The Supreme Court decided on Wednesday to examine if Islamic laws governing marriage and inheritance violated the fundamental rights of women and take a call on how far it can intervene to modify codes that are among India’s most politically sensitive.
The top court said the validity of controversial Islamic practices such as triple talaq, polygamy and alleged gender bias in inheritance laws will be evaluated on the touchstone of constitutional principles and precedents.
“We have to hear all of them and take a call on to what extent courts can interfere in Muslim personal laws if courts find they are in violation of the fundamental rights,” a bench headed by Chief Justice of India TS Thakur said.
The decision came after a batch of petitions filed by Muslim women said the practices were exploitative and violated fundamental rights of equality and non-discrimination guaranteed by the Constitution.
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption, custody and maintenance.
While the overhaul of Hindu law began in the 1950s and continues, activists have long argued that Muslim personal law, which has remained mostly unchanged, is tilted against women.
Succession and inheritance of property codes under the Muslim personal law are said to be loaded against women. Also, two female witnesses equal one male witness in a Muslim marriage.
In a survey conducted last year, more than 90% Muslim women rejected polygamy and triple talaq, a particularly controversial process under which Muslim men can divorce their wives by using the word talaq (divorce) thrice.
“Laws dealing with marriage and succession are not part of religion. Law has to change with time,” another bench of the top court had said in October, while referring a separate bunch of petitions on the matter to a larger bench.
But many Muslim groups have opposed the court’s move, terming judicial or political intervention as an attack on the community’s cultural identity. They are also against examining alleged gender bias in maintenance and inheritance, two issues raised unsuccessfully for decades.
The Muslim Personal Law Board has already filed an affidavit in the top court, opposing judicial intervention in religious practices.
Political parties have historically shied away from advocating reform of Muslim personal laws over fears of upsetting a religious minority that makes up a big chunk of votes in key states.
In 1985, the SC awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano, but the then Congress government framed a law to reverse the verdict after pushback from the clergy and Muslim Personal Law Board.
But over the years, more and more young, educated Muslim women have been challenging the religious laws.
In April, 35-year-old Uttarakhand resident Shayara Bano grabbed headlines when she went to the SC seeking a ban on triple talaq and polygamy. A month later, 28-year-old MBA graduate Aafreen Rehman approached the top court against the triple talaq after her husband divorced her in a letter.
“Mandatory granting of divorce through intervention of courts established under law would protect the interests of both parties,” said Bader Sayeed, a former Muslim woman legislator from Tamil Nadu and a third petitioner against the practice.