Centre has to prove triple talaq not essential in Islam, rules SC

Source: The Hitavada      Date: 16 May 2017 09:54:15


THE Supreme Court on Monday said it would examine whether triple talaq was an essential part of religion under Article 25 of Constitution.

A five-judge constitution bench headed by Chief Justice J S Khehar said “We have to see the test of essentiality and the Government has to prove that ‘triple talaq’ is not an essential part of Islam as this will amount to tinkering with religion.” The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, asked the Government why it had not brought in a law to bring about reforms if it had found the practice of triple talaq as wrong.

Attorney General Mukul Rohatgi said that all the three forms of divorce among the Muslim community –- talaq-e-biddat, talaq hasan and talaq ahsan, were “unilateral” and “extra- judicial”.
“Yes, we can bring law. There is no law for past 60 years. It has not been done. But the court should first strike down
these practices which are not in confirmity with the Constitution,” he said.

Rohatgi said that since the court is dealing with only one form of talaq, therefore he was restricting itself to one form only although he considered all forms as wrong and unconstitutional.

The attorney general said the issues of Muslim marriage and divorce were separated from
religion in Shariat Act of 1937 itself and have been codified as personal law under Section 2 of the Act.
He said the apex court has to test them on the touch- stone of the fundamental rights of gender equality, justice, dignity, gender discrimination and human rights under the constitutional provisions, including Articles 14, 15, 21 and 51A.

“Muslim women must have equal rights to property, succession, marriage and it should be non-discriminatory among the women of same class and other communities,” Rohatgi said.

Rohatgi said when half the population of a particular community is not empowered, no equal opportunity is given, they are devoid of gender equality, then it does not pass the test of constitutional morality.