Sharia body can't decide whether Muslim woman is divorced: Chhattisgarh High Court

A private Sharia body has no legal authority to decide whether a Muslim woman is legally divorced or to determine her marital status, the Chhattisgarh High Court recently held..In a judgment delivered on September 7, Justice Amitendra Kishore Prasad said that such adjudicatory power must flow from a law enacted by a competent legislature and cannot be assumed by a private religious institution.The Court was dealing with a challenge to a January 2022 communication issued by the Idara-E-Shariya Islami Court at Raipur which declared that the petitioner, a Muslim woman, had been divorced by her husband."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 Court said..The woman had married for a second time in July 2020 after the death of her first husband. According to the petition, disputes subsequently arose between the couple and her husband sought to divorce her. She also alleged harassment and cruelty, following which a first information report (FIR) was registered in November 2021 for the offence of cruelty to wife under Section 498A of the Indian Penal Code (IPC).The husband told the High Court that he had pronounced Talaq-e-Hasan in three phases through communications dated August 31, September 30 and October 30, 2021. He contended that the Idara-E-Shariya had merely communicated or recorded those pronouncements and had not itself adjudicated the parties’ rights..The Idara-E-Shariya also maintained that it was only a religious and advisory institution and did not exercise statutory or judicial powers. It relied on the Supreme Court’s 2014 ruling in Vishwa Lochan Madan v. Union of India, which held that Dar-ul-Qazas and fatwas do not form part of the judicial system recognised by law and that their opinions are not binding..Relying on that judgment, the High Court reiterated that a fatwa or decision issued by such a body is not a decree, has no force of law and cannot be enforced through coercive means. It also noted that religious bodies cannot assume the status or authority of courts established by law..Therefore, the Court declared that the Idara-E-Shariya’s communication could not create, extinguish or alter any legally enforceable right or marital status. It further held that any verdict or decision issued by the body could not be treated as a binding adjudication of civil or matrimonial rights."It has no jurisdiction to adjudicate upon the marital status of the petitioner or to pass an order which, in law, determines whether the petitioner stands divorced," the Court underscored.However, the High Court expressly refrained from deciding the constitutional validity of Talaq-e-Hasan itself. It noted that the issue is pending consideration before the Supreme Court and left the question open..Advocate Devershi Thakur appeared for the petitioner.Central Government Counsel Abhishek Banjare represented the Union of India.Additional Advocate General RK Gupta appeared for the State.Senior Advocate Fouzia Mirza with advocate Ali Afzaal Mirza represented the husband.