India to review personal laws for Muslims ‘to rectify gender biases’

Judges mentioned polygamy and the ease of divorce as particularly problematic, and potentially in conflict with the constitution, reports Samanth Subramanian.

A Muslim girl studies at a madrasa in the Muslim-dominated area of Johapura in the western Indian city of Ahmedabad on March 3, 2014. Ahmad Masood/Reuters

NEW DELHI // India’s supreme court has announced that it will review the country’s personal law code for Muslims, in what it says is an attempt to rectify any biases against women.

A two-judge bench mentioned polygamy and the ease of divorce as particularly problematic, and potentially in conflict with the constitution’s stipulation against gender discrimination. Where such conflict is found to occur, following examination by judges, the supreme court has the power to strike down personal laws.

For a Muslim woman, “there is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in a denial of dignity and security to her,” judges AR Dave and AK Goel wrote in a note to chief justice of India HL Dattu, the supreme court’s highest ranking judge.

Mr Dave and Mr Goel have also issued notices for legal opinions to the government’s attorney general and the National Legal Services Authority – which provides free legal aid to the disadvantaged – and has asked them to respond by November 23.

Laws governing most family matters, known as personal laws, have differed from religion to religion in India since the 18th century. Laws relating to adoption, domestic violence and child marriage have been amended or struck down by the courts since the country gained independence in 1947, but in other matters, Indians follow laws derived from their own religion’s teachings.

But in their note to Mr Dattu last week, judges Dave and Goel said that “laws dealing with marriage and succession are not part of religion”.

“Law has to change with time,” they added, referring to another supreme court judgement from October 13 for support.

However, while the supreme court is able to review individual personal laws and determine them to be unconstitutional, only parliament can implement a uniform civil code.

In the October 13 judgment, which followed a petition from a Christian couple challenging the personal law that requires them to go through two years of separation before formalising their divorce, judges Vikramjit Sen and Shiva Kirti Singh pressed the government on whether it was willing to push for a uniform code of personal law.

Couples from religious groups other than Christianity are only required to go through one year of separation before being granted a divorce.

“There’s total confusion,” the judges said to the lawyer appearing for the government. “If you want to do it, then you should do it. Why don’t you frame and implement it?”

Article 44 of the Indian constitution – which came into force in 1950 – explicitly instructed the state to “endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

However, the constitution also guarantees citizens the fundamental right to practice their religion freely and as a result, many religious personal laws have remained in place.

Until 2001, for example, Muslim women who were divorced were not entitled to alimony from their husbands. And today, Muslim men are still allowed more than one wife.

Muslim women are also not entitled to an equal share of inheritance, while in a Muslim marriage, two female witnesses are considered the equivalent of one male witness.

But the supreme court’s intention to review such laws is likely to cause controversy among some orthodox sections of Muslim society, particularly the All India Muslim Personal Law Board (AIMPLB), an NGO that defends Muslim personal law.

On September 3, Maulana Abdul Raheem Qureshi, the spokesperson for the AIMPLB, told the Press Trust of India that the organisation stood against the abolition of the triple-talaq system, by which a divorce can be completed by communicating the word “talaq” three times to a spouse.

“There is no scope of change in the system,” Mr Qureshi said at the time.

Bader Sayeed, a Chennai-based lawyer and activist for the rights of Muslim women, criticised the AIMPLB and clerics who defended the systems of talaq and polygamy, pointing out that it infringed upon the rights of women.

"In a way, every time talk of a uniform civil code comes up, the clerics and others use this as a way to suppress women further," Ms Sayeed told The National. "They'll tell women: 'You had better not say anything. Islamic practices are in danger.'"

She said it was more practical for the judiciary to continue amending or striking down individual personal laws, such as the talaq law, than to lobby the government to push for a uniform civil code, which is highly controversial and unlikely to be implemented by parliament any time soon.

“Let the courts give us gender justice that way, which is what they’ve been doing. And they’re doing such a good job of it,” she said.

Zafarullah Khan, a lawyer who practises in the Madras High Court, also dismissed the AIMPLB’s objection, calling the talaq system “absolutely incorrect”.

“It needs to go. There’s no doubt in my mind,” he said.

Similarly, he told The National, "polygamy has no religious sanctity, and to say that it has is a misinterpretation of religious doctrine".

The state should also be able to legislate for a minimum marrying age, regardless of religion, Mr Khan said.

But, he added, the constitutional right to practice one’s religion “means that so long as it doesn’t affect public decency and public order, you can live the way you want.”

And that, he said, was a good thing.

“We’re a multicultural society, with our own style of living. That is how it should be.”