“It is a method of terminating marriage contract which lies only with men but not with women, said Jethmalani
The 5-judge Constitution bench hearing petitions challenging triple talaq today posed pointed questions to senior counsel Salman Khurshid who is assisting the court.
When Khurshid submitted that Islam considered instant triple talaq "sinful but valid in law", Chief Justice J S Khehar asked " can what is sinful in the eyes of God be lawful?. If God considers it a sin it cant be legal. Can it be? We are just asking".
Justice Kurian Joseph repeated the same question rephrasing it a bit asking: "is something which is Islamically abhorrent, sinful or under any religious law it is distasteful, can it be validated by law made by man?"
Khurshid replied in the negative saying " it cannot be ".
The CJI chipped in again to say " its like...somewhat the same situation...death penalty is wrong and sinful in many countries but it is legal".
While hearing Khurshid, the bench also observed that triple talaq mode of divorce was the worst and undesirable form of dissolution of marriages among Muslims.
“There are school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims”, the bench said when Khurshid, told the bench that it is not an issue where judicial scrutiny is required and moreover women have the right to say 'no' to triple talaq by stipulating a condition to this effect in 'nikahnama' (marriage contract)
The court has also asked Khurshid to prepare a list of Islamic and non-Islamic countries where triple talaq has been banned.
The bench was then informed that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia do not allow triple talaq as a form to dissolve marriages.
He also suggested that pronouncement of triple talaq in one sitting should also be considered as pronouncement of talaq one time.
Senior Advocate Ram Jethmalani, appearing for Forum for Awareness of National Security, argued that the practice of triple talaq violates Article 14 (right to equality) of Constitution.
"It is a method of terminating marriage contract which lies only with men but not with women," Jethmalani said.
He also submitted that triple talaq violates Article 15 since it is it discriminates on the basis of sex.
This method is abhorrent to Holy Quran and Prophet. It is not only sinful but also repugnant on the ground of sex
On the essence of the Holy Quran , he said ‘whoever travels a path in search of knowledge, Allah will make easy his path to paradise’.
"I am a Hindu but a student of Bible and Quran. I consider the Prophet of Islam greater than the prophets of other religion”
“Triple talaq is inherently unequal to women. The practice is abhorrent to God and no amount of advocacy by man can cure it”.
Khurshid replied that it is not practiced outside prompting the CJI to ask "Oh so is it India-specific?"
AIMPLB not the final word
Farah Faiz, a woman lawyer practicing in the supreme court, also one of the petitioner argued that Quran lays down the procedure for divorce with great clarity and one don’t have to depend on scholars, mullahs and qazis who also run parallel courts.
Faiz contended that god made us here as humans not as Sunnis, Shias, Hanafis or Malikis.
In her written statement she pleaded with the court not to accept All India Muslim Personal Law Board’s support to the practice and its contentions as the “final word”.
“AIMPLB is only a registered society and what its members say cannot be taken as a final word. They have self-drafted aims and objectives. They have no right to decide on the personal laws of the community. They are not the guardians of the Muslims in this country,” Farah Faiz, president, Rashtrawadi Muslim Mahila Sangh, said.
Slamming the affidavit filed by the AIMPLB which stated that the Supreme Court cannot interfere with the personal laws of religions, Faiz said: “The Supreme Court is the actual guardian of the constitution. If they cannot interfere when gross violation of laws and individual rights is happening in the society, who can?”
She added: “The sharia courts and Qazis supported by the AIMPLB do not allow women to enforce their rights. The board is also trying to give a religious colour to the debate on triple talaq by terming it a practice prescribed by the Quran.”
Framing issues, the CJI led bench at the outset yesterday said three important things
1) We will examine whether triple talaq is fundemental to Muslim religion?
2)If there is an enforceable right?
3)We will not go into polygamy and Nikah halala and only confine ourselves to examining constitutional validity of triple talaq.
The bench had made it clear that it was not dealing with the issue of Uniform Civil Code (UCC), which is currently being examined by the Law Commission of India.
Court Report 12/05/2017 (from Order)
Mr. Salman Khurshid, learned senior counsel representing 7 the impleaded respondent in Writ Petition(C) No. 118/2016 started his submissions at 10.40 a.m., and concluded at 12.15 p.m.
Thereafter, Mr. Ram Jethmalani, learned senior counsel representing the intervenor in I.A.No.36/2017 made his submissions till 12:50 p.m.
After that, Ms.Nitya Ramakrishnan, learned counsel representing respondent No.11 in WP(C)No.118/2016 made her submissions upto 1.00 P.M., and again made her submissions from 2:05 p.m. to 2:35 p.m. Then, Ms. Farha Faiz, learned counsel representing the intervenor in I.A.No.8/2016 in SMW(C)No.2/2015, made her submissions upto 3.00 P.M. followed by Mr.Arif Ahmad Khan, learned senior counsel representing the intervenor in I.A.No.17/2017 in WP(C)No.118/2016, who made his submissions upto 3.25 p.m. Thereafter, Mr.V.Shekhar, learned senior counsel representing the intervenor in I.A.No.19/2016 in SMW(C)No.2/2015 addressed the Court upto 3.40 p.m. Dr.Chandra Rajan, learned counsel representing the intervenor in I.A.No.17/2017 in WP(C)No.118/2016, Mr.Ajit Wagh, learned counsel representing the intervenor in I.A.No.28/17 in WP(C)No.118/2016 and Mr.Ajmal Khan, learned counsel representing the intervenor in I.A.No.21/2016 in SMW(C)No.2/2015 also addressed the Court for a while. The matter remained part-heard.
Read the Written Submission by Shayaro Bano and Order here.