Where will a Muslim man go for divorce if we declare triple talaq invalid, asks SC

Satya Prakash

Tribune News Service

New Delhi, May 11

The Supreme Court on Thursday 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.

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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 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.

Next hearing on Monday

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 “extra-judicial divorce”.

Jaising pointed out that while a Muslim man can unilaterally pronounce tripla 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 Bhartiya 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 two-fold argument. First, whether Islamic law permitted instantaneous triple talaq was allowed under Islamic law or not; and second, whether it violated Muslim women’s fundamental rights guaranteed under the constitution or not. 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 "non-issue" saying it is not considered complete without conciliation efforts between the husband and the wife.

Many Muslim women and Muslim groups have challenged these practices on the ground that these violated their fundamental right to equality, right to non-discrimination and right to live with human dignity. Quite often they get divorced by phone or text message.

Supporting the petitioners, the NDA government has requested the court to declare these practices unconstitutional as being violative of Muslim women’s fundamental right to live with dignity – a right available to women of other religions in India.

“Gender equality, gender equity and gender justice are values intrinsically entwined in the guarantee of equality under Article 14 as such equality of all women in the country was something which was “non-negotiable,” it said.

All India Muslim Personal Law Board (AIMPLB) which sought to defend these practices, saying 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.