The petitioners highlighted the plight faced by Muslim women on account of arbitrary divorces. Credit: PTI
New Delhi: The Supreme Court on Wednesday decided to examine the validity of the triple talaq system which enables Muslim men to unilaterally exercise the power of divorce. The court said it would examine to what extent it could interfere with Muslim personal laws, if they were found to violate the fundamental rights of citizens as enshrined in the constitution.
A bench of justices T.S. Thakur and A.M. Kanwilkar heard a batch of petitions filed by Muslim Women’s Quest for Equality and others, that sought a declaration that triple talaq was invalid and unconstitutional. Senior counsels Anand Grover, Indira Jaising, Balaji Srinivasan and others submitted that earlier judgments that gave the right to Muslim men to divorce their wives through triple talaq should be revisited. Jaising pointed out that the triple talaq system was un-Islamic even under Muslim personal law.
Advocate Farha Faiz, president of the Rashtrawadi Muslim Mahila Sangh, questioned All India Muslim Personal Law Board’s (AIMPLB) in fatwas to Muslim women and making decisions on their rights. She said that the AIMPLB was successfully governing the community giving a fake impression that Muslim personal laws were made by it. She wanted a direction from the court to restrain the board and the media from debating the triple talaq issue.
Chief Justice of India, Thakur, told the counsel “this is an important issue concerning the lives of large number of Muslim population and divergent views are possible. However, we will not be influenced by television debates.” He asked the counsel to file their responses in six weeks. Thakur said that depending upon the nature of arguments, he would decide on posting the matter for adjudication by a larger bench.
The petitioners highlighted the plight of Muslim women in the country because of arbitrary divorces without due intervention of courts. They said Muslim women were thrown out of their homes causing trauma for them and their children.
The petitioners said that the triple talaq system was an infringement and violation of the fundamental rights of equality guaranteed under Article 14 and 21 of the constitution. They said that under the principle of law a person could not be a judge of his own cause. They said triple talaq was clearly opposed to public policy since Muslim men were allowed to unilaterally decide to put an end to their marriages.
The petitioners said that only through mandatory granting of divorce with due intervention of courts, established under law, would protect the interests of both parties in resolving their marital disputes.
The apex court in October 2015, in a suo motu writ petition, had decided to examine various issues on the ground that Muslim personal law is discriminatory to women. It is said it would examine whether practices under Muslim personal law regarding marriage, divorce and maintenance were violative of fundamental rights of the constitution.
The Jamiat Ulama-i-Hind, an organisation working for the welfare of Muslims, said that the apex court had on earlier occasions examined various issues regarding Muslim personal law – the practice of polygamy, divorce without resorting to judicial process of courts, whether the mere fact that a Muslim husband takes more than one wife is an act of cruelty – and had declined to entertain these issues stating that these were matters wholly involving issues of state policies with which the court would not ordinarily have any concern.
It wanted the apex court to keep off from deciding these issues as these were matters which were to be dealt with by the legislature.The Jamiat Ulama-i-Hind is of the opinion that since Muslim law is founded essentially on the Quran, it was not within the purview of the expression “laws in force” as mentioned in Article 13 of the constitution and hence its validity could not be tested on a challenge based on Part III (fundamental rights) of the constitution. In view of such clear provisions, if the court frames fresh provisions, it will amount to judicial legislation and will be violative of the doctrine of separation of powers, it said.