Religious bodies cannot assume authority of courts: HC

A religious institution or private body cannot assume the authority of a court established by law or use religious belief to determine or enforce an individual’s rights, the Chhattisgarh High Court observed while nullifying a divorce order passed by a private Sharia body.

A bench of Justice Amitendra Kishore Prasad set aside an order issued by ‘Idara-E-Shariya Islami Court’ in Raipur declaring a 38-year-old woman divorced, holding that fatwas or decisions passed by such extra-judicial forums have no binding legal authority.

The court had reserved its order on August 12 and pronounced it on Monday.

The petitioner, Nirosh Abbasi, had challenged an order dated January 18, 2022, issued by the ‘Idara-E-Shariya Islami Court’, by which it had purportedly declared that she had been divorced through ‘triple talaq’.

She also challenged the very existence of the body, contending that it was functioning in violation of the Constitution and had no legal authority to determine her marital status.

Abbasi’s first husband died in 2015, and she subsequently married Mohammed Abid Khan of Raipur in 2020.

Khan claimed that Abbasi’s children from her first marriage were unable to adjust with the new family and, on that purported ground, she was subjected to ‘triple talaq’.

Abbasi had contested the purported divorce, asserting that religious law could not override the law applicable in India. She had also alleged harassment, cruelty and ill-treatment by Khan and his family members and submitted a complaint to the Raipur Superintendent of Police in October 2021, following which a first information report was registered.

The High Court noted that despite the registration of the FIR and pendency of proceedings before competent authorities, the ‘Idara-E-Shariya Islami Court’ proceeded to issue its January 18, 2022 order.

“Religion may guide an individual’s conscience and personal faith, but no religious institution or private body can be permitted to assume the authority of a Court established by law or to use religious belief as a means of determining or enforcing the legal status and rights of an individual. The rule of law and the constitutional framework remain paramount,” the HC said.

Appearing for the petitioner, advocate Devershi Thakur argued that the private body had purported to exercise authority over the woman’s marital status despite her having already approached the competent authorities.

The petitioner contended that no private body or self-styled Sharia court could assume jurisdiction vested in courts established under the Constitution and laws or issue orders having the effect of determining or altering legal rights and status of a citizen.

The State, represented by Additional Advocate General R K Gupta, submitted that the Indian Constitutional and legal framework does not recognise any parallel judicial system based on religion.

Bodies described as “Sharia Courts”, “Darul Qaza” or “Courts of Kazi” have no statutory recognition, judicial authority or power to adjudicate civil and matrimonial disputes, he argued.

The Idara-E-Shariya Islami Court, in its response, maintained that it was a religious and advisory institution and did not exercise judicial or statutory powers. It said it did not function as a parallel judicial system and had no legal status as a court.

Referring to Supreme Court rulings, the High Court said adjudicatory power must flow from a validly enacted law and that a Dar-ul-Qaza is neither created nor sanctioned by law.

The HC noted that a fatwa issued by such a body is merely an opinion and cannot be treated as a decree. It is not binding upon a court, the State or an individual and cannot be enforced through coercive legal process.

It clarified that the existence of Dar-ul-Qaza or the practice of issuing fatwas had not been declared illegal. However, such bodies cannot assume the status or authority of courts established under law.

The court held that the Idara-E-Shariya Islami Court could not be recognised as a court constituted under the Constitution or any statute. It had no jurisdiction to adjudicate upon the marital status of the petitioner or determine whether she stood divorced.

The HC further held that any opinion, verdict or decision issued by the body could not be enforced through coercive process or treated as a binding adjudication of civil or matrimonial rights.

At the same time, the High Court refrained from adjudicating upon the constitutional validity of Talaq-e-Hasan, noting that the issue was pending before the Supreme Court.