Triple talaq undesirable but permissible and not justiceable, AIMPLB tells SC

The full on debates and discussions came to light when a petitioner, Shayara Banu, challenged the Muslim personal law over instantaneous application of triple talaq (talaq-e-bidat), polygamy and nikah-halala.

At the outset of the hearing, the attorney general urged the court to examine not only the validity of triple talaq, but also that of the Nikah Halal and polygamy.

He had said the irrevocable nature of triple talaq can be negated if the three-time pronouncement of talaq in one go is considered one leaving the scope for reconciliation and re-union during the "iddat" (waiting) period.

To this, Justice Rohinton Fali Nariman, one of the five judges constituting the SC vacation bench, asked if they should not hear the matter at all.

While Jethmalani attacked the practice on various constitutional grounds including the right to equality and termed it "abhorrent", Khan said it was akin to the pre- Islamic era practice of burying a female child alive in the Arabian region. Who are we to say this is un-Islamic.

"If both marriage and divorce are contracts then why should others have a problem with triple talaq especially when it is a practise of 1,400 years?". "However I should not be compelled to do it", Sibal told the court.

The apex court has fixed a six-day schedule for hearing, in which three days are available for those challenging triple talaq and three days for those defending it.

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Rohatgi's submission came when the court asked him what are the remedies for a Muslim man to come out of a marriage if such practices are struck down.

He also drew an analogy between Triple Talaq and the Hindu belief that the god Ram was born in Ayodhya. That's why the Constituent assembly separated personal laws from customs and practices. But Prime Minister Narendra Modi disagrees and a year ago waded into a controversy by saying he believed it was destroying women's lives, with Muslims making up about 13 percent of the country's 1.2 billion people.

In the course of the hearing, pointing to the inertia in the evolution of the Muslim Personal Law, Rohatgi said that as far as Hindus were concerned, various steps were taken to bring their laws in conformity with the Constitution but that has not happened with Muslims, who had a Shariat Act in 1937, then in 1939 and then some change in 1986 in the wake of Shah Bano case.

"Point taken, you have raised a very valid and good point", the bench had said.

However, the All India Muslim Personal Law Board has opposed any judicial interference in what it calls a religious matter, protected under Article 25, which grants freedom of religion.

"What religious practices are essential to a particular religion or faith is hard to define for this court". Immediately after a few years of the death of Prophet Muhammad, the companions of Prophet Muhammad talked about triple talaq.

The bench said two other forms of divorce have some safeguards but whether triple talaq had such safeguards?

  • Stacy Houston