Supreme Court's U-turn: Open to looking at polygamy & nikah halala

Tuesday, 16 May, 2017

The apex court began the hearing on a batch of cases challenging the constitutional validity of triple talaq, nikah, halala and polygamy practices among Muslims.

However, All India Muslim Personal Law Board (AIMPLB) counsel Kapil Sibal told the apex court that triple talaq is a matter which comes under the Muslim board and therefore, in his opinion the top court should not interfere into it.

The multi-faith bench comprising Chief Justice of India J.S. Khehar and Justices Kurian Joseph, Rohinton Nariman, Uday Lalit and Abdul Nazeer is examining the legality of triple talaq after a clutch of petitions for a ban on the practice was filed.

To this, Rohatgi said even if triple talaq is considered as an essential part of religion and falls under Article 25, the practice still has to be constitutionally moral.

Earlier in the hearing, the apex court refused to hear all the three cases of Polygamy, Nikah and Halala at once, saying it will focus on one matter at a time.

The apex court bench said the government has to first pass the test of "essentiality" and prove that "triple talaq" is not an essential part of Islam, as this will amount to "tinkering" with religion.

"Triple talaq is far from being fundamental and very far from being sacramental to Islam".

The hearing 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.

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Supporting the stance of ending the practice of triple talaq, the Allahabad High Court had earlier asserted that the rights of any person, including Muslim women, can not be violated in the name of "personal law".

The court was apparently unimpressed when he said that he cited the Constitution's Article 14 and 15 to highlight the discrimination being faced by the Muslim women, noting that these articles are all against the state.

Rohatgi replied: "Constitutional morality has to prevail".

We agree with you that if triple talaq is arbitrary, extra judicial, it must go. The court has also given three days to those defending it.

The bench had asked Khurshid if triple talaq was India-specific and what had led to its repeal in other countries.

In the course of the hearing pointing to the inertia in the evolution of the Muslim Personal Law, Rohatgi said that as far as Hindus were concerned, various steps were taken to bring their laws in conformity with the Constitution but that has not happened with Muslims, who had a Shariat Act in 1937, then in 1939 and then some change in 1986 in the wake of Shah Bano case. But this is not permissible in Mohamadan law.

She had said what Imams and clerics say is not important, the only thing is that the holy Quran says everything. "We can not wipe out (the difference between) Shias or Shunnis".