New Delhi: The Supreme Court will on Thursday start hearing a set of petitions challenging the practice of triple talaq, ‘nikah halala’ and polygamy under the Muslim personal law.
The five-judge Constitution bench which will hear the case comprises four minority judges – Chief Justice JS Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Fali Nariman (Parsi), Justice Abdul Nazeer (Muslim) and Justice UU Lalit.
The case hearing gains more significance now as the Allahabad High Court on May 9 held that the practice of triple talaq is unconstitutional and this case will also be used by the petitioners.
The Allahabad HC has held that the human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights. It also stated that all citizens, including Muslim women, have fundamental rights under Articles 14, 15 and 21 of the Constitution.
This entire case had its genesis in Shayara Bano’s plea in the apex court under Article 32 of the Constitution stating that her fundamental rights stand violated with such a practice. It was after this that other petitions and intervening applications were tagged along.
The apex court had earlier stated that it was an urgent matter and will now hear the matter at a stretch from May 11 to May 19, including weekends.
When the court had asked the parties to reply with questions which the court should ponder upon during the hearings, the Centre had submitted four key questions:
1. Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are protected under Article 25(1) of the Constitution of India?
2. Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India?
3. Whether personal law is a law under Article 13 of the Constitution?
4. Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are compatible with India’s obligations under international treaties and covenants to which India is a signatory?
The case will also witness submissions by amicus curiae and senior advocate Salman Khurshid who will be assisting the bench on the key constitutional questions.
However, on March 27, the All India Muslim Personal Law Board had submitted to the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary. AIMPLB had also contested that there was a need to exercise “judicial restraint” before delving into the constitutional interpretation of Muslim personal law issues.
The other group, Jamiat Ulema-I-Hind, has also started a campaign just a few days before the SC hearing trying to disseminate information among fellow Muslims to teach them “the correct procedure of divorce in Islam”.
But the group had maintained that if a verbal triple talaq is given even in a fit of anger, it will be completely justified and “cannot be nullified”.
As the bench also gears up to determine certain key constitutional questions, AIMPLB has also written to the Law Commission on May 4 stating that Muslims were “satisfied with Islamic law and it did not want any change.”
It had also recently issued a code of conduct to regularise divorces among Muslims according to the teachings of Islam.
It remains to be seen, that after the famed Shah Bano case on April 23, 1985, where the Supreme Court for the first time ventured into the territory of Muslim Personal Law, will it again interpret the law for the Muslims to protect rights of women, or will the personal laws of religious communities be considered sacrosanct.
The hearing is going to have far-reaching impact not only for Muslim women but also for personal laws and individual rights in general.