Hot Off The PressNews

Supreme Court: A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit challenging the constitutional validity of an ordinance which makes the practice of instant ‘triple talaq’ a punishable offence. The Court said that it would not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant ‘triple talaq’, also known as ‘talaq-e-biddat’, is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times in one go.

The ordinance making the practice of instant ‘triple talaq’ a punishable offence was issued for the third time in less than a year on February 21.

(Source: PTI)

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Lok Sabha passes Bill making Triple Talaq unconstitutional

‘Triple Talaq Ordinance’ promulgated in wake of ending the arbitrary custom of oral unilateral divorce

The Triple Talaq Bill passed in Lok Sabha

Triple Talaq ordinance re-promulgated

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Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has reserved verdict on a batch of petitions seeking review of its September 28, 2018 judgement that allowed women of all age groups to enter the Sabarimala temple in Kerala.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:

“the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.

(With inputs from PTI)

Case BriefsSupreme Court

Supreme Court: After conducting a 6-day hearing during summer vacations, the historic verdict on the validity of Triple Talaq is out and this is what the 5-judge Constitution Bench has held:

“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”

The 395-pages long judgment begins with the dissenting opinion of JS Khehar, CJ and SA Nazeer, J where the judges asked the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ and requested the different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation. CJI, writing the judgment for himself and Nazeer, J said that till the time a law comes into force, the Muslim husbands should be injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction will be operative for a period of six months and if the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

Stating that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist, the 2 judges said,

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be.”

CJI and Nazeer, J also took note of the fact that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’.

Nariman, J, writing down the majority judgment for himself and Lalit, J noted that given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. It was held that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. The Court, hence, held that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. After going through the Hanafi jurisprudence, the Court noticed that very jurisprudence castigates Triple Talaq as being sinful. The Court said that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq, it was held that:

“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”

It was, hence, held that Triple Talaq was not a part of Article 25(1) of the Constitution and hence, the Muslim Personal Board that the ball must be bounced back to the legislature does not hold good as Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

Joseph, J, writing down a separate judgment but agreeing with the majority opinion, said,

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

He said that the purpose of the Muslim Personal Law (Shariat) Application Act, 1937 was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq and therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible and hence, there cannot be any Constitutional protection to such a practice. [Shayara Bano v. Union of India, 2017 SCC OnLine SC 963, decided on 22.08.2017]

 

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Supreme Court: The Constitution bench of 5 judges belonging to 5 different faiths started hearing the Triple Talaq matter on 11.05.2017. The Bench comprising of J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ is hearing the matter on day-to-day basis.

Day 6, May 18th, 2017

  • Amit Chadha, appearing for Shayara Bano: In my opinion, Triple Talaq is a sin and is between me and my maker.
  • Kapil Sibal to SC: Only Legislation can interfere in the matters relating to sinful practices in any religion, not you.
  • AIMPLB: We will, within a week, issue an advisory to Qazis to inform every bride her right to specifically mention in the Nikahnama that she will not accept instant triple talaq.
  • SC reserves it’s judgment after 6 day long hearing.

Day 5, May 17th, 2017

  • J.S. Khehar, CJI to AIMPLB: Is it possible to give bride the right that she will not accept instant triple talaq and whether the board’s advisory will be followed by the Qazi at the ground level? Can’t there be a modern and model Nikah Nama to provide for talaq? New Nikah Nama can also do away with instant Triple Talaq and Nikah Nama.
  • Yousuf Muchala, appearing for AIMPLB: Board’s advisory is not mandatory for all Qazis to follow, however, AIMPLB accepts the suggestions in all humility and will look into it. AIMPLB also showed a resolution passed on 14.04.2017 which says Triple Talaq is a sin and community should boycott person doing it.
  • Yusouf Muchala: A Muslim woman has every right to pronounce Triple Talaq in all forms, and also to ask for very high ‘mehr’ amount in case of talaq.
  • SC: Triple Talaq is not a part of Quran. It came later. So if biddat is a sin then why not Talaq-e-biddat i.e. Instant triple talaq? (Note:- Biddat or Bid’ah refers to innovation in religious matters & evil innovations are forbidden under Islamic law.)
  • Senior Advocate V. Giri: Triple Talaq is a part of religion and hence, it is protected by Article 25 of the Constitution.
  • SC: If you yourself say triple talaq is the worst form of divorce and sinful, how does it then become essential to religion? Protection of Article 25 is applicable only when it is about a practice which is essential to your religions and not for what is not essential.
  • V. Giri: Talaq-e-Biddat finds mention in para 230 of Surah 65 of the Quran.
  • SC (after reading out the versus from the Quran): There is absolutely no mention of Talaq-e-Biddat in the Quran, and only two other forms of talaq,  i.e. Talaq-e-Ehsan and Talaq-e-Ahsan, are mentioned in the holy book. You have to read all the paras before and after to give a complete picture. This book says that in every Friday prayers, you say that biddat is bad and should not be practised by any means and now you say it is part of your 1400-year-old faith.
  • Senior Advocate Raju Ramachandran: Judiciary cannot dictate to a religious community what personal law practices and norms to follow. A community follows practices that it finds relevant for itself and not what an outsider tells it. India has an express reservation in Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). It says that the State follows a policy of non-interference with the personal law practices of any community, unless the community itself takes the initiative to change.
  • Indira Jaising, appearing for Bebak Collective, a Muslim women organisation: But Article I of the CEDAW defines “discrimination against women” and Article 2 obliges the State to act against all forms of discrimination against women.
  • Advocate General Mukul Rohatgi: Issue of Triple Talaq is not an issue of majority or minority. It is an issue of a minority community and that of women within that community.  If Triple Talaq is not present in 25 countries then it cannot be said to be essential to Islam. Rights governed by Article 25 of Constitution are not absolute. Sati, Devdasi etc were once part of Hinduism and were later abolished.
  • CJI: But which one them was set aside by the Court? The were all abolished by bringing in legislation.
  • Mukul Rohatgi: Government will do what is necessary but the Court must step in.
  • Indira Jaising: The key question would be whether personal laws will have to stand scrutiny of fundamental laws. At the end of the day, all the systems will have to comply with the Constitution.
  • Day 5 hearing concludes.

