Satya Prakash

Tribune News Service

New Delhi, May 10

Chief Justice of India JS Khehar will head a five-judge Constitution Bench that is scheduled to commence hearing of petitions challenging the age-old practices of triple talaq, polygamy and nikah halala among Muslims from Thursday.

The other four judges on the bench are: Justice Kurian Joseph, Justice RF Nariman, Justice UU Lalit and Justice S Abdul Nazeer.

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Interestingly, the judges on the Constitution Bench belong to five different faiths – a testimony to India’s secular tradition.

Triple talaq or Talaq-e-biddat refers to pronouncing the word talaq thrice in one sitting while 'nikah halala' permits a man to remarry the woman he divorced only after she has married someone else; the marriage has been consummated with that man and then she has been divorced or widowed. Polygamy allows a Muslim man to take four wives.

Read: Protest at Jantar Mantar for ban on triple talaq

The top court has already made it clear that it would not look into the issue of Uniform Civil Code which is currently being examined by the Law Commission.

There are separate sets of personal laws in India for each religion governing marriage, divorce, succession, adoption and maintenance. Hindu law has substantially changed since the 1950s; activists complain that Muslim law has hardly been reformed.

Many Muslim women and Muslim groups have challenged these practices on the ground that these violated their fundamental right to equality, right to non-discrimination and right to live with human dignity.

Supporting the petitioners, the NDA government has requested the court to declare these practices unconstitutional as being violative of Muslim women’s fundamental right to live with dignity – a right available to women of other religions in India.

“Gender equality, gender equity and gender justice are values intrinsically entwined in the guarantee of equality under Article 14 as such equality of all women in the country was something which was ‘non-negotiable’,” it said.

In its written submission placed before the court last month, the Centre said neither triple talaq nor polygamy practised in the Muslim community in India was sanctioned by Islam.

The Centre’s submissions are in sharp contrast to those of All India Muslim Personal Law Board (AIMPLB) which sought to defend these practices, saying the Supreme Court cannot consider the constitutional validity of Muslim Personal law.

These were matters to be dealt with by the legislature, AIMPLB said in its affidavit.

On triple talaq, it said: “Once three pronouncements of divorce are made, the marriage dissolves and the woman becomes unlawful or haram to the man who had pronounced divorce.”

Defending polygamy AIMPLB said: “Polygamy meets social and moral needs and the provision for it stems from concern for women. The policy of Islam is to discourage polygamy but not to prohibit it. Islam encourages monogamy but does not make it mandatory.”