Posted in Critical Analysis

Conundrum of Modification and Application of Personal Law, Customs, and Religious Doctrines in Society

Personal Laws and Customs are integral to societal behaviour and norms. Invalidating them vide avenues of Legal Fiction often results in intruding into the lives of citizens, thereby eroding their faith in the system. Certain customs seem to be exemplary of alleged inequality; however, they are not always detrimental, especially when the said inequality may be a derivation of a religious sanction or historically accepted tradition. In this regard, would it not be appropriate to state that ‘To erode a man’s faith is perhaps a crime, even when facilitated by an institution of Justice.’

In Narasu Appa Mali v. State of Bombay[1], the Bombay High Court held that Personal Laws are not a part of Article 13, nor they are outside the ambit of Judicial Scrutiny. Justice Chandrachud in the Indian Young Lawyers Association v. The State of Kerala[2] overruled, by implication, the celebrated judgement, and presented refuting arguments on the same. The article presented herewith attempts to include additional arguments in the said matter, in addition to those stated in Narasu Appa.

Firstly, MP Jain emphasized that Personal Laws are not covered under Article 13. Courts deemed it prudent not to interfere with these laws on the touchstone of fundamental rights.[3] In the case of Krishna Singh v. Mathura Ahir[4] the Apex Court while considering the question whether a Sudra could be a Sanyasi or Yati held that Part III of the Constitution is not applicable to Personal Laws, and if the constitutional validity of such Personal Laws is to be verified, then the trail of study, research and application must be carried out with reference to all sources of the laws being considered. The same was upheld by the Hon’ble Supreme Court in the case of Madhu Kishwar & Ors v. State Of Bihar & Ors.[5] On the issue of constitutional validity, Chief Justice Khehar and Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in practice for over 1400 years, continues to be an accepted norm, and is also included in Sharia Law. They further held that Triple Talaq is not open to challenge on the grounds of violation of Fundamental Rights as it was a Personal Law.[6]

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In the case of Harvinder Kaur v. Harmendar Singh[7], the Delhi High Court was required to decide as to whether the provisions of Section 9 of the Hindu Marriage Act,1955 providing for restitution of conjugal rights is in violation of Article 14 and Article 21 of the Constitution. The court upheld the validity of the section and also held that ‘the introduction of Constitutional Law in the home is most inappropriate, and it could be a ruthless destroyer of the marriage institution and all that it stands for’. It was also held that in the privacy of the home, and in married life, neither Article 21 nor Article 14 are appropriate for application. Marriage is an integral part of every religion and hence in the case Sardar Sydena Taher Saifuddin Sahed v. State of Bombay[8] it was stated that the exception to the Freedom of Religion as provided in Article 25(2) enabling the state to frame laws for ‘social welfare and reform’ cannot permit the legislature to ‘reform’ a religion and transform its orignal existence or identity.  In this case, the Court elucidated that the intention of Article 25 (2) (b) is to cover only those laws that do not contravene the essentials of a religion, and a law which infringes such right cannot be permitted in the name of social reform because such action would place a religion out of existence. The expression ‘social reform’ doesn’t extend to the basic and essential practices of religion, which is guaranteed by Article 25(1) itself. In fact, it sanctions ‘social’ reform and not ‘religious’ reform.  It has been observed by H.M. Seervai in the case of Inayatullah v. Gobins Dayal[9] that, Hindu and Mohammedan Laws are so intimately connected with religion that they cannot readily be dissevered from it. Personal Law is intrinsic to Religion, and it should hence be the prerogative of the doctrines of religion, to decide what is a part of that particular religion.

In case of a conflict between religious practice and the need for social reform, religion must be the dominant force. [10]A similar viewpoint was observed in the Constitutional Assembly debate, where Naziruddin Ahmed pleaded that the abrogation of a Personal Law should not be treated as a regulation of secular affairs surrounding a religion or as a measure of social welfare and reform.[11]

Additionally, in the early years of British rule in India, there was a policy of non-interference in religion and laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Article xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims in all suits regarding inheritance, marriage, caste and other religious circumstances or institutions’. The Hastings Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims continued to follow their un-codified personal laws in matters such as succession of property, marriage and divorce. There was no interference from the courts in the Personal Laws of people.

