Triple talaq case in SC: Bench makes it clear that polygamy not part of hearing

The irrevocable triple talaq practice among Muslims, which has generated a 'judicial debate' now in India, with a five-judge Constitution Bench of the Supreme Court hearing the matter on a batch of petitions.

It has given rise to a fundamental question of the Constitution of India, Article 25(1), under which a citizen has the fundamental right to profess, practice and propagate a religion.

That means to profess, practice and preach or practice a religion of one's choice is a guaranteed right under the Constitution, but the issue that seems to be unfolding, after arguments on Day 1 on Thursday, is whether the violation of women and denial of gender justice could be justified in the light of this provision of the Constitution of India.

At the outset, the Chief Justice of India (CJI) JS Khehar, the presiding judge of the Constitution Bench, made it clear that it would not go into the question of polygamy, the religious custom allowing Muslim men to marry up to four women, where as the main petitioner out of the seven in the case, an organisation called Muslim Women Quest for Equality (MWQE), wanted all the issues should be gone into, especially when a Constitution Bench is hearing the matter.

It has also contended that Article 25(1) of the Constitution, or, for that matter, any fundamental right, guaranteed under the Indian Constitution, cannot be in variance to 'principles of natural justice', gender justice and right to equality and dignity. Right to equality is guaranteed under Article 14 of the Constitution.

What happened in court

The debate began with Salman Khurshid, former Union minister and a designated senior counsel, contending that the right of a man and a woman in marriage under Islam are divided. The Quran prescribes a three-month process for divorce, during which period, there is a possibility of reconciliation. “We cannot understand Islamic law by contrasting it to modern day sensibilities,” Khurshid said.

On the other hand, Additional Solicitor General (ASG) Tushar Mehta contended that the right to religion is subject to restrictions, and also whether any right guaranteed could violate another's fundamental rights.

There is a famous saying that “you have the right to rotate your walking stick but that right stops when it touches the nose of your fellow walker”. The same way, during the state of Emergency, even fundamental rights become suspended rights.

At this, Justice Khehar made it clear that the “matter has only three issues”:

- Whether triple talaq is fundamental to Islam, and if so, whether judiciary could interfere and interpret (to give an answer);

- Whether it is sacrosanct

- Whether any enforceable fundamental right is violated.

Irrespective of the socio-political overtones and undercurrents the issue likely to have, the judicial issue is due to the aftermath of a verdict of the Allahabad High Court which, in April this year, held that triple talaq is unilateral and bad in law.

The Bench also agreed to examine to what extent a court can interfere in Muslim personal laws, if they are found to be violative of fundamental rights of citizens, in this case Muslim women.

Three customary practices have come in to sharp focus in this regard: talaq, nikah halala, and polygamy.

The Apex Bench made it clear it would not go into the issue of polygamy; this may not figure much in the judicial debate, yet it may keep creeping as the MWQE wants to agitate this issue too on the grounds of equality.

Discrimination on the basis of gender

The Bench, presided by the CJI and comprising Justices Kurian Joseph, Rohington Nariman, UU Lalit and Abdul Nazeer, is slated to hear the issue on a day-to-day basis, especially during the summer vacation, on Saturdays and Sundays too, if need be.

Apart from the petitions, the Apex Court has also taken suo motu cognisance of the question of whether Muslim women faced discrimination on the basis of gender.

The Indian Constitution states that no citizen could be discriminated against on the basis of gender, language, place of birth, region or religion.

The Union Ministry of Law and Justice had earlier, in an affidavit, stated that the practice has been jettisoned by many Islamic countries, and that the constitutional principles of equality, secularism and religious practices should be looked into in the modern world. It has also pointed out the international covenants in the issue.