IMPORTANT POINT
Dar-ul-Qaza and the Fatwa issued by them do not have legal status.

JUDGMENT

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 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.

2. 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 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.

3. 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 restraining the husband and wife living together, though none of them ever approached the Dar-ul-Uloom.

4. 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.

5. 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.

6. 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