Satya Prakash

Tribune News Service

New Delhi, April 10

A month before the constitution bench hearing on petitions challenging triple talaq, polygamy and nikah halala, the Centre on Monday requested the Supreme Court to declare these practices unconstitutional as they violated Muslim women’s fundamental right to live with dignity – a right available to women of other religions in India.

In its written submission placed before the top court, the NDA government said neither triple talaq nor polygamy practised in the Muslim community in India was sanctioned by Islam.

A five-judge constitution bench is to take up petitions filed by Muslim women and organisations against these discriminatory practices from May 11 during the ensuing summer vacation.

The top court – which is hearing a batch of petitions challenging triple talaq, polygamy and nikah halala – has already made it clear that it would not look into the Uniform Civil Code which is currently being examined by the Law Commission of India.

There are separate sets of personal laws in India for each religion governing marriage, divorce, succession, adoption and maintenance. Hindu law has substantially changed since the 1950s; activists complain that Muslim law has hardly been reformed.

The Centre said the constitutional protection of right to religion guaranteed under Article 25 was not absolute as these practices violated right to equality and right to life and liberty guaranteed under Article 14 and Article 21.

Gender equality, gender equity and gender justice are values intrinsically entwined in the guarantee of equality under Article 14 as such equality of all women in the country was something which was “non-negotiable”.

“Practices of triple talaq, nikah halala and polygamy cannot be regarded as part of any ‘essential religious practice’ and would not therefore automatically be entitled to protection under Article 25,” the Centre said.

It said: “Practices such as polygamy cannot be described as being sanctioned by religion inasmuch as historically, polygamy prevailed across communities for several centuries, including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians. It had less to do with religion and more to do with social norms at the time.”

The Centre’s submissions are in sharp contrast to those of All India Muslim Personal Law Board (AIMPLB) which has sought to defend the practices of triple talaq, polygamy and nikah halala, saying the Supreme Court cannot consider the constitutional validity of the principles of Muslim Personal law.

In an affidavit filed in the top court, AIMPLB had on March 27 said these issues were matters to be dealt with by the legislature.

On Triple Talaq, it said: “Once three pronouncements of divorce are made, the marriage dissolves and the woman becomes unlawful or haram to the man who had pronounced divorce.”

Defending polygamy, AIMPLB said: “Polygamy meets social and moral needs and the provision for it stems from concern for women. The policy of Islam is to discourage polygamy but not to prohibit it. Islam encourages monogamy but does not make it mandatory.”

Triple talaq or Talaq-e-biddat refers to pronouncing the word talaq thrice in one sitting while 'nikah halala' permits a man to remarry the woman he divorced only after she has married someone else; the marriage has been consummated with that man and then she has been divorced or widowed.

Polygamy allows a Muslim man to take four wives.

Many Muslim women and Muslim groups have challenged these practices on the ground that these violated their fundamental right to equality, right to non-discrimination and right to live with human dignity.

The NDA government had earlier requested the court to decide whether personal law is “law” within the meaning of Article 13(3) of the Constitution that defines “law”.

Article 13(2) restrains the State from making any law that takes away or abridges fundamental rights of citizens. If personal law were to be declared “law” within the meaning of Article 13(3), then courts can examine it and declare it or any portion of it unconstitutional for violation of fundamental rights of citizens (read Muslim women).

The Centre wanted the court to consider if the practices of triple talaq, nikah halala and polygamy among Muslims were compatible with India’s obligation under international treaties and covenants it was signatory to.