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 The SC on an earlier occasion observed that, “practice of polygamy is injurious to public morals and can be superseded by the State as just as practice of ‘Sati’.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.
Religious Interpretations
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 w