Tuesday, July 15, 2014

Status of Shariah Courts in India

By Jeremy D. Morley*
The Supreme Court of India has rejected a petition seeking to ban Shariah courts in India, but it has stressed that such courts have no legal powers over Muslims and that their decisions cannot be enforced. Vishwa Lochan Madan v. Union of India, July 7, 2014.

The petitioner alleged that the
All India Muslim Personal Law Board was seeking to establish a parallel judicial system in India for the Muslim community comprised of “ulemas” which are bodies of Muslim scholars. Some such ulemas had allegedly issued “a galore of obnoxious fatwas” including one that ruled that a wife could no longer have relations with her husband because she had been raped by her father-in-law.
The Supreme Court ruled that the petition was misconceived because the Shariah courts have no legal standing under India law and the fatwas purportedly issued by such entities have no authority.
Specifically, the Supreme Court ruled that
“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 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 [certain ulemas] are running a parallel judicial system is misconceived.”

Thus, the Court insisted that Islamic judges interpreting religious law could rule only when individuals submitted voluntarily to them and that their decisions, or fatwas, are not legally binding.
It should also be noted that the various personal laws followed by India’s religious minorities are an extremely sensitive political issue and that India’s new Hindu nationalist government is committed to bringing in a common legal code for all Indians.

*Jeremy Morley handles many international family law matters between the United States and India, always acting with local counsel as appropriate. He has provided expert witness testimony as to India’s child custody laws.