The Supreme Court today issued notices to Ministries of Women and Child Development, Law and Justice, Minority Affairs and the National Commission for Women on a petition filed by a Muslim woman divorced by her husband through a phone call from Dubai, challenging validity of Muslim practices of polygamy, triple talaq (talaq-e-bidat) and nikah halala.
Acting on the petition filed by Ishrat Jahan through her lawyer V K Biju, the bench headed by chief justice T S Thakur also issued notices to police chiefs of Bihar and West Bengal and her husband, Murtuza Ansari. While she stayed in Howrah, West Bengal, both of them hailed from Bihar.
The court tagged the petition with a bunch of other similar pleas filed by aggrieved women which are scheduled to come up for hearing on September 6.
Talaq-ebidat is a Muslim man divorcing his wife by pronouncing more than one talaq 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). Nikah halala refers to the marriage of a woman with another man who subsequently divorces her so that her previous husband can remarry her.
Petitioner Ishrat Jahan has sought a declaration from the court that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 was unconstitutional as it violated fundamental rights guaranteed under Articles 14 (equality), 15 (non-discrimination), 21 (life) and 25 (religion) of the Constitution in so far as it seeks to recognise and validate talaq-e-bidat (triple talaq) as a valid form of divorce.
“My husband and his relatives are constantly attempting to drive me out of my matrimonial home”, Jahan said, adding that her “four children were also forcibly taken away from her”.
The petitioner does not have any support as her parents are residing in Bihar. She is surviving with her sister's help. The police are also not making any effort to trace her children, the petition said while seeking urgent directions from the court for her and her children's protection
It is to be noted that on July 29 , taking ahead its hearing on batch of petitions, one of them taken suo motu by it on the contentious issue and recurring complaints of gender discrimination suffered by muslim women arising out of several rules in its personal laws like triple talaq and polygamy, the Supreme Court had asked all parties including the Centre and All India Muslim Personal Board to frame legal propositions requiring consideration.
“It is a very important issue. Everyone needs to be heard. We will hold a preliminary hearing if there is need for deeper consultation we might even refer it to larger bench.Frame issues on what is the scope of judicial review in this matter at the same time if we feel that the law is settled we will not interfere Legal propositions which call for consideration have to be framed first. Do it within six weeks”, a bench headed by chief justice T S Thakur had told lawyers of all parties
The bench separately asked Centre to file its reply to the slew of petitions filed on the issue
On the last hearing the court had asked the Centre to produce the report of its high level committee on “women and law” which had done an assessment of family law with focus on law relating to marriage, divorce, custodial rights and inheritance and succession. Apparently, the report has not yet been made public.
The court had asked Additional Solicitor General Tushar Mehta to respond to the suo motu petition by a two judge bench of the court on October 16 and answer to the question if "gender discrimination" suffered by Muslim women should not be considered a violation of the Fundamental Rights under Articles 14, 15 and 21 of the Constitution and international covenants.
The suo motu writ petition has been registered by the Supreme Court for considering the rights of Muslim women in issues concerning marriage, divorce and maintenance and whether the current practices under Muslim Personal Law regarding marriage, divorce and maintenance are violative of Part III of the Constitution.
It is to be note that All India Muslim Personal Law Board has filed an Interlocutory Application in the case. The AIMPLB has submitted that the issue of Muslim Personal Law is cultural issue, and it is inextricably interwoven with Islam. It has argued that it is the issue of freedom of conscience, guaranteed under Article 25 and 26 read with Article 29 of the Constitution.
The AIMPLB has contended that the questions being examined by the Supreme Court in the present case has already been dealt with by the Court in Ahmedabad Women Action Group v Union of India [(1997) 3 SCC 573.] In this case, the Supreme Court held that these were matters wholly involving issues of state policies, with which the Court has no concern, and therefore, to be dealt with by the legislature.
The AIMPLB has also submitted that the Part III of the Constitution does not touch upon the personal laws of the parties, and therefore, the Supreme Court cannot examine the question of constitutional validity of the practices of marriage, divorce and maintenance in Muslim personal law. The AIMPLB has argued 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.
The AIMPLB has also cautioned the court that if lays down special rules for Muslim women in marriage, divorce and maintenance, it would amount to judicial legislation. The AIMPLB has further argued that the rights of Muslim Women are already protected by virtue of Muslim Women (Protection of Rights on Divorce) Act, 1986, whose constitutional validity has been upheld by the Supreme Court. Prescribing other parameters to govern the rights of Muslim women, would amount to judicial legislation, which is not permissible, the AIMPLB has said.
Read the petition here.