KOCHI: Clergy with no training or knowledge of legal sciences cannot be relied upon by courts to decide on a legal question pertaining to Muslim personal law, the Kerala high court said recently. The observation came while dismissing a review petition on a judgment holding that a Muslim woman has the right to unilaterally divorce her husband through an out-of-court process called “khula”. The division bench of Justices A Muhamed Mustaque and C S Dias ruled that a court of law wasn’t obliged to go by the opinion of a Muslim scholar.
The petitioner had cited a “hadith”, the Arabic word denoting the teachings and actions of Prophet Muhammad, to argue that the husband has to grant talaq (divorce) first for “khula” to take effect. A “hadith” is relied upon when no procedure is laid out in the Quran to settle a dispute.
The court said the clergy members wouldn’t always be able to understand the difference between the Islamic code of law, or “fiqh”, and rules on beliefs and practices, collectively called “shariah”. It also pointed to a lack of differentiation between “hadith” and “sunnah”.
As the prophet had held multiple roles 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 ‘hadiths’ makes it difficult to distinguish between ‘hadith’ and sunnah’ and a procedure followed for a particular situation cannot be interpreted as the general law, it 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….,” the 52-page judgment states. The court pointed out that triple talaq was allowed by the Caliph Umar to meet an exigency during his rule, and it was the exercise of executive power and not legislative in nature.
The court held that a Muslim woman’s right to “khula” was based on the Quran. “This right can’t be curtailed citing a hadith to say that the husband has to agree to it”.
