Stating that absence of reforms in the community in the last 65 years have left Muslim women “extremely vulnerable, both socially as well as financially”, the Centre on Friday impressed upon the Supreme Court to do away with the practice of polygamy and triple talaq. The Centre also said these practices “cannot be regarded as essential or integral part of the religion”.
The affidavit, submitted by the Union Law Ministry in response to a clutch of petitions challenging polygamy and triple talaq, said that the validity of these practices required a “reconsideration” by the top court “in light of the principle of gender justice and overriding principle of non-discrimination, dignity and equality” as well as “evolution of women”.
The government maintained that triple talaq and polygamy impacted a woman’s status and her right to live with confidence and dignity, and added that they were not protected under Article 25 of the Constitution, which guaranteed immunity to practices essential or integral to the religion.
“Even theocratic states have undergone reform in this area of law and, therefore, in a secular republic like India, there is no reason to deny the rights available under the Constitution. The fact that Muslim countries where Islam is the State Religion have undergone extensive reforms goes to establish that the practices in question cannot be regarded as integral to practices of Islam,” it said.
The affidavit gave a list of 10 countries with sizeable Muslim population to argue that laws on polygamy and divorce there had been codified and were regulated accordingly.
Pointing out that personal laws were meant to preserve plurality and diversity, the ministry questioned whether preservation of diverse identities could be “a pretext for denying to women the status and gender equality”.
“Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights, much less can a section of secular society be worse off than its counterparts in theocratic countries, many of which have undergone reform,” it said.
The ministry requested the court to reconsider the legal position settled by a judgment of the Bombay High Court in 1951, which had held that personal laws were absolutely immune and could not be struck down by the courts on the grounds of being inconsistent or in derogation of fundamental rights.
The ministry claimed that personal laws as well as customs and usage would come under the ambit of Article 13, which lays down that any law that impinges upon fundamental rights shall be void. The government pleaded that the practices of triple talaq and polygamy should be tested on the anvil of Article 13 after rectifying the “incorrect” precedent set by the High Court in 1951.
The affidavit said that although the 1951-judgment had upheld the validity of polygamy, it had also underscored the need for social reforms. It added that no reform had happened in the last 65 years and that women from the Muslim community remained extremely vulnerable.
“Even though it may be true that only some women are directly and actually affected by the practices of triple talaq and polygamy, the fact remains that every woman to whom the said law applies lives under the threat, fear or prospect of being subjected to these practices, which in turn impacts her status and her right to live with confidence and dignity,” it said.
“The practice of polygamy was regarded as progressive and path-breaking centuries ago but with the evolution of women and principle of gender justice, these required serious reconsideration… Even an affidavit by the Muslim Personal Law Board has referred to those practices as ‘undesirable’, which cannot be elevated to essential religious practice, much less one that forms the substratum of religion,” said the ministry, whose response will be examined by the court on October 18.
The Muslim Personal Law Board, in its reply to the petitions, had defended the validity of triple talaq saying that if the practice is discontinued, a man could murder or burn his wife alive to get rid of her.
“If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive,” the AIMPLB’s affidavit had stated. The board had also said that divorce proceedings instead of triple talaq could damage a woman’s chances of re-marriage if the husband accuses her of loose character in court.