This story is from May 11, 2017

Protesters against triple talaq. (Photo: PTI)

Islamic practice of 'triple talaq'

we would not interfere

NEW DELHI: As a historic hearing began today at the Supreme Court on the, the top court started proceedings by making it very clear that it's only going to rule on the constitutional validity of oral divorce and not on polygamy The top court said it will determine whether triple talaq is part of the fundamental right to religion of the Muslim community."If we come to a conclusion that triple talaq is part of (the) fundamental right to religion,," the apex court said."We will also determine whether triple talaq is sacramental and whether it can be enforced as a fundamental right," the court added.The highest court of the land has fixed a six-day schedule for the hearing; three days for those challenging triple talaq and three days for those defending it.The lead petition in the case is titled "Quest for Equality vs. Jamiat Ulama-i-Hind". Tagged with the case are six petitions by Khuran Sunnath Society, Shayara Bano , Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri. Read this story in Bengali In Video: Triple talaq: SC begins hearing, refuses to examine polygamy</s>New Delhi (AFP) – India’s highest court Thursday began considering the legality of a controversial Islamic practice that allows men to leave their wives instantly by reciting the word “divorce” three times.

“Triple talaq” is legal for Muslims under the Indian constitution but it has come under scrutiny with reports emerging of men divorcing their wives via letters, Skype and WhatsApp messages.

Several women divorced by triple talaq have petitioned the Supreme Court to overturn the practice.

“We told the court that the practice has no basis in the law or in the Koran,” said Balaji Srinivasan, a lawyer for Shayara Bano whose husband split from her by writing “divorce” three times on a piece of paper.

The practice has been challenged in lower courts but this collective appeal is the first time India’s Supreme Court will consider whether triple talaq is fundamental to Islam and therefore legally binding.

A panel of five judges from India’s major faiths — Hinduism, Christianity, Islam, Sikhism and Zoroastrianism — will consider the matter and is expected to deliver a verdict next week.

India allows religious institutions to govern matters of marriage, divorce and property inheritance in the multi-faith nation, enshrining triple talaq as a legal avenue for its 180 million Muslims to end unions.

But the right-wing Hindu nationalist government of Prime Minister Narendra Modi has backed the petitioners in this landmark case, declaring triple talaq unconstitutional and discriminatory against women.

Modi’s ruling Bharatiya Janata Party has long pushed for a uniform civil code to be enforced but the issue remains highly sensitive in India, where religious tensions often lead to violence.

Many Muslim groups have been critical of any attempts to meddle with religious laws, arguing it curtails their constitutional right to govern their affairs.

The All India Muslim Personal Law Board (AIMPLB), a grouping of Islamic organisations, told the court they opposed any efforts to change the law.

“Triple talaq is reprehensible and sinful way to divorce, and we have spoken against it, but we want the court and government to stay off,” AIMPLB’s convener Zafaryab Jilani told AFP.

Some Islamic scholars say there is no mention of triple talaq in the Koran, which instead details a different process for divorce based on mediation.

 Read more at http://www.thestar.com.my/news/regional/2017/05/12/india-top-court-examines-islamic-instant-divorce/#DhZGYpXbGIui2Wl4.99</s>NEW DELHI
• India's Supreme Court yesterday formally opened a hearing on the controversial Islamic practice of instant divorce.

The country's top court said it will determine whether the practice, known as triple talaq, is part of the fundamental right to religion of the Muslim community.

"If we come to a conclusion that triple talaq is part of (the) fundamental right to religion, we will not interfere," the apex court said, according to the Times of India. "We will also determine whether triple talaq is sacramental and whether it can be enforced as a fundamental right."

India is one of a handful of countries in the world where a Muslim man can divorce his wife in minutes by saying the word talaq (divorce) three times. Activists say the practice discriminates against women.

Prime Minister Narendra Modi has thrown his weight behind triple talaq reform, reported the Hindustan Times, saying it was his administration's duty to ensure the rights of Muslim women were upheld.

Many Muslim groups, however, oppose the court's intervention in their religious matters. A proposal by the government to replace this form of oral divorce, they argued, would discriminate against them.

According to the BBC, the opposing sides have been given three days each to argue their cases before a multi-faith bench of judges: a Hindu, a Sikh, a Christian, a Zoroastrian and a Muslim. The hearing will end by May 19, and a judgment on the constitutional validity of triple talaq is expected to be delivered in the coming weeks.

India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance, reported the Hindustan Times. While the Hindu law overhaul began in the 1950s, activists have long argued that Muslim personal law remains mostly unchanged.</s>India’s top court on Thursday began examining whether it was legal for a Muslim man to dump his wife by saying “I divorce you” three times, raising hopes among women campaigners of a long-awaited end to the ‘quickie’ divorce.

The practice of ‘triple talaq’ is banned in most Muslim countries but allowed under India’s constitution that lets most religions, including Muslims – the biggest religious minority – regulate matters like marriage and divorce through civil codes.

But the Islamic instant divorce has come under increasing criticism as unconstitutional by violating the right to equality. Reports have emerged of men divorcing their wives via Skype, WhatsApp and text message, leaving families destitute.

Muslim women in India have demanded a ban to triple talaq with several women petitioning the supreme court to overturn the practice.

At the hearing on Thursday, five multi-faith judges of the supreme court started to determine whether triple talaq is part of a fundamental religious right for Muslims.

“If we come to a conclusion that triple talaq is part of (the) fundamental right to religion, we would not interfere,” the judges were quoted as saying by The Times of India.

Local media said the supreme court has set aside six days for the hearing – half for those challenging triple talaq and half in defence – with the hearing expected to end by May 19.

The national Law Commission last year sought public views on whether to abolish the practice, triggering a debate between politicians and religious leaders.

More than 90 per cent of Muslim women surveyed in 2015 by Bharatiya Muslim Mahila Andolan (BMMA), which campaigns for women’s rights, wanted an end to triple talaq and polygamy.

Noor Jehan from BMMA said they wanted the supreme court to rule triple talaq was illegal and unconstitutional, with many women left without support after such a divorce.

“Thousands of Muslim women have been suffering for long and they will welcome it if the court ends this practice of unilateral divorce,” she told the Thomson Reuters Foundation

The All India Muslim Personal Law Board (AIMPLB), a non-governmental body which oversees the application of Muslim personal law, opposes any ban on triple talaq and argues this is a religious matter and not for the courts.

But Prime Minister Narendra Modi disagrees and last year waded into a controversy by saying he believed it was destroying women’s lives, with Muslims making up about 13 per cent of the country’s 1.2 billion people.

“It is the responsibility of the government and people of the country to give justice to Muslim women,” Modi said at a rally in Mahoba last year.</s>New Delhi: The Supreme Court on Thursday said that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion, but it may not deliberate upon the issue of polygamy as it began hearing petitions challenging the practice.

A five-judge bench headed by Chief Justice J S Khehar said it would look into the aspect whether triple talaq is part of an "enforceable" fundamental right to practice religion by Muslims. The bench also comprising Justice Kurian Joseph, Justice R F Nariman, Justice U U Lalit and Justice Abdul Nazeer, however, said the issue of polygamy among Muslims may not be deliberated upon by it as this aspect is unrelated to triple talaq.

The bench, made up of judges from different religious communities — Sikh, Christian, Parsi, Hindu and Muslim — is hearing seven petitions, including five separate writ petitions filed by Muslim women challenging the practice of triple talaq prevalent in the community. The petitions claim that triple talaq is unconstitutional.

The apex court made it clear that each side will get two days each for canvassing their arguments on the two questions formulated by the bench and one day will be given for the rebuttal. It also made it clear that it would stop any counsel who repeats the arguments.

The bench is also taking up the main matter on its own as a petition titled "Muslim Women's quest for equality".

The apex court had on its own taken cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.

It holds importance as the Allahabad High Court in its verdict pronounced in the last week of April, had held the practice of triple talaq as unilateral and bad in law. The High Court verdict had come while dismissing a petition filed by one Aaqil Jamil whose wife had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq.

The apex court had on 30 March said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are "very important" and involve "sentiments".

Influential Muslim organisations like the All India Muslim Personal Law Board (AIMPLB) have opposed court's adjudication of these matters, maintaining these practices stemmed from the Holy Quran and were not justiciable.

The Muslim women, who have filed the petitions, have challenged the practice of triple talaq in which the husband, quite often, pronounces talaq thrice in one go, sometimes even by phone or text message.

The apex court, while referring to the matter to a larger bench, had observed that "sentiments" were involved in the matter and a five-judge constitution bench would adjudicate the issue, which required a detailed hearing.

The apex court had earlier said it would decide issues pertaining to the legal aspects of the practices of triple talaq, nikah halala and polygamy among Muslims, but would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.

The Centre had on 7 October last year opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.

AIMPLB had on 27 March told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.

The Board had also said the validity of the Mohammedan Law, founded essentially in the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution.

It had said there was a need for "judicial restraint" before going into constitutional interpretation of these unless such an exercise becomes unavoidable.

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.</s>The Supreme Court on Thursday raised a question if ‘triple talaq’ is fundamental to Islam, as a constitution bench commenced hearing on the issue while making it clear that it would not go into the question of polygamy.

Two senior counsels, appearing for parties seeking an end to the practice of triple talaq, said that triple talaq is not fundamental to Islam, in response to questions framed by Chief Justice of India J.S Khehar, who headed the bench.

The court was told this as it embarked on examining the constitutional validity of the practice of unilateral divorce prevalent in the Muslim community.

“Polygamy is out,” observed Justice Rohinton Fali Nariman soon after the bench framed three questions to be addressed by the counsel appearing for the contending parties, including petitioners challenging the validity of ‘triple talaq’ and All India Muslim Personal Law Board and other Muslim outfits defending it.

At the outset of the hearing, Chief Justice Khehar asked the contending parties before it to address the question whether ‘triple talaq’ was fundamental to Islam, whether it was sacrosanct to Islam and whether the practice was an enforceable fundamental right.

The bench also comprising Justice Kurian Joseph, Justice Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer sought suggestions on the broad parameters of the directions the court may issue while deciding the validity of triple talaq.

Assailing the practice of triple talaq, senior counsel Indira Jaising said that if the free informed consent of the woman was imperative for the union of two people in marriage, then how could the unilateral act of divorce survive.

Telling the bench that triple talaq was an extra-judicial act and thus unconstitutional, Jaising told the court that can the status of a woman be changed unilaterally, which she described as “civil death”.

She told the court that in the Islamic countries the triple talaq had come under judicial oversight.

Noting the vehemence with which Jaising was arguing her point, Justice Nariman noted that “None of you who are opposing triple talaq approached the court till it itself took suo motu cognizance of it by its judgment on October 16, 2015”.

Jaising, who appeared for the intervenors Bebak Collective and Centre for Study of Society and Secularism, told the bench that all the personal laws should be subject to fundamental rights and “constitution should not stop where personal law starts and all the personal laws, be it of Hindus, Muslims, Christians and other, should stand the scrutiny of the fundamental rights”.

Contending that triple talaq was not an essential part of Islam, senior counsel Amit Singh Chadha told the Constitution Bench that “talaq can only be cogent and reasonable” and if Islamic countries can do away with it then surely it is not an essential part of Muslim religion.

To this, senior counsel Kapil Sibal appearing for the AIMPLB said that they did so by taking the legislative route and not through judicial verdict. He said that personal law can only be changed by the legislature and not by the courts.

Referring to the low divorce rate amongst the Muslims compared to others, Sibal said that it cannot be assumed that a Muslim who will marry will get up one fine morning and utter talaq, talaq, talaq.

Chadha, who appeared for the lead petitioner Sharaya Bano, said that talaq by Muslim women under the Dissolution of Muslim Marriages Act, 1939, was appealable till the top court but not when under the same statute a man divorces his wife.

At one stage during the course of the arguments on Section 2 of the Dissolution of Muslim Marriages Act, 1939, that spells out the grounds’ under which Muslim woman can seek dissolution of marriage, Chief Justice Khehar said that the object of the provision is to “further women’s rights and not curtail it. We can’t look at it as good or bad, but according to law”.

Appearing for Bharatiya Muslim Mahila Andolan’s co-founder Zakia Suman, senior counsel Anand Grover told the bench that “if court comes to conclusion that it (triple talaq) is not a part of Islamic law, then there is no need for going into the question of its validity under Article 14, 19, 21 and 25”.</s>India's Supreme Court is hearing a clutch of petitions challenging the controversial practice of instant divorce in Islam.

The court said it would examine whether the practice known as "triple talaq" is fundamental to the religion.

India is perhaps the only country in the world where a Muslim man can divorce his wife in minutes by saying the word talaq (divorce) three times.

But activists say the practice is "discriminatory".

Many Muslim groups have opposed the court's intervention in their religious matters.

The five-judge bench has combined several petitions from Muslim women and rights groups into one to examine the issue.

Muslims are India's largest minority community with a population of 155 million and their marriages and divorces are governed by the Muslim personal law, ostensibly based on Sharia, or Islamic law.

Even though it has been practised for decades, the unilateral instant "triple talaq" divorce finds no mention in Sharia law or the Koran.

Islamic scholars say the Koran clearly spells out how to issue a divorce - it has to be spread over three months which allows a couple time for reflection and reconciliation.

Activists say most Islamic countries, including Pakistan and Bangladesh, have banned triple talaq, but it thrives in India.

In recent years, many men in India have sought to divorce their wives by letter or telephone, and even by text message.

There have also been instances where Skype, WhatsApp or Facebook have been used for the purpose.</s>New Delhi: The Supreme Court on Thursday made it clear that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion as it began hearing petitions challenging the practice.

A five-judge bench headed by Chief Justice J S Khehar said it would look into the aspect whether triple talaq is part of an "enforceable" fundamental right to practice religion by Muslims.

The bench began hearing a batch of petitions challenging the constitutional validity of the practices of triple talaq, nikah halala (forms of divorce) and polygamy in Islam.

The bench, sitting in the summer vacation, comprises an interesting combination of CJI J.S. Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Nariman (Parsi), Justice Uday Lalit (Hindu) and Justice Abdul Nazeer (Muslim).

The bench also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, however, said the issue of polygamy among Muslims may not be deliberated upon by it as this aspect is unrelated to triple talaq.

The apex court made it clear that each side will get two days each for canvassing their arguments on the two questions formulated by the bench and one day will be given for the rebuttal.

The apex court also made it clear that it would stop any counsel who will repeat the arguments.

"Each side can argue whatever they want but there should not be any repetition. They will only focus on the validity of triple talaq," the bench said.

With Prime Minister Narendra Modi asking Muslims not to politicise the triple talaq issue, the Centre has maintained that these practices are not protected under the right to religion guaranteed under Article 25 (1) of the Constitution. It said the fundamental question for determination by this Court in this case is whether, in a secular democracy, religion can be a reason to deny equal status and dignity, available to Muslim women under the Constitution.

The All-India Muslim Personal Law Board on Friday justified in the Supreme Court the “triple talaq” form of divorce and cautioned the court from interference with personal laws in the guise of social reform and bringing in uniform civil code. The board said all three utterances of triple talaq are effective and validly terminate the marriage is accepted by all the four distinct schools of jurists, namely Hanafi, Shafai, Maliki, and Hanbali.

The board said that though pronouncement of triple talaq is considered to be a sin, it is still a valid and effective form of divorce. In Islamic jurisprudence, many times an irregular or improper nature of an act does not affect the legal consequences of the Act. Though Triple Talaq is the least appreciated form of terminating a marriage, yet is very much effective and in line with the Shariat law,” the board said. Asking the court not to interfere with freedom of religion, the board said the issues raised in the batch of petitions had already been decided by the court and hence the issues need not be re-opened again.

The Centre said it is of the view that gender equality and the dignity of women are non-negotiable, overarching constitutional values and can brook no compromise. The practices which are under challenge, namely, triple talaq, nikah halala and polygamy are practices which impact the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community; women belonging to other communities and also Muslim women outside India.

The Centre said there are unreasonable classifications which arise from practices such as those under challenge in the present petition, which deny to Muslim women the full enjoyment of fundamental rights guaranteed under the Constitution. The paradox is that Muslim women in India are more vulnerable in their social status because of the prevalence of such practices, even though they live in a secular country.It submitted that the practice of polygamy is a social practice rather than a religious one and therefore would not be protected under Article 25.

Issues to be adjudicated are: The court will determine among other things whether triple talaq violated basic human rights of Muslim women who are subjected to this religious practice; whether the practices of talaq, nikah halala and polygamy are protected under Article 25 (1) of the Constitution (right to freedom of religion); whether Article 25 (1) is subjected to Fundamental Rights of Indian Constitution and in particular 14 (right to equality) and 21 (right to life) of the Constitution; Whether the practices of triple talaq are of a secular nature, namely marriage and divorce, and thus not protected under Article 25(1) although they may be considered as a part of religion?

