VISHWA LOCHAN MADANversusUNION OF INDIA & ORS.

                                    '
                    [2014] 8 S.C.R. 195


                VISHWA LOCHAN MADAN                             A
                              v.
                  UNION OF INDIA & ORS.
            (Writ Prtition (Civil) No.386 of 200_5)
                        JULY 7, 2014
                                                                B
     [CHANDRAMAULI KR. PRASAD AND PINAKI
             CHANDRA GHOSE, JJ.]

     Muslim Law - Muslim Courts - Decisions of bar-ul-Qaza
or the Fatwa - Held: Do not satisfy any of the r~quirements of C
any legal judicial system ~A Qazi or Mufti has no authority
or powers to impose his opinion and·enforce his Fatwa on any
one by any coercive method - Whatever may be the status
of Fatwa during Mogul.or British Rule, it has no place in
independent India under our Constitutional scheme - D
Grievance of the petitioner that Dar-ul-Qazas and Nizam-e-
Qaza are running a parallel judicial system is misconceived
- Fatwa is not a de·cree, not binding on the court or the State
or the individual - But this does not mean that existence of
Dar-ul-Qaza or for that matter practice of issuing Fatwas ar~ E
themselves illegal - It is informal justice delivery system with
an objective of bringing about amicable settlement between
the parties - It is within the discretion of the persons concerned
either to accept, ignore or reject it - No Dar-ul-Qazas or for
that matter, anybody or institution by any naine, shall give F
verdict or i~ue Fatwa touching upon the rights, status and
obligation, of an individual unless such an individual has
asked for it - In the case of incapacity of such an individual,
any person interested in the welfare of such person may be
permitted to represent the cause of concerned individual - In G
any event, the decision or the Fatwa issued· by whatever body
being not emanating from any judicial system recognised by
law, it is not binding on anyone including the person, who had
asked for it - Further, such an adjudication or Fatwa does not
                              195                               H
    196       SUPREME COURT REPORTS            [2014] 8 S.C.R.


A have a force of law and, therefore, cannot be enforced by any
  process using coercive method - Any person trying to enforce
  that by any method shall be illegal and has to be dealt with
  in accordance with law.

      The petitioner sought declaration that: 1) the
8
  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 were absolutely illegal, illegitimate and
C unconstitutional and that 2) 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.

D        The question which arose for consideration before
    this Court was whether Dar-ul-Qaza is a parallel court and
    'Fatwa' has any legal status.

          Disposing of the writ petition, the Court

E      HELD:1. The adjudication by a legal authority
  sanctioned by law is enforceable and binding and meant
  to be obeyed unless upset by an authority provided by
  law itself. The power to adjudicate must flow from a
  validly made law. Person deriving benefit from the
F adjudication must have the right to enforce it and the
  person required to make provision in terms of
  adjudication has to comply that and on its failure
  consequences as provided in law is to ensue. These are
  the fundamentals of any legal judicia.I system. The
G decisions of Dar-ul-Qaza or the Fatwa do not satisfy any
  of these requirements. Dar-ul-Qaza is neither created nor
  sanctioned by any law made by the competent legislature.
  Therefore, the opinion or the Fatwa issued by Dar-ul~
  Qaza or for that matter anybody is not adjudication of
H dispute by an authority under a judicial system
  VISHWA LOCHAN MADAN v. UNION OF INDIA &                 197
                  ORS.

sanctioned by law. A Qazi or Mufti has no authority or           A
powers to impose his opinion and enforce his Fatwa on
any one by any coercive method. In fact, whatever may
be the status of Fatwa during Mogul or British Rule, it has
no place in independent India under our Constitutional
scheme. It has no legal sanction and cannot be enforced          B
by any legal process either by the Dar-ul-Qaza issuing
that or the person concerned or for that matter anybody.
The person or the body concerned may ignore it and it
will not be necessary for anybody to challenge it before
any court of law. It can simply be ignored. In case any          c
person or body tries to impose it, their act would be illegal.
Therefore, the grievance of the· petitioner that Dar-ul-
Qazas and Nizam-e-Qaza are running a parallel judicial
system is misconceived. [Para 12] [203-C-H]

     2. The object of establishment of a Muslim Court may D
be laudable but it has no legal status. It is bereft of any
legal pedigree and has no sanction in laws of the land.
They are not part of the corpus juris of the State. A Fatwa
is an opinion, only an expert is expected to give. It is not
a decree, not binding on the court or the State or the - E
individual. It is not sanctioned under our constitutional
scheme. But this does not mean that existence of Dar-
ul-Qaza or for that matter practice of issuing Fatwas are
themselves illegal. It is informal justice delivery system
with an objective of bringing about amicable settlement F
between the parties. It is within the discretion of th.e
persons concerned either to accept, ignore or reject it.
However, as the Fatwa gets strength from the religion; it
causes serious psychological impact on the person
intending not to abide by that. [Para 14] [204-D-F]          G

