Can Muslim bride be given right to refuse triple talaq: SC asks AIMPLB
The Supreme Court on Wednesday asked the All India Muslim Personal Law Board if it was possible to give the woman the option, before she gives her consent to nikaah, that the marriage she was entering into would not be dissolved through instant triple talaq.
The top court constitution bench headed by Chief Justice Jagdish Singh Khehar suggested that a clause can be added on the Nikaah Nama to say that the marriage can't be dissolved by the husband by pronouncing instant triple talaq.
The bench asked whether it was possible for the AIMPLB to do that and whether their advisory would be followed by the Qazis at the ground. You can incorporate this option in the Nikaah Nama before she gives consent to Nikaah to say no to triple talaq, Chief Justice Khehar asked the AIMPLB.
Responding to the suggestion, Senior counsel Yusuf Hatim Muchchala said that the advisory of the AIMPLB is not binding on the Qazis to follow on the ground.
However, Muchchala, who is also a member of the Executive Committee of the AIMPLB, referred to the recent resolution passed by the AIMPLB conclave at Lucknow wherein the Board has asked the community to boycott the men who take recourse to instant triple talaq to dissolved their marriages. The conclave took place on April 14, 2017.
He told the bench that they would consider the suggestion in all humility and would look at it. The suggestion to AIMPLB by the court came in the course of the hearing of a batch of petitions challenging the constitutional validity of triple talaq.
AIMPLB, has in the course of its submissions while saying that triple talaq was permissible, described it as a "sin" and "undesirable". The AIMPLB has said that the community needed time to change and reform itself on its own without any outside interference or dictate.
Yesterday, AIMPLB had informed the Supreme Court that marriage in the Muslim community is a contract and it is open for women to insist on specific clauses in the nikahnama to protect their interests and dignity.
Appearing for the board, Ejaz Maqbool told the five-judge Constitution bench headed by Chief Justice J S Khehar that a woman had four options before entering into a marital relationship, one of which includes registering the marriage under the Special Marriage Act, 1954.
“The woman can also negotiate in the nikahnama and include provisions therein consistent with Islamic law to contractually stipulate that her husband does not resort to triple talaq, she has right to pronounce triple talaq in all forms, and ask for very high 'mehr' amount in case of talaq and impose such other conditions as are available to her in order to protect her dignity,” the AIMPLB was quoted by Times of India as saying.
This is against the fact that last September, the law board had filed an affidavit in the top court in response to petitions by Shayra Bano and others challenging triple talaq and said, “Sharia grants right to divorce to husbands because men have greater power of decision-making”.
“A Muslim man can delegate his power of pronouncing talaq to his wife or to any other person. However, such delegation does not deprive the husband of his own right to pronounce talaq,” it added.
On polygamy, the board had said, “Quran, Hadith and the consensus view allow Muslim men to have up to four wives”.
In Tuesday’s hearing, AIMPLB counsel Kapil Sibal asserted that the practice of triple talaq cannot be termed as ‘unconstitutional’, adding that the top court should not decide or interfere in one’s faith and belief.
He further argued that just like the Hindus’ faith about Lord Ram’s birth at Ayodhya cannot be questioned, triple talaq should also not be questioned.