The Centre’s fresh attempt to seek a judicial review of all forms of ‘talaq’, polygamy and ‘Nikah Halala’ practiced under Muslim Personal laws failed to get the nod of the Supreme Court on Monday. Terming ‘talaq’ as a discriminatory practice, the Centre submitted before a five-judge Constitution Bench that in the event of all forms of ‘talaq’, including triple ‘talaq’, being struck down by the SC, the Centre would bring a law to determine the rights of Muslim men and women concerning marriage and divorce.
However, the SC remained unimpressed by the offer saying, “The manner, in which you are dealing with the case, will finish their (minority) rights.” The Bench said that due to “paucity of time” it will only take up the triple ‘talaq’ issue, leaving the other issues to be considered at a later stage by the Constitution Bench.
Attorney-General Mukul Rohatgi even urged the Bench to decide the validity of polygamy and ‘Nikah Halala’ along with triple ‘talaq.’
Rohatgi, representing the Centre said, “It is inconceivable that one half of a major community of this country suffer from lack of equality, status and dignity as compared to womenfolk of other religious communities in this country as also womenfolk of the same community in other countries.”
The Bench headed by Chief Justice JS Khehar and consisting of Justices Kurian Joseph, RF Nariman, UU lalit and S Abdul Nazeer said, “Going by your argument, all forms of talaq are arbitrary and extra-judicial. If we strike down the unfettered right of husband to unilaterally seek talaq, what remedy will be available to a Muslim husband to come out of marriage. Is it not beyond the purview of judicial court to do so.”
In reply, the A-G said, “If all three forms of talaq - talaq-e-ahasan, talaq-e-hasan, talaq-e-biddat - are held to suffer from the vice of unconstitutionality, the Centre will bring a law to fill the vacuum.”
He urged the court not to shut its eyes to the constitution that envisaged dignity and equality to woman as much as man. “The question to answer in this case will be whether women of one religion can be denied the full play of Fundamental Rights under the Constitution. Our argument is that all forms of talaq are opposed to dignity of woman.”
In addition, he urged that practices of polygamy and ‘Nikah Halala’ too fell foul of the Constitution, and should be dealt with by the Bench.
The Bench explained to Centre that the door of constitutional courts is open to citizens only when state violates Fundamental Rights of citizens. Here, it was a case of an individual violating the fundamental right of another individual. A-G submitted that talaq and polygamy have nothing to do with religion but the bench said marriage and divorce are “inextricably woven” with religion.
The Centre cited examples from around the globe giving instances of theocratic states which have adopted reforms to remove triple talaq. The Bench said it is always open to the Centre to introduce a law as part of addressing a social cause. However, A-G differed seeking the court to take the first step.