THE ONGOING hearing of the triple talaq matter before a vacation Bench of the Supreme Court did not come because of an appeal by the central government. It has its origins in an order that a two-judge Bench of the court passed in a completely unrelated case in 2015.
On October 16, 2015, the Supreme Court ruled that the Hindu Succession Act, 1956, which was amended in 2005, could not be held to apply retrospectively. (Prakash and Ors versus Phulavati and Ors)
In Part II of the order, the Bench, consisting of Justice Adarsh Kumar Goel and Justice Anil R Dave, referred to injustices towards Muslim women, and laid the road for the registration of a PIL separately on the matter — issuing notices to the Attorney General and the National Legal Services Authority.
The court took note of “an important issue of gender discrimination” against Muslim women. “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,” the Bench said.
The court was of the view that such instances of gender discrimination as polygamy and “arbitrary divorce” could constitute a violation of Articles 14, 15 and 21 of the Constitution. The order mentioned that the Supreme Court had, on an earlier occasion, observed that “practice of polygamy is injurious to public morals and can be superseded by the State just as practice of ‘sati’.
“It was further observed”, the court said, “that conduct rules providing for monogamy irrespective of religion are valid and could not be struck down on the ground of violation of personal law of Muslims”. (Javed vs State of Haryana, 2003)
The order also mentioned that in John Vallamattom vs Union of India, 2003, “it was observed that Section 118 of Indian Succession Act, 1925 restricting right of Christians to make Will for charitable purpose was without any rational basis, was discriminatory against Christians and violated Article 14.”
The Bench then proceeded to observe: “Laws dealing with marriage and succession are not part of religion. Law has to change with time. International covenants and treaties could be referred to examine validity and reasonableness of a provision.”
The court said that a PIL should be “separately registered and put up before the appropriate Bench” to consider these aspects of gender discrimination. “Notice be issued to learned Attorney General and National Legal Services Authority, New Delhi, returnable on 23rd November, 2015,” it said.
The question before the Supreme Court currently is whether to review this matter in the light of the Constitution, or within the framework of whether triple talaq constitutes an essential religious practice. Taking up the Constitution question will raise the broader question of all practices under several religious laws of marriage and inheritance, a lot of which may be seen as not being strictly in conformity with the Constitution.
Questions have been raised, for example, about practices pertaining to personal law in Himachal Pradesh being allowed to exist despite their being at variance with practices in the rest of the country. Among Parsis, decisions are made by a system akin to the panchayat system. Among Christians, a Church tribunal takes decisions. In Hindu law, customs contrary to the Hindu Marriage Act, 1955, have been specifically protected by Section 29 (2) of the Act. And Section 2 of the Act makes it inapplicable to the Scheduled Tribes.
This vacation bench hearing has implications which go beyond its implications on the immediate matter at hand, of triple talaq. Once a bench decides that a practice seen inside personal law is violative of the Constitution, it opens a pandora’s box for a range of unconventional and apparently other unconstitutional elements from other personal laws to go.