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Centre opposes triple talaq, polygamy in Supreme Court

Narendra Modi-led central government says no place for such practices in secular India

Policy Pulse
Publish Date: Oct 8 2016 1:07PM | Updated Date: Oct 8 2016 1:09PM

Centre opposes triple talaq, polygamy in Supreme Court

Taking a stand against the practice of triple talaq and polygamy in Islam, Narendra Modi-led central government filed an affidavit in the Supreme Court saying in the spirit of the Constitution, "gender equality is non-negotiable".


The government in its affidavit stated that the validity of triple talaq and polygamy should be seen in the light of gender justice while stating that there is no reason women in India should be denied their constitutional rights, a news agency reported.


Gender equality, it said permeates the entire scheme of fundamental rights as articulated under Article 14, Article 15 and Article 21 of the Constitution and hence are non-negotiable values in secular India.


In its reponse the government filed an affidavit, which read the above mentioned practices by the Muslims in India were not "integral to the practices of Islam or essential religious practices."


The Ministry of Law and Justice, in its affidavit, referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.


"The fact that Muslim countries where Islam is the state religion have undergone extensive reforms goes to establish that the practise in question cannot be regarded as integral to the practices of Islam or essential religious practices," argued the government in the affidavit.


Referring to the changes in the personal law that have already taken place in Islamic countries, the government has cited the instances of changes in marriage laws in Iran, Egypt, Indonesia, Turkey, Tunisia, Morocco, Afghanistan, Bangladesh and Pakistan.


"It is noteworthy that even theocratic states have undergone reforms in this area of the law and therefore in a secular republic like India, there is no reason to deny women the right available under the constitution," it said.


The affidavit filed by Mukulita Vijayawargiya, Additional Secretary in the Ministry, read: "It is submitted that the issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality."


Responding to a batch of petitions including the one filed by Shayaro Bano challenging the validity of such practices among Muslims, the Centre first dealt with the right of gender equality under the Constitution.


"The fundamental question for determination by this court is whether, in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution of India," it said.


Dealing in detail with the idea of secularism, the government said that in a secular democracy, the state has no religion, which moreover has already been held to be the basic structure of the Constitution.


Saying that the right of women to human dignity, social esteem and self-worth are important facets of right to life, the government said that the gender justice is important and any practice by which women are left socially and financially or emotionally vulnerable or subject to whims and caprice of men folk is against gender justice.


Linking the issue with the Right to Life and Personal Liberty, the Centre in its 29-page affidavit said "gender equality and the dignity of the women are non-negotiable, overarching constitutional value and can brook no compromise.


The government said that the question of triple talaq, where husbands can summarily divorce their wives by pronouncing the word 'talaq' thrice, 'nikaah halaal' under which a divorced couple cannot remarry unless the woman marries again and becomes single again through divorce or death of the second husband, and polygamy needs to be considered in the light of the "principle of non-discrimination, dignity and equality".


"These Rights are necessary in letter and in spirit not only to realise the aspirations of every individual woman who is an equal citizen of this country but also for the larger well-being of the society and progress of the nation, one half of which is made up by women".


The Centre's affidavit said women must be made equal participants in the development and advancement of the world's largest democracy and any practice, which denuded their status as citizens due to religion, is an "impediment" in achieving the larger goal.


The Centre also said that the nation, being a founding member of the United Nations, was committed to international covenants and the UN Charter which spoke about equal rights for men and women.


The affidavit extensively dealt with the issue of personal laws in relation to fundamental rights.


Referring to the recent affidavit filed by All India Muslim Personal Law Board (AIMPLB) in the instant case, the Centre said the practices of triple talaq, nikah halala and polygamy cannot be regarded as an essential part of the religion and hence not entitled to protection under Article 25 (Freedom to practice religion) of the Constitution.