Is triple talaq part of 'enforceable' fundamental right to practice Islam: SC

New Delhi: The Supreme Court on Thursday made it clear that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion as it began hearing petitions challenging the practice.

A five-judge bench headed by Chief Justice J S Khehar said it would look into the aspect whether triple talaq is part of an "enforceable" fundamental right to practice religion by Muslims.

The bench began hearing a batch of petitions challenging the constitutional validity of the practices of triple talaq, nikah halala (forms of divorce) and polygamy in Islam.

The bench, sitting in the summer vacation, comprises an interesting combination of CJI J.S. Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Nariman (Parsi), Justice Uday Lalit (Hindu) and Justice Abdul Nazeer (Muslim).

The bench also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, however, said the issue of polygamy among Muslims may not be deliberated upon by it as this aspect is unrelated to triple talaq.

The apex court made it clear that each side will get two days each for canvassing their arguments on the two questions formulated by the bench and one day will be given for the rebuttal.

The apex court also made it clear that it would stop any counsel who will repeat the arguments.

"Each side can argue whatever they want but there should not be any repetition. They will only focus on the validity of triple talaq," the bench said.

With Prime Minister Narendra Modi asking Muslims not to politicise the triple talaq issue, the Centre has maintained that these practices are not protected under the right to religion guaranteed under Article 25 (1) of the Constitution. It said the fundamental question for determination by this Court in this case is whether, in a secular democracy, religion can be a reason to deny equal status and dignity, available to Muslim women under the Constitution.

The All-India Muslim Personal Law Board on Friday justified in the Supreme Court the “triple talaq” form of divorce and cautioned the court from interference with personal laws in the guise of social reform and bringing in uniform civil code. The board said all three utterances of triple talaq are effective and validly terminate the marriage is accepted by all the four distinct schools of jurists, namely Hanafi, Shafai, Maliki, and Hanbali.

The board said that though pronouncement of triple talaq is considered to be a sin, it is still a valid and effective form of divorce. In Islamic jurisprudence, many times an irregular or improper nature of an act does not affect the legal consequences of the Act. Though Triple Talaq is the least appreciated form of terminating a marriage, yet is very much effective and in line with the Shariat law,” the board said. Asking the court not to interfere with freedom of religion, the board said the issues raised in the batch of petitions had already been decided by the court and hence the issues need not be re-opened again.

The Centre said it is of the view that gender equality and the dignity of women are non-negotiable, overarching constitutional values and can brook no compromise. The practices which are under challenge, namely, triple talaq, nikah halala and polygamy are practices which impact the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community; women belonging to other communities and also Muslim women outside India.

The Centre said there are unreasonable classifications which arise from practices such as those under challenge in the present petition, which deny to Muslim women the full enjoyment of fundamental rights guaranteed under the Constitution. The paradox is that Muslim women in India are more vulnerable in their social status because of the prevalence of such practices, even though they live in a secular country. It submitted that the practice of polygamy is a social practice rather than a religious one and therefore would not be protected under Article 25.

Issues to be adjudicated are: The court will determine among other things whether triple talaq violated basic human rights of Muslim women who are subjected to this religious practice; whether the practices of talaq, nikah halala and polygamy are protected under Article 25 (1)  of the Constitution (right to freedom of religion); whether Article 25 (1) is subjected to Fundamental Rights of Indian Constitution and in particular 14 (right to equality) and 21 (right to life) of the Constitution; Whether the practices of triple talaq are of a secular nature, namely marriage and divorce, and thus not protected under Article 25(1) although they may be considered as a part of religion?

Whether this practices run counter to Constitutional Morality that guarantees equality before law and equal protection of laws?; Whether instantaneous triple-talaq in one sitting (talaq-e-bidat) in the absence of witnesses and without any attempt at reconciliation and nikah-halala are legally permissible?; Whether this practice has been abolished by various Islamic states, which establishes the fact that such practice is not integral to the practice of Islam?; Whether the All India Muslim Personal Law Board and similar associations have the authority to determine and declare the personal law applicable in India for the numerous sects and sub-communities of Islam that exist in India and practice Islam in various ways?