Page 1 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

Page 2 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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Page 3 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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Page 4 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.

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Page 5 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

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Page 6 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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Page 7 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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Page 8 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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Page 9 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-

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Page 10 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

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Page 11 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.

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Page 12 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

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Page 13 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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Page 14 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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Page 15 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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Page 16 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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Page 17 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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