The Supreme Court on Friday showed the mirror to the votaries of triple talaq asking them that if the Quran did not approve of such practice and different schools of Islamic thought held it as “undesirable”, then how did it gain legal sanctity among the Muslim communityIJ
The court’s remarks came after senior advocate and Congress leader Salman Khurshid pointed out that triple talaq existed only in India and there was no data available about its prevalence in other countries.
“So if it is India-specific, then tell us if triple talaq is part of Muslim Personal law (Shariat) or is it a custom or usage among the Muslim community,” the Bench headed by Chief Justice JS Khehar asked Khurshid. The Bench also consisted of Justices Kurian Joseph, Rohinton F Nariman, UU lalit and S Abdul Nazeer.
The court cited that under the 1937 Muslim Personal law (Shariat) Application Act, all customs and usage are made “subservient” to Muslim Personal law.
In his reply, Khurshid said personally he could not imagine any religious law that will validate a “sin”. “It can only be some form of custom or usage as it cannot appeal to reason that something which is sin should be part of Shariat,” he said.
Reacting to Khurshid’s comment, the Bench said, “If something is sinful or abhorrent in the eyes of God, can any law by man validate it.”
Khurshid agreed with the Bench, but maintained that even the petitioners were not disputing that it was valid. The only challenge to triple talaq is that it’s “undesirable”.
On Monday, the Bench will seek the Centre’s response and then hear out the All India Muslim Personal law Board.
Explaining the difficulty of the Bench in judging such a sensitive issue, Justice Nariman, said the problem was to understand triple talaq as it was understood by practitioners of Muslim religion in India.
“Constitution Article 25 (right to practice religion) is a right where you have to view religion from the point of view of that religion. Our logic on this is irrelevant,” he said.
Khurshid referred to the international practice followed in Islamic countries where they have refused to accept talaq said three times in one go. According to him, the norm accepted globally is that talaq even if said 100 times at one go, will mean only one talaq. The pronouncement of three talaqs over a period of three months is the only valid form of talaq, Khurshid explained.
The Bench found it hard to accept the argument in the absence of any material contained in any of the five Sunni Muslim schools of thought, namely Hanafi, Shafi, Maliki, Hanbali and Ahle-e-Hadith.
The Bench said, “The problem for us is nobody has given us material on what Hanafis say on triple talaq, although they constitute 90 per cent of Sunni Muslims in India. What we have gathered is that each school recognises triple talaq as valid and legal but says it is undesirable….It’s like the death penalty that is sinful but it’s legal.”
A woman petitioner Fayaz Faiz, who has opposed triple talaq as being un-Islamic, referred to the quotes from the Holy Quran to show that divorce for Muslims was meant to have safeguards like reconciliation, presence of witnesses, and reasons for divorce and thus triple talaq is only a creation of the different schools of thought that emerged with time.