JKHC: COURTS CAN’T INTERPRET QURANIC VERSES In a landmark judgment Jammu and Kashmir High Court on 04.03.2014 ruled that courts cannot interpret the Quranic verses or precepts of the Prophet Muhammad (SAW) to lay down rules of Shariah. Justice Ali Muhammad Magrey passed the judgment on an appeal by the petitioner against a Session’s Court order after referring to various Supreme Court judgments and judgments of various High Courts including J&K High Court. Petitioner Masarat Begum had filed an application before the Chief Judicial Magistrate Handwara against Abdul Rashid Khan for maintenance with the plea that she was legally wedded to Khan who neglected her and her minor child. The court had granted interim maintenance in her favour on the ground that her husband had yet to prove the factum of divorce. Khan challenged the order of CJM before the Court of Principal Sessions Judge Kupwara with the plea that he had divorced her wife through a deed which he sent to her by post and the Sessions Court set aside the Judicial Magistrate’s order and directed the court to pass a fresh order regarding the maintenance claim by the petitioner. “It needs to be observed here that the Shariah Act prescribes that in all questions regarding the subjects mentioned in Section-2, which include marriage and dissolution of marriage, the rule or decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariah),” the HC judgment said while referring to the Shariah Act. “Shariah is what is ordained in Quran and Sunnah, i.e, practices and sayings of the Prophet Muhammad (SAW), as expounded and supplemented by the highly knowledgeable Islamic scholars by Ijma, Qiyas and Ijtihaad,” the court observed. Referring to the judgment delivered by J&K High Court last year in Muhammad Naseem Bhat versus Bilquees Akhtar which the petitioner has cited in the petition, the court said, the judgment does not say anywhere that the deductions made therein, as contained in paragraphs 26 and 27 thereof, on interpretation of the verses of Quran and the precepts of the Prophet Muhammad (SAW), is the Shariah or the Ijma, Qiyas or Ijtihaad on the subject. “It is settled law that it is not within the competence of the Court to interpret the Quranic verses or the precepts of the Prophet Muhammad (SAW) without knowing the context in which they were made. It falls within the domain of the scholars (Muhadiseen and Muffasireen), who have full knowledge of the religion and, therefore, are experts in the field, to interpret the Quranic verses and/or the precepts of Prophet Muhammad (SAW),” the court said. It said the plain reading of the translations of the Quranic verses for one’s personal understanding is one thing and having the Quranic knowledge together with Sunnah, as it stands expounded, for laying the rules of Shariah is another thing. “The Muhadiseen and Muffasireen are recognized as experts in the subject having not only the knowledge of the background in which the Quanic verses were revealed but also the context of the precepts of Prophet Muhammad (SAW),” the court held. The court said it is well settled judicial principle that the job of the experts should be left to them and that the Courts should not substitute their own opinion for that of the experts on a subject. Referring to a division bench judgment of Jammu and Kashmir High Court titled Amad Giri versus Mst Begha delivered by Chief Justice J N Wazir and Justice Shahmiri in 1995, the court said; “It is not permissible for the Courts to interpret the Quranic verses.” The Court also referred to a judgment by a full bench of Bench of the Allahabad High that “where a rule of Mohammadan Law is well-settled in view of the ancient expositors of the Mohammedan Law, it is not open to us to disregard or reject it on the ground that to us it appears to be illogical or unsound, provided, of course, it is not contrary to equity, justice, and good conscience on which ground alone, as observed by the Supreme Court, the right is enforced at the present day”. “Going by the rules of judicial discipline, even in face of the aforesaid Division Bench judgment of this Court and the Full Bench judgment of Allahabad High Court, decision of one Coordinate Bench of this Court, as long as it is not reversed or set aside, has of course a persuasive force in case the fact pattern in a subsequent case matches with the fact pattern of the case on which the judgment is based,” the court said. On applying Muhammad Naseem Bhat v/s Bilquees Akhter to the instant case, the court said there is a difficulty as the judgment does not say, much less expressly, that what is deduced therein is the Shariah or that it constitutes, or is based upon, the Ijma, Qiyas or Ijtihaad, and, in view of the express provision of the Shariah Act. Referring to Amad Giri v/s Mst Begha case that Muslim Law, as administered by the Judicial Courts in India, is based not only on ‘Holy Quran (the word of God), Sunna (the sayings and doings of the Prophet Muhammad (SAW)), the court said Shariah thus is based on Holy Quran (the word of God), ‘Sunna’ the sayings and doings of the Prophet Muhammad (SAW),” the court said. It said analogical deductions derived from a comparison of Quran, Sunnah and Ijma by those capable of forming judgment in matters in relation to which the above three sources do not offer a clear and direct guidance “collectively forming different rules of Fiqah which have been elaborated by four great Jurists of Sunnis, namely Imam Abu Hanifa alongwith his two distinguished disciples, Imam Muhammad and Abu Yusuf; Imam Shafi; Imam Hanbal; and Imam Malik and the Imams and Mujtahids of Shias, Muatazilas and of other sects of Islam,” the court said. The court dismissed the petition against the order of principal session’s judge Kupwara. #SUBSCRIBE #LAWTELLER #MAGAZINE (monthly printed-edition) : visit: payumoney/store/buy/lawteller #legal #advocate #attorney #solicitor #lawyer #vakil #court #law #supremecourt #barrister #justice #india #judgment #Judge #sc #evidence #death #accident #compensation #constitution #witness #highcourt
Posted on: Thu, 06 Mar 2014 07:21:14 +0000
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