     3. Issuance of Fatwa on rights, status and obligation
of individual Muslim would not be permissible, unless
asked for by the person concerned or in case of
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    198       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A incapacity, by the person interested. Fatwas touching
  upon the rights of an individual at the instance of rank
  strangers may cause irreparable damage and therefore,
  would be absolutely uncalled for. It shall be in violation
  of basic human rights. It cannot be used ·to punish
B innocent. No religion including Islam punishes the
  innocent. Religion cannot be allowed to be merciless to
  the victim. Faith cannot be used as dehumanising force.
  [Para 15] [205-F-H]

         4. The prayer made by the petitioner in the terms
C   sought for cannot be granted. However, it is observed
    that no Dar-ul-Qazas or for that matter, anybody or
    institution by any name, shall give verdict or issue Fatwa
    touching upon the rights, status and obligation, of an
    individual unless such an individual has asked for it. In
D   the case of incapacity of such an individual, any person
    interested in the welfare of such person may be permitted
    to represent the cause of concerned individual. In any
    event, the decision or the Fatwa issued by whatever
    body being not emanating from any judicial system
E   recognised by law, it is not binding on anyone including
    the person, who had asked for it. Further, such an
    adjudication or Fatwa does not have a force of law and,
    therefore, cannot be enforced by any process using
    coercive method. Any person trying to enforce that by
F   any method shall be illegal and has to be dealt with in
    accordance with law. [Para 16] !206-A-D]

        CIVIL ORIGINAL JURISDICTION : Civil Appeal No. 386 of
    2005

G         Under Article 32 of the Constitution of India.

          Vishwa Lochan Madan (Petitioner-In-Person).

     Paras Kuhad, ASG K. Radhakrishnan, Raju
H Ramachandaran,Y.M. Muchhala, Huzefa Ahmadi, Anoop
  VISHWA LOCHAN MADAN v. UNION OF INDIA &                   199
                  ORS.
George Choudhari, Krishna Sarma, AAG, Shadman Ali,                 A
Chandan Kumar, B.K. Prasad, Jitin Chaturvedi, Swati
Vijaywargiya, R. Neduraman, B.V. Balramdas, Ansar Ahmad
Chaudhary, Ejaz Maqbool, Mrigank Prabhakar, Faraz Maqbool,
Rohan Sharma, Tara Chandra Sharma, B. S. Banthia, P.
Parmeswaran, Shakil Ahmed Sye~, Parvez Dabas, Milan                B
Laska(, Mir, lmtiyaz, C. D. Singh, Vikrant Yadav, Sakshi
Kakkar, Rinku Sarma,Navnit Kumar, Corporate Law Group,
Shagun Malta, Anip Sachthey, Saakar Sardana, Abhisth Kumar,
Mishra Saurabh, Vanshaja Shukla, Ankit Lal, irshad Hanif, N.
A. Usmani, Mohd. Arif Ali Khan for the Respondents.                c
     The Judgment of the Court was delivered by

        CHANDRAMAULI KR. PRASAD, J. 1. All India Muslim
 Personal Law Board comprises .of Ulemas. Ulema is a body
 of Muslim scholars recognised as expert in Islamic sacred law D
 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, E
1 ~der 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 F
 petitioner, the Board, lmarra-e-Sharia of different States and
  lmarra-e-Sharia, Phulw.ari 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 G
 terms. It is the allegation of the petitioner that Dar-ul-Qazas,
 spread all over the countr.y 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.
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    200       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A 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 lmrana's incident.
  lmrana, a 28 years old Muslim woman, mother of fiv~ children
  was allegedly raped by her father-in-law. The question arose
B 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
c         Musaharat will be proved. It me.ans 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:
D
          "Marry not the woman whom your father copulated"

        2. The Fatwa has dissolved the marriage and passed a
  decree for perpetual injunction restraining the husband and wife
E living together, though none of them ever approached the Oar-
  ul-Uloom.

       3. 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-
F 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-
G law as her real husband and divorce her husband.

       4. 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.
H According to the petitioner, adjudication of djsputes is
   VISHWA LOCHAN MADAN v. UNION OF INDIA &                    201
      ORS. [CHANDRAMAULI KR. PRASAD, J.]
essentially the function of sovereign State, which can never be      A
abdicated or parted with.

