Disposed

Nazir Noor Ali Jariya v. All India Muslim Personal Law Board and Ors.

Bombay HC24 Nov 2016PIL/56/2014

Case brief

AI extract

What is this about?

In this PIL, the petitioner sought cancellation of registration for the All India Muslim Personal Law Board and orders to close Darul Qaz as unconstitutional parallel courts. Citing Vishwa Lochan Madan, the Court held that the subject matter was covered under the Apex Court judgment, declaring such bodies as having no power to enforce verdicts, and disposed of the matter with no order as to costs.

What did the court decide?

No order as to costs.

Nazir Noor Ali Jariya Vs All India… — Constitutional and Fundamental Rights | Bombay HC (2016)

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PIL 56-2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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PUBLIC INTEREST LITIGATION NO. 56 OF 2014

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Nazir Noor Ali Jariya .. Petitioner V/s

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All India Muslim Personal Law Board & Ors.

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.. Respondents

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Ms. Poonam Ankleshwaria for the petitioner.

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Mr. Rohit Deo, Acting Advocate General with Ms. G.R. Shastri, AGP and Mr. Kedar Dighe, AGP for the respondent State.

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Mr. Y.H. Muchala, Senior Advocate with Mr. Sagheer A. Khan and Mr. S. Nachan and Mr. Munim i/b Judicare Law Associates for respondent nos.1, 6 and 7.

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CORAM: DR. MANJULA CHELLUR, CJ. & M.S. SONAK, J.

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DATE : 24^th NOVEMBER 2016

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P.C.:

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Heard learned counsel for the petitioner.

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The entire grievance seems to be that Darul Qaza being a wing set up under the supervision of respondent no.1 for resolving and adjudicating various kinds of civil and matrimonial disputes arising between Muslim parties and since it has no legal sanctity, the following reliefs may be granted in favour of the petitioner.

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“ (a) That a writ of mandamus or any other writ in the nature of mandamus be issued with a direction to the Registrar of Societies, Govt of NCT of Delhi, Delhi to cancel the registration

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of Respondent No.1 under the Societies Registration Act XXI of 1860 as they have travelled beyond their Memorandum of Association and Rules and Regulations by setting up parallel court viz. Darul Qazas for adjudicating the disputes for which they have no legal authority.

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(b) That a writ of mandamus or any other writ in the nature of mandamus be issued directing the Darul Qazas functioning all over the State of Maharashtra to close down and to declare them as unconstitutional bodies.

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(c) That all the Orders / Judgments / Decrees passed by the Darul Qazas be declared as null and void having no legal sanctity under the Indian Law.

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(d) That the concerned Police Stations be directed to take necessary legal action against the Darul Qazas functioning in their local jurisdiction.

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(e) That the registration of Respondent Nos.3 to 10 be cancelled for allowing Respondent No.2 in carrying out its illegal business and activities of running the parallel courts without any authority from their premises.”

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When learned Acting Advocate General Mr. Rohit Deo brought to our notice the reported decision in Vishwa Lochan Madan vs. Union of India and others, (2014) 7 SCC 707 , learned counsel for the petitioner contends that the said decision of the Apex Court

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refers to only fatwas and not verdicts or judgments complained in the present PIL.

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We have gone through the entire judgment of the Apex Court. No doubt, the main discussion was with regard to fatwa resolving the marriage between two persons belonging to Muslim community. However, from paragraph 5 onwards, a detailed discussion is made with regard to fatwa or opinion issued by Darul Qazas and then they concluded that the fatwa issued by Darul Qazas has no legal status in the constitutional scheme of this country. In order to understand whether the opinion expressed by the Apex Court refers to particular matters or disputes or particularly in respect of fatwas, paragraphs 5 to 9 are relevant which read as under:-

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“5. The 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. According to the petitioner, adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with.

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6. 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

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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. The 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 and to ensure that the same do not function to adjudicate any matrimonial-disputes under the Muslim Personal Law. The 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 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.

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7. 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 dispute or any other dispute of civil nature between the Muslims. According to the Union of India, Dar-ul-Qaza can

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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.

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8. Respondent 9, the 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 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.

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9. Respondent 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

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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 10, God fearing Muslims being answerable to the Almighty, obey the fatwas, others may defy them. In the aforesaid background, the plea of Respondent 10 is that it is not running parallel judiciary.”

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On reading of the above paragraphs, especially paragraph 9, it is crystal clear that Darul Qaza or any body or institution by any name is not entitled to give verdict or issue fatwa stretching rights and obligations of an individual unless such an individual has asked for it. It further says that such verdict or fatwa may not even bind the person who has asked for it.

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In that view of the matter, we are of the opinion that the subject matter or the lis raised in the present public interest litigation is covered in terms of the above judgment of the Apex Court and accordingly the PIL is disposed of with no order as to costs.

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(M.S. SONAK, J.) CHIEF JUSTICE

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Nazir Noor Ali Jariya v. All India Muslim Personal Law Board and Ors.

Case brief

What is this about?

What did the court decide?

Nazir Noor Ali Jariya v. All India Muslim Personal Law Board and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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