Khazi Hamid Faisal Siddique S/O Late Khazi Mohammed Hussain Siddique and Anr. Vs the State of Karnataka and Ors.

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

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DATED THIS THE 16^TH DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO. 201344 OF 2023 (GM-WAKF)

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BETWEEN:

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MR. KHAZI HAMID FAISAL SIDDIQUE SON OF LATE MR.KHAZI MOHAMMED HUSSAIN SIDDIQUE AGED ABOUT 52 YEARS, SHARIYATH MAHAL, PLOT NO.CTS 2471-97, OSMANIYA COLONY, NEAR KNZ FUNCTION HALL, KALABURAGI-585 102.

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MR. SYED MOINUDDIN SON OF LATE MR.SYED ABDUL KHADER AGED ABOUT 52 YEARS 7-109, BHADKAL, MOMINPURA KALABURAGI-585 102

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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(BY SRI. MOHD. FAHMEED KHAN, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA DEPARTMENT OF MINORITY WELFARE, HAJ AND WAKF, VIDHANA SOUDHA, AMBEDKAR BEEDI, BENGALURU-560 001. REPRESENTED BY ITS PRINCIPAL SECRETARY

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…PETITIONERS

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THE STATE OF KARNATAKA DEPARTMENT OF MINORITY WELFARE, HAJ AND WAKF, VIDHANA SOUDHA, AMBEDKAR BEEDI, BENGALURU-560 001. REPRESENTED BY ITS UNDER SECRETARY

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THE KARNATAKA STATE BOARD OF AUQAF NO.6, CUNNINGHAM ROAD, BENGALURU-560 052 REPRESENTED BY ITS THE CHIEF EXECUTIVE OFFICER.

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…RESPONDENTS

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(BY SRI. MALLIKARJUN SAHUKAR, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NOS.1 AND 2; SRI. LIYAQAT FAREED USTAD, ADVOCATE FOR RESPONDENT NO.3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS, ON THE FILE OF THE RESPONDENT NO.2 IN MWD/65/WES/2022 AND QUASH THE IMPUGNED ORDER NO.MWD/65/WES/2022 DATED 21.02.2023 ISSUED BY THE RESPONDENT NO.2 AUTHORIZING THE RESPONDENT NO.3 HEREIN AND ITS DISTRICT WAKF OFFICERS TO ISSUE MARRIAGE CERTIFICATE TO THE MARRIED MUSLIM APPLICANTS IN THE REGION OF THE HYDERABAD-KARNATAKA AREA i.e. , BIDAR, GULBARGA, RAICHUR, YADAGIRI, BALLARI AND KOPPAL DISTRICTS (ANNEXURE-R) AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 25.02.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDER THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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CAV ORDER

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The petitioners have challenged an order bearing No.MWD-65-WES-2022, Bengaluru, dated 21.02.2023 passed by the respondent No.2 authorizing the respondent No.3 and its

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District Waqf officers to issue Marriage Certificates to the married Muslim applicants in Hyderabad-Karnataka area if they fulfill the conditions stated therein. They have also sought for a writ in the nature of mandamus and direct the respondent Nos.1 and 2 to consider and dispose off their representation dated 28.06.2022.

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2(i) The petitioners contend that the Kazis Act, 1880 was extended by the Government of Karnataka to the whole of the State of Karnataka on 05.03.1976 vide its order No.RD 132 CWF 74. Thereafter, on 10.02.2010, the Government of Karnataka withdrew its earlier order dated 05.03.1976 referred supra. Subsequent thereto, the Government of Karnataka modified the order dated 10.02.2010 on 07.06.2010 and made the Kazis Act, 1880 applicable to the Hyderabad-Karnataka area. Thereafter, pursuant to a notification of the Department of Parliamentary Affairs, the Kazis Act, 1880 was repealed by the Government of Karnataka vide its order dated 03.12.2013. The said notification suffered a discrepancy and therefore, was withdrawn by the Government of Karnataka vide its Circular No.MWD 08 WES 2011 dated 30.06.2014. Therefore the Kazis Act, 1880 continued to be in force in the Hyderabad-Karnataka

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area. A person named Mr.Mohd. Hasan Ateequlla Siddiqui was appointed as a sole Kazi of Gulbarga and its 314 villages by the Principal Munsiff, Gulbarga vide order dated 15.02.1979 (stated as 15.02.1975 in para No.5 of the petition). A notification was issued by the Special Deputy Commissioner (Endowments), Gulbarga vide Order No.Rev/wakfs/76/76-77 dated 23.12.1980 appointing Mr. Mohd. Hussain Siddiqui as the Kazi of Gulbarga and its 314 villages.

