Court Shall Not Surrender To Opinions Of Islamic Clergy Who Have No Legal Training: Kerala High Court

The Kerala High Court has said that Islamic clergy, who have no legal training or knowledge in legal sciences, cannot be relied upon by the court to decide on a point of law relating to the personal law applicable to the Muslim community. 

"Ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources," said the division bench consisting of Justice A. Muhamed Mustaque and Justice C. S. Dias, while dismissing a revision petition challenging its decision on interpretation of Khula.

The bench said the courts are manned by trained legal minds and "shall not surrender" to the opinions of Islamic clergy, who has no legal training on the point of law. 

However, the court also added: "No doubt, in matters related to beliefs and practices, their opinion matters to the Court and the Court should have deference for their views." 

Observing that legal norms are the cornerstones of creating a social and cultural order within the Muslim community, the court said the dilemma relating to khula is perhaps more related to the practice that has been followed for years, overlooking the mandate of the legal norm conferring on Muslim women the right to terminate the marriage without the consent of her husband.

"The Court in such circumstances is expected to look at the legal norm, if the same relies upon Quranic legislations and the sayings and practices of the Prophet (Sunnah)," it said.

The court further said that Fiqh - the science of deducing Islamic law from their sources - requires a legal mind. Referring to the dilemma faced by the Islamic clergy in understanding triple talaq, the court said the practice, allowed at a particular time, was relied upon by the religious preachers to justify instantaneous form of talaq, while overlooking Quranic injunctions.

"The Islamic clergy failed to distinguish between the legislative authority of the Quran and the executive power of the Islamic ruler to meet particular contingencies. We have narrated the above aspect only to bring home the point that the Islamic clergy who have no legal training or knowledge in legal sciences, cannot be relied upon by the Court to decide on a point of law involved, relating to the personal law applicable to the Muslim community," the court said.

Case Title: XXXXX v. XXXXX

Citation: 2022 LiveLaw (Ker) 559

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