New Delhi: The Supreme Court may pronounce verdict on the batch of petitions challenging the constitutional validity of the practices of triple talaq among Muslims on Tuesday.
A five-judge Constitution bench had reserved its verdict on May 18 after six-days of marathon hearings.
Parties including the Centre, the All India Muslim Personal Law Board, the All India Muslim Women Personal Law Board and others had made their submissions on for and against the practice.
The apex court at that time had asked Muslim bodies as to how can a practice like triple talaq be a matter of ‘faith’ when they have been asserting that it is ‘patriarchal’, ‘bad in theology’ and ‘sinful’.
The five-judge Constitution bench headed by Chief Justice JS Khehar had also taken note of repeated submissions of the AIMPLB and former union minister and senior lawyer Salman Khurshid, who is assisting it in personal capacity, that triple talaq was not mentioned in holy Quran and was rather “sinful”, “irregular”, “patriarchal”, “bad in theology” and “undesirable”, but the court should not examine it.
“You (Khurshid) say it is sinful. How can a sinful practice be said to be a matter of faith… Has it (triple talaq) going on in consistently for 1,400 years? The answer is ‘yes’. Has it going on in the world? The answer is ‘no’. The system itself say it is horrendous and bad,” the bench, also comprising justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer, had said.
The observations were made when Khurshid was advancing rejoinder arguments by emphasising that the practice was sinful and bad in theology which cannot be good in law. He, however, had argued that the court should not examine it.
“That is why, what is sinful cannot be part of practice. If it is bad in theology, it cannot be accepted in law… What is morally wrong cannot be legally right. What is not fully moral, it cannot be legal,” the bench had observed, as per PTI.
Senior advocate Amit Singh Chadha, appearing for Shayara Bano, one of the victims of triple talaq, had started rebuttal arguments quoting AIMPLB’s stand that this was sinful and patriarchal practice and had said this could not be integral to Islam.
The patriarchal practice of triple talaq in a male-dominated community is not recognised by many schools of thought, he had said and had added, “It is a bad, undesirable and sinful practice and violates constitutional guarantees of Muslim women.”
Asking the court not to resort to “hands off” policy, Chadha had said, “The only right, the only remedy to the citizens is to come to this court which is the custodian of fundamental rights guaranteed under the Constitution. We have no other option. My only remedy is to come to this protector, enforcer and this guardian of my fundamental rights.”
Chadha had also argued that it had been admitted by all parties that Islam does not discriminate between men and women and it maintained marriage as far as possible.
“Triple talaq is outlawed in various Muslim countries, predominantly in Hanafi countries like Pakistan and Afghanistan. The moment it is said to be bad in theology that is religious belief, the protection of Article 25 (right to practice religion) is thrown out,” he had said adding this Article protects only good thing of theology.
Chadha had further argued that state shall not deny the rights guaranteed under Articles 14 (right to equality) and 15 (gender equality) of the Constitution and a time has come to test this centuries-old practice, invalid in the eyes of law.
“Triple talaq is not a part of religion and it cannot be said that is a part of the practice,” he had said.
He had also argued that even the government had said that it was not something which was fundamental to Islam and had strongly objected to the suggestion made by AIMPLB that it may ask ‘qazis’ to include a condition in ‘nikahnama’ (marriage contract) giving a right to women to say either ‘no’ or ‘yes’ to triple talaq.
He had said that it would be illegal as the Dissolution of Muslim Marriage Act 1939 provides that a woman will have to go to a court to get divorce.
On the other hand, the Centre had earlier said that triple talaq was neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.
The bench at that time had made it clear that it would examine whether the practice of triple talaq among Muslims was fundamental to their religion and had also said for the time being it would not deliberate upon the issue of polygamy and ‘nikah halala’.
It had also said that the issue of polygamy and ‘nikah halala’ would be kept pending and would be dealt with later.
The apex court had on its own taken cognisance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.