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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
C!"#$%"&"'() *%. P%"+"$
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!" stri#es
for the establishment of parallel $udicial system
in India as in its opinion it is extremely
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difficult for Muslim women to get $ustice in the
pre#alent $udicial system. %urther& under the
pressure of expensi#e and protracted litigation it
has become #ery difficult for the downtrodden and
wea'er section of the society to get $ustice.
(herefore& to a#ail the laws of )hariat& according
to the Board& establishment of Islamic $udicial
system has become necessary. According to the
petitioner& the Board& Imarra*e*)haria of
different )tates and Imarra*e*)haria& Phulwari
)hariff ha#e established +ar*ul*,a-as& spread all
o#er the country. .amps are being organised to
train ,a-is and /aib ,a-is to administer $ustice
according to )hariat. +ar*ul*,a-a and /i-am*e*,a-a
are interchangeable terms. It is the allegation
of the petitioner that +ar*ul*,a-as& spread all
o#er the country are functioning as parallel
$udicial system aimed to administer $ustice to
Muslims li#ing in this country according to
)hariat i.e. Islamic .anonical Law based on the
teachings of the ,uoran and the traditions of the
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Prophet. 0hat perhaps prompted the petitioner to
file this writ petition is the galore of obnoxious
%atwas including a %atwa gi#en by +ar*ul*Uloom of
+eoband in relation to Imrana!s incident. Imrana&
a 12 years old Muslim woman& mother of fi#e
children was allegedly raped by her father*in*law.
(he 3uestion arose about her marital status and
those of her children born in the wedloc' with
rapist!s son. (he %atwa of +ar*ul*Uloom in this
connection reads as follows4
5If one raped his son!s wife
and it is pro#ed through
witnesses& or the rapist himself
confesses it& 6aram Musaharat will
be pro#ed. It means that the wife
of the son will become unlawful
fore#er to him i.e. the son. (he
woman with whom father has
copulated legally or had sexual
intercourse illegally in both
ways& the son can!t 'eep physical
relationship with her. (he 6oly
,uran says4
5Marry not the woman whom your
father copulated7
(he %atwa has dissol#ed the marriage and
passed a decree for perpetual in$unction
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restraining the husband and wife li#ing together&
though none of them e#er approached the +ar*ul*
Uloom.
Another %atwa 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 %atwa& father*in*law
could ha#e been blamed only if there had either
been a witness to the case or the #ictim!s husband
had endorsed Asoobi!s allegation. 8et another
%atwa& which has been brought to our notice is in
connection with 9atsonara& a :; year old Muslim
woman& who was as'ed to accept the rapist father*
in*law as her real husband and di#orce her
husband.
Petitioner alleges that all these %atwas ha#e
the support of All India Muslim Personal Law Board
and it is stri#ing for the establishment of
parallel Muslim $udicial system in India.
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According to the petitioner& ad$udication of
disputes is essentially the function of so#ereign
)tate& which can ne#er be abdicated or
parted with.
In the aforesaid bac'ground& the petitioner
has sought a declaration that the mo#ement<
acti#ities being pursued by All India Muslim
Personal Law Board and other similar organi-ations
for establishment of Muslim 9udicial )ystem and
setting up of +ar*ul*,a-as (Muslim .ourts" and
)hariat .ourt in India are absolutely illegal&
illegitimate and unconstitutional. %urther
declaration sought for is that the $udgments and
fatwas pronounced by authorities ha#e no place in
the Indian .onstitutional system& and the same are
unenforceable being wholly non*est and #oid ab*
initio. Petitioner further see's direction to the
Union of India and the )tates concerned to
forthwith ta'e effecti#e steps to disband and
diffuse all +ar*ul*,a-as and the )hariat .ourts
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and to ensure that the same do not function to
ad$udicate any matrimonial*disputes under the
Muslim Personal Law. Petitioner!s prayer further
is to restrain the respondents from establishing a
parallel Muslim 9udicial )ystem& inter*meddling
with the marital status of Indian Muslims and to
pass any $udgments& remar's 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
(=espondent /o.;"& +ar*ul*Uloom +eoband& and other
+ar*ul*Ulooms in the country& not to train or
appoint ,a-is& /aib*,a-is or Mufti for rendering
any $udicial ser#ices of any 'ind.
