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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 – for full text – LAW FOR ALL

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