The Kazis Act, 1880 was enacted to regulate the role, duties and appointment of Kazis or Kazi-ul-Kuzzat. The British Govern inherited the power to appoint Kazis from the Mughal rulers, then it considered that appointing Kazis was inexpedient in their interest and so it abdicated this power in 1864. This act empowers the government to appoint Kazis for presiding and regulating all the rites and ceremonies of marriage in the Muhammedan community. In other words it empowers the government to formally make appointments to the office of Kazi. Sir Syed Ahmed Khan was instrumental in the enactment of this act.
Section 2 of the act is the source of power to appoint Kazi for any local area. The State Governments have been given the option of consulting the principal Muhammedan residents of such area for which the government desires to appoint Kazi. It has to be noted the the State Government is not under any obligation to consult such residents before making appointments to the office of Kazi. This power has to be exercised when it appears to the State Government that any considerable number of Muhammedan residents of such a local area desires that a Kazi should be appointed for their area. The State Government has absolute powers relating to the appointment of Kazi as the power of adjudicating weather any person has been rightly appointed to the office is also decided by the State Government. The State Government has been given the power to suspend or remove the Kazi on certain grounds. This is an exclusive power given to the State Government. The grounds removal or suspension as enumerated in section 2 are, guilty of misconduct, being continuously absent for 6 months from the local area to which he is appointed, leaving the local area to which he is appointed, declares to be insolvent, desires to be discharged from the office, becomes unfit in the opinion of the state government or personally incapable to discharge the duties of his office.
Section 3 of the act provides for the appointment of Naib Kazis. Naib Kazis are appointed by the Kazi either to act in place of the Kazi or regarding any of the matters referred to him by the Kazi. The naib Kazi can be suspended or removed by the Kazi. This section also provides that in case the Kazi is suspended or removed then his naib shall also be deemed to have been suspended or removed. Thus the appointment of Naib is contemporaneous with that of the Kazi. Section 4 of this act declares that it is not mandatory for the solemnisation of a Muslim marriage that a state appointed Kazi should be present.
It has been criticised by the Law Commission report number 211 that this act does not apply to private Kazis. There is no provision regulating the method of functioning of the Kazis except the fact that they are to be appointed by the State Government nor there is any provision for preservation of accurate records of marriages solemnised by them. It has to be noted that in Maharashtra. This act was amended to make it applicable to private Kazis in addition to state appointed Kazis. They are required to maintain proper records of marriage.
It has been clarified by distinguished writers that the role of a Kazi is to maintain proper record of marriage i.e. for evidentiary purposes ,it is wrong to assume that a marriage cannot be solemnised without a Kazi. A muslim marriage is completed by a contract between the parties to the marriage. A PIL was also filed in Madras High Court alleging that the Kazis are even issuing certificates of talaq illegally. It was pointed out in the PIL that the condition precedent for invoking triple talaq cannot be inquired by the Kazis. The power to grant talaq can only be granted by the court.
The Karnataka repealing of certain enactments and regional laws act 2013 recommended that this act being obsolete should be repealed.
Ayesha Mukherjee
Download Pdf: The Kazis Act, 1880