“Abhorrent” triple talaq banned worldwide except India

Voices rise against the practice at SC, saying the Quran does not even mention it

With the constitutional and religious validity of the practice of triple talaq under direct focus on the second day (May 12) of deliberations by the Supreme Court’s special five-judge bench, a number of crucial issues came to light.

In the pre-lunch session, amicus curiae Salman Khurshid explained that triple talaq is practised only in India, having been abolished elsewhere, even by Islamic countries. Justice Kurian Joseph wondered how something “abhorrent and discouraged” by God can be law for humans, while senior advocate Ram Jethmalani said it was simply not “in consonance with the Constitution’s Article 14.”

In the second half, advocate and activist Farah Faiz intervened to say that the Quran provides for the entire process, and there should be a single procedure for marriage and divorce. Even former minister Arif Mohammed Khan maintained that it was not a humane practice.

The bench, headed by Chief Justice JS Khehar, heard several arguments steeped in religious knowledge, going to the fundamentals of the issue.

It was established by the CJI other members of the bench and counsels within the court that if triple talaq is a sinful act in the eyes of God—even the Prophet Mohammed had not justified  it—how can it be good in law?

The court is hearing one part of the arguments, with the other parts (including that of the government) to come later.

Khurshid explained that talaq can be given three times in one’s life. The first one is a revocable talaq. There is a three-month period of iddat within which it can be revoked. The second time, he can again say talaq, but he can revoke it anytime within the iddat period. But on the third occurrence if he says talaq, then it becomes irrevocable even if it is within the iddat period.

Khurshid explained that it depends on the way it is said. He started by explaining the process of nikah halala. “After the third talaq is done, you can’t marry the person again. There should be an intermediate marriage to somebody else.”

Khurshid also makes another revelation. He said there is really nothing specifically called “triple talaq”. All over the world it is believed that if you say talaq three or even six times, it means once. He said if a man says talaq three times, he is actually doing justice to himself, because he then cannot revoke it. “Here the issue is that if triple talaq is pronounced, nikah halala comes in and therefore the issues here are of halala as three talaqs were pronounced at once.”

There is another angle that Khurshid stressed upon. He said: “Mehr (divorce money) is given at the time of divorce to the woman. This means that there has to be someone who will see to it that the mehr is being provided to the wife. Therefore, in Islam, adjudication is implicit in the case of divorce.

Digressing a bit, Khurshid provided information on the type of schools existing in Islam and the demographic information of Shias and Sunnis. He said 80 percent of Indian Muslims are Sunnis, which is a population of 19 crore. There are 3.5 crore Shias. Sunnis have four types of schools: Hanafi (attended by 90 percent), Maliki, Shafiy and Hanbali. There are also Al hadiths. Shias have three major types of schools.

This explanation was necessary, because it entails different schools of thought, which interpret talaq differently.

The court is trying to understand what could be a uniform process of talaq. For example, among Shias, triple talaq is not recognized. Here Justice Nariman had a query. He asked: “But in Hanafi school, triple talaq is recognized?” That answer came out later, when more explanations were provided.

In trying to understand the basic nature of talaq, the bench asked whether triple talaq is a custom or a usage. Or is it fundamental to the Shariat?

Khurshid explained that as per Muslim law board while this is an abhorrent practice, it is valid in law. “But in my opinion, no religion can give sanction to any sinful practice.”

Justice Khehar said: “As God considers it a sin, it cannot be fundamental.” Justice Kurian Joseph echoed the CJI’s words, saying: “If something is sinful for God, how is it lawful for the people?”

Khurshid concurred on this point.

Carrying on from what Khurshid had said, Justice Joseph asked: “If something is abhorrent in practice, can it be validated by law?” Khurshid agreed immediately. He said: “It can’t be and it cannot be.”

With deliberations assuming a very good direction, Justice Joseph again said: “Something which is abhorrent and discouraged by God himself can’t be validated by human law.”

Justice Khehar asked a wider question. “How extensive is triple talaq outside India?”

Khurshid informed the court: “There is no (practice of) triple talaq outside India. This is India specific. It may have come from outside India, but it is prevalent in India and nowhere else.”

So why wasn’t anything done about it? Here, as it transpired, the Islamic law of inheritance also came into the picture.

Khurshid said that nobody touched it (the issue of triple talaq) due to political reasons. However, Justice Nariman pointed out that it was not politics. “Land (related to inheritance) was a state subject and therefore Centre couldn’t touch it,” he said.

Justice Nariman asked: “Do any of these five schools accept the judgment of Justice Badar? One of them treats triple talaq as one talaq. It will be possible for us to use that school of thought to help in the interpretation of law for other schools of thought.”

Khurshid said: “Your Lordships need not go into different schools. You should consider the Muslim Personal Law Board as they have a good standing.”

