Srinagar: Courts cannot interpret the Quranic verses or Sunnah (teaching and practices of Prophet Muhammad, pbuh) to lay down Shariat, the Jammu and Kashmir High Court has ruled.
“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 without knowing the context in which they were made. It falls within the domain of the scholars who have full knowledge of the religion and, therefore, are experts in the field, to interpret the Quranic verses and/or the precepts of the Prophet,” a single bench of Justice Ali Mohammad Magrey said in the landmark judgment on Tuesday while dismissing an appeal by a Kupwara woman against a Session Court order.
The woman, Masarat Begum, had filed a petition under Section 561-A Cr.PC seeking quashing of the July 28, 2010 order by Principal Sessions Judge, Kupwara, dismissing an order by Chief Judicial Magistrate Handwara, granting interim maintenance of Rs 1,000 each in her favour and the male child.
The revision was filed by Begum’s former husband Abdul Rashid Khan on the ground that he had divorced her by a written document prior to the date of the filing of the petition for maintenance before the Magistrate and, therefore, she was not entitled to any maintenance from him. The couple had got married in November 2000.
The CJM had granted interim maintenance on the ground that Khan had yet to prove the factum of divorce. “It needs to be observed here that the Shariat 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 (Shariat),” Justice Magrey said while referring to the Shariat Act.
The bench said the interpretation and construction of the relevant provision of the Code of Criminal Procedure about the grant of interim maintenance has been made permissible if the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance.
“It is a matter of common knowledge that under Muslim Personal Law, a divorcee is entitled to maintenance and provisions during the provisions of ‘iddat’ only and this maintenance is different from what is provided under section 488CrPC in as much as the grant of maintenance under this section is hedged in certain limitation,” the bench said.
It said it is settled that for the sake of seeking maintenance during the period of ‘iddat’, a divorcee would have to file a regular civil suit.
“And even while a Magistrate grants maintenance under section 488 CrPC, the wife and children would not be precluded for claiming higher rate of maintenance,” the bench said. “I deem it necessary to mention here that the Muslim Personal Law is not in the form of any legislation or enactment. The state legislature has not enacted any law concerned any of the subject enumerated in section 2 of the Shariat Act.”
Sharia, the court said, is what is ordained in the Quranic verses and Sunnah, as expounded and supplemented by the highly knowledgeable Islamic Scholars by Ijma, Qiyas and Ijtihaad.
“It may be mentioned here that plain reading of the translation of Quranic verses for one’s personal understanding is one thing and having the Quranic knowledge together with the Sunnah as it stands expounded for laying the rules of Shariat is another thing,” the court said.
Referring to the judgement Muhammad Naseem Bhat versus Bilquees Akhtar, 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 the Qur’an and the precepts of the Prophet, 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 without knowing the context in which they were made. It falls within the domain of the scholars who have full knowledge of the religion and, therefore, are experts in the field, to interpret the Quranic verses and/or the precepts of the Prophet,” the court said.
The bench 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.
“Going by the rules of judicial discipline, even in face of the 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 added.