As Chief Justice JS Khehar demits office this week, the Supreme Court has geared up to deliver two extremely important judgments before the next CJI takes over. While all Indian citizens await a ruling on the right to privacy, a subsection of the populace will find out whether one of its religious practices is legal.
Shayara Bano's triple talaq
A name frequently associated with the triple talaq debate is Shayara Bano. Bano and her husband were married for 15 years after which he gave her a triple talaq in October 2015. She approached the Supreme Court in 2016 as she challenged the validity of arbitrary practices against women followed by Muslims.
In her petition, she has asked 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. The plea has been opposed by her husband on the grounds that they were governed by Muslim law and all three practices are allowed under the same.
Muslim law in India comes from the Muslim Personal Law (Shariat) Application Act, 1937 which says that in so far as matters concerning marriage, divorce, inheritance and other personal matters, the law governing Muslims in India shall be the Muslim personal law or the Shariat.
Stands of the government and AIMPLB
The government has taken the side of Muslim women as it has favoured the scrapping of the practice, saying that it violates the right to equality and is biased against women. On the other side, the All India Muslim Personal Law Board (AIMPLB) has opposed "judicial interference" in matters of the Muslim faith.
Interestingly, when the Supreme Court took notice of the matter, it wasn't hearing a case about Muslim Personal Law at all, according to LiveLaw. The matter instead pertained to a Hindu woman's residual right to ancestral property.
However, when the suffering of Muslim women was brought to the "notice" of the court, it registered a suo motu public interest litigation, In Re: Muslim women’s Quest for Equality, under which a Constitutional bench was constituted to hear the matter.
After a bench comprising five judges of five different religions heard the case for six days, the court on 18 May reserved its order. It is this order which is expected to be pronounced by the end of this week.
During the hearing, the AIMPLB told the court that it would issue an advisory to qazis to tell bridegrooms that they will not resort to triple talaq to annul their marriage. This move was called a "mere eyewash" by the then Attorney-General Mukul Rohatgi, who said it was an attempt to gain "legal sanctity among the community".
After the Supreme Court reserved its verdict, the then Union minister M Venkaiah Naidu said that the NDA government was ready to bring a law to stop triple talaq in the Muslim community, if necessary. "Our government has made its stand very clear on triple talaq. If necessary, it will bring a legislation against it... after allowing the community to reach a consensus through deliberations," Naidu had said.
Practice not followed even in Pakistan
The practice has been denounced in Pakistan, which describes itself as an Islamic Republic. The former Chief Justice of Pakistan Jawwad S Khawaja had said that "triple talaq was never a part of pure Islamic history and was not considered valid as per Islamic law." He further added that, "Instant talaq or triple talaq has not been considered valid in Islam and it is not considered to be the best form of divorce under Islamic law. If you look at what jurists have opined in the 1,000-year old history that it was never acceptable and it has never been the most accepted of talaq in any era of Islamic history,”
The Supreme Court's decision will not be limited to just Bano but will also make clear the stance of the Indian State as regarding the stature of religious rights of citizens and their standing vis-a-vis Fundamental Rights. Firstpost had earlier argued that the abolition of triple talaq is long overdue in independent India. It is a unilateral and arbitrary practice which results in women being thrown out of homes and rendered destitute in an instant. The women in this case are seeking justice which they are entitled to as citizens in a democracy as they knock at the doors of the courts and the parliament.
With inputs from agencies
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Updated Date: Aug 22, 2017 09:09:55 IST