Third Day: Government To Enact New Law If Triple Talaq Is Scrapped

The revolt by Shah Bano in 1985 and Shayara Bano in 2016 against discriminatory provisions of the Muslim personal law made the nation sit up and take notice. Today we have a specially constituted bench of the Supreme Court (SC) to adjudicate on the validity of instantaneous triple talaq.

Landmark proceedings to determine the validity of triple talaq began on 11 May at the Supreme Court. A bench has been set to establish if the ‘instant’ divorce contravenes the spirit of the Constitution of India and violates gender parity and dignity of women, after a seven-day hearing.

The day of reckoning is not far for this practice – the relevance of which will be thrashed out at a six-day hearing, shared equally between those who are challenging it and those who are defending. The court will hear the final arguments on a case pertinently titled, ‘Quest for Equality vs. Jamiat Ulama-i-Hind’ on day seven (Thursday), the first day of the SC's summer vacation.

Day Three (today)

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.

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

Most radical countries such as Pakistan and Bangladesh are moving towards reforms but we, as a secular state, are still debating, said Rohatgi.

He told the bench that triple talaq violates Muslim women’s right to equality within the community and also within the country.

Responding to this argument, Chief Justice Khehar said:

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

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, All India Muslim Personal Law Board counsel Kapil 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 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.

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.