Day 4, May 16th, 2017

  • Kapil Sibal on behalf of AIMPLB: Triple Talaq is a 1400 year old practice. Who are we to call it un-Islamic? He adds that Triple Talaq is not a matter of equity of or good conscience. It is a matter of faith just like the Hindu belief that Lord Rama was born in Ayodhya. Just like the Hindus’ faith about Rama’s birth at Ayodhya cannot be questioned, similarly Triple Talaq which is also a matter of faith for Muslims should not be questioned. There is no question of Constitutional Morality involved. Why should Court interfere?
  • R.F. Nariman, J: You mean we shouldn’t hear the matter?.
  • Kapil Sibal: “Yes, you shouldn’t”. In a Hindu majority country, Muslims have to be protected and vice-versa.
  • Kapil Sibal: The dispute is not just the issue of triple talaq but the prevalence of patriarchy among communities. All patriarchal societies are partial. Is it better for a woman to apply for divorce and fight for 16 years and get nothing?
  • Kurian Joseph, J: Are e-divorces also taking place?
  • Kapil Sibal: Divorces are happening even through whatsapp.
  • Kapil Sibal: We are not saying that Triple Talaq is good and should continue permanently. We also want to change but somebody else should not interfere & force the change on us.
  • Kapil Sibal ended his submissions for the day by saying the issue of Triple Talaq cannot be decided in 6 days.

Day 3, May 15th, 2017

  • Attorney General Mukul Rohatgi suggests the hearing of the issues relating to polygamy and Nikah Halala along with Triple Talaq. The bench says that the said matters will be taken up in future. The present hearing will be limited to the issue of Triple Talaq sue to time constraint.
  • Arguing on behalf of the Government, Attorney General: Most radical countries like Pakistan and Bangladesh are moving towards reforms but we, as a secular State, are still debating. You are guardians of the constitution. Examine if Triple Talaq is permissible under the constitution. The Government will bring a law if Triple Talaq is abolished. people will not be left in lurch.
  • J.S. Khehar, CJI: We are the guardians of minority as well as the majority. We will strike down Triple Talaq if Government can establish that it is not an integral part of Islam
  • Mukul Rohatgi: Supreme Court is not an ecclesiastical court to check whether Triple Talaq is essential to Islam or not. Stating that the Court was looking to the problem from wrong abgle, he said that Issues of Muslim marriage and divorce were separated from religion in Shariat Act way back in 1937 itself. The matter should be decided on the basis of fundamental rights of gender equality & human rights under Arts 14, 15, 21 & 51A of the Constitution.
  • J.S. Khehar, CJI: The tenets of religion can neither be tested on scientific grounds or on other grounds.
  • Mukul Rohatgi: Why is the matter being argued before the Constitution Bench then?. Matters are referred to the Constitution Bench because they have something to do with the Constitution. Nothing, no advocacy by man, will help cover something that is wrong by the Constitution.
  • Mukul Rohatgi: Women lived in fear of Sati until the law declared it illegal. Muslim women want freedom to live without fear of Triple Talaq.
  • J.S. Khehar, CJI: Women should be equal, but within the particular religion.
  • Mukul Rohatgi: A constitution bench cannot shut eyes to a Muslim woman’s constitutional rights of equality and gender justice.

