Fatwa
A case on the illegality of a fatwa under Bangladeshi law
A lawsuit arose from a suo motu rule issued by the High Court after a newspaper report revealed that a woman named Shahida had been compelled to marry her husband's cousin following a local fatwa. The fatwa was based on the allegation that her husband had pronounced talaq in anger a year earlier, even though the couple had continued to live together as husband and wife. The Court examined whether such a divorce had any legal effect under the Muslim Family Laws Ordinance, 1961, and whether the fatwa had any legal authority.
The High Court held that the purported divorce was legally ineffective because the statutory requirements under section 7 of the Muslim Family Laws Ordinance had not been followed. The Court further observed that even if a valid divorce had occurred, there was no legal requirement for Shahida to undergo an intervening marriage before remarrying her husband. Relying on both the Ordinance and principles derived from the Qur'an and Islamic jurisprudence, the Court concluded that the fatwa was contrary to both Bangladeshi law and Islamic legal principles governing divorce.
Dr. Kamal Hossain appeared as counsel for the intervening human rights organization Ain o Salish Kendra (ASK). He argued that Shahida's experience was not an isolated incident but reflected a widespread pattern of unlawful fatwas throughout Bangladesh. Drawing on documentary evidence submitted by ASK, he contended that these fatwas constituted open violations of the fundamental rights guaranteed by Articles 27, 28, 31 and 35 of the Constitution, and that the State had failed to protect citizens against such abuses. His submissions helped frame the case not merely as a dispute concerning Muslim personal law, but as a constitutional challenge involving equality, due process and the rule of law.
Accepting these broader concerns, the Court declared that only courts established under the laws of Bangladesh have authority to render binding legal opinions, and that fatwas issued by unauthorized persons purporting to determine legal rights were illegal and without legal effect. The Court also recommended that Parliament criminalize the issuance of such unauthorized fatwas, urged magistrates and police to take prompt action against those responsible, and recommended reforms in legal and religious education to prevent similar abuses. The Rule was made absolute, and copies of the judgment were directed to be sent to the relevant government ministries.
Footnotes
Editor, The Daily Banglabazar Patrika and Others vs. District Magistrate and Deputy Commissioner, Naogaon 6 BLC (2001) 1; 21 BLD (2001) 45