       5. In the aforesaid background, the petitioner has sought
  a declaration that the movemenU activities being pursued by
 All India Muslim Personal Law Board and other similar B
  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.
  Further declaration sought for is thc;it the judgments and fatwas
  pronounced by authorities .have no place in the Indian C
  Constitutional system, and the same are unenforceable being
  Wholly non-est and void ab-initio. 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 D
  Muslim Personal Law. 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 E
  prayer of the petitioner is to direct the All India Muslim Personal
  Law Board (Respondent No.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.                                                               F

      6. 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       G
 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 be perceived as an alternative
 dispute resolution mechanism, which strives to settle disputes
 outside the courts expeditiously in an amicable and inexpensive
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    202      SUPREME COURT REPORTS                [2014] 8 S.C.R.


A 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
B 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.

        7. Respondent No.9, All India Muslim Personal law Board
C 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
D 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.
E
         8. Respondent No.10, Dar-ul-Uloom, Deoband admits
    issuing Fatwa: in lmrana's case as per Fiqah-e-Hanafi, which
    is based on Qlfaran and Hadith but ~sserts that it.qas no agency
    or powers to enforce its Fatwas. It is within the discretion of
F   the persons or the parties who obtain Fatwas to abide by it or
    not. However, according to Respondent No.10, God fearing
    Muslims being answerable to the Almighty, obey the Fatwas,
    others may defy th.ell'!. In the aforesaid background, the plea ·
    of Respondent No. 10 is that it is not running parallel judiciary.
G       9. The plea of the State of Madhya Pradesh is that Fatwa
 • issued by Dar-ul-Qaza has no legal value.

       10. The stand of the State of U.P. is that Fatwas are
  advisory in nature. They are not mandatory and do not prohibit
H any Muslim to approach Courts established by law for
    VISHWA LOCHAN MADAN v. UNION OF INDIA &                       203
       ORS. [CHANDRAMAULI KR. PRASAD, J.]
adjudication of their disputes. Hence, Dar-ul-Qaza does not act           A
as a parallel Court for adjudication of disputes.

     11. From the pleadings of the parties there does not seem
to be any dispute that several Dar-ul-Qazas presided over by
the Qazis exist and they do issue Fatwas. In the present case,
                                                                          B
what we have been called upon to examine as to whether Dar-
ul-Qaza is a parallel court and 'Fatwa' has any legal status.

       12. As it is well settled, the adjudication by a legal authority
 sanctioned by law is enforceable and binding and meant to be
  obeyed unless upset by an authority provided by law itself. The         C
  power to adjudicate must flow from a validly made law. Person
 deriving benefit from the adjudication must have the right to
 enforce it and the person required to make provision in terms
  of adjudication has to comply that and on its failure
  consequences as provided in law is to ensue. These are the              D
. fundamentals of any legal judicial system. In our opinion, the
·decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of
  these requirements. Dar-ul-Qaza is neither created nor
  sanctioned by any law made by the competent legislature.
  Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or            E
  for that matter anybody is not adjudication of dispute by an
  authority under a judicial system sanctioned by law. A Qazi or
  Mufti has no authority or powers to impose his opinion and
  enforce his Fatwa on any one by any coercive method. In fact,
  whatever may be the status of Fatwa during Mogul or British             F
  Rule, it has no place in independent India under our
  Constitutional scheme. It has no legal sanction and can not be
  enforced by any legal process either by the Dar-ul-Qaza issuing
  that or the person concerned or for that matter anybody. The
  person or the body concerned may ignore it and it will not be           G
  necessary for anybody to challenge it before any court of law.
  It can simply be ignored. In case any person or body tries to
  impose it, their act would be illegal. Therefore, the grievance
  of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza are
 irunning a parallel judicial system is misconceived.
I                                                                         H
    204       SUPREME COURT REPORTS               [2014] 8 S.C.R.

