Plea challenging triple talaq, nikah halala & polygamy referred to constitutional bench; all you need to know

Aadil Ikram Zaki Iqbal
The top court will be hearing a clutch of petitions demanding a ban on the triple talaq practice, which involves the husband repeating the word 'talaq' three times to divorce his wife.

New Delhi, Mar 30: Referring the plea challenging Muslim’s practice of triple talaq, nikah halala and polygamy to constitutional bench, the Supreme Court on Thursday said it will hear the matter during the summer vacation. A bench of judges comprising Chief Justice J S Khehar and Justice D Y Chandrachud said a five-judge constitution bench will hear the matter of triple talaq, nikah halala and polygamy in detail, saying the issues are attached with sentiments. The constitution bench of the Supreme Court will begin hearing from May 11.

The initial hearings on plea challenging triple talaq, nikah halala and polygamy will would take place on May 11 and 12. The detailed hearing will then continue from May 15 till 19. The apex court also said they are ready to hear the plea even on Saturday and Sunday if the Centre cooperates. The Chief Justice J S Khehar insisted that for resolving key matters like triple talaq early everyone needed to work together. The top court will be hearing a clutch of petitions demanding a ban on the triple talaq practice, which involves the husband repeating the word ‘talaq’ three times to divorce his wife.

The angry Supreme Court:

“Whenever we say vacations, everyone wants it in the beginning so that they can go away later in the vacation. I am ready to work, I worked during the last two vacations, I am ready to do that even now,” said CJI Khehar. On the time to be taken in the hearing of triple talaq, the Chief Justice Khehar told the lawyers to draw a time frame for the arguments, saying that if such a time frame could be set during the hearing of the challenge to the National Judicial Appointments Commission (NJAC) Act, why not in this matter. “If time frame can be fixed in NJAC, then why not in this case,” Chief Justice Khehar asked the lawyers.

The Supreme Court expressed concern over the delay in matters like triple talaq that are “issue of grave importance”. Reacting to the rumblings amongst the lawyers after he said that there would be three constitution benches that would hold hearing on three important matters — triple talaq, Whatsapp and on Assam migrants, the Chief Justice said “If we don’t hear the matter now, it will be pending for years, if you (Centre) do not want to co operate let us know. But then don’t come blaming us that the matter has been pending for so long,” the Chief Justice reportedly said.

Argument between Kapil Sibal and Supreme Court bench:

Senior counsel Kapil Sibal made it clear that he was not comfortable with the simultaneous hearing by three constitution benches, suggesting that one bench could follow the other. “I did not know three benches will sit together. It should be one after the other,” Sibal told the court, adding that he was withdrawing his consent to the hearing of the Whatsapp case. “You can withdraw from everything,” the bench told him. A hearing on a matter during summer vacation takes place only when lawyers appearing for it give their consent.

Modi government opposes Triple Talaq:

Dubbing the practice of triple talaq as unconstitutional, Attorney General Mukul Rohatgi, who represents the government in the Supreme Court, said the respective divorce is not in accord with right to life and dignity. “The government has filed an affidavit opposing this practice saying it is unconstitutional and is not in accord with right to dignity and right to life. Let us see what happens,” said Rohatgi.

Muslim body on Triple Talaq:

Earlier this week, the All India Muslim Personal Law Board (AIMPLB) said that the pleas filed in the top court challenging the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims were not maintainable as the issues fell outside the realm of the secular judiciary. The Muslim body has claimed that any order against Triple Talaq would be an infringement on their right to follow and profess any religion. The Board had also said that the validity of Mohammedan Law, founded essentially on the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution.

Law Ministry of Triple Talaq:

The Ministry of Law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court. The apex court had taken suo motu cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husband.