The Supreme Court has decided to examine Islamic personal law to consider doing away with provisions biased against Muslim women, often victims of polygamy and the triple talaq system, a controversial move that may upset a section of the community that has resisted reform.
A bench of justices AR Dave and AK Goel requested Chief Justice of India HL Dattu to constitute an appropriate bench and address the issue to bring about gender equality in Muslim personal law in line with the Constitution that prohibits discrimination on the basis of sex.
“There is no safeguard against arbitrary divorce and second marriage by her (a Muslim woman’s) husband during currency of the first marriage, resulting in a denial of dignity and security to her,” the bench said.
“Laws dealing with marriage and succession are not part of religion. Law has to change with time,” they added, citing an earlier judgment.
The judges analysed several SC judgments on gender discrimination in Muslim law and issued notices to the attorney general and the National Legal Services Authority, asking them to respond by November 23.
India has separate personal laws for each religion that govern marriage, succession, adoption and maintenance. Hindu family laws were modified in the 1950s but activists have long argued Muslim personal law, which has remained mostly unchanged, is tilted against women. It allows polygamy and the use of the triple talaq system.
Women are discriminated against in succession and inheritance of property. Also, two female witnesses equal one male witness in a Muslim marriage. In a survey conducted earlier this year, over 90% of Muslim women rejected triple talaq and polygamy.
“The practice of polygamy is injurious to public morals and can be superseded by the State just as practice of sati,” the bench said, quoting from a 2003 verdict.
Noted Islamic scholar and former chairman of the National Commission for Minorities Tahir Mahmood supported the SC’s move.
“There is a misconception that Muslim personal law is covered by the right to religious freedom under the Constitution. Personal laws are within the legislative competence of the state. There is no doubt in practice Muslim women are discriminated against. The legislature has done nothing to end it. The SC must take cognizance of such discrimination and do something for them,” Mahmood said.
The order comes days after another SC bench asked the Centre to quickly decide on a uniform civil code to end confusion over personal community laws. The bench noted though the issue came up before the SC in the past, the court refrained because “a climate was required to be built for a uniform civil code”.
The court said the matter needed consideration because it was related not just to policy but also fundamental rights of women to equality, non-discrimination, life and liberty.
In 1985, the Supreme Court awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano, but the then Congress government reversed the verdict after pushback from the clergy and Muslim Personal Law Board.
The court said the Muslim Women (Protection of Rights on Divorce) Act, 1986 that was passed during the Rajiv Gandhi government needed to be examined by a Constitution Bench. India’s criminal procedure code guarantees maintenance to divorced women throughout their lifetime unless they remarry.