(Order of the Court was made by The Hon'ble Chief Justice) The petitioner has filed the present public interest litigation stated to be arising in respect of the manner in which the fourth respondent Makka Masjid Shariat Council was running the affairs and with the objective to ensure that other persons do not face a similar situation.
2.It is an admitted position that the petitioner himself had approached the fourth respondent on account of a matrimonial dispute. There is controversy as to what transpired therein, as there are allegations and counter allegations in this behalf. But, we are not required to go into that issue as that would be a matter to be examined by an appropriate Court.
3.The substantive allegation is that the fourth respondent seeks to function in the campus of the Makka Masjid with the fifth respondent as its General Secretary. It is the allegation of the petitioner that the fifth respondent and some advocates and other persons have jointly been using the mosque premises and sought to create an impression in the mind of the Muslim community that the fourth respondent is an organisation which is carrying on judicial function as per Islamic Shariat Law and proclaiming it as an alternative to the judicial system. The persons from the community are encouraged to approach the forum by sending ''summon'' and also phone calls made to the opposite party and then, they are compelled to appear under an alleged religious edict. The fourth respondent forum is, thus, being alleged to be a Kangaroo Court and in that process, it is alleged that even the petitioner and his family members were misled. The culmination of the proceedings is stated to be in the form of an order akin to a judicial forum and those documents are then misused for other purposes.
4.The proceedings are stated to be in the form of Court halls and outside the so-called Court hall, there are boards which, inter alia, state as under:
''4.Inside the Mosque premise and also inside the Court, women should be only in complete Islamic dress like hijab and purdah and
6.Only the Parents of both the parties would be permitted inside the Court.''
5.The petitioner has, along with the petition, filed the format of the summon issued and the orders issued, which are scanned as under:
The board which is stated to be appearing outside the alleged Court halls is scanned as under:
6.The fourth and fifth respondents were served, but chose not to appear. On consideration of the affidavits filed on 19.12.2016, we formed an opinion that the proceedings of the fourth respondent alleged to be a Shariat decision sought to give it a colour of judicial proceeding. It referred to case numbers, file numbers, description of parties (which is as plaintiffs and defendants) and the date of decision. This was preceded by summons being issued regarding the family disputes. We rejected the submission of the State Government that merely because these activities are going on inside a mosque, it could be difficult to stop such activities and we opined that the place of worship, whether it be temple, mosque or church, is to be used as a place of prayers and worship, but not to create any extra judicial forum.
7.The Additional Commissioner of Police has filed an additional affidavit on behalf of the third respondent. It is stated in the affidavit that a detailed enquiry was conducted by the police authorities and the statements of the concerned persons were recorded including the fifth respondent, who has stated that the fourth respondent Council was established 15 years ago as a forum for Alternative Dispute Resolution, especially for counselling and settling the matrimonial disputes. The Council was stated to consist of advocates, family councillors and experts in Shariat Laws and the members were stated to be rendering a free service which had facilitated settlement of 1200 disputes. The Council was stated not to be pronouncing judgments like judicial forums, but only providing solutions to matrimonial disputes. It is affirmed in the affidavit that after the petitioner filed the writ petition in this Court, the entire process of dispute resolution by Council has been discontinued and stopped. The final paragraph of the affidavit states that the activities of the fourth respondent have been completely stopped.
8.The fourth respondent has now condescended to appear before the Court and has filed a counter-affidavit through its President and apologized for not appearing earlier. The disputes between the petitioner and his wife have been discussed, which, at the cost of repetition, we may state we are not going into in the present case. It has been affirmed that the Council is not an adjudicatory body and also does not claim to be an alternative judicial system. It is stated to be a conciliation centre for Muslims to voluntarily settle their disputes, mostly matrimonial issues by adopting mediation and conciliation. Nobody is forced to attend the conciliation proceedings and is purely voluntary and in case, no settlement is possible, the parties are advised to approach the competent Courts for redressal of their grievances. The affidavit also refers to the judgment of the Hon'ble Supreme Court in Vishwa Lochan Madan vs. Union of India and Others, (2014) 7 SCC 707, to contend that the Supreme Court had also opined that what the Dar-ul-Qaza issued as opinion or fatwa is not an adjudication but is only an advisory opinion. Thus, it is for the parties to follow it or ignore it.
9.Learned Senior Counsel for the fourth respondent strenuously sought to contend before us that the functioning of the fourth respondent achieved a social object of conciliation of disputes mutually rather than go to the judicial forums. It is his submission that this is also in conformity with the Arbitration and Conciliation Act, 1996, more specifically Part-III.
10.Learned Senior Counsel also sought to contend that the petition filed by the petitioner is not a bona fide exercise and a personal dispute is sought to be given the colour of a public interest litigation.
11.Lastly, it is contended before us that the legal position has been enunciated in Vishwa Lochan Madan's case supra. Learned Senior Counsel took us through the judgment. What emerges from the judgment, in our opinion, is that fatwa has no legal status in the constitutional scheme; such forums have no legal status; such forums are incapable of giving any verdict; the decision of fatwa is not binding on anyone including the person who has asked for it, as it is not emanating from a judicial system.
12.We have examined the aforesaid contentions.
13.We have reproduced the exact copies of the summons, the alleged orders and the board which has been placed at the relevant place where proceedings are stated to be carried on and that too, inside the mosque. The board displayed clearly showed that what is set out is as if the fourth respondent is a Court. In fact, the word 'Court' is used twice in clause 4 and clause 6. Thus, the impression which is conveyed to the public at large is of a Court functioning. We have also to take note of the fact that persons visiting the mosque may be from different social status and in so far as the less educated persons may be concerned or women who are vulnerable, certainly the board would give an impression as if some forum in the nature of a judicial forum is working. If we see the notice issued, it refers to the registration of a case and calls upon views to be given in response. The decision is cited as a Shariat decision, refers to a case number, the parties as plaintiff and defendant and in the end, states that it is a Shariat decision and is signed by three persons. It unequivocally in this format seeks to convey that it has some judicial sanctity, except that on the left side there is a reference to the persons who are forming part of respondent no.4 Council.
14.We are, thus, unable to agree with the submission of learned Senior Counsel for the fourth respondent as if it is an innocuous exercise of mere conciliation which is taking place. If it is so, it would not have troubled us. What is our concern is the manner in which it is portrayed before the public which does not give an impression as if it is only a conciliation proceeding and an endeavour to resolve family disputes amicably. The functioning of the fourth respondent in this format is something which cannot be accepted.
15.Be that as it may, in view of the affidavit of the police authorities, the functioning of the fourth respondent is already stopped and thus, no directions in this behalf are necessary now.
Writ petition is, accordingly, disposed of. No costs.
(S.K.K., CJ.) (M.S., J.) 19.01.2017 Index : Yes Website : Yes sra To
1.The Secretary to Government, Home Department, Govt. of Tamil Nadu, Fort St. George, Chennai-9.
2.The Director General of Police, Tamil Nadu, Santhome, Chennai-4.
3.The Commissioner of Police, Greater Chennai Police, Vepery, Chennai-7.
The Hon'ble Chief Justice and M.Sundar, J.
(sra) W.P.No.33059 of 2016 19.01.2017 http://www.judis.nic.in