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(ii) In exercise of the power under Section 3 of the Kazis Act, 1880, the Government of Karnataka on 16.08.2000 appointed the petitioner No.1 as Sadar Naib Kazi of Gulbarga to perform the duties of Khazath of Gulbarga and its surrounding 314 villages. Thereafter, on 17.08.2000, the petitioner No.2 was appointed as Khazi of Hospet Rural, Bellary District by the Government of Karnataka.

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(iii) The petitioners contend that the Kazis officiate over the marriage ceremonies of muslims, maintain marriage records, issue marriage certificates, perform talaq formalities, issue talaq certificates, perform ceremonies at Khabarstan and accomplish rituals relating to slaughter of animals. Petitioners

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contend that since the last few decades, they were performing marriage ceremonies and were issuing marriage certificates as per S hariath . They contend that the service rendered by them was approved by the respondent No.3. They claim that they have solemnized 2848 marriages during the year 2009-10 and they continue to do so till date.

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(iv) The petitioners contend that the Government of Karnataka passed an order bearing No.MWD 319 WES 2009, Bangalore dated 03.08.2009 authorizing the Karnataka State Board of Wakfs and its District Wakf Advisory Committees to issue marriage certificates to the muslim applicants on they fulfilling the conditions stated therein. Further on 07.09.2009, the Government of Karnataka issued an addendum to the order dated 03.08.2009 referred supra by including a para i.e., “In respect of the Marriages performed by the Khazies in Hydrabad-Karnataka area the conditions stipulated above are applicable".

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(v) The father of the petitioner No.1 and the petitioner No.2 being aggrieved by the aforesaid notification dated 03.08.2009 and addendum dated 07.09.2009 issued by the

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respondent No.2 challenged them before this Court in W.P. Nos.83409-410 of 2009. The Writ Petitions were disposed off on 10.06.2011 and the respondent No.3 therein / Government of Karnataka by its Minority Welfare Department was directed to conduct an enquiry whether Khazis are empowered by the Wakf Board to issue marriage certificates. This Court quashed the order dated 03.08.2009 and addendum dated 07.09.2009 issued by the respondent No.2. Since the Government of Karnataka did not comply the said order, C.C.C No.200041/2018 (Civil) was filed. The Division Bench in terms of an order 28.11.2018, dropped the contempt proceedings against the respondent therein - accused holding that the consequence of quashing the order dated 03.08.2009 and addendum dated 07.09.2009 would obviously follow.

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(vi) The petitioners contend that they filed a representation dated 28.06.2022 against issuance of marriage certificates by the District Wakf officers / officials of the Wakf Board etc. They contend that the respondents did not take any action to consider their representations. However, on 21.02.2023, the respondent Nos.1 and 2 again authorized the Karnataka State Board of Auqaf (for short ‘Wakf Board’) and its

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District Waqf Officers to issue marriage certificates to the muslim applicants in respect of marriages conducted in Masjid/s and in respect of entries made in the register by the respective Masjid. They contend that pursuant to the Waqf Act, 1995 (as amended 2013), all Masjids come under the general supervision of the State Board of Auqaf and taking advantage of the repeal of the Kazis Act, 1880, the respondent No.3 was issuing marriage certificates after verifying the entries in the marriage register/dafthar maintained in the respective Masjid. In order to regulate the issuance of marriage certificates, the Government purportedly authorized the State Board of Auqaf and its District Officers to issue marriage certificates.

