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Tuesday, September 18, 2012

Fatwa must not violate laws SC says in full verdict

Ashutosh Sarkar

The Supreme Court yesterday released the full judgment in a case regarding fatwa, (Islamic religious edict) in which it said properly educated people could issue fatwa without violating the laws of the land.
“Fatwa on religious matters only may be given by the properly educated persons which may be accepted only voluntarily but any coercion or undue influence in any form is forbidden,” it said in the 138-page judgment.
“But no person can pronounce fatwa which violates or affects the rights or reputation or dignity of any person which is covered by the laws of the land. No punishment, including physical violence and/or mental torture in any form, can be imposed or inflicted on anybody in pursuance of fatwa,” the SC said.
The Appellate Division of the SC released the full judgment more than 44 months into the announcement of a short verdict on it.
The apex court allowed the High Court to issue a suo moto rule on the matter without any petition, as there was a debate among the jurists on whether the HC had the jurisdiction to issue such a rule.
The SC had come up with the verdict on May 12, 2011, after endorsing in part two separate appeals filed against the two HC verdicts that had declared all kinds of fatwa and punishment in its name illegal.
The HC in January 2001 had declared fatwa illegal, after bigots forced a woman to engage in a Hilla marriage in Naogaon. Hilla marriage is a system in which if a man divorces his wife and then wants to remarry her, she has to marry a third person before her ex-husband can marry her again.
In another verdict in 2010, the HC banned punishment of any person using fatwa.
Fatwa came to limelight after it was used to punish mainly women in village arbitrations.
The six-member bench of the Appellate Division headed by the then chief justice ABM Khairul Haque delivered the verdict by majority views.
Other five judges of the bench are -- former chief justice Md Muzammel Hossain, present Chief Justice Surendra Kumar Sinha, Justice Md Abdul Wahhab Miah, Justice Syed Mahmud Hossain and Justice Muhammad Imman Ali.
“As such, although a Mufti, Maulana, or Imam may pronounce a fatwa, if requested, but cannot violate the laws of the land, rather, are bound by it. He should also be respectful of the fatwa or opinion of others,” Justice Khairul said in his part of the verdict.
Justice Wahhab Miah had disagreed with the five judges in the verdict. He said in his judgment that the HC had no jurisdiction to issue any suo moto rule.
Meanwhile, the SC in the judgment said, “The issuance of fatwa involving a finding of an 'offence against shari'at' and resulting in imposition and execution of extra-judicial penalties by person is not in accordance with law.
“The kind of offences for which women have been subjected to lashing and beating are 'talking to a man', 'pre-marital relations,' 'having a child outside the wedlock.' None of these is an offence under the prevailing Bangladesh laws.”
The SC said, “While in some cases, women have been found 'guilty' of adultery and punished, under Bangladesh law, adultery is an offence under section 497 of the Penal Code, but it does not envisage that a woman maybe an accused or subject to any penalty.”

“Fatwa may be given strictly keeping in mind the restrictions imposed by this judgment. If any Fatwa is given violating the restrictions, it would amount to contempt of Court and if any person is found indulging in such violation will be punished accordingly,” it ruled.

The Daily Star, 26 January 2015