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Is triple talaq fundamental to Islam? SC bench comprising 5 judges from 5 different faiths begins hearing

A Supreme Court bench consisting of five judges from five different faiths will start hearing on the constitutional validity of “triple talaq” from today which is also the first day of the Supreme Court’s summer vacation.

India TV News Desk, New Delhi [Updated:11 May 2017, 3:47 PM IST]

A Supreme Court bench consisting of five judges from five different faiths that began hearing on the constitutional validity of “triple talaq” from today, the first day of the Supreme Court’s summer vacation, said that it would examine whether the practice among Muslims is fundamental to their religion, but may not deliberate upon the issue of polygamy.

A five-judge bench headed by Chief Justice J S Khehar  said it would look into the aspect whether triple talaq is part of an "enforceable" fundamental right to practice religion by Muslims. 

The top court, however, said that the issue of polygamy among Muslims may not be deliberated upon by it as this aspect is unrelated to triple talaq. The bench, made up of judges from different religious communities -- Sikh, Christian, Parsi, Hindu and Muslim – is hearing seven petitions, including five separate writ petitions filed by Muslim women challenging the practice of triple talaq prevalent in the community.

The petitions claim that triple talaq is unconstitutional. 

The petition titled "Quest for Equality vs Jamiat Ulama-i-Hind" is being heard by Chief Justice of India J S Khehar (Sikh), Justice U U Lalit (Hindu), Justice Abdul Nazeer (Muslim), Justice Kurian Joseph (Christian) and Justice R F Nariman (Parsi).

Six petitions filed by Khuran Sunnath Society, Shayara Bano, Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri have also been tagged with this case.  

The Supreme Court will hear the arguments of all parties on a daily basis till May 19.

The apex court made it clear that each side will get two days each for canvassing their arguments on the two questions formulated by the bench and one day will be given for the rebuttal. It further said that it would stop any counsel who repeats the arguments.

"Each side can argue whatever they want but there should not be any repetition. They will only focus on the validity of triple talaq," the bench said. 

The case has become interesting as it has many parties with different opinions.

While one side consists of the victims of triple talaq, the other is represented by the central government which is standing with the victims. The third side is represented by Muslim Personal Law Board which is against any kind of interference in Shariat. And the fourth side is represented by lawyers like Salman Khurshid who believe that there is nothing like “triple talaq”.

The victims of “triple talaq”  are hopeful of a positive judgement because Prime Minister Narendra Modi is openly standing with them. The central government has already told the Supreme Court that it is strongly opposed to “triple talaq”.

The government argues that “triple talaq” is an insult to the self-respect of women and a violation of their human rights. The Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.

However, the Muslim Personal Law Board says that it’s a matter between two individuals and has nothing to do with human rights. 

AIMPLB had on March 27 told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.

The Board had also said the validity of the Mohammedan Law, founded essentially in the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution. It had said there was a need for "judicial restraint" before going into constitutional interpretation of these unless such an exercise becomes unavoidable. 

In fact, Jamiat Ulama-I-Hind President Syed Arshad Madani has gone to the extent of saying that the issue of “triple talaq” has been raised as part of a conspiracy against Muslim community.

It seems that Muslim leaders like Madani have conveniently overlooked the pain and trauma that the “triple talaq” victims have gone through.

The apex court had on its own taken cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.

The hearing assumes significance as the apex court has decided to hear the case during the summer vacation and is likely to sit on Saturdays and Sundays to expeditiously decide the contentious and sensitive issues arising in the matter.

It also holds importance as the Allahabad High Court in its verdict pronounced in the last week of April, had held the practice of triple talaq as unilateral and bad in law. The High Court verdict had come while dismissing a petition filed by one Aaqil Jamil whose wife had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq.

The apex court had on March 30 said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are "very important" and involve "sentiments". 

Every side in this case will have to provide answer to one question in the Supreme Court – who is to blame for making the lives of “triple talaq” victims nothing short of a hell? Does the blame lie with those who pronounced “tripke talaq” or the mullah-moulvis who are relentlessly defending “triple talaq”?

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