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(vii) Being aggrieved by the order dated 21.02.2023 issued by the respondent No.2, the petitioners are before this Court.

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The learned counsel for the petitioners contends that the impugned order is contrary to the order passed by this Court in W.P Nos.83409-410/2009. He contends that the State Government did not hold an enquiry whether the Kazis are empowered to issue marriage certificates, as directed by the

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Bench of this Court at Gulbarga in W.P. Nos.83409-410/2009. He contends that the impugned order dated 21.02.2023 without conducting the enquiry as stated above, was issued by the respondent No.2 thereby belittling the order passed by the Bench of this Court at Gulbarga in W.P Nos.83409-410/2009. He contends that the respondent No.2 had authorized the respondent No.3 and the District Wakf Officers to issue marriage certificates unmindful of the fact that neither the respondent No.3 nor District Wakf Officers are empowered under the Waqf Act, 1995 to issue marriage certificates. He further contends that the Waqf Act, 1995 is for the administration of the Waqf and its properties and there is no provision in law authorizing them to issue marriage certificates. He contends that the Kazis Act, 1880 is still in force in Hyderabad-Karnataka area and the respondent No.2, not knowing the power of Kazis so appointed, has issued the impugned notification authorizing respondent No.3 and its District Waqf officers to issue marriage certificates. Therefore, he contends that the impugned order is liable to be quashed.

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Per contra, the learned Additional Government

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Advocate for respondent Nos.1 and 2 submitted that the office

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of Kazi is abolished and therefore, in respect of Wakf institutions, the Chief Executive Officer of the Wakf Board had requested the State Government to issue directions for granting marriage certificates to the applicants as most Muslim marriages in the State are recorded in the mosques. He contends that pursuant to the directions of this Court in W.P Nos.83409-410/2009, a meeting was conducted by the respondent No.1 as well as the Wakf Board. At the meeting, it was noticed that the marriages conducted within the area where mosques are established, are entered in register/s maintained by the respective mosques and these mosques are under the general supervision of the Wakf Board. Hence, it was resolved to authorize the Wakf Board to issue marriage certificates after verifying the entries in the marriage daftar. It was under such circumstances the respondent No.1 issued the impugned order authorizing the Wakf Board and the Waqf officers of the concerned Districts to issue marriage certificates. Therefore, he submits that the impugned order is just and proper and does not in any way violate the directions issued by this Court in W.P. Nos.83409-410/2009.

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The learned counsel for respondent No.3 adopted the arguments of the learned Additional Government Advocate.

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In reply, the learned counsel for the petitioners invited the attention of this Court to a notification dated 30.08.2023 issued by the respondent No.1 modifying the notification dated 21.02.2023 specifying certain conditions for issuance of marriage certificates. He contends that in the said notification, the respondent No.1 had taken note of the fact that on the repeal of the Kazis Act, 1880, the existing posts of Kazis in Bidar, Kalaburagi, Yadgir, Raichur, Koppal and Bellary Districts will be affected. Therefore, it was informed that the residents of these Districts will have to follow the same practice followed in other 24 districts of the State. He also brought to the notice of this Court that the respondent No.1 was aware of the fact that those Kazis who were appointed prior to the repeal of the Kazis Act, 1880 continued to function in view of the savings clause in Section 4(1)(iii) of the Karnataka Repealing of Certain Enactments and Regional Laws Act, 2013. He, therefore, contends that when those Kazis who were appointed prior to the repeal of the Kazis Act, 1880, they were entitled to perform marriages and also issue marriage certificates. He

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submits that in view of the Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976 (for short, ‘the Act, 1976’), it is the Sub-Registrars of the respective areas who are entitled to register and issue marriage certificates. He also contends that the question whether the Waqf officers are entitled to issue marriage certificates as per the Government Order dated 21.02.2023 which is modified vide Government Order dated 30.08.2023 is under consideration before the Division bench of this Court in W.P No.19284/2024. He further contends that the Division Bench has stayed the Government Order dated 30.08.2023 authorizing the State Board of Auqaf and its District Waqf officers to issue marriage certificates to muslim applicants in the State.

