Day Two Of The Triple Talaq Case: Who Said What In The Court Today

As the high-profile case on the constitutional validity of triple talaq entered its second day today at the Supreme Court, the practice was denounced by the five-judge bench as the worst and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought, which termed it as "legal".

In a first, the five-judge bench adjudicating on the case will go into an overdrive, considering the constitutional importance of the matter before them. They will sit through the upcoming summer vacation to examine issues, which if not heard now, “will not be decided for years together” as Chief Justice of India (CJI) J S Khehar, put it.

On day two, 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 headed by the CJI. 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 said:

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.

Justice Kurian Joseph asked: “is something which is Islamically abhorrent, sinful or under any religious law it is distasteful, can it be validated by law made by man?
Khurshid said: “..it cannot be”.

The CJI intervened to say “it’s like…somewhat the same situation…death penalty is wrong and sinful in many countries but it is legal”.... He also suggested that pronouncement of triple talaq in one sitting should also be considered as pronouncement of talaq one time....

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. "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.”

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.

All India Muslim Personal Law Board and other Muslim organisations will get a chance in the course of the hearing to present their stand on these sensitive issues. Senior advocate Yusuf H Muchhala will appear for some Muslim organisations.

The Centre, through law officers Tushar Mehta and Pinky Anand, maintained that it was not taking any side and was assisting the five-judge Constitution bench on the issues of gender justice, equality for women and dignity of women and the main arguments would be advanced by Attorney General Mukul Rohatgi on Monday.

Senior advocate Indira Jaising is appearing for Bebak Collective, a Muslim women organisation. While senior advocate Amit Singh Chadha is appearing for Shayara Bano – a triple talaq victim from Uttarakhand, senior advocate Anand Grover is representing Muslim Mahila Andolan’s Zakia Soman.

The court will hear the final arguments on the case titled, ‘Quest for Equality vs. Jamiat Ulama-i-Hind’ on day seven (Thursday), the first day of the SC's summer vacation. The historic case is being heard by a five-judge bench representing five different faiths: Chief Justice of India J S Khehar (Sikh) and Justices Kurian Joseph (Christian), R F Nariman (Parsi), U U Lalit (Hindu) and Abdul Nazeer (Muslim). The bench will also take up the main matter on its own as a petition titled 'Muslim Women's quest for equality'.

That instant triple talaq is viewed as a larger social evil can be inferred from some Muslim organisations welcoming the apex court’s observations hoping that the Prophet’s Islam will prevail over that of the mullahs. All India Shia Personal Law Board (AISPLB) spokesperson Maulana Yasoob Abbas said: "Time has now come to decide whether Prophet's Islam will reign supreme or the Islam of a selected few mullahs." "Many Muslim countries have already put an end to the practice as it is directly linked to the lives of Muslim women. In the Shia community, there has been no place for triple talaq in one go."