Court cannot surrender to opinion of Islamic clergy when deciding legal questions: Kerala High Court

The Kerala High Court recently held that it will not surrender to the opinions of the Islamic clergy when deciding legal questions since the clergy have no legal training..A division bench of Justices A Muhamed Mustaque and CS Dias observed that when it comes to the law, courts are manned by trained legal minds. Only in matters related to beliefs and practices will the opinion of the clergy be considered by the Court, the bench 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," the Court stated. .It further said that the intersection of moral injunction and legal right cannot be a determination of the validity of the legal right in a court of law in a secular country."The intersection of the moral injunction and the legal right shows the accountability to the Almighty in the life hereafter as per the faith, but it cannot be a determination of the validity of the legal right in a court of law in a secular country," the Court said in its judgment..The Court shall not surrender to the opinions of the Islamic clergy, who have no legal training on the point of law.Kerala High Court.To bring home the point that the clergy cannot be relied on by the Court to decide the personal law applicable to the Muslim community, the Court stressed on the distinction between Fiqh and Shariah.Fiqh has been loosely translated to English as Islamic law and literally means ‘the understanding of what is intended’. Shariah means ‘a straight path’."Fiqh refers to the science of deducing Islamic laws from thr evidence found in the sources of Islamic law. Ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources. Fiqh denotes the true intentions and objects of Islamic law. It requires a legal mind to deduce Islamic law from the sources", the Court observed..The Court was considering a petition seeking review of the Court's previous judgment in which it had declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband.In the review petition filed by the husband, he did not dispute the authority given to the Muslim wife to invoke khula, but rather raised, as a ground of review, the procedure acknowledged by the Court to invoke the remedy of khula by the Muslim wife.The Court began its judgment of the review petition with this:"This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally"Interestingly, it also noted that apart from the husband who filed the review petition, the courtroom was filled with persons who seemed to have an interest in the outcome of the case. The Court decided to permit all interested parties to make submissions, including a a Muslim scholar turned lawyer, advocate Hussain CS..After hearing all parties, the Court found no reason to review its judgment and dismissed the plea. However, it made several interesting observations about the legal conundrum in the case. The Court said that it is not a new issue and has evolved over many years as scholars of Islamic studies, who have no training in legal sciences, started to elucidate on the point of law in Islam, on a mixture of belief and practice. However, the Court pointed out that Islam has a code of law, apart from laying down rules relating to beliefs and practices. Legal norms are the cornerstones of creating a social and cultural order within the Muslim community, it said..As an example, the Court referred to the dilemma faced by the Islamic clergy in understanding triple talaq. The same, the Court opined, was based on the practice followed in society for centuries, related to a decree of the Caliph Umar, that a single pronouncement of triple talaq would constitute a valid talaq. Referring to relevant texts on the matter, the Court noted that the Caliph Umar issued the decree in exercise of his executive power to meet a particular exigency, to redress the grievances of women. That executive power was so exercised, to tide over a particular situation. "This decree, though, does not look in tune with the Quranic legislation that refers to cyclic pronouncement of talaq at different intervals, was devised to meet a particular situation in the society at that point in time," the Court observed.However, this practice, allowed at a particular time, was relied upon by the Islamic clergy to justify instantaneous triple talaq, overlooking Quranic injunctions, the Court said."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," the Court noted. .The Court said that dilemma which persisted could be more related to the practice that has been followed for years, overlooking the mandate of the legal norm conferring on Muslim women the right to terminate the marriage without the conjunction of the husband. "The Court in such circumstances is expected to look at the legal norm, if the same relies upon Quranic legislations and the sayings and practices of the Prophet (Sunnah)," the Court said in its judgment..[Read Judgment]