Day Five: Sibal Argues Judgment Against Triple Talaq May Jeopardise Faith Of Minorities In SC

The day five arguments put forward in defence of triple talaq were thick with contentions that didn’t seem to recognise the Muslim women’s concerns and plight.

Representing the All India Muslim Personal Law Board (AIMPLB), senior lawyer Kapil Sibal dismissed the social implications of triple talaq when he said that it was anyway practised by a “minuscule portion" of the Muslim community, and raking it up is not worthy of any backlash it may possibly lead to.

"Triple talaq is a dying practice" which when debated or challenged at secular forums like the Supreme Court could actually make a comeback, said the AIMPLB said through its lawyer.

Sibal said challenging the constitutional validity of triple talaq could spark an outrage among the Muslim community, which might fear that its rights are being infringed upon, and therefore start supporting practices like polygamy and oral divorce.

Sibal likened the Muslim community to small birds which are preyed upon by golden eagles. He said: “The community's nests must have Supreme Court protection.”

He appealed: “The Muslim community's faith in the Supreme Court for the last 67 years is fundamental and that it is this faith that makes the country vibrant.”

Sibal opposed taking up case suo moto: “It is as if every member of the community wakes up in the morning and does it.”

The Chief Justice of India (CJI) J S Khehar asked whether the AIMPLB can issue a directive to clerics to record at the time of the nikahnama, or marriage contract, whether the woman accepts triple talaq or not. Sibal said the Muslim law board will respond to this after talking to all board members.

Attorney General Mukul Rohatgi, in his arguments, said even the most important part of religion is bound by the law. “Under Article 25, even the core and essential elements of religion are subject to Part III.”

He said while preserving the religion is important, any part of it that violates the law has to be done away with. “We will preserve every religion, but if anything in religion, even if it is the core, violates Part III, then it has to go.”

Responding to this, the court observed: “There might be such practices in various religions.”

A G Rohatgi said, “In Hindu religion, practices like Sati, prohibition on widow remarriage, untouchability etc were abolished", to which the court replied: "Those practices were legislatively tackled, not through courts.”

Senior lawyer Indira Jaisingh said, arguments that triple talaq is outside the purview of the court is “dangerous”.

“The case comes down to the point of what is the role of court. It has to decide whether it can deal with it under Article 32.”

She told the court: “You have to address the question of what is law. Triple talaq is law under Article 13 and subject to fundamental rights.”

Opposing the point raise by Sibal yesterday: "Laws in respect of other religions have been codified except Muslim law that is a challenge before the Court”, she said:

Day Four

Day four (16 May) of Triple Talaq hearing at the Supreme Court saw the defence advancing its arguments in support of triple talaq, questioning the right of the majority to make laws for the minority, especially on a practice that has been in vogue for the last 1,400 years.

Sibal’s observations are on a practice that has been discarded by several Muslim majority countries, including Turkey, Pakistan and Bangladesh.

“It is not a question of equity and good conscience, it is a question of faith. You cannot bring Constitutional morality,” Sibal argued.

Sibal, representing the All India Muslim Personal Law Board (AIMPLB), drew (puzzling) parallels between Ram’s birth in Ayodhya and triple talaq to ‘demonstrate’ that faith matters, not constitutional morality. “That birth of Ram in Ayodhya is a matter of faith, not Constitutional morality; same in this case.”

Sibal’s arguments focused on the fact that personal laws were safeguarded by the Constitution. “Shariat is personal law and not subject to fundamental rights,” Sibal said.

Sibal ignored aggrieved Muslim women’s right to protection by the state when he said this: In a Muslim majority country, Hindus have to be protected; In a Hindu majority country, Muslims have to be protected.

Sibal and R F Nariman exchanged views on the 1951 Supreme Court ruling of State of Bombay v. Narasu Appa Mali case, where the bench held that ‘uncodified personal laws’ may not be examined for violating fundamental rights.

While Nariman cited reasons why the court is not going into Narasu Appa Mali verdict, Sibal insisted the court will have to review the correctness of Narasu Appa Mali and decide on Article 13 (laws inconsistent with or in derogation of the fundamental rights) before subjecting triple talaq to constitutional scrutiny.

"Laws in respect of other religions have been codified except Muslim law, that is a challenge before the Court", said Sibal.

Sibal also voiced his concern for the Muslim men when he asked, “What would happen if there is no law passed by the parliament? How will men seek divorce then?” The question was raised on the statement put forward by Attorney General Mukul Rohatgi a day before that the government will enact a new law to regulate marriage and divorce among Muslims.

He also said that uniform law was a reality in India, but it does not touch marriage or divorce.

Day Three

On the third day (15 May) of the hearing, the government told the apex court that it will enact a new law to regulate marriage and divorce among Muslims if the Supreme Court declares the instantaneous triple talaq null and void. If the SC completely strikes down triple talaq, we will bring in a law. We will not leave the people high and dry,” said Attorney General Rohtagi.

“You are guardians of the constitution. Examine if Triple Talaq is permissible under the constitution,” Rohtagi said, presenting his arguments to the five-judge Constitution bench of the Supreme Court.

Responding to Rohtagi’s argument, CJI J S Khekar said:

We are guardians of the minority as well as the majority. We will strike down triple talaq if the government can establish that it is not an integral part of Islam.”

Rohtagi pointed out that issues of marriage and divorce have nothing to do with religion, and said:

Court is not a master interpreter of the holy Quran, or Guru Granth or Gita.

But the bench said it will not take up nikah halala and polygamy issues, due to “limited time” in response to a government request, and said that it will be taken up in the future.

