New Delhi: The Supreme Court has held that the decisions pronounced by a ‘court of kazi’ or ‘Sharia court’ are not recognised by law, but their decisions can be binding on the parties to a dispute if they accept it.
As a postscript to a judgment in a maintenance case filed by a Muslim woman living separately from her husband, a bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah said, “The ‘Court of Kazi,’ ‘Court of (Darul Kaja) Kajiyat,’ ‘Sharia Court’ etcetera by whatever name styled have no recognition in law.”
The SC has ordered the husband to pay maintenance of Rs 4,000 per month to the wife from the date she filed her petition.
In the appeal filed by the woman, she had sought maintenance from her husband for her children and herself under Section 125 of the erstwhile Code of Criminal Procedure (CrPc). A family court, followed by the Allahabad High Court, had earlier denied her maintenance, holding her responsible for the disruption to her marriage. Meant to be a welfare legislation, the provision allows wives, children or parents, who have been deserted, to demand monthly maintenance from husbands, fathers or sons.
In this case, the Supreme Court bench’s reference to the ‘court of kazi’ or ‘Sharia court’ came from the husband’s previous attempts to divorce his wife in these courts. He used the compromise deed signed between the two to argue against paying maintenance.
While the court was not dealing with the validity of the divorce, it said that any declaration by such Islamic bodies cannot be implemented by any legal process. It had made a similar judgment on Islamic courts in 2014, ruling in Vishwa Lochan Madan v. Union of India that Islamic institutions issuing fatwas or religious rulings are not recognised by Indian law.
However, the court acknowledged that if both parties to a dispute voluntarily accept a decision made by such a body and act upon it, the ruling may hold value solely between those parties—provided it doesn’t conflict with Indian law.
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Understanding the case
The maintenance petition was filed under Section 125 of the CrPc in the Jhansi family court by one Shahjahan.
Her counsel told the Supreme Court bench that the couple got married on 24 September, 2002, as per Islamic rites, and it was the second marriage for both. The couple had two children—a girl and a boy, who are now 21 and 16, respectively.
In 2005, the husband filed a divorce suit against her in a ‘court of kazi’ in Bhopal, Madhya Pradesh. This was dismissed in view of a compromise deed signed between the two on 22 November that year. The deed records the promise made by both parties to live together and their agreement that they would not give the other party any occasion to complain.
However, three years later, in September 2008, the husband filed for divorce again—this time in a ‘court of (Darul Kaha) kajiyat’ in Bhopal. This, she alleged, was after she was turned out of the matrimonial home for failing to meet her husband’s dowry demands.
The Islamic court allowed the husband’s suit for divorce and a talaqnama was prepared on 22 January, 2009.
In the meantime, Shahjahan approached the Jhansi family court in October 2008, asking for a monthly maintenance of Rs 5,000 for herself and Rs 1,000 for each child.
Pronouncing its judgment in April 2010, the family court ordered only Rs 2,500 for her children, while holding that Shahjahan did not deserve maintenance since she had left her husband herself. It did not believe the woman’s claim that she was thrown out of the house. The court opined that, given that it was her and her husband’s second marriage, “there was no possibility of dowry demand by respondent number 2 [the husband].”
In 2018, the Allahabad High Court dismissed her revision petition, upholding the findings of the family court and holding them not to be perverse or illegal.
Appealing the decision before the Supreme Court, Shahjahan assailed the family and high court orders on the grounds that they had both ignored the fact that she was an illiterate woman with no source of income. Both, she said, had erred in concluding that she willingly left the matrimonial home, while it was the husband who wanted to part ways. This is also proven by the fact that the husband had filed divorce suits against her, she claimed.
She also challenged the finding of the courts, which, based on the 2008 compromise deed, held that the rift between the couple was on account of Shahjahan’s character and conduct. According to them, she had admitted to her mistake in the compromise deed.
Importantly, the state of Uttar Pradesh supported the high court order and blamed the wife for living separately without assigning sufficient reasons. It said that the two orders cannot be termed to be without any basis, and maintenance money was rightly restricted to the couple’s two children.
What the Supreme Court said
On the perusal of the compromise deed, the top court set aside the family court and high courts’ opinions, holding that the grounds for rejecting Shahjahan’s plea for maintenance were unsustainable.
The top court held that the maintenance could not have been denied to the wife under the prevailing circumstances and directed the husband to pay Rs 4,000 every month to the wife from the date of filing the maintenance petition.
To the Allahabad High Court’s reasoning—that the man could not have demanded dowry since it was his second marriage and would be trying to rehabilitate his house—the top court said, “Such reasoning or observation by the family court is unknown to the canons of law and is based on mere conjecture and surmise.”
“Court is not an institution to sermonise society on morality and ethics,” it said.
Though Shahjahan had not challenged the divorce granted to her husband by the ‘court of (Darul Kaja) kajiyat,’ the Supreme Court wrote a postscript to the judgment while dealing with the legality of such a body.
It quoted its 2014 judgment, in which it had dealt with the legal status of dar-ul-qazas (Sharia departments) presided over by kazis (Islamic magistrates), who issue fatwas (legal rulings based on Islamic law). In that case, the top court was called upon to examine whether a dar-ul-qaza is a parallel court and if a fatwa has any legal backing.
The judgment had decreed that a fatwa has no “legal status in our constitutional scheme”. Since a fatwa issued by dar-ul-qazas or, for that matter, anybody is not adjudication of a dispute by an authority under a judicial system sanctioned by law, such a decision cannot be enforced by any legal process. A fatwa, it said, is an opinion, and only an expert is expected to give one. It is not a decree, nor is it binding on the court, the state, or the individual.
Taking note of the 2014 ruling, the Supreme Court bench held, “As noted in Vishwa Lochan Madan (supra), any declaration/decision by such bodies, by whatever name labelled, is not binding on anyone and is unenforceable by resort to any coercive measure.”
While applying the principles underlined in the 2014 judgment, which dealt with fatwa, the bench of justices Dhulia and Amanullah held that a declaration by the Sharia Court can only withstand legal scrutiny if it is accepted by the contesting parties. It essentially means a divorce decision by such a body would have legal validity if both husband and wife amicably agree to it.
And the “only way such declaration/decision can withstand scrutiny in the eye of law could be when the affected parties accept such declaration/decision by acting thereon or accepting it, and when such action does not conflict with any other law,” the bench said.
Even then, it added, such a declaration or decision, at best, would only be valid inter-se (between) the parties that choose to act upon or accept the same, and not a third party.
(Edited by Sanya Mathur)
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