Scrutiny of triple talaq is judicial legislation: Muslim Board to SC

New Delhi: A prominent Muslim body on Tuesday vehemently opposed the scrutiny of the practice of triple talaq, 'nikah halala' and polygamy by the Supreme Court, saying it would amount to "judicial legislation" and personal laws cannot be challenged on the ground that they violate fundamental rights.

All India Muslim Personal Law Board (AIMPLB), in a fresh affidavit, rubbished the stand taken by the Narendra Modi government that the apex court should re-look these practices as they are violative of fundamental right like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.

Stoutly defending the prevalent practice in the community, AIMPLB Secretary Mohammed Fazlurrahim said "if this court proceeds to examine questions of Muslim personal laws and lays down special rules for Muslim women in matters concerning marriage, divorce and maintenance, it would amount to judicial legislation and will be violative of doctrine of separation of powers."

AIMPLB has listed out grounds for its opposition to the judicial scrutiny of the practices. The questions raised in the petition are matters of "legislative policy" and, moreover, personal laws cannot be challenged as being violative of fundamental rights like right to equality under the Constitution, the affidavit said.

It also said the personal laws of Muslims cannot be "re-written in the name of social reform" and these practices are protected under Article 25, 26 and 29 (freedom to practice religion) of the Constitution.

Opposing the Law Commission's fresh endeavour on Uniform Civil Code, the body said it pertained to the Directive Principles of State Policy of the Constitution and hence "not enforceable".

Highlighting importance of religious scriptures, AIMPLB said the courts "cannot supplant its own interpretations over the text of scriptures" in a situation where "unique importance" has been attached to such texts.

Government, for the first time, has opposed the practice and said, "the issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality."

AIMPLB referred to a 2002 judgement in which the apex court had dealt with the issue of talaq and placed "explicit measures to check" the practice by laying down the test of "reasonable cause" and "prior reconciliation".

Opposing the reopening of the issues, the 69-page affidavit said there were adequate remedies available to Muslim women under the Code of Criminal Procedure, the Protection of Women from Domestic Violence Act and the Muslim Women (Protection of rights on Divorce) Act.

It maintained that Muslim personal law provided for the practices to be followed on the issues of "marriage, divorce and maintenance" and were based on "holy scriptures - Al Quran and sources based on Al Quran".

It elaborated on the aspect that personal laws cannot be challenged on the ground that they are violative of fundamental rights under the Constitution.

"Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts.”

"The Mohammedan Law is founded essentially on the Holy Quran and sources based on the Holy Quran and thus it cannot fall within the purview of the expression 'laws in force' as mentioned in Article 13 of the Constitution of India, and hence its validity cannot be tested on a challenge based on Part III (which deals with fundamental rights) of the Constitution," the affidavit said.

Personal laws cannot be re-written in the name of social reform, it said, adding, "The institution of marriage is differently looked upon by different religions, and consequently the issues of marriage, divorce and maintenance are dealt with in different manners by different religions.

"While one community might be prepared to accept and work social reform, another community may not be prepared for it."

"In any event, even while bringing in such a social reform, it is not permissible to change the entire practice or acts done in pursuance of such religion," it said.

"It is submitted that the issue of Muslim Personal Law is a cultural issue which is inextricably interwoven with religion of Islam. Thus, it is the issue of freedom of conscience and free profession, practice and propagation of religion guaranteed under Article 25 and 26 read with Article 29 of the Constitution," the affidavit said.

The Muslim body supported the practice of granting right to divorce to husbands and said "all jurists unanimously agree that husband has the right to divorce. No jurist in Islamic history ever held a view to the contrary".

"Shariah grants the right to divorce to husband because men have greater power of decision making. They are more likely to control emotions and not take a hasty decision," it claimed.

Supporting the practice of triple talaq, AIMPLB said that entrusting the responsibility of divorce entirely to court would increase the burden on judiciary.

It further listed out certain disadvantages like delay in grant of divorce through judicial means. "Granting husband the right to divorce indirectly provides security to wife. Marriage is a contract in which both the parties are not physically equal. Male is stronger and female weaker sex. Man is not dependent upon woman for his protection. On the contrary, she needs him for her defence.”

"If there develops serious discord between the couple and husband does not at all want to live with her, legal compulsions of time consuming separation proceedings and expenses may deter him from taking the legal course....," the affidavit said.

The AIMPLB also said that the court should not thrust its views while dealing with religious questions. "Constitutional scheme clearly provides that judiciary which is one of the important organs of the State shall not lay down religion for any religious denomination or section thereof and whenever the Court is confronted with any religious issues, it will look to the religious books of a particular denomination held sacred by it.”

"In other words, there is no scope for the Court to import its own views while dealing with religious questions or scriptures or beliefs of any religious denomination," it said.

It also said the sources of Muslim Personal law have been "approved and endorsed by Holy Quran and the practices of marriage, divorce and maintenance are based on such sources all of which flow from the Holy Quran itself".

AIMPLB said though several leading Islamic jurists have opined that pronouncement of triple talaq in one go is "undesirable and irregular", they have unanimously agreed that the effect of this is that it "effectively terminates the marriage".

"In addition to the above, it is pertinent to point out that it is a misconception that Triple Talaq is always a result of haste and is a power which is freely misused by a Muslim male.”

"In fact, over the years, the practice in the community is such that usually the families of the spouses intervene in case of any marital discord and only when all attempts of reconciliation fail and when the spouses want instant dissolution, does the male resort to usage of Triple Talaq," it said.

Dealing with the practice of polygamy, it submitted that the Quran, Hadith and the consensus view allow Muslim men to have up to four wives. "Though polygamy is permitted, it is not obligatory or desirable, rather, jurists regard monogamy as a better practice in usual conditions. However, Polygamy meets social and moral needs and the provision for it stems from concern and sympathy for women," it said.

Prior to this, the Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.

The apex court had also taken suo motu cognisance of the question whether Muslim women faced gender discrimination in cases of divorce or due to other marriages of their husbands and a bench headed by Chief Justice of India T S Thakur is examining the issue.

Subsequently, various other petitions including one by triple talaq victim Shayara Bano were filed challenging the age-old practice of 'triple talaq' among the Muslim community.