“The issues are very important. These issues cannot be scuttled.”
A 3-judge bench headed by chief justice JS Khehar on Thursday decided to move the batch of petitions filed by several Muslim women and supported by a number of Muslim women’s organisations relating to the impugned practice of triple talaq, nikaah halala and polygamy among Muslims to a 5-judge Constitutional bench.
Responding to the four legal issues framed by the Union government, the bench ruled that since they involve Constitutional issues they should be decided by a larger bench with.
“The issues are very important. These issues cannot be scuttled,” the judges observed. The questions for consideration of the constitution bench would be decided on March 30. The bench made it clear to the parties concerned that the apex court would not deal with the factual aspects of the particular case and would rather decide the constitutional issue.
In its submission to the court, the Centre has called for an authoritative ruling on whether personal laws covered under freedom of religion would be circumscribed by the citizen’s fundamental right to equality and the right to life and liberty.
The constitution bench is also expected to examine the question of whether the practices of triple talaq, nikaah halala and polygamy are “integral” to and part of the “essential practices” in Islam.
The Centre has place four questions before the apex court and urged a decisive ruling on the same:
- Whether the practices of triple talaq (instant divorce), nikaah halala and polygamy are protected under Article 25(1) of the Constitution of India? [Article 25(1) deals with the right to freedom of religion. Nikah halala means a man cannot remarry a woman after triple talaq unless she has already consummated her marriage with another man and then her new husband dies or divorces her].
- Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21? [Article 14 ensures right to equality while Article 21 guarantees right to life and liberty]
- Whether personal law is law under Article 13 of the Constitution? [Article 13 stipulates that all laws must conform to the fundamental rights guaranteed by the Constitution].
- Whether the impugned practices of triple talaq (talaq-e-biddat) nikaah halala and polygamy are compatible with India’s obligations under international treaties and covenants to which India is a signatory?
As an indicator of the urgency with which the apex court views the issues raised in the clutch of petitions before it, the bench made it clear that it is willing to sit on Saturdays and Sundays to decide on the issue as it was “very important”.
“You (lawyers for parties) sit together and finalise the issues to be deliberated upon by us,” the bench said.
The apex court has also said that the question whether divorce under Muslim Personal Law needed to be supervised by either courts or by a court-supervised institutional arbitration fell under the legislative domain.
It may be recalled that separate petitions filed in the apex court by individual Muslim women in the apex court for declaration of the practices of triple talaq, nikaah halala and polygamy as un-Constitutional and “un-Islamic”, have been backed by a number of Muslim women’s organisations, as also the recently formed forum, Indian Muslims for Secular Democracy (IMSD).
On the other hand, the All-India Muslim Personal Law Board and the Jamiat-e-ulema-e-Hind have intervened to argue that these practices are part of the constitutional right to freedom of religion.
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