Is triple talaq fundamental to Islam? asks Supreme Court; Centre maintains it`s unconstitutional

New Delhi: A five-judge Constitution bench of Supreme Court on Thursday heard a batch of petitions challenging the constitutional validity of "triple talaq".

The Constitution bench headed by Chief Justice Jagdish Singh Khehar said: “We are going to decide the validity of triple talaq.”

He asked the parties concerned to focus on whether triple talaq was fundamental to the Islamic religion.

The Chief Justice said that petitioners and respondents would address the court on whether triple talaq was an enforceable fundamental right.

The bench sought suggestions on the broad parameters of the directions the court may issue while deciding the validity of triple talaq.

During the hearing, the government maintained that the practice is unconstitutional.

Other judges on the Constitution bench are Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S Abdul Nazeer. Interestingly, the members of the bench are from different religious communities including Sikh, Christian, Parsee, Hindu, and Muslim.

The SC, however, said the issue of the practice of polygamy among Muslims may not be part of its deliberations as this aspect is not related to triple talaq.

The court said both sides would get two days each to argue their case. Thereafter, both sides would get a day each to submit rejoinders.

"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.

The hearing holds importance as the Allahabad High Court, in its verdict pronounced in the last week of April, had held the practice of triple talaq as unilateral and bad in law.

The High Court verdict had come while dismissing a petition filed by one Aaqil Jamil whose wife had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq.

Ahead of Supreme Court's hearing, Muslim women recite Hanuman Chalisa to end triple talaq

The copy of High Court verdict was made available only on Tuesday.

Influential Muslim organisations like the All India Muslim Personal Law Board (AIMPLB) have opposed court's adjudication of these matters, maintaining these practices stemmed from the Holy Quran and were not justiciable.

The Muslim women who have filed the petitions have challenged the practice of triple talaq in which the husband, quite often, pronounces talaq thrice in one go, sometimes even by phone or text message.

On other hand, nikah halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her having to go through the process of marrying someone else, consummating it, getting divorced, observing the separation period called 'Iddat' and then coming back to him again.

The Centre had on October 7 last opposed in the Supreme Court the practice of triple talaq, nikah halala, and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.

On March 27, the AIMPLB had told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.

The Board had also said the validity of the Mohammedan Law, founded essentially in the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution.

It had said there was a need for "judicial restraint" before going into the constitutional interpretation of these unless such an exercise becomes unavoidable.

The Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.

(With Agency inputs)