“Fatwa is an opinion, which an expert is expected to give. It is not a decree, not binding on anyone nor enforceable.”
Are Ulemas trying to set a parallel system of judiciary by issuing fatwas? Are fatwas binding? Does recourse to have fatwas bar the right of the individual to go to the Indian Legal System? Can a fatwa be issued against an individual against his wishes?
These were some of the contentions which were to be decided by the Supreme Court in the case of Vishwa Lochan Madan v. Union of India and Others. The petitioner in this case contended that The All India Muslim Personal Law Board which comprises of Ulemas is trying to build a parallel Judicial System by establishing Dar-Ul-Qazas, by which several Qazis are being trained to solve the disputes among Muslims. He contended that the Board is trying to do the same because it thinks that it is difficult for Muslims to get justice through the already existing Judiciary and situation worsens in the case of economically and socially weaker sections of the society. Therefore, such an establishment has become a need to dispense justice among the society.
The Union of India and the other respondents argued that fatwas are not binding in nature. They are only advisory in nature. The Qazi act as a mediator or an arbitrator and the main aim is to solve the disputes like civil, familial etc. Their aim is not to dispense criminal justice. They argued that they do not have any power to enforce fatwas. It is the wish of the parties to abide by it or not. One representative from the community argued that the God fearing Muslims obey fatwas and it is the wish of the rest of the Muslims to not to obey them. They refuted that the All India Muslim personal law Board is trying to run any parallel system of judiciary.
The petitioner on the other hand contended that some of the fatwas are really obnoxious and do not serve the end of justice and should be declared as illegal, illegitimate and unconstitutional. He also asked that the Board should be restrained from setting up parallel judicial system and further restrained from training any Qazi to give such fatwas.
He also cited some incidents in which very absurd fatwas were issued. One such incident that he mentioned was the alleged rape committed by the father- in-law against his daughter-in-law. The fatwa issued by Dar-ul-Uloom was that since the Quran says that one should not marry a girl who has been copulated by one’s father, therefore, in this instance, the husband and wife could not live together as husband and wife as the father of the husband had have sexual relationships with his husband’s wife. The husband and the wife obeyed the fatwa. Another instance cited by him in the case is the case where another daughter-in-law was allegedly raped by her father-in-law. However, the fatwa was issued which said that no police report could be filed by the parties because the allegation of daughter-in-law had neither been corroborated by any witness nor been endorsed by her husband.
The Court held that the power of adjudication must come from a valid law. The adjudicator has the power not only to make a decision but also to enforce it and if is not enforced then the appropriate legal measures can be ensued. These are the essentials of any legal system which is not fulfilled by the Dar-ul-Uloom. Dar-ul-Ulooms are not created by any statute so, they do not have any legal validity to adjudicate nor do they have powers to enforce the same and to initiate any legal action in case of the failure in the enforcement of such fatwas. Therefore, fatwas do not have any legal value in the eyes of law. A fatwa is an opinion and not a decree. They are not binding and the Board is not trying to set any parallel Judicial System.
However, the Court took note of the practical realities. Considering that the fatwas are issued by the religious authorities and the notion that those who obey and respect the Almighty and believe that they have to answer for their deeds before the God will obey the fatwas and others won’t, add social pressure over the individuals to obey these fatwas.
The court held that the fatwas can be issued on religious or community matters unless they infringe the rights of the individuals. The fatwas can also be issued if an individual comes on his/her own and ask the issuance of fatwa on his/her private matter, which does not concern the society at large. The Court held that the fatwas should not be issued in the private matter of an individual unless asked by the aggrieved himself/herself or any other party directly interested in the issue or by any third party only if the original party is not in a position to ask for the same. Thus, the matters concerning the private issues of an individual can’t be decided upon by the Dar-ul-Uloom on its own or at the instance of any third party or any stranger unless they are covered by the exception created in the case. Even if any party seeks the fatwa, it is not obligatory upon him/her to follow it. It is open for him/her to go to the regular courts and get his/her matter decided validly and legally by the Indian Legal System.
Though there was already a general understanding that the fatwas are not binding but the fact stands that fatwas have very great coercive powers. Even after this judgement, the fatwas will still continue to be issued, however, the significance of the judgement lies in the fact that the legality and enforceability of these fatwa have been settled conclusively by the Supreme Court.
The task, now at hand, is to spread awareness among the people about the stand of the law in regard to the validity of the fatwas so that thousands of people who feel themselves as helpless after the issuance of the fatwas can actually go to the courts to get justice. It is now our duty to prevent hundreds of the cases in which fatwas either settle the case arbitrarily or bar the legal proceedings for the parties, as it happened in the two cases cited by the petitioner in the case, so that the justice is dispensed among the people and the aim of the informal justice system and the formal justice system is achieved.
About the Author
Kanchan is a second year law student at National Law University, Delhi. Out of the subjects that she has studied till now, she takes interests in criminal Law. Her hobbies include painting, watching movies, listening to songs etc.
 (2014) 7 SCC 707.