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The question on validity of 'triple talaq'

A five-judge Constitution Bench led by Chief Justice of India J.S. Khehar began hearing a batch of six petitions and a suo motu PIL of the Supreme Court on whether triple talaq and polygamy violate the fundamental rights of Muslim women.

The Centre has asked the court to reopen the debate whether personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Indian Constitution.

If the Supreme Court agrees that personal laws are included in the definition of laws under Article 13, the door will be opened wide for an aggrieved person to challenge a particular personal law of a religion as violative of the fundamental rights.

In case the challenge succeeds in court, the personal law, to the extent of its inconsistency, shall become void.

The question on validity of 'triple talaq'

Supreme Court open to address polygamy, nikah halala in future

Senior Advocate Salman Khurshid at the Supreme Court for the hearings on Triple Talaq case at Supreme Court, in New Delhi on Thursday.   | Photo Credit: Photo: V. Sudershan

The Supreme Court on Monday said it was keeping open for adjudication in the future the issues of polygamy and ‘nikah halala’ among Muslims as the Centre insisted deliberations on these aspects as well.

“It may not be possible to deal with all the three issues in the limited time we have. It will be dealt in future,” the Bench clarified.

The observation was made when Attorney General (AG) Mukul Rohatgi, appearing for the Centre, said that the issues of polygamy and ‘nikah halala’ were also part of the order of a two-judge Bench which had referred to the Constitutional bench the three issues, including the practice of triple talaq among Muslims.

“The scope of referring had all the three issues that was divorce, nikah halala, polygamy. All these three issues are before this court by virtue of the reference order of the two- judge bench,” Mr. Rohatgi said.

The Centre’s assertion assumes significance in the backdrop of the remarks of the apex court that it will only deal with the issue of triple talaq that too if it was fundamental to Islam.

The AG asked the bench also comprising Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer to make it clear that the issues of polygamy and ‘nikah halala’ are still open and would be dealt by other bench in future.

“It will be dealt with in future,” the Bench clarified.

The Bench is hearing a clutch of petitions challenging the practice of triple talaq among Muslims.

The Centre has resumed its arguments in the case on Monday.

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The question on validity of 'triple talaq'

Triple talaq hearing: ‘If God finds something sinful, can laws validate it’

161021 - Oped - Triple talaq  

“Triple talaq is inherently unequal to women. The practice is abhorrent to god and no amount of advocacy by man can cure it,” senior advocate Ram Jethmalani told a five-judge Constitution Bench of the Supreme Court, headed by Chief Justice J.S. Khehar, on the second day of hearing on the matter on Friday.

“No discrimination against a woman is possible just because she is a woman. Law can be made only to improve the lot of women,” he said.

“Secularism is the subjection of religion to the rule of law,” he said. He urged the court not to shy away from bringing triple talaq under Article 13 (laws inconsistent with or in derogation of the fundamental rights) “as any customary usage enforceable by court comes under the article.''

 

Justice Khehar said that if triple talaq comes to an end, whatever the consequences would be decided then. “There is no mutual consent in triple talaq.”

When Justice Khehar said, “Article 15 [Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth] talks about State law and we are on personal law here,” Mr. Jethmalani asked: “Can any law allow a man to get rid of a woman on a whim.”

When former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, said, “Islam says triple talaq is sinful but permissible,”

Justice Kurian Joseph retorted: “Can something found sinful by God be validated by laws of man?”

Mr. Khurshid said, “The AIMPLB [All India Muslim Personal Law Board] is the best body to guide the court on the varying philosophies of schools of Islam about triple talaq.”

Former Union Minister Arif Mohammad Khan, in his submission, said,“Not only is triple talaq non-fundamental but violates everything in Islam. The Shariat is the Quran and not the works and verses of scholars. The Quran lays down the procedure for divorce. Various schools have distorted the tenets of Quran to their liking.”

 

Mr. Khan said:

“Thirty years after the death of the Prophet, people took over the reins of the religion and used it for their empire-building.Everything you need is in the Quran. If you need more, look at the life of the Prophet, if you still need more use your own good sense. We can change the law, but not the habits of society. Untouchability was banished by the Constitution, but stays with us.

“Quran gave a man only two chances to marry his divorced wife. Any more than that, the Prophet called him adulterer, bull on rent.

“The three-month Iddat period is not for checking whether the wife was pregnant. But, under Quran, it was a chance for the couple to be reunited. The Quran lays down the procedure for divorce with great clarity. You don't have to depend on scholars and schools.”

To this Farah Faiz, one of the petitioner in the triple talaq case, said, “God made us here as humans, not as Sunnis, Shias, Hanafis or Malikis.”

