On the 16th of October, the Supreme Court of India passed a verdict in which they ordered the registration of a PIL to consider the position of Muslim women and the gender discrimination they face by the prevalent practice of arbitrary Talak and remarriage by the husband during the pendency of the first marriage.
Justices Anil R. Dave and Adarsh Kumar Goel have asked the Chief Justice of India to set up a Special Bench to deal with the matter. Furthermore, they have asked the Attorney General of India and the National Legal Services Authority of India to assess whether the discrimination faced by Muslim women is in contravention of Articles 14, 15 and 21 of the Constitution of India.
The validity of personal laws has been a point of discussion in earlier cases as well. The Apex Court in the case of Shri Krishna Singh v. Mathura Ahir held that personal laws are beyond the scope of Part III of the Constitution unless the original form has been altered by a custom or a usage. The opinion of the Court was based on a restrictive interpretation undertaken in the case of State of Bombay v. Narasu Appa Mali. In the aforementioned case, the High Court of Bombay opined that the validity of personal laws is not subject to the scrutiny of Article 13. This is because the drafters of the Constitution have specifically mentioned the term 'Custom' thus excluding personal laws from its scope. The Court has consistently failed to realize that Article 13 of the Constitution is an inclusive provision and a restrictive interpretation of the same would result in the exclusion of a vital source of law. The judiciary has reviewed this question in several judgments, but there has not been any authoritative judgment passed on this issue till date.
The important aspect to note is that when the State grants Fundamental Rights to a citizen, it does not grant it on the basis of the religion they subscribe to. Therefore, in the event of the existence of a personal law that contravenes constitutionally protected rights and which takes away the opportunity of State protection from that particular group, that personal law should be open to judicial review. The Supreme Court in a recent judgment upheld the termination of a Muslim man from a job that mandated a single wife, due to polygamy. However, the applicability of this judgment is limited to cases of a similar kind. Muslim personal law continues to have the propensity to allow for discrimination within the private sphere. The practices of triple Talak and polygamy have been discouraged by Courts on several occasions and even held as cruel, but they continue to be prevalent in the society.
Under Article 21, the right to life and personal dignity is a provision guaranteed not only to a citizen but to any person within the territory of India, the Supreme Court in the case of S.S Ahluwalia held that Article 21 puts an obligation on the State to create an environment in which members of different faiths, castes and creeds can live together harmoniously, hence the State shall protect the dignity of every member of the society. In accordance to this, it can be clearly deduced that practices such as arbitrary divorce and remarriage during the pendency of the first one are bound to be unconstitutional, as it leaves a woman at the disposal of her husband and in a constant state of fear infringing her right to personal liberty.
Moreover, would it be correct to say that even though a law that is purely based on religion and which positively discriminates between people is safe from the scope of Article 14 and Article 15? An Article that explicitly provides for equal treatment irrespective of a person's religion, race, caste, sex or place of birth, even if the result of these laws is that a Hindu woman would be able to successfully prosecute her husband for bigamy, but a Muslim woman would not be able to do the same, merely because of her religion.
Muslim personal laws have been discriminatory towards women in all matters regarding family law; it sanctions male superiority and infers women to be the subordinate class. These personal laws are validated by the timeframe that they have been in practice since and the sanctity of the law. The problematic nature of this argument is that there is a historic suppression that is being faced by these women and its time that the State legislates on the same irrespective of its sanctity. Article 15 (3) explicitly mentions the need to make special provisions for women; this elucidates the intention of the drafters to ensure equality between the genders. Article 44 of the Constitution talks about a Uniform Civil Code, this is evidence which shows that the drafters of the Constitution truly believed in achieving a secular State free of interference from personal laws. The very essence of Part III of the Constitution is based on the concept of equality. The Supreme Court by registering the PIL has not only given hope to the Muslim women of India, but has echoed its earlier stance of supporting a Uniform Civil Code.