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I have considered the submissions made by the learned counsel for the petitioners and the learned Additional Government Advocate for respondent Nos.1 and 2 and the learned counsel for respondent No.3.

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The petitioner No.1 claims that his father was appointed as a Kazi of Gulbarga and its 314 villages in terms of a letter dated 20.09.1980 issued by the Chief Kazi which was

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approved by the Special Deputy Commissioner (Endowments), Gulbarga vide his order dated 23.12.1980. The petitioner No.1 was purportedly appointed as a Sadar Naib Qazi by the respondent No.2 on 16.08.2000 to perform the duties of kazat of Gulbarga and its 314 villages. Petitioner No.2 was appointed as a Khazi of Hospet Rural, Bellary District, in terms of an order dated 17.08.2000 passed by the respondent No.2. As per the Kazis Act, 1880, the Kazis are required to perform and oversee the marriage ceremonies and performance of certain other rites and ceremonies followed amongst Mohammedans. The State Government had issued a Government order dated 03.08.2009 authorizing the Karnataka State Board of Wakfs and the District Wakf Advisory Committees to issue marriage certificates to muslim applicants after fulfilling conditions mentioned therein. An addendum was added to the aforesaid notification which was published in the official gazette on 07.09.2009 stating specifically that in respect of the marriages performed by the Khazis in Hyderabad-Karnataka area the conditions mentioned in the Government Order dated 03.08.2009 are applicable. The petitioner No.1 claiming to be the successor of the office of Kazi along with petitioner No.2 challenged the aforesaid notifications

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before this Court in W.P. Nos.83409-410/2009. A coordinate

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Bench of this Court held as follows:

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"By the order of the 3^rd respondent, the 2^nd respondent has been authorised to issue marriage certificate. But, according to the petitioner, it is the Khazis who issue the marriage certificate and not the Wakf Board. In this regard, an inquiry be held by the 3^rd respondent whether Khazis are empowered by the Wakf Board to issue such certificates as per law and pass appropriate orders. The orders at annexures E and F are quashed for the present. If the appointment of 2^nd respondent by the order of the 3^rd respondent is in order, the same holds good."

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The petitioners thereafter submitted a representation on 28.06.2022 before the respondent Nos.1 and 2 along with a copy of the order passed by this Court in the writ petitions referred above. The respondent Nos.1 and 2 though referred to the order passed by this Court in W.P Nos.83409-410/2009 held a meeting of the officers of the State Government as well as the Wakf Board on 17.12.2022. It was discussed and decided in the meeting that all marriages conducted in the Mosques (Masjids) are entered in the register maintained by the respective Mosques. All the Mosques within Karnataka are

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under the general supervision of the Karnataka State Board of Auqaf as per the Waqf Act, 1995 (as amended in 2013). It was also held that the Wakf Board was issuing marriage certificates to muslim applicants after verifying the entries in the Marriage Register (Dafthar) maintained by the respective Mosques. It is held that since Kazis Act, 1880 was already repealed in order to regulate the issuance of marriage certificates, the Government felt it necessary to issue an order dated 21.02.2023 authorizing the respondent No.3 and Waqf Officers of the concerned Districts to issue marriage certificates to the married muslim applicants subject to they complying the conditions stated therein. This culminated in a Government order dated 21.02.2023. Following this, it issued another Government order dated 30.08.2023 extending the Government Order dated 21.02.2023 and permitting the Karnataka State Board of Auqaf and its Waqf officers of the concerned Districts to issue marriage certificates to the married muslim applicants in Hyderabad-Karnataka Region.

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This Court is conscious of the fact that the issue in this writ petition relates to the competence of the State Government to authorize the Karnataka State Board of Auqaf

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and the District Waqf Officers to issue marriage certificates. The petitioner No.1 has not sought for any relief that, he as the Sadar Naib Qazi is entitled to perform the duties of Khazath of Gulbarga and its surrounding 314 villages and issue marriage certificates. Similarly, the petitioner No.2 has not sought for any relief as Khazi of Hospet Rural, Bellary District. The petitioners have also not sought for any declaration that despite the repeal of the Kazis Act, 1880, they are entitled to issue marriage certificates. Therefore, this Court has not considered any of the private rights of the petitioner Nos.1 and 2 in this writ petition vis a vis their right to continue as Sadar Naib Qazi of Gulbarga and Khazi of Hospet Rural, Bellary District respectively.

