Supreme Court seeks A-G’s help on Muslim women’s equality

he Supreme Court on Friday sought the assistance of Attorney-General Mukul Rohatgi to examine the rights of Muslim women to claim equality in issues concerning marriage, divorce and maintenance under the Muslim Personal law.

A three-judge bench of Chief Justice T.S. Thakur and Justices A.K. Sikri and R. Banumathi asked the Attorney-General to render assistance in the matter and posted the matter for further hearing after six seeks.

The apex court in October 2015, in a suo motu writ petition, decided to examine various issues on the ground that Muslim Personal law is discriminatory to Muslim women and whether current practices under Muslim Personal Law regarding marriage, divorce and maintenance are violative of fundamental rights of the Constitution. A two-judge bench had referred the issue to the CJI for posting before a larger bench. Accordingly, the matter came before a three-judge bench on Friday.

Meanwhile Jamiat Ulama-i-Hind, an organisation working for the welfare of Muslims, in an impleadment application stating that since the present matter involves a question of Muslim Personal Laws, the view of the Muslim community must also be considered.

It pointed out that the apex court on earlier occasions had considered the issues — whether Muslim Personal Law, which allows Polygamy, is void as offending Articles 14 and 15 of the Constitution; 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 and whether the mere fact that a Muslim husband takes more than one wife is an act of cruelty — and declined to entertain these issues stating that these were matters wholly involving issues of state policies with which the court will not ordinarily have any concern.

The apex court had also held that these issues are matters which are to be dealt with by the legislature. The applicant said Mohammedan law is founded essentially on the Quran and thus cannot fall within the purview of the expression “laws in force” as mentioned in Article 13 of the Constitution, and hence its validity cannot be tested on a challenge based on Part III of the Constitution. In view of such clear provisions, if this Court frames fresh provisions, it will amount to judicial legislation and will be violative of the doctrine of separation of powers, it said.