In what may turn out to be a landmark verdict, the Supreme Court is likely to pronounce its judgement in the contentious triple talaq case on Tuesday.
A five-judge Supreme Court bench, headed by Chief Justice of India J S Khehar, will decide the fate of the Islamic personal law practice of ‘triple talaq’ and whether it is violative of the fundamental and human rights of gender equality and dignity of Muslim women.
The bench, also including Justices Kurian Joseph, R F Nariman, U U Lalit and S Abdul Nazeer, had on May 11 commenced hearing on a bunch of petitions filed by various parties challenging the unconstitutionality of triple talaq, ‘nikah halala’ and polygamy.
The bench, made up of judges from different religious communities -- Sikh, Christian, Parsi, Hindu and Muslim, 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 decision 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 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.
Even the Supreme Court, while hearing the petitions challenging the constitutional validity of triple talaq, had termed the practice as the ‘worst and most undesirable form’ of dissolution of marriage among Muslims. CJI Khehar had even compared triple talaq to death penalty.
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 decision will also be a landmark verdict as CJI Khehar is retiring on August 27 and Friday is the last business day for him in the Supreme Court.
However, the decision on the validity of triple talaq could turn out to be a major constitutional challenge for the apex court. On one hand will be consideration of Muslim women’s rights to life, which they claim gets violated by the arbitrary bolt from the blue divorce by Muslim men, and on the other hand will be Islamic bodies like All India Muslim Personal Law Board (AIMPLB) terming this as a religious right under the fundamental right guaranteed under Article 30.
The Modi government has strongly supported the stand of Muslim women, saying that triple talaq violated the right to life and dignity of a Muslim married woman. On the contrary, to save triple talaq as a religious practice, AIMPLB had agreed to give similar triple talaq rights to women if she preferred to include that as a condition while signing the nikahnama.
The Centre had told the bench that it will come out witha 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 has said that all personal laws must be in conformity 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.
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.
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".
The batch of pleas had also challenged the constitutional validity of other practices like 'nikah halala' and polygamy among Muslims.
The bench had taken up the main matter on its own as a petition titled "Muslim Women's quest for equality". 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.
On March 27, the AIMPLB had told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.