Khazis are powerless when it comes to dissolution of marriage

At best, they can solemnise Muslim marriages, according to a counter-affidavit filed by TN’s Chief Khazi in response to an appeal by a woman and her four children challenging rejection of plea to set

Published: 01st November 2016 04:58 AM  |   Last Updated: 01st November 2016 04:58 AM   |  A+A-

Express News Service

CHENNAI:  The Khazi, who is the chief of Muslims in their religious affairs, has no powers to dissolve marriages of Muslims, the Chief Khazi of the State informed the Madras High Court.

At best, he has powers only to solemnize the marriages of Muslims, according to the counter-affidavit filed in response to an appeal challenging the orders of a single judge against a Muslim woman.

The counter-affidavit was filed in response to the appeal filed by S Basheria and her two female and one male children challenging orders dated October 12, 2012 of a single judge rejecting their pleas to set aside the fatwa issued by her husband on June 9, 2006 and approved by the Chief Khazi on July 27, 2006.

On hearing the appeal, a division bench of Justices Huluvadi G Ramesh and S Vaidyanathan last week, noted it was evident from the counter-affidavit filed by the Chief Khazi that he gave a letter to the woman confirming that the alleged authoritative fatwa was only an opinion based on the document placed before him and that it was neither a certificate nor a final verdict. 

He further said that if the Khulanama, dated June 9, 2006 contained manifestly noticeable incongruities, then the wife is not prevented from declaring it as null and void before the appropriate authority, i.e. a lower criminal court.

The Chief Khazi, in his counter, clearly stated that in the purview of the Khazis Act, he has no authority to give any such verdict or declaration that the matrimonial status of the parties is dissolved.
It was also submitted that the chief Khazi can only solemnize a marriage and has no right to dissolve it. 
The wife moved the High Court with a writ petition. A single judge, however, dismissed it on the ground that the matter is pending before a lower (criminal) court and hence, the wife cannot approach the High Court. Hence the present appeal. 

The appellants contended that the single judge had failed to take note of the life of the appellants, who have been stranded by the act of her husband. The Khulanama dated June 9, 2006, is a forged one and by virtue of the certificate issued by the Chief Khazi on June 27, the appellants were deprived of their rights. The Chief Khazi ought to have conducted an enquiry and solved the issue.

However, concurring with the observations of the single judge, the bench said for the very allegations, criminal proceedings have been initiated and the same are pending before the Criminal Court. The veracity or otherwise of the allegations can be gone into by the Criminal Court after following the due process of law. The fact also remains that the criminal proceedings and the claim with regard to the relief sought in the writ petition are independent of each other. The allegations made by the appellants/writ petitioners are disputed questions of fact.

It is well settled that the disputed questions of fact cannot be gone into by the high court under Article 226 of the Constitution. The writ court is concerned only with questions of law, but not questions of fact. The disputed questions of facts have to be dealt with only by the appropriate forum or the court or the authority, as the case may be and not by the high court, the bench said.


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