A Kazi can act as mediator to settle disputes but cannot adjudicate them and pass orders like a decree: MP HC

While drawing the red line on what a Kazi can do in his role to settle dispute, the Indore Bench of Madhya Pradesh High Court on January 12, 2022 has in a learned, laudable, landmark and latest judgment titled Aadil vs Union of India and others in 2022 LiveLaw (MP) 13 in Writ Petition No. 24741/2018 (PIL) clearly laid down that a Kazi can entertain a dispute and acts as a mediator to settle the dispute between the members of the Muslim community but he cannot adjudicate the dispute like a court and pass an order like a decree. It deserves mentioning that the Bench of Justice Vivek Rusia and Justice Rajendra Kumar Verma noted that an order of the Kazi granting Talaq (divorce) by way of Khula has no legal sanctity and can simply be ignored. The petitioner named Aadil moved a Public Interest Litigation (PIL) plea alleging that All India Muslim Personal Law Board and their Quazi/Kazi are running parallel judicial system against the provisions of the Constitution of India and also against the established system of law and justice in this country.

It cannot be lightly dismissed what Aadil has said because he is not a person of some other religion but is himself a Muslim. The PIL by him alleges that Quazi/Kazi are running their own courts and passing orders and decrees in personal matters. This is definitely a very serious matter what Aadil alleges and India is certainly not Pakistan or Afghanistan or some Islamic country that we can dismiss this very lightly! We are a secular country from the beginning to the finish!

To be sure, Aadil also referred to his own case and pointed out that on an application filed by his wife for divorce by “Khula”, the divorce was granted to him. The PIL also averred that respondent No. 7 (Chief Quazi, Masjid 22, Chhoti Gwaltoli, Indore) under the shelter of President and General Secretary of All India Muslim Personal Law Board and others is entertaining such types of disputes and passing the orders in the matter which are liable to be brought before the Court for adjudication. How can there be a parallel judiciary in a secular country like India? It is true that what Aadil has alleged is very serious. Let us see now what the Madhya Pradesh High Court rules in its verdict step by step.

To start with, the ball is set rolling in para 1 of this extremely commendable, courageous, cogent and creditworthy judgment authored by the Bench of Justice Vivek Rusia and Justice Rajendra Kumar Verma of Indore Bench of Madhya Pradesh High Court wherein it is put forth that, “Petitioner has filed the present petition under Article 226 of the Constitution of India as a Public Interest Litigation (PIL) alleging that respondents No. 4 to 8 are running parallel judicial system against the provisions of the Constitution of India and also against the established system of law and justice in this country. They are running their own courts and passing orders and decrees in personal matters.”

To put things in perspective, the Bench then envisages in para 2 that, “The petitioner is claiming himself to be a victim of such type of orders passed by respondents No. 4 to 6. The petitioner has filed one of the orders passed by respondent No. 7 on an application filed by his wife i.e. respondent No. 8 for divorce which is called “Khula” by making all sorts of allegations against him. She sought Talaq under the Kanoon-A-Shariat. On an application of respondent No.8, respondent No. 7 has called the petitioner to appear to submit a reply. The petitioner has submitted a reply on 13.02.2017 refuting the allegations made against him. According to the petitioner, respondent No. 7 has proceeded with the matter and ordered the Talaq (divorce) by way of Khula which is not permissible under the Indian judicial system. The petitioner has alleged that respondent No. 7 under the shelter of respondents no. 4, 5 & 6 is entertaining such types of disputes and passing the orders in the matter which are liable to be brought before the Court for adjudication. When no action has been taken the petitioner has approached this Court by way of this writ petition (PIL).”

As it turned out, the Bench then observed in para 3 that, “After notice the respondent No.2 has filed the return raising the issue of maintainability of the petition and availability of alternate remedy to the petitioner as his personal interest is involved in this matter. Respondent No.2 has further submitted that section 4 of the Kazi Act, 1880 does not empower the Kazi to confer any judicial or administrative power.”

Furthermore, the Bench then discloses in para 4 that, “Respondent No.6, All India Muslim Personal Law Board has filed the reply by submitting that the personal law relating to marriage and dissolution of marriage has to be governed by the personal law of Muslims as recognized by them in terms of their religious denominational texts. It is further submitted that clear instructions are given to Kazis who are appointed by the All India Muslim Personal Law Board not to entertain the disputes wherein the parties thereof have already approached the Court of Law or do not consent for an amicable resolution of the dispute. Thus, they are not parallel judicial systems established in derogation of or in conflict with the recognized judicial system in the country. It is further submitted that the petitioner did not agree to the pronouncement of Khula to respondent No.8 in terms of its communication dated 13.2.2017 addressed to respondent No.7 and further considering the fact that respondent no.8 has initiated criminal proceedings against the petitioner. Respondent no.7 ought to have closed the mediation without further proceeding in the matter. The rest of the respondents have not filed the reply despite service.”

