New Delhi: The Supreme Court on Friday said the practice of triple talaq was the "worst" and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as "legal".
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," a five-judge constitution bench, headed by Chief Justice J S Khehar, said on the second day of continued hearing on the matter.
The observation came when former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, 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 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.
Senior advocate Ram Jethmalani, appearing for one of the victims, was blunt in his arguments and assailed the practice of triple talaq on various constitutional grounds including the Right to Equality.
"The right of triple talaq is available only to the husband and not to the wife and it breaches the Article 14 (Right to Equality) of the Constitution," Jethmalani said.
"There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent, and hence, avoidable," he said.
"Triple talaq makes a distinction on the ground of sex and this method is abhorrent to the tenets of holy Quran and no amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions," he added.
No law can allow a wife to become an ex-wife "at the fancy of the husband" and it is "the highest kind unconstitutional behaviour", Jethmalani said.
The high profile hearing on a batch of petitions challenging the constitutional validity of triple talaq will continue after the lunch break.
On Thursday, the top court had made it clear that it will decide only the legality of the “triple talaq” form of divorce and whether it violates the fundamental rights of Muslim women, but will not go into the issue of polygamy.
A five-member bench comprising Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohinton Nariman, Uday Lalit and Abdul Nazeer at the outset told the counsel: “If we come to the conclusion that triple talaq is part of the fundamental right to religion, we would not interfere. We will also determine whether triple talaq is sacramental and whether it can be enforced as a fundamental right. We will not go into the issue of polygamy.”
Senior counsel Kapil Sibal, appearing for the All India Muslim Personal Law Board, in his preliminary remarks said triple talaq falls under the AIMPLB and therefore the court should not intervene. He said: “The Central government makes rules but, in my opinion, the apex court should not interfere with it.”
The day-long hearing saw additional solicitors-general Tushar Mehta and Pinky Anand telling the bench that the Centre was not taking sides and only assisting the court on the issues of gender justice, equality for women and dignity of women. “The Union of India is not on any side. We are on (the side of) gender justice, equality for women and dignity of women. Triple talaq is against the dignity of women. Issue of gender justice is there,” Mr Mehta said.
Relentless debates on the validity and plausibility of this practice were instigated soon after one petitioner, Shayara Banu, challenged the Muslim personal law over instantaneous application of triple talaq (talaq-e-bidat), polygamy and nikah-halala.
Supporting the stance of ending the practice of triple talaq, the Allahabad High Court had earlier asserted that the rights of any person, including Muslim women, cannot be violated in the name of 'personal law'.
In December last year, the Allahabad High Court termed the Islamic practice of divorcing a woman by uttering the word "talaq" thrice "unconstitutional".
The court further observed that triple talaq sanctioned under Muslim Personal Law that governs marriage, property and divorce violates the rights of Muslim women.
"Triple talaq is unconstitutional. It violates the rights of Muslim women," ruled the high court, adding that no personal law board was above the Constitution.
