Court can't test validity of personal law: Muslim group to SC

Low point The Supreme Court

The Supreme Court on Friday allowed the Jamiat Ulama-i-Hind to become a party in a suo motu PIL instituted to deal with various issues including gender bias against Muslim women, with the organisation contending that the court cannot test the validity of personal law.

A bench comprising Chief Justice T. S. Thakur and Justices A. K. Sikri and R. Banumathi, which had issued notices to the Attorney General and National Legal Services Authority on the PIL, directed the Centre and the organisation to file reply within six weeks.

In its plea, Jamiat Ulama-i-Hind has contended that the apex court cannot examine the constitutional validity of the practices of marriage, divorce and maintenance in Muslim personal law on the ground that provisions of personal laws cannot be challenged by the reason of fundamental rights.

"Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts.

"The Mohammedan Law is founded essentially on the Holy Koran and thus it cannot fall within the purview of the expression 'laws in force' as mentioned in Article 13 of the Constitution of India, and hence its validity cannot be tested on a challenge based on Part III of the Constitution,"it said.

Last year, the apex court had ordered registration of a PIL and asked the Chief Justice to set up a Special Bench to deal with issues relating to the challenge to the Muslim Women (Protection of Rights on Divorce) Act.

It had noted that the issue was not merely a policy matter but concerns the fundamental rights of women guaranteed under the Constitution.

The issue had cropped-up during the hearing of a matter related to Hindu Succession (Amendment) Act and the bench had noted that "an important issue of gender discrimination which though not directly involved in this appeal, has been raised by some of the counsel for the parties which concerns rights to Muslim women. Discussions on gender discrimination led to this issue also."

"It was pointed out that inspite of guarantee of the Constitution, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her," it had noted.

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