SC concludes triple talaq hearings, reserves verdict

Posted May 18, 2017

The Centre, during the earlier hearing, assured the apex court that it would come out with a law to regulate marriage and divorce among Muslims if Triple Talaq is upheld as invalid.

The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging constitutional validity of the practice of triple talaq among Muslims.

A five-judge Constitution Bench was headed by Chief Justice J.S. Khehar and comprised Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer.

Rohatgi referred to sati, infanticide, Devdasi and untouchability among Hindus, and said that they have been done away with.

He added that the court must look into these aspects, because a community can not decide what constitutes a fundamental right. Has it (triple talaq) going on in consistently for 1,400 years?

Appearing on behalf of the AIMPLB, Kapil Sibal had on Monday said that the apex court should not decide or interfere in one's faith and belief. An ideal approach would be to look at best practices among Muslim communities - the Ahle Hadees and Jafri sects consider talaq uttered thrice in one sitting as one talaq and allow for mediation and reconciliation between the couple - and mandate those religious practices that are in conformity with the constitutional principle of women's equality.

"Triple talaq is not a part of religion and it can not be said that is a part of the practice", he said.

"Rights given under Article 25 of Constitution can not be considered as absolute", he said, adding the court has to look into these aspects as a community can not decide what is their fundamental rights. They can not say we will not have a law and you (court) decide it.

He further argued that even under the Constitution's Article 25 which guarantees right to propagate and practice religion, core religious values were subject to part III of the Constitution spelling out the fundamental rights.

Sibal further argued that just like the Hindus' faith about Rama's birth at Ayodhya can not be questioned, similarly Triple Talaq which is also a matter of faith for Muslims should not be questioned.

For five days, the country's five seniormost judges have heard lawyers argue that triple talaq wasn't just a centuries-old practice but also an integral part of Islam.

In spite of the opinion of male Muslim leaders, momentum for a triple talaq ban has gradually increased over the years as Muslim women started to speak up. Women can not pronounce triple talaq and are required to move a court for getting divorce under the Sharia Act, 1937. But when it comes to Muslim personal law, the government says nothing should be permitted. "We are not concerned about the past 1,400 years", she said.

This triple talaq petition before the Supreme Court is not the first. If they conclude it is, there may not be an bad lot that the top court will do given how they have zeroed in on points that they will respond in their verdict.

"Only 0.4 per cent is practising it and this is not a ground to strike it down", Sibal said adding that Qazis have been advised to avoid triple talaq until there were unforeseen circumstances. "But do not attempt to effect changes forcibly through the guile of Constitution", Sibal said.

16 February: SC says a five-judge constitution bench would be set up to hear and decide the challenge on "triple talaq", "nikah halala" and polygamy.