The All India Muslim Personal Law Board (AIMPLB ) told the Supreme Court on Monday that if triple talaq as a mode of divorce was declared illegal, it would amount to disregarding Allah's directions and rewriting of the Holy Quran.
The AIMPLB said the validity of Mohammedan Law, founded essentially on the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution. It said there was a need for "judicial restraint" before going into constitutional interpretation of these unless such an exercise becomes unavoidable.
Stressing that personal law provisions are guarded by the Constitution, the AIMPLB said the issues, raised through a batch of petitions, fell within the legislative domain, and since divorce was an issue of private nature, it cannot be enforced by bringing it under the ambit of fundamental rights.
It said the petitions were "misconceived" and the challenge was based on incorrect understanding of the Muslim Personal law, contending the Constitution grants freedom to every religious section to manage its own affairs in matters of religion.
While opposing the pleas on issues, including alleged gender discrimination faced by Muslim women in divorce cases, the board said the points raised in the petitions are matters of legislative policy and fall outside the sphere of the judiciary.
"The preamble of the Constitution clearly enshrines values of liberty of thought, expression, belief, faith and worship. Further, Article 25 of the Constitution, guarantees freedom of conscience and freedom to profess, practice and propagate religion." the AIMPLB said.
Telling the SC that it has no right to challenge the legality of personal law provisions, the AIMPLB said that personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority and the foundational sources of personal law are their respective scriptural texts.
"The Mohammedan Law is founded essentially on the Holy Quran and sources based on the Holy Quran 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," the AIMPLB told SC, three days before the final hearing on the matter.
"It is humbly submitted that this court ought not to venture into the area of changing personal laws by following the trend in several other countries. It is pertinent to note that any change or reform that comes with the backing of legislature takes due care of diverse cultural background, sensitivity and sensibility of the stakeholder community and thus in spirit adheres to both the principles i.e the principle of democracy and principle of separation of powers." it said.
"It is important to note that changes in other countries, with a distinct socio-cultural and even legal background must not be applied in Indian context without appreciating the distinct nature of the Indian society as doing so shall not only destroy the democratic legislative process underlined in the Constitution of India but it shall also be great injustice to the followers of Islam in our nation," the AIMPLB said.
(With inputs from PTI)