Triple Talaq – what you need to know

May 18, 2017

The Supreme Court reserved its verdict on the constitutional validity of triple talaq today which was the last day of hearing. SC asked AIMPLB why it is that a & quot custom which is theologically sinful& quot is & quot part of the practice of a community& quot . The Muslim Law Board's lawyer Kapil Sibal, continued his argument from yesterday that & quot testing the validity of customs and practices of community is a slippery slope and SC must not venture there.& quot In reply to CJI's question from yesterday, whether the AIMPLB can issue a directive to clerics to record at the time of the nikahnama, or marriage contract, whether the woman accepts triple talaq or not, Kapil Sibal on behalf of the Muslim Law Board said it is ready to issue an advisory to all clerics to ascertain women's views on triple talaq and make a note of it in the nikahnamas before they wed. 17 May 2017 Kapil Sibal, representing AIMPLB, said challenging the constitutional validity of triple talaq, could lead to a backlash in the Muslim community, which might see its rights as being infringed upon and therefore resort to supporting practices like polygamy and oral divorce. As it is, triple talaq is practiced by a & quot minuscule portion& quot of the Muslim community, Sibal said. & quot Triple talaq is a dying practice& quot which when challenged at secular forums like the Supreme Court could actually revive, said the AIMPLB. Today, CJI J S Khehar asked whether the AIMPLB can issue a directive to clerics to record at the time of the nikahnama, or marriage contract, whether the woman accepts triple talaq or not. Sibal said the Muslim law board will respond to this after talking to all board members. 16 May 2017 Senior Advocate Kapil Sibal, appearing for All India Muslim Personal Law Board (AIMPLB) told the Supreme Court, & quot Triple talaq is there since 637. Who are we to say that this is un-Islamic. Muslims are practicing it for last 1,400 years. It is a matter of faith. Hence, there was no question of constitutional morality and equity& quot . Sibal further said that the source of triple talaq can be found in Hadith and that it came into being after the time of Prophet Muhammad. & quot Muslim marriage is a contract through nikahnama between consenting adults and so is divorce. If both marriage and divorce are contracts, why should others have a problem,& quot the AIMPLB asked. 15 May 2017 The apex court had earlier said that it would decide only on the validity of triple talaq. Attorney General Mukul Rohatgi pointed out to the bench that the reference order mentioned all three issues - triple talaq, polygamy and nikah halala - for adjudication. SC said it will first decide the validity of triple talaq and keep the issues of practice of polygamy and 'nikah halala' among Muslims open for adjudication in future. Advocate Farha Faiz, a petitioner in the case who is opposing the practice, had also alleged that Muslim clerics were running a parallel judicial system like the trial courts and the high courts and the clerics were forcing Muslims not to go to the courts. The court asked Attorney General Mukul Rohatgi what are the remedies for a Muslim man to come out of a marriage if such practices are struck down. Rohatgi told the Supreme Court that & quot If the practice of instant divorce (triple talaq) is struck down by the court, then Centre will bring a law to regulate marriage and divorce among the Muslim community.” 12 May 2017 The Supreme Court, on the second day of hearing on the matter of triple talaq, said that the practice of triple talaq was the & quot worst& quot and & quot not desirable& quot form of dissolution of marriage among Muslims, even though there are schools of thought which say that triple talaq is legal. Former Union minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, told the bench that it is not an issue where judicial scrutiny is required and women have the right to say 'no' to triple talaq by stipulating a condition to this effect in 'nikahnama' (marriage contract). After asking Salman Khurshid to prepare a list of Islamic/ non-Islamic countries where triple talaq has been banned, the bench was informed that countries like Pakistan, Afghanistan, Morocco, Egypt, Algeria, Indonesia and Saudi Arabia do not allow triple talaq. Senior advocate Ram Jethmalani, appearing for one of the victims, said, & quot The right of triple talaq is available only to the husband and not to the wife and it breaches the Article 14 (Right to Equality) of the Constitution. Triple talaq discriminates on the ground of sex and this method is repugnant to the principles of holy Quran and no amount of advocacy can or will save this sinful practice which is contrary to the constitutional provisions.& quot No law can allow a wife to become an ex-wife & quot at the fancy of the husband& quot and it is & quot the highest kind of unconstitutional behaviour& quot , Jethmalani added.

11 May 2017 The Supreme Court has fixed a 6 day schedule for the hearing, giving 3 days to each side challenging and defending Triple Talaq. A five-judge Constitution bench headed by Chief Justice J Khehar will begin hearing seven petitions, including five separate writ petitions filed by Muslim women challenging the practice of triple talaq prevalent in the community and terming it unconstitutional. A unique arrangement of five Supreme Court judges belonging to different faiths will start hearing the case & mdash CJI J S Khehar (Sikh) and Justices Kurian Joseph (Christian), R F Nariman (Parsi), U U Lalit (Hindu) and Abdul Nazeer (Muslim). Attorney General Mukul Rohatgi will assist the bench which will also examine to what extent the court can intrude in the Muslim personal laws if they are found to be violative of the fundamental rights of citizens written in the Constitution of India. While framing issues, the constitution bench of the Supreme Court at the outset said that it will examine whether triple talaq is fundamental to Muslim religion and if it can be enforced as a fundamental right. It also said that it will not go into polygamy and Nikah halala and only confine the hearing to examining constitutional validity of triple talaq. It further stated, “ If we come to a conclusion that triple talaq is part of fundamental right to religion, we would not interfere.” 8 May 2017 The Supreme Court has issued a circular concerning the initiation of hearing of petitions challenging practices like triple talaq, polygamy and nikah halala from May 11. The circular dated May 5, 2017 uploaded on the Supreme Court website states, “ take notice that the matter shown below which is to be heard by constitution bench consisting of five honorable judges will be listed from Thursday 11th May, 2017” . A bench led by chief justice J S Khehar referred the petitions to a constitution bench on March 30 2017 stating that first the issues will be framed before day-to-day hearings commence. The bench, on February 16, asked aggrieved women petitioners, Centre, All India Muslim Personal Board and women rights bodies to tender written submissions on the issue of triple talaq, polygamy and nikah halala. The Supreme Court said it would decide matters pertaining to legal aspects of the practices of triple talaq, & lsquo nikah halala' and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs supervision by courts as it falls under the legislative domain. Watch out this space for further updates on this issue.