New Delhi: The Supreme Court on Thursday said it would determine whether the practice of triple talaq was fundamental to Islam, with the government making it clear that such a form of divorce was against gender justice and those challenging it asserting that it was not part of the religious tenets.
Commencing a historic hearing on a clutch of petitions challenging the constitutional validity of the practice of triple talaq and ‘nikah halala’ among Muslims, the apex court said it would first determine whether the practice is fundamental to Islam.
A five-judge constitution bench, headed by Chief Justice J S Khehar also made it clear that the issue of polygamy among the Muslims may not be deliberated upon as it is not connected with the triple talaq issue.
“There are 2-3 things in our minds and the first is whether this (triple talaq) is fundamental to the religion (Islam). “If it is fundamental to religion, then possibly we may not be interfering. And the other aspect is whether triple talaq is sacramental and can be enforced as a Fundamental Right”, the bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, said while framing the issues to be deliberated upon. It said it would “take a call” on the issue whether the fundamental right to practice religion covered triple talaq and the parties were free to argue in support or against it. The apex court also said if it came to the conclusion that triple talaq was fundamental to religion, then it will not get into the question of its constitutional validity. The bench made it clear that it would deal with one of the three forms of granting divorce, that is ‘triple talaq’, and would not go into the practice of polygamy, prevalent among Muslims, as the issue is not related.
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