By Krishnadas Rajagopal
May 12, 2017
‘No forum will be left for Muslim men if it is declared invalid’
The Supreme Court on Thursday asked where Muslim men will go for divorce if triple Talaq is declared unconstitutional, even as the Centre submitted that it is against all forms of triple Talaq.
“In case we hold in your (government’s) favour that all forms of triple Talaq is bad, what is the procedure for a husband to seek divorce?” the Supreme Court asked Additional Solicitor General Tushar Mehta, who appeared for the Centre.
The court was addressing the point that a vacuum may arise if triple Talaq is declared invalid, leaving Muslim men no forum to go to for a divorce. Presently, Muslim men do not have to move courts to get a divorce. They can instantly get divorce unlike a Muslim woman who has to approach a court under Section 2 of The Dissolution of Muslim Marriages Act of 1939. The 1939 statute gives specific grounds under which a woman can seek divorce.
The exchange came towards the end of the first day of hearing before a five-judge Bench of Chief Justice of India J.S. Khehar, Justices Kurian Joseph, Rohinton Nariman, U.U. Lalit and S. Abdul Nazeer on petitions by Muslim women and organisations challenging the constitutionality of triple Talaq. Leading them is a suo motu PIL petition from the Supreme Court itself on the question whether personal law practices violate the dignity of Muslim women.
‘Civil Death for Women’
The question came from Justice Lalit when senior advocate Indira Jaising termed triple Talaq an act which is “extra-judicial, unilateral, final and done without giving any reasons”. Ms. Jaising compared triple Talaq to a “civil death” for women.
“According to you, all forms of triple Talaq are bad. Then where do men go for divorce?” Justice Lalit asked. Ms. Jaising said Parliament should make a law to fill the vacuum. To this, Justice Kurian proposed that, till the Parliament makes its law, the 1939 Act could be made applicable to Muslim men also.
In short, such a mechanism, if adopted would bring divorce for Muslim men under a statutory law and make the 1939 Act gender-neutral.
The court, at the outset of the day-long hearing, said it intended to restrict itself to considering the constitutionality of triple Talaq and not extend to polygamy.
The Bench said it would examine whether triple Talaq is a fundamental or essential part of the religion. And if so, it would not interfere any further.
But Mr. Mehta did not agree with the court's observations, and intervened to say that Attorney-General Mukul Rohatgi would address the court regarding polygamy.
Mr. Mehta reiterated that Muslim women, merely by virtue of their religious identity and religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths. The government sought the Supreme Court to answer “whether in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution”.
Arguing for Shayara Bano, a woman who was treated cruelly and later divorced by her husband by means of triple Talaq, senior advocate A.S. Chadha and advocate Balaji Srinivasan submitted how “Muslim men have an unqualified, untrammeled, unguided, untested and absolute right” to dissolve marriage by simply uttering 'Talaq, Talaq, Talaq'.
“On the other hand, Muslim women, since 1939, have to show cogent, relevant and reasonable grounds as enumerated in the statute,” Mr. Chadha submitted.
He added that “triple Talaq is not a fundamental part of Islam and the evidence lies in the fact that various Islamic countries including Pakistan, Afghanistan and Bangladesh have done away with it”. Ms. Jaising added that the process of divorce in these countries is always done under the judicial eye.
At this point, senior advocate Kapil Sibal intervened to point out that these countries had done away with triple Talaq through legislation and not through the courts.
In her detailed arguments, Ms. Jaising questioned why “the Constitution stops where the personal law begins”.
“I am not here to argue that Muslim law is better than Christian law or Hindu law is better than Muslim law. I am should not these personal law practices, whether it be Muslim, Christian, Parsi, Sikh or Hindu, stand the scrutiny of the fundamental rights under the Constitution?” Ms. Jaising asked.
She questioned why the courts were not giving a authoritative decision on whether personal laws fell under the ambit of Article 13 of the Constitution or not. In case this Bench declares Muslim personal law to fall under Article 13, the Muslim personal law practices could be tested in courts on whether they violate the sacrosanct fundamental rights of women under the Constitution.
Ms. Jaising asked why the 1950s judgment of the Bombay High Court in State of Bombay versus Narasu Appa Mali continues to hold fort. The Narasu Appa Mali judgment had held that personal law is not ‘law’ under Article 13. The court had observed that reformation of personal laws is best left to the legislature as "chosen representatives of the people" and not the judiciary. It said the phrase ‘customs and usages’ in Article 13 does not include personal laws of various religions.