It is also said that Personal Laws form the immutable element of religion. This is because there is always, even above the constitutional law or a written transnational law, an immutable unwritten higher law rooted in nature or reason which is more precious and deserves to be zealously guarded against a passing law written by a particular legislature at a given time. Religious personal laws are divine and inviolable because such laws are deemed to be an ordinance by God or the Prophets. Law cannot become a fulcrum of change, if society is unwilling to accept them.[12] Similarly, Gudrun Kramer asserts that justice can be realized by various means, as long as they do not conflict with the immutable elements of divine law.[13] Now, if it is possible to amend Sharia law, the problem remains ‘who has the right to reform these laws?’[14]This is because what constitutes essential parts of religion, is determined in respect of the doctrines of that religion itself.[15] Any institution of state should not be given unchecked authority to decide upon the essence of religious denomination and the (un)essential practices thereof.[16] It is also submitted that in the exercise of the power to regulate, authorities cannot sit in judgment over the professed views of the adherents of the religion to determine whether the practice is warranted by the religion or not. This is not considered to be their function.[17]

For instance, as stated by the court in the Shirur Mutt case, if the tenets of any religious sect of the Hindus prescribe that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be recital of sacred texts in terms of marriage, all these would be regarded as parts of religion. Under the Hindu religion, marriage as a sacramental union implies that it is a sacrosanct union; such a marriage then cannot take place without rituals and ceremonies.[18] Under the Muslim law, however, accordance of marriage is not a sacrament but a civil contract hence consent of the parties is integral to a Muslim marriage.[19] Under the Parsi[20] and the Jew[21] laws their respective religious ceremonies, ashirbad and katuba are considered to be essential to the religions. It is important that all these different observations are respectively respected and not placed in a hierarchy, thereby pitting one religious approach against another.

Thirdly, the acclaimed jurist H.M. Seervai has observed that it is not uncommon in a Constitution to make express provisions for matters to which its makers attach great importance, instead of leaving them to the dilatory and hazardous process of litigation.[22] Hence, if personal laws are not mentioned specifically in Article 13 of the Constitution one cannot presume the fact the personal laws come under the ambit of laws under Article 13.

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Fourthly, bringing Personal Laws under the wide umbrella of Judicial Scrutiny goes against Art. 29 of the Indian Constitution. Article 29 protects the interests of minorities by making a provision that any citizen/section of citizens having a distinct language, script or culture have the right to conserve the same.[23] While framing a law it has to be borne in mind that cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for a threat to the territorial integrity of the nation.[24] The Supreme Court in T.M.A Pai Foundation v. State of Karnataka and Ors.[25] reiterated that: The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India.

Therefore, a harmonious construction is very much required between Religion and Society, by delving deep again into this issue. Law would never be able to become the Fulcrum of Change, if it is not accepted by society.

[1] State of Bombay v. Narasu Appa Mali, A.I.R. 1952 Bom. 84.

[2] Indian Young Lawyers Association v. The State of Kerala 2018 SCC OnLine SC 1690.

[3] 1 MP Jain, Indian Constitutional Law 990 (5th ed. 2003).

[4] Krishna Singh v. Mathura Ahir, (1981) 4 S.C.C. 421

[5] Madhu Kishwar  v. State Of Bihar, (1996) 5 S.C.C.  125.

[6] Shayara Bano v. Union of India, A.I.R. 2017 S.C. 4609

[7] Harvinder Kaur v. Harmendar Singh, A.I.R. 1984 Del. 66.

[8] Sardar Sydena Taher Saifuddin Sahed v. State of Bombay 1962 AIR 853.

[9] Inayatullah v. Gobins Dayal, (1885) I.L.R. 7 ALL. 775.

[10] Khursheed Ahmad Khan v. State of Uttar Pradesh, A.I.R. 2015 S.C. 1429.

[11] VII Constitutional Assembly Debates, 540-41 (1948)

[12] Justice D.M. Dharmadhikari, Law: Fulcrum of Change?,(2013) 4 SCC J-44

[13] Rudolph C. Barnes, Jr., Religion, Law and Conflicting Concepts of Legitimacy (2016).

