The Supreme Court will decide only on the validity of triple talaq and not go into issues such as polygamy, nikaah halala, etc. A five-judge Constitution Bench that began hearing the issue on Thursday, rejected the Centre’s request to consider even the validity of polygamy under the Muslim Personal law.
“We are only going to decide the validity of triple talaq. We are not asked to consider the other issues,” the Bench headed by Chief Justice JS Khehar said.
Narrowing down the zone of consideration, the Bench, also comprising Justices Kurian Joseph, Rohinton F Nariman, UU lalit and S Abdul Nazeer, asked both the petitioners and the Centre to restrict their arguments on just one kind of talaq, known as talaq-e-biddat.
Triple talaq is prevalent only among the Sunnis, while Shias do not subscribe to it.
“We need to be sure what is being attacked. We are dealing here with a particular type of divorce where a statement made by the husband at one point of time puts asunder the ties and is irrevocable. The fact that it lacks judicial oversight can be a separate argument,” the Bench said.
Senior advocate Salman Khurshid pointed out that under talaq-e-biddat there existed a reconciliatory process to reconcile the husband and wife by the Qazi or Mufti. But the Bench remained unimpressed and asked him if this reconciliation process was codified. To this, Khurshid replied in the negative.
Petitioners, who are represented by senior advocates Amit S Chaddha, Anand Grover, and Indira Jaising, pointed out that triple talaq was unfair and discriminatory against women. They argued that women cannot divorce a man under Muslim law by pronouncing talaq as they have to go to court for seeking consent of the husband under the arrangement of khula.
Jaising argued that the 1937 Muslim Personal law (Shariat) Application Act that codifies the personal rights of Muslims talks about talaq, but it does not address the civil consequences a woman has to suffer due to the unilateral decision of the husband to divorce her. Also, there is no judicial forum for redressal despite the woman’s civil status being severely altered. Jaising also pointed out that even in a theocratic state like Pakistan, triple talaq does not exist.
Khurshid contended that when a man seeks talaq he does not need anything in return but when a woman seeks divorce, she has to be given meher, maintenance, etc., by the husband. Senior advocate Kapil Sibal, appearing for Muslim Personal law Board, said, “Incidents of divorce in Islam are less than in other religions.” The Bench sought statistics in this regard and even asked petitioners to produce the laws passed in other countries by which such practices have been abolished.
Additional Solicitor General (ASG) Tushar Mehta told the court that the Centre supports gender equality and woman’s dignity and would urge the court to consider deciding on the issue of polygamy as well. Jaising too asked the court to examine whether personal laws violate fundamental rights, but the Court declined her request stating that the issue can be discussed in some other case. The hearing will continue on Friday.