Saturday, Sep 20, 2014
As long as there is  legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism  operating for it in any particular community and order its abolition. As long as there is legally sanctioned room for settlement of disputes by non-state bodies, the court cannot isolate the mechanism operating for it in any particular community and order its abolition. Source: CR Sasikumar
Written by Tahir Mahmood | Posted: July 14, 2014 12:38 am

The Supreme Court has not declared fatwas illegal. It has situated them within the law.

A victory day for the Muslims, a day of deliverance for all others — these diametrically opposed perceptions of the apex court’s ruling on the fatwa and Dar-ul-Qaza traditions of Muslim society are being projected by the Urdu and English media respectively. Neither is warranted by the letter and spirit of the court’s absolutely innocuous judgment.

A few years ago, a Delhi lawyer had filed a writ petition in the Supreme Court seeking a ban on the fatwa system and shariat courts, alleging that these were tantamount to running a “parallel judiciary” in the country. A division bench has now pronounced its judgment, which has been reported in the print media under sensational captions and is being hotly debated on TV channels. All this hurly burly is based on sheer misinformation about the system challenged and reflects a grave misreading of the judgment.

The Arabic word “fatwa” means an exposition of religious law by a Muslim cleric or seminary in answer to a specific query. It is like a lawyer’s opinion, which the querist may or may not act upon. The fatwa-giver writes his opinion as per his own understanding of religion, right or wrong, and does not claim it to be authentic — fatwas always conclude with the words wallahu a’lam bi-sawab (god knows better with certainty). Muslim law neither obliges any person to seek a fatwa in any matter nor makes it incumbent upon her to follow it if obtained.

As regards shariat courts, known as Dar-ul-Qazas, these are in the nature of what is known in law as alternative dispute resolution (ADR) mechanisms and generally decide personal law discords of disputants who voluntarily approach them and agree to abide by their verdicts. In some cases, where one party to a family dispute (generally a wife) seeks relief from a Dar-ul-Qaza and the other party unscrupulously keeps absent just to harass the complainant, a decision may, in the interest of justice, be given ex parte. No Dar-ul-Qaza decision, whether given ex parte or after hearing the parties, constitutes what is known in law as res judicata so as to bar the jurisdiction of any state court to entertain and decide the dispute.

A Dar-ul-Qaza hierarchy was first established on a mass scale in Bihar in 1919 and has successfully been operating there for over nine decades. Dar-ul-Qaza decisions are often taken by the disputants to local civil courts, which treat them as arbitration awards and pass decrees accordingly. continued…

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