Module - 1 - Introduction to the Course

Syllabus
This week will introduce the course aims, course structure and assessment methods. We will
foreground discussions of various thematic areas of family law, by exploring ongoing
debates surrounding the meaning of “family,” while pivoting them in domestic legal
developments.

Arijeet Ghosh and Diksha Sanyal, “How can Families be Imagined Beyond Kinship and
Marriage,” Economic and Political Weekly 54, no. 45 (2019),
https://www.epw.in/engage/article/how-can-families-be-imagined-beyond-kinship-and-
marriage
Understanding families -

 Traditionally conjugality or blood ties has been the focus of family law.
 Marriage and its breakdown are the focus of any family law course. Even our
understanding of parenthood is linked to marriage as well as a biological connection.
The equation of family life with conjugality also leads to concerns that family law
should not pry too deep into the lives of people.

Family and Their Role in Society -

 Families are considered as sites for providing care and accommodating dependency.
Scholars such as Jonathan Herring and Martha Fineman have argued that we are all
profoundly dependent on others for our physical and psychological well-being.
 The institution of the family frees the market to act without consideration or
accommodation for dependency The state is cast as a default institution providing
minimal, grudging assistance should families fail. [Martha Fineman]
 Each individual family is ideally responsible for its own members’ well-being. In fact,
the failure to adequately provide for its members can move a family from the private
to the public sphere, where it may be regulated and disciplined
 Meeting the needs of dependents has significant material implications for the
caretaker.
 In the pattern of long standing tradition, caretaking continues to be delegated to
women—assigned as the responsibility of the person occupying the gendered role of
wife, or mother, or grandmother, or daughter, or daughter-in-law, or sister
 Care is at the center of family life. Yet it is sexual relationships which have, for a long
time, dominated family law and been regarded as the focus of the definition of a
family and the marker for legal intervention. We should focus on caring relationships
as being at the centre of family law [Jonathan Herring]

THE SURROGACY (REGULATION) ACT, 2021 -

 Section 2(h)- “couple” means the legally married Indian man and woman
 Section 2 (r )- “intending couple” means a couple who have a medical indication
necessitating gestational surrogacy and who intend to become parents through
surrogacy.
  Section 2(s)- “intending woman” means an Indian woman who is a widow or divorcee
between the age of 35 to 45 years and who intends to avail the surrogacy
 Only altruistic surrogacy allowed. “Altruistic surrogacy” means the surrogacy in
which no charges, expenses, fees, remuneration or monetary incentive of whatever
nature, except the medical expenses and such other prescribed expenses incurred on
surrogate mother and the insurance coverage for the surrogate mother, are given to the
surrogate mother or her dependents or her representative.
 The draft bill provided that the surrogate can only be a ‘close relative’ of the
intending couple. The Select Committee noted that the criteria of being a ‘close
relative’ potentially restricted the availability of surrogate mothers and could affect
persons in genuine need. It recommended deleting the definition of ‘close relative’
and allowing any willing woman to act as a surrogate mother.
 It was deposed before the committee that inclusion of close relative as a criterion may
lead to problem with family, social structure and norms.

Analysis of the surrogacy law -

 Dalia Bhattacharjee observes that regulation surrounding women who enter

commercial surrogacy is essentially a “nationalist project” with the protection of
women’s wombs as its central mission. This stems from an inherent viewing of the
mother and the mothering body as a space that is personal and pure. In such a
viewing, the woman is not allowed the right to make choices regarding her body, and
so the state does not consider the surrogacy arrangement as a form of labour.
 Commercial surrogacy poses a challenge as it allows women to utilise their wombs to
earn money which contradicts imagining wombs as “pure spaces.” This, in turn,
contests the sacredness of the concept of motherhood as an institution. Altruism
obliges women to fulfil their duties as mothers and stereotypes them as “naturally”
mothers which should not be interfered with by introducing commercial transactions.
 The law also severely restricts the scope of who can avail surrogacy and the focus
remains on a married heterosexual unit.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 -

