Triple talaq to be tested on touchstone of Constitution: SC

A divorce through ‘triple talaq’ among the Muslim community is a “very important matter, affecting a large section of people”, which has to be tested on the “touchstone of constitutional framework”, the Supreme Court said while agreeing to examine the issue of the personal law on Wednesday.

The Apex Court said, “We are not straightaway arriving at any conclusion” as there were “very strong views” on both sides. The court said it would also see if there was any error in previous judgements, which dealt with the issue and decide if it could be referred to a larger or a five-judge Constitution Bench.

“We are straightaway not jumping to a conclusion. It has to be seen if there is a need for further consideration of the law by the Constitution Bench,” said a Bench, comprising Chief Justice TS Thakur and Justice AM Khanwilker, while asking the parties to get ready for a debate on the scope of judicial review of judgements on ‘triple talaq’.

“Personal law has to be tested on the touchstone of constitutional framework,” it said, while stressing that “this is a very important issue, affecting a large section of people and there are very strong views from both the sides.” 

The Bench, which posted the matter for further hearing on September 6, said, “legal propositions for determination has 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 subjected to the fundamental rights.

The Bench said, “All can express their views and participate in the debate. We will know what is the stand of all the parties.” 

Wednesday’s hearing saw a total of four petitions, assailing the concept of divorce through ‘triple talaq’, with the Bench allowing all of them to be impleaded and sought the stand of the Centre on the issue within six weeks.

The remarks that all can express their views came after a woman advocate, Farah Faiz, sought restraint on the All India Muslim Personal Law Board (AIMPLB) and others from airing their views on public platform including TV debates. 

“We will not be influenced by TV shows. You can also participate in TV shows. We will keep your application pending. If at any stage we find that they are going out of hand, we will intervene,” the Bench said.

The AIMPLB’s counsel defended the ‘triple talaq’ practice and said it had been held by courts that matters of personal law could not be tested constitutionally. 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 is 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).

The court had on March 28 asked the Centre to file before it the report of a committee constituted earlier to look into the aspects of personal laws relating to marriage, divorce and custody prevalent in various religious minorities, including Muslims.