Karnataka High Court Stays Till January 7 GO Authorizing State Waqf Board, Officers To Issue Marriage Certificates To Muslim Couples

The Karnataka High Court on Thursday, in an interim order, kept in abeyance till January 7 a government order authorising the State Waqf Board and its officers to issue marriage certificates to married Muslim applicants.

A division bench of Chief Justice N V Anjaria and Justice K V Aravind while dictating its order said, “In view of the strong prima case the impugned order dated 30-8-2023 authorizing the State Board of Waqf and its officers to issue marriage certificates shall remain in abeyance till the next date. The Waqf board or its officers shall not issue marriage certificates under the guise of the said order till the next date. It is difficult to perceive that marriage certificate issued by Waqf board or officers which are without authority could be used as valid certificates for any official purpose".

The court also issued notice in the matter to the Karnataka State Board of Waqf and listed it for hearing on January 7, 2025. The court was hearing a PIL by one A Alam Pasha who had sought to declare the government order dated August 30, 2023 issued under the hands of the Under Secretary to government, Minority, Wakf and Haj Department as being inconsistent with and repugnant to the provisions contained in the Wakf Act, 1995, and therefore declare it as ultra vires to the Act.

During the hearing the counsel appearing for the petitioner argued that Waqf board and officers of the Waqf have no powers in law to issue the marriage certificates to the applicants of the community. It was submitted that it is only the marriage registration act and the special marriage registration act that deal with the provisions and confer power on the officers under which the marriages between the parties belonging to any community can be registered.

In its order the court while referring to the provisions of the Waqf Act 1995 said that the law has its own "special purpose" and it is an act to provide the better administration of Waqf properties and for matters incidental thereto.

The court took note of the provisions in the act which defines a "waqf, waqf fund, mutawali" and that the act also provides for a Tribunal to deal with the waqf related matters.

The court further noted that Section 13 of the Act deals with incorporation of the Board and Section 14 deals with composition of the board. The court further took note of Section 32 of the Waqf Act which pertains to powers and functions of the Board.

It noted that the provision provides that the "general superintendence of all auqaf in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the auqaf under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such auqaf were created or intended".

The court further noted that the provisions also lists functions of the board including to give directions for the administration of the auqaf. It also includes that the board can scrutinise and approve the budgets submitted by mutawallis and to arrange for auditing of account of the auqaf, to appoint and remove mutawallis in accordance with the provisions of this Act, and deal with similar matters in relation to the waqf properties and waqf fund.

The high court thereafter in its order said, "Any careful reading of the provisions of section 32 of the Waqf Act in no manner provides that Waqf board or its officers would be said to be invested with powers to issue marriage certificates".

The court said that the issuances of marriage certificates is neither a matter connected with better administration of Waqf nor is a matter incidental to the administration of the Waqf for which Act has been enacted and Waqf board is constituted to function.

"Under this apecious ground that applicants of community are to be facilitated with the issuance of marriage certificates by Waqf officers to alleviate them from the difficulties they may face is no ground to justify authorization of Waqf officers to issue marriage certificates, when Waqf Act 1995 in none of its provisions would be read to confer such powers," the court said.

"In the above view prima facie the impugned orders although operative since long are clearly beyond the powers and amount to usurpation of powers which are not available under law much less the Waqf act," the court underscored.

The court observed that "prima facie" it was difficult to justify orders which empower Waqf board and Waqf officers to issue marriage certificates and the impugned order "prima facie" does not have any backing of law and operates in the vacum of law not supported by any provisions of the Act.

"In light of above discussion important issues arise for consideration in this PIL as to whether Waqf board or officers could be invested with powers to issue marriage certificates and thereby recognizing with their own authority the marriages in the community. Therefore it is necessary to secure the reply and stand of the respondent 3 waqf board in relation of all above aspects and issues which arise for consideration. State of Karnataka is also duty bound to justify the source of power and authorization for waqf offices to issue marriage certificates. Notice returnable on Jan 7, 2025," it said.

Case title: A Alam Pasha AND State of Karnataka & Others

Case No: WP 19284/2024