 NALSA judgment by the Supreme Court in 2014, provided a constitutional grounding

to the rights of transgender persons.
 Section 2(c)- “family” means a group of people related by blood or marriage or by
adoption made in accordance with law. As per Section 12 (3), where any parent or a
member of his immediate family is unable to take care of a transgender, the
competent court shall by an order direct such person to be placed in rehabilitation
centre
 Section 2(k)- “transgender person” means a person whose gender does not match with
the gender assigned to that person at birth and includes trans-man or trans-woman
(whether or not such person has undergone Sex Reassignment Surgery or hormone
therapy or laser therapy or such other therapy), person with intersex variations,
genderqueer and person having such socio-cultural identities as kinner, hijra, aravani
and jogta
 As per the law, for being ‘transgender’ one can get a certificate without medical
treatment. As per Section 5, a transgender person may make an application to the
 District Magistrate for issuing a certificate of identity as a transgender person, in such
form and manner, and accompanied with such documents, as may be prescribed. As
per Section 6, The District Magistrate shall issue to the applicant under section 5, a
certificate of identity as transgender person after following such procedure and in
such form and manner, within such time, as may be prescribed indicating the gender
of such person as transgender.
 As per Section 7 if a transgender person undergoes surgery to change gender either as
a male or female, such person may make an application, along with a certificate
issued to that effect by the Medical Superintendent or Chief Medical Officer of the
medical institution in which that person has undergone surgery, to the District
Magistrate for revised certificate, in such form and manner as may be prescribed.

Analysis of the law relating to protection of transgender persons -

 Gautam Bhatia:
o The Act of 2019 is pending a constitutional challenge before the Supreme
Court. It has been argued that making self-identification “subject to
certification by the State” is unconstitutional.
o The State may argue in response that if it is to come out with schemes and
policies to support the transgender community, some form of State-sanctioned
ID is indispensable, as that will be the basis on which beneficiaries will be
identified.
o In order to counter this argument on its own terms, the self-determination
challenge may need to be supplemented with an excessive
delegation challenge: Sections 4 to 6 make no mention of whether the
Magistrate has any discretion to reject an application to be recognised as a
trans person – and if so – what the scope of that discretion is. As the matter
concerns the fundamental rights of the transgender community, this clearly is
an issue that cannot be “delegated” to the rule-making power of the executive.
o The arguments regarding self identification are important because they
challenge the long-held assumption underlying our legal institutions, namely,
that being cisgender is the “norm”, while being transgender is the “exception”
(which, therefore, requires something additional to “prove”, such as a
certification requirement). The assumptions, of course, run much deeper than
merely in our legal institutions: the social norm of “assigning” a gender at
birth is based on the assumption that there exists a “natural” gender that one is
born into, and a transgender person is someone whose gender identity does not
“match” that assignation (see, e.g., Section 2(k) of the Act, which defines
“transgender person.”

Arijeet Ghosh and Diksha Sanyal, “How can Families be Imagined Beyond Kinship and
Marriage,” Economic and Political Weekly 54, no. 45 (2019)

