Who are we to say triple talaq is un-Islamic?

Posted May 18, 2017

"This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts", Rohatgi said, adding that the practice of triple talaq is a tussle between the "haves and have-nots" inside the community.

11 April: The Centre has told the SC that the practices of triple talaq, nikah halala and polygamy impact the social status and dignity of Muslim women and deny them fundamental rights guaranteed by the Constitution.

"That Ram was born in Ayodhya is a matter of faith, not Constitutional morality".

"Triple talaq is going on since 1400 years, how can you say it is unconstitutional?" The answer is "yes". The bench is headed by CJI Khehar and also comprises Justices Kurien Joseph, UU Lalit, RF Nariman and Abdul Nazeer.

The observations were made when Khurshid was advancing rejoinder arguments by emphasising that the practice was sinful and bad in theology which can not be good in law. "But if there is a clash between your personal law practices and the fundamental rights of equality and dignity, your personal law practices should give way", Mr. Rohatgi replied. "What is not fully moral, it can not be legal", the bench observed. "We will only look at triple talaq and whether it is constitutional and not go into issues such as polygamy", a five-judge Constitution bench said.

Justice Khehar said that rather than the Supreme Court, the government should initiate legislation to drive the perceived hegemony away. "But do not attempt to effect changes forcibly through the guile of Constitution", Sibal said. We have no other option. "On the contrary, it is deprecated by Islam", Chadha told the court. As there is no valid talaq contemplated under Muslim law, the petitioner is not entitled to get the declaration as prayed for, the judge held.

They were incensed that the government had applied a "uniform" law to an area they believe should be governed by religious law - and they were anxious it would further erase their rights as a religious minority.

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"Testing the validity of customs and practices is a slippery slope", Sibal said.

The apex court also wanted to know from the AIMPLB if it was possible for the board whether their (SC) advisory will be followed by the Qazis at the ground level. India is a patriarchal society and that women have to wait for days and years in courts to solve the problems relating to divorce.

"Want to fight for equality of women and gender justice. This will not serve the objective as a Muslim man can give divorce instantaneously", he said.

That the bride has opted out of triple talaq would be recorded in the Nikaah Nama, the court was told.

"There is a little difference in my and personal law board's opinion", he said. "The holy Quran considers the importance of family and it provides four steps before pronouncement of divorce". "Hence, there was no question of constitutional morality", said former Union law minister and senior advocate Kapil Sibal, who represented AIMPLB. "What we say is court is not the forum to take a decision".

He further argued that even under the Constitution's Article 25 which guarantees right to propagate and practice religion, core religious values were subject to part III of the Constitution spelling out the fundamental rights.

"How will you (court) set it aside?" It is high time the Muslim Personal Law has to be brought clear rule for this evil. "If the law does not permit anybody to do something, it can be tested", he said.