Separatists, clergy target two J&K High Court judgments

20 November 2012 , By Ahmed Ali Fayyaz

SRINAGAR: For the first time in over two decades, separatist groups and a section of the clergy in Kashmir have joined hands, and roped in fragments of the intelligentsia, in their attempt to reverse two recent judgments of the Jammu and Kashmir High Court.

One, delivered by Justice Hasnain Masoodi, puts unprecedented tabs on a Muslim husband’s right to arbitrarily terminate a marriage. Another, by Justice Mansoor Ahmad Mir, interprets life imprisonment as the convict’s lifelong detention in jail.

Jamiat-e-Ahl-e-Hadith (JAH), a religious organisation headed by separatist leader Maulana Showkat Shah until his killing at a mosque here in April 2011, has taken the lead in dismissing Mr. Justice Masoodi’s judgment on talaaq as “an unacceptable interference in the matters of the religion of Islam.”

On November 4, the JAH organised a meeting of different religious groups and intellectuals to discuss the import of the judgment and to assert that the ruling would meet a tough resistance if it was not withdrawn forthwith. Critics of the judgment included a number of leading lawyers, clerics and separatist politicians.

A former High Court judge Bashir Ahmad Kirmani and some prominent legal practitioners, however, prevailed upon the forum with their argument that an anarchical reaction would not serve any purpose. They went in appeal to the same judge.

Mr. Justice Masoodi decreed that both partners of a marital union had equal rights in Islam, and the husband’s competence of pronouncing divorce was not arbitrary, unqualified or absolute. His ruling came in a civil suit, in which a divorcee had challenged her husband’s manner of separation and sought maintenance as a matter of right. However, contesting her petition, the husband argued that he had divorced her and was not under any obligation to pay her alimony.

The judge details the Shariah and Quranic injunctions to find support for the ruling that “husband cannot have unrestricted or unqualified power to pronounce talaaq.”

In its immediate reaction, the JAH said non-theological courts of a democratic set-up had no competence to adjudicate matters defined in the Quran and Hadith. “If this judgment is accepted today, the man-made courts would be judgmental tomorrow on all other religious matters of the Muslims. This has never been acceptable to Muslims in the past, nor would ever be in future,” it said in a statement.

With many of the Valley’s clerics, politicians and civil society members dragging Mr. Justice Masoodi’s judgment to a public discourse, Hurriyat hardliner Syed Ali Shah Geelani and constituents of his secessionist umbrella have started targeting Mr. Justice Mir over his November 16 interpretation of imprisonment for life. Dismissing Muslim League chief Ashiq Hussain Faktoo’s petition, the judge ruled that life imprisonment meant lifelong detention until the state used its prerogative of reducing the term.

In their frontal attacks on the judge, some separatist leaders made uncharitable remarks, including allegations of “working under political influence.”

Dr. Faktoo is not the only separatist leader affected by this judgment. As many as 19 people, including the author of Mr. Geelani’s biography, Dr. Mohammad Shafi Shariati, a former Professor of Persian at the University of Kashmir who later became a top functionary of the radical militant group Jamiatul Mujahideen, are serving life terms. Their families and organisations have been awaiting their release on their completing 14 years of imprisonment. Mr. Justice Mir’s ruling has virtually sealed their fate.

Advocate-General Mohammad Ishaq Qadiri; senior advocate Zaffar Ahmad Shah; the former judge of the Jammu and Kashmir High Court and Chief Justice of Odisha High Court, Bilal Nazki; and the former Law Minister, Muzaffar Hussain Baig, said invariably that a public discussion on court judgments was a “legal, constitutional and democratic right” of every member of the society. However, Mr. Qadiri, Mr. Shah and Mr. Baig told The Hindu that the best way of seeking remedy was the forum established under law and the Constitution.

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