Case Files: The Making of the Landmark Judgement on Triple Talaq

A full summary of the exhaustive arguments for and against triple talaq over the course of the 6-day long hearings.

(In a landmark judgement, a Constitution Bench of the Supreme Court, on 22 August, declared the practice of Triple Talaq unconstitutional. A five-judge bench of Chief Justice of India JS Khehar, Kurian Joseph, Rohinton Fali Norman, Uday Umesh Lalit and Abdul Nazeer struck down the practice on the grounds that it goes against the Shariat and the basic tenets of the Quran. In light of the judgement, The Quint is reposting this summary of the 6-day long arguments that took place in the apex court earlier this year.)

Commencing a historic hearing on a batch of six petitions and a suo moto PIL challenging the constitutional validity of triple talaq and nikah halala among Muslims, the Supreme Court said it would first determine whether the practice is fundamental to Islam.

Supreme Court: There are two-three things on our minds and the first is whether this (triple talaq) is fundamental to the religion (Islam). If it is fundamental to religion, possibly we may not be interfering. And the other aspect is whether triple talaq is sacramental and can be enforced as a Fundamental Right.

Additional Solicitor General Tushar Mehta: The Union of India is not on any side. We are on the side of gender justice, equality for women and dignity of women. Triple Talaq is against the dignity of women. Issue of gender justice is there. When the Union of India talks of gender justice and equality of women, then irrespective of the religion, it would also include triple talaq.

Amit Singh Chadha, who was appearing for Shayra Bano, one of the first petitioners in the matter, opened the arguments against the practice of triple talaq among Muslims.

Amit Singh Chadha, Counsel for Petitioner Shayra Bano: Muslim men have absolute right to triple talaq and women have to comply with the provision of the Dissolution of Muslim Marriages Act, 1939 Act, which says divorce granted by Muslim women can be contested by husbands up to the Supreme Court, but women have no legal recourse against triple talaq as they cannot question it. Men have untrammeled right to pronounce triple talaq, but women’s rights have been restricted.

Senior Advocate Indira Jaising, appearing for Bebak Collective, a Muslim organisation, said that in case of divorces being granted through extra judicial mechanism, there should be a judicial oversight with deal with the consequences.

Indira Jaising, Counsel for Petitioner, Bebak Collective: Triple Talaq is violative of the right to equality of Muslim women guaranteed under Articles 14 and 15 of the Constitution to the extent that a Muslim man exercised power to declare unilateral divorce, but the Muslim woman has no control over such unilateral, arbitrary, extra-judicial divorce and her marital status.

Former Union Minister and senior advocate Salman Khurshid, is assisting the court in interpreting the holy book of Quran.

Salman Khurshid, amicus curiae: Triple Talaq is a non-issue as it cannot take effect and considered to be complete without conciliation efforts between the couple. However, there is no adjudication to determine the validity of the grounds of talaq.

Supreme Court bench: Is the reconciliation after the pronouncement of triple talaq in one go codified?

Salman Khurshid, amicus curiae: No. If a man pronounces triple talaq even once and does not revoke it within the next three months, it constitutes valid irrevocable divorce.

Kapil Sibal, Counsel for All India Muslim Personal Law Board: Triple talaq is a non-issue as no prudent Muslim would wake up one fine morning and say ‘talaq, talaq, talaq’. Either the Parliament can enact a law or it should be left to the community itself to deal and the court should not interfere on the issue.

Day 2 of the hearing saw those against triple talaq making their representations before the Supreme Court.

JS Khehar, CJI or Supreme Court: There are schools of thought which say that triple talaq is legal, but it is the worst and not a desirable form of dissolution of marriages among Muslims.

Former Union Minister Arif Mohammad Khan: Triple Talaq is far from being fundamental and very far from being sacramental to Islam. It violates every good thing which Islam prescribes. What we are seeing in the form of triple talaq is similar to the pre-Islamic era practice where female infants were buried alive... Marriage is the only aspect which is extensively dealt in holy Quran that lays down the procedure for divorce and various schools of thought have distorted the tents of the holy book to their liking... Everything you need is in the Quran. If you need more, then look at the life of the Prophet and if you still need more, then use your own good sense... We can change the law, but not the habits of the society. Untouchability was banished by the Constitution, but it stays with us.

Ram Jethmalani: The right of triple talaq is available only to the husband and not the wife and it breaches Article 14 (Right to Equality) of the Constitution. There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent and avoidable. Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. It is settled proposition that a law can be made to improve the situation of women and not to deprive them of their rights.

Salman Khurshid: If thrice pronouncement of talaq is considered once, then 90% of the problem which is created by instant divorce in one sitting would be solved. If triple talaq is taken as only one talaq, then it would lose irrevocability and allow reconciliation efforts among couples during the three month iddat period.

Farha Faiz, Petitioner: Muslim clerics are running a parallel judicial system like the trial courts and the high courts and the clerics are forcing Muslims not to go to the courts. If you will not stop it, then a day will soon come when there will be such courts (run by Muslim clerics) in every nook and corner.

