The Madras High Court on Wednesday passed an interim order restraining the Chief Kazis from issuing ‘talaq certificates’ (a certificate validating talaq as per Islamic Shariat) till further orders.
The First Bench of Chief Justice S.K. Kaul and Justice M.M. Sundresh also clarified that “for the purposes of courts of legal proceedings, the certificate issued by the Chief Kazi is only an opinion and has no legal sanctity.”
Order on PIL plea
The Bench passed the order on a public interest litigation petition moved by senior advocate Bader Sayeed seeking to declare that Kazis in India, particularly Tamil Nadu, were not empowered to certify talaq.
Ms. Sayeed claimed that Kazis were issuing certificates recognising talaq without following necessary precedents like reconciliation. Sometimes, it was done without even the knowledge of the wife.
“Such certificates issued in an arbitrary manner are causing undue hardship to Muslim women,” she said.
She said the Kazis, once considered judicial authorities under the Muslim Personal Law, no longer possessed such powers after courts of law were established during the British regime. The Kazi Act established in 1880 was very clear. It had not vested any powers of adjudication with Kazis.
“Even assuming that the practice of talaq in respect of personal law is constitutionally valid, whether the conditions for invoking triple talaq were satisfied or not cannot be adjudicated by Kazis. The said process can be conducted only by a court of law,” Ms. Sayeed said.
‘Only an opinion’
The petitioner contended that the nature of such certificates were causing immense confusion in the matrimonial proceedings and in the understanding by both the spouses as to the effect of such a certificate being issued by the Chief Kazi.
She produced some certificates to the court and pointed out that the tenor of such certificates remained the same since 1997. It merely stated that “on a representation of the spouse on a particular date, the talaq pronounced in respect of his wife is valid as per Islamic Shariat.”
“As to what facts which persuaded the Kazi to opine to issue a certificate has not been set out. Moreover, it does not clarify that the certificate is only in the nature of opinion,” the petitioner argued.
To this, the Muslim Personal Law Board submitted that it was willing to examine the format in which such certificate may be issued as an opinion of the Kazi, so that there would be no ambiguity on its effect.
The Bench passed the interim direction pending consideration of the issue by the Muslim Personal Law Board.
