By Soli J Sorabjee
20th July 2014
Recently our Supreme Court had to determine whether Dar-ul-Uloom of Deoband is a parallel court and whether Fatwas issued by it have any legal status. The petition before the Supreme Court was prompted on account of a fatwa issued by the Dar-ul-Uloom in relation to Imrana, a 28-year-old Muslim woman, mother of five children who was allegedly raped by her father-in-law. According to the fatwa, “if one raped his son’s wife and it is proved through witnesses, or the rapist himself confesses it, Haram Musharat will be proved”. It means the wife of the son will become unlawful forever to him that is the son. The woman with whom father has copulated legally or 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 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.
The issue of the above fatwa was admitted. It was contended that it is within the discretion of the parties who obtain a fatwa to abide by it or not. However, God-fearing Muslims being answerable to the Almighty, obey them, whilst others may defy them.
A Bench of the Supreme Court comprising Justices Chandramauli K Prasad and Pinaki C Ghose ruled that under our constitutional scheme, a fatwa has no legal sanction and cannot be enforced by any legal process. The court clarified that its ruling did not mean that existence of Dar-ul-Quaza or the practice of issuing Fatwas are intrinsically illegal. It is an informal justice delivery system with the objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned to accept, ignore or reject it. However, as the fatwa gets strength from religion, it causes serious psychological impact on the person intending not to abide by it.
Referring to Imrana’s case, the court observed “though she became the victim of lust of her father-in-law, her marriage was declared unlawful and innocent husband was restrained from keeping physical relation with her... In this way, victim has been punished. A country governed by rule of law cannot fathom it”. The court ruled that no Dar-ul-Quazas or, for that matter, anybody or institution by any name, shall give verdict or issue Fatwas touching upon the rights, status and obligation of an individual unless such an individual has asked for it and in any event because a fatwa issued does not emanate from any judicial system recognised by law, it is not binding on anyone, including the person who had asked for it, and it cannot be enforced by any process using coercive method. And the act of any person trying to enforce the fatwa by coercive method will be illegal. A historic judgment.
Mutilation of Angrezi:
I do not belong to the Angrezi Hatao brigade. Whether we like it or not, English language opens the window to the outside world and for sheer considerations of expediency, it should be retained. But for God’s sake, let us not mutilate as it frequently happens in the electronic media. For example, a participant vociferously wanted to say that Mr X had colluded with Mr Y but he repeatedly said ‘collided’ instead of ‘colluded’ with him, sublimely unaware of the difference between these two expressions.
Recently a veteran sports commentator when asked about English authorities’ purported action against Indian cricketer Ravinder Jadeja said it was ‘retrospective’ whereas what he meant was the act was ‘retaliatory’. Another frequent expression is ‘politically motivated’ in or out of context and where politics is not involved at all. Pronunciations are terrible. ‘Rebels’ are pronounced as ‘reebels’ and architect as ‘architekts’. Perhaps Mulayam Singh Yadav has a point in his anti-Angrezi campaign.
Sorabjee is a former Attorney General of India