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Clerics poser to Supreme Court: Muslim Personal Law based on Holy Koran, Judiciary can’t change it

Islamic Laws

February,6,2016: Jamiat Ulama-e-Hind – a prominent organisation of Indian Islamic Scholars – on Friday asserted before the Supreme Court that courts could not test the validity of Muslim personal law as it was based on the Holy Koran.

Opposing the court’s move to do away with gender bias against women, the organisation contended that judiciary could not examine the constitutional validity of the practices of marriage, divorce and maintenance under Muslim personal law on the ground of violation of fundamental rights.

Last year, the SC had decided to examine Muslim personal law to scrap provisions biased against women, often victims of polygamy and arbitrary divorce.

“Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts, the organisation told a bench headed by Chief Justice TS Thakur.

“The Mohammedan Law is founded essentially on the Holy Koran and thus it cannot fall within the purview of the expression ‘laws in force’ as mentioned in…the Constitution,” it said in an application.

The SC allowed the organisation to become a party to the case.

The court, which had earlier issued notices to the Attorney General and National Legal Services Authority, will take up the matter after six weeks.

A bench of justices AR Dave and AK Goel had requested Chief Justice of India HL Dattu to constitute an appropriate bench and address the issue to bring about gender equality in Muslim personal law in line with the Constitution that prohibits discrimination on the basis of sex.

“There is no safeguard against arbitrary divorce and second marriage by her (a Muslim woman’s) husband during currency of the first marriage, resulting in a denial of dignity and security to her,” the bench had said.

“Laws dealing with marriage and succession are not part of religion. Law has to change with time,” they added, citing an earlier judgment.

The judges analysed several SC judgments on gender discrimination in Muslim law and issued notices to the attorney general and the National Legal Services Authority, asking them to respond.

India has separate personal laws for each religion that govern marriage, succession, adoption and maintenance. Hindu family laws were modified in the 1950s but activists have long argued Muslim personal law, which has remained mostly unchanged, is tilted against women. It allows polygamy and the use of the triple talaq system.

Women are discriminated against in succession and inheritance of property. Also, two female witnesses equal one male witness in a Muslim marriage. In a survey conducted earlier this year, over 90% of Muslim women rejected triple talaq and polygamy.

India has separate personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu Law overhaul began in the 1950s, any attempt to reform Muslim law has met stiff resistance from conservative elements.HT

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