Islamic organisation Jamiat Ulama-i-Hind Friday resisted the Supreme Court’s attempts to deal with various issues of rights, including gender bias against Muslim women. It told the apex court that a court cannot test the validity of personal law since it amounts to “judicial legislation.”
Appearing for the organisation, senior advocate Huzefa Ahmadi sought an approval of a bench led by Chief Justice T S Thakur to hear Jamiat Ulama-i-Hind as a party to the PIL instituted suo motu by the court.
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The bench allowed Ahmadi’s request and asked it to submit its response, if any, within six weeks. The bench also sought assistance of Attorney General Mukul Rohatgi in the matter and said the Centre and National Legal Services Authority may also file counter affidavits. In its plea, Jamiat Ulama-i-Hind has contended that the apex court cannot examine the constitutional validity of the practices of marriage, divorce and maintenance in Muslim personal law on the ground that provisions of personal laws cannot be challenged by the reason of fundamental rights.
“Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts. The Mohammedan Law is founded essentially on the Holy Koran and it cannot fall within the purview of the expression ‘laws in force’ as mentioned in Article 13 of the Constitution of India, and hence its validity cannot be tested on a challenge based on Part III of the Constitution,” it said.
If the top court, the plea said, lays down special rules for Muslim women in matters concerning marriage, divorce and maintenance, it would amount to judicial legislation, which it said is not permissible.
Last year, a two-judge bench had ordered registration of a PIL and requested the Chief Justice to set up a Special Bench to deal with issues relating to the challenge to the Muslim Women (Protection of Rights on Divorce) Act.