This article has been written by Plash Mittal. Plash is a student of BCom LLB at University Institute of Legal Studies, Panjab University, Chandigarh.
Validity of practices like triple talaq and polygamy needs to be seen in the light of gender justice. They go against the principle of gender equality and are unfair, unreasonable and discriminatory. Taking a firm stand against the controversial Muslim custom of triple talaq and polygamy officially for the first time, the Centre has told the Supreme Court through an affidavit that the practices need to be abolished.
A large number of Muslim countries like Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Sri Lanka, and Iran, where Islam is the state religion have undertaken reforms in this area and have regulated divorce law and polygamy. Why should India, a secular country, continue to deny Muslim women their rights under the Constitution? The fact that Muslim countries have undergone extensive reform and that the practices are not integral to the practice of Islam or essential religious practices. Under Muslim personal law based on the Sharia, a Muslim man can divorce his wife by pronouncing talaq thrice either consecutively or at three different stages in the presence of an elder male (Talaak-e-Bidat). Muslim men are also allowed to have four wives (polygamy).
The affidavit, drafted by advocate Madhavi Divan, recognized the essential role played by women in a country’s overall development and said it would not only be unconstitutional but a severe impediment in a nation’s development if women were denied equal rights in every sphere of life, including matrimony. It says:
- 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.
- The fact that Muslim countries where Islam is the state religion have undergone extensive reform goes to establish that the practices in question cannot be regarded as integral to the practice of Islam or essential religious practices.
- Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights; much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reform.
- Gender equality and dignity of woman are non-negotiable, overarching constitutional values and can brook no compromise. These rights are necessary in letter and in spirit to realize aspirations.
These rights are necessary not only to realize the aspirations of every woman but also for the larger well-being of society and the progress of the nation, one-half of which is made up by women. Any practice (triple talaq and polygamy) which denudes the status of a citizen of India merely by virtue of the religion, she happens to profess is an impediment to that larger goal.
The Centre said triple talaq, nikah halala and polygamy could not be regarded as essential or integral part of religion and would not be included under the ambit of Article 25 of the Constitution which guarantees a citizen the right to practice and profess a religion of his/her choice. It picked on the affidavit filed by All India Muslim Personal Law Board, which had defended the practice as part of religion-sanctioned custom even while terming them as undesirable.
Gender equality and dignity of women are non-negotiable overarching constitutional values. One section of women in society could never be worse off than the other. The Modi government took a veiled dig at its predecessors for not moving to reform Muslim personal law. The same has not happened for over six-and-a half decades and women who comprise a very sizeable proportion of the said community remain extremely vulnerable, both socially as well as financially. There is no legal bar against abolishing polygamy and triple talaq, given the march of time and the need for social reform. The Centre feared that such a practice would impact her confidence and dignity.
The All India Muslim Personal Law Board (AIMPLB) strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq, saying that as men, they were better at controlling their emotions, unlike women. The Board has also said that polygamy prevents illicit sex and protects women.
It said “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of men folk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”. The government said Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths.
Behind the preservation of personal was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens.