Posted on 19.05.17 by Satya Prasoon
On the 6th and final day of hearings in the Triple Talaq case, the Supreme Court’s constitutional bench heard Rejoinders from the remaining petitioners, respondents and intervenors.
Mr. Amita Chadha, Sr. Adv, began by pointing out the irony of AIMPLB arguing that triple talaq is sinful, patriarchal and bad in theology and yet insisting that the practice is an essential part of their religion. He submitted that Article 25 should protect good theology and not the sinful aspects of religion. He reaffirmed that triple talaq is neither an essential part of religion nor a part of religion at all.
He countered Mr Sibal’s claim that the Shariat Act 1937 was enacted only to override customs contrary to Sharia and argued that it codifies and declares the Sharia as a “rule of decision” for certain subject matter. Further, he argued that the Supreme Court’s declaration in Sant Ram v. Labh Singh that the phrase “laws in force” in Article 13 is an inclusive one defeats Mr. Sibal’s reliance on the Bombay High Court decision in Narasu Appa that personal laws are not subject to fundamental rights. He rejected the AIMPLB proposal to insert a condition in the nikah nama as the Dissolution of Muslim Marriages Act 1939 requires Muslim women to go to court for a decree of divorce.
Justice Kurien Joseph asked if triple talaq was recognized by the State for it to be subject to fundamental rights review. Mr. Chadha concluded his rejoinder by asserting that as the State has explicitly made a reference to “talaq” in the 1937 Act it is subject to fundamental rights review.
Mr. Anand Grover, Sr. Adv, started by pointing out that the AIMPLB is a private body that isn’t representative of the views of all Hanafi Muslims. He asserted that there are differences in the Hadith texts and read an interpretation of Hadith which prescribed that triple talaq should be staggered allowing for reconciliation to counter the texts and interpretations cited by Mr. Sibal. Given the divergence of views amongst Islamic scholars and schools, he relied on Mulla on Muhammadan Law to argue that the courts should reconcile divergences and adopt the more liberal interpretation.
Mr Grover confirmed the CJI’s summary that he was praying for the Court to read down Section 2 of the 1937 Act to exclude triple talaq from the ambit of the expression “talaq”. He relied on Tilkayat Govindlalji v. State of Rajasthan to stress that when there is conflicting evidence on religious practice, the court must assess if the practice is part of religion and then scrutinize if it is an essential practice of a religion. This was the approach taken by Justice Badar Durez in Masroor Ahmed and should in turn be adopted by this Bench.
Mr. Salman Khurshid, Sr. Adv., argued that the AIMPLB solution to register under the Special Marriage Act would deny a Muslim man more than one wife, which is permitted by Islam. Further, he pointed out that though AIMPLB rightly claims that triple talaq is protected under Article 25, it is still subject to other fundamental rights. He urged the Court to ignore or overrule cases that have held that triple talaq is bad in theology but valid in law and do away with the practice of triple talaq. Mr. Khurshid concluded by suggesting that Ronald Dworkin’s institutional morality should guide the interpretation of the the term “morality” in Articles 25 and 26.
Mr. Arif Mohd, Adv., highlighted that Imams of various schools have different interpretations of the Quran and Hadith and the views of Abu Hanifa, the Imam of the Hanafi School, are not available directly but through his disciples. He asserted that Islamic jurisprudence permits one to opt for another school’s interpretation which may be more liberal and suited to the times of the day. He urged the Court to declare that the only procedure by which a Muslim man can divorce his wife shall be that as laid down in the Quran and not the Hadith.
Mr. Kapil Sibal, Sr. Adv., started by distinguishing the cases cited by the AGI. He argued that Mirzapur Moti Kureshi and Anand Margi deal with state action that violates the right to religion unlike Shayaro Bano where there is no State action. Hence, he argued that only the Legislature can restrict the right to religion for social reform under Article 25(2)(b). The court has no such power.
Then Mr. Sibal turned to Ms. Jaising’s submissions and argued that personal laws cannot be challenged under Article 14 as it requires state action which is absent in this case. He also stated that “laws in force” under Article 372 is subject to Article 13 and that triple talaq cannot be tested on the anvil of Part III of the Constitution.
Mr. Sibal argued that divergences in Islamic interpretation ought to be overcome Ijma (consensus) under Islamic Law and hence, the Court should be guided by how the community perceives triple talaq. When Justice Joseph and Nariman questioned Mr Sibal about the Quranic basis of triple talaq he responded that the Quran doesn’t prescribe only one procedure of talaq and thus triple talaq is not prohibited. He cautioned the Court against interpreting the Hadith as that will be a slippery slope and judicially manageable.
He concluded by asserting that the AIMPLB is a legitimate organization which had 30 women members out of approximately 200 members. He confirmed that AIMPLB will send an advisory to all Qazis to inform women of the option to insert a clause in their nikah nama to exclude divorce through triple talaq. He submitted that a miniscule part of the Muslim community practiced triple talaq and it could be resolved within the community. CJI concluded hearing and reserved judgment after asking the AIMPLB to send such an advisory as soon as possible.
(This post relies on contributions from Meher Dev)
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