When Muslim Marriage Dissolution Act 1939 was being legislated, Ulemas insisted on a stipulation that cases under this law should only be heard by a Muslim Judge. If Muslim Judge is transferred, case should also be transferred to the same or some other Muslim Judge. Bill was passed but the demand rejected.
Jamiat ul Ulema issued a statement “Jamiyat would like to make it clear that if a marriage is annulled by a non-Muslim judge, the decree will not be valid in the eyes of Shariah. If a woman, after obtaining divorce decree from a non-Muslim Judge, marries someone else, she will be committing adultery. Although court may have dissolved the marriage, she would still be the wife of her first husband.”
Ulemas have not changed their stand even today. That is why they demand institutions like Darul Qaza (parallel Islamic courts) be vested with judicial powers. In an Urdu book published in 2011 titled `Divorce by Courts of non Muslim Countries’, Maulana Khalid Saifullah Rahmani, Secretary of the MPLB, explains the position in detail.
After quoting from Quran, he refers to a classic Hanafi scholar Isa bin Usman to conclude: “In this matter the guardianship of a disbeliever over a Muslim is not right because judicial authority is guardianship and a disbeliever cannot be guardian of a Muslim even in small matters. Judicial power is guardianship of the highest order because the Judge enforces laws of God”. This explains why Muslim Personal Law Board always challenges authority of courts examining Constitutional validity of religious laws. Whenever courts deliver a verdict not approved by the clergy, they accuse courts of interference in their religion.
Two Professors of Islamic Jurisprudence from Medina University clarified it beyond doubt years ago at India International Centre in New Delhi. They declared, since Islamic law has a devotional aspect, it can be administered only by a believer and no one else, according to Shariah.