New Delhi: India’s highest court yesterday began considering the legality of a controversial divorce practice prevalent in the Muslim community In India that allows men to leave their wives instantly by saying the word “talaq” [divorce] three times.

“Triple talaq” has come under scrutiny with reports emerging of men divorcing their wives via letters, Skype and WhatsApp messages.

“We told the court that the practice [of sending a divorce notice via letters, Skype and WhatsApp messages] has no basis in the law or in the Quran,” said Balaji Srinivasan, a lawyer for Shayara Bano whose husband split from her by writing “divorce” three times on a piece of paper. Several women divorced in this manner have petitioned the Supreme Court to overturn the practice. The apex court said it would determine whether “triple talaq” is part of the fundamental right to religion of the Muslim community.

A panel of five judges from India’s major faiths — Hinduism, Christianity, Islam, Sikhism and Zoroastrianism — will consider the matter and is expected to deliver a verdict next week. They made it very clear that the bench is “only going to rule on the constitutional validity of oral divorce and not on polygamy.”

Fundamental right

“If we come to a conclusion that ‘triple talaq’ is part of the fundamental right to religion, we would not interfere,” the court said. There have been several reports of women divorced over the phone or through text messages and even newspaper advertisement. But activists say the practice is “discriminatory.”

Firoz Khan Ghazi, general secretary of the South Asian Minorities Lawyers Association and legal adviser to the All India Muslim Personal Law Board, said,:“The concept of saying “talaq” three times in one sitting is a perverted innovation in Islamic legal system and against Quranic injunction and principle of Islamic jurisprudence.”

Courts’ interventions

Although several groups have opposed the courts intervention in their religious matters, the move has the backing of Prime Minister Narendra Modi. The government has told the court that “triple talaq” is unconstitutional, against gender justice and the dignity of women.

Activists say over the years, several thousand women have been thrown out of the house by their husbands and rendered destitute. Some have been forced to return to their parental homes and have no choice but to fend for themselves and their children.

Ishrat Parveen, a teacher and an activist, stressed, “Women in Islam have more prescribed rights, but not many are aware of it. Instead of fighting over triple talaq, we need to educate women, especially from the lower strata of society, about their rights.”

Muslims are a large minority community, comprising a population of 155 million and their marriages and divorces are governed by the Muslim personal law that came into force in 1937 and lays out that in matters of personal dispute, the state shall not interfere. The lead petition in the case is titled ‘Quest for Equality vs Jamiat Ulema-i-Hind’.

Six other petitions have been tagged with the case.

— With inputs from agencies

ON THE BENCH : FIVE JUDGES

Justice J S Khehar

The first Sikh to become the Chief Justice of India, Khehar has been the CJI of India since January this year. He was elevated to the Supreme Court in 2011, before which he had served as the CJ of the Karnataka High Court from 2010. His first appointment as Chief Justice of any high court was in 2009, in the Uttarakhand High Court. Khehar was a part of the bench which sent Sahara chief Subrata Roy to prison while hearing the matter relating to the refund of money invested by people in his companies. He was also instrumental as he presided over the constitution bench that junked the National Judicial Appointment Commission as unconstitutional holding that it intruded upon the independence of judiciary.

Justice Uday U Lalit

Hailing from Maharashtra, Justice Uday U Lalit joined the Bar in 1983 and had been practising in the apex court between 1986 and 2014. He was appointed as a judge in the apex court in 2014. He had represented Bharatiya Janata Party President Amit Shah in the Tulsi Prajapati encounter case in the Supreme Court. He was also a special prosecutor in the 2G spectrum allocation case that rocked the country few years ago. His other high profile cases include representing the government, opposing Dr Binayak Sen’s bail plea when he was held on sedition charges. He has represented Punjab Chief Minister Amarinder Singh in a corruption case and also Navjot Singh Sidhu, his cabinet colleague, in a culpable homicide case.

Justice Rohinton Nariman

A Parsi, Justice Rohinton Nariman is the son of distinguished jurist Fali S Nariman. He was a senior counsel at the Supreme Court of India before being elevated as a judge in the apex court in 2014. He also served as India’s solicitor-general between 2011 and 2013. Beginning his career in 1979, the 60-year-old jurist became a senior counsel in the Supreme Court in 1993. He is also known as a scholar on the Zoroastrian faith. Hailed as one of the most brilliant lawyers in the country, Nariman is known for his expertise in Constitutional, Corporate and Civil Law. A learnt priest, he is passionate about western classical music.

Justice Kurian Joseph

A Christian, Justice Kurian Joseph began his legal career in 1979 in the Kerala High Court. An alumnus of the Kerala Law Academy Law College, he became a government pleader in 1987 before the Additional Advocate-General in 1994. Joseph was designated as a senior advocate in 1996 and in 2000 he was elevated as a judge of the Kerala High Court. He became the Chief Justice of Himachal Pradesh High Court in 2010 and continued to remain in the position till 2013. He was elevated to the Supreme Court in 2013. He was in the news recently for declining to attend Prime Minister Narendra Modi’s dinner for top judges on the ground that the event and the ongoing judges conference clashed with Good Friday and Easter weekend.

Justice Abdul Nazeer

A Muslim, Justice Abdul Nazeer enrolled as an advocate in 1983. He was elevated as an additional judge of the Karnataka High Court in 2003. He became a permanent judge of the Karnataka High Court in 2004 and was appointed as a judge of the Supreme Court in February 2017. Nazeer completed his B. Com from Mahaveera College in Moodbidri, before obtaining a law degree from SDM Law College, Mangalore. He is perhaps the third judge elevated directly to Supreme Court before becoming the chief justice of a high court.