With Muslim women at a disadvantage under the Muslim Personal Law with no safeguard against arbitrary divorce and polygamy, the Supreme Court has now decided to examine the validity of such practices saying that it amounts to violation of women’s fundamental rights.
Muslim Personal Law must evolve
A bench of Justices A R Dave and A K Goel said laws dealing with marriage and succession are not part of religion and the Muslim Personal Law has to evolve with the changing times. The bench said it is high time for the judiciary to examine these issues which the court had earlier refrained from venturing into on the ground that it was a policy matter to be decided by the government and the legislature. It said these are not merely a policy matter but relate to protection of fundamental rights of Muslim women guaranteed by the Constitution. Referring to an earlier apex court verdict, the bench said practice of polygamy is injurious to public morals and can be banned just like the practice of sati was banned.
“It was pointed out that in spite of Constitutional guarantee, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her,” the bench said.
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“In Javed vs State of Haryana, a Bench of three judges observed that practice of polygamy is injurious to public morals and can be superseded by the state just as practice of ‘sati’. It was further observed that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on the ground of violation of personal law of Muslims,” the bench said. The court passed the order while adjudicating a woman’s plea seeking share in ancestral property of her father under the Hindu Succession Act. During the hearing of the case, the lawyers pointed out the discrimination faced by Muslim women in matrimonial disputes. Taking suo motu cognisance of alleged discrimination faced by women under Muslim Personal Law, the court ordered that matter be treated as PIL and asked the Chief Justice of India to constitute an appropriate bench to look into the issue of gender discrimination under Muslim Personal Law.
Fundamental rights of women
“It is pointed out that the matter needs consideration by this court as the issue relates not merely to a policy matter but to fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants,” it said. The bench said that a Constitution bench earlier did not address the issue of discrimination under Personal Law but it held that Article 21 included right to live with dignity which supports the plea that a Muslim woman could invoke fundamental rights in such matters. The SC bench issued notice to attorney general and National Legal Services Authority seeking their response on the issue.