By New Age Islam Edit Desk
11 July 2014
Pronouncing its judgment on a writ petition filed by an advocate Vishwa Lochan Madan challenging the legality of Darul Qadha or Darul Ifta, the honourable Supreme Court said that Darul Qadha or any Mufti cannot issue any Fatwa nor can it enforce it on anyone who has not sought its fatwa. The Court said that belief or religion cannot be used to harass an innocent individual. The Darul Qadha cannot issue a Fatwa sought by a third party and enforce it. They can only give their opinion and so they cannot run a parallel legal system.
Muslim Personal Law Board and Darul Ulum Deoband had argued that Darul Qadha was not a parallel legal system. It was only a platform for resolving mutual disputes and its opinion is not binding on the Fatwa seekers.
Supreme Court said that sometimes the Fatwas issued by Darul Qadha violate human rights. Muslim Personal Law Board had earlier made it clear that Fatwas were only the opinions of Muftis and they were not authorised to enforce their Fatwas.
The court cited the example of the well-known Imrana case. The woman was raped by her father-in-law. A reporter sought fatwa on the issue. The mufti had ruled that she should get divorce from her husband and be married to her father-in-law. In this case, the reporter had nothing to do with the case but he sought a fatwa on the matter relating to the life of a woman. The fatwa was a harassment of the lady and a violation of her human rights as she had not sought any fatwa. The Darul Qadha should not have given this fatwa on the reporter's request. Therefore, Supreme Court ruled that a unrelated person cannot seek fatwa on someone else’s issue.
Maulana Aneesur Rahman, Imarat Shariah, has said that the Supreme Court judgment will not affect the working of Shariah based courts.
The honourable Supreme Court ruled out a ban on Shariah based courts on the basis that Shariah based courts are not authorised to enforce their Fatwas and so their status was that of an arbitration forum where disputes are resolved through mutual consent and their opinion is not binding on any party.
Maulana Jalaluddin Umri, Ameer of Jamat-e-Islami said that Supreme Court’s judgment not banning the Shariah Courts and acknowledging the services of such courts in resolving mutual disputes was a positive approach. He said that when the courts of the country are burdened with millions of cases, not acknowledging the services of Shariah Courts in resolving the mutual disputes of its citizens would be an injustice. Renowned advocate Zafaryab Geelani said that the ruling will only benefit us, it will not harm us. Famous historian Irfan Habib said that we should have no disagreement with the judgment.
The Indian Constitution has recognised the Shariah Laws to be the basis for adjudication on the personal issues or disputes of Muslims relating to marriage, divorce, Khula, inheritance, Waqf properties, maintenance to the divorced etc. For this purpose, some Acts were promulgated like Kazi Act 1880 to give legality to Marriage Registrars, Shariah Application Act 1937 recognising Muslim Personal Law, Waqf Acts Waqf Act (1913,1923, 1930, 1995), Muslim Marriage Act, 1939 that gives a Muslim woman the right to seek dissolution of marriage under various circumstances.
Maulana Khalid Rasheed Firangi Mahli said that according to Shariah Act 1937 if both the parties are Muslim and the matters are related to Nikah, Talaque, Khula and other issues of Muslims family life the judgements of Shariah courts will be deemed legal.
Muslim Personal Law Board General Secretary Maulana Syed Nizamuddin welcomed Supreme Court Judgment that refused to ban Shariah Courts and said that the judgment will not affect the status of Shariah courts. He said that Shariah Courts have never been approved by law. According to Shariah Act 1937, Shariah Courts give opinions on a case when the two parties are Muslim.
On the whole, the judgment of the Supreme Court has been welcomed by the Muslims in general as it does not ban the Shariah Courts (Darul Qadha) and Darul Ifta.
However, the Supreme Court could have taken this opportunity to press for reforms in the Shariah Courts and Darul Iftas. There are a number of organisations with their Darul Ifta and Darul Qadha in the country which resolve disputes between two Muslims on matters relating to inheritance, divorce, Khula etc. But sometimes, their Fatwas create controversy like in Imrana case.
Apart from that, there are many unscrupulous Darul Iftas and Muftis who issue Fatwas in lieu of money. These paid Fatwas ruin lives and families. There should be reform in this area also so that corruption in the issuance of Fatwas can be eliminated and a just system of Darul Qadha and Darul Ifta can be established.
The Muslim world has changed a lot along with other communities and circumstances have also changed. But the Islamic jurists stick to the same old books of jurisprudence.
Fatawa-e-Alamgiri that was in 300 volumes was the basis for Shariah based judgments in India at the time of Aurangzeb. It remained a book of reference on Islamic issues until the 18th century. But when Sayyid Muhammad Ameen ibn `Aabideen ash-Shaami also known as just Al Shaami compiled his voluminous work on Islamic Jurisprudence, Radd al Muhtar in the 18th century, the Islamic scholars preferred Radd al Muhtar to Fatawa-e-Alamgiri because the former was more comprehensive and was in tune with the problems of the age. Now the jurists and Darul Iftas in India generally consult Radd al Muhtar or Durr al Mukhtar by Al Shaami to resolve issues of Muslims.
Therefore, the argument can be given that in 21st century when life has progressed and the world has changed in many ways, a more comprehensive book on jurisprudence should be compiled that will be in accordance with the life of Muslims in the modern world and will guide on many issues that did not exist in the 18th century and are faced with the Muslims of today.