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Triple Talaq unconstitutional : Supreme Court


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Triple Talaq unconstitutional : Supreme Court

2017-09-10 21:35:11

Triple Talaq unconstitutional : Supreme Court

 

 

 

In a historical judgment on August 21, the Supreme Court declared the practice of triple talaq unconstitutional and asked the government to enact law on the matter. The apex court barred instant triple talaq until the time the Parliament made a law on the issue. The court passed a temporary injunctio Triple Talaq unconstitutional : Supreme Court against the practice.

(The News Bureau)

The court also urged all parties to set aside their politics and come to a decision on the issue. It also expressed the hope that the legislature will take account of Muslim law when making the new law.

The historic case was heard by Chief Justice Jagdish Singh Khehar, and Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Justice S Abdul Nazeer – a five-judge bench from different faiths including Hinduism, Christianity, Islam, Sikhism and Zoroastrianism.

The bench delivered a majority ruling (3:2) with Justice Rohinton Nariman, Justice Kurien Joseph and Justice UU Lalit striking down triple talaq as unconstitutional. CJI JS Khehar and Justice S Abdul Nazeer were of the opinion that triple talaq cannot be declared illegal.

ustify;">“It is a disapproved form of divorce. Even Hanafi law says triple talaq is sinful. 1937 Act recognizes triple talaq and therefore does not violate Article 13...Triple Talaq won’t fall within confines of Article 13(1)...”

“It is not possible for court to fold his hands when petitioners come to court. Court has to declare whether practice is legal or not," Justice Rohinton Fali Nariman said.


Background

The triple talaq has been in practice for many centuries, but is illegal in many Islamic countries. Those opposed to the contentious practice say that the arbitrary divorce is discriminatory towards women and goes against their fundamental rights.

The hearing, spread over five days from May 12 to May 18, was rooted in the apex court's October 16, 2015 order directing the separate listing of a PIL addressing the question of the rights of Muslim women. The bench heard seven petitions, including five filed by Muslim women who challenged the practice.

Ishrat Jahan from Howrah in West Bengal, Shayara Bano from Uttarakhand, Aafreen Rahman of Indore, Gulshan Parween of Rampur in Uttar Pradesh and Atiya Sabri of Saharanpur were among the seven petitioners.

All the five women fought the prolonged legal battle despite odds and won the battle for all the victims of triple talaq. At the outset of the hearing, the court had made it clear that it would not examine the validity of anything that formed an intrinsic part of Islamic religious practices – thereby ousting any submissions on polygamy.

The court had framed three questions to be addressed by all the parties – whether triple talaq was fundamental to Islam, whether it Triple Talaq unconstitutional : Supreme Court was sacrosanct to Islam and whether the practice was an enforceable fundamental right.

In the course of the hearing, the AIMPLB issued an advisory, telling qazis to give an option to Muslim women to opt out of instant triple talaq before giving consent for 'nikah'.

In their affidavit before the court, they said that qazis all over the country have been instructed to record in the Nikahnama, that the bride has opted out of triple talaq in one sitting.

Senior counsel Salman Khurshid, who was assisting the court in the matter, had said that "What was sinful in theology, can't be good in law. It (triple talaq) is not only not an essential part of Muslim religion, it is not a part of religion at all. On the contrary, it is depreciated by Islam," he said.

However, the court was not appreciative of the government position that the top court should first pronounce on the constitutional validity of the triple talaq and other forms of talaq, and the government would only then bring in a law.

"We may or may not (decide the issue), but you do," Chief Justice Khehar had said when the Central government told the court that it should intervene in a situation where there is no legislation.

While founding its case on gender equality, the government had linked the issue of triple talaq with that of constitutional morality, but the court termed its position a "whitewash".

As the Centre sought to flag the issue of gender equality of Muslim women vis-a-vis women in other religions and in Islamic countries, the AIMPLB asked it to bring a law taking recourse to Article 25 (2)(b) of the Constitution that permits enactment of law invoking social reforms.

However, AIMPLB had cautioned the Constitution bench that "testing the validity of customs and practices was a slippery slope".

‘My decision to join BJP is Vindicated’

Sofia, the first person from her family to join the BJP, had expressed a deep admiration for Modi, whom she believed was the moderate face of the party that is founded on the principle of Hindutva. When Modi chose the Hindutva firebrand Yogi Adityanath to be the chief minister of Uttar Pradesh, Sofia admitted that she was shocked, but was willing to give him a chance..

