New Delhi: The Supreme Court today said it was keeping open for adjudication in the future the issues of polygamy and ‘nikah halala’ among Muslims as the Centre insisted deliberations on these aspects as well.
The observation was made when Attorney General (AG) Mukul Rohatgi, appearing for the Centre, said the issues of polygamy and ‘nikah halala’ were also part of the order of a two-judge bench which had referred to the Constitutional bench the three issues, including the practice of triple talaq among Muslims.
“The scope of referring had all the three issues that was divorce, nikah halala, polygamy. All these three issues are before this court by virtue of the reference order of the two- judge bench,” Rohatgi said.
A five-judge Constitution bench headed by Chief Justice J S Khehar said, “It may not be possible to deal with all the three issues in the limited time we have. We will keep them pending for future.”
The Centre’s assertion assumes significance in the backdrop of the remarks of the apex court that it will only deal with the issue of triple talaq that too if it was fundamental to Islam.
The AG asked the bench also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer to make it clear that the issues of polygamy and ‘nikah halala’ are still open and would be dealt by other bench in future.
“It will be dealt in future,” the bench clarified.
The bench is hearing a clutch of petitions challenging the practice of triple talaq among Muslims.
The Centre has resumed its arguments in the case today.
During the last hearing, the apex court had observed that triple talaq is the “worst” and “not a desirable” form of dissolution of marriage among the Muslims, even though there were schools of thought which called it “legal”.
The remark was made by the bench when senior lawyer Salman Khurshid referred to the various schools of thought and the stand of All India Muslim Personal Law Board (AIMPLB) that triple talaq was “abhorrent”, yet valid.
The day-long hearing on the matter last Friday also saw two veterans, jurist Ram Jethmalani and former Union Minister and Islamic scholar Arif Mohammad Khan, coming out all guns blazing against the practice of triple talaq.
While Jethmalani attacked the practice on various constitutional grounds including the right to equality and termed it “abhorrent”, Khan said it was akin to the pre- Islamic era practice of burying a female child alive in the Arabian region.
Khan had said the whole Shariat law has been distorted as “Shariat is the Holy Quran and not the opinion of these people (clerics). The Holy Quran considers the importance of family and it provides four steps before pronouncement of divorce.”
“Triple talaq is far from being fundamental and very far from being sacramental to Islam. It violates every good thing which Islam prescribes. What we are seeing in the form of triple talaq is similar to the pre-Islamic era practice where female infants were buried alive,” he had said.
Jethmalani had said “the right of triple talaq is available only to the husband and not to the wife and it breaches Article 14(Right to Equality) of the Constitution.”
He had said triple talaq was a discrimination on the ground of sex and this practice was abhorrent to the tenets of holy Quran and no amount of advocacy can save this “sinful” practice which is contrary to constitutional tenets.
How can a woman be allowed to become ex-wife only because her husband wants and this is “the highest kind of unconstitutional behaviour”, the noted jurist had said.
Khurshid, who is assisting the court in personal capacity, had said he himself found triple talaq “sinful” and anything which is sinful could not have been ordained by Islam. He also reiterated that triple talaq was a “non-issue” which does not require judicial scrutiny.
He had said the irrevocable nature of triple talaq can be negated if the three-time pronouncement of talaq in one go is considered one leaving the scope for reconciliation and re-union during the ‘iddat’ (waiting) period.
Referring to the prevalent practice in Islamic nations, he had said even if one says talaq thrice in a go, it was considered as one, thus negating irrevocability of divorce.
The bench had asked Khurshid if triple talaq was India- specific and what had led to its repeal in other countries.
Khurshid said whatever was happening in India now, might have happened in other countries, leading to the ban.
To this, the bench had said, “it is like death penalty which is abhorrent but permissible in the law of many countries and many have repealed it,” adding whether anything which is sinful be taken as prescribed by God and made a law by man.
When advocate Farha Faiz, a petitioner in the case, had started her arguments, the bench had said it was not concerned with personal facts.
She had said what Imams and clerics say is not important, the only thing is that the holy Quran says everything.
“The Holy Quran is in mandatory language. It is not an advise. If we are adopting one procedure for marriage, why can’t we have one procedure for talaq also?” she had said.
To this, the bench had said, “we cannot do that. We cannot wipe out (the difference between) Shias or Shunnis”.
Faiz also alleged that the Muslim clerics were running a parallel judicial system like the trial courts and the high courts and the clerics were forcing Muslims not to go to the courts.
“Point taken, you have raised a very valid and good point,” the bench had said.
The apex court has fixed a six-day schedule for hearing in which three days would be available for those challenging triple talaq and three days for those defending it.