The All India Muslim Personal Law Board on Monday sought impleadment in the challenge to the constitutionality of the practices of 'Nikah halala' and polygamy which is pending before the Supreme Court.
Urging that its viewpoint be considered as it has been "working continuously for protecting the Muslim personal law which is part of the Islamic culture and tradition", it stresses that the Muslim personal law is inextricably woven with the religion of Islam and hence, it is a matter of freedom of conscience guaranteed under Article 25, 2 and 29 of the Constitution.
The Board has pointed out that the issues whether polygamy is violative of Article 14 and 15 and whether it is tantamount to cruelty on the part of the husband to take more than one wife have already been considered by the apex court in Ahmedabad Women Action Group Judgment. It is submitted that on that occasion the court had held that these are matters wholly involving issues of state policies, to be dealt with by the Legislature, which the court would not ordinarily concern itself with.
"Personal laws do not derive their validity from whether they are passed by a legislature or other competent authority. The foundational source of these laws is their respective scriptural texts. The Muslim personal law is based on the Holy Quran and the Hadith of Prophet Mohammad and hence, does not fall within the purview of 'laws in force' for the course of Article 13. So its validity cannot be tested against Part III of the Constitution", it is submitted.
Further, it is argued that in as much as Article 44 speaks of Uniform Civil Code, it is only a DPSP and hence, not enforceable, It is contended that the famers of the constitution were fully aware of the existence of the different codes governing different religions in matters of personal laws and of the difficulties in securing a uniform code and hence, laid it down only as a directive principle.
Interestingly, the Board has advanced that one who is not a member of a religious denomination cannot be allowed to question the faith of that religious denomination. In fact, even where a person is a member, they may seek the protection of the court and its intervention in determining questions of faith in the event of an infringement of fundamental rights only to the extent there is a threat to their life and liberty. This issue has been raised repeatedly in the Sabarimala Temple Entry case, which is presently pending before a 9 judge bench of the top court.
In March, 2018, a three-judge bench headed by Chief Justice Dipak Misra had referred the challenge to the Islamic practices of polygamy and Nikah Halala to a constitution bench.
Two weeks back, the 9-judge bench helmed by Chief Justice S. A. Bobde, which is considering the issues of Sabarimala, rights of a Parsi woman married to a Hindu to participate in the funeral rites of her father at the Fire Temple and the practice of Female Genital Mutilation among the Dawoodi Bohra community, clarified that it is not concerned with the challenge to polygamy as of now.
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