[14] Myriam Sfeir, Round Table Personal Status Laws 21 (2006).

[15] The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005; Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (1983) 4 SCC 522

[16] Mohammad Ghouse, Freedom of Religion and Judicial Review: A Critique of the Canon of Adjudication,  The Indian  Law Institute (Dec. 22, 2016), http://14.139.60.114:8080/jspui/bitstream/123456789/712/31/Freedom%20of%20Religion%20and%20Judicia l%20Review%20.pdf.

[17] Jesse Cantwell v. State of Connecticut J., 310 U.S. 296 (1940)

[18] Paras Diwan, Law of Marriage and Divorce 18 (7th ed. Universal Law Publishing)

[19] Ghulam Kubra v. M. Shaf, A.I.R. 1941 Oudh. 284.

[20] Parsi Marriage and Divorce Act, 1936 § 3 cl. b

[21] Benjamin v. Benjamin, I.L.R. 50 Bom. 359.

[22] 1 H.M. Seervai, Constitutional Law of India  (4th  ed. Universal Law Publishers 1991)

[23] Indian Const. art. 29

[24] Law commission of India Consultation Paper on reform of family law, 9 (31 Aug. 2018)

[25] T.M.A. Pai Foundation v. State of Karnataka, (1994) 2 S.C.C. 195


ABOUT THE AUTHOR

Deeksha Sharma

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Deeksha Sharma is currently a second-year student at Dr. Ram Manohar Lohiya National University, Lucknow. Her areas of interest are Constitutional Law, Arbitration Law and Criminal Law. She has written many papers, especially areas covering women and her rights. She has won “Best Memorial” (Petitioner) at M.C Chagla Memorial Moot, GLC Mumbai.

 

Posted in Constitution of India, Fundamental Rights, Islam, Muslim Law

Beginning of a new epoch for Muslim women

Recently with the verdict of the Supreme Court calling the practice of triple talaq as unconstitutional has paved a golden way towards religious reforms in the Muslim personal laws against the practices that were derogatory to a woman’s dignity. BUT this is just a beginning.  Much has to be done; though we cannot deny it is a very strong and historic beginning, one can say probably the process of reforms in Muslim personal laws has just begun and this is a very strong process and is very important because a process well begun is half done.

Triple talaq was a burning issue and a topic of discussion for the past many years. We were constantly bombarded with many debates in news channels as well as newspapers about its validity, and the injustice and the cruel practices followed causing nightmares to Muslim women. Incidents such as talaq via WhatsApp, Skype, letter, cell phones were shocking and made us wonder how technology could be used in this way as well.  As rightly being said by someone, when a new technology is invented you not only find how to use it in various ways but you also try to find how to misuse it in many ways as well.

The triple talaq controversy started when Shayara Bano approached the Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed: “…in the presence of witnesses saying that I give ‘talak, talak, talak’, hence like this I divorce from you from my wife.” It was her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 be declared unconstitutional. And arguments put forth from her side to declare it unconstitutional were:

  1. Talaq-e-biddat, pronounced is not valid as it is not a part of Shariat.
  2. This practice of triple talaq is violative of the fundamental rights guaranteed to citizens of India under article 14, 15 and 21 of Indian constitution.
  3. It was also submitted that practice of triple talaq was not sacrosanct to the tenets of Muslim religion as it has already been denounced internationally.

From the arguments put forward by the advocate of Shayara Bano one can see that not only he gave constitutional reasons for declaring the practice violative of fundamental rights but also he was able to give religious as well international viewpoint against this inhuman practice.

Now all the eyes were on supreme court that whether the court will follow its old traditional course or take a new route, which will come in the history of supreme court as a historic and landmark judgement – and Yes, this time supreme court changed its course and held that NO BODY OF LAW CAN CLAIM A HIGHER AUTHORITY THAN THE CONSTITUTION OF INDIAsurely a landmark judgement.

One more uniqueness of the case was the bench of judges that headed the case and the various statements given by them. There were five judges of five faiths Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. Judges of five faiths heading a case where Muslim personal law was in question and verdict of declaring that practice as unconstitutional just shows how secular, impartial and beautifully extraordinary our Indian judiciary is, and Nemo est supra leges (NO ONE IS ABOVE LAW); not even religion.

