Supreme Court: Can women have no triple talaq' clause in nikah?

New Delhi: Even as the All India Muslim Personal Law Board asserted on Wednesday that triple talaq was dying and the court should keep its “hands off” from deciding the issue, the Supreme Court asked the AIMPLB whether a woman can be given the option of saying “no” to the contentious practice at the time of nikahnama (Islamic marriage contract).

Chief Justice J.S. Khehar heading the bench suggested to senior advocate Kapil Sibal, representing the AIMPLB, if all kazis can be asked to include this condition at the time of marriage. The CJI told the counsel, “Is it possible that Muslim women are given an option to say no to triple talaq at the time of execution of nikahnama. Don’t infer anything from our suggestion.”

Mr Sibal welcomed the suggestion and said there were questions if the kazis would be bound by the AIMPLB’s directive to give brides the choice. He said the AIMPLB would respond to this suggestion after talking to all its members.

Mr Sibal drew the court’s attention to a resolution passed by the AIMPLB on April 14 this year that called triple talaq a sin and asked the community to boycott the person who invoked it.

He said, “When the court takes up the issue of triple talaq suo motu, it sends a wrong impression as if every member of the community wakes up in the morning and does it (divorces his wife).”

Cautioning the court from deciding the issue, Mr Sibal said it could lead to a backlash in the Muslim community, which might see its rights being infringed upon and therefore resort to supporting practices like polygamy and oral divorce. As it is, triple talaq is practiced by a “minuscule portion” of the Muslim community, he said.

Mr Sibal compared the Muslim community to small birds and said the community’s nests must have the Supreme Court’s protection. The Muslim community’s faith in the Supreme Curt for the last 67 years is fundamental and that it is this faith that makes the country vibrant, he said. He conceded towards the end of his arguments that triple talaq was admittedly an undesirable practice but the community should take the first step to stop it.

Quoting a survey report, Mr Sibal said instant triple talaq was not a popular way to end a marriage, he said of 371 divorces reported, only one person used triple talaq and such cases accounted for only 0.44% of divorces among Muslims.

Arguing for the Jamiat-Ulema-e-Hind, senior advocate Raju Ramachandran argued, without prejudice to the submission that constitutional validity of personal law cannot be gone into, that triple talaq was considered a valid form of divorce by four out of five Sunni schools. The judiciary cannot go into the wisdom of these religious schools and dictate to a religious community what personal law practices and norms to follow.

When senior counsel V. Giri, appearing for another front, said triple talaq was fundamental and essential part of religion, Justice Rohinton Nariman wondered how this practice could be “fundamental” to Islam when the religious and scholarly texts themselves called it the “worst” form of divorce and “sinful”. The counsel said that triple talaq was part of religion and protected by Article 25 of the Constitution.

Justice Nariman said “talaq may be essential, but it is a big step to claim that instant triple talaq is essential to religion”.

Another lawyer, Ajmal Khan, submitted that triple talaq was an essential and integral part of religion. He said various texts of scholars have said that this form had been prevalent for centuries and it was an accepted practice and the court should not interfere in the personal laws ordained by the Prophet through his teachings.

The CJI told the counsel “every Friday you offer namaz (prayer) in mosques and say triple talaq is a sin and is bad. If you say that instantaneous triple talaq is an innovation, then it is bad. How can you then say it is an integral part of religion?” The arguments will conclude on Thursday, when the verdict will be reserved.