SC says Shariat courts illegal

The court said the Shariat courts can only pass edicts and only when an affected person approaches it

Shariat courts run by Muslim clerics have no legal sanction and their decisions are not binding on community members, the Supreme Court ruled on Monday, restraining fora like Dar-ul-Qazas from giving verdicts or issuing fatwas against a person who has not asked for it.

The apex court, however, refused to declare Dar-ul-Qaza or practice of issuing fatwas as illegal, saying it is informal justice delivery system for bringing amicable settlement between the parties and it is for the persons concerned to accept, ignore or reject it. But it did caution Dar-ul-Qaza not to issue fatwa against any individual, who has not sought its arbitration. It also termed illegal enforcing of any fatwa by coercion.

Few, if any, leaders from the community disputed the ruling. Zafaryab Jilani, member of the Muslim Personal Law Board, said, "We are not doing anything parallel to the judicial system and we don't say that any order passed by a Qazi is binding on all. Our sole motto is to resolve a matter with the consent of two parties involved in accordance with Shariat."

Journalist and former MP Shahid Siddiqui welcomed the ruling. He said there has never been any legal sanctity to Shariat courts. “Muslims have never claimed these courts have any legal sanction. These courts play the role of arbitrators in family matters such as divorce or property disputes. There are people who abide by their ruling and there are those who don’t,” he said.   

A Bench of judges C K Prasad and Pinaki Chandra Ghose said a decision or a fatwa issued by whatever body was not binding on anyone, including the person who had asked for it, as such a fatwa is not backed by law. "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,” the court said.

Khalid Rasheed Farangi, a Muslim cleric, said that under the Constitution, Muslims have the right to work and act according to Muslim personal law. "One must also keep in mind that Shariat Application Act, 1937, has very clearly said in those cases in which both parties are Muslims and the matter is related to nikaah, talaaq, zihar, lian, khula and mubaraat, the decisions will be taken in the light of the Muslim personal law," he said, adding that the verdict needs to be studied properly before a final statement can be given.

Anisur Rehman, member of Imarat Shariah, Patna, agreed with the apex court ruling, saying the judgment is not wrong and it is not going to hinder the functioning of Shariat courts. "For arbitration, when two parties or people consensually approach the Shariat court, it is lawful. The Supreme Court is not wrong, but I need to go through the entire verdict properly," he said.

The ruling of the apex court was delivered in a public interest suit moved 10 years ago that alleged Muslim bodies were running parallel courts. The Muslim Personal Law Board, made a party in the case, submitted it was only trying to mediate between disputing parties and it did not interfere with the civil laws of the country. It had denied there was a parallel judicial system for Muslims.

The case was filed in the wake of an incident in which a woman was told to leave her husband and children and live with her father-in-law who had raped her. Such kinds of fatwas are being issued, according to the petition, violating the fundamental rights of the citizens.