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Muslim women have been placed at a disadvantage under the Muslim Personal Law with no shield against arbitrary divorce and the practice of polygamy,The Hon’ble Supreme Court of India has now decided to look into the validity of such practices observing that it may violate a woman’s fundamental rights Recently on 16th of October,a bench of two judges requested the Chief Justice of India to Constitute an appropriate bench to examine whether “discrimination” suffered by women under Muslim personal law violates fundamental rights under Articles 14, 15 and 21 of the Indian Constitution and international conventions. The bench pointed out that in spite of the constitutional guarantee, Muslim women are subjected to discrimination and there is no listed safeguards against arbitrary divorce and second marriage by her husband during pendency of the first marriage, resulting in denial of dignity and security to the wife.A Muslim male is allowed to have four wives at a time (polygamy) and under all schools of Muslim Law; can divorce his wife unilaterally and without the intervention of the Court, this is known as talaq.
Muslim women suffer twofold abuses. First is, obviously, the experience of being an Indian woman across religions, classes, castes and society of India. The second is the undermining of their status by oppressive practices such as polygamy and the talaq system. In spite of the fact that polygamy was proposed by the Qur’an to be for the insurance of orphans and widows, practically speaking Muslims have made it a Sword which holds women under consistent threat. The ground reality is worrisome where you can see the propensity of men to pronounce a talaq and throw women out of their houses and at times abandon their children too.In addition to the worries of the community men have started pronouncing talaq through newplatforms like Skype, text messages, email and WhatsApp. Such liberal perspective of talaq has met with colossal dissatisfaction by some prominent jurists. A recent study conducted across 10 states by Bharatiya Muslim Mahila Andolan showed that Muslim women have unequivocally voiced their dissent against the discriminatory practice of triple talaq with 92.1% seeking a ban for the same.
AMuslim woman is demanding a law which is equal, non-discriminatory and does not compromise with her life and personal liberty guaranteed under the Constitution to her, but this basic demand is struck asan issue of politics. Is it too much to ask for? Are we still stuck in the archaic times where women were considered personal property of men? What they demand is a natural right which is essential for a good life. The law also terms such demands as fundamental rights and it is a failure on the part of our legislature and we the citizens who have erroneously ignored the need for these basic safeguards .One thing has to be crystal clearthat the demand is for gender just reforms in the Muslim personal law which should be based on the principles of equality and justice and it should not be confused with a demand for Uniform civil code which in altogether needs to be dealt differently.
Article 14 of the Indian constitutionguarantees equality before law and equal protection of laws. Additionally, Article 15 prescribes that no law can discriminate on the grounds of sex, caste, etc. The guideline is straightforward and does not require much clarification. Any personal law which if discovered to be oppressive against women ought to be struck down by the courts. It has been acknowledged by the courts that practices being referred to are discretionary and the hard rule is that arbitrariness and equality are sworn foes .The Hon’ble Supreme Court in the case above, recently mentioned that the Article 21 of the Indian constitution includes right to live with dignity which supports the plea that a Muslim woman could invoke fundamental rights in matters relating to the discrimination in the personal law. Any personal law which discriminates against women would by its very nature be unequal on the face of it for, it violates Articles 14 and 15 of the Constitution, would also be in violation of the expanded meaning of right to life and personal liberty under Article 21 of the Constitution of India and to that extent be void. Practices such as polygamy and the Talaq system are claimed to be protected by the Article 25 of the constitution which ensures freedom to practice religion and which in itself gives that the essential right of religion is subject to the fundamental rights.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 the practice of ‘sati’. The Hon’ble Supreme Court has taken differing views dealing with the personal laws, however a three-Judge Bench in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil held that the personal laws to the extent that they are in violation of the fundamental rights are void.
Muslim women have always ended up on the bad side of the law, whether due to weakening legislative actions by the Rajiv Gandhi led government in the aftermath of the Shahbano case or whether the numerous court cases with regards to the divorce laws. There’s an urgent need to address this issue and this judgement will be a step in the right direction for safeguarding the Muslim women against these arbitrary personal laws and providing them with some basic sense of justice.A progressive Muslim woman of the 21st century awaits this judgement.
Submitted by :
Jindal Global Law School