New Delhi: The Supreme Court today agreed to consider listing of a batch of petitions challenging the practices of polygamy and ‘nikah halala’ among Muslims.
A bench comprising Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud considered the submissions of senior advocate V Shekhar that the petitions be listed before a five-judge constitution bench for final adjudication.
“We will look into it,” the bench said.
Shekhar and lawyer Ashwini Upadhyay, appearing for one of the Delhi-based petitioners Sameena Begum, alleged that she was threatened and asked to withdraw her petition challenging ‘nikah halala’ and polygamy among Muslims.
The bench, meanwhile, allowed Additional Solicitor General Tushar Mehta, appearing for the Centre, to file a response to the petition on the issue.
Nikah-halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her having to go through the process of marrying someone else, consummating it, getting divorced and observing a separation period called ‘Iddat’ before coming back to him.
The petition, filed by the Delhi-based woman, has said that by virtue of the Muslim Personal Law and Section 494 of the Indian Penal Code (marrying again during lifetime of husband or wife) was rendered inapplicable to Muslims and no married woman from the community has the avenue of filing a complaint against her husband for the offence of bigamy.
The Supreme Court today agreed to examine the constitutional validity of the prevalent practices of polygamy and ‘nikah halala’ among the Muslims and sought responses from the Centre and the Law Commission.
A bench headed by Chief Justice Dipak Misra considered the submission that an earlier five-judge constitution bench, in its 2017 verdict, had kept open the issue of polygamy and ‘nikah halala’ while quashing triple talaq.
Today, the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said a fresh five-judge constitution bench would be set up to deal with the constitutionality of ‘nikah halala’ and polygamy.
While polygamy allows a Muslim man to have four wives, ‘nikah halala’ deals with the process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.
By a majority of 3:2, a five-judge constitution bench had earlier held triple talaq as unconstitutional in its judgement last year.
The bench was hearing at least three petitions including some PILs challenging the practices on various grounds including that they violate Right to Equality and gender justice.
Delhi BJP leader Aswini Kumar Upadhyay, who filed a PIL on March 5, claimed that the ban on polygamy and ‘nikah-halala’ was the need of the hour to secure basic rights.
The harm caused to the women due to the practices of triple talaq, polygamy and ‘nikah-halala’ is violative of Articles 14, 15 and 21 of the Constitution and injurious to public order, morality and health, Upadhyay’s petition said.
He sought a declaration “that the provisions of the IPC are applicable on all Indian citizens and triple talaq is a cruelty under section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC, ‘nikah-halala’ is rape under section 375 (rape) of the IPC, and polygamy is an offence under section 494 (marrying again during lifetime of husband or wife) of the IPC.”
On March 14, a Delhi-based woman, had moved the apex court saying that by virtue of Muslim Personal Law, section 494 of IPC (marrying again during lifetime of husband or wife) was rendered inapplicable to this community and no married Muslim woman has the avenue of filing a complaint against her husband for the offence of bigamy.
She sought to declare the Dissolution of Muslim Marriages Act, 1939, unconstitutional and violative of Articles 14, 15, 21 and 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for women in India belonging to other religions.
The petitioner, who herself claimed to be a victim of such practices, has alleged that her husband and his family used to torture her for want of more dowry and she was ousted from the matrimonial home twice.
She also alleged that her husband had married another woman without taking any legal divorce from her and the police had refused to lodge FIR under section 494 and 498A (husband or relative of husband of a woman subjecting her to cruelty) of the IPC stating that polygamy was permitted under the Sharia.
Later on March 18, a Hyderabad-based lawyer, had also challenged the practice of polygamy, claiming that all these types of marriages under the Muslim personal law violate the fundamental rights of Muslim women.
The petition has contended that while the Muslim law allows a man to have multiple wives by way of the temporary marriages or polygamy, same permission is not extended to women.
The petition has opposed the practice of Nikah Halala, where a divorced woman has to remarry and then get a talaq before being able to marry her first husband, as well as Nikah Mutah and Nikah Misyar — both temporary marriages where duration of the relationship is specified and agreed upon in advance.
The practice of triple talaq was “manifestly arbitrary” as the marital tie could be broken “whimsically” by a Muslim man and it must be held to be violative of fundamental right of equality, the Supreme Court today said.