If we look at the statements of various judges of the bench it clearly shows there was unity in disregarding the 1400-year-old talaq practice. Out of the five judges, three were totally in agreement to declare it unconstitutional like Justice Kurien Joseph said: “What is held bad in the Holy Quran cannot be good in Shariat, and in that sense, what is bad in theology is bad in law as well.” “There cannot be any Constitutional protection to such a practice” whereas former Chief Justice JS Khehar and Justice Abdul Nazeer deferred and said while triple talaq “may be sinful”, the court can’t interfere in personal laws, which have the status of fundamental right under the constitution. They were of the view that parliament should bring a law to end the practice.

Regarding the government’s view in the judgement, the government as well as opposition party has appreciated the verdict of the apex court and have agreed to the fact that legislature will bring a law to end the practice.

There is a great significance of this judgement for Muslim women and a great victory for them.  They have won the first and most important battle as triple talaq was a nightmare for Muslim women, and by declaring triple talaq as unconstitutional, the court has put a saddle on an unruly horse. The judgement of the Supreme Court has clothed her with dignity and strength.

KUDOS to women like Shayra Bano and others who have the courage and strength to come forward, and raise their voice against injustice, and were determined to get justice. It is truly said that there is no force more powerful than a woman’s determination to rise. For several decades she was suppressed, tortured in the hot water of patriarchal arbitrariness, but nobody knew she is like a tea bag; you can’t tell how strong she is until you put her in hot water and finally she fought back.

Now, what is to be seen is how far this fight goes? What is the next step? Is Uniform civil code the next step? All these questions remain unanswered. Nevertheless, until that time, let us just celebrate this first victory.

Talaq, Talaq, and Talaq is NO, NO, AND NO.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Posted in Civil Law, Constitution of India

UNIFORM CIVIL CODE- Is the time still not ripe?

Art 44 lays down a very significant directive principle of state policy- “State shall endeavour to secure for its citizens a uniform civil code throughout the territory of India”. However, although directive principles are guiding stars of our constitution, they are not enforceable in court.

Citizens of India are governed by a variety of personal laws in matters of marriage, divorce, succession etc. Now, the question that arises is ‘Why can’t Indians stand on an equal footing in civil matters like marriage, divorce etc even after 68 years of independence? It is absolutely absurd to find that polygamy (the practice of a man to have more than one wife at a time) is legal amongst Muslims but an offence amongst other religious communities.

Uniform civil code is the only way to ensure that everyone has progressive standards of law to abide by equality in standards of justice. It is necessary to have a common code of law wherein all the traditions are harmonised in consonance with the modern times and applied uniformly to each and every Indian.

Judiciary has time and again given a clear indication to the legislature that uniform civil code is the need of the hour. There are several case laws to consolidate and support this argument.

In Jordan Diengheh v S.S. Chopra case the issue of different divorce laws under different religions was addressed and analysed. A Christian lady has married a Sikh man under Christian Marriage Act 1872. A few years later she had filed a petition for declaration of nullity of marriage and judicial separation under Indian Divorce Act.

However, a single bench of HC rejected this prayer of nullity of marriage and granted judicial separation. The division bench affirmed this decision on appeal. On special leave to appeal SC analysed that divorce laws under all the personal laws are far from uniform. The differences among the couple were irreconcilable but due to lack of required provisions for grant of divorce in Indian Divorce Act, the couple had no choice but to continue the meaningless marriage. The court once again observed this as a case that focused on the compulsive need of UCC. There was a need to consider mutual consent as a ground of divorce in all divorce acts in order to provide for a way out to such unhappy couples. Mutual consent was inserted as a ground of divorce in Indian Divorce Act in 2001.

Whenever UCC is discussed the case that remains is the Shah Bano case. The Supreme Court had and very rightly given the decision that Shah Bano was entitled to maintenance under Section 125 of CrPc. But subject to the growing protests from the Muslim community this decision had to be struck down.

