Day 2 Arguments

May 15th 2017

The five-judge Constitutional Bench continued hearing the Triple Talaq case on May 12. 2017. Petitioners, intervenors and the Amicus dominated the second day of arguments. These arguments continued to scrutinize the scriptural and religious foundations of the challenged practice. The weight of submissions against the practice has piled up and we’re yet to hear any argument that sustains the constitutional validity of the practice.

Arguments of Amicus Curiae, Mr. Salman Khurshid

Mr. Salman Khurshid, Sr. Adv., who was appointed Amicus Curiae, began the day by revisiting the concept and forms of divorce under Muslim Personal Law. Talaq is the form of divorce where a Muslim husband divorces his wife and khula being the form where a Muslim wife divorces her husband.

He clarified that under the Quran after the husband pronounces talaq for the third time, the divorce becomes irrevocable provided he pronounced talaq for a reasonable cause and reconciliation attempts failed. Further, each pronouncement of talaq is followed by a three-month waiting period (iddat) – to allow the husband and wife to reconcile and to ascertain if the wife is pregnant. If she is pregnant the divorce is deferred until the baby is born to protect the interests of the child. However, if there is no reconciliation in the iddat period that follows the third pronouncement of talaq, the talaq becomes effective and irrevocable.

In such a case, if the divorced couple wants to remarry each other, they can do so only if there is an intervening marriage of the divorced wife with another Muslim man and consummation of such marriage followed by a divorce – the practice being called nikah-halala. He pointed out that if triple talaq is declared to be illegitimate then nikah-halala de facto gets eliminated. (Ed. It is unclear from our records why this is the case)

He distinguished his position from that adopted by Ms. Indira Jaising, Sr. Adv. that talaq under the Quran is not unilateral nor does it cause destitution. It is preceded by reconciliation attempts and the woman receives mehr (financial compensation) decided at the time of marriage and recorded in the nikah-nama. However, like BMMA, he too urged the Court to avoid inquiring into the constitutionality of triple talaq as the court may simply declare that it is not recognized by the Sharia and has no legal authority.

Mr Khurshid, explained that in India, 90% of the Muslim community are Sunni of which 80% belong to the Hanafi School. Shias don’t consider triple talaq valid within the Sunni community only some segments of the Hanafi’s practice triple talaq. As several Sunni Islamic states have abolished the practice of triple talaq there is no widespread acceptance of the practice across the world.

Mr. Khurshid concluded by recasting Muslim marriage in a new light. Marriage is a sacred contract where at the time of marriage only the man can offer mehr to a woman and propose marriage. At divorce it is the man who is vested with the right of talaq. Hence, one may adopt contractual solutions by inserting conditions in the nikahnama to ensure that talaq is not unilateral and also confers wife the right to divorce.

Arguments of Forum for Awareness of National Security by Mr. Ram Jethmalani

Mr. Ram Jethmalani, Sr. Adv., representing the intervenor, began with the submission that triple talaq violates Articles 14 and 15 as it is a unilateral right of males. The Chief Justice of India queried whether this unilateral character may be overcome by relying on Mr. Khurshid’s proposal to provide conditions in the nikah-nama. Moreover, he wondered whether non state law can be challenged under Articles 14 and 15.

Mr. Jethmalani, responded by stating that any law recognised by the State is ‘law’ under Articles 14 and 15. He argued that as Article 13 defines “law” to include custom and usage, triple talaqcan be struck down if it violates  fundamental rights.

Arguments of Other Intervenors

Ms. Nithya Ramakrishnan, Adv., representing another set of intervenors, made a theological argument that talaq-e-biddat is not a part of Sharia. Relying on expert commentators on Muslim personal law, she argued that what is morally beautiful is Sharia and what is ugly is not. Hence, triple talaq which is sinful and not morally beautiful is not part of Sharia.

Ms. Farah Faiz, Adv., representing Respondent No 2 , urged the Court to assess the validity of triple talaq under the primary source of Sharia that is the Quran and not the interpretations by various schools. Further, she doubted the validity of parallel Darul courts run my local qazis as they take Muslim women out of the protection of the state judicial system.

Mr. Mohammad Arif Khan, Adv., representing the All India Muslim Women Personal Law Board, pointed out that there was no direct reference to the triple talaq by Abu Hanifa, the founder of Hanafi School. He urged the Court to look first to Quran, and where it is silent to the Hadith (sayings of the Prophet) and ignore the various schools. By these standards both triple talaq and nikah-halala are not fundamental to Islam and violate its central principles.

(This post relies on contributions from Meher Dev)