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2015 DIGILAW 85 (JK)

Muzaffar Ahmad Shah v. State of J&K

2015-03-10

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. Petitioners 1 & 2 claim to have entered into wedlock on 07.02.2011, out of which a female baby namely Areeba Muzaffar arrayed as petitioner No. 3 is claimed to have been born. According to the averments made in the writ petition, it is stated that the petitioner No. 2 had earlier contracted marriage with respondent No. 5 on 25.11.2007, but left the matrimonial home only a day after due to biological disorder on the part of respondent No. 5. It is claimed that the marriage between the petitioner No. 2 and respondent No. 5, came to be annulled by way of mutual divorce on 10.10.2008, and Sadder Mufti had also issued a Fatwa with respect to annulment of such marriage. It is further stated that respondent No. 5 is interfering with the matrimonial life of petitioners 1 & 2 and extending threats to them. It is also stated that respondent No. 4, a police officer had detained petitioners 1 & 2 alongwith female child on the allegations that petitioner No. 2 was the wife of respondent No. 5 and no divorce had been pronounced. It is thus claimed that respondent No. 5 has hatched a conspiracy with respondent No. 4, to disturb the peaceful matrimonial life of petitioner Nos. 1 & 2, who got married in 2011, after petitioners No. 2 was divorced by respondent No. 5 in the year 2008. It is contended that the petitioners 1 & 2 being major, had every right to contract marriage as per their choice, and respondents have no right to interfere with their peaceful matrimonial life. The petitioners have invoked the jurisdiction of this Court and have prayed for a writ of mandamus commanding the respondents 3 & 4 to provide security to them and not to cause any harassment in their peaceful matrimonial life. 2. On consideration of the matter, notice was issued to the respondents on 01.12.2014 for filing objections, if any. Respondent No. 5 has filed the detailed reply denying the averments made in the writ petition. It is pleaded that the petitioner No. 2 continues to be the wife of respondent No. 5, as no divorce has taken place. It is pleaded that petitioner No. 2 eloped with petitioner No. 1 and started leading an adulterous life committing serious offence of Bigamy. It is pleaded that the petitioner No. 2 continues to be the wife of respondent No. 5, as no divorce has taken place. It is pleaded that petitioner No. 2 eloped with petitioner No. 1 and started leading an adulterous life committing serious offence of Bigamy. It is further pleaded that Fatwa issued by Mufti Azam Kashmir, without associating the respondent No. 5 with the proceedings, is of no consequence and does not take place of divorce or Talak. It is pleaded further that out of wedlock between the petitioner No. 2 and respondent No. 5, a baby child was born on 12.08.2013, which is evident from birth certificate of baby child forming annexure to the reply. It is further pleaded that Nikah-nama produced by the petitioners 1 & 2 is fake and does not confer any right upon the petitioners 1 & 2. 3. I have heard learned counsel for the parties and considered the matter. 4. It is not disputed that the petitioner No. 2 was legally married to respondent No. 5. Petitioners 1 & 2, claim to have contracted marriage in the year 2011, after mutual divorce inter se petitioner No. 2 and respondent No. 5, on 10.10.2008 resulted in dissolution of their marriage leaving petitioner No. 2 free to choose a spouse of her choice. However, no document evidencing dissolution of marriage with mutual consent of the parties has been brought on record to substantiate the averment regarding dissolution of marriage inter se petitioner No. 2 and respondent No. 5. It is seen that the petitioners 1 & 2 base their claim of annulment of matrimonial alliance between the petitioner No. 2 and respondent No. 5 on a Fatwa issued by Mufti Azam, Jammu and Kashmir, Mufti Bashir-ud-din. The Fatwa dated 23.10.2008 appears to have been issued on the basis of ex-parte statement of petitioner No. 2, wherein she alleged that she had stayed in her matrimonial home only for a night and left the company of respondent No. 5, as he was impotent and had subsequently divorced her by executing a Talak Nama on 10.10.2008. 5. The Fatwa dated 23.10.2008 appears to have been issued on the basis of ex-parte statement of petitioner No. 2, wherein she alleged that she had stayed in her matrimonial home only for a night and left the company of respondent No. 5, as he was impotent and had subsequently divorced her by executing a Talak Nama on 10.10.2008. 5. It is apparent on the face of record of the aforesaid Fatwa that opinion recorded by Mufti Azam is based on the unilateral statement of petitioner No. 2 and respondent No. 5 has not been associated at all with the proceedings Respondent No. 5 has not been summoned to put forth his version. It further appears that Talak Nama claimed to have been executed on 10.10.2008, was not produced before the Mufti Azam. The opinion rendered by Mufti Azam is only an expert opinion and not a decree of a Civil Court, therefore, neither binding on anyone nor enforceable. The Hon'ble Apex Court while examining as to whether Dar-ul-Qaza/Nizam-e-Qaza is a Principal Court and Fatwa has any legal status, has laid down the dictum of law in case Vishwa Lochan Madan v. Union of India reported in (2014) 7 SCC 707 . It would be profitable to reproduce paragraph 13 of the judgment, which reads hereunder: "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. A 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 are 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 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 anyone by any coercive method. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority 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 anyone 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." 6. In view of the dictum of law enunciated hereinabove, petitioners 1 & 2 cannot be heard to say that marriage inter se petitioner No. 2 and respondent No. 5 stands dissolved. Therefore, it follows that the marriage between the petitioner No. 2 and respondent No. 5 is subsisting and female child whose name is recorded as Soliha Jan in the Birth Certificate issued by the Registrar Births and Deaths, is the offspring of petitioner No. 2 and respondent No. 5. 7. In view of this conclusion, claim of the petitioners 1 & 2 of having contracted a lawful marriage following dissolution of marriage inter se petitioner No. 2 and respondent No. 5, is found baseless and bereft of substance. The relationship between the petitioners 1 & 2, in absence of a lawful divorce between petitioner No. 2 and respondent No. 5, would be an adulterous relationship, which is criminalized by penal law of land. Petitioners 1 & 2, prima facie, leading an adulterous life can claim no equity in their favour and are not entitled to protection sought, as the same would amount to decriminalizing the adultery and promoting vice. 8. In the aforementioned backdrop, there being no merit in the writ petition, is dismissed alongwith CMPs, with costs quantified to the tune of Rs. 5000/- (five thousand) imposed upon petitioners 1 & 2, for filing the frivolous petition. 8. In the aforementioned backdrop, there being no merit in the writ petition, is dismissed alongwith CMPs, with costs quantified to the tune of Rs. 5000/- (five thousand) imposed upon petitioners 1 & 2, for filing the frivolous petition. Interim direction shall stand vacated.