However, the depressing part is that the debate on UCC has got trapped in politics. Instead of reaching out to a consensus, it has become a blame game played by different political parties.

As observed by Supreme court in Sarla Mudgal’s case, the implementation of Uniform Civil Code is imperative for the protection of the oppressed and the helpless women, who are suffering only and only in the name of religion. There is no logical connection between religion and personal law in a civilised society.  Years after the Shah Bano case, the case that came to the picture was the Shayara Banu case. In 2015, she was divorced by her husband who gave her triple talaq for no such justifiable reasons. She was tortured relentlessly and in her entire married life tolerated this torture just due to the fear of being “triple talaqued” by her husband. But at last her fears came true.

In 1954, when the then Prime Minister, Jawaharlal  Nehru was asked as to why UCC hasn’t been implemented yet, he replied that the time is not ripe to make it come to force. It is rather interesting to note that today even after 68 years of independence the time does not seem to be ripe. How long are we going to wait for such numerous Shah Banos or Shayra Banus or Sarla Mudgars to suffer????

Therefore, the time has arrived that we adopt one nation one statute policy. If the same law of contract or torts applies to a Hindu or Muslim, why not the same law of marriage?

Hence top here with this I stop my pen just with the hope that we all rise above politics and lead India towards a better nation.



ABOUT THE AUTHOR

Krupa Thakkar

KRUPA THAKKAR

Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.

Posted in Family Law, Marriage and family

Delhi High Court playing with “Irretrievable Breakdown of Marriage”

Is “irretrievable breakdown” of marriage is ground for dissolution of marriage by divorce, under Hindu Marriage Act, 1955? The answer to this question clearly is that no such express provision has been incorporated by the Parliament in Hindu Marriage Act, 1955 (HMA). Then why did the Delhi High Court by its Judgement dated 21st October 2016, in the case of Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)], agree to grant divorce on the ground of “irretrievable breakdown” of marriage?

Precisely a month before the above-mentioned judgement, the Delhi High Court in the judgment dated 21st September 2016, in case of Mini Appa Kanda Swami v. M. Indra [(2016) 234 DLT 243 (DB)], came up with decision that the High Court lacks the jurisdiction to grant divorce on the doctrine of “irretrievable breakdown”.

Why did the Delhi High Court reverse its stance on granting divorce on the basis of the “Doctrine of Irretrievable Breakdown”? Is it following the principles of stare decisis? Many more question arises after the Sandhya Kumari v. Manish Kumar case.

The rationale given by Delhi High Court, in the said judgment[1], was that, by virtue of Madhvi RameshDudani v. Ramesh K. Dudani [2006 (2) Mh.L.J. 307], Shrikumar V. Unnithan v. Manju K. Nair, [2007 (4) KHC 807],  V. Bhagat v. D. Bhagat [(1994) 1 SCC 337], andNavinKohli v. NeeluKohli [(2006) 4 SCC 558], “the concept of cruelty has been blended by the courts with irretrievable breakdown of marriage.”Hence, directly or indirectly, Delhi High court has read doctrine of irretrievable breakdown under ‘cruelty’, which is a ground for granting divorce.

Now coming to Madhvi RameshDudanicase, divorce was granted on the ground of cruelty, and it was only an observation of the Bombay High Court that marriage has been irretrievably broken. There was no observation regarding the blending of the same.

Moving on to another case of  V. Bhagat v. D. Bhagat, theApex Court has said that, HMA does not permit dissolution of marriage on doctrine of “irretrievable breakdown”, and cautioned to keep that in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a).

The Apex court gave a clarification that “Irretrievable breakdown of the marriage is not a ground by itself … The unusual step as the one taken by us herein can be resorted to only to clear up an insoluble mess, when the court finds it in the interest of both the parties.”Therefore, this case did not suggest any blending of cruelty with irretrievable breakdown of marriage.On the other hand, it granted divorce on that ground of mental cruelty.

Now here the word”court” can be widely interpreted to include “HighCourt” or any other court, but moving along the line with Anil Kumar Jain v. Maya Jain [(2009) 10 SCC 415], where the Apex court has held that only the Supreme Court can invoke“its extraordinary powers under Article 142 of the Constitution of India in order to do complete justice to the parties when faced with a situation where the marriage ties had completely broken and there was no possibility whatsoever of the spouses coming together again.”

