Court cannot rely on clergy’s opinion, says Kerala HC, Legal News, ET LegalWorld – Legal Firms

KOCHI: Islamic clergy who have no legal training or knowledge in legal sciences cannot be relied upon by courts to decide on a legal question relating to Muslim personal law, the Kerala high court said in a judgment.

A division bench comprising justices A Muhamed Mustaque and CS Dias gave the crucial finding that a court is not obliged to go by the opinion of a Muslim scholar while dismissing a review petition against the high court’s judgment holding that a Muslim woman has the right to unilaterally divorce her husband through an out-of-court process called ‘Khula’.

A review was sought by the husband and the court dismissed the plea on October 28th.

Citing a ‘hadith’ (sayings and actions of Prophet Muhammad), the revision petitioner had contended that the husband has to grant Talaq (divorce) for ‘Khula’ to come into effect. A ‘hadith’ is relied upon when no procedure is laid out in the ‘Quran’ to settle a dispute.

Pointing out the limitations of the Islamic clergy, who are untrained in the law, the court said the clergy is sometimes unable to understand the difference between the Islamic code of law (‘fiqh’) versus the rules regarding beliefs and practices (‘shariah’).

The court also pointed to a lack of differentiation between ‘hadith’ and ‘sunnah’ (law derived from the prophet’s sayings and actions) while interpreting the law. As the prophet had held multiple roles at the same time, such as messenger of God; mufti (an authority who can issue a legal opinion or fatwa); judge; and imam (head of state), his actions constituted verbatim communications from God, fatwas, judicial rulings, and discretionary injunctions as head of state, the court noted.

Lack of information in the ‘hadiths’ make it difficult to distinguish between ‘hadith’ and sunnah’ while interpreting them and a procedure followed for a particular situation cannot be interpreted as the general law, the court said.

In the judgment, the court said, “It requires a legal mind to deduce Islamic law from the sources. The dilemma faced by the Islamic clergy in understanding triple talaq was based on the practice followed in society for centuries, on the footing that a single pronouncement of triple talaq would constitute a valid talaq….The Islamic clergy failed to distinguish between the legislative authority of the Quran and the executive power of the Islamic ruler to meet particular contingencies. We have narrated the above aspect only to bring home the point that the Islamic clergy who have no legal training or knowledge in legal sciences, cannot be relied upon by the Court to decide on a point of law involved, relating to the personal law applicable to the Muslim community.”

The court pointed out that ‘triple talaq’ was allowed by Caliph Umar to meet an exigency during his rule and it was the exercise of executive power and not legislative in nature.

The court further said, “The courts are manned by trained legal minds. The court shall not surrender to the opinions of the Islamic clergy, who have no legal training on the point of law. No doubt, in matters related to beliefs and practices, their opinion matters to the court and the court should have deference for their views.”

While dismissing the review plea, the court held that a Muslim woman’s right to ‘Khula’ is based in the Quran and such right cannot be curtailed citing a ‘hadith’ to say that the husband has to agree to it.

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