Resuming the hearing on Monday, 15 May, the Supreme Court made it clear that due to paucity of time, it will only deal with the issue of triple talaq and keep nikah halala and polygamy pending for now.

Attorney General Mukul Rohatgi continued to oppose triple talaq on the premise that it violated the fundamental rights of Muslim women.

Attorney General Mukul Rohatgi: Personal law is law, it will have to be tested under Articles 13, 14 and 15.

Articles 13 asserts the supremacy of the Indian Constitution. Article 14 and 15 provide for equality before the law and prohibit discrimination on the grounds of religion, race, caste, sex or place of birth.

Responding to the petitioner’s contention that triple talaq is not Islamic and is against the mandate of the Quran, Justice Kurian Joseph asked – “What if it is not part of personal law?”

“That your Lordships will have to decide”, Mukul Rohatgi responded.

Attorney General Mukul Rohatgi: Matters of personal law should be in conformity with the Constitution. As fas as Hindus are concerned, various steps were taken to bring personal law in conformity with the Constitution. As far as Muslims are concerned, only the Acts of 1937 and 1939 are there, and a small change after the Shah Bano judgement.

After the government made its submissions, Kapil Sibal began his arguments for the All India Muslim Personal Law Board.

Kapil Sibal, Counsel, All India Muslim Personal Law Board: The issue is not triple talaq, it is patriarchy and it is there in every religion. All patriarchal societies are discriminatory. Even many Hindu laws are discriminatory.

The headline of the day was the government’s offer to enact a new law to govern marriages and divorces among Muslims.

Attorney General Mukul Rohatgi: If the practice of instant divorce (triple talaq) is struck down by the court, then Centre will bring a law to regulate marriage and divorce among the Muslim community.

Speaking for the All India Muslim Personal Law Board, Kapil Sibal equated the issue of triple talaq with the belief that Lord Ram was born in Ayodhya.

Kapil Sibal, Counsel, All India Muslim Personal Law Board: If I have faith that Lord Rama was born at Ayodhya, then it’s a matter of faith and there is no question of constitutional morality. Triple talaq has been there since 637 AD. Who are we to say that this is un-Islamic. Muslims are practicing it for last 1,400 years. It is a matter of faith. Hence, there is no question of constitutional morality and equity,

Sibal was countering the arguments put forth by the opponents of triple talaq who have been arguing for the past two days, with the government also saying a new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce, including triple talaq, are struck down.

The AIMPLB counsel said the age-old practice was "part of my faith and you cannot determine what should be my faith. This is the question and this is the issue". He asked whether the court should decide the faith of over 16 crore people.

The Muslim body said despite the existence of laws on dowry prohibition and guardianship, Hindu customs were being allowed to remain, like dowry is prohibited but gifts are allowed. “When it comes to Hindu law, you protect all customs, but when it comes to Muslim, you start raising questions over customs. Like when it comes to Dowry Prohibition Act or Guardianship Act you follow customs and protect them,” he said.

Arguing for Jamat-ulema-i Hind, senior advocate Raju Ramachandran said that every citizen of India, whether male or female, has the option of being governed by the Special Marriage Act, 1954. In doing so, he argued they can opt out of personal law.

Raju Ramachandran, Counsel for Jamat-ulema-i Hind: When a person agrees to get married under his/her personal law, he or she is also making a conscious waiver of the right to be governed by the “secular non-religious” law or by a purely civil law. The consent of either party to a marriage is not just to marry a particular person, but to the particular law which will apply to the marriage i.e. whether it is personal law or enacted civil law. In such a situation, a person who consciously opts for the personal law, cannot complain that the personal law is unfavourable or discriminatory.

The Attorney General issued his rebuttal to the arguments made by Kapil Sibal on behalf of the All India Muslim Personal Law Board the day before.

Attorney General Mukul Rohatgi: The Centre is ready to take a leap forward and bring in legislation. This matter is not a majority vs minority. It’s a tussle within the religion for rights of women. It’s not 14,00 years of custom, but 1,400 years of deprivation.

On 18 May, the Supreme Court reserved its judgement on triple talaq after six days of continuous hearings on a batch of petitions challenging the constitutional validity of triple talaq. On the final day, the counsels of several aggrieved women petitioners and women’s rights organisations – including Anand Grover, Arif Mohammad Khan and Indira Jaising – demanded triple talaq be declared illegal.

Before concluding his arguments, Kapil Sibal told the Supreme Court that the All India Muslim Personal Law Board had decided to issue a circular to all qazis while finalising the nikahnama to advise husbands not to indulge in triple talaq unless under compelling circumstances.

This was in response to the court asking the AIMPLB to include in the marriage contract a provision enabling all Muslim women to say no to triple talaq.

Responding to the Supreme Court’s question on whether triple talaq was bad and sinful, Kapil Sibal said, “It may be bad, it may be sinful, but women accept it”. Interestingly, a large number of women lawyers appearing for aggrieved women petitioners protested loudly saying “No! No! No!”

(With inputs from PTI, Bar & Bench)