Speaking to a select group of expatriates in the
Kingdom on
Sunday, Mohammed Osman Shaheed, the additional public prosecutor at
Andhra
Pradesh High Court, said high courts and Supreme Court were no longer
delivering judgments in the light of Muslim Personal Law.
“This law has been confined only to legal books ...
it is no
longer in application. The majority of All-Indian Muslim Personal Law
Board
officials, too, have accepted this stark fact,” he said.
Elaborating his point, Osman Shaheed said: “For
example, if
you take a case of divorce to the High Court or the Supreme Court, they
will
clearly tell you that where there is a conflict between the Muslim
Personal Law
and the law of the land, then the law of the land will prevail. And in
almost
all cases since independence, the judgments have been delivered in
contravention of the Muslim Personal Law.”
The Muslim Personal Law is a popular name for an
act of law that
was promulgated by the British occupation forces in 1937. It was then
called as
the Shariat Application Act. It was meant to solve cases involving
Muslims
according to their law.
Osman Shaheed said the Indian law provides a better
solution
to get out of this sorry state of legal affairs for Muslims. “You can
set up
arbitration councils in your localities. This is perfectly legal.”
According to Indian Arbitration Act, if there is a
conflict
between two parties then they can nominate a third person of their
choice to
adjudicate between them. This third person is known in legal parlance as
the
arbitrator. Based on the evidence at hand and based on his wisdom, the
arbitrator will give his ruling.
“As per Article 38 of Indian Arbitration Act, the
ruling of
the arbitrator can be taken to the chief judge of the local court and
can be
converted into a legally binding decision for a nominal fee of 100
Indian
rupees. This decision then becomes executable. Is this not a perfect
solution?”
asked Osman Shaheed. “There is no need to take Muslim family disputes or
land
disputes or inheritance disputes to the court. You can solve them
through local
arbitration.”
He said the Muslim Personal Board has also called
for the
setting up of Shariah courts in various cities. “However, when you say
Shariah
courts, it rings alarm bells among other sections of society and it
unnecessarily creates an impression that Muslims do not believe in the
law of
the land and that they are trying to set up a parallel justice system.
But when
we set up arbitration councils, it is perfectly within the Indian legal
parameters.”
Osman Shaheed has set up an Andhra Pradesh State
Muslim
Forum to create awareness among the Indian Muslim community on this
important
legal aspect. “Interestingly, my suggestion is being vehemently opposed
by my
fellow lawyers. They think this will dry up their sources of livelihood.
‘Where
will we then get the cases from?’ they ask.”
Muslehuddin Ahmed, a Jeddah-based Indian
expatriate, said he
was highly impressed by Osman Shaheed’s campaign. “He has focused on a
very
important issue and there needs to be sustained efforts to carry his
message
forward. There should be a healthy debate on this issue.”
