Thursday 10 July 2014

Sharia :Law in India

A fascinating case before the Supreme Court of India which deals with a question which is also debated in the UK namely the role and status of Sharia Tribunals

In the case of  Madan v India SCIndia 7 Jul7 2014 an application was made for a declaration that the activities of Shariah tribunals were unlawful and that the various bodies sponsoring them should be disbanded.

As is usual in these cases the Judge was provided with what he described as "the galore of obnoxious Fatwas " with some pretty appalling examples being quoted.  The basis of the case was said to be that the 
"All India Muslim Personal Law Board ... 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"

The Judge accepted that Sharia Tribunals existed and were issuing Fatwas but disagreed that they therefore constituted a parallel Muslim judicial system. He said that a Fatwa 

"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 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 running a parallel judicial system is misconceived."

However the Judge did not give a blank cheque to Sharia Tribunals to do as they wish.  He was concerned by one particular case where a wife who had allegedly been raped by her father in law then had a Fatwa issued dissolving her marriage.  The Fatwa had not been applied for by either the wife or her husband but by a journalist and the Judge did condemn the issuing of a Fatwa in such circumstances

"Issuance of Fatwa on rights, status and 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 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 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.

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, of an individual unless such an individual has asked for it."

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