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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 declarati