Team  SoOLEGAL

Supreme Court: Triple talaq is worst undesirable way to end Marriage among Muslims

Team SoOLEGAL 12 May 2017 3:55pm

Supreme Court:  Triple talaq is worst undesirable way to end Marriage among Muslims

On Friday, Supreme Court termed triple talaq as the "worst and undesirable form" of dissolution of marriage among Muslims while hearing the pleas regarding triple talaq.

There are "school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims," a five-judge constitution bench, headed by Chief Justice JS Khehar, said on the second day of continued hearing on the matter.

Senior Advocate Ram Jethmalani calls triple talaq "abhorrent". He said it does not give women equal right to divorce. The watching came when former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, told the bench that it is not an issue where judicial scrutiny is required and moreover women have the right to say 'no' to triple talaq by stipulating a condition to this effect in 'nikahnama' (marriage contract).

Yesterday, the apex court said made it clear that it would only hear cases related to the unlawful practice of triple talaq and assess whether the put into practice among Muslims is fundamental to their religion.The five-judge SC bench has already started hearing the pleas in the case but has made it clear that it would not have any say pertaining to the practice of Polygamy or multiple marriages.Every eye is on the apex court for whether it can examine the claim of Muslim clergy that the practice of triple talaq has the approval of the holy book Quran.

The bench comprising of Justices J S Khehar, Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer said, “We will not go into the issue of polygamy and nikah halala. If we come to the conclusion that triple talaq is part of the fundamental right to practice religion, then we will not proceed further.”

“The issue of the practice of polygamy among Muslims may not be part of its deliberations,” it said.

Earlier this month, the All India Muslim Personal Board released opposed any sort of probable amendments to triple talaq in a pro forma submitted to the Law Commission and the BJP government has rejected the contention, saying the Constitution and fundamental rights guaranteed under it take precedence over personal law.

The bench, however, said the issue of polygamy among Muslims may not be deliberated upon by it as this aspect is unrelated to triple talaq.

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.

The apex court also made it clear that it would stop any counsel who will repeat 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 apex court had last month decided that it will be resolving the debate on triple talaq “once and for all.”

“Whatever this question of triple talaq is, it will be settled for good,” the Supreme Court had said.

The apex court earlier 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 also made it clear 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 pleas have also challenged the constitutional validity of other practices like 'nikah halala' and polygamy among Muslims.

The bench is also taking 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.

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 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".

Influential Muslim organisations like the All India Muslim Personal Law Board (AIMPLB) have opposed court's adjudication of these matters, maintaining these practices stemmed from the Holy Quran and were not justiciable.

The Muslim women, who have filed the petitions, have challenged the practice of triple talaq in which the husband, quite often, pronounces talaq thrice in one go, sometimes even by phone or text message.

Nikah Halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her having to go through the process of marrying someone else, consummating it, getting divorced, observing the separation period called 'Iddat' and then coming back to him again.

The apex court, while referring to the matter to a larger bench, had observed that "sentiments" were involved in the matter and a five-judge constitution bench would adjudicate the issue, which required a detailed hearing.

The apex court had earlier said it would decide issues pertaining to the legal aspects of the practices of triple talaq, nikah halala and polygamy among Muslims, but would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.

The Centre had on October 7 last opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims and favoured a re-look on grounds like gender equality and secularism.

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.

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.

Tagged: Supreme Court   Triple Talaq  
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