The origin of the sensitive Court intervention dates back to 16th Oct 2015. The Supreme Court ruled that the Hindu Succession Act, 1956 which was amended in 2005, could not be held to apply retrospectively. In Part 11 of the Order, the two- Judge Bench referred to injustice towards Muslim women and laid the road for the registration of a PIL separately on the matter. The Court took note of “an important issue of gender discrimination” against Muslim women. “There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her”, the Bench ordered. The SC on an earlier occasion observed that, “practice of polygamy is injurious to public morals and can be superseded by the State as just as practice of ‘Sati’.
Key Questions Before SC
The major question is whether to review this matter in the light of the Constitution or within the framework of whether Triple Talaq constitutes an essential religious practice. Taking up the Constitution question will raise the broader question of all practices under several religious laws of marriage and inheritance, a lot of which may be seen as not being strictly in conformity with the Constitution. The SC is well aware that once a Bench decides that a practice seen inside personal law is violative of the Constitution, it opens a ‘Pandora’s box’ for a range of unconventional and apparently other unconstitutional elements from other personal laws to go.
Hence the SC has asked the All India Muslim Personal Law Board on 17th May 2017, if it was possible to include in the ‘ Nikahnama'(Marriage Contract) a provision enabling Muslim women to say ‘NO’ to Triple Talaq. SC asked-” Is it possible to pass a resolution to all ‘Qazis’ to include this condition (giving right to women to say ‘no’ to Triple Talaq).
The Stand of Centre
The AG representing the Centre said, the issue was not about majority versus minority, but about men versus women. He argued-” this is a intra- minority tussle between men who have been dominant over ages, have been the breadwinners, and women who have been weak”. He further contended that – “Court is the guardian of fundamental rights of our citizens. None of us are ecclesiastical, hence test is on Constitution. As far as the Hindus laws are concerned practices like Sati, untouchability and child marriage have been done away with. However the CJI pointed out that this was done by way of legislation and not through any judgement.
CJI quoted a religious book, in this context and remarked-” Anything “Biddat” is sinful. You recite in every Friday prayer that “Talaq-e-Biddat is a great sin”.
Biddat refers to anything which was not originally part of the Quran but was added by scholars who interpreted it. Kapil Sibal, who represented the Muslim Personal Law Board argued that only a ‘ minuscule portion ‘ of Muslims currently practice Triple Talaq but challenging its constitutional validity could even lead to a backlash in the community which may seek it as an infringement on its rights. Consequently they would end up supporting practices like polygamy and Triple Talaq. Meanwhile the influential Muslim organisation, Jamiat Ulma-i-Hind has taken a stand at variance with that of All India Muslim Personal Law Board that Triple Talaq is part of the Koran.Acoording to them it is included in the Hadith and both Qoran and Hadith are authentic sources of Islamic jurisprudence. It was argued at SC that Verse no- 230 of Chapter Baqra of the Holy Koran has been cited as a
reference to Triple Talaq.
Stand Taken by Muslim Community
AIMPLB told SC on 18th May, 2017 that it would enable Muslim brides to include in the ‘Nikahnama’ a provision allowing them to say NO to Triple Talaq.The board further announced-” We will send an advisory to all ‘Qazis’ stating that they should avoid instant Triple Talaq.However, Senior Counsel Amit Singh Chada appearing for petitioner Shyara Bano told the Bench that ” it will still not solve the problems of married Muslim women.They still have to go to Court.”The AIMPLB had earlier admitted that instant Triple Talaq is sinful, but come under the ambit of Qoran.
However, on 30th March 2017, Dar ul Uloom the leading Islamic Seminary, considered one of the most prestigious after Cairo based Al Azhar, issued a ‘Fatwa’ that as part of the Nikahnama, it would be ‘Durust'( proper) to incorporate the condition that the woman will never be given an oral and instantaneous Triple Talaq.”If it is uttered thrice at one sitting, it would be correct to treat it as one utterance’. More over enhanced alimony could be seen as a disincentive for breaking this clause, eg; of Rs 50,000 may be deemed multiplied 10 times, upto Rs 5,00,000 in case the
condition is violated.
Justice Sohail Aijaz Siddique, former Chairman of the National Commission for Minority Educational Institutions, is of the view that-“It is important that the issue gets resolved without allowing for dragging all Muslim practices in the dock and trying to isolate them as violative of the Constitution and good sense”.
I hope the volatile issue is amicably settled within the community itself, and the edifice of Indian culture- religious harmony and tolerance towards all
religions is safe- guarded in letter and spirit.
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