New Delhi :
Personal laws of a community cannot be “re-written” in the name of social reforms, All India Muslim Personal Law Board (AIMPLB) on Friday told the Supreme Court, while opposing pleas issues including alleged gender discrimination faced by Muslim women in divorce cases.
The AIMPLB, in its counter affidavit filed in the apex court, said the contentious issue relating to Muslim practices of polygamy, triple talaq (talaq-e-bidat) and nikah halala are matters of “legislative policy” and cannot be interfered with.
The board said that practices provided by Muslim Personal Law on the issues of marriage, divorce and maintenance were based on holy scripture Al-Quran and “courts cannot supplant its own interpretations over the text of scriptures”.
AIMPLB said the presumption that triple talaq was arbitrary and unreasonable was a “fallacy of reason” and it was a “misconception” that Muslim men enjoyed unilateral powers in respect of divorce.
Regarding polygamy, the board said that though Islam permitted it, but it does not encourage the same and referred to various reports, including World Development Report 1991, which had said that polygamy percentage in tribals, Buddhists and Hindus were 15.25, 7.97 and 5.80 per cent respectively as compared to 5.73 per-cent in Muslims.
The board further said that Islam always regarded divorce as a “condemnable practice” and the focus was also on the fact that both parties should maintain the marital bond as far as possible.
“It is clear that Muslim Personal Law adequately provides for the rights of Muslim women and the basis of this petition, which assumes that a Muslim man has right to unilaterally pronounce irrevocable talaq or to not pay any maintenance after iddat period, are myths and thus the present petition is entirely misconceived and deserves to be dismissed,” the board said in its counter affidavit filed in the apex court.
The apex court had also taken suo moto cognizance of the question whether Muslim women faced gender discrimination in cases of divorce or due to other marriages of their husbands and a bench headed by Chief Justice of India T S Thakur is examining the issue.
Subsequently, various other petitions including one by triple talaq victim Shah Bano were filed challenging the age-old practice of ‘triple talaq’ among the Muslim community.
AIMPLB and Jamiat-e-Ulema had defended triple talaq and said it was part of Quran-dictated personal law which was beyond the ambit of judicial scrutiny.
In its counter affidavit, the board said that rights of Muslim women were already protected by virtue of Muslim Women (Protection of Rights on Divorce) Act, 1986 and if the court prescribed other parameters to govern these rights, “it will amount to judicial legislation, which is not permissible”.
Referring to an ancient Urdu book, it said, “Whenever polygamy has been banned, it emerges from history that illicit sex has raised its head. Amid ancient civilizations, the Greek were forced to practice monogamy, yet there was no check on unlawful mistresses.”
The following are quotes from the AIMPLB's petition in Supreme court
“If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive,”.
The board also said that divorce proceedings instead of triple talaq could damage a woman’s chances of remarriage if the husband indicts her of loose character in court.
On polygamy, the board said, "Quran, Hadith and the consensus view allow Muslim men to have up to four wives." It said Islam permitted polygamy but did not encourage it.
“Granting a husband the right to divorce indirectly provides security to the wife. Marriage is a contract in which both parties are not physically equal. Male is stronger and female weaker sex. Man is not dependent on woman for his protection.
On the contrary, she needs him for her defence,” stated the affidavit, adding that triple talaq wards off the possibility of a rise in murders of women whose husbands want to divorce them.
"However, polygamy meets social and moral needs and the provision for it stems from concern and sympathy for women,"
"Since polygamy is endorsed by primary Islamic sources, it cannot be dubbed as something prohibited,"
"Where women outnumber men and polygamy is not permitted, women will be forced into leading spinster's life. In sum, polygamy is not for gratifying men's lust, it is a social need,"