 The idea of the marital and procreative family is at the heart of regulation of intimacy
by the state. Yet, there are many individuals and relationships that do not fit into this
idea.
 The piece begins with a discussion on the bills (as they were then) relating to
transgender persons and surrogacy. As the per the authors, these bills re-enforce the
idea of a patriarchal and heteronormative family.
 The authors critique the predominant understanding of the family inscribed in these
bills as one based solely on marriage, blood, or adoption. As per the authors,
the bills do not acknowledge other forms of chosen families and intimacies that
coexist in the Indian society.
 The greater visibilisation of the LGBT+ community since the 1980s and 1990s in
India threw light on how some individuals were creating their own structures of
support outside the rigid bounds of marriage.
 Further, within the LGBT+ movement, the existence of Hijra communities also draws
attention to the diversity of familial structures prevalent within the Indian society.
Hijras, who are cast out of their natal families for defying strictly enforced gender
codes, complicate our understanding of family as they create their own non-biological
forms of kinship. Their households are headed by older Hijras, known as “gurus” or
mothers who take on the economic and social responsibilities for their “chelas” or
children and are responsible for initiating the chelas into the customs and traditions of
the Hijra household. These relationships are integral to the lineage and descent within
Hijra gharanas.
 Recent academic work on motherhood also explores the concept of non-normative
families.
 These narratives highlight the need for broadening legal recognition of dependency
under the law, especially where it arises out of bonds that are not conjugal or
romantic, but could nonetheless involve significant instances of emotional and
economic interdependence.
 As per the authors, the bills on surrogacy and transgenders completely ignore
instances of Indians creating and living in non-normative families. The legal regime
in India recognizes only monogamous, heterosexual, conjugal relationships that are
legitimised by marriage. Non-biological kinship networks or Hijra Gharanas, same-
sex couples, those in polyamorous relationships or more fluid friendship networks
cannot access a range of civil rights that flow from marriage
 By making marriage and marriage-like relationships the only institution through
which the basic human need for connection, intimacy, and dependency is realized, the
law leaves out many individuals who intend to establish more fluid living
arrangements, or platonic associations that could nonetheless be characterized by
economic and/or emotional interdependence
 There are some encouraging signs of change within the law. In 2017, the Supreme
Court recognised privacy as a fundamental right where the right to sexual intimacy
was recognised as a core component of the right to privacy (Justice KS Puttaswamy &
Anr v Union of India 2017: para 157). Based on this robust framework of privacy, the
Supreme Court, while reading down the draconian Section 377, also observed that the
manner in which individuals choose to exercise intimacy was beyond the legitimate
interests of the state (Navtej Johar v Union of India, 2018: para 240). Even prior to
this, in 2016, the Himachal Pradesh High Court interpreted the guru-chela relationship
as a “custom” and held that a guru would thus be entitled to the deceased chela’s
property (Sweety [Eunuch] v General Public 2016). These judgments have opened up
avenues for recognising the diversity of relationships, intimacies and families many of
which may not necessarily be heterosexual, marital, or biological.
 How can the law facilitate autonomy in the ways in which we define “family” while
also ensuring that those most vulnerable within such arrangements are protected?
 Civil unions and registered partnership laws have been pursued in other countries. At
the same time, given the prevalence of fluid friendship networks, siblings staying
 together and a large number of individuals opting to cohabit than to marry, laws
meant to provide recognition to such relationships have been enacted.
 A vision of the family, which is broad and inclusive and is based on recognizing
functional aspects of families rather than their form, that is, what families do rather
than what families look like, would serve as a useful template when lawmakers are
drafting legislations that regulate intimacy and dependency.
 In addition, it would also involve closely evaluating factors of economic and
emotional interdependence and interpreting them flexibly depending on the legislative
objective and situation. For instance, in some situations, co-habitation and duration of
the relationship could be a relevant factor, but in other cases, it may not matter.
Hence, maintaining flexibility as opposed to pursuing a one-size fit all policy is
essential and could in the future, legitimize families of choice.

Family Law and the Constitution -

 While studying concepts and case laws in this course, we will make references to the
Constitution of India, especially the Chapter on Fundamental Rights.
 Part III of the Indian Constitution deals with Fundamental Rights.
 As per Article 13 of the Constitution, the State cannot make any laws which are
inconsistent with fundamental rights.
 Article 14 guarantees to all persons equality before law. Further, Article 15 prohibits
discrimination on the grounds specified therein including (inter alia) religion and sex.
 Article 19 provides various freedoms including the freedom of speech and expression.
 As per Article 21, no person shall be deprived of the right to life or personal liberty
except according to procedure established by law.
 Article 25 provides that all persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion.
 Fundamental rights are subject to restrictions/ exceptions.

Module - 2 - Family Adjudicatory Forums in India:

Family Courts & Religious Courts
syllabus -
This week will examine and critically analyze state and non-state forums for adjudicating
family law in India including Family Courts and Informal judicial forums. The background
to the establishment of Family Courts in India, their jurisdiction, procedural innovations,
and the legality of informal forums like Sharia “Courts” will be explored.

