A five-judge Constitution Bench of the Supreme Court started its hearing today, a batch of petitions challenging the constitutional validity of the practices of triple talaq, nikah halala (forms of divorce) and polygamy in Islam.
An interesting combination of five judges of five religions, have been included in the SC bench. It includes Chief Justice of India J.S. Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Nariman (Parsi), Justice Uday Lalit (Hindu) and Justice Abdul Nazeer (Muslim).
A few days earlier, Prime Minister Mr. Narendra Modi stated that the Muslims should not view the Triple Talaq issue, through a political prism. He even vowed to fight against the suffering of Muslim “daughters” in the country, and added that the government would work towards finding a solution to the triple talaq. The Centre has claimed that these practices are not protected under the right to religion, under Article 25 (1) of the Constitution. The main question for determination by this Court in this case, is in a secular democracy, can a religion be a reason to deny equal status and dignity, available to Muslim women under the Constitution.
On Friday, the All-India Muslim Personal Law Board, justified in the SC the “triple talaq” form of divorce, and reprimanded the court from interference with the personal laws, in the form of social reform and bringing in uniform civil code. All the three declarations of the triple talaq are effective and officially terminating the marriage is accepted by all the four prominent schools of jurists, namely Hanafi, Shafai, Maliki, and Hanbali. Though pronouncement of the triple talaq is considered an offence, it is still a valid and effective form of divorce, the board said.
In Islamic jurisprudence, several times an improper or irregular nature of an act does not affect the legal consequences of the Act. The board further said, though triple talaq, is the least appreciated form of ending a marriage, yet it is very much effective and in line with the Shariat law. Asking the court not to interfere with the freedom of religion, the board said the issues raised in the batch of petitions, have already been decided by the court and hence the issues need to be re-opened again.
The Centre said that it is of the view the dignity of women and gender equality are non-negotiable, embracing constitutional values and can brook no compromise. The above mentioned practices of the triple talaq impact the social status and dignity of the Muslim women, and give them unequal and unsafe qua men belonging to their own community; women belonging to other communities and also Muslim women outside India.
There are unreasonable classifications which arise from practices such as those under challenge in the present petition. The current petition denies to Muslim women the full employment of the fundamental rights guaranteed under the Constitution. The paradox is that even though the Muslim women in India live in a secular country, they are more vulnerable in their social status, because of the prevalence of such practices, said the Centre. The polygamy practice is a social practice, rather than a religious one, and therefore would not be protected under Article 25.
Issues to be adjudicated are:
1) The court will determine among other things whether triple talaq violated basic human rights of Muslim women who are subjected to this religious practice;
2) Whether the practices of talaq, nikah halala and polygamy are protected under Article 25 (1) of the Constitution (right to freedom of religion)
3) Whether Article 25 (1) is subjected to Fundamental Rights of Indian Constitution and in particular 14 (right to equality) and 21 (right to life) of the Constitution
4) Whether the practices of triple talaq are of a secular nature, namely marriage and divorce, and thus not protected under Article 25(1) although they may be considered as a part of religion?
5) Whether this practices run counter to Constitutional Morality that guarantees equality before law and equal protection of laws?
6) Whether instantaneous triple-talaq in one sitting (talaq-e-bidat) in the absence of witnesses and without any attempt at reconciliation and nikah-halala are legally permissible?
7) Whether this practice has been abolished by various Islamic states, which establishes the fact that such practice is not integral to the practice of Islam?
8) Whether the All India Muslim Personal Law Board and similar associations have the authority to determine and declare the personal law applicable in India for the numerous sects and sub-communities of Islam that exist in India and practice Islam in various ways?