Mufti

Introduction
Mufti — a term of Arabic origin — denotes an Islamic jurist qualified to issue formal legal opinions (fatwas) on questions of Muslim law and practice. In the Indian context, muftis occupy an influential but non‑statutory position: they are authoritative interpreters of personal law for many Muslim litigants, advisors to religious institutions and banks, and members of Shari‘ah boards. For practitioners, understanding what a mufti can and cannot do in Indian courts is essential: a mufti’s opinion can assist courts in interpreting Islamic law, but it is not a substitute for judicial determination and carries evidentiary limitations.

Core Legal Framework
– Muslim Personal Law (Shariat) Application Act, 1937
– Section 2 and Section 3 (short form): Indian courts are required to apply Muslim personal law (as recognised by the schools of jurisprudence) in matters of personal status, marriage, divorce, inheritance, and similar family law questions insofar as they apply to Muslims in India. The mufti’s role is interpretative within this statutory mandate: courts consult muftis to elucidate shari‘ah rules but are the final arbiter.
– Indian Evidence Act, 1872
– Section 45 (Opinion of experts): The opinion of persons skilled in religion, profession, or science is admissible and may be relied upon by the court. A mufti will ordinarily be tendered under Section 45 as an expert on principles and practices of Islamic law.
– Constitution of India
– Articles 25–26 (freedom of religion): Recognition of religious practices and institutions creates the space in which muftis operate. However, religious opinions cannot contravene statutory law, public policy, or fundamental rights.
– Statutory overlays
– Specific statutes (e.g., Dissolution of Muslim Marriages Act, 1939; Muslim Women (Protection of Rights on Divorce) Act, 1986) may supersede particular shari‘ah positions; a fatwa inconsistent with a statute is unenforceable in courts.

Practical Application and Nuances
How courts use a mufti’s opinion
– As expert evidence: When a question requires specialised knowledge of Islamic jurisprudence (e.g., validity of talaq pronounced in a particular form, the operation of irrevocable wakf, distribution of property under differing schools), a mufti may be called or his written opinion tendered under Section 45. The court will examine the mufti’s qualifications, the methodology used, and the sources relied upon.
– As persuasive religious guidance, not binding law: Fatwas (written opinions) are advisory. A court may accept, reject or distinguish a fatwa; it will prefer settled principles from primary juristic sources (Quran, Hadith, ijma‘, qiyas) and authoritative texts of the relevant madhhab (Hanafi, Shafi‘i, Maliki, Hanbali).
– Judicial notice and reference to classical texts: Courts often take judicial notice of well‑settled rules of personal law, citing classical fiqh literature rather than relying solely on contemporary fatwas.

Concrete examples
– Divorce (talaq/khula): In a suit for dissolution, parties may produce conflicting fatwas about the effectiveness of a particular mode of divorce (e.g., talaq by text message, voicemail, or irrevocable delegation). The mufti’s opinion will be tendered to explain the juristic reasoning, but the court will evaluate whether the form and intention satisfy the legal requirements under Indian law and prevailing jurisprudence.
– Succession and inheritance: When distribution under Muslim law depends on an interpretation (e.g., pre‑Islamic wills, bequests limited by shar‘iah percentages, distinctions between son and daughter’s shares under different schools), muftis are frequently called to explain the relevant madhhab position. The court juxtaposes those opinions with statutes and precedent.
– Wakf and trust disputes: Muftis advise on the creation and perpetuity of religious endowments; courts weigh those opinions while ensuring compliance with statutory law (Wakf Act) and public policy.
– Islamic finance and Shari‘ah boards: Banks and NBFCs rely on muftis for Shari‘ah compliances. However, contractual arrangements must still conform to Indian contract law and regulatory norms; a Shari‘ah opinion cannot create statutory compliance where it is absent.

Evidentiary and procedural practice
– Tendering the mufti: File a written expert opinion as prescribed practice — identify qualifications, list primary sources relied upon (classical texts and contemporary authorities), set out reasoning and conclusion, and verify by affidavit. The opinion should trace the juristic basis rather than merely state conclusions.
– Preliminary admissibility: Establish the mufti’s credentials (ijazah, madrasa affiliation, publications, prior judicial recognition). Courts are sceptical of anonymous or self‑styled muftis.
– Cross‑examination: Treat the mufti as an expert witness — prepare to test methodology, sources, potential bias, and consistency with established jurisprudence.
– Dealing with conflicting fatwas: Anticipate the need to reconcile conflicting opinions; adducing comparative doctrinal materials and academic commentaries helps courts understand divergences among schools.

