Muslims are entitled constitutionally to have their cases settled according to the Muslim Personal Law but often the courts do not give this benefit to them. And if they give, the self-coined explanation of the Personal Law by the judges is a matter of concern.
In a stark reminder of the infamous Shah Bano case, the Delhi High court recently issued a verdict that “Muslim husband” would be bound to maintain his divorced wife and minor children till she gets “remarried”. The decision issued as per the Criminal Procedure Code (CrPc) of the Indian Constitution has ignored the Muslim Personal Law.
Even though the Constitution has that “rule of decision” in any case where the parties are Muslims shall be the Muslim Personal Law (Shariat), the courts now and then come up with verdicts where the personal law is not considered. And in many cases the judges give decision in the view of the Personal Law but the decision contradicts it, as those laws are explained wrongly by the judges.
Contrary to the Muslim personal law provision that a husband has to give allowance to his divorced wife only till Iddat—three months in normal situation and in the case of pregnancy until the wife gives birth to the child—the Delhi HC verdict orders the husband to give her maintenance till she marries again.
Contrary to the Muslim personal law provision that a husband has to give allowance to his divorced wife only till Iddat—three months in normal situation and in the case of pregnancy until the wife gives birth to the child—the Delhi HC verdict orders the husband to give her maintenance till she marries again.
“It is crystal clear that even a Muslim divorced woman would be entitled to claim maintenance from a Muslim husband till she has not married (again). This being a beneficial piece of legislation (CrPC), the benefit must accrue to the divorced Muslim women,” the court observed.
The decision came as a result of the court dismissing a petition filed by a man challenging a lower court's award of maintenance of Rs 2,000 per month to his minor daughter living separately with her mother.
The court brushed aside the man's contention that the right to get maintenance for the minor children ceases after two years of divorce as provided in the Personal Law saying that the sustenance right cannot be restricted unless the divorcee gets remarried.
“I consider that the benefit cannot be denied to a minor daughter because of any restrictive provision contained in Muslim Women (Protection of Rights on Divorce) Act, 1986,” Justice Dhingra said.
In the same way as the Indian Constitution has accorded some traditional laws the status of law, Muslim Personal Laws are also accepted. The decisions by Naga Court (Kachehri) cannot be abolished. Neither the Supreme Court nor the Parliament can constitute a law against this. Interestingly, the Naga population is far less than that of the Muslim community.
The recent Delhi HC verdict did not issue verdict as per the Muslim Personal Law while the two parties are Muslims. This is not a fair practice by courts. If the wife demands the decision be given under CrPC and her demand is given an ear why the demand by the husband that verdict be issued according to the Personal Law is ignored.
In the same way as the Indian Constitution has accorded some traditional laws the status of law, Muslim Personal Laws are also accepted. The decisions by Naga Court (Kachehri) cannot be abolished. Neither the Supreme Court nor the Parliament can constitute a law against this. Interestingly, the Naga population is far less than that of the Muslim community.
Nevertheless, more worrisome is the attitude of the judges when they make the Muslim Personal Law the base to give any decision and then explain the Law in their own way; which often contradicts the essence of the Personal Law.
This practice by the judges is known as “Judicial Activism”. It is awkward to listen or read the word “Judicial Activism” associated with the courts and judges. Each of law, courts and judges have vividly prescribed limits which they are supposed to observe. The use of “judicial activism” with them takes the mind to something beyond those explicit limits.
What “judicial activism” refers to is the outcome of the judges going astray from the right path only to adopt a new approach while leaving behind the usual way.
Anyone transgressing the limits tries to meddle into others affairs. Interruption though with good intention, is anyway interruption. In other words we call it ghuspaith. It draws capital punishment if performed on the border of a country but if done in the courts surprisingly it becomes an “art”.
The courts have crossed their limits and stretched their legs beyond Laxman Rekha. This affects their influence, degrades them and damages the respect people have for them. Strange stories emanate from the court premises and take their way to publicity. That judges have stepped out of their limits is not only wrong but it also goes against the dignity of the courts; the most respected institution and the last hope of citizens.
The courts have crossed their limits and stretched their legs beyond Laxman Rekha. This affects their influence, degrades them and damages the respect people have for them. Strange stories emanate from the court premises and take their way to publicity. That judges have stepped out of their limits is not only wrong but it also goes against the dignity of the courts; the most respected institution and the last hope of citizens.
Sorrowfully, the courts have shown interest even in administration. They have started directly dealing the issue of transfer posting. It was unexpected from the courts when some years back they took interest in the construction of roads and bridges, too. Such steps by the courts have damaged their dignity. The courts seem to have traded the path where “administration” lost its dignity.
As of now, even Islamic Shariah has become the victim of courts transgression. Commonly, the judges ignore Muslim Personal Law while delivering justice to Muslims, as is evident from Delhi HC judgement, and if they consider the Personal Law they explain according to their own understanding. Judges are expert at explaining the Constitution and they are duty bound to do it; they cannot explain Qur’an and Hadith (the base of Muslim Personal Law). Only those having in depth study and vast knowledge, and well versed in the Principles of Qur’an & Hadith can be eligible to explain Qur’an and Hadith.
Usually, the judges do not fulfil this criterion. They do not know Arabic (the source language of Qur’an and Hadith) nor do they have required knowledge for understanding the niceties of Qur’an and Hadith. Yet, the judges have vain hopes that they can understand Qur’an through translation. Wrong notion. They should avoid this.
