You Want All Three Wickets Down In One Ball: SC To Govt On Triple Talaq
File photo of the Supreme Court of India.
New Delhi: "So you want all three wickets to go down in one ball," the Supreme Court quipped on Monday when the Government said it would frame a new law if all three "orms of talaq, including triple talaq, are banished for Muslims in India.
"So how do we remove this inequality?" asked the five-judge bench headed by Chief Justice of India J S Khehar. The AG retorted: “By striking them down...by exorcising talaq from Shariat Act. Instantaneous triple talaq must be outlawed...all three forms of talaq must go." Three forms of talaq under Muslim law are: Talaq ul Biddat (triple talaq), Talaq Ahsan and Talaq Hasan.
Justice Uday U Lalit had another question: "Then what's the remedy? How will a husband come out of a marriage?"
It was time for the AG to throw a perfect delivery: "If this court strikes it down, we will bring a law. Government will have a law. We won't leave people high and dry."
At this, Justice Kurian Joseph said: "We won't say whether the matter is politically sensitive or not, but it definitely is constitutionally sensitive."
CJI Khehar also intervened: "So you want all three wickets to go in one ball?” The AG responded: “Even if all three wickets fall, it is still counted as one wicket."
The CJI then asked Rohatgi if the idea was to bring issues relating to marriage and divorce among Muslims on par with women in other religions then why not do away with validity of marriages under all laws such as Hindu Marriage Act and (Christian) Divorce Act. "Let us give sanction only to the marriages under the Special Marriage Act, which is religion-neutral," said Justice Khehar.
To this, Justice Rohinton F Nariman said that marriages are inexplicably a part of the religion and that is why we had separate enactments for different religions to deal with such issues. "Besides, religious practices are what people of that religion think are the essential practices. It cannot be what you and I think are the religious practices," he added.
Justice Nariman also flagged another significant legal point: "One can complain against violation of fundamental rights against the State. If the State has not impinged upon fundamental rights, where is the question of our interfering? Can we intervene when it is about personal rights?"
Rohatgi asked the bench: "Can one half of the women population in a community be denied their fundamental rights on the basis of a legal argument? Is it not the duty of the State to intervene on their behalf and fight for their rights?" He added that the top court could see the practice of triple talaq from any prism and the conclusions would be the same — it is against constitutional norms, gender justice, equality and dignity of women.
Rohatgi further said that triple talaq will have to go even if the court were to hold that it was an integral part of the religion and hence protected under Article 25 of the Constitution. "Religious practices are protected under Article 25 subject to morality, public order, health and various other part of the Constitution. What we are talking about here is the constitutional morality, which is completely incongruous if we look at triple talaq. So you can look at this practice from any prism but will reach the same conclusion," he said.
The AG added that the apex court did not have to interpret Quran or any other religious scripture while deciding upon the validity of a practice. “Constitution is the only test and triple talaq definitely fails the muster,” he maintained.
The bench will continue hearing the case on Tuesday when All India Muslim Personal Law Board, through its lawyer Kapil Sibal, will argue against judicial intervention in the matter.
"If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive," it stated.
The Board also said that divorce proceedings instead of triple talaq could damage a woman's chances of re-marriage if the husband indicts her of loose character in court.
"Granting a husband the right to divorce indirectly provides security to the wife. Marriage is a contract in which both parties are not physically equal. Male is stronger and female weaker sex. Man is not dependent on woman for his protection. On the contrary, she needs him for her defence," said the affidavit, adding that triple talaq wards off the possibility of a rise in murders of women whose husbands want to divorce them.
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