One of the two separate majority judgements, penned by Justice R F Nariman, said the provision of the Muslim Personal Law (Shariat) Application Act, 1937 must be struck down as being void to the extent that it recognises and enforces the practice of triple talaq.
Justice Nariman, whose views were concurred with by Justice U U Lalit, said that subordinate legislation could be struck down on the ground that it was arbitrary and violative of Article 14 (right to equality) of the Constitution.
“It is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it,” he said in his 93-page judgement.
“This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India,” he said.
The majority judgement also said that applying the test of manifest arbitrariness in this case, “it is clear that triple talaq is a form of talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of talaq”.
It referred to the fact that the Hanafi school of Shariat law, which itself recognises this form of talaq, has said that though lawful, it is sinful.
“Given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place,” the verdict said.
In a historic verdict, the apex court today put the curtains down on the 1,400 year old practice of ‘triple talaq’ among Muslims.
The five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of “‘talaq-e-biddat’ triple talaq is set aside”.
The two separate judgements, written for majority by justices Kurian Joseph and Nariman, did not concur with the CJI and Justice S A Nazeer that ‘triple talaq’ was a part of religious practice and the government should step and come out with a law.
The Supreme Court today reserved its verdict on a batch of petitions challenging constitutional validity of the practice of triple talaq among Muslims.
A five-judge Constitution bench headed by Chief Justice J S Khehar heard the issue for six days during which various parties including the Centre, All India Muslim Personal Law Board, All India Muslim Women Personal Law Board and various others made the submissions.
The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, had begun the hearing on May 11.
The members of the bench are from different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.
The bench had made it clear that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion and had also said for the time being it will not deliberate upon the issue of polygamy and ‘nikah halala’.
It had also said that the issue of polygamy and ‘nikah halala’ would be kept pending and will be dealt with later.
Nikah Halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her going through the process of marrying someone else, consummating it, getting divorced, observing the separation period called ‘Iddat’ and then returning to him.
The apex court had on its own taken cognisance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.
The hearing assumed significance as the apex court has heard the matter during the summer vacation.
Triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women, the Centre today told the Supreme Court.
Attorney General Mukul Rohatgi, in his rebuttal to the arguments favouring the 1,400 year-old practice of triple talaq, made a strong pitch for judicial scrutiny on grounds including violation of fundamental rights like right to equality and gender justice and said that the apex court cannot shy away.
A five-judge Constitution bench headed by Chief Justice J S Khehar, 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, R F Nariman, U U 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 during the day, the bench asked the All India Muslim Personal Law Board (AIMPLB) whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’ (marriage contract).
“Can it be made possible to give an option to a wife that she can say that she was agreeable to or not agreeable to it (triple talaq)?
“Is it possible to pass a resolution to all ‘qazis’ to include this condition (giving right to woman to say ‘no’ to triple talaq) in ‘nikahnama’? Give an option to wife to say ‘no’ to triple talaq,” the bench said.
Former Union minister and senior lawyer Kapil Sibal, representing the AIMPLB, said that he will respond to after talking to all the board members.
Rohatgi, responding to Sibal and a battery of senior lawyers favouring triple talaq, said even the core of religion has to be tested on the touchstone of fundamental rights.
Referring to the responses of the AIMPLB, he said that even they say that triple talaq was “undesirable”, “sinful” but yet valid and wondered “then how it can be said to be integral to religion”.
He further said this time, Muslim women have questioned the centuries-old “hegemony suffered by them at the hands of their male counterparts” of the community.
“The prism through which you see the case is not like majority versus minority but this is a case where it is an intra-community tussle between Muslim men and women.
“This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts,” Rohatgi said, adding that the practice of triple talaq is a tussle between the “haves and have-nots” inside the community.
He said this fight is between men of Muslim community, who are more powerful, empowered and educated and women, not so powerful, not empowered and uneducated.
The court can fill up the void by judicial pronouncements if there is no law on a particular issue, Rohatgi said, adding the guidelines on sexual harassment at work place were framed by it in the Vishakha case.
Rohatgi referred to practises ‘sati’, infanticide, ‘devdasi’ and untouchability among Hindus and said that they have been done away with.
“Did courts do it? These were abolished by legislations,” the bench asked.
