NARANTAKATH AVULLAH Vs. PARAKKAL MAMMU

JUDGEMENT

(1.) We are asked to revise the order of acquittal of the 5 respondent on a charge of bigamy, punishable under Section 494 I. P. C. and of the other respondents on subsidiary charges. The petitioner is the complainant who prosecuted as 5 respondent's husband and the Public Prosecutor who has had notice, has under instructions taken no part in the proceedings. We should not ordinarily proceed at the instance of a private party in revision of an acquittal ; and we do so here, only because we are satisfied that a question of public improtance relating to the personal status of a substantial part of the" Moslem community is raised.

(2.) That question is whether petitioner's adherence to Ahrne-diyan tenets made him a murtad or apostate from Muhama-danism. If it did, it had, it is not disputed, the effect of dissolving his admitted marriage with 5 respondent ; and such dissolution prior to her remarriage with 3 respondent is her first and principal defence to the charge. The reply attempted is that Ahmediyans are merely a sect of Muhamadans, their divergences from ordinary muhammadanism not involving abandonment of that creed or making them schismatics. Some objection has been taken to our entering on this controversy in revision, by petitioner on the ground that it is purely one fact since only his religious views and their orthodoxy are in question, and by respondents on the ground that it relates only to degrees of orthodoxy, which the court has no business to estimate. But, although I feel the difficulty, involved in an attempt to deal with matters, with which I am necessarily unfamilar, and although I appreciate the improbability that out" decision can commend itself to those with whom personal associations and devotional sentiment must weigh more than the materials, on which we have to proceed, the issue cannot be avoided. For it is one of mixed law and fact, inasmuch as it relates substantially and ultimately to the personal status, which petitioner's religious view determine ; and to say that only degrees of orthodoxy are in dispute is to beg the question whether the Ahmediyas deviation from Islam is such as entails abandonment of any essential thereof.

(3.) The lower court has attempted very little by way of direct ascertainment whether that deviation does so, its conclusion appearing really to rest on the finding that the Ahmediyas are regarded as apostates by orthodox Mahomadans and the principle that: " What the doctrine and faith preached in the Koran are, is to be decided, not according to the interpretation put on it by individual persons, but according to the interpretation generally accepted and adopted by Mussalmans as a whole." And this test, Secures Judical Orbis may in appropriate circumstances have its value. But to apply it fair y, we must make sure that the judgment relied on is really general and has been reached by the community as a whole and that it has been reached after due deliberation and the passing of sufficient time for the disappearance of the prejudice which new beliefs must always incur. Ahmed, whom the Ahmediyans follow, died, we are told, in the Punjab in 1908 ; and in the fifteen years, ^which have passed, it is difficult to suppose that Islam or even Islam in India can have come to any mature conclusion on his teachings. In fact it has not been shown that it has done so. For, of 4, 6, 7, D Ws, whose evidence alone is relied on, the first is the son of the Government Kazi of Madras, was formerly an Assistant Kazi and Arabic Professor in a private Madrasa - in this city and describes himself as now chief priest in a district in the Nizam's Dominions, whilst the other two are a kazi and a Mnsaliar or religious leader in Malabar The evidence of the second attracts suspicion to the extent of his acquaintance with Ahamed's writings and the third said that there was " no one in the Muhammadan world, whose opinion on religious matters was binding on the conscience of Mussalmans ". These persons are not, shown and do not appear to have more than a local influence and reputation ; and there is nothing before us except their assertions in some instances of doubtful value. In the question propounded to P.W.'s father in the fatwa Ex-1 ,; religious decrees of learned men of Arabia and India," declaring Ahmed and his followers apostates, are referred to ; but none is specified either in the question or answer and none was produced at the trial. In these circumstances it has not been established that the Muslim community either generally or in India has reached any decision which we can regard as conclusive.