 The Family Courts Act, 1986 – Chapters II, III, IV

 Sonia Kunwar Singh Bedi v. Kunwar Singh Bedi, Civil Application No. 448 of 2014
in Family Court Appeal No. 142 of 2014 Vishwa Lochan Madan v. Union of India,
(2014) 7 SCC 707

Family courts -

Flavia Agnes on family courts [Flavia Agnes is a women’s rights and family lawyer]:
  Family courts served to shift matrimonial litigation from general civil and criminal
courts to courts with special expertise in matrimonial law and dispute resolution.
These courts were meant to make the litigation process less formal and intimidating,
usher in the norm of speedy justice and quick redressal, and facilitate conciliation and
settlements.
 The Family Courts Act, 1984 is a procedural statute which carves out a separate and
innovative adjudication fora for family disputes .
 The ideology underlying the enactment was to create women-friendly adjudication
spaces, away from the formal structures of civil and criminal courts. Ironically, the
principle of ‘gender justice’, which was the primary motivation for the demand for
special courts for family matters, was not clearly spelt out in the enactment.
 While courts would continue adjudication in family disputes as per the existing legal
provisions, it was hoped that the procedural and infrastructural shifts would create a
balance in favor of the disadvantaged sections and provide better access to justice to
them.
 Flavia Agnes cont.:
o This statute is a procedural statute which is carving out an adjudication for a
for family disputes.
o Issues concerning industrial disputes, motor accidents, consumers, have also
been brought out of the purview of regular courts into specialized courts and
tribunals.
o The time in which the Family Courts Act came about was a time of legislative
reform concerning women- there had been amendments to the law on rape,
amendments to anti-dowry laws, etc.

The task ahead was to ensure that crucial rights of survival of women were not subsumed
beneath technicalities and legal jargon. Since procedures adopted by civil courts were
dilatory and confrontational, it was presumed that new litigation fora which is more
accessible would create a balance.
Family Courts Act -

