Hyderabad: The absence of rules and stringent provisions in the Qazis’ Act 1880 or the Wakf Act 1995, to regulate the duties and responsibilities of the qazis and punish the errant ones, has led the qazis to keep indulging in ‘sham’ marriages.
Though the Qazis’ Act empowered the state government to appoint a qazi. It does not give any power to regulate their functions, except removal whenever they are caught indulging in malpractices.
Section 2 of the Act 1880 stipulates that “wherever it appears to the state government that any considerable number of Muslim residents in any local area desire that one or more qazis should be appointed for a local area, the state government may, if it thinks fit, after consulting the principal Muslim residents in such a local area, to select one or more fit persons and appoint him or them to be qazis for such local areas.”
The Act also stipulates that “the state government may, if it thinks fit, suspend or remove any qazi appointed under this Section who is guilty of any misconduct in the execution of his office, or who is for a continuous period of six months absent from the local area for which he was appointed.”
The erstwhile AP Wakf Board had in 2002 made an attempt to regulate the functions of the qazis by issuing a circular determining the fee payable to the qazis/Naib (deputy) qazis for performing a marriage and requiring that qazis obtain marriage booklets, sianamas and registers from the Inspector Auditors of the Wakf Board of the respective districts for a sum of '510 for ten marriages.
The High Court in 2011 set aside the circular of the Wakf Board holding that there was no provision under Act 1880 for the Board to meddle with the affairs of the qazis. Mr Muqeeth Qureshi, a senior advocate who is well versed with Mohammedan Law, explained that the Qazis Act 1880 is a Central Act. He said that there was always a provision under the Central Acts for the state government to frame their own rules to implement the Act, but the Qazis’ Act, which contains only four sections remains silent in the aspect of framing rules by the state government.
He said that Section 2 of the Qazis’ Act which deals with the appointment and removal of Qazis and Section 4 which deals with the powers of the Qazis, contradict each other. Mr Qureshi said that almost two decades ago, the AP High Court directed the Central and State governments to amend the Qazis’ Act to suit current situations.
He opined that the state government can either make its own rules to regulate the functions of the qazis or take steps after consultation with the Centre to amend the Qazis’ Act as per the directions of the Andhra Pradesh High Court.
He felt that the implementation of the Compulsory Registration of Marriages Act will definitely curb sham marriages, as the registration will involve meticulous scrutiny of documents, in addition to careful examination of the bride and groom before the issuing of marriage certificates.
Mr Qureshi said that in the year 2011, a division bench of the Hyderabad HC ruled that the Wakf Board had no power to meddle in the affairs of the qazis. In spite of this, the Board is still issuing marriage certificates. which is improper.
Mr M.A.K. Mukheed, advocate of the High Court and former counsel for the Wakf Board said, “We represented the state government to frame rules to regulate and prevent the marriages of Muslim girls to foreign nationals.”
What the HC says
- British Rulers enacted the Kazis' Act in 1880. It was stated that “nothing in the Bill confers any judicial or other powers on a qazi or makes his presence necessary at any marriage or other ceremony at which his presence is not now necessary.
- The HC said the provisions of the Act leaves no room for doubt that appointment of a Kazi/Naib Kazi is not an employment. It is simple empowerment to perform marriages.
- The Hyderabad High Court in 2011 held that the appointment of a Kazi/Naib Kazi is not an employment and to put it precisely it is a simple empowerment to perform marriages.
- The HC said that the Qazis Act does not guarantee any clientele to a qazi, instead, it leaves it to the discretion of the bride/bridegroom to choose their qazi, irrespective if he is appointed as a qazi by the government or not.
- The HC ruled that it is not part of marriage to pay fee to a qazi. Under the provisions of the Act, one who needs services of a qazi is free to choose a qazi of his choice. There is no mandate from the Act to pay him the fee.
