SC to Muslim Board: Can you give wife an option in contract to say no to triple talaq?

The bench is hearing seven petitions, including five filed by Muslim women, challenging the practice of triple talaq, polygamy and nikah halala.

Written by ANANTHAKRISHNAN G , Abantika Ghosh | New Delhi | Updated: May 18, 2017 3:23 am
Triple Talaq, Supreme Court, SC Triple Talaq, Mukul Rohatgi, Kapil Sibal, Islam, Muslims, Muslim community, polygamy, nikah halala, AIMPLB, triple talaq news, india news, indian express news The AG said that the “court cannot say there is no legislation, so we are powerless”. (Representational photo)

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.”

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  1. A
    abdul
    Jun 26, 2017 at 1:08 pm
    Instant Triple Talak is not mentioned in Quran / hadith. Both Husband and wife have the right to divorce. Divorce is to be carried out in 3 periods. Unfortunately muslim society are not aware of the sharia law mentioned in the Quran.
    Reply
    1. C
      ConcernedCitizen
      May 18, 2017 at 7:43 pm
      Can the Supreme Court ask the Board if they would consider enab Muslim Women to say Triple Talaq? Does the Quran say only men are allowed to say Triple Talaq?
      Reply
      1. R
        Rajeev
        May 18, 2017 at 7:33 pm
        This 'not integral part of islam' argument is deeply flawed. If it is proved tomorrow that violent jihad is an integral part of islam, will it be legalized? How about islamic banking? Should we allow that? I think we can byp all this if we allow sharia courts. They will frame laws and dispense justice to muslims and 'infidels'.
        Reply
        1. V
          Vinitsharma
          May 18, 2017 at 4:54 pm
          Board 's argument is that Hidath allows TT. Hidath is the compilation of actions and habits of The Prophet. Considering this, whether Prophet used TT? If no then legality of TT based on Hidath can be questioned.
          Reply
          1. T
            TRUTH OF
            May 18, 2017 at 12:34 pm
            TO SUPREME COURT CAN THE SO CALLED UNIFORM LAW MAKES ANY HINDU HUSBAND ACCEPT HIS WIFE HEART FULLY IF HE INTENT TO DIVORCE HER? IF THE ANSWER IS NO THAN YOUR ABOVE QUESTION REALLY DO NOT JUSTIFY?
            Reply
            1. I
              indian man
              May 18, 2017 at 12:20 pm
              Who introduced triple talak.?? Was he married? Was he a scholar?
              Reply
              1. G
                Giri Gowda
                May 18, 2017 at 12:00 pm
                The Hon. Court should never shy away from inclining towards Uniform Laws... It should deal the situation without any fear of an imaginary outbreaks if it delivers the required justice to poor Muslim women and children...
                Reply
                1. J
                  Joji
                  May 18, 2017 at 11:27 am
                  In Islam divorce in One Way. Both wife and husband has the right to divorce the spouse. Once pronounced, no withdrawal. Divorce is confirmed in 3 stages. First and second stage are the warnings to the end giving time to both wife and husband to reconcile. Otherwise, both are free to lead their life on their own. Unfortunately people are hasty because nowadays marriage has become not a bond between 2 souls but cuff. So every one wants to get rig of the cuff immediately and misuse divorce pronouncement in the way of triple at one time. Wrong conception among Muslims. Our cultural and social fabric becomes very weak.
                  Reply
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