High Court yesterday ruled that any fatwa or 'legal
opinion' not given by a court is unauthorised and
illegal. A Division Bench of the HC gave the ruling
in its judgment in a case concerning a housewife at
a Naogaon village.
housewife, Shahida of Atikha in Sadar upazila of Naogaon,
was reportedly given talaq (verbal divorce) by her
husband and was forced to marry his cousin following
a fatwa for hilla (forced marriage) given by a local
means legal opinion which means legal opinion of a
lawful person or authority. Legal system in Bangladesh
empowers only the courts to decide all questions relating
to legal opinion on the Muslim and other laws in force,"
the court said.
We therefore hold that any fatwa including the instant
one is unauthorised and illegal", said the HC Bench
comprising Justice Mohammad Gholam Rabbani and Justice
Nazmun Ara Sultana.
judgment came on a suo moto rule issued by the court
on the District Magistrate and Deputy Commissioner
of Naogaon, Lutfur Rahman, on December 2 following
a newspaper report on the plight of Shahida.
Ain-O-Salish Kendra and feminist groups filed a writ
petition as intervenor. Eminent lawyer Dr. Kamal Hossain
represented the petitioners. The HC judgment said,
"Marriage between Shahida and her husband Saiful Islam
was not dissolved and that for the sake of argument
if it is taken that the marriage was dissolved, even
then there was no legal bar for Shahida to remarry
Saiful without an intervening marriage with a third
person. The fatwa in question is wrong".
went on, "Giving a fatwa by unauthorised person or
persons must be made a punishable offence by the Parliament
immediately, even if it is not executed".
Division Bench observed, "We further hold that the
respondent District Magistrate should have immediately
taken cognizance of the said offence under Section
190 of the Code of Criminal procedure. We are, however,
satisfied with the steps taken by the respondent as
stated in his affidavit-in-opposition. Let it, we
hope, be the once for all warning to the other district
magistrates, the magistrates and the police officers."
Bench further said, "Before parting with this matter,
we find it necessary to answer a question as to why
a particular group of men, upon either getting education
from madrassah or forming a religious group, are becoming
fanatics with wrong views. There must be defect in
their education and their attitude."
suggested introduction of Muslim Family Ordinance
in the curriculums of madrassahs and schools and sermons
during Friday prayers. As a long-term measure, the
court recommended "an unified education system and
an enactment to control the freedom of religion subject
to law, public order and morality within the scope
of Article 41 (1) of the Constitution." It noted,"The
state must define and enforce public morality. It
must educate society".
Bench detected the court office to send copies of
the judgment to the ministries Home, Law, Education
and religious Affairs immediately. A large number
of women's rights activists including Maleka Begum
and Barrister Tania Amir who was the amicus curie
in the case were present in the court yesterday.
Haji Azizul Islam who gave the fatwa for hilla and
five others are facing prosecution following steps
taken by the district administration of Naogaon.
November last year, Shahida was forced to go for hilla
as dic ated by the Maulana. He claimed to have overheard
talak pronounced three times by Saiful during a family
feud about a year and a half ago. The Maulana arranged
the forced marriage of Shahida with Saiful's cousin
Shadidul when he was away from the village and subsequent
divorce after a day. But Saiful refused to accept
DC of Naogaon told the C in an affidavit that Maulana
Azizu Islam was arrested on December 6. I've others
including the person who conducted the forced marriage
are also in custody. At the initiative of local Union
Parishad, Shahdia and Saiful are now living together,
the DC added. (The Daily Star, 2001/01/02)