Muslim personal law board defends triple talaq, polygamy

Satya Prakash

Tribune News Service

New Delhi, March 27

All India Muslim Personal Law Board (AIMPLB) on Monday defended the practices of triple talaq, polygamy and nikah halala, saying the Supreme Court cannot consider the constitutional validity of the principles of Muslim Personal law.

In an affidavit filed in the top court in response to petitions challenging these practices having apparent gender bias against women, AIMPLB said these issues were matters to be dealt with by the legislature.

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Contending that fundamental rights guaranteed by the Constitution did not touch upon personal laws, it said fundamental rights can’t be enforced against private parties.

On Triple Talaq, it said: “Once three pronouncements of divorce are made, the marriage dissolves and the woman becomes unlawful or haram to the man who had pronounced divorce.”

 Defending polygamy the Board said: “Polygamy meets social and moral needs and the provision for it stems from concern for women. The policy of Islam is to discourage polygamy but not to prohibit it. Islam encourages monogamy but does not make it mandatory.”

A bench headed by CJI JS Khehar – which had last month referred the issue to a Constitution bench – had asked all the parties to articulate their views on key constitutional questions framed by it. The court has already made it clear that it would not look into the Uniform Civil Code which is currently being examined by the Law Commission of India.

Many Muslim women and Muslim groups have challenged these practices on the ground that these violated their fundamental right to equality, right to non-discrimination and right to live with human dignity.

But the AIMPLB sought to emphasise that Muslim Personal Law was not “law” within the meaning of Article 13(3) of the Constitution.

“Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts. The Mohammedan Law is founded essentially on the Holy Quran and sources based on the Holy Quran and thus it cannot fall within the purview of the expression “laws in force” as mentioned in Article 13 of the Constitution of India, and hence its validity cannot be tested on a challenge based on Part III of the Constitution.

It said these foundational principles which are the basis of Muslim Personal Law… they are peculiar to Islam and cannot be challenged on the ground of being violative of Part III (Fundamental Rights) of the Constitution of India.

Article 13(2) restrains the State from making any law that takes away of abridges fundamental rights of citizens. If personal law were to be declared “law” within the meaning of Article 13(3), courts can examine it and declare it or any portion of it unconstitutional for violation of fundamental rights of citizens (read Muslim women).

The Centre had on February 16 asked the Supreme Court to decide if the practices of triple talaq, nikah halala and polygamy among Muslims were protected under Article 25(1) of the Constitution that guaranteed fundamental right to religion to citizens.

It also asked the top court to consider if fundamental rights, particularly right to equality and right to live with human dignity, were superior to right to religion -- often invoked by conservative Muslim groups to justify such practices that have inherent gender bias against women.

Triple talaq or Talaq-e-biddat refers to pronouncing the word talaq thrice in one sitting, while 'nikah halala' permits a man to remarry the woman he divorced only after she has married someone else; the marriage has been consummated with that man and then she has been divorced or widowed. Polygamy allows a Muslim man to take four wives.

The Centre wanted the court to consider if the practices of triple talaq, nikah halala and polygamy among Muslims were compatible with India’s obligation under international treaties and covenants it was signatory to.

Describing the issue as “important” and “sensitive”, the bench indicated that the issues could be referred to a constitution bench. It asked the parties to file their written submissions of 15-page each by March 30. The hearing would commence on May 11.

In its affidavit filed in the court last year, the NDA government opposed these practices on the ground that these violated constitutional principles of gender equality, secularism as also international covenants India was signatory to. It also pointed out that this kind of practice was illegal in many Islamic countries.

There are separate sets of personal laws in India for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu law has substantially changed since the 1950s, activists complain that Muslim law has hardly been reformed.