A petition in public interest has been filed in the Madras High Court to declare that Kazis in India, particularly in Tamil Nadu, are not empowered to certify talaq. Consequently, they should be prohibited from issuing certificates and other documents approving talaq, the petitioner said.
The First Bench consisting of the Acting Chief Justice R. K.Agrawal and Justice M.Sathyanarayanan ordered notice to the Centre and the State government and the Chief Kazi to the Tamil Nadu Government, returnable in two weeks.
The petitioner, Bader Sayeed, is an advocate and a former MLA who represented Triplicane constituency. She hails from a family which established the South India Educational Trust (SIET), which runs various educational institutions. She had also served as an Additional Advocate-General of Tamil Nadu from 2005 to 2006.
She submitted that though women belonging to other religions were sufficiently protected by legislation against arbitrary divorce, Muslim women in India were subjected to unilateral and arbitrary divorce by their husbands. The State had not taken steps to codify Islamic law.
When the Muslim Personal Law (Shariat) Application Act was challenged earlier, a Division Bench of the High Court in June 2002 dismissed the petition, but held that the correct law as per Quran was that ‘talaq’ should be for a reasonable cause and should be preceded by attempts at reconciliation between the husband and wife by two arbiters, one chosen by the wife’s family and the other by her husband’s family. Only if that attempt failed, talaq may be effected.
When she was an MLA in 2006-11 representing Triplicane, where Muslims were in a majority, it came to her notice that several Muslim men, even without following necessary conditions precedent such as attempts at reconciliation and even without their wives’ knowledge, were pronouncing talaq. They also represented to the Kazis that they had pronounced talaq and obtained certificates to that effect. Though the Kazis did not have any authority or power, they were in the habit of issuing the certificates. On account of the arbitrary manner in which the Kazis in the State were functioning, women were put to hardship. The certificates issued by Kazis were being used for various purposes and the women were left with no effective remedy.
Mrs.Bader Sayeed said the Kazis Act was enacted only for the attendance of Kazis at weddings. They had no right or power to recognise or certify talaq. The law also did not confer administrative or judicial power on Kazis.