Whether this practices run counter to Constitutional Morality that guarantees equality before law and equal protection of laws?; Whether instantaneous triple-talaq in one sitting (talaq-e-bidat) in the absence of witnesses and without any attempt at reconciliation and nikah-halala are legally permissible?; Whether this practice has been abolished by various Islamic states, which establishes the fact that such practice is not integral to the practice of Islam?; Whether the All India Muslim Personal Law Board and similar associations have the authority to determine and declare the personal law applicable in India for the numerous sects and sub-communities of Islam that exist in India and practice Islam in various ways?</s>Advocate Farah Faiz, one of the petitioners, outside the Supreme Court yesterday prior to the hearing. Pic/PTI

The Supreme Court yesterday commenced its historic hearing on a clutch of petitions challenging the constitutional validity of the practice of triple talaq and nikah halala among Muslims, saying it would first determine whether the practice is fundamental to Islam.

A five-judge constitution bench, headed by CJI JS Khehar, however, made it clear that the issue of polygamy among Muslims may not be deliberated upon as it is not connected with triple talaq.

"We will deal with the issue as to whether triple talaq is sacramental and whether it can be enforced as a fundamental right," said the bench, also comprising Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer.

The apex court also said if it came to the conclusion that triple talaq is fundamental to religion, then it will not go into the question of its constitutional validity. It said it will also deal with the aspect of whether triple talaq formed part of the enforceable fundamental right to practice religion under the Constitution.

Senior advocate Amit Singh Chadha, appearing for Saira Bano, one of the petitioners in the case, initiated the arguments against triple talaq, saying it was not fundamental to Islam and, hence, can be done away with. He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to buttress his plea that triple talaq is un-Islamic.

Senior advocate Indira Jaising, appearing for a petitioner, said in case of divorces being granted through extra-judicial mechanism, there should be a "judicial oversight" to deal with the consequences.

Senior advocate Salman Khurshid, who is assisting the court in his personal capacity, termed triple talaq as a "non-issue", saying it is not considered complete without conciliation efforts between husband and wife. Counsel for All India Muslim Personal Law Board Kapil Sibal concurred with Khurshid.

Maulana Yasoob Abbas,

All India Shia Personal Law Board spokesperson

'Many Muslim countries have already put an end to the practice… In the Shia community, there has been no place for triple talaq in one go' Shaista Amber,

All India Muslim Women Personal Law Board president

'Today is a day of hope of betterment and justice for Muslim women. At least we now feel that the betterment of Muslims has started' Navaid Hamid,

All India Muslim Majlis-e-Mushawarat president

'It is a religious issue. The Supreme Court should give the Muslim community more time to evolve a strategy and resolve this contentious issue' Maulana Kazmi,

Cleric from Lucknow

'The All India Muslim Personal Law Board clearly says that triple talaq is a part of Islam. These petitions are politically motivated' 07 No. of petitions on the issue the SC is hearing</s>New Delhi — India’s highest court has begun considering the legality of a controversial Islamic practice that allows men to leave their wives instantly by reciting the word "divorce" three times.

"Triple talaq" is legal for Muslims under the Indian constitution but it has come under scrutiny, with reports emerging of men divorcing their wives via letters, Skype and WhatsApp.

Several women divorced by triple talaq have petitioned the Supreme Court to overturn the practice. "We told the court that the practice has no basis in the law or in the Koran," said Balaji Srinivasan, a lawyer for Shayara Bano, whose husband split from her by writing "divorce" three times on a piece of paper.

The practice has been challenged in lower courts but this collective appeal is the first time India’s Supreme Court will consider whether triple talaq is fundamental to Islam and therefore legally binding.

A panel of five judges from India’s major faiths — Hinduism, Christianity, Islam, Sikhism and Zoroastrianism — will consider the matter and is expected to deliver a verdict next week.

India, home to 180-million Muslims, allows religious institutions to govern matters of marriage, divorce and property inheritance, enshrining triple talaq as legal.

But the right-wing Hindu nationalist government of Prime Minister Narendra Modi has backed the petitioners in this landmark case, declaring triple talaq unconstitutional and discriminatory against women.

The All India Muslim Personal Law Board, a grouping of Islamic organisations, told the court it opposed any efforts to change the law.

"Triple talaq is a reprehensible and sinful way to divorce, and we have spoken against it, but we want the court and government to stay off," board convener Zafaryab Jilani said.
The Supreme Court of India begins hearings on whether oral divorce is a fundamental right of Islam.