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The question on validity of 'triple talaq'

Supreme Court to hear plea challenging Aadhaar notifications on May 17

No more optional :The government has been insisting that the Aadhaar number of card holders be linked to their ration cards. File photo  

The Supreme Court on Friday agreed to hear on May 17 a plea challenging various government notifications to make Aadhaar mandatory for availing benefits of government schemes.

A five-judge Constitution Bench, headed by Chief Justice J S Khehar, which is currently hearing a batch of petitions challenging the practice of triple talaq, agreed to the contention of senior advocate Shyam Divan that the Aadhaar matter is very important and needs to be heard on an urgent basis.

“Despite the order of this court that Aadhaar will be voluntary and not mandatory, the government has been coming out with a series of notifications, making it mandatory to avail benefits of schemes like scholarships, Right to Food and mid-day meal in schools,” Mr. Divan, appearing for former chairperson of National Commission For Protection of Child Rights (NCPCR) Shanta Sinha, one of the petitioners in the Aadhaar matter, said.

He said a two-judge Bench should hear the applications against making Aadhaar mandatory for various schemes.

Solicitor General Ranjit Kumar contested the submission, saying even interim orders in Aadhaar matter have been passed by a five-judge Bench and hence it would not be appropriate to list the plea before a two-judge Bench.

The petitioner had not informed the court that after passing of various orders by the Supreme Court making Aadhaar voluntary, the Central government had come out with new legislation, he said.

Several petitions, challenging the constitutional validity of Aadhaar are pending in the apex court and would be heard by a Constitution Bench, which is yet to be set up by the Chief Justice of India.

Earlier, the Supreme Court had passed a slew of orders asking the government and its agencies not to make Aadhaar mandatory for extending benefits of their welfare schemes.

The apex court, however, had allowed the Centre to seek Aadhaar card voluntarily from citizens fro extending benefits of schemes like LPG subsidy, Jan Dhan scheme and Public Distribution System etc.

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The question on validity of 'triple talaq'

Ban on triple talaq will cause a vacuum: Supreme Court

Representational image.   | Photo Credit: Rajeev Bhatt

‘No forum will be left for Muslim men if it is declared invalid’

The Supreme Court on Thursday asked where Muslim men will go for divorce if triple talaq is declared unconstitutional, even as the Centre submitted that it is against all forms of triple talaq.

“In case we hold in your (government’s) favour that all forms of triple talaq is bad, what is the procedure for a husband to seek divorce?” the Supreme Court asked Additional Solicitior General Tushar Mehta, who appeared for the Centre.

The court was addressing the point that a vacuum may arise if triple talaq is declared invalid, leaving Muslim men no forum to go to for a divorce. Presently, Muslim men do not have to move courts to get a divorce. They can instantly get divorce unlike a Muslim woman who has to approach a court under Section 2 of The Dissolution of Muslim Marriages Act of 1939. The 1939 statute gives specific grounds under which a woman can seek divorce.

The exchange came towards the end of the first day of hearing before a five-judge Bench of Chief Justice of India J.S. Khehar, Justices Kurian Joseph, Rohinton Nariman, U.U. Lalit and S. Abdul Nazeer on petitions by Muslim women and organisations challenging the constitutionality of triple talaq. Leading them is a suo motu PIL petition from the Supreme Court itself on the question whether personal law practices violate the dignity of Muslim women.

‘Civil death for women’

The question came from Justice Lalit when senior advocate Indira Jaising termed triple talaq an act which is “extra-judicial, unilateral, final and done without giving any reasons”. Ms. Jaising compared triple talaq to a “civil death” for women.

“According to you, all forms of triple talaq are bad. Then where do men go for divorce?” Justice Lalit asked. Ms. Jaising said Parliament should make a law to fill the vacuum. To this, Justice Kurian proposed that, till the Parliament makes its law, the 1939 Act could be made applicable to Muslim men also.

In short, such a mechanism, if adopted would bring divorce for Muslim men under a statutory law and make the 1939 Act gender-neutral.

The court, at the outset of the day-long hearing, said it intended to restrict itself to considering the constitutionality of triple talaq and not extend to polygamy.

Ban on triple talaq will cause a vacuum: Supreme Court
 

The Bench said it would examine whether triple talaq is a fundamental or essential part of the religion. And if so, it would not interfere any further.

But Mr. Mehta did not agree with the court's observations, and intervened to say that Attorney-General Mukul Rohatgi would address the court regarding polygamy.

