The decision on triple talaq will have a bearing on the validity of other issues pertaining to Muslim Personal law such as nikah halala and polygamy among others that will be separately dealt with, said Chief Justice of India
JS Khehar in his dissenting judgment along with Justice S Abdul Nazeer.
Although the CJI’s judgment on the point of triple talaq forms the minority view, he stated as a matter of fact that other issues such as nikah halala and polygamy have been raised in the writ petitions filed by the petitioners who are Muslim women aggrieved by Muslim Personal law practices.
Nikah halala is the practice that requires divorced Muslim women to marry another man and consummate the marriage with him and then seek divorce from him in order to make her eligible to remarry her previous husband who gave her talaq. These practices have been held discriminatory as it applies to and affects women and not Muslim men.
With the five-Judge Bench deciding only to hear on the validity of instant triple talaq, a request was made by the Centre represented by then Attorney General Mukul Rohatgi to broaden the sphere of consideration for all Muslim religious practices that discriminated against women.
The CJI and Justice Nazeer in their judgment referred to the A-G’s submission and said, “Other questions raised in the connected writ petitions such as polygamy and halala (and other allied matters) would be dealt with separately.”
The judgment further indicated that determination on triple talaq may “coincidentally render an answer even to the connected issues.”
The two Judges, though in minority, observed that courts must be “guarded” when faced with questions whether a religious practice is progressive or regressive as determination of integral matters of one’s faith can have a “cascading effect”.
Referring to the A-G’s argument to declare unconstitutional all forms of talaq, the CJI said, “The practices of polygamy and halala amongst Muslims are already under challenge before us. We have to be guarded lest we find our conscience traversing into every nook and corner of religious practices and Personal law….It is not difficult to comprehend what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities.”