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Fatwa illegal, declares HC, Hanufa case - pay RS 10 lakh

The 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.

The 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 maulana.

"Fatwa 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.

The 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.

Subsequently, 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".

It 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".

The 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."

The 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."

It 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".

The 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.

Meanwhile,Maulana Haji Azizul Islam who gave the fatwa for hilla and five others are facing prosecution following steps taken by the district administration of Naogaon.

In 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 her.

The 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)

Hanufa case - pay RS 10 lakh

NEW DELHI, Jan 31: The Indian Supreme Court today asked the central government to pay RS 10 lakh as damage to a Bangladeshi woman, who was gang raped at the Yatri Niwas (retiring room) at the Howrah Railway Station in Calcutta on February 2, 1998, reports BSS.

The court comprising Justice Saghir Ahmed and Justice RP Sethi directed the central government to hand over the money within three months to the Bangladesh High Commissioner for payment to the victim. The Bangladeshi woman is a member of a union parishad.

The court delivered the judgment dismissing an appeal by the chairman, Railway Board and others against a judgment of the Calcutta High Court.

The High Court verdict came on a petition filed by a lawyer of Calcutta Mrs. Chandrima Das. It was alleged in the petition that the victim had come to Howrah from Bangladesh on her way to Ajmeer Sharif and stayed at the railway Yatri Niwas to arrange for her reservation in the train. She was gang raped by many, including employees of the Indian railways. A case was registered the next day with the General Railway Police Station (GRPS) there. While awarding the damages to the victim, the High Court observed that the rape was committed at the Yatri Niwas, belonging to the railways and was perpetrated by the railway employees.

"In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. This court has already held rape as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the Constitution," observed Justice Saghir Ahmed, and thus turned down the contention of the appellants that the petition was not maintainable under the public law.

"If any of such employees commits such an act, the union government, of which they are the employees, can, subject to other legal requirements being satisfied, be held vicariously liable in damages to the person wronged by those employees," Justice Saghir Ahmed observed. (BSS : 31 Jan 2000)

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