New Delhi: In a huge setback to All India Muslime Personal Law Board (AIMPLB), the Supreme Court of India Tuesday terming instant or triple talaq against the principles of Quran and Shariah invalidated the evil practice and asked the government to bring a legislation on it in the parliament.
The verdict was pronounced by India's Apex Court by a five-judge constitution bench headed by Chief Justice J S Khehar. The bench had reserved its verdict on May 18 after a six-day marathon hearing during the summer vacation.
"In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'- triple talaq is set aside," the order of the court said.
Three of the five judges hearing the case said it is unconstitutional; the other two wanted it banned for six months till the government introduces new legislation. The majority opinion held that triple talaq "is not integral to religious practice and violates constitutional morality".
While Justices RF Nariman and UU Lalit held that triple talaq is unconstitutional and violative of Article 14, Justice Kurian Joseph struck down the practice on the ground that it goes against shariat and the basic tenets of the Quran. Chief Justice JS Khehar and Justice Abdul Nazeer dissented.
The judges in favour of a new law wanted the government to take into account the concerns of some Muslim organisations who are critical of any attempts to meddle with religious laws, arguing it curtails their constitutional right to govern their affairs.
The Supreme Court referred to the fact that several Islamic countries like Pakistan do not allow triple talaq; judges questioned why it should not be abolished in India.
During the hearing, the apex court had clarified that it may not deliberate upon the issue of polygamy and said it would only examine whether triple talaq was part of an "enforceable" fundamental right to practice religion by the Muslims.
The petitioners had claimed that the practice of 'triple talaq' was unconstitutional.
The Muslim women, who had filed the petitions, have challenged the practice of 'triple talaq' in which the husband pronounces 'talaq' thrice in one go, sometimes even by phone or a text message, to get a divorce.
During the hearing, the apex court had observed that the practice of 'triple talaq' was the "worst" and "not a desirable" form of dissolution of marriage among Muslims, even though there were schools of thought which called it "legal".
Several lawyers including noted jurist Ram Jethmalani had attacked the practice on various constitutional grounds including the right to equality and termed it "abhorrent", according to PTI.
The bench had taken up the main matter on its own as a petition titled "Muslim Women's quest for equality. The apex court had on its own taken cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.
It was argued during the hearing that triple talaq was a discrimination on the ground of sex and this practice was abhorrent to the tenets of holy Quran and no amount of advocacy can save this "sinful" practice which is contrary to constitutional tenets.
The Centre had told the bench that it will come out with a law to regulate marriage and divorce among Muslims if 'triple talaq' is held invalid and unconstitutional by the apex court.
It has said that all personal laws must be in confirmity with the Constitution and rights of marriage, divorce, property and succession has to be treated in the same class and has to be in conformity with the Constitution.
The Centre had said 'triple talaq' is neither integral to Islam, nor a "majority versus minority" issue but rather an "intra-community tussle" between Muslim men and deprived women.
The apex court had said it was keeping open for adjudication in the future the issues of polygamy and 'nikah halala' among Muslims as the Centre had insisted deliberations on these aspects as well.
Senior advocate Kapil Sibal, appearing for All India Muslim Personal Law Board (AIMPLB), had equated the issue of 'triple talaq' with the belief that Lord Rama was born in Ayodhya and these were matters of faith which cannot be tested on grounds of constitutional morality.
He had argued that triple talaq has been there since 637 AD and cannot be termed as un-Islamic as Muslims have been practising it for last 1,400 years.
Sibal had said that either Parliament can enact a law or it should be left to the community itself to deal and the court should not interfere on the issue.
The apex court during the hearing had asked the AIMPLB whether a woman can be given an option of saying 'no' to triple talaq at the time of execution of 'nikahnama' (marriage contract).
It had asked Muslim bodies how a practice like triple talaq could be a matter of "faith" when they have been asserting that it is "patriarchal", "bad in theology" and "sinful".
The batch of pleas had also challenged the constitutional validity of other practices like 'nikah halala' and polygamy among Muslims.
Differences over practice of Triple Talaq exist in the Islamic Sharia since the tenure of second Caliph Omar (RA). Muslim scholars and jurists argue that concurrent talaq or triple talaq in one go has never been approved by Prphet Mohammad (peace be upon him), during the tenure of first Caliph Abu Bakr (RA) and the first two years of Caliph Omar's caliphate.
Caliph Omar later approved it as punishment, scholars argue, but later on the practice was annulled by Muslim jurists. It is on this basis, the practice of concurrent talaq has been termed invalid in most of the Muslim countries.
Muslims in India, majority of them followers of Hanafi school of thought, are adamant on the invalid concurrent talaq and are fighting a case with women activists in the Supreme Court.
Interestingly, some renowned Hanafi scholars have also ruled against concurrent or triple talaq. According to the sources in the All India Muslim Personal Law Board (AIMPLB), the members fear that agreeing to any change on triple talaq would open floodgate of interference in other Sharia matters.
It is also learnt that there is a strong dissent among the members of the All India Muslim Personal Law Board (AIMLB) and especially some women members are upset over board's handling of the situation.
Post Comments
| Quick links