A five-judge Constitution bench of the Supreme Court on Thursday began hearing arguments on a batch of petitions challenging the Constitutional validity of “instant triple talaq” (talaq-e-bidat) with some contending that “the practice was not part of Islamic law” and was liable to be struck down as “unlawful and unconstitutional.” The apex court wondered whether there was any alternate remedy open to Muslim men to seek divorce in case the controversial provision was done away with.
“If all the three forms of talaq are held bad in law, where will the Muslim man go for divorce?” the bench headed by Chief Justice of Indian J S Khehar sought to know.
The court is hearing seven petitions, including five filed by Muslim women challenging the practice of polygamy, nikah halala and triple talaq in the community. Other members on the bench are Justices Kurien Joseph, U U Lalit, R F Nariman and Abdul Nazeer.
The court raised the query when Additional Solicitor General Tushar Mehta said the Centre was opposed to all forms of triple talaq. The ASG’s comments came as the court was hearing senior counsel Indira Jaising who contended that “the question is if the triple talaq provision is unilateral, where do the women go (for remedy)?”
Jaising added that it was up to Parliament to come up with a law in this regard to which Justice Kurien Joseph remarked: “If the Parliament does not, can this forum (do it)? Many a time, this court has thrown it to the Parliament but they have not done anything.”
As soon as the bench assembled for the day, CJI Khehar made it clear that the court will only examine the question of triple talaq — whether it was fundamental to the practice of the religion. Although the question of polygamy in the Muslim community, too, was sought to be raised by some of the petitioners, the court said this was unrelated to triple talaq and it would not go into it.
However, Additional Solicitor General Tushar Mehta told the court that the Centre was against all forms of triple talaq and would argue on all aspects of gender justice including polygamy. The Centre will commence its arguments in the matter on Monday.
Opening the arguments for the petitioners in a packed courtroom, senior counsel Amit Singh Chadha, appearing for Shayara Bano, said: “The Muslim husband’s right to ask for divorce by uttering talaq three times in a row is completely unilateral, unguided, absolute and has no rationale. It cannot be identified with Muslim culture and is not part of Muslim law. So it is not part of religion and hence not part of the right to practise or propagate religion and deserves no protection.”
Bano, who hails from Uttar Pradesh, was divorced by her husband after 15 years of marriage by pronouncement of triple talaq and the divorce deed was sent to her by post.
Opinion | The battle against ‘triple talaq’
In a written statement, Chadha said: “Talaq given by post, or over telecommunications systems (e.g. SMS or WhatsApp), or over the Internet (Email or Facebook), are neither contemplated by the Holy Quran nor permissible, as there are no witnesses in such pronouncement of talaq. However, there is no protection for Muslim women of India against such arbitrary divorce. Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power. Such discrimination and inequality in the form of unilateral triple-talaq is abominable when seen in light of the progressive times of the 21st century. Further, once a woman has been divorced, her husband is not permitted take her back as his wife even if he had pronounced talaq under influence of any intoxicant, unless the woman undergoes nikah halala which involves her marriage with another man who subsequently divorces her so that her previous husband may re-marry her.”
The counsel questioned the authority of the All India Muslim Personal Law Board and Jamiat Ulama-i-Hind to frame and enforce rules for the community.
“The AIMPLB and Jamiat Ulama-i- Hind are only private organizations. They neither have any statutory or legislative recognition nor are they representatives of the Muslim community or interpreters of the tenets/religious practices of Islam. The AIMPLB has no power to frame and enforce rules that may govern Muslim citizens of India, but the AIPMLB nevertheless projects itself in a different light. It is submitted that an association of persons has no legal power or right to dictate or interpret personal law in a democratic nation, especially for non-members,” he said.
Pointing out that many Islamic nations across the world, including Pakistan, Afghanistan, Egypt and Iran “do not recognize the husband’s right to unilaterally divorce through triple talaq and various other nations have undertaken significant legal reforms in this domain,” he added this “fortifies the fact that the impugned practices are not an essential tenet of religion”.
Appearing for AIMPLB, senior counsel Kapil Sibal, however, said these countries had undertaken the changes by way of legislation and that the court must not step into it. Jaising argued that the issue raised the larger question whether “personal laws will have to stand the scrutiny of fundamental rights.”
“In 1951, the Bombay High Court, in an order, said personal laws do not fall within the definition of law and cannot be touched. The judgement still holds. Though the question (whether personal should stand the scrutiny of fundamental rights) came up for the consideration of the apex court many times, it chose not to answer it,” Jaisingh said adding that the question will have to be settled some day.
CJI Khehar and Justice Lalit however, said there was no need to raise the personal law argument in this case as triple talaq had become a part of the statute after The Muslim Personal Law (Shariat) Application Act of 1937.
At one point, Jaisingh said that Muslim personal law was better than Hindu law on some counts as there is express consent of the woman to the marriage in the former while in the Hindu system, it is implied when she enters the mandap. Justice Kurien, however, sought to point out to the counsel that even in the latter, what she was referring to as the rituals in the mandap cannot happen without consent (of both parties).