SC starts triple talaq hearing; may not debate polygamy

To determine first whether practice is fundamental to Islam
Report by: 
Agencies
NEW DELHI
11 May 2017

The Supreme Court today commenced its historic hearing on a clutch of petitions challenging the constitutional validity of the practice of triple talaq and nikah halala among Muslims, saying it would first determine whether the practice is fundamental to Islam.
A five-judge constitution bench, headed by Chief Justice J S Khehar, however, 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. "We will deal with the issue as to whether triple talaq is sacramental and whether it 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 issue to be deliberated upon. The apex court also said if it came to the conclusion that triple talaq is fundamental to religion, then it will not go into the question of its constitutional validity.

The bench said it will also deal with the aspect of whether triple talaq formed part of the enforceable Fundamental Right to practice religion under the Constitution. Senior advocate Amit Singh Chadha, appearing for Saira Bano, one of the petitioners in the case, initiated the arguments against the practice of triple talaq among Muslims and said this practice was not fundamental to Islam and hence can be done away with. He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to buttress his plea that triple talaq is un-Islamic.

The bench intervened and said it would like to peruse the prevalent laws in various Islamic countries on the issue. 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. He said there was no adjudication to determine the validity of the grounds of talaq. When the bench asked whether reconciliation after the pronouncement of triple talaq in one go is codified, Khurshid replied in the negative. Another former Union Minister and counsel for All India Muslim Personal Law Board (AIMPLB), Kapil Sibal, concurred with Khurshid and said "it's a non-issse, as no prudent Muslim would wake up one fine morning and say talaq, talaq and talaq".

The pleas before the apex court have also challenged the constitutional validity of other practices like 'nikah halala' and polygamy among the Muslims. 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.