NEW DELHI: The Supreme Court on Wednesday said it will first examine to what extent it can step in to see whether Muslim laws governing family issues interfere with Constitutional rights. The apex court’s observation came when it was hearing pleas to end the age-old practice of allowing Muslim men to divorce their wives by saying ‘talaq’ thrice.
According to the Constitution, Muslims can regulate matters such as marriage, divorce and inheritance through their own civil code. “It is an important issue affecting a large number of people. We will examine the legal provisions,” Chief Justice of India T S Thakur remarked adding that the issue of triple talaq has to be studied on the touchstone of Constitutional framework and earlier verdicts and it will first decide that before constituting a five-judge Constitution bench.
The court’s remarks came when the All India Muslim Personal Law Board (AIMPLB) pleaded that such personal laws were based on the tenets of Islam and the judiciary had no power to adjudicate on their validity in the face of women’s fundamental right to equality.
“We are straightaway not jumping to any conclusion. It has to be seen if there is a need for any further consideration of law by the Constitution Bench,” the Bench, also comprising Justice A M Khanwilker, said while asking the parties to get ready for a debate on the scope of judicial review of judgments on ‘triple talaq’. “Personal law has to be tested on the touchstone of constitutional framework,” it said, while stressing that it’s a very important issue affecting a large section of people and there are very strong views from both sides.
The Bench, which posted the matter for further hearing on September 6, said legal propositions for determination have to be worked out.During the hearing, senior advocate Indira Jaising referred to an old verdict of the Bombay High Court holding that the Personal Law regime cannot be subject to fundamental rights.
The court was hearing a batch of PILs, including a suo motu petition, for and against such laws.
The apex court had earlier sought the Centre’s response on a plea challenging the Constitutional validity of Muslim practices of polygamy, triple talaq (talaq-e-bidat) and ‘nikah halala’. Talaq-e-bidat relates to a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations), or in a tuhr after coitus, or pronouncing an irrevocable instantaneous divorce at one go (unilateral triple-talaq).
Among the petitioners are two Muslim women who challenged the validity of ‘triple talaq’, polygamy and remarriage restrictions.