New Delhi: Sparking controversy the Supreme Court has decided to scrutinize the Muslim Personal Law to do away with the gender bias against women who are victims of polygamy and are divorced arbitrarily due to practice of triple talaq.
“There is no safeguard against arbitrary divorce and second marriage by her (a muslim woman’s) husband during currency of the first marriage, resulting in denial of dignity and security to her,” a bench of justices AR Dave and AK Goel said.
It requested Chief Justice of India HL Dattu to constitute an appropriate bench to hear and address the issue to bring about gender equality in Muslim Personal Law, in conformity with constitutional provisions that prohibit discrimination on the basis of sex, caste, creed and religion.
The bench, which analysed several SC judgments on gender discrimination in Muslim law, issued notice to the attorney general and the National Legal Services Authority asking them to respond to the issues raised by it by November 23.
Quoting from a 2003 verdict that upheld Haryana government’s rules prescribing monogamy for its employees, the bench said, “…practice of polygamy is injurious to public morals and can be superseded by the State just as practice of sati.”
In a survey conducted earlier this year, over 90% Muslim women rejected triple talaq and polygamy.
Citing yet another SC judgement, the bench said: “Laws dealing with marriage and succession are not part of religion. Law has to change with time.”
“It is pointed out that the matter needs consideration by this court as the issue relates not merely to a policy matter but to fundamental rights of women under Articles 14 (right to equality), 15 (right to non-discrimination) and 21 (right to life and liberty) and international conventions and covenants,” the bench noted.
Noted Islamic scholar and former chairman of the National Commission for Minorities Tahir Mahmood supported the SC’s move.
“There is a misconception that Muslim personal law is covered by the right to religious freedom under the Constitution. Personal laws are within the legislative competence of the State. There is no doubt, in practice Muslim women are discriminated against. The legislature has done nothing to end it. The SC must take cognizance of such discrimination and do something for them,” Mahmood said.
The order comes days after another SC bench asked the Centre to take a quick decision on a uniform civil code to end the confusion over personal community laws.
“If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by Justice Vikramjit Sen had on October 12 told solicitor general Ranjit Kumar.
The SC suo-motu decided to hold a detailed hearing on the issue after advocates in a property dispute in a Hindu family referred to gender discrimination under Muslim personal law.
Muslim men are allowed polygamy and can use triple talaq to divorce their wives, while women have to seek divorce.
Women are discriminated against in succession and inheritance of property. Also, two female witnesses equal one male witness.
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu Law was modernised in 1950s, those for Christians and Muslims have largely remained unchanged.
The SC said the Muslim Women (Protection of Rights on Divorce) Act, 1986 enacted during Rajiv Gandhi’s government also needed to be visited by a constitution bench.