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Muslim personal law board defends triple talaq

While AIMPLB opposed PILs over triple talaq, concerned parties will submit responses by Thursday

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File photo of the members of Bharatiya Muslim Mahila Andolan gathered near Astodia Darwaja to protest against triple talaq
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Pursuant to an earlier Supreme Court (SC) order, the Centre, women's rights' bodies, aggrieved petitioners, the All-India Muslim Personal Law Board (AIMPLB) and other concerned parties will submit their responses before Thursday, in matters pertaining to the triple talaq case.

However, almost all have dug in their heels and reiterated their known stand in front of the SC on the issue of triple talaq, nikah halala and polygamy. While the Muslim Personal Law Board defended triple talaq, it toned down its rhetoric on nikah halala.

Fresh from its victory of the recently concluded Uttar Pradesh state elections, the government however took refuge behind its international commitments to defend its stand against triple talaq, polygamy and nikah halala. Apart from stressing on gender equality and secularism, the Centre further submitted that "the underlying idea behind the preservation of personal laws was the preservation of plurality and diversity among the people of India".

Representing Bebaak collective, a collective of Muslim women and Center for Islamic and Secular Studies, Senior Advocate Indira Jaising said that triple talaq was unconstitutional. "Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937, to the extent that it recognises triple talaq is unconstitutional," said Jaising while speaking to DNA.

"Even the Bombay High Court judgment State of Bombay vs. Narasu Appa Mali, was wrongly decided and is required to be over ruled," she added.

In their draft, the Centre stood behind principles of secularism, gender equality, international practices and three other issues in its draft submissions. "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 Bharatiya Janata Party (BJP)-led government's draft submissions read.

The Centre questioned the validity of the aforesaid practices and its compatibility with contemporary constitutional morality and the principles of gender equality in today's day and age. The union in its submission mentioned that six and a half decades after the constitution — 'which has no religion' — was written, the court needed to determine whether the status of women, "merely by virtue of their religious identity and/or the religion which they profess, could be relegated to a status significantly more vulnerable than their counterparts who profess any other faith".

The government then pointed out that in an August 2016 counter affidavit filed by the Muslim Personal Law Board, the practices of triple talaq and polygamy were referred to as 'undesirable'. Hence, the Centre felt that no 'undesirable' practice could be elevated to the status of an 'essential religious practice', much less one that forms the substratum of religion.

Lastly, the Centre submitted that "a large number of Muslim countries or countries with an overwhelmingly large Muslim population where Islam is the state religion, have undertaken reforms in this area and have regulated divorce law and polygamy". The Centre referred to countries like Pakistan, Afghanistan, Bangladesh, Iran, Morocco, Tunisia, Turkey, Indonesia, Egypt and Sri Lanka where reforms have taken place.

"Algeria too has de-recognised a husband's right to unilateral divorce by legislating that all divorces must go through a court," the draft submissions read.

The submission of these arguments, that would answer certain fundamental issues surrounding the practice of triple talaq, polygamy and nikah halala, would pave the way for the final debate which would be heard by the constitution bench this summer.

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