 Preamble:
o An Act to provide for the establishment of Family Courts with a view to
promote conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected therewith.
 Notice how the principle of gender justice which was the primary motivation for
setting up special courts is not clearly spelt out in the preamble.
 Section 3- State Government has the duty to set up family courts. The territorial
jurisdiction of family courts is limited to that of a district court or as the state
government may by notification stipulate in consultation with the High Court.
 Section 4 deals with appointment of judges of family courts and enlists the criteria to
become a judge of the family court. As per Section 4(4), every endeavour should be
made that persons committed to the need to protect and preserve the institution of
marriage and to promote welfare of children…..are selected.
 Thoughts on the criteria in S. 4(4)- should preservation of marriage have been
mentioned in this provision? This has been subject to scholarly criticism because a
provision like this gives the impression that marriage must be protected at all costs
which may be problematic where marriages may be sites of oppression.
 While examining Section 4, we must keep in mind that the process of appointing
judges to the family court, their background and training is crucial for the success of
these courts. Most appointment to family courts are made through transfer of district
and sessions judges. The concern with this is that that the ideology and procedures of
regular civil and criminal courts are substantially different from those of a family
court. Family court judges have to adapt to the needs of high strung and emotional
litigants. This transition is not easy.
 Section 6 provides for counsellors, officers and other employees who will assist a
Family Court in the discharge of its functions. Section 6 should be read with Section 9
which stipulates that it is the duty of the family court to make efforts for settlement.
While examining this provision, do think about the intent of the legislature in bringing
about the law—to bring about reconciliation or amicable settlement; avoid contested
litigation and bring about speedy resolution of disputes. However, also think about
how the introduction of counsellors is a new concept for lawyers and judges. This
makes the role of counsellors uncertain and sometimes, cursory. It is also important
for counsellors to ensure that mandate of reconciliation does not lead to pressurising
women to reconcile at the cost of their safety and rights.
 While we are examining Section 6 and Section 9 (in the next slide), it is also
important to think of what makes family disputes distinct and how counselling may fit
into this scheme:
o Sentiments
o Views of the party regarding life in general
o Personal Liabilities
o Views of the party in relation to the institution of marriage in particular
security of future life
o Not always rational factors control the decisions of the parties. Irrational and
emotional factors have dominant roles in creation of the dispute and also in
their settlement.
 In this backdrop, parties may want to settle for the following reasons: It promotes the
interest of the entire family including children; It reduces economic and emotional
costs.
 As per the Explanation to Section 7, the nature of disputes which Family Courts
decide are as follows: [subject matter jurisdiction]
o proceeding between the parties to a marriage for a decree of nullity of
marriage (declaring the marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights or judicial separation
or dissolution of marriage;
o proceeding for a declaration as to the validity of a marriage or as to the
matrimonial status of any person
o proceeding between the parties to a marriage with respect to the property of
the parties or of either of them
o proceeding for an order or injunction in circumstance arising out of a marital
relationship
o proceeding for a declaration as to the legitimacy of any person;
o proceeding for maintenance
o proceeding in relation to the guardianship of the person or the custody of, or
access to, any minor
o Jurisdiction under Chapter IX of Code of Criminal Procedure relating to
maintenance of wife, children and parents.
  As per Section 9, it has been made incumbent on family courts to see that the parties
are assisted and persuaded to come to a settlement wherever it is possible to do so. If
there is a possibility of settlement between the parties and there is some delay in
arriving at such a settlement, the family court is empowered to adjourn the
proceedings to enable a settlement. This also has a resonance of Section 23 (2) of the
Hindu Marriage Act, 1955 which stipulates that it shall be the duty if the court to
make every endeavour to bring about a reconciliation between the parties.
 Section 10- Provision of Code of Civil Procedure will apply [except in matters related
to Chapter IX of Code of Criminal Procedure] but nothing shall prevent family courts
from devising their own procedures.
 Section 11-provision for in-camera proceedings if required. Essentially, this provides
for closed door hearings at the instance of the parties or at the discretion of the court.
This is a departure from the general norm that proceedings should be held and orders
pronounced in open court rooms. Open court rooms exist to bring about transparency.
However, for family matters, where private aspects of people’s lives are discussed,
there is a provision for in-camera proceedings. This is an exception and not a norm.
 Section 13- Not withstanding anything contained in any law, no party to proceedings
before a Family Court shall be entitled, as of right, to be represented by a legal
practitioner. It does provide for seeking assistance of an amicus curiae if necessary.
Section 13 is reflective of the legislative concern regarding exploitative lawyers. The
blame for acrimonious and prolonged legal battles has often been put on lawyers. But
the legislative intent is short sighted and does not address the reality of the litigation.
Absence of lawyers in the family court makes things even more difficult for the
layperson that is completely unaware of the legal jargons. Presence of lawyers is
necessary to guide litigants. Gradually family courts have largely started functioning
as regular courts with lawyers.
 Section 14- A Family Court may receive as evidence any report, statement,
documents, information or matter that may, in its opinion, assist it to deal effectually
with a dispute, whether or not the same would be otherwise relevant or admissible
under the Indian Evidence Act, 1872
 Section 19- Appeal lies to High Court (HC). Limitation period is 30 days.

Understanding the Family Courts Act -

 The Act sets up a special adjudicatory forum for deciding certain family disputes.
 The scheme of the Act highlights that the endeavor was to create a forum which is
suited for settling disputes which are complex and contain details of intimate lives of
people.
 There appears to be a recognition in the Act that litigation before family courts is a
departure from the accepted forms of trial before the trial courts. Courts have held that
the procedure and the rights of a party in a proceeding before the Family Court are
materially different from, if such proceeding had been before the ordinary civil court.
 The question is if the law is adequate and has it been successful in creating a robust
adjudicatory mechanism.

Critique of Family Courts Act -

 Though the law received Presidential assent in 1984, rules for setting up family courts
were not framed immediately. Family courts had not been set up in 16 states and UTs
 till 2005. Financial and space constraints as well as opposition from lawyers seem to
be the stumbling blocks for setting up family courts,
 The lack of infrastructure and basic facilities in many family courts make the fight for
justice a Herculean task. In the absence of basic infrastructure like a stamp office,
typist and stationery, services of a notary or even adequate sitting arrangements,
canteen and drinking water, the litigants have been subjected to endless hardships.
 The judges appointed to the family court have been critiqued for the lack of special
experience or expertise in dealing with family matters, nor any special expertise in
settling disputes through conciliation, a requirement prescribed in the Act. There are
also instances of callous attitude on the part of family court judges. High Courts have
held that personal predilection of judges should not influence provisions of the statute.
 It is also important to remember that Family Courts Act is only a procedural statute.
The rights and obligations of the parties are decided in accordance with their personal
laws. Ensuring access to justice is the cumulative effort of substantive and procedural
law.
 While Family Courts Act was meant to provide for a speedier settlement of dispute,
delays still continue.
 Flavia Agnes: Courts have remained technical and the difficulties in accessing justice
still prevails. The wording of the statute does not require judges to contextualise
gender. Premise of gender justice does not find mention in the Family Courts Act and
the judges are not exposed to the concern of women’s rights within family law.

