The Supreme Court is all set to pronounce its final judgement on the constitutional validity of the practice of ‘triple talaq’ among Muslim community at 10.30am today. A five-judge constitution bench headed by Chief Justice JS Khehar had reserved its verdict on May 18 after a six-day marathon hearing during the summer vacation. The apex court bench will deliver its verdict on whether the practice of ‘triple talaq’ is fundamental to Islam or not. A number of Muslim scholars have pointed out that 'triple talaq' is in practice for last 1,400 years. However, it's also true that this practice has been declared illegal in many Islamic countries.
During the hearing, the apex court had clarified that it may not deliberate upon the issue of polygamy and said it would only examine whether triple talaq was part of an “enforceable” fundamental right to practice religion by the Muslims.
Besides CJI Khehar, the bench also included Justices Kurian Joseph, R F Nariman, U U Lalit and S Abdul Nazeer.
The bench, made up of judges from different religious communities had heard seven pleas, including five separate petitions filed by Muslim women challenging the prevalent practice of ‘triple talaq’ in the community. The lead petition is by one Shayara Bano. The matter also involves a suo-moto case initiated by the Supreme Court in this regard.
The petitioners had claimed that the practice of ‘triple talaq’ was unconstitutional.
The Muslim women, who had filed the petitions, have challenged the practice of ‘triple talaq’ in which the husband pronounces ‘talaq’ thrice in one go, sometimes even by phone or a text message, to get a divorce.
36-year-old Shayara Bano was handed over a talaqnama (divorce) through post by her husband while she was with her parents at their home in Kashipur, Uttarakhand.
“It is not just about my sister. It is about all my sisters across the country, it is about future generations,” her brother Arshad Ali told The Indian Express.
Similarly, the husband of 30-year-old Ishrat Jahan, another petitioner in this case, was given talaq three times over phone by her husband who allegedly took away her four children, leaving her at the mercy of her extended family in Howrah.
During the hearing, the apex court had observed that the practice of ‘triple talaq’ 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”.
Several lawyers including noted jurist Ram Jethmalani had attacked the practice on various constitutional grounds including the right to equality and termed it “abhorrent”.
It was argued that triple talaq was a discrimination on the ground of sex 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 Centre had told the bench that it will come out with a law to regulate marriage and divorce among Muslims if ‘triple talaq’ is held invalid and unconstitutional by the apex court.
The government had termed all the three forms of divorce among the Muslim community—talaq-e-biddat, talaq hasan and talaq ahsan, as “unilateral” and “extra-judicial”.
It had 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.
However, the court was not appreciative of the government position that the top court should first pronounce on the constitutional validity of the triple talaq and other forms of talaq, only then it would bring a law.
"We may or may not (decide the issue), but you do," Chief Justice Khehar had said when the Central government told the court that it should step in a situation where there is no legislation.
The apex court had said it was keeping open for adjudication in the future the issues of polygamy and ‘nikah halala’ among Muslims as the Centre had insisted deliberations on these aspects as well.
However, senior advocate Kapil Sibal, appearing for All India Muslim Personal Law Board (AIMPLB), had 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.
He had argued that triple talaq has been there since 637 AD and cannot be termed as un-Islamic as Muslims have been practising it for last 1,400 years.
Sibal had said that 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.
Senior counsel Salman Khurshid, who was assisting the court in the matter, had said that "What was sinful in theology, can't be good in law".
"It (triple talaq) is not only not an essential part of Muslim religion, it is not a part of religion at all. On the contrary it is depreciated by Islam," he said.
The apex court during the hearing had asked the AIMPLB whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’ (marriage contract).
It had asked Muslim bodies 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”.
In last week of April, Allahabad High Court had termed the practice of triple talaq as ‘unilateral’ and ‘bad in law’.The court made the observations 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.
(With agency inputs)