Personal laws cannot be challenged as being violative of Part III of the Constitution: Muslim Personal Law Board in SC [Read the Counter Affidavit]

Holding that Personal laws of a community cannot be re-written in the name of social reforms, All India Muslim Personal Law Board (AIMPLB) in an affidavit filed in the Supreme Court today came up with the following main grounds to defend the controversial practice of triple talaq (talaq-e-bidat) and nikah halala. A bench headed by Chief Justice T S Thakur is examining the validity of the practices on the plea of several aggrieved women and NGOS questioning the constitutional validity of the practices and examining if these end up in gender discrimination of Muslim women.(i) The questions raised in the present Suo Motu Writ Petition are matters of legislative policy.The Board submitted that the questions being examined by the Court in the present matter have already been examined by this Court in Ahmedabad Women Action Group v. Union of India (1997) 3 SCC 573. In that case, inter alia the following issues were considered by this Hon’ble Court:- (i) Whether Muslim Personal Law which allows Polygamy is void as offending Articles 14 and 15 of the Constitution. (ii) Whether Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts, is void as it offends Articles 13, 14 and 15 of the Constitution. (iii) Whether the mere fact that a Muslim Husband takes more than one wife is an act of cruelty While considering the above issues the Court declined to entertain the above mentioned issues stating that these were matters wholly involving issues of State Policies with which the Court will not ordinarily have any concern. The Court also held that these issues are matters which are to be dealt with by the legislature(ii) Personal laws cannot be challenged as being violative of Part III of the Constitution.This Board submitted that the Supreme Court in Krishna Singh v. Mathura Athir (1981) 3 SCC 689, has held that the Part III of the Constitution does not touch upon the personal laws of the parties. This Court also observed that the High Court in applying the personal laws of the parties could not introduce its own concepts of modern times but should enforce the law as derived from recognized and authoritative sources. It is also submitted that since Part III of the Constitution does not touch upon the personal laws of the parties, Court cannot examine the question of constitutional validity of the practices of marriage, divorce and maintenance in Muslim personal law.(iii) Personal laws of a community cannot be re-written in the name of Social Reform.The Board submitted that in Sardar Sydena Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853, Supreme Court observed that the exception carved in Article 25 (2) of the Constitution of India to the Freedom of Religion enabling the state to enact laws providing for “social welfare and reform” was not intended to enable the legislature to “reform” a religion out of its existence or identity. According to the Board, 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 (iv) Article 44 of the Constitution of India which envisages a Uniform Civil Code is only a directive principle of state policy and is not enforceable.Article 44 of the Constitution of India stipulates that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. The Board submitted that the Uniform Civil Code is only a Directive Principle of State Policy and is not enforceable. Further, this Article by necessary implication recognizes the existence of different codes applicable to different religions in matters of Personal Law and permits their continuance until the State succeeds in its endeavour to secure for all citizens a Uniform Civil Code. It is also submitted that the framers of the Constitution were fully conscious of the difficulties in enforcing a Uniform Civil Code and thus they deliberately refrained from interfering with the provisions of the Personal Laws and laid down only a Directive Principle. Moreover, conflicting viewpoints of different religions on the issues of marriage, divorce and maintenance makes the vision contemplated in Article 44, a goal yet to be reached(v) The practices, sought to be reviewed by way of the present Suo Motu Writ Petition are protected by Articles 25 and 26 read with Article 29 of the Constitution of India.According to the Board 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 of India. The protection of Article 25 and 26 is not limited to matters of doctrine or belief, but it extends to the acts done in pursuance of religion. It is also submitted that the practice of marriage, divorce and...

Personal laws cannot be challenged as being violative of Part III of the Constitution: Muslim Personal Law Board in SC [Read the Counter Affidavit]

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