New Delhi, April 10: The government today told the Supreme Court that practices like triple talaq and polygamy didn't have religious sanction and should be declared unconstitutional as they affected a Muslim woman's right to live with dignity and security.
The Centre said such rights were available to women of other religions and the "unreasonable differentiation/classification between Muslim women and non-Muslim women" could not be "countenanced in a secular country".
The contentions came in a written submission before the top court. A constitution bench will take up for consideration the validity of the two practices during the coming summer vacation, although no formal date has been fixed yet for the hearing sometime in May-June.
Madhavi Divan, the Centre's counsel, said practices such as polygamy "cannot be described as being sanctioned by religion".
Historically, Divan said, polygamy prevailed across communities for several centuries, including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians. "It had less to do with religion and more to do with social norms at the time. In the Holy Quran as well, it appears that the prevalent or perhaps even rampant practice of polygamy in pre-Islamic society was sought to be regulated and restricted so as to treat women better...," Divan said. "It is submitted that the practice of polygamy is a social practice rather than a religious one and therefore would not be protected under Article 25," the counsel added, contending that this was "true also of nikah halala and triple talaq".
So none of the three practices, Divan said, were "automatically" entitled to protection under Article 25, which guarantees the constitutional protection of freedom of religion.
The triple talaq, a provision of Muslim personal law, allows a man to divorce his wife by pronouncing the word "talaq" three times.
Nikah halala requires a divorced Muslim woman to marry another man, consummate the marriage and divorce him if she wants to remarry her earlier husband.
The government maintained that gender equality and dignity for women was an inalienable part of the basic structure of the Constitution, just like Articles 14, 15 (right not to be discriminated against) and 21 (right to life and liberty).
It said the practices under challenge - "namely triple talaq, nikah halala and polygamy" - have an "impact (on) the social status and dignity of Muslim women and render them unequal and vulnerable" and "deny... (them) the full enjoyment of fundamental rights guaranteed under the Constitution".
"There arises an unreasonable differentiation/classification between Muslim women and non-Muslim women who are both citizens of the same country. Such discrimination based on religion cannot be countenanced in a secular country," the government said.
It added that although "it may be true to say that only some women are... actually affected by these practices", the fact remained that every woman subject to these laws "lives under the threat, fear or prospect of these practices being invoked against her".
This, in turn, the government contended, "impacts her status, her choices, her conduct and her right to a life with dignity".