SC makes it clear that polygamy is not part of the discussions, religious references will form crucial inputs

A six-day historic period stated at the Supreme Court on May 11 when a unique bench of five judges from five different faiths, led by Chief Justice JS Khehar started hearings on the practice of triple talaq. Apart from Chief Justice (CJI) Khehar, who is a Sikh, the others on the bench are Justices Kurian Joseph (Christian), RF Nariman (Parsi), UU Lalit (Hindu) and Abdul Nazeer (Muslim).

The case is from a suo motu writ petition by the Supreme Court for considering the rights of Muslim women in issues concerning marriage, divorce and maintenance and whether the current practices under Muslim Personal Law regarding marriage, divorce and maintenance are violative of Part III of the constitution.

Five separate writ petitions have been filed by Muslim women challenging the practice of triple talaq, terming it unconstitutional.

The Allahabad High Court, in its April verdict, held the practice of triple talaq as unilateral and bad in the eyes of law. That verdict had come 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 fulfilled, he gave her “triple talaq”.

The Union government in an affidavit submitted that the practices need to be abolished as they are “unconstitutional, discriminatory and hurt gender equality and women’s dignity.” The affidavit also said that gender equality is part of the basic structure of the Constitution and is non-negotiable.

The centre told the apex court that “it is extremely significant to note that a large number of Muslim countries or countries with an overwhelmingly large Muslim population where Islam is the state religion have undertaken reforms in this area and have regulated divorce law and polygamy.”

On Thursday (May 11), senior advocate Kapil Sibal was arguing for the All India Muslim Personal Law Board (AIMPLB). Salman Khursid is the Amicus Curie.

The court was a place of top legal luminaries. Present were Ram Jethmalani, Anand Grover, Indira Jaising and Khurshid, among others.

Before the proceedings started, the CJI set down some ground rules. He said: “We will see if triple talaq is fundamental to religion or not. If it is so we cannot do anything. Is there any enforceable fundamental right?”

He also said: “Please don’t repeat any arguments. If anyone repeats we will stop them. One side can take two days and two days for other side and one day for the rest.” The overall hearing would be of six days.

The bench clarified: “We will not go into polygamy or anything else other than triple talaq. We will look into whether this is fundamental to the religion. If it is, then the court cannot go into it. We also have to see whether this is an enforceable fundamental right.”

This is how proceedings went on in court.

Additional Solicitor General Tushar Mehta, arguing for the central government, said: “We have some points to make. Whether this practice of triple talaq is protected under Article 25(1) or not.”

Meanwhile, Justice Kurien Joseph pointed out that triple talaq and nikah halala were one part and polygamy was different.

The CJI took it ahead, saying: “Let’s proceed further and see where we go. Everything is consequential. We are going to decide the validity of triple talaq.”

Jethmalani said: “I am appearing for a victim of triple talaq. And I want to argue. Please allow me.”

The court agreed to that.

Senior advocate Amit Singh Chadda, for petitioner Saira Bano started his arguments.

Khurshid interfered and submitted that there is a process to be followed by the person. There has to be reasonable grounds to talaq and then that should be settled before the kazi and mehar (fees) etc. has to be paid.

Chadda said that in the case of petitioner victim, her husband gave talaq by post. He then pointed out the legal jungle. He said the Muslim Personal Law Act of 1937 was repealed by the Act of 1939 and after that there was no codified law to enforce.

Justice Nariman said: “Despite the fact that there was influence of hanafi and Maliki thought, the act applies to all the Muslims, including Shia.”

Chadda said: “The husband has a right to say talaq talaq talaq and goodbye, while the wife has to go to court under 25 specific grounds. That is discriminatory.”

Justice Kurien asked Chadda whether the husband has to give any justification.

Khurshid said that in Quran there is an arbitration proceeding laid out where the mediation is done and therefore triple talaq is a non-issue.

Jaising said: “The divorce by a woman is under judicial preview. While the man can give divorce, which is extra judicial and therefore needs to be tackled. Even if it is pronounced in three months, it is still extra judicial.”

Justice Nariman said: “We have to see what is being attacked here, what is triple talaq that’s all.”

Sibal said the government “is gracious enough to file 16 volumes of judgments.” Tushar Mehta clarified that “it’s a compilation of all judgments being relied on by all the parties.”

Justice Joseph enquired: “Does it have foreign judgments also?” Mehta said yes, “it contains judgments from all over.”

Khurshid pointed out that in many cultures, “even if you say talaq six times it will be counted as one, and you are allowed to give talaq only three times in your life.”

Justice Nariman said: “Look, there are three forms of talaq. Here only the third form is attacked. Your argument is that the third form is in a way part of the other two forms. We will look into it.”

—To be updated after lunch at court

—India Legal Bureau