Twenty-four-year-old Sofia Ahmed from Kanpur, a survivor of triple talaq, who had been facing questions for the last past eight-months for joining BJP, said she felt vindicated after the Supreme Court decided to strike down the practice of instant divorce as unconstitutional.

Sofia had joined the BJP because it had promised to continue its fight towards abolishing triple talaq while campaigning for the Assembly elections in Uttar Pradesh. This was in the month December of 2016, four months after she had extricated herself from a violent and abusive relationship with a man from a powerful political family in Kanpur.

"Today, I'm feeling so proud. I know now that I didn't take the wrong decision. I did the right thing by joining the BJP," she told a newspaper. "This is a historic judgment," she said.

On August 21, in a 3-2 ruling, the Supreme Court said that triple talaq, practiced by Sunni Muslims in the country, violated the right to equality enshrined in the Constitution.

Sofia, who is the mother of a two-year-old, is now confident that more Muslim women will come forward to support the party. "This judgment is going to make a big change in how Muslim women think about the BJP. I think women will realize that Prime Minister Modi stood up for us and it was not just an empty promise," she said.

Joining politics gave Sofia’s life a new meaning. Her husband, a serial adulterer, would allegedly wield triple talaq as a weapon. If she dared to question him about his affairs, he would threaten her with instant divorce. She said there were times when he would come home in a drunken stupor and say talaq three times, half-serious and half-joking.

At the time, Sofia, the first person from her family to join the BJP, had expressed a deep admiration for Modi, whom she believed was the moderate face of the party that is founded on the principle of Hindutva.

When Modi chose the Hindutva firebrand Yogi Adityanath to be the chief minister of Uttar Pradesh, Sofia admitted that she was shocked, but was willing to give him a chance.

For Sofia, the triple talaq verdict is simply "too huge" for the Muslim community to ignore. Millions of Muslim women will celebrate it because it is a slap in the face of the religious leaders in the community who had opposed change for so long.

Speaking in the context of the Muslim clergy, she said, "Muslims are chief enemies of Muslims. Today as a Muslim woman, I'm telling you that I feel safer among Hindus than I do among Muslims."

 

 

 

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Triple Talaq unconstitutional : Supreme Court

2017-09-10 21:35:11

Triple Talaq unconstitutional : Supreme Court

 

 

 

In a historical judgment on August 21, the Supreme Court declared the practice of triple talaq unconstitutional and asked the government to enact law on the matter. The apex court barred instant triple talaq until the time the Parliament made a law on the issue. The court passed a temporary injunctio against the practice.

(The News Bureau)

The court also urged all parties to set aside their politics and come to a decision on the issue. It also expressed the hope that the legislature will take account of Muslim law when making the new law.

The historic case was heard by Chief Justice Jagdish Singh Khehar, and Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Justice S Abdul Nazeer – a five-judge bench from different faiths including Hinduism, Christianity, Islam, Sikhism and Zoroastrianism.

The bench delivered a majority ruling (3:2) with Justice Rohinton Nariman, Justice Kurien Joseph and Justice UU Lalit striking down triple talaq as unconstitutional. CJI JS Khehar and Justice S Abdul Nazeer were of the opinion that triple talaq cannot be declared illegal.

ustify;">“It is a disapproved form of divorce. Even Hanafi law says triple talaq is sinful. 1937 Act recognizes triple talaq and therefore does not violate Article 13...Triple Talaq won’t fall within confines of Article 13(1)...”

“It is not possible for court to fold his hands when petitioners come to court. Court has to declare whether practice is legal or not," Justice Rohinton Fali Nariman said.


Background

The triple talaq has been in practice for many centuries, but is illegal in many Islamic countries. Those opposed to the contentious practice say that the arbitrary divorce is discriminatory towards women and goes against their fundamental rights.

The hearing, spread over five days from May 12 to May 18, was rooted in the apex court's October 16, 2015 order directing the separate listing of a PIL addressing the question of the rights of Muslim women. The bench heard seven petitions, including five filed by Muslim women who challenged the practice.

Ishrat Jahan from Howrah in West Bengal, Shayara Bano from Uttarakhand, Aafreen Rahman of Indore, Gulshan Parween of Rampur in Uttar Pradesh and Atiya Sabri of Saharanpur were among the seven petitioners.