Day 2, May 12th, 2017:

  • Court resumes the hearing.
  • R.F. Nariman, J.: One should see difference between theory & practicality at present context in the context of Nikah & Talaq in Islam.
  • Salman Khurshid: Triple Talaq is not practiced anywhere except India.
  • SC: Why all other countries say it is not valid in Islam?
  • Salman Khurshid: Triple Talaq is sinful and is discouraged. But still, it is valid in law.
  • SC: Is it like death penalty, which for some is sinful but legal. If lawful man can be sinful? What is sin in the eyes of God, can it be valid in law?
  • Salman Khurshi: It cannot be.
  • SC: We have to understand the religion from the point of view of what religion says not what you understand in order to test it on the principle of Article 25 (freedom to practice religion) of the Constitution. Tell us whether Triple Talaq is a custom/usage or fundamental to Islam. Where does it lie, Shariat or customs and usage?
  • Senior Advocate Ram Jethmalani, appearing for Forum for Awareness of National Security: Triple Talaq violates Article 14 as it gives the right to terminate marriage only to men and not to women.
  • J.S. Khehar, CJI: The Court is dealing with Personal Law in the present matter and  Article 15 of the Constitution talks about State law.
  • Ram Jethmalani: Triple Talaq makes a distinction on the ground of sex & this method is abhorrent to the tenets of holy Quran and no law can allow a wife to become an ex-wife at the fancy of the husband. No amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions.
  • SC: There are some school of thoughts which say that Triple Talaq is legal but it is the worst and an undesirable form of marriage dissolution.
  • The matter is listed for further hearing on 15.05.2017 as part heard.

Day 1, May 11th, 2017:

  • Amit Singh Chadha, appearing for one of the petitioners Shayara Bano: The practice of Triple Talaq is not fundamental to Islam and hence can be done away with. Islamic countries like Pakistan and Bangladesh have also declared it to be invalid.
  • SC: We would peruse the prevalent laws in various Islamic countries on the issue.
  • Senior Advocate Indira Jaising, appearing for petitioners: In case of divorces being granted through extra-judicial mechanism, there should be a “judicial oversight” to deal with the consequences.
  • Senior advocate Salman Khurshid, assisting the Court in his personal capacity and Senior advocate Kapil Sibal, appearing on behalf of the All India Muslim Personal Law Board: Triple Talaq is a non issue.
  • Kapil Sibal: No prudent Muslim would wake up one fine morning and say talaq, talaq and talaq. Salman Khurshid said Triple Talaq not considered complete without conciliation efforts between the husband and the wife.
  • SC: Is the reconciliation after the pronouncement of triple talaq in one go codified?
  • Salman Khurshid: No, it’s not
  • Kapil Sibal: Triple Talaq issue is outside the ambit of judicial review.
  • SC: The issue is, in fact, prima facie related to fundamental rights.
  • SC: If Triple Talaq is declared invalid, what will be the procedure available to husband for seeking divorce? Will it not create a vacuum?

It is important to note that recently on 19.04.2017, the Allahabad High Court has termed triple talaq as unconstitutional, observing that the practice is violation of a woman’s rights. The Constitution bench is hearing the matter during the summer vacations of the Court, in the suo motu proceedings initiated by the Court in In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015 with a bunch of related petitions being merged with the case.

Source: PTI & ANI

Case BriefsSupreme Court

Supreme Court: Pained by the sorrowful fate of a young girl who committed suicide as an outcome of the psychological harassment and continuous eve-teasing by the accused, the Court said that in a civilized society male chauvinism has no room. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing.

Stating that eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated, the 3-judge bench of Dipak Misra, A.M. Khanwilkar and M.M. Shantanagouda, JJ said that why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom.

In the present case, where the trial court had acquitted the accused by disregarding the version of parents of the deceased and other witnesses and treating the dying declaration as invalid on the ground that the deceased was not in a position to speak and there was no medical certificate appended as regards her fitness as the deceased had sustained 80% burn injuries as she had set herself ablaze in an attempt to end her life, the Himachal Pradesh High Court had reversed the order of acquittal. It was held that there is no reason to disregard the dying declaration as the Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused.

Stating that the instant case portrays the deplorable depravity of the appellant that has led to a heart-breaking situation for a young girl who has been compelled to put an end to her life, the Court held that the High Court has absolutely correctly reversed the judgment of acquittal and imposed the sentence. It has appositely exercised the jurisdiction and we concur with the same. [Pawan Kumar v. State of H.P., 2017 SCC OnLine SC 509, decided on 28.04.2017]