However, Sibal told the apex court that triple talaq is a matter that comes under the Muslim board and therefore outside the purview of the top court.

Day Two (12 May)

The country’s top legal luminaries presented their arguments for and against the controversial practice of triple talaq, which were interjected by pointed questions by the five-judge bench. The CJI likened the controversial practice of instant divorce in Islam to capital punishment, saying it was like death penalty… “abhorrent but still allowed”.

He said, “Can what is sinful in the eyes of God be lawful? If God considers it a sin it can’t be legal. Can it be? We are just asking...”

He was responding to a submission by senior Congress leader and the amicus curie in the case Salman Khurshid, who said triple talaq was sinful but lawful.

The observation came when 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).

The court asked Khurshid to prepare a list of Islamic and non-Islamic countries where triple talaq has been banned.

The bench was then informed that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia do not allow triple talaq as a form to dissolve marriages.

Senior advocate Ram Jethmalani, representing petitioner RSS-affiliated Forum for Awareness of National Security (FANS), lashed out the practice of triple talaq on the basis of various constitutional grounds including the Right to Equality.

There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent, and hence, avoidable.

Ram Jethamalani

Justice Rohinton Fali Nariman observed that one should see difference between theory and practicality at present context in connection with nikah and talaq in Islam.

Day One (11 May)

Just as the hearing began, Chief Justice Khehar clarified, "The matter can be summed up in three points: whether triple talaq is fundamental to Islam. If it is fundamental we have to see if we can interfere; two, whether it is sacramental or not, and three, whether there is an enforceable fundamental right that is violated."

Senior advocate Amit Singh Chadha, appearing for Saira Bano, one of the petitioners in the case, initiated the arguments against the practice of triple talaq and said this practice was not fundamental to Islam and hence can be got rid of. He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to support his plea that triple talaq is un-Islamic.

The bench intervened and said it would like to peruse the prevalent laws in various Islamic countries on the issue.

Senior advocate Indira Jaising, appearing for one of the petitioners, said in case of divorces being granted through extra-judicial mechanism, there should be a "judicial oversight" to deal with the consequences.

Khurshid, who is assisting the court in his personal capacity, termed triple talaq as a "non-issue" saying it is not considered complete without conciliation efforts between the husband and the wife. He said there was no adjudication to determine the validity of the grounds of talaq.

When the bench asked whether reconciliation after the pronouncement of triple talaq in one go is codified, Khurshid replied in the negative.

The case, which may acquire communal undertones, will be a relook at gender equality as the Ministry of Law and Justice, in its affidavit said that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.

Why is the SC hearing this matter?

The hearing is rooted in a 16 October 2015 order of the apex court by which it had directed the separate listing of a public interest litigation addressing the question of rights of Muslim women vis-a-vis these three customs. The hearing 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.

In November last year, the Mumbai-based Bharatiya Muslim Mahila Andolan (BMMA - Indian Muslim Women's Movement) released a report chronicling nearly 100 cases of triple talaq.

The Supreme Court had on 30 March this year said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are "very important" and involve "sentiments" and a constitution bench would hear the petitions from 11 May.

Who are the judges?

The historic case will be heard by a five-judge bench: Chief Justice of India J S Khehar and Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer. The bench will also take up the main matter on its own as a petition titled 'Muslim Women's quest for equality'. The apex court will hear the case during the summer vacation and is likely to sit on the weekends to expedite the matter that may throw up sensitive issues.

Who is representing the Central government?

The hearing will have Additional Solicitor General Tushar Mehta appearing for the Centre. He said: "The key point is whether the right to religion is subject to restrictions whether it can violate fundamental rights.” Attorney General Mukul Rohatgi is assisting the bench which will also examine to what extent the court can interfere in the Muslim personal laws if they are found to be violative of the fundamental rights enshrined in the Constitution.

Who are the petitioners?

The hearing will be based on the petitions by Khuran Sunnath Society, Shayara Bano, Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri. It will also include five separate writ petitions filed by Muslim women. Though the plea includes 'nikah halala' and polygamy, the apex court has said it will confine the hearing to just triple talaq.

Who are the defendants?

Influential Muslim organisations like the All India Muslim Personal Law Board (AIMPLB) have opposed court's interference in these matters, saying these practices have their roots in the Quran and were outside the purview of courts. Senior lawyer and Congress leader, Kapil Sibal, who is appearing for AIMPLB, has said that triple talaq "is an issue of faith and personal law and hence it is outside the ambit of judicial review."

What are the issues before the SC bench?

Does personal law come under the ambit of Constitution of India? Four questions Supreme Court will address:

1. Whether the impugned practice of triple talaq is protected under Article 25(1) of the Constitution of India?

2. Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India?

3. Whether personal law is law under Article 13 of the Constitution?

4. Whether the impugned practices of talaq-e-biddat, Nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory?

Even though it has been practised for decades, the reprehensible instant triple talaq finds no mention in Sharia law or the Quran, say experts. Islamic scholars say the Quran gives allowance for reflection and reconciliation and there is nothing instant about the whole exercise.

Activists say most Islamic countries, including Pakistan and Bangladesh, have clamped down on triple talaq, but it is still practised in India, and even handed down over Skype, WhatsApp or Facebook in sheer instances of audacity.

Now it’s the highest court of the land that will decide if triple talaq has to stay or go. Rumblings and political grandstanding aside, triple talaq is a scourge on dignity and a ban will transform the lives of Muslim women, and redefine their freedom and dignity.

The hearing before a bench comprising members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim will conclude on tomorrow (Thursday).