Sonia Kunwar Singh Bedi v. Kunwar Singh Bedi, 2014 SCC OnLine Bom 4605

 Bombay High Court

o Q before court: What is the period of limitation for preferring an Appeal
against a final order passed by the Family Court? Is it 90 days as stipulated in
section 28(4) of the Hindu Marriage Act, 1955 vide amendment by Act 50 of
2003 which had come into force with effect from 23-12-2003 or is it 30 days
as stipulated under section 19(3) of the Family Courts Act?
o In this case both the parties were Hindu and divorce was sought by the wife.
Appeal from the family court judgement was filed after 30 days but within 90
days.
o Under section 28(4) of the Hindu Marriage Act, the period of limitation
prescribed was 30 days and that stipulation was amended with effect from 23-
12-2003 to specify that the period of limitation shall be 90 days.
o The said amendment was necessitated by the observations of the Supreme
Court in Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73 wherein it
was noted that the the period of 30 days prescribed for filing the appeal is
insufficient and inadequate. The Court noted that that a minimum period of 90
days may be prescribed for filing the appeal against any judgment and decree
under the Act.
o Bombay High Court:
 The provisions of section 19(1) are general in nature and the special
periods of limitation prescribed under the concerned special laws are
special and it is the stipulations under the special legislation which
must prevail. The principle that the special excludes the general must
operate. The stipulations of Section 19(3) of the Family Courts Act
being general in nature and Section 28(4) of the Hindu Marriage Act as
 amended being special in nature (in that they refer to one class of cases
which fall under Section 19 of the Family Courts Act.). It has to also
be held that the stipulations in the Hindu Marriage Act deal with
substantive right of the parties and the substantive right of appeal
whereas the stipulations in the Family Courts Act deal with procedural
matters.
 When two interpretations are possible about the period of limitation,
the one stipulating a larger period of limitation is to be preferred. If the
language is clear, express, precise and unambiguous, it must be
enforced, but where two interpretations are found to be equally
possible, the Court may reasonably impute to the Legislature an
intention to prescribe a larger period of limitation.
 The Hindu Marriage Act was enacted in 1955. The Family Courts Act
was enacted in 1984. But the crucial amendment to section 28(4) was
enacted later in 2003. The parliament must be presumed to have known
the relevant stipulations of general nature in section 19(3) while
bringing in the amendment to section 28(4). Thus, later enactment
must prevail over the former.
o Bombay High Court:
 What about the non obstante clause in Section 19? A non
obstante clause cannot be read mechanically. The totality of the
circumstances have to be taken into account. The precise
intention of the legislature will have to ascertained. Vague and
general non obstante clauses cannot operate to militate against
specific stipulations made in enactments to meet specific
situations. We have already discussed above why Section 28(4)
of Hindu Marriage Act was amended, this circumstance has to
be given due weightage.
 In the light of the above discussions, we hold that the period of
limitation for an order/decree appealable under section 28 of
the Hindu Marriage Act is 90 days as stipulated under the
amended section 28(4) of the Hindu Marriage Act and not 30
days under section 19(3) of the Family Courts Act.