It further indicated that, the High Courts, which do not possess the powers vested in the Supreme Court under Article 142 of the Constitution cannot grant divorce despite the fact that the marriage has irretrievably broken down.

Another decision which was mentioned in Sandhya Kumari case, was NavinKohli v. NeeluKohli case. In which the Apex Court discussed major cases where, either the divorce was granted under Section 13B of HMA, stating “irretrievable breakdown” of marriage; or, under Article 142, when divorce was prayed under Section 13.  Mostly, the alleged grounds for divorcee were adultery, desertion, or cruelty. Navin Kohli casewas alsosolved by granting divorce on ground of cruelty and not by invoking the doctrine of “irretrievable breakdown”.

Coming back to the Sandhya Kumaricase, in which the breakdown theory (Doctrine of “irretrievable breakdown”) and fault theory (mental cruelty) regarding divorce has been blended by the Delhi High Court, while foundation of thetwo, lies on two different kinds of bed rocks.

This judgement[2] has violated the precedent laid down by Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma [(2009) 6 SCC 379], by indirectly reading “irretrievable breakdown” of marriage as ground for divorce. In Vishnu Dutt Sharma Case it washeld that Supreme Court cannot add “irretrievable breakdown” of marriage as ground for divorce under section 13, as that would amount to amending the act, which is thefunction of legislature.

Delhi High Court in Sandhya Kumari Casehas either, acted arbitrarily or, opened a new road  of hope for people who would like to seek divorce easily, by reading “irretrievable breakdown” in cruelty. This decision can be appraised for judicial activism, as much as, it can becriticized, for not following the principle of Stare Decisis.

[1] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]

[2] Sandhya Kumari v. Manish Kumar [(2016) 234 DLT 381 (DB)]\



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

Posted in Constitution of India, Constitutional Law

Breaking the Barriers of Religion Imposed over Women in India

Recently, the High Court of Bombay has pronounced a judgement on the Public Interest Litigation filed by Dr Noorjehan Safia Niaz and Zakia Soman (co-founders of Bhartiya Muslim Mahila Andolan) over the issue of restriction on entry of the woman inside sanctum sanctorum of Haji Ali Dargah. The court in its judgement has held that such a restriction is contrary to the Fundamental Rights enshrined in the constitution and “it is also the duty of the State to ensure the safety and security of the women at such places. The State is equally under an obligation to ensure that the fundamental rights are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women.”[1]

Judiciary has played an important role in India in securing rights of the people. The very judgement of the High Court of Bombay in the Haji Ali Dargah case has paved a way for breaking barriers imposed on the religious freedoms of women in India. The judgement provides the solution to the issue of entry of women in Haji Ali Dargah but also it has touched upon the aspects of religious freedom of women and gender equality.

Article 15 of the Constitution of India states that;

“No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to:
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.”[2]

 

Article 25 (1) of the Constitution of India provides for Freedom of Conscience and Free Profession, Practice and Propagation of Religion which states that;

“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”[3] 

 

Even after decades of independence, women of India are still struggling for gender equality and religious equality. The constitution makers while framing the constitution have guaranteed certain rights which are prescribed to all the citizens of India irrespective of their gender, but we can observe that there are many prejudices over the treatment of male and female in the Indian society. Indian society is patriarchal in nature, therefore the restrictions imposed on the freedoms of women can be observed in the society.

Lately, we can observe that there are many incidences where women are actually raising voice against the illogical and unjustifiable restrictions imposed over them from decades. We can actually observe a shift in the society where women in India were confined to household chores, now women in India are educated, independent and are at par with men in all the fields. Now, since due to this shift the religious barriers imposed upon women are questioned on the ground of human rights, constitutional rights, law and morality.

In order to have development in the society and in order to progress it is important that every individual must be guaranteed with inalienable rights as a human being, which are to be respected and upheld by each individual and each authority. The citizens of a nation, irrespective of it being a male or a female has a right to live and to have religious freedom as basic human rights.

