New Delhi: The Supreme Court Thursday commenced its historic hearing on a batch 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 hallmark of the first day's debate on triple talaq in Supreme Court was the position taken by Salman Khurshid and Kapil Sibal. While Khurshid invoked Qur'an to prove his pint, Kapil Sibal, instead of proving his points on merit, started talking about different Maslaks among Muslims.
Amicus curiae Salman Khurshid at intervals submitted his expert opinion to the bench. He explained the entire mode of Nikah and how it is performed. He further explained the process of talaq which takes place over three months with intervals. The amicus curiae said that a woman can either opt for a stated clause in the Nikahnama for talaq, or opt for Khula for divorce or opt for Mubara (divorce by mutual consent).
"During a divorce, both the parties need to appoint an arbitrator who tries to solve the dispute, unless all the issues of maintenance, custody of a child and payment of Mehr are settled. Triple Talaq is a non-issue as it just cannot be done without mediation," said Khurshid, calling instant triple talaq completely against Quran.
The apex court on Thursday had attached a lot of value to the verdicts on triple talaq from the Guwahati, Kerala and the Delhi high courts, declaring triple talaq unconstitutional.
But when senior advocate Anand Grover for the petitioners read out a judgment of Justice Ahmed of the Delhi High court nullifying triple talaq, senior advocate Kapil Sibal interrupted and submitted that "it was a view of the Ahle Hadees school of thought among Sunni Muslims and they are a minority in India."
Earlier 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.
Petitioner also questioned the very locus standi of All India Muslim Personal Law Board and said that it is a private organisation which is portraying to be representing Indian Muslims. Hence, petitioners said AIMPLB's views do not matter. CJI Khehar noted down the point.
While concluding the day's hearing, Justice Joseph raised a question which was echoed by his brother judges. He said, "Suppose we abolish triple talaq, then how will Muslim men seek divorce? What is the fall back option?"
Though Jaising promptly suggested a separate legislation or a new law, there were still murmurs in the courtroom discussing the responses to this question.
The counsels of both respondents and petitioners have submitted 187 judgments, including national and international rulings, in 16 volumes to the apex court to be considered before arriving at a conclusion. Petitioners also highlighted laws invalidating triple talaq from many Islamic countries. The CJI has now asked for a separate compendium on these foreign legislations.
The next hearing will be on Monday May 15.
Differences over practice of Triple Talaq exist in the Islamic Sharia since the tenure of second Caliph Omar (RA). Muslim scholars and jurists argue that concurrent talaq or triple talaq in one go has never been approved by Prphet Mohammad (peace be upon him), during the tenure of first Caliph Abu Bakr (RA) and the first two years of Caliph Omar's caliphate.
Caliph Omar later approved it as punishment, scholars argue, but later on the practice was annulled by Muslim jurists. It is on this basis, the practice of concurrent talaq has been termed invalid in most of the Muslim countries.
Muslims in India, majority of them followers of Hanafi school of thought, are adamant on the invalid concurrent talaq and are fighting a case with women activists in the Supreme Court.
Interestingly, some renowned Hanafi scholars have also ruled against concurrent or triple talaq. According to the sources in the All India Muslim Personal Law Board (AIMPLB), the members fear that agreeing to any change on triple talaq would open floodgate of interference in other Sharia matters.
It is also learnt that there is a strong dissent among the members of the All India Muslim Personal Law Board (AIMLB) and especially some women members are upset over board's handling of the situation.