The Kerala High Court on Friday observed that State intervention, by way of legislation, has become the first and foremost step to regulate triple is required in India. Justice A Muhammed Mustaq, while disposing a batch a petitions relating to Muslim divorce law, suggested a number of reforms which are required to be introduced in Muslim personal law.
“The State is constitutionally bound and committed to respect the promise of dignity and equality before law and it cannot shirk its responsibility by remaining mute spectator of the malady suffered by Muslim women in the name of religion and their inexorable quest for justice broke all the covenants of the divine law they professed to denigrate the believer and faithful,” said the bench.
The court opined about introducing Penal law for deliverance to sufferings of Muslim women in India who are victimized by the arbitrary talaq. The court held that entrustment to affect divorce through the court in no way would affect the practice of Sharia law in accordance with Qur’anic injunction.
Justice Mustaq concluded that resistance is observed from a small section of Ulemas (scholars within the society) on the ground that Sharia is immutable and any interference would amount to violation of freedom of religion guaranteed under the constitution. “I find this dilemma of Ulema is on a conjecture of repugnancy of divine law and secular law. The State also appears as reluctant on an assumption that reforms of religious practice would offend religious freedom guaranteed under the Constitution of India,” he said.
Does Personal Laws come under Article 13 and can state intervene to it??
The High Court said that the obvious reference usage under Article 13 indicates that constitution makers do not want to include personal law within the ambit of Article 13, as it is intimately connected with liberty to practice religion of one’s choice.
But the court observed that the State can intervene in personal law to the permissible limit either by bringing legislation in tune with the religious precepts or doctrine or practices, or by making secular law not repugnant to the religious practices or beliefs of a particular group.
“The empirical finding establishes that triple talaq as practiced in India in almost all the case is not by following Qur’anic injunctions and such practices are allowed in the name of religion, without its backing. It is not possible for the State to curb such practices by invoking penal law alone for the Muslims in India. The only way out for the State is to find out the meaning of rationale of the personal law and to regulate divorce in accordance with the purpose of law. This leads to the important question within the perspective of Islamic law as to the reforms in compliance with divine law as professed by Muslims.”
Uniform civil code: An urgent need of society
Drastic times calls for drastic measures. Implementing Uniform Civil Code is one such measure which is demandable in the society. Justice Mustaq observed that while emphasizing the need for national oneness in areas where it is possible and allowing citizen to have their own identity based on religious practices or belief, endeavour shall be made for common code of conduct to regulate behavior of subjects.
The court was of the opinion that there are many areas where there can be Common Civil Code without there being conflict between the religious law and secular law and the marriage law is one example for codification of law. Finally, the court said it is for lawmakers to correlate law and social phenomena relating to divorce through the process of legislation to advance justice in institutionalized form.
Indore Institute of Law