IF TRIPLE TALAQ INVALID, SUGGEST WAY OUT: SC

NEW DELHI (TIP): The Supreme Court on May 11 asked the Centre and Muslim women petitioners who have challenged the validity of triple talaq to suggest a possible way out if the court were to declare the practice unconstitutional.

“Where does he (Muslim man) go for divorce? There is no judicial forum for him. There would be a vacuum. How does he seek divorce?” a five-judge Constitution Bench headed by Chief Justice of India JS Khehar asked.

The Bench, also comprising Justices Kurian Joseph, RF Nariman, UU Lalit and S Abdul Nazeer, asked the Centre and the petitioners to ponder over the possible fallout in case it declared triple talaq invalid.

Justice Joseph said until Parliament enacted a law to address the issue, it could be dealt with under the Dissolution of Muslim Marriages Act, 1939–under which Muslim women are entitled to seek divorce.

Senior counsel Indira Jaising, who appeared on behalf of Bebak Collective, suggested that the expression “Muslim woman” under the 1939 Act could be replaced by “Muslim person” and it could be made gender-neutral.

But most of the grounds for dissolution of a marriage prescribed under Section 2 of the Act were women specific, and not gender-neutral, the Bench pointed out.

As Justice Nariman said insanity and cruelty were gender-neutral grounds, most of the lawyers burst into laughter. Additional Solicitor General Tushar Mehta said Attorney General Mukul Rohatgi would address the court on all the aspects of the issue on Monday. The arguments would continue on Friday.

The court also clarified that the 1939 Act (which covered Shariat) being a statute was a law within the meaning of Article 13(3) of the Constitution and hence could be tested on the touchstone of fundamental rights.

At the very outset, the Bench said it would not consider the issue of polygamy and concentrate on triple talaq alone. But Mehta insisted that the Centre wanted the court to consider all aspects relating to gender justice. “We are opposing all forms of triple talaq,” he said.

Even Jaising said all forms of triple talaq were bad as they conferred unrestricted power on Muslim men to give divorce to women without assigning any reasons. She said unfortunately such unilateral triple talaq were binding and final, she added.

“For a Muslim woman triple talaq means civil death. Its civil consequences are very harsh for them. There has to be some sort of judicial oversight,” she said, terming triple talaq as “extrajudicial divorce”.

Jaising pointed out that while a Muslim man can unilaterally pronounce triple talaq, a Muslim woman has to go to courts to seek divorce. This is discriminatory and violated her right to equality, she argued.

Earlier, appearing for Bharatiya Muslim Mahila Andolan, senior counsel Anand Grover requested the court to adopt a “minimalist approach” and consider if instantaneous triple talaq was permissible under the Islamic law or not. If the answer was in the negative, the court should declare it illegal without going into the constitutional aspects of the issue.

Senior counsel Amit Chadha, who represented petitioner Shayara Bano, made a two-fold argument: whether instantaneous triple talaq was allowed under Islamic law and whether it violated Muslim women’s fundamental rights guaranteed under the Constitution. He said it was neither fundamental to Islam nor was it permissible under the Constitution. Chadha referred to the practices in the neighbouring Islamic countries such as Pakistan and Bangladesh to contend that triple talaq was un-Islamic.

The court said it would first determine whether the practice was fundamental to Islam.

Senior advocates Kapil Sibal and Raju Ramachandran are representing All India Muslim Personal Law Board in the matter. Former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, termed triple talaq as a “nonissue” saying it is not considered complete without conciliation efforts between the husband and the wife.

All India Muslim Personal Law Board (AIMPLB), which sought to defend these practices, claims the Supreme Court cannot consider the Constitutional validity of Muslim Personal Law. These were matters to be dealt with by the legislature, AIMPLB said in its affidavit. “Once three pronouncements of divorce are made, the marriage dissolves and the woman becomes unlawful or haram to the man who had pronounced divorce,” the Board said.

Source: The Tribune