Landmark Judgments
– Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556
– Principle: The Supreme Court applied principles of Muslim personal law to the question of maintenance but also emphasised the role of the State and Parliament in legislating on matters of social policy (leading to the Muslim Women (Protection of Rights on Divorce) Act, 1986). The case illustrates the balance: courts consult and apply personal law but operate within the constitutional and statutory framework. Practically, it shows that mufti opinions cannot trump statutory protections or legislative intervention.
– Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332
– Principle (on expert evidence): The Supreme Court clarified that expert opinion is admissible but not binding; its value depends on the facts of the case, the expert’s qualification, the reasons given, and the ability of the court to evaluate the opinion. Applied to muftis, this decision emphasises that the court will weigh a mufti’s opinion against other evidence and its own assessment of the law.

(Several High Courts have repeatedly held that fatwas are advisory and non‑binding; practitioners should cite local precedents in their jurisdiction for finer points.)

Strategic Considerations for Practitioners
How to leverage a mufti effectively
– Early engagement: Secure an authoritative mufti at the pleadings stage where specialist interpretation will be central. Early opinions can shape pleadings and procedural strategy.
– Choose and document credentials: Use muftis with recognised seminaries, publications, or prior judicial recognition. Produce a curriculum vitae, copies of diplomas/ijazah, and published works to buttress credibility.
– Produce methodical opinions: A fatwa should cite primary sources (Quranic verses, Hadith collections, classical jurists like Abu Hanifa, Imam Malik, Imam Shafi‘i), explain the methodology (usul al‑fiqh principles), and apply them to the facts. Avoid conclusory fatwas.
– Comparative doctrinal analysis: Where applicable, present the positions of different madhhabs, explain the one followed, and justify its application to the parties’ facts.
– Integrate statutory analysis: Demonstrate reconciliation (or explain incompatibility) between the fatwa’s view and relevant Indian statutes. Anticipate statutory overrides and address public policy concerns.
– Prepare for cross‑examination: Coach the mufti to explain sources, answer hypothetical questions, and to be candid about doctrinal uncertainties and variations.

Common pitfalls to avoid
– Relying on unverified or anonymous fatwas: Courts distrust undocumented or unsigned opinions.
– Treating the fatwa as conclusive law: Never argue that a mufti’s opinion is binding on the court. That will invite adverse directions.
– Failing to translate and paginate sources: Untranslated Arabic/Urdu citations without certified translations impede judicial use.
– Late production: Producing a fatwa at trial stage without prior disclosure invites objections to its admissibility and weight.
– Ignoring statutory constraints: Fatwas inconsistent with statutory provisions (e.g., women’s maintenance rights under a statute) will not rescue a client’s position.

Practical drafting checklist for a mufti’s expert affidavit
– Heading and identification as expert opinion under Section 45.
– Mufti’s full name, qualifications, ijazah(s), institutional affiliation, publications.
– Statement of instructions or brief from party and confirmation of independence.
– Issues referred and succinct answers.
– Detailed reasoning: sources (Quranic verses, Hadith references, classical texts), steps of reasoning, and application to facts.
– Comparative note on other madhhabs (if relevant) and reason for preferring one.
– Signature, verification, and annexures (certified translations, photocopies of degrees, published works).
– Availability for cross‑examination.

Specific practice areas and tactical notes
– Family law litigation: Use mufti opinions to narrow contested questions (e.g., whether a talaq is valid), but build parallel statutory and equitable arguments.
– Waqf and mosques: Use muftis to interpret waqf deeds and religious endowment principles; ensure statutory compliance with Wakf laws to avoid nullification.
– Islamic finance: Use Shari‘ah board opinions to negotiate commercial positions with regulators; include clauses in agreements acknowledging Shari‘ah compliance as advisory and subject to Indian law to avoid enforceability issues.
– Criminal law: A mufti’s opinion is irrelevant where statutory criminal provisions apply (e.g., acts amounting to crime notwithstanding purported religious sanction). Do not attempt to justify criminal acts on fatwa grounds.

Conclusion
A mufti’s expertise is a valuable tool for courts and practitioners when issues of Islamic jurisprudence arise. Indian courts treat muftis’ opinions as expert evidence of religious law and practice — helpful and often persuasive, but never binding over statutory law, constitutional guarantees or settled judicial precedent. Effective use of a mufti requires early engagement, documented credentials, reasoned and source‑based opinions, and careful procedural handling (disclosure, translation, cross‑examination readiness). Practitioners who align mufti opinions with statutory frameworks and judicial standards of expert proof will extract maximum utility from religious expertise while avoiding the common pitfalls that undermine its probative value.