The legislature alone should decide on the validity of Muslim personal laws and the judiciary should keep out of it. This is All India Muslim Personal law Board (AIMPlB)’s stand before the Supreme Court on Friday on issues like triple talaq, polygamy, maintenance under Sharia law.
Responding to petitions by Muslim women and a suo moto petition initiated by the apex court, the Board said, “The issue of Muslim Personal laws is a cultural issue which is inextricably interwoven with religion of Islam…practices in each religion are peculiar to only that religion and these practices have been cloaked with the protection under Articles 25, 26 and 29 (relating to freedom to practice and propagate religion).”
Referring to the Muslim Women (Protection of Rights on Divorce) Act 1986 which provides for rights in matters of divorce and maintenance, the affidavit went on to state, “In view of such clear provisions, if this court frames fresh provisions, it will amount to judicial legislation and will be violative of the doctrine of separation of powers.”
The Muslim women petitioners contended that the Sharia law gave freedom to men to annul their marriage by pronouncing ‘talaq’ three times and the wife’s consent is immaterial. The Board said that it is ‘sin’ under Islam to pronounce divorce until there exists compelling grounds where both husband and wife are unable to fulfil their marital obligations.
However, the unilateral right given to men in this regard was explained interestingly by the Board. The affidavit said, “Sharia grants the right to divorce to husband because men have greater power of decision making. They are more likely to control emotions and not to take a hasty decision.”
It explained that talaq is not that bad if one was to understand its advantage compared to a divorce decree given by a court of law. The affidavit, filed by advocate Ejaz Maqbool and settled by two senior advocates, said, “Apart from being more economical, a divorce within the parameters of Muslim personal law does not only guarantee speedy relief but also secures privacy of the parties which is often lost in judicial hearing before courts. This is one of the primary reasons why Muslims prefer to resort to their own personal law in matters of marriage and divorce.”
On the other contentious issue of polygamy, the Board said, “If polygamy is not permitted, women will be forced into leading a spinster’s life. Polygamy is not for gratifying men’s lust; it is a social need.” Pointing to court’s recent interventions in extending rights of maintenance, residence to women in a live-in relationship outside marriage, the affidavit failed to understand why polygamy was bad in eyes of law. “It is rather strange that a law that recognises live-in relationship worthy of protection should frown upon a relationship which is formalised by the sanctity of marriage as immoral.”