Forums beyond family courts -

 Given that different communities are governed by their personal laws, do we think
that family courts are best equipped to deal with familial disputes?
 Should these disputes be settled at more community-based level [by persons who may
be acquainted with the theological principles linked to the law] or by regular courts of
law? Further, will access to justice be less expensive and quicker at the community
level?
 Muslims, especially of the Sunni sect, have traditionally relied on what is now know
as Dar-ul-Qaza for guidance in matters of Islamic law and to resolve disputes related
to marriage, divorce, inheritance. It is up to the parties involved whether they want to
abide by the ruling or not. If any of the parties does not agree to the verdict, there is
nothing Qazi can do.
 It has been argued by those (including legal practitioners) supporting dar-ul-qazas that
it is women to primarily approach these institutions and they feel more comfortable
 since they are familiar with the culture, understand the language. Also, dar-ul-qazas
offer expeditious and cheaper options to resolve family disputes, than the civil courts.
 While thinking about dar-ul-qazas, it is also important to keep in mind the general
social set up in India where families and panchayats may be approached for mediating
familial disputes.

Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707 -

 It is the allegation of the petitioner that Dar-ul-Qazas, spread all over the country are
functioning as parallel judicial system aimed to administer justice to Muslims living
in this country according to Shariat i.e. Islamic canonical law based on the teachings
of the Quran and the traditions of the Prophet.
 What prompted the petitioner to file this writ petition is the galore of obnoxious
Fatwas including a Fatwa given by Dar-ul-Uloom of Deoband in relation to Imrana’s
incident. In this case, the dar-ul-qaza on its own initiative dissolved a marriage
between a couple where the wife was raped by the father-in-law.
 The petitioner has sought a declaration that the movement/activities being pursued by
the All India Muslim Personal Law Board and other similar organisations for
establishment of Muslim judicial system and setting up of Dar-ul-Qazas (Muslim
courts) and Shariat court in India are absolutely illegal, illegitimate and
unconstitutional. Further declaration sought for is that the judgments and fatwas
pronounced by the authorities have no place in the Indian constitutional system, and
the same are unenforceable being wholly non-est and void-ab-initio
 The stand of the Union of India is that fatwas are advisory in nature and no Muslim is
bound to follow those. Further, Dar-ul-Qaza does not administer criminal justice and
it really functions as an arbitrator, mediator, negotiator or conciliator in matters
pertaining to family dispute or any other dispute of civil nature between the Muslims.
According to the Union of India, Dar-ul-Qaza can be perceived as an alternative
dispute resolution mechanism, which strives to settle disputes outside the courts
expeditiously in an amicable and inexpensive manner and, in fact, has no power or
authority to enforce its orders and, hence, it cannot be termed as either in conflict with
or parallel to the Indian judicial system. Further, Dar-ul-Qaza does not administer
criminal justice and it really functions as an arbitrator, mediator, negotiator or
conciliator in matters pertaining to family dispute or any other dispute of civil nature
between the Muslims
 Supreme Court: Dar-ul-Qaza is neither created nor sanctioned by any law made by the
competent legislature. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or
for that matter anybody is not adjudication of dispute by an authority under a judicial
system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his
opinion and enforce his fatwa on anyone by any coercive method. In fact, whatever
may be the status of fatwa during Mogul or British Rule, it has no place in
independent India under our constitutional scheme. It 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. Therefore, the grievance of the petitioner that Dar-ul-Qazas and Nizam-e-Qaza
are running a parallel judicial system is misconceived.
 Supreme Court:
o The object of establishment of such a court may be laudable but we have no
doubt in our mind that it has no legal status. It is bereft of any legal pedigree
and has no sanction in laws of the land. They are not part of the corpus juris of
the State. A fatwa is an opinion, only an expert is expected to give. It is not a
decree, nor binding on the court or the State or the individual. It is not
sanctioned under our constitutional scheme. But this does not mean that
existence of Dar-ul-Qaza or for that matter practice of issuing fatwas are
themselves illegal. It is informal justice delivery system with an objective of
bringing about amicable settlement between the parties. It is within the
discretion of the persons concerned either to accept, ignore or reject it.
o We would like to advise the Dar-ul-Qaza or for that matter anybody not to
give any response or issue fatwa concerning an individual, unless asked for by
the person involved or the person having direct interest in the
matter. Adjudication or fatwa does not have a force of law and, therefore,
cannot be enforced by any process using coercive method. Any person trying
to enforce that by any method shall be illegal and has to be dealt with in
accordance with law.