Supreme Court refers triple talaq case to 5-judge constitutional bench

Supreme Court refers triple talaq case to 5-judge constitutional bench
Muslim practices of triple talaq, nikah halala and polygamy are issues that are "very important" and involve "sentiments", the Supreme Court today said and decided a Constitution Bench would hear petitions challenging these from May 11.

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.

Several Muslim women 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 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.

A bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud observed that "sentiments" were involved in the matter pending before it and a five-judge constitution bench would adjudicate the issue, which required a detailed hearing.

"If we will not decide it now, it will not happen for years and decades," the bench said, adding it was open to hearing the matter on even Saturday and Sunday during the summer vacation which would commence from May 11.

Along with the triple talaq matter, the bench also referred to two other cases that can be taken up during the vacation by other Constitution Benches, including those related to Aadhaar and WhatsApp.

Attorney General Mukul Rohatgi expressed reservation over setting up of three Constitution Benches during the vacation, saying that it will consume the entire vacation.

Responding to AG's contention, CJI Khehar said, "If you say you do not want to do it (during vacation) then do not blame us. Last time, I kept on writing the judgements during the whole vacation. We have to work together.

"If you do not want us to work together, I will be very happy enjoying my vacation but then do not tell us so many years have passed and the matter has not been heard," the CJI said, adding when the matters remain pending there is a talk about the large arrears of cases.

The bench also clarified that it has fixed the matter for hearing from May 11 as all the parties had agreed before it to list the case at the start of the vacation.

"If we start from May 11, we will have hearing on May 12 which is a Friday. If you wish, we can even sit on May 13 and 14 (Saturday and Sunday). After that we will have a whole week for hearing the matter.

"If a time frame can be fixed for NJAC (National Judicial Appointments Commission) case, why it cannot be done in this case. There are sentiments involved in it (this case)," the bench said. 

 
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 falls under the legislative domain.

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

On March 27, the All India Muslim Personal Law Board (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.

The Board had also said that the validity of Mohammedan Law, founded essentially on 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.

The apex court had taken suo motu cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husband.

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