In a first such instance in the history of independent India, the central government today told the Supreme Court that it is against the practice of triple talaq that allows a Muslim man to divorce his wife by pronouncing the word ‘talaq’ three times.
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.
"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,” the affidavit filed by Mukulita Vijayawargiya, additional secretary in the Ministry, said.
The constitution allows Muslims, the biggest religious minority group in the country, to regulate matters such as marriage, divorce and inheritance through their own civil code.
The Supreme Court has been examining how much it can interfere in Muslim laws governing family-related issues as it hears a plea to end the practice which permits Muslim men to divorce their wives by saying talaq three times.
The top court had asked the government to weigh in on the debate as to whether intervening in the law would violate the Muslim community's fundamental rights.
Women's rights activists have long called for reform of the Muslim personal law which they say discriminates against women. What they want instead is a well-defined law that criminalises polygamy, unilateral divorce and child marriage.
Campaigners say the "triple talaq" practice - which allows Muslim men an instant divorce with Muslim women being divorced via Facebook, Skype and text message - is unconstitutional because it violates the right to 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.
Referring to constitutional principles, it said that "any practice by which women are left ‘socially, financially or emotionally vulnerable’ or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Article 14 and 15 (Right to Equality) of the Constitution”.
Earlier, the top decision-making body for Muslims in India, the All India Muslim Personal Law Board, said the court cannot interfere in the religious freedom of minorities and "rewrite personal laws in the name of social reform".
The petition being considered by the Supreme Court also seeks an end to polygamy and 'halala', which mandates that if a woman wants to go back to her husband after a divorce, she must first consummate her marriage with another man.