Polygamy no longer progressive, SC told

Polygamy may have been “progressive and path-breaking” centuries ago, but not now when women and notions of gender justice have evolved, the Centre told the Supreme Court on Friday.

If Muslim countries, where Islam is the State religion, have disregarded polygamy and triple talaq, why should India, a secular country, continue to deny Muslim women their rights under the Constitution, the Centre asked.

It said that there was no legal bar against abolishing polygamy and triple talaq, given the “march of time and the need for social reform”.

“It may be true that only some women are directly affected by a polygamous marriage, but the fact remains that every woman to whom the law applies lives under the fear, threat or prospect of being subject to these practices, which impacts her confidence and dignity,” the Centre said in an affidavit.

‘Undesirable cannot be essential’

The government listed names of “theocratic States”, which Pakistan at the top, followed by Bangladesh, Afghanistan and Iran, who have “regulated” their divorce law and polygamy in order to show that these are not “essential religious practices” that are beyond reform.

The government was responding to a nearly 70-page affidavit filed by the All India Muslim Personal Law Board (AIMPLB) in the Supreme Court. The Muslim body had strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq, saying that as men, they were better at controlling their emotions, unlike women. The Board has also said that polygamy prevents illicit sex and protects women.

The government pointed to how the AIMPLB had also referred to triple talaq and polygamy in the Supreme Court as “undesirable”. The Board had told the SC that though practices like triple talaq and polygamy were “undesirable”, their hands were tried because the Sharia permitted these practices.

“No undesirable practice can be elevated to the status of an essential religious practice,” the Centre countered the Board.

Concern for women

It said “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”.

The government said Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths.

The Centre sought the Supreme Court to answer “whether in a secular democracy, religion can be a reason to deny the equal status and dignity available to women under the Constitution of India”.

“Behind the preservation of personal was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens,” the Centre said.

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