From suo motu to judgment: The arguments for and against triple talaq

SC intervention in triple talaq amounts to judicial legislation: AIMPLB

The All India Muslim Personal Law Board (AIMPLB) on Tuesday told the Supreme Court that any interference by the apex court in Muslim personal laws, including triple talaq, will amount to “judicial legislation.”

Personal laws cannot be altered or tinkered with on the justification that they violate the fundamental rights of Muslim women like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.

Opposing the Law Commission of India’s fresh endeavour on the Uniform Civil Code, the AIMPLB said the Code was only part of the Directive Principles of State Policy and is “not enforceable.”

“Personal laws of a community cannot be re-written in the name of social reform ... courts cannot supplant their own interpretations over the text of scriptures. Muslim personal law provides for the practices of marriage, divorce and maintenance, and these practices are based on the holy scriptures — Al-Quran and sources based on Al-Quran,” the Board countered the Centre’s stand that Muslim personal laws violate constitutionally guaranteed rights of gender equality.

‘Violative of powers’

“If this court proceeds to examine questions of Muslim personal laws and lays down special rules for Muslim women in matters concerning marriage, divorce and maintenance, it would amount to judicial legislation and will be violative of doctrine of separation of powers,” AIMPLB Secretary Mohammed Fazlurrahim contended in an affidavit filed in the Supreme Court on Tuesday.

The Government had opposed the AIMPLB stand in court that triple talaq was intended to save the family from delayed justice in conventional courts and to avoid mud-slinging in public. The Board had contended that concern and sympathy for women lay at the core of polygamy. That it was a better option for a “barren” wife to allow her husband to marry a second time than let him indulge in a “mistress.”

Centre’s counter

The Centre had countered that in a secular democracy, any practice which left women socially, financially or emotionally vulnerable or subject to the whims and caprice of men-folk was incompatible with the letter and spirit of Articles 14 and 15 of the Constitution.”

It sought the apex court to declare the law whether in a secular democracy, religion could be a reason to deny equal status and dignity available to women under the Constitution.


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Printable version | Nov 30, 2021 8:47:54 AM | https://www.thehindu.com/news/national/SC-intervention-in-triple-talaq-amounts-to-judicial-legislation-AIMPLB/article16075027.ece

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