The Supreme Court asked the All India Muslim Personal Law Board Wednesday if it was possible to include in the nikahnama (marriage contract) a provision enabling Muslim women to say no to triple talaq.
“Can it be made possible to give an option to a wife that she can say that she was agreeable to or not agreeable to it (triple talaq)? Is it possible to pass a resolution to all ‘qazis’ to include this condition (giving right to woman to say ‘no’ to triple talaq) in ‘nikahnama’? Give an option to wife to say ‘no’ to triple talaq,” the five-judge bench headed by Chief Justice J S Khehar said.
Senior counsel Kapil Sibal, representing the AIMPLB, said he would talk to board members and revert.
Later, seeking abolition of triple talaq, the Centre told the Supreme Court that the controversial provision was “not integral” to the practice of Islam as the bench wondered why it remained despite being considered “sinful”.
“Essential means those practices which are fundamental to practice of a religion, without which the super edifice of the religion would crumble. Triple talaq is optional. Courts have said that what is optional cannot be essential or integral,” Attorney General Mukul Rohatgi told the bench.
The bench, which includes Justices Kurien Joseph, U U Lalit, R F Nariman and Abdul Nazeer, is hearing seven petitions, including five filed by Muslim women, challenging the practice of triple talaq, polygamy and nikah halala.
The AG said the issue was not about majority versus minority, but about men versus women.
“The prism from which we see this is not majority versus minority. There is a schism in the minority community. This is an intra-minority tussle between men, who have been dominant over the years, have been the breadwinners, and women who have been weak,” he said, adding the court had two options. It could either test if the impugned provisions stand the test of fundamental rights guaranteed in the Constitution or apply the essential practice test, he said.
“Court is the guardian of fundamental rights. None of us are ecclesiastical, hence test is on Constitution. Constitution says even core practices of religion are subject to part three of Constitution… If that route is not followed by the court, it must follow the essential test,” said Rohatgi.
As far as the Hindu law is concerned, practices like Sati, untouchability and child marriage have been done away with, he added. However, the CJI pointed out that this was done by way of legislation and not through any judgment.
The AG then added that the “court cannot say there is no legislation, so we are powerless”.
During the course of the day-long arguments, the CJI also quoted from a book which, he said, was given to him by one of the parties to the litigation. According to the book, anything “biddat” is sinful, the CJI said. Putting this in context, CJI Khehar said, “you recite in every Friday prayer that talaq-e-biddat is a great sin”.
One of the counsel then explained that “biddat” refers to anything which was not originally part of the Quran but was added by scholars who interpreted it.
Earlier, Sibal told the court that only a “minuscule portion” of Muslims currently practise triple talaq but challenging its constitutional validity could even lead to a backlash in the community which may see it as an infringement on its rights. Consequently, they would end up supporting practices like polygamy and triple talaq, he added.
Sibal compared the Muslim community to small birds which are being preyed upon by golden eagles. The (Muslim) community’s nests must have the SC’s protection, he added.
Meanwhile, the influential Muslim organisation, Jamiat Ulama-i-Hind, has taken a stand at variance with that of the All India Muslim Personal Law Board when it told the court in a written representation that triple talaq is part of the Koran.
Jamiat argued that the mention (of triple talaq) in the Hadith as claimed by Sibal in court is sufficient reason for the perpetuation of triple talaq as both Quran and Hadith are authentic sources of Islamic jurisprudence. Admitting that Islamic scholars have differed over its interpretation, lawyers representing Jamiat told the court that Verse No. 230 of chapter Baqra of the holy Koran has been cited as a reference to triple talaq.
Earlier, arguing for the AIMPLB, Sibal had told the court that triple talaq is not there in the Quran but does feature in the Hadith which essentially is a compilation of actions, habits etc of Prophet Mohammed that is taken as a precedent in determining Muslim personal laws.
In a statement, Jamiat said: “…Jamiat thinks it as its onerous responsibility to argue before the Constitution Bench that triple talaq has been mentioned in the holy Quran.”