The court today sought the Union Government’s reply on questions including whether the Muslim Personal Law as applied in India violates the fundamental principle of equality for both genders and specifically, whether the divorce proceedings contained in it unfairly discriminate against women.
In addition to the government, other parties, including religious group Jamiat Ulema-e-Hind, have also been asked to give their statements within the next six weeks.
The move is likely to create some level of discomfort among conservatives in the country, and marks another attempt by the Supreme Court to bring in parity between the laws applied to Muslims in India and those applied to non-Muslims in the country.
In 1985, the Supreme Court had directed a person, who professed the Muslim faith, to pay alimony to his divorced wife, citing Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion.
The section imposes the obligation on every Indian citizen to take care of his or her wife, children and parents within his or her means.
In addition, the court had also dismissed the argument that forcing the husband to pay maintenance for his divorced wife was anti-Islamic. The court ruled that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.
However, the then Congress government led by Rajiv Gandhi, overturned the court ruling by bringing in the The Muslim Women (Protection of Rights on Divorce) Act of 1986.
As such, the latest move by the Supreme Court could result in restitution of some of the rights that were diluted by the Act of 1986.
UNION AFFIDAVIT CRUCIAL
The reply of the Central government is likely to play a crucial part in how the court proceeds in the matter, as any change that it orders can be rolled back by the center using legislation.
A Muslim religious organization also sought to implead itself in the matter, claiming that the question of divorce proceedings was a religious matter and that it was entitled to intervene in the case.
The organization also said in its request that at present, divorce proceedings of men and women who believe in Islam are conducted according to religious law, and the Court should not unduly interfere in the matter.
India, despite being ‘secular’, follows different laws for different people, based on their religious beliefs. Legal matters such as whether and how much property is inherited by male and female children, what the requirements and grounds for divorce are etc. are all based on the religion of the petitioner and respondents.
There has been a gradual demand for removal of this provision to have separate laws for those professing different religions, and to bring in the same law for all citizens.
However, a uniform civil code, as it is called, has been fraught with political repercussions and most governments have been loathe to touch the subject.
India is currently ruled by the right-of-center Bharatiya Janata Party, which has often stated its support for a uniform civil code. As such, many expect the government to be supportive of any judicial intervention to bring in such a code.