India: Qazis Have No Power To Declare Marriages Invalid: Madras High Court

By Siva Sekaran, Jan 12, 2017

CHENNAI: Holding that Qazis had no power to certify the marriages of Muslims invalid after the utterance of the husbands ‘talaq’  thrice, the first bench of the Madras High Court has restrained them from issuing any such certificates, until further orders.

Image result for indian women with purdah

The bench of Chief Justice SK Kaul and Justice MM Sundresh gave the ruling while passing interim orders on a PIL from advocate and former MLA Bader Syed on Wednesday.

The petition assailed the declarations issued by Qazis, certifying a talaq and to consequently restrain them from issuing certificates and other documents certifying or approving talaq. Referring to Sec. 4 of The Qazis Act, 1880, the bench held that the office of Khazi does not confer on the person any judicial or administrative power.

The All India Muslim Personal Law Board and the Shariath Defence Forum submitted that the nature of the certificates issued by the Chief Khazi is only an opinion having expertise of Shariath Law. In support of this, they referred to Sec 2 of the Muslim Personal Law (Shariath) Application Act, 1937.

However, Syed and others supporting the petitioner, including the Women Lawyers Association, contended that the nature of certificates issued by the Qazis are causing immense confusion in the matrimonial proceedings and also in the understanding by both the spouses of the effect of such a certificate being issued by the Chief Khazi.

In this behalf, they also produced some certificates issued from 1997 to 2015, which merely stated that on a representation of the spouse of a particular date, the talaq pronounced in respect of the wife is valid as per Islamic Shariath. But neither the facts, which prompted the Khazi to opine so, have been set out nor it clarified that it is only in the nature of opinion, the bench pointed out.

The counsel for the Board submitted that the Board is willing to examine the format in which a certificate may be issued purely as an opinion of the Chief Khazi having expertise on Shariat Law, so that there will be no ambiguity before any legal forum or otherwise understanding the effect of it i.e. that it is a mere opinion.

And the bench granted time to the Board to formulate the format of the certificate and place a draft of the same before it, so that the inputs from other stakeholders are made available. In the meantime, to avoid any confusion, the bench held that no certificate in respect of talaq would be issued as an opinion by the Chief Khazi.

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