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
REPORTABLE
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
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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
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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
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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.
4
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.
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According to the petitioner, adjudication of
disputes is essentially the function of sovereign
State, which can never be abdicated or
parted with.
5
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
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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
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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
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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.
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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.
9
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-
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Qaza is a parallel court and ‘Fatwa’ has any legal
status.
10
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
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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.
11
As observed earlier, the Fatwa has no legal
status in our Constitutional scheme.
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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”.
12
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
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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-
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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
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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
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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
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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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