Day Four In Supreme Court: Sibal Says Triple Talaq As Old As Islam

Triple talaq, which condemns a woman to a life of indignity and uncertainty on the unilateral and instant decision of her husband, has been upheld as a sacred practice and above the law and Constitution of India, and therefore outside the purview of a debate to establish its validity.

Day Four

Day four (16 May) of Triple Talaq hearing at the Supreme Court saw the defence advancing its arguments in support of triple talaq, questioning the right of the majority to make laws for the minority, especially on a practice that has been in vogue for the last 1,400 years.

Sibal’s observations are on a practice that has been discarded by several Muslim majority countries, including Turkey, Pakistan and Bangladesh.

“It is not a question of equity and good conscience, it is a question of faith. You cannot bring Constitutional morality.”

Sibal, representing the All India Muslim Personal Law Board (AIMPLB), drew (puzzling) parallels between Ram’s birth in Ayodhya and triple talaq to ‘demonstrate’ that faith matters, not constitutional morality. “That birth of Ram in Ayodhya is a matter of faith, not Constitutional morality; same in this case.”

Sibal’s arguments focused on the fact that personal laws were safeguarded by the Constitution. “Shariat is personal law and not subject to fundamental rights,” Sibal said.

Sibal ignored aggrieved Muslim women’s right to protection by the state when he said this:

Sibal and R F Nariman exchanged views on the 1951 Supreme Court ruling of State of Bombay v. Narasu Appa Mali case, where the bench held that ‘uncodified personal laws’ may not be examined for violating fundamental rights.

While Nariman cited reasons why the court is not going into Narasu Appa Mali verdict, Sibal insisted the court will have to review the correctness of Narasu Appa Mali and decide on Article 13 (laws inconsistent with or in derogation of the fundamental rights) before subjecting triple talaq to constitutional scrutiny.

"Laws in respect of other religions have been codified except Muslim law, that is a challenge before the Court", said Sibal.

Sibal also voiced his concern for the Muslim men when he asked, “What would happen if there is no law passed by the parliament? How will men seek divorce then?” The question was raised on the statement put forward by Attorney General Mukul Rohatgi a day before that the government will enact a new law to regulate marriage and divorce among Muslims.

He also said that uniform law was a reality in India, but it does not touch marriage or divorce.

The hearing before a bench comprising members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim will conclude on Thursday.

Day Three

On the third day (15 May) of the hearing, the government told the apex court that it will enact a new law to regulate marriage and divorce among Muslims if the Supreme Court declares the instantaneous triple talaq null and void. If the SC completely strikes down triple talaq, we will bring in a law. We will not leave the people high and dry,” said Attorney General Mukul Rohtagi.

Responding to Attorney General Rohtagi argument, Chief Justice of India J S Khekar said:

Rohtagi pointed out that issues of marriage and divorce have nothing to do with religion, and said:

But the bench said it will not take up nikah halala and polygamy issues, due to “limited time” in response to a government request, and said that it will be taken up in the future.

However, All India Muslim Personal Law Board counsel Kapil Sibal told the apex court that triple talaq is a matter that comes under the Muslim board and therefore outside the purview of the top court.

Day Two (12 May)

The country’s top legal luminaries presented their arguments for and against the controversial practice of triple talaq, which were interjected by pointed questions by the five-judge bench. The CJI likened the controversial practice of instant divorce in Islam to capital punishment, saying it was like death penalty… “abhorrent but still allowed”.

He was responding to a submission by senior Congress leader and the amicus curie in the case Salman Khurshid, who said triple talaq was sinful but lawful.

The observation came when 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.

Senior advocate Ram Jethmalani, representing petitioner RSS-affiliated Forum for Awareness of National Security (FANS), lashed out the practice of triple talaq on the basis of various constitutional grounds including the Right to Equality.

Justice Rohinton Fali Nariman observed that one should see difference between theory and practicality at present context in connection with nikah and talaq in Islam.

Day One (11 May)

Just as the hearing began, Chief Justice Khehar clarified, "The matter can be summed up in three points: whether triple talaq is fundamental to Islam. If it is fundamental we have to see if we can interfere; two, whether it is sacramental or not, and three, whether there is an enforceable fundamental right that is violated."

Senior advocate Amit Singh Chadha, appearing for Saira Bano, one of the petitioners in the case, initiated the arguments against the practice of triple talaq and said this practice was not fundamental to Islam and hence can be got rid of. He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to support 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.

Senior advocate Indira Jaising, appearing for one of the petitioners, said in case of divorces being granted through extra-judicial mechanism, there should be a "judicial oversight" to deal with the consequences.

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. 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.

The case, which may acquire communal undertones, will be a relook at gender equality as the Ministry of Law and Justice, in its affidavit said that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.

Why is the SC hearing this matter?

The hearing is rooted in a 16 October 2015 order of the apex court by which it had directed the separate listing of a public interest litigation addressing the question of rights of Muslim women vis-a-vis these three customs. The hearing 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.

In November last year, the Mumbai-based Bharatiya Muslim Mahila Andolan (BMMA - Indian Muslim Women's Movement) released a report chronicling nearly 100 cases of triple talaq.

The Supreme Court had on 30 March this year said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are "very important" and involve "sentiments" and a constitution bench would hear the petitions from 11 May.

Who are the judges?

The historic case will be heard by a five-judge bench: Chief Justice of India J S Khehar and Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer. The bench will also take up the main matter on its own as a petition titled 'Muslim Women's quest for equality'. The apex court will hear the case during the summer vacation and is likely to sit on the weekends to expedite the matter that may throw up sensitive issues.

Who is representing the Central government?

The hearing will have Additional Solicitor General Tushar Mehta appearing for the Centre. He said: "The key point is whether the right to religion is subject to restrictions whether it can violate fundamental rights.” Attorney General Mukul Rohatgi is assisting the bench which will also examine to what extent the court can interfere in the Muslim personal laws if they are found to be violative of the fundamental rights enshrined in the Constitution.

Who are the petitioners?

The hearing will be based on the petitions by Khuran Sunnath Society, Shayara Bano, Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri. It will also include five separate writ petitions filed by Muslim women. Though the plea includes 'nikah halala' and polygamy, the apex court has said it will confine the hearing to just triple talaq.

Who are the defendants?

Influential Muslim organisations like the All India Muslim Personal Law Board (AIMPLB) have opposed court's interference in these matters, saying these practices have their roots in the Quran and were outside the purview of courts. Senior lawyer and Congress leader, Kapil Sibal, who is appearing for AIMPLB, has said that triple talaq "is an issue of faith and personal law and hence it is outside the ambit of judicial review."

What are the issues before the SC bench?

Does personal law come under the ambit of Constitution of India? Four questions Supreme Court will address:

1. Whether the impugned practice of triple talaq is protected under Article 25(1) of the Constitution of India?

2. Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India?

3. Whether personal law is law under Article 13 of the Constitution?

4. Whether the impugned practices of talaq-e-biddat, Nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory?

Even though it has been practised for decades, the reprehensible instant triple talaq finds no mention in Sharia law or the Quran, say experts. Islamic scholars say the Quran gives allowance for reflection and reconciliation and there is nothing instant about the whole exercise.

Activists say most Islamic countries, including Pakistan and Bangladesh, have clamped down on triple talaq, but it is still practised in India, and even handed down over Skype, WhatsApp or Facebook in sheer instances of audacity.

Now it’s the highest court of the land that will decide if triple talaq has to stay or go. Rumblings and political grandstanding aside, triple talaq is a scourge on dignity and a ban will transform the lives of Muslim women, and redefine their freedom and dignity.