NEW DELHI: Making a desperate attempt to dissuade the Supreme Court from testing the validity of triple talaq, the All-India Muslim Personal Law Board (AIMPLB) agreed on Thursday to pass a resolution advising qazis to include the bride’s view on triple talaq in the nikahnama.
AIMPLB, through Kapil Sibal, responded to a query from the court about a woman being given the option to incorporate in the nikahnama whether she agreed to give her would-be husband the right of triple talaq. The court reserved its order on seven petitions which have questioned the validity of triple talaq.
On the sixth and final day of hearing before a bench of Chief Justice J S Khehar and Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, Kapil Sibal, representing AIMPLB, said, “I have spoken to the board and they have agreed to pass a resolution advising qazis to specify in the nikahnama whether the bride intended to give her would-be husband the right to divorce her through triple talaq.”
Sibal’s final spin gelled with his argument that marriages among Muslims were a contract and others should not complain if the contracting parties were agreeable to triple talaq, which has been in practice for the last 1,400 years and an overwhelming majority of 160 million Indian Muslims held this as a valid mode of ending marital relations. But the bench persisted with its doubt, “How will one determine whether the to-be bride’s views in the nikahnama were expressed in exercise of her free will?”
The bench said, “All are unanimous that triple talaq finds no mention in the Quran but it is certainly inferable that it is a sinful practice. Even if one does not test its constitutional validity, how could a theologically sinful custom be enforced as a practice? What is morally wrong cannot be legally right.”
Sibal said, “A lot of sinful things happen in society and are protected by personal law. The Supreme Court is not there to get into testing the legality of every sinful practice and correct it. If the government wants to correct it, it can do so by enacting legislation. If the SC starts interpreting Hadith, then it chooses to travel down a slippery slope.
“AIMPLB does not want the SC to get a foothold in the doors leading to scrutiny of customs. Once it gets a foothold, the doors to personal practices and customs will be ajar and the court will not know where to stop. It is a very slippery slope and the court must be very careful.” This was met with vociferous disapproval from women lawyers even as the SC said it understood Sibal’s argument that courts must adopt a hands-off approach.
The bench asked Sibal, “If the courts were to have a handsoff approach, how did the Bombay high court order women’s entry in the Shani Shingnapur temple and Haji Ali dargah?” Sibal said women’s groups had protested against the ban on their entry into Shani Shingnapur temple despite enactment of the Maharashtra Hindu Places of Public Worship (Entry Authorisation) Act, 1956. “This is what I am arguing. Enact a law and then regulate. But let the courts not test the validity of a custom or practice of a community,” he said.
Appearing for the Muslim Women Personal Law Board, which has no male member in its governing body as compared to 30 women members in AIMPLB’s 251-strong governing body, advocate Arif Mohammed Khan said, “Kapil Sibal is one of the finest legal minds in the country. When the facts do not support him — the Quran does not mention anything about triple talaq and majority regards it as a sinful practice — he muddies the water by bringing in customs and faith.”
Senior advocate Salman Khurshid, assisting the court, said he did not agree with Sibal’s argument that the legislature could interfere in regulating and banning customs and practices of a community but their validity could not be tested by the courts. The SC said it per se did not agree with Sibal’s argument. Senior advocate Indira Jaising said in a lighter vein, “If the court agrees with him on this, I will seek hearing before an even larger bench which includes at least one woman judge.”