Is triple talaq religious practice? If out, how will Muslim men divorce, asks SC

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.

Written by ANANTHAKRISHNAN G | New Delhi | Updated: May 12, 2017 10:27 am
Triple talaq, triple talaq law, supreme court triple talaq, triple talaq hearing, muslim divorce, triple talaq debate, india news, indian express news Advocate Farah Faiz, one of the petitioners in the triple talaq case, outside the Supreme Court on Thursday. (Source: PTI Photo)

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.

Related | No solid numbers for triple talaq, but divorce data show interesting trends

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).

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  1. S
    S. Kumar
    May 12, 2017 at 9:21 pm
    It seems to me that the judges are looking for excuses to maintain the status quo.
    Reply
    1. S
      Sajed Syed
      May 12, 2017 at 9:12 pm
      If SC does not stand up and make a ru based on Women rights, equality and fairness to the oppressed, I will give Triple Talaq to Law and Order. I will do what my forefathers in medieval times did, 'Rule of Jungle" and "might is right", that is what was the original law and religion, and if I follow that do not blame me. Do not impose your civilized penal code on me. that is an infringement of my religious rights. Got it!!!
      Reply
      1. J
        John Joseph
        May 12, 2017 at 1:34 pm
        If stan and 21 other countries have abolished triple talaq, why can't India? A large section of Muslim women has been demanding an end to triple talaq. It is time the Sunni Muslim men who are use daily to slaving women give up their slave ownerships. The Indian Sunni jihadi men's position is in sharp contrast to the dominant trend worldwide. As many as 22 Muslim countries – including stan and Bangladesh – or their provinces have abolished triple talaq either explicitly or implicitly. The list includes Turkey and Cyprus, which have adopted secular family laws; Tunisia and Algeria and the Malaysian state of Sarawak, which do not recognise a divorce pronounced outside a court of law; and Iran, where triple talaq doesn’t have validity under its Shia law.
        Reply
        1. S
          SP
          May 12, 2017 at 1:31 pm
          Triple Talaq , Halala , Polygamy , Burqua , Skull Cap , Azaan , Special Beard, Madrrassas are part of iden y social and ru politics of a highly aggressive proselytizing community having violent religious theology mixing religion , social norms and politics to achieve / aid proselytizing . It is out of place in the background of Indian secular state/ republic. The court question should have been- where the men and the women desiring separation will go to ? The answer is to the Uniform Civil Code of India.
          Reply
          1. J
            John Joseph
            May 12, 2017 at 1:07 pm
            How can you justify from Quran for triple talaq. Well The Quran contains at least 109 verses that call Muslims to war with nonbelievers. No wonder terrorists use it to justify. Some are quite graphic, with commands to chop off heads and fingers and kill infidels wherever they may be hiding. Muslims who do not join the fight are called 'hypocrites' and warned that Allah will send them to if they do not join the slaughter. Most verses of violence in the Quran are open-ended, meaning that they are not necessarily restrained by historical context contained in the surrounding text (although many Muslims choose to think of them that way). They are part of the eternal, unchanging word of Allah, and just as relevant or subject to interpretation as anything else in the Quran. The context of violent passages is more ambiguous than might be expected of a perfect book from a loving God. Most contemporary Muslims exercise a personal choice to interpret their holy book's call to arms accordingly.
            Reply
            1. N
              Nitin Deolekar
              May 12, 2017 at 1:14 pm
              Due to Dirty Ambedkar-Nehru Laws, both Totally Failed to do common civil code; Muslim Sisters are suffering in India?? Pseudo?Secular??Nehru-Ambedkar gifted un-due facilities to Muslims in India? Who did not go to Pak and opted to remain in India. Mr.Ambedkar failed to do even common civil code?? He forced 1-wife act by Law for poor Hindu? forcing Hindu to go to courts even for simple mutual divorce; wasting Money as well as Prime Time in Life.. Due to Delay no child after 2nd marriage. So Hindu population is growing very slow compared to Muslims. However same Nehru-Ambedkar allowed 4-shadi Verbal Talak for Muslims !! so their population is growing 50 faster!! so their poverty and then few of them become ISIS terrorists, due to education in Madrassah, teacher ry paid by Great Govt at cost of we Majority Hindu tax payers!Now better reverse Mr.Ambedkar wrong laws? Dare to Apply 1-wife Law to Muslims and allow 2-shadi written Talak for Hindu!Apply China family planning law to Muslim
