February 15, 2017

India's Supreme Court Will Only Look at Legal Aspect of 'Triple Talaq'

Daily News and Analysis

Will only look at legal aspect of triple talaq: SC

dna Correspondent | Wed, 15 Feb 2017-06:35am , New Delhi , DNA
The Court however opined that codifying morality was a matter for legislation, rather than for the judiciary to decide

The Supreme Court on Tuesday clarified that it would only look into the legality of triple talaq, and not delve into the dangerous waters of the Uniform Civil Code (UCC).
This observation was made when an intervenor submitted that UCC challenged the constitutional rights of the adivasi community he represented.
In this regard, the three-judge bench then asked all concerned parties to sit together and come up with a list of issues that need to be debated on.
During the course of the hearing, the bench said it would consider whether the three practices - triple talaq, polygamy and nikah halala were an integral part of Islam, as it has been interpreted and changed in other Islamic countries, including Pakistan, to accommodate modern day challenges. A list of tentative issues discussed by the court also included, as to whether the Muslim Personal Law (Shariat Application Act of 1937) is unconstitutional.
Other pertinent points that will come up for debate before the court could include questions as to whether the SC can lay down the edicts of morality, whether a court can interpret Holy Scriptures, and polygamy among other issues. The Court however opined that codifying morality was a matter for legislation, rather than for the judiciary to decide.
“You (lawyers for parties) sit together and finalise the issues to be deliberated upon by us. We are listing it on Thursday for deciding the issues,” a bench comprising Chief Justice JS Khehar with Justices NV Ramana and DY Chandrachud said.
At first, the court declined to look at facts in individual cases, choosing to focus on the overall legal aspect. “We are not interested with facts at all. We are only interested in dealing with the legal issues,” the bench said.
However, the bench later conceded that considering the facts of individual cases would help understand issues and it allowed lawyers to file synopsis of cases pertaining to alleged victims of triple talaq.
In October 2016, the Centre had opposed the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims and favoured a relook. The Ministry of Law and Justice had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries.
The All India Muslim Personal Law Board, however, had rubbished the stand taken by the government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.
Another prominent Islamic organisation Jamiat Ulema-i-Hind told the court there is no scope for interference with the Muslim Personal Law in which triple talaq, 'nikah halala' and polygamy are well rooted and stand on much higher pedestal as compared to other customs.
Even as these issues came into the fray, another intervenor took up the plight of the 11 crore adivasis who would be affected by any changes under the UCC.
The SC stated that final arguments in this case were likely to be heard by a constitution bench during the summer vacations. A tentative date forwarded by the court is May 11.

  • Whether the Court has the jurisdiction to examine the constitutional validity of religious practices under challenge (polygamy, talaq-e-bidat, and nikah halala)
  • Whether the religious practices under challenge are not an integral part of religion and therefore neither protected by Article 25 nor immune from judicial preview?
  • Whether court can interpret Holy Scriptures?
  • Whether a court should lay down the edicts of morality?
  • Whether this court needs to intervene and protect the Fundamental Rights of Muslim women of India in the face of gender discrimination?