Supreme Court won’t review polygamy, says it will only judge triple talaq’s Constitutional validity

The Supreme Court on Thursday clarified that it will not hear pleas challenging polygamy, but will only pass its verdict on the Constitutional validity of triple talaq and nikal halala. A Constitution bench of the apex court has begun to hear seven petitions, including five separate writ petitions filed by Muslim women, which challenge the controversial Islamic practice.

The court:

As the five-judge bench began to hear the first petition – filed by one Shayara Bano whose husband had divorced her through triple talaq in October 2016 after 15 years of marriage – it made it clear that each petitioner will have two days to put forth their arguments and one day to present their rebuttal.

During the hearing, the judges observed that 22 Muslim-majority countries had abolished triple talaq by passing laws, and “that is the way to do it”. It said the bench will examine whether these [triple talaq and nikah halala] are, indeed, integral to Islam and whether they are an “enforceable” fundamental right to practice religion by Muslims, NDTV reported.

The opposition:

Senior advocate and Congress leader Kapil Sibal, who is appearing for NGO All India Muslim Personal Law Board, said during the hearing that triple talaq was a subject of faith and a personal law, which meant its was “outside the ambit of judicial review”. “Parliament can make laws and codify triple talaq, but courts cannot get into it,” he argued, according to CNN-News18.

The court, however, appeared to reject his statement, saying that the Islamic practice appeared to be related to the fundamental rights of Muslim women, prima facie.

The Centre’s stand:

During Thursday’s hearing, the government reiterated its opinion on the controversy that it believed triple talaq was unconstitutional. However, it clarified that it would not take “any side” in this case, but will only fight for “gender justice, equality and the dignity of women”.

The bench:

The five judges part of the Constitution bench all belong to different faiths. However, there are no women on it.

The bench is headed by Chief Justice of India JS Khehar and comprises justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer. Former Union minister Salman Khurshid will help the panel come to its verdict as an amicus curae, and Attorney General Mukul Rohatgi is representing the Centre.

The controversy:

Muslim women and rights groups have been fighting to have triple talaq abolished in India. Many have maintained that the Quran did not recognise talaq-e-bidat (instantaneous divorce) as a form of divorce, and that it was a grave violation of their rights.

Their case has only been strengthened with reports of husbands divorcing their wives over the phone by uttering “talaq” three times or through WhatsApp messages, letters and postcards .

The Muslim personal law board, however, has maintained that triple talaq is an inherent part of the religion and does not discriminate against women. It has also opposed the court’s intervention in the matter.