitioner’s intention. Obviously, he wanted to block adherence to Shari’ah Law by banning Fatwa and Dar-ul-Qaza, the systems of opinion and application of Shari’ah Laws in family matters, which is a bona-fide right of the community under the Constitution of India and under “Application of Shari’ah Act-1935” The Supreme Court declined to grant any of his prayers and broadly recognised the views presented by AIMPLB, Dar-ul-Uloom Deoband and Union Government of India.
LEGAL STATUS
Examining prayer (a) “whether Dar-ul-Qaza is a parallel court and ‘Fatwa’ has any legal status”, the court outlined basic features of a Judicial System, and observed:
“A Qazi or Mufti has no authority or power to impose his opinion and enforce his Fatwa on anyone by any coercive method. It has no legal sanction and cannot 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.”
All other prayers automatically become irrelevant after the court made it clear that in the absence of fundamental features of a legal court, Fatwa and Dar-ul-Qaza, do not constitute “parallel court system”.
The court said, “The object of establishment of such a court may be laudable but we have no doubt that it has no legal status” and that “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.”
The court further observed, “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 (Darul Uloom Deoband, “God fearing Muslims obey the Fatwas.”
THE IMRANA ISSUE
The court quoted the fatwa related to Imrana issue as a bad incidence and observed,
“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, then the Dar-ul-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.”
It may be recalled that a journalist had approached for fatwa after Imrana alleged her old father-in law. The judgment quoted the Fatwa:
“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 Qur’ān says: “Marry not the woman whom your father copulated.”
In this case neither the accused admitted any guilt, nor was the accusation of the women proved beyond doubt, therefore application of “Haram Musahira” was out of context. It may also be noted that Fatwa in question only says that the “son can’t keep physical relationship with her”; it neither invalidated her Nikah nor declared her the rapist’s spouse. The woman also was not asked to leave her husband’s house and abandon her children as the media mischievously made out to tarnish the Islamic Law as atrocious and horrific.
The Qur’ān has rightly invalidated a woman copulated with his father. Father also cannot keep a woman as his wife who has copulated with his real son. (Qur’ān-4:21) It is grossly unethical and shameful if a woman shares bed with a man and his father/son.
WELCOME ADVICE
The SC advice that fatwa should not be issued to a stranger in personal matters and should be issued only if a related party approaches is a worth following advice. It will help defeat mischief. We think the same rule must be adopted in courts while accepting a petition. It will save precious time of the courts. For example, the present case was filed by a person who has nothing to do with fatwa or Dar-ul-Qaza. However, whatever his intentions, the case has become a blessing in disguise.
THE CHALLENGE
The court noted, “AIMPLB 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 AIMPLB, “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 (quick and inexpensive).”
This verdict has thrown open a big challenge for AIMPLB and other Muslim bodies to evolve and streamline a comprehensive system of guidance and settlement of disputes in the light of Shari’ah. We will have to create an awareness and atmosphere in which aggrieved parties choose adherence to the righteous path. The Qazis must be well trained and well informed of modern judicial system also, and enlightened enough to innovate and adjudicate in the present day’s society. Any attempt to enforce what is taken from centuries old dictums shall prove counterproductive. They should have knowledge, courage and vision to extract conclusions from the Qur’ān and Sunnah.
This judgment has deprived the Indian Muslims of their plea that the courts deny them their right to follow their Personal Law. If they knock at the doors of the courts, they will get only what they get and if they want to follow Shari’ah, they have option wide open to knock at the right place, the Dar-ul-Qaza.
[syyedagha@hotmail.com]