A      13. As observed earlier, the Fatwa has no legal status in
  our Constitutional scheme. Notwithstanding that it is an admitted
  position that Fatwas have been issued and are being issued.
  All India Muslim Personal Law Board feels the "necessity of
  establishment of a network of judicial system throughout the
B country and Muslims shq_uld be made aware that they should
  get their disputes decided by the Quazis". According to the All
  India Muslim Personal Law Board "this establishment may not
  have the police powers but shall have the book of Allah in hand
  and sunnat of the Rasool and all decisions should be according
C to the Book' and the Sunnat. This will bring the Muslims to the
  Muslim Courts. They will get justice".                          ·

          14. The object of establishment of such' a court may be
    laudable but we have no doubt in our mind that it has no legal
    status. It is bereft of anx legal pedigree and has no sanction in
D   laws of the land. They are not part of the corpus juris of the
    State. A Fatwa is an opinion, only an expert is expected to give.
    It is not a decree, not binding on the court or the State or the
    individual. It is not sanctioned under our constitutional scheme.
    But this dpes not mean that existence of Dar-ul-Qaza or for that
E   matter practice of issuing Fatwas are themselves illegal. It is
    informal ~stice delivery system with an objective of bringing
    about am1c'able settlement between the parties: It is within the
    discretion of the persons concerned either to accept, ignore or
    reject it. However, as the Fatwa get? strength from the religion;
F   it causes serious psychological i_mpact on the person intending
    not to abide by that. As projected by respondent No. 10 "God
    fearing Muslims obey the Fatwas". In the words of respondent
    No. 10 "it is tor the persons/parties who obtain Fatwa to abide
    by it or not. It, however, emphasises that "the persons who are
G   God fearing and believe tt\at they are answerable to the Almighty
    and have to face the consequences of their doings/deeds, such
    are the persons, wno submit to the Fatwa". lmrana's case is
    an eye-opener in this context. Though she became the victim
    of lust of her father in law, her marriage was declared unlawful
H   and the innocent husband wa~ restrained from keeping physical
  VISHWA LOCHAN MADAN v. UNION OF INDIA &                       205
     ORS. [CHANDRAMAULI KR. PRASAD, J.]
relationship with her. In this way a declaratory decree for             A
dissolution of marriage and decree for perpetual injunction were
passed. Though neither the wife nor the husband had
approached for any opinion, an opinion was sought for and
given at the instance of a journalist, a total stranger. In this way,
victim has bren punished. A country governed by rule of law             B
cannot fathom it.

     15. In our opinion, one may not object to issuance of Fatwa
 on a religious issue or any other issue so long it does not
 infringe upon the rights of individuals guaranteed under law.
 Fatwa may be issued in respect of issues concerning the
                                                                        c
 community at large at the instance of a stranger but if a Fatwa
 is sought by a complete stranger on an issue not concerning
 the community at large but individual, than the Darul-Qaza or
 for that matter anybody may consider the desirability of giving
 any response and while considering it should not be completely         D
 unmindful of the motivation behind the Fatwa. Having regard
 to the fact that a Fatwa has the potential of causing immense
 devastation, we feel impelled to add a word of caution. We
 would like to advise the Dar-ul-Qaza or1for that matter anybody
  not to give any response or issue Fatwa concerning an                 E
 individual, unless asked for by the person involved or the person
  having direct interest in the matter. However, in a case the
  person involved or the person directly interested or likely to be
, affected being incapacitated, by any person having some
  interest in the matter. Issuance of Fatwa on rights, status and       F
  obligation of individual Muslim, in our opinion, would not be
·permissible, unless asked for by the person concerned or in
  case of incapacity, by the person interested. Fatwas touching
  upon the rights of an individual cit the instance of rank strangers
·may cause irreparable damage and therefore, would be                   G
  absolutely uncalled for. It shall be in violation of basic human
  rights. It cannot be used to punish innocent. No religion including
  Islam punishes the innocent. Religion cannot be allowed to be
  merciless to the victim. Faith cannot be used as dehumanising
  force.                                                                H
    206       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A      16. In the light of what we have observed above, the prayer
  made by the petitioner in the terms sought for cannot be
  granted. However, we observe that .no Dar-ul-Qazas or for that
  matter, any body or institution by any name, shall give verdict
  or issue Fatwa touching upon the rights, status and obligation,
B of an individual unless such an individual has asked for it. In
  the case of incapacity of such an individual, any person
  interested in the welfare of such person may be permitted to
  represent the cause of concerned individual. In any event, the
  decision or the Fatwa issued by whatever body being not
c emanating from any judicial system recognised by law, it is not
  binding on anyone including the person, who had asked for it.
  Further, such an adjudication or Fatwa does not have a force
  of law and, therefore, cannot be enforced by any process using
  coercive method. Any person trying to enforce that by any
0 method shall be illegal and has to be dealt with in accordance
  with law.                                                    '

         17. From the conspectus of what we have observed above,
    we dispose off the writ petition with the observation aforesaid,
    but without any order as to the costs.
E
    Bibhuti Bhushan Bose                       Writ petition disposed of.