“Then why do the court goes into issues like Vishaka. The court can’t say that it is helpless and it cannot step in. It is the guardian of fundamental right,” Rohatgi replied.
He said that India is “secular country with a secular constitution” which has kept core of all religions intact but they are subject to fundamental rights.
“We had several religions after Partition. There were people from over 600 princely states and tribes practising different faiths and religions. The core of every religion was kept but they were made subject to fundamental rights,” he said.
He said under Article 25 (right to practice religion) of Constitution, even the core component of a religion can be tested on the grounds of fundamental rights.
“Rights given under Article 25 of Constitution cannot be considered as absolute”, he said, adding the court has to look into these aspects as a community cannot decide what is their fundamental rights.
Comparing practices in Islamic countries, Rohatgi said that in 25 nations, religion continued to strive even after abolishing triple talaq and hence, this cannot be termed as “integral part of Islam”.
“What is optional cannot be under Article 25 and it cannot be considered as an essential part of religion. If it had been integral part of religion then the religion will not remain religion in its original form but if it is optional then even if it is taken out, the religion will remain the same,” he said.
He said that if the right to religion went against the fundamental rights, then it is the Constitution which will prevail over practices like triple talaq.
Sibal, who started arguments today, referred to a Delhi High Court judgement and said that it was wrong in holding that all schools of thought termed ‘triple talaq’ as “sinful”.
The Supreme Court cannot be called upon to decide as to what was wrong or right with the practice and belief, he said.
Referring to a judgement, he went to the extent of saying that the personal law is a legitimate basis of discrimination.
AIMPLB also said that the court should not venture into the issue on its own as no one has approached it.
“Some persons have come to this court,” the bench said.
Sibal said challenging the constitutional validity of triple talaq, being practised by a small portion of community, may revive the practice which is dying.
He said if a secular court like the Supreme Court decides to undertake suo motu (on its own) scrutiny of the issue with the Centre seeking a ban then, the community may take a tough stand.
The Muslim community is like small birds on which golden eagle preys, he said, adding “the community’s nests must have the Supreme Court protection.”
Sibal said it is that faith with which the community is before the court today seeking protection of its personal law customs and practices.
“Our faith in this court for last 67 years is fundamental and with that faith we have come here,” he said.
Today was the fifth day of the hearing on a clutch of petitions challenging triple talaq, polygamy and ‘nikah halala’ which is going on before a bench comprising members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.
The Supreme Court today 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.
The observation was made when Attorney General (AG) Mukul Rohatgi, appearing for the Centre, said 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,” Rohatgi said.
A five-judge Constitution bench headed by Chief Justice J S Khehar said, “It may not be possible to deal with all the three issues in the limited time we have. We will keep them pending for future.”
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 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 today.
During the last hearing, the apex court had observed that triple talaq is the “worst” and “not a desirable” form of dissolution of marriage among the Muslims, even though there were schools of thought which called it “legal”.
The remark was made by the bench when senior lawyer Salman Khurshid referred to the various schools of thought and the stand of All India Muslim Personal Law Board (AIMPLB) that triple talaq was “abhorrent”, yet valid.
The day-long hearing on the matter last Friday also saw two veterans, jurist Ram Jethmalani and former Union Minister and Islamic scholar Arif Mohammad Khan, coming out all guns blazing against the practice of triple talaq.
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.
Khan had said the whole Shariat law has been distorted as “Shariat is the Holy Quran and not the opinion of these people (clerics). The Holy Quran considers the importance of family and it provides four steps before pronouncement of divorce.”
“Triple talaq is far from being fundamental and very far from being sacramental to Islam. It violates every good thing which Islam prescribes. What we are seeing in the form of triple talaq is similar to the pre-Islamic era practice where female infants were buried alive,” he had said.
Jethmalani had said “the right of triple talaq is available only to the husband and not to the wife and it breaches Article 14(Right to Equality) of the Constitution.”
He had said triple talaq was a discrimination on the ground of sex and this practice was abhorrent to the tenets of holy Quran and no amount of advocacy can save this “sinful” practice which is contrary to constitutional tenets.
How can a woman be allowed to become ex-wife only because her husband wants and this is “the highest kind of unconstitutional behaviour”, the noted jurist had said.
