From suo motu to judgment: The arguments for and against triple talaq

Supreme Court admits Muslim woman's plea to declare triple talaq illegal

The Muslim Personal Law Board has questioned the court's jurisdiction, arguing that the judiciary cannot adjudicate on personal laws.  

The Supreme Court on Friday took on board a petition by a West Bengal-based Muslim woman to declare the practices of ''talaq-e-bidat'' (triple talaq), ''nikah halala'' and polygamy under the Muslim personal laws illegal and unconstitutional.

A Bench of Chief Justice of India T.S. Thakur and Justices A.M. Khanwilkar and D.Y. Chandrachud tagged the petition filed by Ishrat Jahan, a native of Howrah, with a batch of petitions filed by several Muslim women, women's rights organisations and the Supreme Court's own suo motu PIL to consider whether certain practices of marriage and divorce under the Islamic personal laws amount to gender discrimination.

The Bench issued notice to Ministries of Women and Child Development, Law and Justice, Minority Affairs, the National Commission for Women, police chiefs of Bihar and West Bengal and the woman's husband, Murtuza Ansari.

However, the Bench refused to aid Ms. Jahan find her four minor children, whom she claims to have been “taken away” by her husband after talaq'.

Instead, the Bench asked her to move a habeas corpus petition in the High Court concerned, at one point remarking that “she produced them [children]”.

In her petition, Ms. Jahan, represented by advocate V.K. Biju, contended that personal laws that validate triple talaq as a form of divorce and recognise the practices of ''nikah halala'' and polygamy were void and unconstitutional as “they are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights.”

At this point, Chief Justice Thakur orally remarked that “he [a Muslim man] is entitled to have four wives and even without talaq, he can marry again.”

At this point, Mr. Biju argued that “the Constitution does not grant absolute protection to a personal law that is arbitrary or unjust, nor are personal laws exempted from the jurisdiction of the legislature or the judiciary.”

The effect of Islamic personal law on women in the community recaptured the Supreme Court's attention on October 16, 2015, when a Bench of Justices Anil R. Dave and A.K. Goel directed the registration of a PIL titled 'Muslim women's quest for equality'. The Bench ordered the PIL to be placed before an appropriate three-judge Bench for adjudication.

Subsequently, a slew of petitions were filed in the Supreme Court by Muslim women against their personal law. One of them, by Shayara Bano, said that she only wished to “secure a life of dignity, unmarred by discrimination on the basis of gender or religion.”

However, the Muslim Personal Law Board has questioned the court's jurisdiction, arguing that the judiciary cannot adjudicate on personal laws.

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Printable version | Mar 3, 2021 5:01:01 PM |

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