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A perusal of the Waqf Act, 1995 shows that the Act is meant for providing better administration and supervision of waqfs. The Waqfs are administered through a Board constituted and the duties and powers of the Chief Executive Officer are prescribed under Sections 25 and 26 of the Waqf Act, 1995. The State Government is authorized to issue directions under Section 97 of the Waqf Act, 1995 which reads as follows:

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"97. Directions by State Government.— Subject to any directions issued by the Central Government under section 96, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with such directions: 3 [Provided that the State Government shall not issue any direction being contrary to any waqf deed or any usage; practice or custom of the waqf.]"

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This does not mean that the State Government can issue any direction beyond the provisions of the Waqf Act, 1995 but such directions should be in consonance with the Waqf Act, 1995 and Rules framed thereunder and not contrary to any Wakf deed. There is no provision in the Waqf Act, 1995 enabling the Waqf Board or the District Waqf Officers to issue any marriage certificates. It may be that marriages performed in the mosques are entered in a register / dafthar maintained at the mosque. However, issuing extracts of these entries do not itself amount to a marriage certificate in view of the Act, 1976 which mandates that every marriage in the State of Karnataka should be registered in the manner provided in the Act. Under section

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5 of the Act, 1976 the parties to the marriage shall, prepare and sign a memorandum in the form specified in Schedule A and deliver or send it by registered post in duplicate to the Registrar of the area where the marriage was contracted. On receipt of the memorandum, the Registrar is bound to enter the particulars thereof in the register and issue a marriage certificate in such form and manner as may be prescribed. Under Section 6 of the Act, 1976, the Registrar may suo motu or otherwise issue notice to the parties to a marriage which is not registered under the Act, 1976 to appear before him and get the memorandum of marriage signed and receive it along with the prescribed fee. On receipt of such memorandum, the Registrar shall enter the particulars thereof in the register and send a duplicate copy thereof to the Registrar General and issue a marriage certificate in the manner provided under Section 5 of the Act, 1976. The register maintained under the Act, 1976 is available for inspection and its certified extracts can be obtained from the Registrar by the applicant/s on submitting an application along with the prescribed fee and same are admissible as evidence in a Court of law.

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Therefore, assuming that the parties to a marriage obtain an extract of their marriage solemnized in a mosque that does not amount to a marriage certificate and for all practical purposes, would remain a piece of evidence regarding marriage. No evidentiary value can be attached to the extract furnished by the Masjid unless it is brought to the form prescribed under the Act, 1976. Therefore, the Karnataka State Board of Auqaf and the District Waqf Officers cannot be authorized or empowered to issue marriage certificate/s. The impugned Government Order is therefore beyond the authority vested in the respondent No.1.

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Consequently, this Writ Petition is allowed and the Government Order bearing No.MWD-65-WES-2022, Bengaluru dated 21.02.2023 passed by the respondent No.2 is quashed. However, it is open for the District Waqf Officers or the State Board of Auqaf to issue the extract of the marriage dafthar maintained in the Waqf institutions, which however shall not be construed as a marriage certificate unless the same is brought to the notice of the concerned Registrar as provided under Sections 5 and 6 of the Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976. The question whether the

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petitioners are entitled to issue extracts of nikah dafthar in respect of marriages performed by them in HyderabadKarnataka area is not considered or answered in this writ

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petition.

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Sd/(R.NATARAJ) JUDGE

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SMA

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List No.: 19 Sl No.: 1

Khazi Hamid Faisal Siddique S/O Late Khazi Mohammed Hussain Siddique and Anr. v. the State of Karnataka and Ors.

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Khazi Hamid Faisal Siddique S/O Late Khazi Mohammed Hussain Siddique and Anr. v. the State of Karnataka and Ors.

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