              Reply
            2. K
              Kg
              May 12, 2017 at 12:42 pm
              Do you know that their so called "unchanged" book was actually compiled by four tribal camel herders? If you look at their book, it is actually a conversation between four people who are recal what their prophet said about 100 years ago, they compile by looking at stones, leaves and loose talk.It was then again recompiled by another king, which is the present day version.
              Reply
              1. S
                salim
                May 12, 2017 at 12:36 pm
                Tripple talaq is unislamic. Quran says about two talaqs only. The conditions and terms are fully explained in chapter 65 of quran. No other reference is needed when clear instructions are there in quran. These do not need further explinations. If a muslim male follows all those conditions then there is chance of zero percent talaq. Allah says that amongst the lawfull things for muslims this one is most disliked by him. It should happen only in rearest of the rearest cases. As for ploygami again the laws are such that having a second wife and giving equal physogical and worldly status to both as asked by allah in quran is impossible. Even the rich number 1 cannot do that 100 . Therefore sc should refer to quran and ban tripple talaq just now. As for as bjps love for woman with tripple talaq is considered let them give justice to bilkis bano, gujrat roit victims of 1992. If bjp tallks in favour of muslim woman it smells a rat. Let them shut up and wait for sc.
                Reply
                1. J
                  John Joseph
                  May 12, 2017 at 12:56 pm
                  When people like you sunni Muslim male talk like this and blame BJP for everything then no wonder the world thinks all Muslim are terrorists. What has Koran to do with women getting equal rights? Can Muslim women give you triple talaq? Can Muslim women have multiple husbands or lovers. How can you be so illogical. You use Koran to justify the slavery of women. What is the difference between you and the terrorists who use the same example of Akira to bl0w innocent people citing verses where they will get 72 h s and kiII the Khafirs. No wonder there is no such thing as moderate Muslims. All of you are terrorists.
                  Reply
                  1. J
                    John Joseph
                    May 12, 2017 at 1:05 pm
                    The Quran contains at least 109 verses that call Muslims to war with nonbelievers. Some are quite graphic, with commands to chop off heads and fingers and kill infidels wherever they may be hiding. Muslims who do not join the fight are called 'hypocrites' and warned that Allah will send them to if they do not join the slaughter. Most verses of violence in the Quran are open-ended, meaning that they are not necessarily restrained by historical context contained in the surrounding text (although many Muslims choose to think of them that way). They are part of the eternal, unchanging word of Allah, and just as relevant or subject to interpretation as anything else in the Quran. The context of violent passages is more ambiguous than might be expected of a perfect book from a loving God. Most contemporary Muslims exercise a personal choice to interpret their holy book's call to arms accordingly.
                2. K
                  Kg
                  May 12, 2017 at 12:32 pm
                  Where do Muslim men go in UK, Australia,Europe, US, entire South America and and an? What kind of question is that? In all of the countries above, there is NO SEPARATE CIVIL OR CRIMINAL LAW.What do Muslims do there? They follow the law;there it is not an "essential" practice to their religion? There, they don't 'protest' neither leave those countries instead they stand in ques to be allowed to enter.The point is,there they are less than 5 percent and the Christian majority is very particular.Here in India, because Hindus are so docile, they want to get away with everything.Hindus do not know even the meaning of secularism and everyone makes fool of them in name of secularism.All the countries mentioned above are secular but most of them also Christian. These Muslims only understand language of power,OTHERWISE you give them an inch being nice they will take a kilometer.They are the most coward people,they can only fight in a group, alone they dont have any courage or conviction.
                  Reply
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