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SC says polygamy is not part of discussions; Jaisingh wants to de-link personal laws from religion and test them on the basis of the Constitution

A six-day historic trial started at the Supreme Court on May 11 when a unique Bench of five judges from five different faiths, led by Chief Justice JS Khehar started hearings on the practice of triple talaq. Apart from CJI Khehar, who is a Sikh, the others on the Bench are Justices Kurian Joseph (Christian), RF Nariman (Parsi), UU Lalit (Hindu) and Abdul Nazeer (Muslim).

The case is from a suo motu writ petition by the Supreme Court for considering the rights of Muslim women in issues concerning marriage, divorce and maintenance and whether the current practices under Muslim Personal Law regarding marriage, divorce and maintenance are in violation of Part III of the Constitution.

Five separate writ petitions have been filed by Muslim women challenging the practice of triple talaq, terming it unconstitutional.

The Allahabad High Court, in a recent verdict, held the practice of triple talaq as unilateral, and bad in the eyes of law. That verdict had come while dismissing a petition filed by one Aaqil Jamil, whose wife filed a criminal complaint against him alleging that he had tortured her for dowry, and when his demands were not fulfilled, he gave her triple talaq.



The Union government in an affidavit had submitted that the practices need to be abolished as they are “unconstitutional, discriminatory and hurt gender equality and women’s dignity”. The affidavit also said that gender equality is part of the basic structure of the Constitution and is non-negotiable. The Centre told the apex court that “it is extremely significant to note that a large number of Muslim countries or countries with an overwhelmingly large Muslim population where Islam is the state religion have undertaken reforms in this area and have regulated divorce law and polygamy”.

On Thursday (May 11), senior advocate Kapil Sibal was arguing for the All India Muslim Personal Law Board (AIMPLB). Salman Khurshid is the Amicus Curie as first day’s deliberations started.

A number of things came out in the day, including senior advocate India Jaisingh’s insistence that personal laws are not religious law but rather based on religion which is not the same thing and thus it cannot be said that personal laws should be kept out of the scope of part 3 of the Constitution. She wants to de-link personal laws from religion and test them on the basis of the Constitution.

The court on Thursday was a place of top legal luminaries. Present were Ram Jethmalani, Anand Grover, Jaising and Khurshid, among others.

GROUND RULES

Before proceedings started, the CJI set down some ground rules.

The CJI said: “We will see if triple talaq is fundamental to religion or not. If it is so we cannot do anything. Is there any enforceable fundamental right?”

He also added: “Please don’t repeat any arguments. If anyone repeats we will stop them. One side can take two days and two days for other side and one day for the rest.” The overall hearing would be of a maximum of six days.

The Bench clarified: “We will not go into polygamy or anything else other than triple talaq. We will look into whether this is fundamental to the religion. If it is, then the court cannot go into it. We also have to see whether this is an enforceable fundamental right.”

This is how proceedings went on in court.

Additional Solicitor General, Tushar Mehta, arguing for the Central government, said: “We have some points to make. Whether this practice of triple talaq is protected under Article 25(1) or not.”

Meanwhile, Justice Kurien Joseph pointed out that triple talaq and nikah halala are one part and polygamy is different.

The CJI took it ahead, saying: “Let’s proceed further and see where we go. Everything is consequential. We are going to decide the validity of triple talaq.”

Jethmalani said: “I am appearing for a victim of triple talaq. And I want to argue. Please allow me.”

The court agreed to that.

Senior advocate Amit Singh Chadda, for petitioner, Saira Bano started his arguments.

Khurshid interfered and submitted that there is a process to be followed by the person. There has to be reasonable grounds to talaq and then that should be settled before the kazi and mahar (fees) etc. has to be paid.

Chadda said that in the case of petitioner victim, her husband gave talaq by post. He said the Muslim Personal Law Act of 1937 was repealed by the Act of 1939 and after that there was no codified law to enforce.

Justice Nariman said: “Despite the fact that there was influence of hanafi and Maliki thought, the act applies to all the Muslims, including Shia.”

