Whether fatwas are enforceable?

The Supreme Court was called upon to answer a question  whether Dar-ul-Qaza is a parallel court and ‘Fatwa’ has any legal status.

The Court observed that it is the adjudication done by a legal authority sanctioned by law which is enforceable and binding unless upset by an authority provided by law itself. The decisions of Dar-ul-Qaza or the Fatwa stand on a contrary footing. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature and therefore, their opinion or Fatwa as 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. It has no legal sanction and is not enforceable. 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. Any effort on the part of a person or body to impose it would be illegal. A Fatwa was defined to be an opinion which only an expert is expected to give and it cannot be equalled with a decree. It is not binding on the Court or the State or the individual as it is not sanctioned under the constitutional scheme.

However, as Court further clarified, the very existence of Dar-ul-Qaza or practice of issuing Fatwa is not illegal. It can simply be stated as an informal justice delivery system with an objective of bringing about amicable settlement between the parties and it is within the discretion of the persons concerned either to accept, ignore or reject it. 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.

It was further pointed out that 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 anybody may consider the desirability of giving any response and while considering it should not be completely unmindful of the motivation behind the Fatwa, as it may cause irreparable damage and would be in violation of basic human rights. It cannot be used to punish innocent.
It was eventually concluded that no Dar-ul-Qazas or for that matter, anybody 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 386 OF 2005

VISHWA LOCHAN MADAN

UNION OF INDIA & ORS.VERSUS

Dated;July 7, 2014.

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.

that

All

It is the assertion of the petitioner

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

judicialdifficult for Muslim women to get justice in the

prevalent

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

petitioner,

different

become

necessary.

the

Board,

States

and

According

to the

Imarra-e-Sharia of

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

judicial

Muslims

country

system

living

are

aimed

in

functioning

to

this

as

administer

country

parallel

justice

according

to

to

Shariat i.e. Islamic Canonical Law based on the

teachings of the Quoran and the traditions of the

file this writ petition is the galore of obnoxiousProphet.

What perhaps prompted the petitioner to

Fatwas including a Fatwa given by Dar-ul-Uloom of

Deoband in relation to Imrana’s incident.

a

28

years

old

Muslim

woman,

mother

Imrana,

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

father copulated”

The

passed

Fatwa

a

has

decree

dissolved

for

whom

the

perpetual

your

marriage

and

injunction

Uloom.restraining the husband and wife living together,

though none of them ever approached the Dar-ul-

Another Fatwa of which our attention is drawn

rules that no police report can be filed against

the

father-in-law

raped her.

of

Asoobi,

who

had

allegedly

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

parallel

is

striving

Muslim

for

judicial

the

establishment

system

in

of

India.

Page 4

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

activities

declaration

being

pursued

that

by

the

All

movement/

India

Muslim

Personal Law Board and other similar organizations

for establishment of Muslim Judicial System and

setting up

of

Shariat Court

illegitimate

Dar-ul-Qazas

in

and

India

are

(Muslim

Courts)

absolutely

unconstitutional.

and

illegal,

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.

Union

Petitioner further seeks direction to the

of

forthwith

India

take

and

the

effective

States

steps

to

concerned

disband

to

and

diffuse all Dar-ul-Qazas and the Shariat Courts

anyand to ensure that the same do not function to

adjudicate

matrimonial-disputes

Muslim Personal Law.

under

the

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.

administer

Further,

criminal

Dar-ul-Qaza

justice

and

does

it

not

really

functions as an arbitrator, mediator, negotiator

or

conciliator

in

matters

pertaining

to

family

anydispute

or

other

between the Muslims.

India,

Dar-ul-Qaza

alternative settle

to

expeditiously

in

be

civil

nature

perceived

resolution

disputes

an

of

According to the Union of

can

dispute

strives 

dispute

mechanism,

outside

amicable

as

and

the

an

which

courts

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.

not

denied

that

Fatwas

The Union of India has

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

parallelasserts

that

Dar-ul-Qaza/Nizam-e-Qazas

judicial

systems

are not

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

implemented

ignorance

or

and

the

and/or

force

writ

to

get

petition

misconception

their

is

that

Fatwas

based

they

on

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

Respondent

No.

10

background,

is

that

it

the

is

plea

not

of

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

disputes.

by

law

for

adjudication

of

their

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-

As it is well settled, the adjudication by aQaza is a parallel court and ‘Fatwa’ has any legal

status.

legal authority sanctioned by law is enforceable

and binding and meant to be obeyed unless upset by

an authority provided by law itself.

adjudicate

must

flow

from

a

The power to

validly

made

law.

Person deriving benefit from the adjudication must

have

the

right

required

to

to

make

enforce

it and

provision in

the

person

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

legislature.

by

any

law

made

by

the

competent

Therefore, the opinion or the Fatwa

issued by Dar-ul-Qaza or for that matter anybody

is not adjudication of dispute by an authority

or Mufti has no authority or powers to impose hisunder a judicial system sanctioned by law.

A Qazi

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

either

not

by

be

the

enforced

Dar-ul-Qaza

by

any

legal

issuing

that

process

or

person concerned or for that matter anybody.

the

The

person or the body concerned may ignore it and it

will not be necessary for anybody to challenge it

before

any

ignored.

court

of

law.

It

can

simply

be

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.

Notwithstanding that it is an admitted position

that Fatwas have been issued and are being issued.

All

India

“necessity

Muslim

of

Personal

Law

establishment

Board feels the

a network of

of

judicial system throughout the country and Muslims

should be made aware that they should get their

disputes decided by the Quazis”.

All

India

Muslim

Personal

According to the

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.

Muslims

to

the

Muslim

This will bring the

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

individual.binding

on

the

It

court

is

or

not

the

State

sanctioned

or the

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

submit to the Fatwa”.

are

the

persons,

who

Imrana’s case is an eye-

victim of lust of her father in law, her marriageopener in this context.

Though she became the

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.

victim has been punished.

In this way,

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.

issued

in

respect

of

issues

Fatwa may be

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

be completely unmindful of the motivation behindanybody may consider the desirability of giving

any response and while considering it should not

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

basicabsolutely uncalled for.

of

punish

human

It shall be in violation

rights.

innocent.

No

It

cannot

religion

punishes the innocent.

be

used

including

to

Islam

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

individual has

incapacity of

an

individual

asked

such

for

an

it.

unless such an

In case of

individual,

the

any

person

interested in the welfare of such person may be

permitted

to

individual.

represent

the

cause

of

concerned

In any event, the decision or the

Fatwa issued by whatever body being not emanating

from any judicial system recognised by law, it is

ornot binding on anyone including the person, who

had asked for it.

Fatwa

does

not

Further, such an adjudication

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.