PUBLIC INTEREST LITIGATION (PIL)

1.Mohammad Tayeeb, Appellant of Civil Appeal No.593 of 2001

2.Moulana Abul Kalam Azad, Appellant of Civil Appeal No.594 of 2001

Secretary, Ministry of Religious Affairs

The Bangla Bazar Patrika, a national newspaper, reported a story on 02.12.2000 of a husband, A, who uttered ‘talaq’ tohis  wife B, and X, a local influential person issued a ‘fatwa’ that the marriage between A and B had been dissolved and that B had to enter into an interim marriage (‘hilla’ marriage) with her paternal cousin C. The High Court issued a Suo Moto Rule upon the District Magistrate and Deputy Commissioner of Naogaon. The police investigated the matter and on the basis of an FIR lodged by B, registered a case under the Nari O Shishu Nirjatan Daman Ain, 2000. The police filed another case against six persons who gave and enforced the fatwa and arrested four accused in both cases. B was returned to her A’s house, with the assistance of the local Union Parishad.

Subsequently, the High Court by a judgment dated 01.01.2001 declared all fatwas to be unauthorised and illegal. The Court further directed that the issuance of a fatwa by unauthorised person(s) should be made punishable.

The Appellants filed a petition seeking leave to appeal, which was granted on 13.11.2001.

The appeal was allowed in part. Mr. Justice Md. Wahhab Miahdis agreed with the majority and delivered a dissenting judgment.

The majority judgment stated that both the appeals were allowed in part on 12 May 2011 by a short order. Significant portions of the judgment and order are set out below:

Re: Power to issue Suo  moto rule

1.Where the fundamental rights of a citizen are infringed, the HCD has jurisdiction to issue a Suo moto Rule;
2.A newspaper report, postcard, or other written material may be treated as an “application” in order to overcome the obstacle of filing an application;
3. Before issuance of a Suo moto Rule, the HCD must record its satisfaction in clear terms about the exercise of such power and the HCD shall exercise such power cautiously.

Re: Blanket ban on issuing all sorts of fatwa

1. Fatwa on religious matters only may be issued subject to the following stipulations- it must only be issued by educated persons, the fatwa issued may only be accepted voluntarily by the person upon whom it issued. Coercion or undue influence in any form to pressure an individual to accept a fatwa is forbidden, and no person can pronounce a fatwa that violates or affects the rights, reputation or dignity of any person protected by the laws of the land. No punishment, including physical or mental violence, may be imposed or inflicted on any person in pursuance of a fatwa. If any fatwa is issued violating these restrictions, it will amount to contempt of court and the offenders will be punished accordingly.

Re: Principle of Separation of Powers

1. The recommendation of the HCD as to a unified education system and an enactment to control freedom of religion under 41(1) of the Constitution is merely as wish of the learned judges of the HCD and it is up to the legislature to bring about necessary enactments in this regard.
2. This sincere wish cannot be regarded as an encroachment upon the domain of the legislature. The legislature is always at liberty to do what it thinks fit according to its wisdom.
3. The Supreme Court has, on many occasions made recommendations for amendment of certain laws.

Re: Fatwa imposed upon B

1. The declaration of the High Court that the impugned fatwa is void and unauthorised is maintained. The marriage between A and B was not dissolved by uttering ‘talaq’.

Mr. Justice ABM Khairul Haque
Chief Justice

Mr. Justice Muzammel Hossain

Mr. Justice Surendra Kumar Sinha

Mr. Justice Md. Abdul 
Wahhab Miah

Mr. Justice Sayed Mahmud Hossain

Mr. Justice Md. Imman Ali