In the past, the courts issued verdicts that left us regretting upon the ignorance of the judges. In a Bombay High Court verdict, the honourable judge wrote that there are found three sects in Muslims: Shi’ah, Sunni and Muztahid. Where we will find the third sect, only the honourable judge can tell. But the prestige of their ignorance has established in our hearts. It happened only because the little knowing judge felt him duty bound to express his ability on the base of little argument by an advocate and he knocked the door of Islamic beliefs. The judges should limit themselves to only knocking the doors of the court and the constitution. It is their subject and they know about this. As for Islamic beliefs, their knowledge is insufficient. If the judges dare speak about Islamic teachings, people will laugh at them.
Usually, the judges do not fulfil this criterion. They do not know Arabic (the source language of Qur’an and Hadith) nor do they have required knowledge for understanding the niceties of Qur’an and Hadith. Yet, the judges have vain hopes that they can understand Qur’an through translation. Wrong notion. They should avoid this.
Muslims have the legal right to seek settlement of their cases according to their Persona Laws. The Constitution of India grants religious freedom and talks about preservation of personal laws. All know that preservation of religious freedom is a basic right. It also means that if one claims of being a god, the judge cannot term him wrong. If anyone declares he is the avatar of any god or goddess, the Indian Constitution does not stop them nor does it prescribe any punishment for them.
Likewise, if anyone belongs to a certain religion, the judge will not explain his religion by his own. Rather he will resort to the scholars of that religion to know the details about the religion. So speak the Constitution and court patterns. But the wrong notion of the judges to know everything brought them to this extent where there is inscribed NO ENTRY board for them.
The foundation of the Muslim personal law is religious and it is based on Qur’an and Hadith. Muslims are duty bound religiously to obey them. These laws ensure the protection of Muslims’ beliefs and culture. What their beliefs, religious practices and culture refer to, only experts at Islamic teachings can explain. Judges are expected not to touch them.
As in the case of DNA test, the judges do not trust on their study of physics and chemistry books rather they want a forensic laboratory report—all the stages to the DNA tests are written in the books and people get expertise in the field through reading these very books coupled with subsequent experience. But none of the judges claim that there is no need of any expert for DNA test and he/she will study the books and abstract the result—in the same way by reading the translation of Qur’an and Hadith and studying the unauthorised translation of Hidayah, Aalamgiri (that too a certain part of them) they cannot reach to “justice”.
Justice with “justice” demands that authorised ulama are approached when it comes to know about Islamic commands. The best way is to turn to Muslim Personal Law Board in this case.
Muslims have the legal right to seek settlement of their cases according to their Persona Laws. The Constitution of India grants religious freedom and talks about preservation of personal laws. All know that preservation of religious freedom is a basic right.
The logic of the judges that Islamic Law is written and they have the right to explain them, is weak. To explain Qur’an and Hadith, to understand masaail through them, and to solve the masaail is a difficult task. For this very purpose, scores of sciences were invented throughout the centuries. Uncounted people spent their lives for this. As judges accept supporting evidence have importance in any case, supporting knowledge along with Qur’an and Hadith too is significant. Experienced lot knew the enormity of the situation and the superficial knowledge of the judges about Islam. Long way back in 1897, they instructed the judges in this regard. Following words were written in the decision of a preview council, “But it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Quran in opposition to the express ruling of commentators of such great antiquity and high authority.” (1897) 24 Indian Appeal 196 (PG) Aga Mohammad Jaffar Bin Daneem Vs. Sonam Bee Bee)
As a matter of fact, the preservation of religious freedom or personal law and the Constitutional nod for the same is not a benefaction over Muslims or any certain group. Rather it is the need of the country. The existence of scores of religions, multiple cultures and myriad races in the country makes flexibility in the Constitution mandatory because it is must for the safety and unity of India. This is a way to ensure that the country remains united. Judges should keep in the mind the history of the Indian Constitution and its background. They should not go against the wisdom used by the Constitution makers. Or it will affect the unity of India and their activism will continue weakening the country.
“Judicial activism” looks strange. It has been in use for the last some years. Any decision having something new is termed as “judicial activism”. The verdicts beyond the constitutional jurisdiction and which comprise common needs and human values were added to it later. The matter went further and the judges explained the Constitution according to their understanding and tendency and it was named the broader meaning of the law, the social explanation of the Constitution and an explanation done according to the need of the Constitution.
The courts are not humanist, social reformers, constitution framers or religious authorities. Their jurisdiction is fixed and evident. If the party in any case is Muslim there is no reason that verdict is not issued according to their Personal Laws. It is their right allocated by the Indian Constitution.
The judges gave some verdicts that came as utter shock to us. No one can predict as to where the feeling of being omniscient and the intoxication of the knowledge and the chair will take the decisions. No guess how much more it will degrade the courts. Judicial activism, as per its physiques, meaning and explanation never suits the courts’ activities, the dignity, seriousness and far sightedness of the judges.
The courts are not humanist, social reformers, constitution framers or religious authorities. Their jurisdiction is fixed and evident. If the party in any case is Muslim there is no reason that verdict is not issued according to their Personal Laws. It is their right allocated by the Indian Constitution.
Moreover, the work of the judges is that of explaining the Constitution and implementing it. They have the knowledge of this and in this they are trained. They should serve being in their limits. It is the demand of their knowledge, dignity and respect. If they transgress their limits, not only their ignorance will be exposed but also their respect and grade will witness gradual decrease. In regards with the Muslim Personal Laws, they should resort to the authorised religious scholars of the community the same way they seek experts’ opinion in DNA or forensic tests.
Maulana Wali Rahmani
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