Mr. Mehta reiterated that Muslim women, merely by virtue of their religious identity and religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths. The government sought the Supreme Court to answer “whether in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution”.

Arguing for Shayara Bano, a woman who was treated cruelly and later divorced by her husband by means of triple talaq, senior advocate A.S. Chadha and advocate Balaji Srinivasan submitted how “Muslim men have an unqualified, untrammeled, unguided, untested and absolute right” to dissolve marriage by simply uttering 'talaq, talaq, talaq'.

“On the other hand, Muslim women, since 1939, have to show cogent, relevant and reasonable grounds as enumerated in the statute,” Mr. Chadha submitted.

He added that “triple talaq is not a fundamental part of Islam and the evidence lies in the fact that various Islamic countries including Pakistan, Afghanisation and Bangladesh have done away with it”. Ms. Jaising added that the process of divorce in these countries is always done under the judicial eye.

At this point, senior advocate Kapil Sibal intervened to point out that these countries had done away with triple talaq through legislation and not through the courts.

In her detailed arguments, Ms. Jaising questioned why “the Constitution stops where the personal law begins”.

“I am not here to argue that Muslim law is better than Christian law or Hindu law is better than Muslim law. I am should not these personal law practices, whether it be Muslim, Christian, Parsi, Sikh or Hindu, stand the scrutiny of the fundamental rights under the Constitution?” Ms. Jaising asked.

She questioned why the courts were not giving a authoritative decision on whether personal laws fell under the ambit of Article 13 of the Constitution or not. In case this Bench declares Muslim personal law to fall under Article 13, the Muslim personal law practices could be tested in courts on whether they violate the sacrosanct fundamental rights of women under the Constitution.

Ms. Jaising asked why the 1950s judgment of the Bombay High Court in State of Bombay versus Narasu Appa Mali continues to hold fort. The Narasu Appa Mali judgment had held that personal law is not ‘law’ under Article 13. The court had observed that reformation of personal laws is best left to the legislature as "chosen representatives of the people" and not the judiciary. It said the phrase ‘customs and usages’ in Article 13 does not include personal laws of various religions.

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The question on validity of 'triple talaq'

SC to examine if triple talaq is fundamental to religion

Farah Faiz, one of the petitioner in the triple talaq case, outside the Supreme Court on Thursday.   | Photo Credit: V. Sudershan

The Supreme Court on Thursday began hearing a batch of six petitions and a suo motu public interest litigation petition on whether triple talaq violates the fundamental rights of Muslim women.

The court said it would examine whether triple talaq is fundamental to religion. "We will also examine whether triple talaq is a part of enforceable fundamental right," the court observed.

Among those supporting triple talaq are the dominant All India Muslim Personal Law Board and the Jamaat-e-Islami Hind.

A five-judge Constitution Bench, led by Chief Justice of India J.S. Khehar and comprising Justices Kurian Joseph, Rohinton F. Nariman, Uday Umesh Lalit and S. Abdul Nazeer are hearing the case. For Justice Nazeer, this will be his first time on a Constitution Bench.

The Union government has asked the court to reopen the debate whether personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Constitution.

If the Supreme Court agrees that personal laws are included in the definition of laws under Article 13, the door will be opened wide for an aggrieved person to challenge a particular personal law of a religion as violative of the fundamental rights.

In case the challenge succeeds in court, the personal law, to the extent of its inconsistency, shall become void.

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The question on validity of 'triple talaq'

Triple talaq hearing to begin May 11

Speaking up Women activists of the Joint Movement Committee protest against 'Triple Talaq', at Jantar Mantar, on Wednesday. PTI  

A five-judge Constitution Bench led by Chief Justice of India J.S. Khehar is scheduled to begin hearing a batch of six petitions and a suo motu PIL of the Supreme Court on whether triple talaq and polygamy violate the fundamental rights of Muslim women.

The Bench, besides Chief Justice Khehar, comprises Justices Kurian Joseph, Rohinton F. Nariman, Uday Umesh Lalit and S. Abdul Nazeer. For Justice Nazeer, this will be his first time on a Constitution Bench.

The Bench will hear the case back-to-back from May 11 and is likely even sit through the weekend. The Bench will examine if these personal law practices were the “fundamental traits” of the minority religion.

Article 13

The Centre has asked the court to reopen the debate whether personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Indian Constitution.

If the Supreme Court agrees that personal laws are included in the definition of laws under Article 13, the door will be opened wide for an aggrieved person to challenge a particular personal law of a religion as violative of the fundamental rights.

In case the challenge succeeds in court, the personal law, to the extent of its inconsistency, shall become void.

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