Triple talaq hearing: SC says practice 'worst' form of dissolution of marriage

The Supreme Court, on Friday, said the practice of triple talaq was the "worst" and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as "legal".

There are "school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims," a five-judge Constitution bench, headed by Chief Justice JS Khehar, said on the second day of continued hearing on the matter.

The observation came when former Union minister and senior advocate Salman 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.

Representational image. AFP

Representational image. AFP

Senior advocate Ram Jethmalani, appearing for one of the victims, was blunt in his arguments and assailed the practice of triple talaq various on constitutional grounds, including the Right to Equality.

"The right of triple talaq is available only to the husband and not to the wife and it breaches the Article 14 (Right to Equality) of the Constitution," Jethmalani said.

"There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent, and hence, avoidable," he said.

"Triple talaq makes a distinction on the ground of sex and this method is abhorrent to the tenets of the Holy Quran and no amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions," he added.

No law can allow a wife to become an ex-wife "at the fancy of the husband" and it is "the highest kind unconstitutional behaviour", Jethmalani said.

The high profile hearing on a batch of petitions challenging the constitutional validity of triple talaq began on Thursday. Of the seven petitions in the hearing, five separate writ petitions, filed by Muslim women challenge the practice of triple talaq prevalent in the community. The petitions claim that triple talaq is unconstitutional.

The apex court, on Thursday, said that it will keep the matter limited to the issue of triple talaq and clearly stated that it will not hear polygamy issue in the case as the aspect is unrelated to triple talaq.

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.

Another former Union minister and counsel for All India Muslim Personal Law Board (AIMPLB), Kapil Sibal, agreed with Khurshid and said "it's a non-issue, as no prudent Muslim would wake up one fine morning and say talaq, talaq and talaq".

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.

However, 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 apex court had said that the practices of triple talaq, nikah halala and polygamy are "very important" and involve "sentiments" and agreed on 30 March to have hearings from 11 May.

The Muslim women, who filed the petitions, though hailing from different situations, were all victims of the practice of instantaneous divorce.

Shayara Bano, one of the petitioners who was subjected to triple talaq after being married for 15 years, seeks the Supreme Court to declare talaq-e-bidat, polygamy and nikah halala illegal and unconstitutional on the grounds that they violate the rights guaranteed by the Constitution under Articles 14, 15, 21 and 25.


With inputs from PTI


Updated Date: May 12, 2017 14:52 PM

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