The Supreme Court on Thursday commenced its historic hearing on a clutch of petitions challenging the constitutional validity of the practice of triple talaq and nikah halala among Muslims, saying it would first determine whether the practice is fundamental to Islam.
How the hearing went
A five-judge constitution bench, headed by Chief Justice JS Khehar, however, made it clear that the issue of polygamy among the Muslims may not be deliberated upon as it is not connected with the triple talaq issue.
"We will deal with the issue as to whether triple talaq is sacramental and whether it can be enforced as a fundamental right," the bench, also comprising Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer, said while framing the issue to be deliberated upon.
Chief Justice JS Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Nariman (Parsi), Justice Uday Lalit (Hindu) and Justice Abdul Nazeer (Muslim), will cumulatively hear seven petitions relating to the issue of triple talaq, with the lead petition titled 'Quest for Equality vs Jamiat Ulama-i-Hind', The Times of India reported.
The apex court also said if it came to the conclusion that triple talaq is fundamental to religion, then it will not go into the question of its constitutional validity.
The bench said it will also deal with the aspect of whether triple talaq formed part of the enforceable fundamental right to practice religion under the Constitution.
Senior advocate Amit Singh Chadha, appearing for Shayara Bano, one of the petitioners in the case, initiated the arguments against the practice of triple talaq among Muslims and said this practice was not fundamental to Islam and hence can be done away with.
He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to buttress 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.
Another senior advocate Indira Jaising, appearing for one of the petitioners, said in the case of divorces being granted through extra-judicial mechanism, there should be a "judicial oversight" to deal with the consequences.
Former Union minister and senior advocate Salman 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.
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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.
Another former Union minister and counsel for All India Muslim Personal Law Board (AIMPLB), Kapil Sibal, concurred with Khurshid and said "it's a non-issse, as no prudent Muslim would wake up one fine morning and say talaq, talaq and talaq".
Meanwhile, Union minister Ravi Shankar Prasad said, "The issue of triple talaq is not of any religion or community. This is about gender justice, gender dignity and gender equality."
"Nothing wrong can be done in the name of religion. If a Hindu says that he wants to indulge in untouchability because of his religion, that is not allowed," he added.
The bench continued with the hearing in the post-lunch session.
The pleas before the apex court have also challenged the constitutional validity of other practices like nikah halala and polygamy among the Muslims.
The bench is also taking up the main matter on its own as a petition titled 'Muslim Women's quest for equality'.
The Supreme Court has made it clear that each side will get two days each for canvassing their arguments on the two questions formulated by the bench and one day will be given for the rebuttal.
The apex court also made it clear that it would stop any counsel who will repeat the arguments. "Each side can argue whatever they want but there should not be any repetition. They will only focus on the validity of triple talaq," the bench said.
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.
The hearing assumes significance as the apex court has decided to hear the case during the summer vacation and is likely to sit on Saturdays and Sundays to expeditiously decide the contentious and sensitive issues arising in the matter.
It 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.
The high court had given its verdict while dismissing a petition filed by one Aaqil Jamil whose wife had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq.
The apex court had on 30 March said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are "very important" and involve "sentiments".
Muslim organisations like the AIMPLB have opposed the court's adjudication of these matters, maintaining that these practices stemmed from the Holy Quran and hence not justifiable.
The Muslim women, who have filed the petitions, 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.
With inputs from PTI
Updated Date: May 11, 2017 20:32 PM