Sharia Courts have no legal backing: Supreme Court

On 7^th July 2014, the Supreme Court gave judgment in the case of Vishwa Lochan Madan v. Union of India. The bench of Justice C.K Prasad and Justice P.C Ghose observed that Sharia courts do not have any Constitutional validity. However, the court declined to pass orders putting a ban on such courts.

The Writ Petition was filed by an advocate, Mr Vishawa Lochan Madan. Two very disturbing cases where wives were forced by such courts to separate from their husbands after their fathers in law raped them. In both cases the so called courts acted on their own, without any complaint from any of the persons concerned. In the first case, one lady, Imrana, was raped by her father in law. The Dar-ul-Uloom of Deoband issued a Fatwa in regard to the “marital status” of the woman. The Fatwa quoted the Holy Quran which reads: “Marry not the woman whom your father copulated”.  The marriage was dissolved and the husband and wife were restrained from living together. The shocking part was that neither approached the Dar-ul-Uloom. The second case was exactly the same.

The petitioner prayed the court for a declaration that such activities being pursued by All India Muslim Personal Law Board and other such organizations in the establishment for Muslim Courts and Sharia Courts are illegal and unconstitutional.

The Central Government maintained that Fatwas were advisory in nature and had no legal backing. Dar-ul-Qaza could be construed as an alternate means of dispute resolution in an amicable and inexpensive manner. However, they do not have any authority to enforce their judgments so they were not in conflict with the Indian judicial system. Various State Governments also stated that Fatwas have no legal value.

The Court observed:

            "It [fatwa] has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal."   

The Supreme Court termed ‘Fatwa’ as “an informal justice delivery system with an objective of bringing about amicable settlement between the parties”. The court refused to declare the process of issuing of Fatwas as illegal as it was within the discretion of the persons concerned whether to “accept, ignore or reject” it. However the court issued a warning:

            "No Dar-ul-Qazas or for that matter, anybody or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it."  

Failed relationships behind rise in cases of rape: Delhi High Court

A bench of Justice Kailash Gambhir and Justice Sunita Gupta recently observed that failed live-in relationships and young adults getting into hasty commitments, which often result in break-ups, are responsible for triggering the number of rape cases. The Supreme Court also raised the question whether “failed consensual relationships” can lead to rape charges. This is not the first time that such contentions have been raised by courts. Last year the Delhi High Court had remarked that rape cases were being used as a weapon for “vengeance” and “vendetta”.

Consider these cases:

1.      The Deccan Chronicle, on 27^th June 2014 reported that a woman constable accused her live-in partner of three years of raping her. The man accused of the crime had not been arrested till that date.

2.      On 10^th February 2013, The Hindustan Times reported about a youth charged with raping his live-in partner. They had been in a relationship for five years, which ended when the boy’s parents objected. The girl claimed to be under “mental and physical trauma” because of the boy’s family.

3.      On 25^th May 2012, The Times of India reported that the Supreme Court had rejected the bail application of a man accused of “raping” his live-in partner of 8 years. The background of the case is that this Delhi based couple were in a live-in relationship since 2004. In late 2011, when the man’s family “opposed” his relationship with the girl, he apparently agreed to marry the girl of their choice. Now when the girl came to know of this, she filed a complaint eight days before the date of the marriage. She later withdrew the complaint when family members intervened. After the marriage was solemnised, she again filed an FIR. The man was charged with “rape“, on the “pretext of marriage”. He was denied bail.

4.      In 2010, NDTV reported about a man from Haryana being charged with rape on his live-in partner. Reportedly the man left the woman when she asked him to marry her when she got pregnant.

5.      Back in 1986, Australian citizen, Kevin Ibbs, a resident of Perth was charged with Sexual Assault for “continuing” intercourse for a short time, “after” the woman had revoked her “consent”. The woman apparently withdrew her consent while the two were engaged in the act of intercourse just when Ibbs was about to ejaculate. Ibbs was sentenced to four years imprisonment. The woman later admitted that the whole incident was orchestrated. In 2008, seven years after his release, Kevin Ibbs committed suicide.

The law regarding rape and sexual assault is clear. If a woman claims that the intercourse was non-consensual or the consent was with the condition of marriage, the act becomes rape, as can be seen from some of the cases described above. The 2013 Criminal Law Amendment Act reiterates this. How far it is just is a matter of debate.

Consider a hypothetical situation: A man and a woman fall in love. They decide that they want to spend their life together. They enter into a physical relationship. Some years later they begin to drift apart and eventually end their relationship.

Another situation: A man begins “pursuing” a woman. He promises to marry her in due course. Meanwhile, he enters into a physical relationship with her. Later on he ends the relation citing some absurd reason.

Now the women, in both cases, file a complaint against the men alleging rape on the pretext of marriage.

Which of these complaints sound genuine and should stand?

The judiciary must be very careful in dealing with cases of sexual assault where the accused and the victim were in a relationship. Rape laws must not be used as a tool for revenge by jilted lovers.

HERE is a list of anti-sexual violence laws in India and the changes made by Criminal Law Amendment Act of 2013.