Triple talaq : Supreme Court concludes hearing, reserves verdict on constitutional validity
The Supreme Court today concluded its historic hearing on triple talaq, but reserved its order. The six-day hearing was conducted on a clutch of petitions challenging triple talaq, polygamy and ‘nikah halala’ and was heard by a five-member Constitution bench of the apex court which included judges from different religious communities including Muslim, Hindu, Sikh, Christian, and Parsi.
During the final stages of the hearing, the All India Muslim Personal Law Board (AIMPLB), which is defending triple talaq in the apex court, today said it is ready to issue an advisory to all qazis (Islamic jurists) to ascertain women’s view on triple talaq and put it in the nikahnaama (contract of the Islamic marriage).
Still, AIMPLB lawyer and former Law Minister Kapil Sibal reiterated his earlier argument that the Supreme Court should not get into validity of religious customs and beliefs.
- On Wednesday, the Supreme Court had suggested that the Centre could put in place a law to deal with issues, including triple talaq, instead of waiting for it to decide on the matter judicially, and wondered whether it is possible to give the Muslim woman the option to oppose instant divorce.
- “We may or may not (decide the issue), but you do,” said the constitution bench headed by Chief Justice Jagdish Singh Khehar to Attorney General Mukul Rohatgi as the latter urged the court to step in a situation where there is no legislation.
- The five-judge Constitution bench also asked the Centre as to why it did not legislate to regulate marriages and divorce among Muslims. “You (Centre) said if court quashes triple talaq then you will make a law but why the government did not make a law for last 60 years?” the bench, also comprising justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer, asked.
- Rohatgi replied that the hallmark of a secular court was to reform without waiting for a legislation, when such matters come to it. “I will do what I have to do but the question is what will you (court) do? I have given statement on instruction. I speak for the government and can’t speak for parliament,” he said reiterating that the top court was guardian of fundamental rights and has to see whether there was any violation of such rights.
- Earlier on Wednesday, the bench asked the All India Muslim Personal Law Board if it was possible to give the woman the option, before she gives her consent to nikaah, that the marriage she was entering into would not be dissolved through instant triple talaq.
- The apex court suggested whether a clause can be added on the Nikaah Nama to say that the marriage can’t be dissolved by the husband by pronouncing instant triple talaq.
- As Rohatgi referred to the Vishakha guidelines that were framed by the top court to protect women at the workplace in the absence of any law, Justice Kurian said that it was in the domain of a statute and not the constitution.
- In an obvious comparison to the steps taken to reform Hindu practices, when the Attorney General referred to the abolition of Sati, infanticide and Devadasi system, Justice Kurian said that all those (abolitions) were legislatively decided. “Did the court do it? No, legislation got rid of it,” Chief Justice Khehar observed.
- The court described the issue before it as something not between the majority and the minority communities but an intra-minority issue of tussle between Muslim men and women – which he said was a tussle between haves (men) and have-nots (women).
- Describing instant triple talaq as a “pernicious practice”, Rohatgi urged the court to “step in as a guardian of the fundamental rights”.