Centre opposes triple talaq, polygamy among Muslims in SC

Centre opposes triple talaq, polygamy among Muslims in SC

New Delhi: For the first time in India’s constitutional history, the Centre today opposed in the Supreme Court the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.

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.

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 men-folk is incompatible with the letter and spirit of Article 14 and 15 (Right to Equality) of the Constitution”.

Linking the issue with the Right to Life and Personal Liberty, the Centre in its 29-page affidavit said “gender equality and the dignity of the women are non-negotiable, overarching constitutional value and can brook no compromise.

“These Rights are necessary in letter and in spirit not only to realise the aspirations of every individual woman who is an equal citizen of this country but also for the larger well-being of the society and progress of the nation, one half of which is made up by women”.

The Centre’s affidavit said women must be made equal participants in the development and advancement of the world’s largest democracy and any practice, which denuded their status as citizens due to religion, is an “impediment” in achieving the larger goal.

It also referred to various apex court judgments to buttress the point that fundemental rights like Right to Equality and life with dignity formed part of the basic structure of the Constitution and hence were non-negotiable.

The Centre also said that the nation, being a founding member of the United Nations, was committed to international covenants and the UN Charter which spoke about equal rights for men and women.

The affidavit extensively dealt with the issue of personal laws in relation to fundemental rights.

“Personal law must be examined in the light of overarching goal of gender justice of women… The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to under the Constitution as citizens of India,” it said.

It also sought reconsideration of a 1952 Bombay high court judgment which had said that customs of polygamy, prevalent in some parts of Maharashtra, cannot be held to be unconstitutional.

The affidavit also said that personal law is a “law” within the meaning of the Constitution and “any such law which is inconsistent with fundamental rights is void”.

Referring to the recent affidavit filed by All India Muslim Personal Law Board (AIMPLB) in the instant case, the Centre said the practices of triple talaq, nikah halala and polygamy cannot be regarded as an essential part of the religion and hence not entitled to protection under Article 25 (Freedom to practice religion) of the Constitution.

“It is significant to note that in the counter affidavit … filed by AIMPLB, the practices of triple talaq and polygamy are referred to as ‘undesirable’. It is submitted that no ‘undesirable’ practice can be elevated to the status of an ‘essential religious practice’, much less one that forms the substratum of religion,” the affidavit said.

Dealing in detail with the idea of secularism, the government said that in a secular democracy, the state has no religion, which moreover has already been held to be the basic structure of the Constitution.

“It is submitted that secularism being a hallmark of Indian democracy, no part of its citizenary ought to be denied access to fundamental rights, much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reforms,” it said.

The Ministry of Law and Justice has also provided a list of Islamic countries including Pakistan, Bangladesh, Turkey and Afganistan and the changes made there in marital law.

“It is noteworthy that even theocratic states have undergone reform in this area of law and therefore in a secular republic like India, there is no reason to deny women the rights available under the Constitution.

“The fact that Muslim countries where Islam is the state religion have undergone extensive reform goes to establish that the practice in question cannot be regarded as integral to the practice of Islam or essential religious practices,” the affidavit said.

The Centre, however, made it clear that it may file a more detailed affidavit if required.


  1. “For the first time in India’s constitutional history….” – Report referring to Central govt’s latest move to oppose a few discriminatory practices.

    Shabhaash!! Shabhaash!! The so-called ‘Hindu’ party (used as a slur by morally bankrupt sections of our society) is doing more to Muslim women, their rights and dignity than all the pseudo-secular intellectuals and political parties combined in the past 70 years!!!!!! These patriarchal laws are reminiscent of an era where women were systematically subjugated, abused and prevented from living a quality life. It’s such a shame that India, a self-declared secular democracy, did avoid talking about this open discrimination of women all these years. In fact, you all know who reversed the Supreme Court judgement in Shah Bano case!! It’s the same pseudo-secular party that pretends to be champions of minorities group and survives on minority ‘vote bank’.

    Every fake-intellectual and stenographer who self-censored any discussion on this subject all these years should be ashamed of themselves. They never lost any sleep while fully knowing that women in a particular community (almost 50% of the population) were getting abused and exploited. Now that Central govt has taken the bold step, will the ‘secular’ groups come forward and stand with women? Let’s wait and see. If past is any indication, these pseudo-secular groups have no shame, values or decency!! For them oppression and injustice are a small price to pay to keep the fire of sanaathana dhwesha burning!!!!

  2. When will SC court will give justice who deceived his own wife and deliberately excluded to fill the wife name in the affidavit?

    A new trial to try the sentiment of minorities to impose ‘Uniform civil code’.

    Jai Hind

    • A new trial to try the sentiment of minorities to impose ‘Uniform Civil Code’. Mr. SheikheraNNA

      Ayyo SheikharaNNA, in this time and age the UCC is a MUST. Why are you against it?

  3. It is not ‘Uniform civil code’ but ‘uniform civil code’ is the need of the hour. It is the women empowerment in this time and age.

    We all have set of codes in the subject.Supreme court, RSS political wing BJP nor Ministry of law has the in depth knowledge of this subject.

    If the BJP can Pakistan,Saudia law to enforce,then there are other negative which might affect the integrity of nation.This is more of internal matter of the community rather than BJP’s interest.

    If need more role of women rather selfie with daughters.
    Jai Hind

  4. “If the BJP can Pakistan, Saudia law….blah blah blah” goes on Sheikh in his incoherent post.

    There is no surprise to hear this from Sheikh. The real embarrassing thing is to see how stenographers have stayed away from this subject all these years!! So much for the secular values they pretend to fight for!!!LOL LOL LOL Fortunately, some media outlets like Times Now and Zee news have decided to openly address this topic. Watch this very interesting and entertaining debate on Zee news:


  5. “Currently, Prostitution in India is a Rs. 40,000 crore annual business. Nobody knows what use this money is put to. This black money further leads to a vicious circle of crimes and thus leads to irreparable damages to the society and economy. According to a survey, there are approximately 10 million sex workers in India out Of which 1, 00,000 are in Mumbai alone, Asia’s largest sex industry centre. There about 300,000 to 500,000 children in sex trade in India,among which Bangalore along with five cities together account for 80 % child prostitutes in the country. This is the extent to which prostitution is prevalent in India.”
    The BJP Government came to the power with a clear Corporate-Communal agenda, and the last two and a half years have provided more than ample evidence that it has been aggressively pursuing both without any dilution of sincerity or effort. Hardly any day passes without a communal issue having hit the media. But when the corporate agenda faces a threat from a religious or communal agenda, it is the corporate agenda which ultimately prevails. Otherwise, what will explain the fact that a Government in control of a party which boasts of Hindu Dharma as its driving force has never felt concerned about the hugely adverse effects of alcohol and ever rising nakedness and prostitution in the country? All these affect women more than anyone else. Why then is there no support to a blanket ban on alcohol and prostitution? Why has the Government not taken any action to ensure that women including Hindus get their shares in the properties of their parents? Why has the Government not launched an all-out offensive against Female Foeticide? Why is their concern limited to the victims of Triple Talaq alone?
    Does 56 inch has any space for prostitutes, victims of alcohol and female infanticide other than ‘selfie with daughter’?

    Jai Hind

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