The precedent set forth by the Bombay High Court has paved a way for liberation of woman from the dreadlocks of superstition and religious barriers in India. Therefore, now we may hope to observe development of gender equality and religious freedoms in India.

[1]SonamSaigal, “Woman can enter Haji Ali sanctum, rules HC”, 27th August 2016, The Hindu Newspaper.

(Available at:http://www.thehindu.com/news/cities/mumbai/bombay-high-court-verdict-on-women-entering-haji-ali-dargah/article9035710.ece), Last accessed on:9th Sept 2016.

[2]Article 15, Constitution of India.

[3]Article 25, Constitution of India.

 

 

AUTHOR

Pooja Ogale

Posted in Constitution of India, Fundamental Rights, Personal Laws

Constitutional Scrutiny of Personal Laws

Constitution is the incomparable and central law of our nation is not only an archive constituting and constraining the Government, however, an epitome of the qualities and ethics of a democratic nation. It promises extraordinary security for the religious and social minorities present in the nation. Be that as it may, inside each of these groups there exist unfair practices that quandary individuals from that group. For instance, women and individuals from a lower caste are denied from entering certain Hindu sanctuaries. In addition Muslim men appreciate the privilege to divorce their wife by the method for “triple talak”, i.e. by only expressing “talak” thrice whereas Muslim women has no such right to confer. Muslim Personal law provides that Muslim men can have up to four spouses (however, they are committed to treating everyone of their wives similarly), though there is embargo restricting the number of husbands Muslim women should have.

At the point when there are two provisions, which are in apparent conflict with each other, they ought to be deciphered such that impact can be given to both and that construction which renders both of them out of inoperative and futile ought not to be received aside from in the final resort.

The subject of justiciability of Personal laws has drawn significant contemporary consideration in the light of Ms Shabnam Hashmi’s PIL thought of the Supreme Court testing the foreswearing of the right to legacy to inheritance to a child adopted by a Muslim guardian. The bench, held that Muslim Personal law is uncodified law and has neither limited the Muslim not to embrace a deserted, surrendered child nor forced to adopt one.

In the recent case, Dr Noorjehan Safia Niaz v. Condition of Maharashtra, the Bombay High Court lifts the prohibition on the Muslim women to enter the Haji Ali Daragh. A division bench of Justices V M Kanade and Revati Mohite Dere held that the prohibition was violative of the Fundamental Rights of the Petitioners as provided under Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion : Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion).

There is nothing in any of the verses in Quran which demonstrate that entry into a dargah/mosque, is prohibited. It cannot be said that the preclusion is a crucial and vital piece of Islam and essential to take after the religious belief, and taking without end that part of the practice would bring about a basic change in the character of that religion or its belief. The Haji Ali Dargah Trust is a public beneficent trust, open for all individuals everywhere throughout the world. Thus, cannot legitimise its choice exclusively taking into account a misreading of Article 26 (Freedom to manage religious affairs). The trust is dependably at liberty to find a way to counteract lewd behaviour against the women, not by banning their entrance in the sanctum sanctorum, however by making successful strides and arrangements for their well-being and security, as by having separate queues for men and ladies, as was done prior. Advocate Shoaib Memon, presented the case on the behalf of respondent, contended that Islam demoralises free blending amongst men and ladies and that the aim of the confinement is to keep this collaboration at an unobtrusive level which can also taken care of without the discriminatory provision of the Charitable Trust.

Article 13 of the Indian Constitution- Judicial Review says that any “law” that abuses a basic right (ensured by Part III of the Constitution) is void. This provision applies to both pre-Constitutional and post-Constitutional. The expression “law” “incorporates any statute, request, bye-law, principle, direction, warning, custom or notification having in the domain of India the power of law”. The fundamental reason of the contention consequently was that Muslim Personal law was void as it disregarded the privilege to uniformity. The Bombay High Court dismisses the prohibition in light of the fact that Muslim Personal laws void as it disregarded the privilege to uniformity. The forefathers of the Constitution had intended to get rid of the biased Personal laws straightaway. The presence of Article 44 infers that the drafters put upon the Parliament the onus of destroying such prejudicial religious practices by instituting a Uniform Civil Code.

 

AUTHOR

YashKriti Ratan