On the second day (May 12) of deliberations over the legal validity of triple talaq at the Supreme Court, being heard by a special five-judge bench headed by Chief Justice J S Khehar, Amicus Curiae Salman Khurshid carried on from the first day by defining triple talaq.

He 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, which is after the period of iddat, he can again say talaq, but he can revoke it anytime during the iddat. 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. 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 thrice or 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 on. He said: “Mehr is given at the time of divorce to the woman. Therefore there needs to be someone who will see whether the mehr is being provided to the wife or not. Therefore in Islam the adjudication is implicit in case of divorce.

Justice Nariman pointed out to Khurshid that “the practice in Islam and what we are doing here is completely different and you take care of it, it is very important.”

Digressing a bit Khurshid provided information on the type of schools in Islam, and the demographic information of Shias and Sunnis. He said 80 [percent of Indian Muslims are Sunnis, with a population  of 19 crore. There are 3.5 crore Shias. Sunni 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. Khurshid again stressed that triple talaq is not recognized across the world.

That is where Justice Nariman interjected. He said: “But in Hanafi school, triple talaq is recognized.”

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

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

Justice Khehar said: “As God considers it sin, it cannot be fundamental.”

Justice Kurian Joseph asks 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 asks: “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 the god himself can’t be validated by human made 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. Marriage is a contract, and a sacred contract, as it takes place with rituals and prayers. The contract requires consent of both the parties.”

Justice Nariman asked: “Do anyone 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  that that talaq e tafweez 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 is examining the issue with respect to practices in Islamic countries where triple talaq has been abolished. Countri3es 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.

Khurshid said: |There is substantial opinion that triple talaq should be discouraged. When another alternative is available, what is the purpose of having this form of talaq? There are answers within Islam. The second proposition is that there is nothing as unilateral talaq.”

Justice Khehar said: “Mehr is not our concern, talaq is.”

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 setup 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, just because you are dealing with women. 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 is of 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. Now they became the slaves of them who are educated.”

The court adjourned for lunch.

—India Legal Bureau