(he stand of the Union of India is that %atwas
are ad#isory in nature and no Muslim is bound to
follow those. %urther& +ar*ul*,a-a does not
administer criminal $ustice and it really
functions as an arbitrator& mediator& negotiator
or conciliator in matters pertaining to family
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dispute or any other dispute of ci#il nature
between the Muslims. According to the Union of
India& +ar*ul*,a-a can be percei#ed as an
alternati#e dispute resolution mechanism& which
stri#es to settle disputes outside the courts
expeditiously in an amicable and inexpensi#e
manner and& in fact& ha#e no power or authority to
enforce its orders and& hence& it cannot be termed
as either in conflict with or parallel to the
Indian 9udicial )ystem. (he Union of India has
not denied that %atwas as alleged by the
petitioner were not issued but its plea is that
they were not issued by any of the +ar*ul*,a-a.
In any e#ent& according to the Union of India& few
bad examples may not $ustify abolition of system&
which otherwise is found useful and effecti#e.
=espondent /o.;& All India Muslim Personal law
Board does not deny the allegations that it had
established +ar*ul*,a-as and training ,a-is and
/aib ,a-is and the practice of issuing %atwas but
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asserts that +ar*ul*,a-a</i-am*e*,a-as are not
parallel $udicial systems established in
derogation of or in conflict with the recognised
$udicial system. It is informal $ustice deli#ery
system aimed to bring about amicable settlement of
matrimonial disputes between the parties.
According to this respondent& +ar*ul*,a-as ha#e no
authority& means or force to get their %atwas
implemented and the writ petition is based on
ignorance and<or misconception that they are
parallel courts or $udicial system.
=espondent /o.:>& +ar*ul*Uloom& +eoband admits
issuing %atwa in Imrana!s case as per %i3ah*e*
6anafi& which is based on ,uaran and 6adith but
asserts that it has no agency or powers to enforce
its %atwas. It is within the discretion of the
persons or the parties who obtain %atwas to abide
by it or not. 6owe#er& according to =espondent
/o.:>& ?od fearing Muslims being answerable to the
Almighty& obey the %atwas& others may defy them.
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In the aforesaid bac'ground& the plea of
=espondent /o. :> is that it is not running
parallel $udiciary.
(he plea of the )tate of Madhya Pradesh is
that %atwa issued by +ar*ul*,a-a has no legal
#alue.
(he stand of the )tate of U.P. is that %atwas
are ad#isory in nature. (hey are not mandatory
and do not prohibit any Muslim to approach .ourts
established by law for ad$udication of their
disputes. 6ence& +ar*ul*,a-a does not act as a
parallel .ourt for ad$udication of disputes.
%rom the pleadings of the parties there does
not seem to be any dispute that se#eral +ar*ul*
,a-as presided o#er by the ,a-is exist and they do
issue %atwas. In the present case& what we ha#e
been called upon to examine as to whether +ar*ul*
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,a-a is a parallel court and %atwa! has any legal
status.
As it is well settled& the ad$udication by a
legal authority sanctioned by law is enforceable
and binding and meant to be obeyed unless upset by
an authority pro#ided by law itself. (he power to
ad$udicate must flow from a #alidly made law.
Person deri#ing benefit from the ad$udication must
ha#e the right to enforce it and the person
re3uired to ma'e pro#ision in terms of
ad$udication has to comply that and on its failure
conse3uences as pro#ided in law is to ensue.
(hese are the fundamentals of any legal $udicial
system. In our opinion& the decisions of +ar*ul*
,a-a or the %atwa do not satisfy any of these
re3uirements. +ar*ul*,a-a is neither created nor
sanctioned by any law made by the competent
legislature. (herefore& the opinion or the %atwa
issued by +ar*ul*,a-a or for that matter anybody
is not ad$udication of dispute by an authority
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under a $udicial system sanctioned by law. A ,a-i
or Mufti has no authority or powers to impose his
opinion and enforce his %atwa on any one by any
coerci#e method. In fact& whate#er may be the
status of %atwa during Mogul or British =ule& it
has no place in independent India under our
.onstitutional scheme. It has no legal sanction
and can not be enforced by any legal process
either by the +ar*ul*,a-a issuing that or the
person concerned or for that matter anybody. (he
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. (herefore&
the grie#ance of the petitioner that +ar*ul*,a-as
and /i-am*e*,a-a are running a parallel $udicial
system is misconcei#ed.
As obser#ed earlier& the %atwa has no legal
status in our .onstitutional scheme.
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/otwithstanding that it is an admitted position
that %atwas ha#e been issued and are being issued.
