Case file: Background of the triple talaq matter, and key questions before apex court

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)

Written by Seema Chishti | New Delhi | Published:May 18, 2017 12:35 am
triple talaq, muslim divorce, triple talaq case, supreme court, three talaq, talaq talaq talaq, triple talaq verdict, what is triple talaq, indian express news, india news, explained An October 2016 file photo of a protest in Mumbai against ‘interference’ with the practice of triple talaq. Source: Nirmal Harindran/Archive

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Supreme Court had, on an earlier occasion, observed that “practice of polygamy is injurious to public morals and can be superseded by the State just as practice of ‘sati’.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.

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  1. A
    asma
    May 22, 2017 at 8:49 pm
    Allah own hate talaq so such punishment.Allah create human.So it is limit crossing to do something over his order.The effect of dirty air of dirty age also on muslims.Pure muslim face one problem but other face more and more problem around him.
    Reply
    1. M
      MyTake
      May 19, 2017 at 11:41 pm
      Have a Tripple Talaq lottery game to make some money out of its "popularity"!
      Reply
      1. S
        Samuel Johnson
        May 19, 2017 at 6:12 am
        I am amazed even in this DNAge we are talking about equal rights to men and women and trying to exempt the slavery of women by Muslim men in the name of Koran in a secular country where a woman should be treated equal to a man. If this was a Muslim country all bets are off. Even those Muslim countries have banned triple talaq and if this was a Koranic tradition then are they breaking it? How illogical mullah Muslim men are? Don't you have mothers and sisters and daughters? Shame on you. Shame on Indian system which is now giving equal rights to Muslim women versus Muslim men. Marriage is an equal responsibility between a man and a woman. So if they go equally into it how can a man unilaterally break it? Then why not allow the woman also to unilaterally break it? What is this 3 words mumbo jumbo by muslim men? Every Indian citizen including women except Muslim men have to follow the process of divorce with equal rights except Muslim men who can just say bye bye bye and his wife is gone.
        Reply
        1. A
          Aadis
          May 21, 2017 at 2:55 pm
          Dear Samuel, Don't interfere in any of the religion without proper knowledge. Talaq equally belongs to Men and Women and not a one sided issue . Divorce is highest Among Christians and lesser among Muslims, so study and come for another argument.
          Reply
        2. S
          S.P.Chakravarty
          May 18, 2017 at 6:57 pm
          This may be an opening to question the w issue of the role of religion in temporal matters in a secular society. The first port of call is the inheritance rule. Gender discrimination is more keenly felt by Hindu women because wills can byp the equal inheritance provision of the recently revised Hindu Succession Act. Muslim women have greater protection because testamentory powers governing wills are restricted.
          Reply
          1. S
            Samuel Johnson
            May 19, 2017 at 6:14 am
            I am amazed even in this DNAge we are talking about equal rights to men and women and trying to exempt the slavery of women by Muslim men in the name of Koran in a secular country where a woman should be treated equal to a man. If this was a Muslim country all bets are off. Even those Muslim countries have banned triple talaq and if this was a Koranic tradition then are they breaking it? How illogical mullah Muslim men are? Don't you have mothers and sisters and daughters? Shame on you. Shame on Indian system which is now giving equal rights to Muslim women versus Muslim men. Marriage is an equal responsibility between a man and a woman. So if they go equally into it how can a man unilaterally break it? Then why not allow the woman also to unilaterally break it? What is this 3 words mumbo jumbo by muslim men? Every Indian citizen including women except Muslim men have to follow the process of divorce with equal rights except Muslim men who can just say bye bye bye and his wife is gone.
            Reply
          2. K
            kapildevsuri
            May 18, 2017 at 9:31 am
            court who are hearing triple talaq case why is giving weightage to MUSLIM faith SHOWN BY MULLA AND MOLVIS . They are the sole interpreter of the rights of citizen irrespective of faith , community and religion. if muslim seek rights under indian cons ution they are bound to obey the law of land . due to political voting weightage even SC IS NOT. doing its duty rightly . if all indian are equal before law MUSLIm FUNDALAMIST CAN NOT CLAIM PRIVILEGE BEING FAITH . ACCORDING THEIR FAITH HINDUS ARE KAFIR . THEN ACCEPT THEIR VIEW AS IT IS MATTER OF FAITH FOR THEM ON CONTRARY HINDUS FAITH OF RAM TEMPLE IN AYODHYA CHILDREN ARE KILLED BY MULLA MULAY . , NO ACTION AGAINST ISLAM SUPPORTER. MULLA MULAYAM . KASH BHAGA?T SINGH , RAJ GURU, SUKHDEV , VEER SAVARKAR , NATHURAM GODSE ARE ALIVE TO KILL THE PRESENT DAY MULLA RAVAN SHOULD HAVE BEEN HANGED TILL NOW . COURTS WERE MUM ON THE BRUTAL KIL OF TWO KOTHARI BENGALI RSS WORKERS KOTHARI BUNDOO MERCILESSly GOVERNMENT should run by law ?
            Reply
            1. B
              Batra Hospital
              May 18, 2017 at 2:45 am
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              Reply
              1. S
                Samuel Johnson
                May 18, 2017 at 2:30 am
                Seema Chisti you are the only Muslim educated woman who is so backward when it comes to your thinking just because you are biased and fundamentalist. If triple talaq is fundamental to Islamic practice then why did sharia compliant Islamic countries like Pp stan and Bbaangladesh banned it? Are they not breaking the Koranic practice? And if India is not a sharia compliant country and it is a Hindu majority secular by choice country. Muslims cons uted four percent of India in 1947 after they divided India in religious basis and took thirty five percent of land for twenty percent of Muslims at that time. We even paid them as they were a new nation. What did I get in return? I still had four percent illegal Muslims left in India inspite of giving them their own land and massacre of Hindus and Sikhs and Bengali Shia at the hands of sunni Muslims. And three wars and Kargil misadventure by Ppaakistan. And on top of it 4 percent illegal Muslims in India multiplied like pigs to 20 percent.
                Reply
                1. F
                  Faku Faking
                  May 18, 2017 at 7:43 am
                  If the hindoos are suffering from eryctole dysfunction that is not the problem of muslims. Your wife should use the service of muslims to increase the population of your tribe.
                  Reply
                  1. M
                    Mohammad Dar
                    May 18, 2017 at 8:53 am
                    Problem is with hindu hom se xual men of hinduism immorality, they like to chase each other, before their own wife's. nothing negative but, a holy tradition of hinduism racism, as a faith.
                    1. K
                      Kareem
                      May 18, 2017 at 5:17 pm
                      Please use your language properly. It is because this language non muslims hate Islam. Be polite it doesn't matter who says what. But it matters if Islam is disrespected because of us
                      1. S
                        SR
                        May 19, 2017 at 11:32 am
                        Shame on both Pigs Faku Faking and Mohammed Dar for such obscenity and filth. Argue on the basis of logic and reason instead of filth. Otherwise all of us will start hating Muslims who are unfit to live amingst Human Beings
                      2. M
                        Mohammad Dar
                        May 18, 2017 at 8:55 am
                        It is not banned but, it has no legal authority , as an act of finality, A lady has every right to contest it in a court, for her right.
                        Reply
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