How can 'sinful' triple talaq be a matter of faith, asks SC

Oceane Deschanel
Mai 20, 2017

Deviating from the Muslim Personal Law Board's opinion, Khurshid said one can not contract out of faith, just like one can not legislate out of faith.

That the bride has opted out of triple talaq would be recorded in the Nikaah Nama, the court was told.

The Supreme Court on Thursday concluded arguments and reserved its verdict in the triple talaq case after holding six days of a historic hearing.

Mumbai-based Uzma Naheed, an AIMPLB member for years, has revealed the Board's past stonewalling of a crucial reform, days after it submitted to the Supreme Court that it was ready to include such a clause in the nikahnama for a talaq-e-tafweez, or "delegated divorce", to give women a right to pronounce talaq in all forms. "Lots of sinful practices are still protected as customs", Sibal said.

The Constitution Bench hearing the case had asked the Board on Wednesday whether it was prepared to give women the right to say no to triple talaq at the time of marriage.

To this Sibal replied, "It is sinful".

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The matter is rooted in an October 16, 2015, order of the top court by which it had directed the separate listing of a PIL addressing the question of the rights of Muslim women. A point that was driven home by an emphatic and near-unanimous "no" in the courtroom when Kapil Sibal, the counsel for the board, suggested that women accept the sin of instant triple talaq. Sibal asked the apex court. Also, by implication, triple talaq itself doesn't become extinct if a woman desires the provision. It continues to be stuck in the past and has so far steadfastly refused to reform its definitions of what comprises the welfare of the community, and consequently is now faced with the possibility of becoming irrelevant both within the community and in the court of law.

"The government will come out with the law to regulate marriage and divorce among Muslims if the court holds Triple Talaq as invalid", Attorney General Mukul Rohatgi told the bench.

Addressing the five-judge bench led by Chief Justice JS Khehar, the counsel said, "AIMPLB, the male dominated and patriarchal board, should get rid of its beliefs".

"That is why, what is sinful can not be part of practice. Substantiating my view with reasons and examples, I asserted that it can not be justified and can not be given law's validation", Khurshid said during the hearing.

Even this minor "concession" stemmed from the court's suggestion that the board direct the qazis tasked with solemnising marriages to stop prevent men from divorcing their wives on a whim by merely uttering talaq three times in one go.

The cornered Muslim Board on Wednesday told the Supreme Court that it has made a decision to issue a circular to all qazis across the country that while finalising "nikahnama" (marriage contract) they must take an undertaking from the husband that he will not give triple talaq to his wife.

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