SC asks govt to file re­port on per­sonal laws

Apex court’s di­rec­tion to Cen­tre comes on a plea chal­leng­ing Mus­lim prac­tices like polygamy and ‘ triple talaq’

The Financial Express - - POLITICS -

New Delhi, March 28: A plea chal­leng­ing Mus­lim prac­tices like polygamy and ‘triple talaq’ has come up be­fore the Supreme Court, which on Mon­day asked the gov­ern­ment to file the re­port of a com­mit­tee, set up dur­ing the UPA rule to as­sess the per­sonal laws re­lated to mar­riage, di­vorce, cus­tody, in­her­i­tance and suc­ces­sion.

A bench, com­pris­ing Chief Jus­tice T S Thakur and Jus­tice U U Lalit asked Ad­di­tional So­lic­i­tor General Tushar Me­hta, ap­pear­ing for the Cen­tre, to file within six weeks the panel's re­port which was given to the Min­istry of Women and Child Devel­op­ment last year.

The bench, which has also taken suo motu cog­ni­sance of is­sues re­lat­ing to the quest for equal­ity of Mus­lim women, asked the gov­ern­ment to re­ply to the plea of one Sha­yara Bano, chal­leng­ing the con­sti­tu­tion­al­ity of Mus­lim prac­tices of polygamy, triple talaq (talaq-e-bidat) and nikah ha­lala.

The court also al­lowed All In­dia Mus­lim Per­sonal Law Board to be­come a party in the two mat­ters on per­sonal law.

Dur­ing the brief hear­ing, se­nior ad­vo­cate Amit Singh Chadha and lawyer Balaji Srini­vasan, coun­sel for Bano, said a high-level com­mit­tee was set up by the gov­ern­ment to as­sess the func­tion­ing of Mus­lim per­sonal laws.

The re­port, sub­mit­ted in 2015 to the Min­istry, was ti­tled “Women and the law: An as­sess­ment of fam­ily laws with fo­cus on laws re­lat­ing to mar­riage, di­vorce, cus­tody, in­her- itance and suc­ces­sion”, they said.

The panel had rec­om­mended a ban on var­i­ous prac­tices that are pur­port­edly Is­lamic but re­quire re­form, in­clud­ing the prac­tice of talaq-e-bidat and polygamy, the lawyers said.

The bench, which asked the apex court registry to pro­vide the records of the suo motu pe­ti­tion to At­tor­ney General Mukul Ro­hatgi, has now fixed the mat­ter af­ter six weeks.

Ear­lier, the court had sought the gov­ern­ment’s re­sponse on Bano’s plea chal­leng­ing the va­lid­ity of Mus- lim prac­tices like polygamy and triple talaq (talaq-e-bidat).

Talaq-e–bidat de­notes di­vorce of the wife by a Mus­lim man by pro­nounc­ing ‘talaq’ more than once in a sin­gle ‘tuhr’ (the pe­riod be­tween two men­stru­a­tions), or in a tuhr af­ter coitus, or pro­nounc­ing an ir­rev­o­ca­ble in­stan­ta­neous di­vorce at one go (uni­lat­eral triple-talaq).

“Mus­lim women have their hands tied while the guil­lo­tine of di­vorce dan­gles, per­pet­u­ally ready to drop at the whims of their hus­bands who en­joy undis­puted power. Such dis­crim­i­na­tion and in­equal­ity hoarsely ex­pressed in the form of uni­lat­eral triple-talaq is abom­inable when seen in light of pro­gres­sive times of the 21st cen­tury.

“Fur­ther, once a woman has been di­vorced, her hus- band is not per­mit­ted take her back as his wife even if he had pro­nounced talaq un­der in­flu­ence of any in­tox­i­cant, un­less the woman un­der­goes nikah ha­lala which in­volves her mar­riage with an­other man who sub­se­quently di­vorces her so that her pre­vi­ous hus­band can re-marry her,” Bano's plea has said.

She has also chal­lenged the con­sti­tu­tion­al­ity of Sec­tion 2 of the Mus­lim Per­sonal Law (Shariat) Ap­pli­ca­tion Act, 1937 in so far as it seeks to recog­nise and val­i­date polygamy, triple talaq and nikah ha­lala.

The bench, af­ter is­su­ing no­tice on Bano's plea, tagged it with a sim­i­lar suo motu pe­ti­tion.

Bano has said she was sub­jected to cru­elty and dowry de­mands from her hus­band and in-laws and was ad­min­is­tered drugs that “caused her mem­ory to fade, kept her un­con­scious” and made her “crit­i­cally ill”, at which point her hus­band di­vorced her by triple talaq.

The pe­ti­tioner has also chal­lenged the Dis­so­lu­tion of Mus­lim Mar­riages Act, 1939, say­ing it fails to pro­vide In­dian Mus­lim women with pro­tec­tion from bigamy.

Bano has stated that the is­sue of gen­der dis­crim­i­na­tion against Mus­lim women un­der Mus­lim per­sonal laws, specif­i­cally the lack of safe­guards against ar­bi­trary di­vorce and sec­ond mar­riage by a Mus­lim hus­band dur­ing cur­rency of first mar­riage notwith­stand­ing con­sti­tu­tional guar­an­tee, needs to be ex­am­ined by the Supreme Court. PTI

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