Verdict On Constitutional Validity Of ‘Triple Talaq’ Today:- A historic judgment on the controversial issue of whether the practice of ‘triple talaq’ among Muslims is fundamental to the religion would be pronounced by the Supreme Court on Tuesday .
The verdict on May 18 was reserved after a six-day marathon hearing during the summer vacation by a five-judge constitution bench headed by Chief Justice J S Khehar. During the hearing, the apex court, had clarified that it may not intend upon the issue of polygamy and said that it would only examine “whether triple talaq was part of an enforceable fundamental right to practice religion by the Muslims.”
Apart from CJI Khehar (Sikh), the bench, made up of judges from different religious communities also included Justices Kurian Joseph (Christian), R F Nariman (Parsi), U U Lalit (Hindu) and S Abdul Nazeer (Muslim). The bench had heard seven different petitions, including five separate petitions filed by Muslim women. The women challenged the prevalent practice of triple talaq in the community. The practice of ‘triple talaq’ was unconstitutional, claimed the petitioners.
The practice of ‘triple talaq’ was challenged by the Muslim women, who had filed the petitions. As per the triple talaq, to get a divorce the husband pronounces ‘talaq’ thrice in one go, sometimes even by phone or a text message. The triple talaq practice was the worst and “not a desirable” form of dissolution of marriage among Muslims, even though there were schools of thought which called it “legal”, observed the apex court during the hearing.
The practice of triple talaq was attacked by several lawyers, including noted jurist Ram Jethmalani on various constitutional grounds including the right to equality and termed it “abhorrent”. It was argued that triple talaq on the ground of sex was a discrimination and this practice was abhorrent to the tenets of holy Quran and no amount of advocacy can save this “sinful” practice which is contrary to constitutional tenets. The bench was informed by the Centre that if ‘triple talaq’ is held invalid and unconstitutional by the apex court, it will come out with a law to regulate marriage and divorce among Muslims. All the three forms of divorce among the Muslim community – talaq-e-biddat, talaq hasan and talaq ahsan, were termed by the government as “unilateral” and “extra judicial”.
It has said that all personal laws must be in confirmity with the Constitution and rights of marriage, divorce, property and succession has to be treated in the same class and has to be in conformity with the Constitution. The Centre had said ‘triple talaq’ is neither integral to Islam, nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.
As the Centre had insisted deliberations on these aspects as well, the issues of polygamy and ‘nikah halala’ among Muslims were kept open for adjudication in the future said the apex court. The issue of 'triple talaq' was equated by Senior advocate Kapil Sibal, appearing for All India Muslim Personal Law Board (AIMPLB). Sibal equated the issue of 'triple talaq' with the belief that Lord Rama was born in Ayodhya and these were matters of faith which cannot be tested on grounds of constitutional morality. Since 637 AD, triple talaq has been there and as Muslims have been practicing it for last 1,400 years, it cannot be termed as un-Islamic. Either Parliament can enact a law or it should be left to the community itself to deal and the court should not interfere on the issue, said Sibal.
During the hearing, the AIMPLB was asked by the apex court, at the time of execution of ‘nikahnama’ (marriage contract) whether a woman can be given an option of saying ‘no’ to triple talaq. The Muslim bodies were asked by it how a practice like triple talaq could be a matter of “faith” when they have been asserting that it is “patriarchal”, “bad in theology” and “sinful”.
The constitutional validity of other practices like ‘nikah halala’ and polygamy among Muslims, was also challenged by a batch of petitions. The bench had taken up the main matter on its own as a petition titled “Muslim Women’s quest for equality”. The cognizance of the question, was taken on its own by the apex court that in the event of divorce or due to other marriages of their husbands whether Muslim women faced gender discrimination.