The Muslim personal law, which allows practices like polygamy and nikah halala, is a “cultural issue” and inextricably interwoven with the religion of Islam. The Constitution allows the continuance of the different practices of various religions until the State succeeds in its endeavour to secure a Universal Civil Code (UCC), the All Indian Muslim Personal Law Board explained to the Supreme Court on Monday.
The Board, which represents multiple schools of thought in Islam and is committed to protect Muslim personal law in the country, said personal laws do not derive their validity from legislature or any other competent authority. Their sources are the scriptural texts of their respective religions. The personal law does not fall within the definition of ‘laws’ under Article 13 of the Constitution. The validity of a personal law cannot be challenged on the basis of the Fundamental Rights enshrined in the Constitution.
The arguments were made in an application filed by the Board seeking impleadment in a writ petition filed by Supreme Court advocate Ashwini Kumar Upadhyay for a judicial declaration that polygamy and nikah halala (bar against remarriage with divorced husband without an intervening marriage with another man) were unconstitutional. The petition wants the court to declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 violative of Articles 14, 15 and 21 of the Constitution, insofar as it seeks to recognise and validate polygamy and nikah halala. Mr. Upadhyay has contended that a “ban on polygamy and nikah halala has been the need of the hour to secure basic rights and in the interest of public order, morality and health”.
But the Board said the petition is a push for a judicial pronouncement to bring the UCC. It argued that even Article 44 of the Constitution only says the State should try for bringing UCC. Article 44 is a directive principle of State policy and not enforceable. Article 44, by necessary implication, recognises the plurality of faiths and permits their continuance.
The application points out that the apex court, in its 1997 judgment in the Ahmedabad Women Action Group case, had already refused to examine whether polygamy in Muslim personal law is illegal and an act of cruelty to women. The court had said the issue should be dealt with by the legislature and not the courts.
Mr. Upadhyay had argued that the practices of polygamy and nikah halala were a cause of injury to women.
The petition had referred to how the apex court had held the instant talaq unconstitutional in August 2017.
However, the Board said the rights of Muslim women were already secure under the Muslim Women (Protection of Rights on Divorce) Act of 1986. The validity of the Act was upheld by the apex court in 2001, it argued.
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