All the five women fought the prolonged legal battle despite odds and won the battle for all the victims of triple talaq. At the outset of the hearing, the court had made it clear that it would not examine the validity of anything that formed an intrinsic part of Islamic religious practices – thereby ousting any submissions on polygamy.

The court had framed three questions to be addressed by all the parties – whether triple talaq was fundamental to Islam, whether it was sacrosanct to Islam and whether the practice was an enforceable fundamental right.

In the course of the hearing, the AIMPLB issued an advisory, telling qazis to give an option to Muslim women to opt out of instant triple talaq before giving consent for 'nikah'.

In their affidavit before the court, they said that qazis all over the country have been instructed to record in the Nikahnama, that the bride has opted out of triple talaq in one sitting.

Senior counsel Salman Khurshid, who was assisting the court in the matter, had said that "What was sinful in theology, can't be good in law. It (triple talaq) is not only not an essential part of Muslim religion, it is not a part of religion at all. On the contrary, it is depreciated by Islam," he said.

However, the court was not appreciative of the government position that the top court should first pronounce on the constitutional validity of the triple talaq and other forms of talaq, and the government would only then bring in a law.

"We may or may not (decide the issue), but you do," Chief Justice Khehar had said when the Central government told the court that it should intervene in a situation where there is no legislation.

While founding its case on gender equality, the government had linked the issue of triple talaq with that of constitutional morality, but the court termed its position a "whitewash".

As the Centre sought to flag the issue of gender equality of Muslim women vis-a-vis women in other religions and in Islamic countries, the AIMPLB asked it to bring a law taking recourse to Article 25 (2)(b) of the Constitution that permits enactment of law invoking social reforms.

However, AIMPLB had cautioned the Constitution bench that "testing the validity of customs and practices was a slippery slope".

‘My decision to join BJP is Vindicated’

Sofia, the first person from her family to join the BJP, had expressed a deep admiration for Modi, whom she believed was the moderate face of the party that is founded on the principle of Hindutva. When Modi chose the Hindutva firebrand Yogi Adityanath to be the chief minister of Uttar Pradesh, Sofia admitted that she was shocked, but was willing to give him a chance..

Twenty-four-year-old Sofia Ahmed from Kanpur, a survivor of triple talaq, who had been facing questions for the last past eight-months for joining BJP, said she felt vindicated after the Supreme Court decided to strike down the practice of instant divorce as unconstitutional.

Sofia had joined the BJP because it had promised to continue its fight towards abolishing triple talaq while campaigning for the Assembly elections in Uttar Pradesh. This was in the month December of 2016, four months after she had extricated herself from a violent and abusive relationship with a man from a powerful political family in Kanpur.

"Today, I'm feeling so proud. I know now that I didn't take the wrong decision. I did the right thing by joining the BJP," she told a newspaper. "This is a historic judgment," she said.

On August 21, in a 3-2 ruling, the Supreme Court said that triple talaq, practiced by Sunni Muslims in the country, violated the right to equality enshrined in the Constitution.

Sofia, who is the mother of a two-year-old, is now confident that more Muslim women will come forward to support the party. "This judgment is going to make a big change in how Muslim women think about the BJP. I think women will realize that Prime Minister Modi stood up for us and it was not just an empty promise," she said.

Joining politics gave Sofia’s life a new meaning. Her husband, a serial adulterer, would allegedly wield triple talaq as a weapon. If she dared to question him about his affairs, he would threaten her with instant divorce. She said there were times when he would come home in a drunken stupor and say talaq three times, half-serious and half-joking.

At the time, Sofia, the first person from her family to join the BJP, had expressed a deep admiration for Modi, whom she believed was the moderate face of the party that is founded on the principle of Hindutva.

When Modi chose the Hindutva firebrand Yogi Adityanath to be the chief minister of Uttar Pradesh, Sofia admitted that she was shocked, but was willing to give him a chance.

For Sofia, the triple talaq verdict is simply "too huge" for the Muslim community to ignore. Millions of Muslim women will celebrate it because it is a slap in the face of the religious leaders in the community who had opposed change for so long.

Speaking in the context of the Muslim clergy, she said, "Muslims are chief enemies of Muslims. Today as a Muslim woman, I'm telling you that I feel safer among Hindus than I do among Muslims."