The quest of Muslim women for equality has got the backing of the Centr, which told the Supreme Court on Friday that practices such as triple talaq, polygamy and Nikah Halala must end, as they deny women the right to be equal citizens in this country and violate their right under the Constitution to live with dignity.
Maintaining that such practices have no room in a progressive society and a secular democracy like India, the Centre cited instances of Muslim countries, including theocratic states, where polygamy is forbidden. Some progressive Muslim countries have even granted women the right to divorce without the husband’s consent, it said.
The stand of the Centre came on an affidavit filed by the Union law Ministry in Supreme Court in response to a suo motu petition where the court had sought to know whether subjecting Muslim women to talaq and polygamy against their consent, amounted to discrimination and gender inequality. later, petitions were filed by some Muslim women who openly demanded an end to such retrograde practices, having been victims to such discriminatory practices themselves.
lending voice to these petitioners, the Centre in its affidavit said, “For over six-and-a-half decades, (Muslim) women who comprise a sizable proportion of the said (Muslim) community remain extremely vulnerable, both socially and financially. Even though it may be true that only some women are directly and actually affected by these practices being divorced by Talaq-e-Bidat (instantaneous, verbal divorce) or being in a polygamous marriage, the fact remains that every woman to whom the said law applies, lives under the threat, fear or prospect of being subject to these practices, which in turn impacts her status and her right to a life with confidence and dignity.”
The Centre even busted the popular notion given by Muslim clerics led by the All-India Muslim Personal law Board in the court that such practices formed an essential part of Muslim religion and hence enjoy the protection of Article 25 of the Constitution. The Centre said, “Practices of triple talaq, Nikah Halala, and polygamy cannot be regarded as an essential or integral part of religion and would not therefore automatically be entitled to protection under Article 25.”
It gave the example of Turkey and Tunisia where polygamy is forbidden. The former even makes this practice a criminal offence with two years’ jail. As regards divorce laws, majority Muslim countries accept that a Muslim man cannot divorce his wife without first obtaining permission from a religious court or Arbitration Council and express consent of the wife from whom he seeks divorce.
Egypt and Iran give women equal right as men to seek divorce. Egypt even permits a woman to divorce her husband without his consent.
Even with regard to the Constitutional protection enjoyed by Muslim personal laws, the affidavit said, “The underlying idea behind the preservation of personal laws was the preservation of plurality and diversity among the people of India. The question arises where the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to under the Constitution as citizens of India.”
However, the Centre stated that it should not be seen as batting for a Uniform Civil Code as it is not relevant in the present context which concerns the issue of gender justice and non-discrimination on grounds of dignity and equality enjoyed by each Indian citizen, the affidavit said.