SC to decide if triple talaq is fundamental to Islam

The Supreme Court on Thursday began its crucial hearing on Constitutional validity of triple talaq, observing that it would consider if the practice was fundamental to Islam.

A five-judge bench presided over by Chief Justice J S Khehar also clarified orally that it would adjudicate upon the practice only and not deal with question of polygamy.

“We are going to consider if the practice of 'triple talaq' is fundamental to religion. If so, whether it can be enforced under Article 25 (freedom to practice religion) of the Constitution,” the bench said.

Senior advocate Amit Singh Chaddha, appearing for first woman petitioner Shayara Bano, said that the method of instant talaq by pronouncing it thrice was not an essential part of Islam and therefore was not protected under the Constitution. Though men have untrammelled right, the same was limited for women, he said.

Senior advocate Indira Jaising, appearing for NGO Bebak Foundation, said we are concerned about its nature of being extra judicial. Such kind of Triple talaq has got no judicial oversight, she said.

“We are dealing with a particular type of divorce. What is attacked (agitated) here is its irrevocable nature,” the bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and S Abdul Nazeer, said.

Senior advocate Salman Khurshid intervened into the matter to assert that in all Triple Talaq is not instanteous. It is to be pronounced within a period of three months and in between, there is conciliation efforts and if all these failed, then only, it becomes irrevocable.

Senior advocate Kapil Sibal, representing All India Muslim Personal Law Board, the instant Triple Talaq has been banned through legislations in some Islamic countries but not by courts.

Additional Solicitor General Pinky Anand, appearing for the Union Government, submitted that it affected fundamental right of women.

Besides triple talaq, a group of Muslim women has also challenged 'Nikah Halala' and polygamy, practised among Muslims in the country.

Triple Talaq is divorce made by husband by pronoucing 'Talaq' thrice while 'Nikah Halala' is a bar against remarriage with divorced husband, without an intervening marriage with another man, as mandated under the Muslim Personal Law.

The main matter is being heard as 'Muslim women's Quest for Equality' started suo motu by the apex court in 2015. There are five separate writ petitions filed by Muslim women led by Shayara Bano. One special leave petition is also listed for consideration before the court against Allahabad High Court's order that held the practice of Triple Talaq is unilateral and bad in law.

Notably, the Union government had maintained before the court the practice of Triple Talaq and polygamy denied the Muslim women full enjoyment of fundamental rights and should be declared as unconstitutional.

It claimed these practices impact the social status and dignity of women and did not enjoy the sanction from Islam. It claimed those practices existed due to social norms certain centuries ago.

The government claimed several Islamic countries had done away with these practices.

Prominent NGO All India Muslim Personal Law Board and others have intervened into the matter saying the court cannot adjudicate on personal laws of a community.