Khurshid, who is assisting the court in personal capacity, had said he himself found triple talaq “sinful” and anything which is sinful could not have been ordained by Islam. He also reiterated that triple talaq was a “non-issue” which does not require judicial scrutiny.
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.
Referring to the prevalent practice in Islamic nations, he had said even if one says talaq thrice in a go, it was considered as one, thus negating irrevocability of divorce.
The bench had asked Khurshid if triple talaq was India- specific and what had led to its repeal in other countries.
Khurshid said whatever was happening in India now, might have happened in other countries, leading to the ban.
To this, the bench had said, “it is like death penalty which is abhorrent but permissible in the law of many countries and many have repealed it,” adding whether anything which is sinful be taken as prescribed by God and made a law by man.
When advocate Farha Faiz, a petitioner in the case, had started her arguments, the bench had said it was not concerned with personal facts.
She had said what Imams and clerics say is not important, the only thing is that the holy Quran says everything.
“The Holy Quran is in mandatory language. It is not an advise. If we are adopting one procedure for marriage, why can’t we have one procedure for talaq also?” she had said.
To this, the bench had said, “we cannot do that. We cannot wipe out (the difference between) Shias or Shunnis”.
Faiz also alleged that the 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.
“Point taken, you have raised a very valid and good point,” the bench had said.
The apex court has fixed a six-day schedule for hearing in which three days would be available for those challenging triple talaq and three days for those defending it.
The Supreme Court today said the practice of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as “legal”.
There are “school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims,” a five-judge constitution bench, headed by Chief Justice J S Khehar, said on the second day of continued hearing on the matter.
The observation came when 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 moreover women have the right to say ‘no’ to triple talaq by stipulating a condition to this effect in ‘nikahnama’ (marriage contract).
The court asked Khurshid to prepare a list of Islamic and non-Islamic countries where triple talaq has been banned.
The bench was then informed that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia do not allow triple talaq as a form to dissolve marriages.
Senior advocate Ram Jethmalani, appearing for one of the victims, was blunt in his arguments and assailed the practice of triple talaq various constitutional grounds including the Right to Equality.
“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,” Jethmalani said.
“There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent, and hence, avoidable,” he said.
“Triple talaq makes a distinction on the ground of sex and this method is abhorrent to the tenets of holy Quran and no amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions,” he added.
No law can allow a wife to become an ex-wife “at the fancy of the husband” and it is “the highest kind unconstitutional behaviour”, Jethmalani said.
The high profile hearing on a batch of petitions challenging the constitutional validity of triple talaq will continue after the lunch break.
The Supreme Court today fixed May 11 for commencement of hearing on pleas challenging the validity of triple talaq, ‘nikah halala’ and polygamy practices among Muslims.
A bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud said the matter will be heard by a Constitution bench during the summer vacation.
On March 27, the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.
The Board had also said that the validity of Mohammedan Law, founded essentially on the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution.
It had said there was a need for “judicial restraint” before going into constitutional interpretation of these unless such an exercise becomes unavoidable.
The apex court had earlier said it would decide issues pertaining to “legal” aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it falls under the legislative domain.
The Centre, on October 7 last year, had opposed in the Supreme Court the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.
The Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.
The apex court had taken suo motu cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husband.
A five-judge constitution bench would be set up by the Supreme Court to hear and decide on a batch of petitions relating to the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims.
A bench headed by Chief Justice J S Khehar took on record three sets of issues framed by parties with regard to the cases and said the questions for consideration of the constitution bench would be decided on March 30.
The bench, also comprising Justices N V Ramana and D V Chandrachud, said “the issues are very important. These issues cannot be scuttled”.
Referring to the legal issues framed by the Centre, it said all of them relate to the constitutional issues and needed to be dealt by a larger bench.
The bench asked the parties concerned to file their respective written submissions, running not beyond 15 pages, by the next date of hearing, besides the common paper book of case laws to be relied upon by them during the hearing to avoid duplicity.
When a woman lawyer referred to the fate of the apex court judgement in the famous Shah Bano case, the bench said “there are always two sides in a case. We have been deciding cases for last 40 years. We have to go by the law and we would not go beyond the law.”
The bench also made it clear that it is willing to sit on Saturdays and Sundays to decide on the issue as it was very important.