Triple talaq to be tested on ‘touchstone of Constitution’, says Supreme Court

June 29, 2016 05:31 pm | Updated October 18, 2016 12:57 pm IST - New Delhi

As Muslim women seek the Supreme Court’s intervention to end triple talaq and polygamy, the apex court on Wednesday chose to tread cautiously. It has called for an open-court debate on the highest judiciary’s authority to look into Islamic personal law and possibly subject it to the regime of fundamental rights under the Constitution.

“This is a very important issue. It affects a very large section of the population,” Chief Justice of India T.S. Thakur observed while agreeing to hear all stakeholders equally in the matter.

Petitions before the Supreme Court alleged that practices like triple talaq and polygamy were “illegal, unconstitutional, and violative of the rights to equality, dignity, life and freedom of religion of Muslim women under the Constitution.”

The Bench, also comprising Justice A.M. Khanwilkar, gave the parties eight weeks to prepare their arguments for and against referring them to a larger Bench.

“Let the pleadings be complete. Then we will hear you on whether there is any need for further consultations, or whether any legal propositions call for determination by a larger Bench,” Chief Justice Thakur observed.

A lawyer, Farha Faiz, who appeared in person, made an emotional appeal in the court alleging that the All-India Muslim Personal Board (AIMPLB) was using the media to discredit women who had approached the apex court. “Restrain the AIMPLB from misusing the platform of media and creating a harsh communal atmosphere,” Ms. Faiz submitted in a written representation.

The Bench, after giving Ms. Faiz a patient hearing, assured her that it would not be influenced by remarks in the media while taking a call.

The petitioners, including individual Muslim women and human rights organisations, argued that women who practise Muslim faith were being subjected to grave social evils that found sanction in the Shariat law. They said the community was stuck in time warp since the passage of the Muslim Personal Law (Shariat) Application Act by the British in 1937. Progressive laws like the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986, had not been able to wean the community away from discrimination shown to Muslim women.

They contended that courts could adjudicate under Article 13 of the Constitution if the Shariat law was found to be “inconsistent with or in derogation of the fundamental rights” of Muslim women.

Countering this, Muslim religious bodies said a court could not adjudicate on Muslim personal laws and this would amount to “judicial legislation.” Jamiat Ulama-i-Hind, a Maharashtra-based organisation committed to protecting the Islamic way of life, has argued that the minority religious community’s personal laws draw its authority from the Holy Koran and not the Indian Constitution.

On October 16, last year, the Supreme Court had decided to register a PIL suo motu titled ‘Muslim women’s quest for equality,’ on the gender discrimination women face under the Muslim personal law.

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