Triple talaq: Battery of sr lawyers advance arguments in SC

A battery of senior advocates today advanced arguments in the Supreme Court which commenced the crucial hearing on a clutch of petitions challenging the constitutional validity of the practice of triple talaq and 'nikah halala' among Muslims.
They argued that the practice of triple talaq was not fundamental to Islam and can be done away with to be in sync with the present social situation, besides being violative of the right to equality of Muslim women guaranteed under Articles 14 and 15 of the Constitution.
All India Muslim Personal Law Board and other Muslim organisations will get a chance in the course of the hearing, likely to go on for at least six days, to present their stand on these sensitive issues. Senior advocate Yusuf H Muchhala will appear for some Muslim organisations.

The Centre, through law officers Tushar Mehta and Pinky Anand, maintained that it was not taking any side and was assisting the five-judge Constitution bench on the issues of gender justice, equality for women and dignity of women and the main arguments would be advanced by Attorney General Mukul Rohatgi on Monday.
While senior advocate Amit Singh Chadha opened the arguments for Shyara Bano, who was one of the first petitioner, saying neighbouring Islamic countries like Pakistan and Bangladesh have banned triple talaq by terming it as un-Islamic, senior lawyer Anand Grover, appearing for Bharatiya Muslim Mahila Andolan, stated that triple talaq was not a part of Sharia law.

Senior advocate Indira Jaising, appearing for Bebak Collective, a Muslim women organisation, touched upon the issue of violation of fundamental rights due to the practice of triple talaq to the extent a Muslim man exercises power to declare a unilateral divorce and the Muslim woman has no control over such "unilateral", "arbitrary", "extra judicial" divorce and her marital status.

She said the impact of such practices was that Muslim women lost their right to residence, were driven to claim maintenance and custody of their children in a court of law which is often denied to them at the stage of unilateral divorce.

"Marriage is a contract that entails change in life and a commitment that two people make to each other out of natural love and affection to share and care for each other. The rights conferred by virtue of the marriage are legitimacy of children, custody of children, right to reside in matrimonial home.
"It stands to reason that if that contract has to be terminated, it must be done with good reason and with due regard to the rights of both the parties to the marriage and by a judicial forum," the senior lawyer said.
Grover said that section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 does not talk about triple talaq. He said "talaq in section 2 of the Act has to be interpreted to exclude triple talaq".

Among the senior advocates who time and again intervened during the hearing were Kapil Sibal and Salman Khurshid.
Senior advocate Ram Jethmalani, who was also present, said he would also like to assist the court.
Jaising argued that "the key question would be whether personal laws will have to stand scrutiny of fundamental laws."
Referring to a 1951 verdict of the Bombay High Court, she said it had taken a view that all personal laws were immune from challenge.
"Regardless of the legal system, all the system will have to comply at the end of the day with the discipline of the Constitution," she said.

"Does the Constitution stop where the family law begins," she asked and referred to the 1951 verdict saying it has been used by the AIMPLB to say that courts should stay away from personal law.
Jaising also argued that personal laws are not religious laws though they may be based on religion.
To this, the bench said, "they could be based on religion. There can be personal laws which could be based on religion".
Jaising, however, said "Sharia law is recognised with Sharia Act. It is a law and not religion. Is this court dealing with the issue of religion or dealing with an issue of law?"

She argued that there is no definition of personal law and her endeavour would be to de-link religion from law.
She said that lot of laws were based on morality and are enacted on the basis of religion but they have to be tested as per the provisions of the Constitution.
"It is tragic that we have not been able to make legislations to deal with these personal laws. We have to first deal with what is law and then we can go into personal law," Jaising said.
"Our main concern is no matter how liberally you interpret triple talaq, it is unilateral. It is an extra- judicial unilateral process and it is final without any discussions on the consequences. Important issue is that what are the consequences and in my view, those are endless," she said.

The senior counsel also said the question which the bench would have to deal with was whether the status of a woman was "degraded" just because her husband has said talaq three times at one go.
She said if the divorce was mutual, there was no issue, but in a case of triple talaq, the issue of consent of the wife is immaterial.
"The bottom line is consent because as an individual, we all are citizens and are equal," she said, adding that it is a discrimination that Muslim men can give talaq unilaterally but Muslim women have to go to court for this.

She also said that Sharia was voluntary and therefore it cannot be binding.
To this, the bench asked her to explain how triple talaq violated the Constitution.
Responding to it, she said, "whether in our Constitution extra judicial divorce can be given? This is a kind of extra judicial divorce."
She said in cases of mutual consent there was no problem but issues arose when there is a dispute over divorce. "This court has to decide whether some kind of judicial oversight should be there," she said adding that triple talaq affects the status of woman.
"Extra-judicial divorce is unconstitutional. If you say marriage in Muslim law is a contract,then you cannot revoke it unilaterally without following the law. Allowing such extra- judicial divorce is against the law of the land," she said, adding that there were consequences of triple talaq like alimony, custody of child, maintenance and civil succession.

Taking a dig at lawmakers, Jaising said they always say that they are concerned about women but despite sitting in Parliament, they do not do anything on this.
To this, the bench asked "if Parliament does not show its commitment on this, can this forum show its commitment on this issue?"
Grover, however, said that in this matter, the Union of India has been more aggressive than the petitioners who have challenged the constitutional validity of triple talaq.
Jaising argued that India was a secular state and not a bureaucratic state like Afghanistan where there are Sharia courts.
"Absence of this kind of judicial forum here makes this practice illegal and unconstitutional. They cannot say that only the men would decide the fate of women," she said.

The bench, however, said the issue was very important and serious, having far-reaching consequences.
Jaising also said the apex court can recommend to Parliament to make a law on this issue as there is a unilateral capacity given to a man to say talaq but woman has not been granted that right.