The Supreme Court on Friday continued to hear arguments pertaining to a batch of petitions challenging the validity of Muslim law practices such as triple talaq and nikah halala. "There are schools of thoughts [that] say triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims," the court said responding to arguments put forth by various parties.
The Chief of India (CJI) JS Khehar compared the controversial practice in Islam to capital punishment. It was like death penalty – "abhorrent but still allowed," the CJI said.
Senior Advocate Salman Khurshid who had entered the fray at the eleventh hour submitted his arguments to simply assist the court. Khurshid informed the bench that the All India Personal Law Board (AIMPLB) had declared that triple talaq was sinful, but lawful. To this, Justice Kurian Joseph said, "Can something which is considered abhorrent by religion be validated by law?"
Khurshid then submitted that triple talaq was a "non-issue" since the practice was "optional." Women, could opt out of this practice, Khurshid said, adding that it could be written in the nikah nama (marriage contract).
The court asked Khurshid to prepare a list of Islamic and non-Islamic countries where triple talaq has been banned. To which it was submitted that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia had banned triple talaq.
"The right of triple talaq is available only to the husband and not to the wife...One-sided termination of marriage is abhorrent, and hence, avoidable," senior advocate Ram Jethmalani argued. The nonagenarian lawyer is representing Muslim women against the practice. Jethmalani called it an "unconstitutional behaviour" and added that it also goes against the tenets of Quran.
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A multi-cultural all-male bench comprising the Chief Justice of India JS Khehar, along with Justices Kurian Joseph, Rohinton Nariman, UU Lalit and S. Abdul Nazeer are hearing a batch of petitions that challenge the constitutional validity of triple talaq and nikah halala and the practice of polygamy. Though, for the moment, the court has taken polygamy off the bench and have chosen to focus on the instant divorce law.
Muslim women can approach a court if they want divorce, however, Muslim men can merely say Talaq, talaq, Talaq thrice. Talaq-e-bidat refers to the practice of saying talaq thrice in one go, or, a Muslim man may utter talaq thrice over a period of three months without revoking it for the divorce to be considered final. This has been challenged by the petitioners with the AIMPLB and the Jamiat-e-Hind defending the practice.
The SC is venturing into the touchy topic of Muslim Personal laws for the first time since the famed Shah Bano case in April 23, 1985. 32 years later, the court has once again rallied to interpret and decide if the laws governing Muslim women protect their rights, or will the personal laws of religious communities be considered fundamental to their religion.
Fresh from its victory in the Uttar Pradesh elections, the Bharatiya Janata Party (BJP)-led Centre have called these practices "unequal and vulnerable."
"The practices which are under challenge, namely, triple talaq, nikah halala and polygamy are practices which impact the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community, women belonging to other communities and also Muslim women outside India," the Centre said in their written submissions.
It is interesting to note that, in India there are separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance.
The top court will possibly hear Attorney General Mukul Rohatgi when he submits the Union's stand on Monday. Each of the petitioners have been allotted two days each to plead their case. One day has been reserved for counter submissions. The matter -- one of the three issues to be debated on during the apex court's summer break will be heard till May 19.