The Supreme Court on Thursday began hearing a batch of six petitions and a suo motu public interest litigation (PIL) that challenged the constitutional validity of Muslim practices such as triple talaq and nikah halala along with the issue of polygamy.
At the outset, the court declared that for the moment it would not enter the domain of polygamy and that it is “limiting itself to the question of triple talaq and the consequential question of nikah halala.”
“Polygamy is not a part of triple talaq, and hence we are not looking into it,” Justice Kurian Joseph said.
Though there are several related petitions -- more than 30, attached to the main case spearheaded by Shayara Bano, the apex court has clubbed them all together to discuss the larger issue whether triple talaq violates the fundamental rights of Muslim women.
The SC is venturing into the touchy topic of Muslim Personal laws for the first time since the famed Shah Bano case in April 23, 1985. After 32 years, the court has once again rallied to interpret and decide if the laws governing Muslim women protect their rights, or will the personal laws of religious communities be considered fundamental to their religion.
“We will also examine whether triple talaq is a part of enforceable fundamental right,” a multi-cultural all-male bench comprising of the Chief Justice of India JS Khehar, along with Justices Kurian Joseph, Rohinton Nariman, UU Lalit and S. Abdul Nazeer observed.
The case in the top court gains added significance now that the Allahabad High Court on May 9 held the practice of triple talaq unconstitutional.
Senior advocates Amit Chaddha, Anand Grover and Indira Jaising advanced the arguments in court number one. On the bench, a healthy debate ensued with active participation, particularly from Justices Joseph and Nariman.
During the hearing, the government reiterated its oft-repeated opinion that triple talaq and nikah halala were unconstitutional. Whereas, citing the Dissolution of Muslim Marriages Act, 1939, Chaddha stated that women have been given rights under the law to dissolve their marriage on several grounds.
Grover submitted that Sharia - jurisprudence as mentioned in the Quran -- is fixed and cannot be changed, though Hadees -- based on the teachings of the prophet hence subject to interpretation.
And Jaising, the lone woman among the battery of male lawyers, who is representing a collective of Muslim women, maintained that triple talaq was extra judicial since the women did not have an appelate authority to turn to if divorce was unequitable.
The theme of discussions though revolved around the fact that Triple Talaq did not find any mention in the Quran and that it was a practice that evolved through tradition. The question now remain, is this practice fundamental.
Senior counsel Salman Khurshid who entered in the proceedings at the eleventh hour, assisted the court on the nuances and the differences of Muslim laws.
The All India Muslim Personal Law Board and Jamaat-e-Islami Hind maintain triple talaq was a subject of faith and a personal law, thus making it “outside the ambit of judicial review.”
Analysis
Muslim women can approach a court if they want divorce. Muslim men can divorce their wives by merely uttering the word talaq thrice.
The Muslims consider marriage as a social contract where terms and conditions may be set at the time to nikah (marriage).
Talaq-e-bidat has been banned in 20 countries, including Pakistan and Bangladesh.
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