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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

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.  It is the assertion of the petitioner  

that  All  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

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difficult for Muslim women to get justice in the  

prevalent  judicial  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  become  necessary.  According  to  the  

petitioner,  the  Board,  Imarra-e-Sharia  of  

different  States  and  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  country  are  functioning  as  parallel  

judicial  system  aimed  to  administer  justice  to  

Muslims  living  in  this  country  according  to  

Shariat i.e. Islamic Canonical Law based on the  

teachings of the Quoran and the traditions of the  

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Prophet.  What perhaps prompted the petitioner to  

file this writ petition is the galore of obnoxious  

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

Deoband in relation to Imrana’s incident.  Imrana,  

a  28  years  old  Muslim  woman,  mother  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  whom  your  father copulated”

The  Fatwa  has  dissolved  the  marriage  and  

passed  a  decree  for  perpetual  injunction  

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restraining the husband and wife living together,  

though none of them ever approached the Dar-ul-

Uloom.   

Another Fatwa 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 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  is  striving  for  the  establishment  of  

parallel  Muslim  judicial  system  in  India.  

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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  declaration  that  the  movement/  

activities  being  pursued  by  All  India  Muslim  

Personal Law Board and other similar organizations  

for establishment of Muslim Judicial System and  

setting  up  of  Dar-ul-Qazas  (Muslim  Courts)  and  

Shariat  Court  in  India  are  absolutely  illegal,  

illegitimate  and  unconstitutional.   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.  Petitioner further seeks direction to the  

Union  of  India  and  the  States  concerned  to  

forthwith  take  effective  steps  to  disband  and  

diffuse all Dar-ul-Qazas and the Shariat Courts  

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and to ensure that the same do not function to  

adjudicate  any  matrimonial-disputes  under  the  

Muslim Personal Law.  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.   Further,  Dar-ul-Qaza  does  not  

administer  criminal  justice  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  civil  nature  

between the Muslims.  According to the Union of  

India,  Dar-ul-Qaza  can  be  perceived  as  an  

alternative  dispute  resolution  mechanism,  which  

strives  to  settle  disputes  outside  the  courts  

expeditiously  in  an  amicable  and  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.  The Union of India has  

not  denied  that  Fatwas  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  

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asserts  that  Dar-ul-Qaza/Nizam-e-Qazas  are  not  

parallel  judicial  systems  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  or  force  to  get  their  Fatwas  

implemented  and  the  writ  petition  is  based  on  

ignorance  and/or  misconception  that  they  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.  

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In  the  aforesaid  background,  the  plea  of  

Respondent  No.  10  is  that  it  is  not  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  by  law  for  adjudication  of  their  

disputes.  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-

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Qaza is a parallel court and ‘Fatwa’ has any legal  

status.

As it is well settled, the adjudication by a  

legal authority sanctioned by law is enforceable  

and binding and meant to be obeyed unless upset by  

an authority provided by law itself.  The power to  

adjudicate  must  flow  from  a  validly  made  law.  

Person deriving benefit from the adjudication must  

have  the  right  to  enforce  it  and  the  person  

required  to  make  provision  in  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  by  any  law  made  by  the  competent  

legislature.  Therefore, the opinion or the Fatwa  

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

is  not  adjudication  of  dispute  by  an  authority  

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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.  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  not  be  enforced  by  any  legal  process  

either  by  the  Dar-ul-Qaza  issuing  that  or  the  

person concerned or for that matter anybody.  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.   It  can  simply  be  

ignored.  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.  

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Notwithstanding that it is an admitted position  

that Fatwas have been issued and are being issued.  

All  India  Muslim  Personal  Law  Board  feels  the  

“necessity  of  establishment  of  a  network  of  

judicial system throughout the country and Muslims  

should be made aware that they should get their  

disputes decided by the Quazis”.  According to the  

All  India  Muslim  Personal  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.  This will bring the  

Muslims  to  the  Muslim  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  

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binding  on  the  court  or  the  State  or  the  

individual.   It  is  not  sanctioned  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  are  the  persons,  who  

submit to the Fatwa”.  Imrana’s case is an eye-

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opener in this context.  Though she became the  

victim of lust of her father in law, her marriage  

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.  In this way,  

victim has been punished.  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.  Fatwa may be  

issued  in  respect  of  issues  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  

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anybody may consider the desirability of giving  

any response and while considering it should not  

be completely unmindful of the motivation behind  

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  

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absolutely uncalled for.  It shall be in violation  

of  basic  human  rights.   It  cannot  be  used  to  

punish  innocent.   No  religion  including  Islam  

punishes the innocent.  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  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.  In any event, the decision or the  

Fatwa issued by whatever body being not emanating  

from any judicial system recognised by law, it is  

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not binding on anyone including the person, who  

had asked for it.  Further, such an adjudication  

or  Fatwa  does  not  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.  

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