Chadda said: “The husband has a right to say talaq talaq talaq and goodbye, while the wife has to go to court under 25 specific grounds. That is discriminatory.”

Justice Kurien asked Chadda whether the husband has to give any justification.

Khurshid said that in the Quran there is an arbitration proceeding laid out where the mediation is done and therefore triple talaq is a non-issue.

Jaising said: “The divorce by a woman is under judicial preview. While the man can give divorce, which is extra judicial and therefore needs to be tackled. Even if it is pronounced in three months, it is still extra judicial.”

Justice Nariman said: “We have to see what is being attacked here, what is triple talaaq that’s all.”

Sibal said the government “is gracious enough to file 16 volumes of judgments.” Tushar Mehta clarified that “it’s a compilation of all judgments being relied on by all the parties.”

Justice Joseph enquired: “Does it have foreign judgments also?” Mehta said yes, “it contains judgments from all over.”

Khurshid pointed out that in many cultures, “even if you say talaq six times it will be counted as one, and you are allowed to give talaq only three times in your life.”

Justice Nariman said: “Look, there are three forms of talaq. Here only the third form is attacked. Your argument is that the third form is in a way part of the other two forms. We will look into it.”

After lunch, Mehta clarified that the government is not leaning on any side, but for gender justice and dignity and equality for women. He said Attorney General Mukul Rohatgi is scheduled to return on Monday (May 15) and that arguments regarding the government stand can carry on from there. The court agreed.

CRITICAL ARGUMENTS

Jaisingh went on with her critical analysis. She said she was not there to argue whether Muslim law is better or worse than any other personal law. She was concerned with the larger constitutional issue, which is whether personal laws can be tested on the touch stone of part 3 of the Constitution.

She also submitted that time and again personal laws of all the communities have been challenged before various courts including the Supreme Court, but for some reason the courts have chosen not to settle the constitutional issue involved.

She then submitted a number of case laws where the Bombay High Court and the apex court had given reliefs to the petitioners challenging the provisions of personal laws, but had shied away from striking down the discriminatory provisions of law.

She submitted that personal laws are not religious law but rather based on religion which is not the same thing and thus it cannot be said that personal laws should be kept out of the scope of part 3 of the Constitution.

She then submitted that her primary endeavour is to de-link these personal laws from religion and test them on the basis of the Constitution.

She then said that all that personal law does is that it defines the domain of personal laws which is, it covers marriage, divorce and adoption etc. But there is no definition of personal laws and to settle the larger issue this must be settled.

She also submitted that in the present case the issue is also whether a woman’s right can be taken away unilaterally. She said that she concedes that Muslim law in some aspects is better than Hindu law because in Muslim law, the consent of woman prior to marriage must be explicit while in Hindu law it is always implied.

Bench said that after the Shariat Act of 1937 the question of whether this is a personal always or not doesn’t arise as the same has become statutory law and thus falls within the scope of Part 3.

Jaisingh submitted that what is included in the Shariat law is left to our imagination and one might come and say that certain parts are uncodified and therefore the same can’t be scrutinized.

The bench clarified: “For the present issue we are considering it to be codified. So you can proceed accordingly. You have to show us how it is violating of Part 3 as we already of the view that it can be tested on the touchstone of the Part 3.”

Jaisingh continued: “Earlier apostasy was a ground for divorce, but by the act of 1939 that ground was removed because women were converting to other religions to get divorce. Thus an exception has been carved out to keep women from exercising their right to get out of the marriage which shows that the said Act was enacted with a view to further take away the rights of the Muslim women.

“Also, in all other religions divorce can be granted by approaching a judicial forum but in Muslim law the right of the women is being violated unilaterally. Even if the marriage under Muslim law is taken to be a contract, that contract cannot be against the public policy as divorce is a judgment.”

She went into the definitions of secular state and religious state. “Take India and Pakistan,” she says as examples.”

The idea was that a theocratic state like Pakistan will set up a shariat court, “we don’t have that.”

Deliberations  continue on May 12.

—India Legal Bureau

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