Be it noted, the Bench then very rightly enunciates in para 5 pointing out that, “During the course of arguments, Shri Mathur, learned Senior Counsel appearing on behalf of respondents No.6 & 7 has placed reliance over the judgment passed by the Apex Court in the case of Vishwa Lochan Madan vs. Union of India and others reported in (2014) 7 SCC 707 in which the Apex Court has held that fatwa/Darul-Qazas/Nizam-e-Qazas are not a decree and is neither binding on anyone nor enforceable-only an adjudication by a legal authority sanctioned by the law is enforceable and binding- only voluntary submissions/acceptance to fatwa is permissible. It is further held that the establishment of such a court to administer justice to the member of a particular religion in the name of Dar-ul-Qazas/Nizam-e-Qazas is impermissible and have no legal status.”

It is also worth noting that the Bench then hastens to add in para 6 that, “Paras-13 & 14 of the judgment are reproduced below:

13 As it is well settled, the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 10 Page 11 under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. 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 cannot 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.

14. As observed earlier, the Fatwa has no legal status in our Constitutional scheme. Notwithstanding that it is an admitted position that Fatwas have been issued and are being issued. All India Muslim Personal Law Board feels the “necessity of establishment of a network of judicial system throughout the country and Muslims should be made aware that they should get their disputes decided by the Quazis”. According to the All India Muslim Personal Law Board “this establishment may not have the police powers but shall have the book of Allah in hand and sunnat of the Rasool and all decisions should be according to the Book and the Sunnat. This will bring the Muslims to the Muslim Courts. They will get justice”.

Most significantly and also most remarkably, what forms the real heartbeat of this noteworthy judgment is then elaborately stated in para 7 wherein it is held that, “In view of the aforesaid judgment and the arguments advanced by Shri Mathur, learned Senior Counsel, the order passed by the chief Kazi on an application filed by respondent No.8 has no legal sanctity. Respondent No.7 being a Kazi is only entitled to enter into a negotiation/mediation between the parties in order to settle the dispute. The M.P. State Legal Services Authority is promoting community based mediation in the State of M.P where the trained mediators of a particular community can act as a mediator to resolve the dispute between the parties in order to end the litigation at the very inception. The Legal Services Authority, Jabalpur and Indore has trained more than 70 volunteers of different communities and religions to act as mediators to settle the dispute between the members of the community out of Court. If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible but he cannot adjudicate the dispute like a court and pass an order like a decree. In view of the law laid down by the Apex Court in the case of Vishwa Lochan Madan (supra), such an order has no legal sanctity and can simply be ignored. So far the matrimonial dispute between the petitioner and respondent No. 8 is concerning the same is not liable to be examined in this writ petition for which they are free to avail the remedy available under the law. This Court has not expressed any opinion in respect of their matrimonial matter.”

Finally, the Bench then concludes by holding in para 8 that, “Accordingly, the present writ petition is disposed of.”

In a nutshell, the Indore Bench of Madhya Pradesh High Court comprising of Justice Vivek Rusia and Justice Rajendra Kumar Verma have laid all the questions looming on such a key topic to rest by specifically specifying everything on the powers of Kazi in this notable judgment. The Bench has clarified quite explicitly that a Kazi can certainly entertain disputes and act like a mediator to settle the dispute between the members of the community but he cannot adjudicate the dispute like a court and pass an order like a decree. While mentioning about the Vishwa Lochan Madan judgment delivered by none other than the Apex Court, the Bench also ruled categorically that an order of the Kazi has no legal sanctity and can be simply ignored. All the Kazis and so also the All India Muslim Personal Law Board must have no doubt now on this.

On a closing note, I am sure that the Kazis and so also the All India Muslim Personal Law Board too will happily now adhere unfailingly to what has been laid down so briefly, boldly and brilliantly in this leading case by the Indore Bench of Madhya Pradesh High Court! We have seen also in India that Muslims have always adhered strictly to what is laid down by the Courts! We have also seen how even in the high-profile Ayodhya case, the Muslims have demonstrated how much they believe in the “rule of law” for which they deserve to be applauded! No denying it!

Person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 10 Page 11 under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method. 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 cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody.