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SLIC, Socio-Legal Information Center.
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Nazma Biwi & Anr vs. State of Orissa: A petition against the interference of local communities and religious bodies into fundamental individual rights

Date : 16/07/2010

The fundamental rights of individual citizens and married couples such as the right to life, personal liberty and freedom of movement are of paramount importance under the Indian Constitution. This petition seeks to uphold these fundamental rights in the face of interference by local communities and anti social groups. Situations arise where threats of violence and restrictions of movement to individuals and married couples are initiated by such communities and groups because of a misplaced reference to personal, particularly religious laws. Moreover the police and the administration merely observe this mob rule and refuse to do anything, leaving the individuals or couples at the mercy of the threatening locals. The petition calls for an end to such interference by local communities and further seeks to make it impermissible for the police to remain inactive when such situations arise.

This Special Leave Petition originated from a particular incident that happened to the petitioners, Nazma Biwi and her husband, both of Muslim faith. It was said by members of the public that Nazma s husband while intoxicated uttered a triple talaq, however he or his wife has no recollection of this. The local community did not permit them to reside as husband and wife as following a talaq this is against the law of Shariat. Nazma and her husband approached a Mufti who issued a fatwa to the effect that the talaq was not effective because it was proclaimed under intoxication. However the local community did not accept this and approached another Mufti who issued a fatwa to the contrary. Despite an order obtained by Nazma from the Family Court restoring conjugal rights the local community still did not allow them to live together. The petitioner also approached the National Human Rights Commission (Law Division) but they also refused to do anything.

Following death threats, the petitioners filed a FIR with the local police station but again no action was taken. The couple continued to live apart, all the while still receiving threats to their lives and living in a situation where it was dangerous for them and their children to move around freely.

A writ petition was originally filed in the High Court of Orissa by the NGO, the Committee for Legal Aid to the Poor (CLAP) on behalf of Nazma and her husband to uphold the rights of the couple and provide relief from the deplorable situation they were now in. However the High Court dismissed the petition, as they did not find any reason to interfere in the matter or to issue any direction in that regard to the state. The Court also stated that even if the police do not take any action it is open to such Muslim women like Nazma to lodge complaint cases before the Judicial Magistrate having territorial jurisdiction over the subject matter of such cases.

Following the dismissal, HRLN, on behalf of the Nazma Biwi and her husband brought this petition before the Supreme Court in Nazma Biwi & Anr vs. State of Orissa, to impugn the judgment of the High Court of Orissa. The petitioners seek this impugnment because their fundamental rights are being violated through the interference of anti social groups, justified by a misplaced reference to personal law, i.e. the local Muslim law. They are not permitted to reside together with their children and their lives are at stake due to continuing death threats, as such their right to life and personal liberty are being violated. As the police have done nothing it has not only left the petitioners at the mercy of the threatening groups but has also given the impression that these groups have the right to take the law into their own hands because it is a religious matter. However the petition asserts that because these are matters of fundamental rights where the petitioners life and personal liberty are at stake, even if they are religious matters, they cannot violate these rights; they are too important not only to the individuals concerned but also to Indian society as a whole.

The petition also notes that the principle error in the judgment of the High Court was its failure to realise that the couple are in dire circumstances as they are extremely vulnerable to physical attacks by a frenzied mob and therefore due to the absent support from the state and the police they would find it impossible to file and pursue a private complaint as the Court suggested. The Court has thus failed to contemplate the seriousness of the case and instead has sent a signal to religious groups that they can act above the law. Indeed several other cases have been reported of intimidation of women by violent mobs acting in the name of religion.

As such the petition seeks the Supreme Court to grant special leave to appeal against the final judgment of the High Court of Orissa and pass such orders it deems fit and proper owing to the facts and circumstances of the case. It also seeks the Court to direct the police to provide appropriate protection and security to the petitioners and to immediately take severe action against those groups acting in a threatening manner against them.

The case has been accepted by the Supreme Court. In an order dated 21.04.2006 the Court granted two weeks to the state of Orissa to file counter to the petition of Nazma Biwi and another person. The Court also ordered that until the case is settled police protection is to be given to the petitioners as required. The Court further observed that no one can be forced to live separately against his or her will and remarked, “It (India) is a secular country. Every community is supposed to behave in a civilised manner. Members of every community have the right to live with dignity. No one can force them to live separately.” The case is now waiting to be heard.
The Court’s rulings have been extremely positive so far. It is imperative that the rights of the petitioners are upheld in this case. It is also important that a message is sent to religious groups that they cannot enforce religious or local laws to the detriment of people s fundamental rights.

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