Khurshid goes on to explain about Nikahnama. He said talaq e tafweez (this is when the wife gets power from her husband to get a divorce) should be included along with mehr. It can also be included that triple talaq is not acceptable. This is something that is in practice for 1,000 years.”

The Supreme Court wanted to examine the issue with respect to practices in Islamic countries where triple talaq has been abolished. Countries such as Pakistan, Bangladesh, Tunisia, Kuwait, Saudi Arabia came up in discussions.

Justice Joseph asked: “Which are the non-Islamic countries that have abolished it?” Khurshid informed: “Sri Lanka, and some countries in Africa.”  The bench asked for the list in writing.

Meanwhile, Justice Khehar observed that mehr be kept out of discussions. “Our concern is talaq,” he said.

When Khurshid said that there was an adjudication mechanism within talaq, Justice Khehar replied: “Not in triple talaq. It is unilateral and is without mutual consent.”

Khurshid said: “The crux of my submission is that there needs to be an adjudicatory body, and the Muslim Personal Law Board has set up 73 adjudication centres, where 70 percent of men go to save their marriages, as well as 30 percent of women. Therefore if we discredit the efforts of the personal law board, that will not be correct.”

Senior advocate Ram Jethmalani, appearing for one of the victims of triple talaq, said: “The method of termination of marriage, which is available only to the husband and not to the wife, is not in consonance with the Constitution’s Article 14. Therefore my Lord there is no saving grace in dissolving this practice.

“Article 15 removes any doubt of applicability of Article 14. This practice is discriminatory on the basis of sex. This practice is a disgrace to the holy Quran and Prophet and no advocacy of humans can save him from the consequences of their act. It is the highest kind of unconstitutional behaviour,” said Jethmalani.

He continued: “Article 15(4) has nothing that can prevent the state from making a special provision for any social and backward class. Nothing in the article says you cannot make a special provision for women and children. It has been held that under this provision you can make a favourable law for women. Article 13 provides that even if there is a customary basis it will be called law.”

Jethmalani cited Article 44 and said that to impose it presents tremendous practical difficulty. “We should start from giving a uniform code to man and wife. Secularism is nothing but the subjection of religion to sense of reason. I am a born Hindu and I am a student of the Quran and I believe that the Prophet was the greatest prophet that has ever been. When the Muslims rightly followed the Prophet they were leaders of the world. They achieved heights of glory till a mad khalifa came in 13th century who said all books should be burnt. That was when they became slaves of those who were educated.”

Post lunch, intervener Farah Faiz, who is an advocate as well as an activist, pointed out that talaq was not in practice when Prophet was alive. “How can an act, which is sinful, be part of the shariat?” she asked.

She added: “It is provided in the scriptures that what is morally beautiful can be done, while what is morally ugly cannot be. The Shariat is morally beautiful. How can the Shariat incorporate this ugly practice? It’s not logical.”

She presented a good point when she said: “The Quran provides for the entire process of divorce. We need not look anywhere else. If there is a single procedure of marriage why can’t there be a single procedure of divorce too?

“The Quran doesn’t prescribe any division in society. So how do these Hanafi, Maliki, etc. come? It was because whoever was a little dissatisfied made his own Quran Sharif. The only authority is the Quran and Shariat, the law mentioned in the Quran, and nothing else.”

She then went after the maulavis, saying: “We have comprehensive laws on divorce, nikah halala and polygamy. But some bogus clergymen and maulanas try to impose their own wishes. Abolish these dar-ul-qazas (Islamic courts) that prohibit Muslim women from approaching the court. Forty nine of them are running.”

She narrated a brief story of her own grief when she said: “They tried to kill my 10-year-old girl when I tried to hold a meeting for triple talaq victims. If they are not stopped they are going to run dar-ul-qazas at every corner.”

She said that the first written constitution was by the Prophet Mohammed, and the Medina charter was provided, where it was mentioned that country is first and religion is second. “But these maulanas preach that religion is first and country is second.”

Former minister Arif Mohammed Khan stood up and spoke for the Muslim Mahila Law Board. He said that triple talaq was “anti Quran, anti Constitution and anti humane.”

“In part 65 verse 1 to 5 of the Quran the whole procedure of divorce is mentioned,” he said. He cited the incidents where the Prophet Mohammed has said that the Quran was the last resort. Wisdom in accordance with the Quran and the Prophet Mohammed’s lifestyle was to be used, he said.

He said: “It is written in Quran that ‘on this day I have completed your religion’. Then from where do these schools of thought come? They came after 160 years of the Prophet’s death and they used Islam to build an empire and the principles of empire are completely against the principles of Islam.

“Nothing is of any use for a Muslim other than the Quran. Triple talaq and nikah halala is not even mentioned in the Quran. Islam is a religion of compassion, and these corrupt practices try to take the world back to pre-Islamic Arabia when infant women were buried alive. Now again they are trying to bury the women alive.”

Hearings continue on Monday (May 15) . Attorney general Mukul Rohatgi will be back to present the government’s views.