Is triple talaq re­li­gious prac­tice? If we scrap, how will Mus­lim men di­vorce, asks SC

The Indian Express - - THE SECOND PAGE -

Par­lia­ment but they have not done any­thing.”

As soon as the bench as­sem­bled for the day, CJI Khe­har made it clear that the court will only ex­am­ine the ques­tion of triple talaq — whether it was fun­da­men­tal to the prac­tice of the re­li­gion.

Although the ques­tion of polygamy in the Mus­lim com­mu­nity, too, was sought to be raised by some of the pe­ti­tion­ers, the court said this was un­re­lated to triple talaq and it would not go into it.

How­ever, Ad­di­tional Solic­i­tor Gen­eral Tushar Me­hta told the court that the Cen­tre was against all forms of triple talaq and would ar­gue on all as­pects of gen­der jus­tice in­clud­ing polygamy. The Cen­tre will com­mence its ar­gu­ments in the mat­ter on Mon­day.

Open­ing the ar­gu­ments for the pe­ti­tion­ers in a packed court­room, se­nior coun­sel Amit Singh Chadha, ap­pear­ing for Sha­yara Bano, said: “The Mus­lim hus­band’s right to ask for di­vorce by ut­ter­ing talaq three times in a row is com­pletely uni­lat­eral, un­guided, ab­so­lute and has no ra­tio­nale. It can­not be iden­ti­fied with Mus­lim cul­ture and is not part of Mus­lim law. So it is not part of re­li­gion and hence not part of the right to prac­tise or prop­a­gate re­li­gion and de­serves no pro­tec­tion.”

Bano,who­hails­fro­mut­tarpradesh,was di­vorced by her hus­band af­ter 15 years of mar­riage by pro­nounce­ment of triple talaq andthe­di­vorcedeed­wassent­to­her­by­post.

In a writ­ten state­ment, Chadha said: “Talaq given by post, or over telecom­mu­ni­ca­tions sys­tems (e.g. SMS or What­sapp), or over the In­ter­net (Email or Face­book), are nei­ther con­tem­plated by the Holy Qu­ran nor per­mis­si­ble, as there are no wit­nesses in such pro­nounce­ment of talaq. How­ever, there is no pro­tec­tion for Mus­lim women of In­dia against such ar­bi­trary di­vorce. Mus­lim women have their hands tied while the guil­lo­tine of di­vorce dan­gles, per­pet­u­ally ready to drop at the whims of their hus­bands who en­joy undis­puted power. Such dis­crim­i­na­tion and in­equal­ity in the form of uni­lat­eral triple-talaq is abom­inable when seen in light of the pro­gres­sive times of the 21st cen­tury. Fur­ther, once a woman has been di­vorced, her hus­band is not per­mit­ted take her back as his wife even if he had pro­nounced talaq un­der in­flu­ence of any in­tox­i­cant, un­less the woman un­der­goes nikah ha­lala which in­volves her mar­riage with another man who sub­se­quently di­vorces her so that her pre­vi­ous hus­band may re-marry her.”

The coun­sel ques­tioned the au­thor­ity of the All In­dia Mus­lim Per­sonal Law Board and Jamiat Ulama-i-hind to frame and en­force rules for the com­mu­nity.

“The AIMPLB and Jamiat Ulama-i- Hind are only pri­vate or­ga­ni­za­tions. They nei­ther have any statu­tory or leg­isla­tive recog­ni­tion nor are they rep­re­sen­ta­tives of the Mus­lim com­mu­nity or in­ter­preters of the tenets/re­li­gious prac­tices of Is­lam. The AIMPLB has no power to frame and en­force rules that may gov­ern Mus­lim cit­i­zens of In­dia, but the AIPMLB nev­er­the­less projects it­self in a dif­fer­ent light. It is sub­mit­ted that an as­so­ci­a­tion of per­sons has no le­gal power or right to dic­tate or in­ter­pret per­sonal law in a demo­cratic na­tion, es­pe­cially for non-mem­bers,” he said.

Point­ing out that many Is­lamic na­tions across the world, in­clud­ing Pak­istan, Afghanistan, Egypt and Iran “do not rec­og­nize the hus­band’s right to uni­lat­er­ally di­vorce through triple talaq and var­i­ous other na­tions have un­der­taken sig­nif­i­cant le­gal re­forms in this do­main,” he added this “for­ti­fies the fact that the im­pugned prac­tices are not an es­sen­tial tenet of re­li­gion”.

Ap­pear­ing for AIMPLB, se­nior coun­sel Kapil Sibal, how­ever, said these coun­tries had un­der­taken the changes by way of leg­is­la­tion and that the court must not step into it. Jais­ing ar­gued that the is­sue raised the larger ques­tion whether “per­sonal laws will have to stand the scru­tiny of fun­da­men­tal rights.”

“In 1951, the Bom­bay High Court, in an or­der, said per­sonal laws do not fall within the def­i­ni­tion of law and can­not be touched. The judge­ment still holds. Though the ques­tion (whether per­sonal should stand the scru­tiny of fun­da­men­tal rights) came up for the con­sid­er­a­tion of the apex court many times, it chose not to an­swer it,” Jais­ing said adding that the ques­tion will have to be set­tled some day.

CJI Khe­har and Jus­tice Lalit how­ever, said there was no need to raise the per­sonal law ar­gu­ment in this case as triple talaq had be­come a part of the statute af­ter The Mus­lim Per­sonal Law (Shariat) Ap­pli­ca­tion Act of 1937.

At one point, Jais­ing said that Mus­lim per­sonal law was bet­ter than Hindu law on some counts as there is ex­press con­sent of the woman to the mar­riage in the for­mer while in the Hindu sys­tem, it is im­plied when she en­ters the man­dap. Jus­tice Kurien, how­ever, sought to point out to the coun­sel that even in the lat­ter, what she was re­fer­ring to as the rit­u­als in the man­dap can­not hap­pen with­out con­sent (of both par­ties).

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