New Delhi: The Supreme Court of India said it is not going to hear polygamy issue in the triple talaq case as the five-judge Constitution bench headed by Chief Justice J Khehar commenced Thursday hearing on a batch of pleas challenging the constitutional validity of 'triple talaq', 'nikah halala' and polygamy practices among Muslims.
"We will keep the matter limited to the issue, Whether triple talaq and halala are fundamental to the religion or not", the Apex Court said as the hearing in the much awaited case began today morning.
The Apex Court said three days will be given to both the parties - those who are in favour of triple talaq and halala, and those who are against.
The hearing assumes significance as the apex court has decided to hear the case during the summer vacation and even suggested that it is likely to sit on Saturdays and Sundays to expeditiously decide the contentious and sensitive issues arising in the matter.
Attorney General Mukul Rohatgi will assist 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 of citizens enshrined in the Constitution. Senior Congress leader and Former Union Minister Salman Khurshid will be appeare in the Supreme Court as amicus curiae.
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.
The top court will examine the issue to give an authoritative pronouncement on the constitutional and legal validity of 'triple talaq', 'nikah halala' and polygamy practices among Muslims.
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.
The High Court 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 met, he gave her triple talaq.
The copy of High Court verdict was made available only yesterday.
The apex court had on March 30 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 May 11.
Influential Muslim organisations like the All India Muslim Personal Law Board (AIMPLB) have opposed court's adjudication of these matters, maintaining these practices stemmed from the Holy Quran and were not justiciable.
The Muslim women who have filed the petitions have challenged the practice of triple talaq in which the husband, quite often, pronounces talaq thrice in one go, sometimes even by phone or text message.
The apex court while referring to the matter to a larger bench had observed that "sentiments" were involved in the matter pending before it and a five-judge constitution bench would adjudicate the issue, which required a detailed hearing.
The apex court had earlier said it would decide issues pertaining to the legal aspects of the practices of triple talaq, nikah halala and polygamy among Muslims, but would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.
The Centre had on October 7 last opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.
On March 27, the All India Muslim Personal Law Board (AIMPLB) had told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.
The Muslim panel also said that there was a need for "judicial restraint" before going into constitutional interpretation of these unless such an exercise becomes unavoidable.
The Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.
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.