All India Muslim Personal Law Board feels the
5necessity of establishment of a networ' of
$udicial system throughout the country and Muslims
should be made aware that they should get their
disputes decided by the ,ua-is7. According to the
All India Muslim Personal Law Board 5this
establishment may not ha#e the police powers but
shall ha#e the boo' of Allah in hand and sunnat of
the =asool and all decisions should be according
to the Boo' and the )unnat. (his will bring the
Muslims to the Muslim .ourts. (hey will
get $ustice7.
(he ob$ect of establishment of such a court
may be laudable but we ha#e 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. (hey are not part of the corpus juris of
the )tate. A %atwa is an opinion& only an expert
is expected to gi#e. It is not a decree& not
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binding on the court or the )tate or the
indi#idual. It is not sanctioned under our
constitutional scheme. But this does not mean that
existence of +ar*ul*,a-a or for that matter
practice of issuing %atwas are themsel#es illegal.
It is informal $ustice deli#ery system with an
ob$ecti#e of bringing about amicable settlement
between the parties. It is within the discretion
of the persons concerned either to accept& ignore
or re$ect it. 6owe#er& as the %atwa gets strength
from the religion@ it causes serious psychological
impact on the person intending not to abide by
that. As pro$ected by respondent /o. :> 5?od
fearing Muslims obey the %atwas7. In the words of
respondent /o. :> 5it is for the persons<parties
who obtain %atwa to abide by it or not. It&
howe#er& emphasises that 5the persons who are ?od
fearing and belie#e that they are answerable to
the Almighty and ha#e to face the conse3uences of
their doings<deeds& such are the persons& who
submit to the %atwa7. Imrana!s case is an eye*
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opener in this context. (hough she became the
#ictim of lust of her father in law& her marriage
was declared unlawful and the innocent husband was
restrained from 'eeping physical relationship with
her. In this way a declaratory decree for
dissolution of marriage and decree for perpetual
in$unction were passed. (hough neither the wife
nor the husband had approached for any opinion& an
opinion was sought for and gi#en at the instance
of a $ournalist& a total stranger. In this way&
#ictim has been punished. A country go#erned by
rule of law cannot fathom it.
In our opinion& one may not ob$ect to issuance
of %atwa on a religious issue or any other issue
so long it does not infringe upon the rights of
indi#iduals guaranteed under law. %atwa may be
issued in respect of issues concerning the
community at large at the instance of a stranger
but if a %atwa is sought by a complete stranger on
an issue not concerning the community at large but
indi#idual& than the +arul*,a-a or for that matter
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anybody may consider the desirability of gi#ing
any response and while considering it should not
be completely unmindful of the moti#ation behind
the %atwa. 6a#ing regard to the fact that a %atwa
has the potential of causing immense de#astation&
we feel impelled to add a word of caution. 0e
would li'e to ad#ise the +ar*ul*,a-a or for that
matter anybody not to gi#e any response or issue
%atwa concerning an indi#idual& unless as'ed for
by the person in#ol#ed or the person ha#ing direct
interest in the matter. 6owe#er& in a case the
person in#ol#ed or the person directly interested
or li'ely to be affected being incapacitated& by
any person ha#ing some interest in the matter.
Issuance of %atwa on rights& status and obligation
of indi#idual Muslim& in our opinion& would not be
permissible& unless as'ed for by the person
concerned or in case of incapacity& by the person
interested. %atwas touching upon the rights of an
indi#idual at the instance of ran' strangers may
cause irreparable damage and therefore& would be
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absolutely uncalled for. It shall be in #iolation
of basic human rights. It cannot be used to
punish innocent. /o religion including Islam
punishes the innocent. =eligion cannot be allowed
to be merciless to the #ictim. %aith cannot be
used as dehumanising force.
In the light of what we ha#e obser#ed abo#e&
the prayer made by the petitioner in the terms
sought for cannot be granted. 6owe#er& we obser#e
that no +ar*ul*,a-as or for that matter& any body
or institution by any name& shall gi#e #erdict or
issue %atwa touching upon the rights& status and
obligation& of an indi#idual unless such an
indi#idual has as'ed for it. In the case of
incapacity of such an indi#idual& any person
interested in the welfare of such person may be
permitted to represent the cause of concerned
indi#idual. In any e#ent& the decision or the
%atwa issued by whate#er body being not emanating
from any $udicial system recognised by law& it is
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not binding on anyone including the person& who
had as'ed for it. %urther& such an ad$udication
or %atwa does not ha#e a force of law and&
therefore& cannot be enforced by any process using
coerci#e method. Any person trying to enforce
that by any method shall be illegal and has to be
dealt with in accordance with law.
%rom the conspectus of what we ha#e obser#ed
abo#e& we dispose off the writ petition with the
obser#ation 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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