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19 May 2017

Backing for clause against talaq

R. Balaji, TT, New Delhi, May 18: The All India Muslim Personal Law Board today told the Supreme Court it favoured the marriage agreement or nikahnama giving a bride the option not to agree to the wedding unless the document contained a clause prohibiting an instant triple talaq.
It said it would send advisories to all the qazis in the country to include such an option in nikahnamas, accepting in principle a suggestion the apex court had made at the previous hearing.
Law board counsel Kapil Sibal gave this oral undertaking to a five-judge constitution bench on the last day of a six-day hearing of petitions challenging the constitutional validity of the instant talaq. The court reserved its verdict, which is expected in July-August.
Such a clause in the nikahnama would allow brides to insist that the groom agree on record that she cannot be given an instant talaq. If the groom did later pronounce the triple talaq, the bride would be able to challenge its validity in court by citing the nikahnama.
"I had a meeting with the law board and they have accepted that this will be part of the nikahnama. They will send this advisory to all the qazis," Sibal told the bench, headed by Chief Justice J.S. Khehar.
"Why don't you produce a copy of the model advisory?"
Justice Kurian Joseph, one of the judges on the bench, asked, prompting Sibal to seek a week's time for the Urdu draft to be translated into English.
The law board has been arguing that the instant talaq is a matter of faith, and the apex court should not interfere with the community's personal laws since the Constitution gives citizens the right to preach and practise their religion.
Sibal today repeated the law board's dare to the Centre to enact a law to abolish the instant talaq - after a debate - rather than asking the judiciary to declare it illegal.
"The government talks about constitutional morality but is not following the Constitution. The Constitution has provided for a procedure to bring in a law for social reform. The court could test that law to infer whether it violated the constitutional right to profess one's religion," Sibal said.
The court asked former Union minister Salman Khurshid, who has made an intervention application in the matter, how the triple talaq could be a matter of "faith" when he agreed it was "patriarchal", "bad in theology" and "sinful", a PTI report added.
"You (Khurshid) say it is sinful. How can a sinful practice be said to be a matter of faith? The system itself says it is horrendous and bad," the report quoted the bench as saying.
Khurshid had said the practice was not mentioned in the Quran and a law "bad in theology" could not be good in law.
"That is why, what is sinful cannot be part of practice. If it is bad in theology, it cannot be accepted in law. What is morally wrong cannot be legally right. What is not fully moral, it cannot be legal," the bench was quoted as saying.
Former Union minister Arif Mohammed Khan, appearing for the All India Muslim Women Personal Law Board, said the instant talaq was a pre-Islamic Arab tradition that lacked sanction in the Quran. "It is contrary to the Islamic values of equity, justice and good conscience. The practice has no place in Islam," he said.
Amit Singh Chaddha and Balaji Srinivasan, appearing for petitioner Sharaya Bano, urged the court to declare the instant talaq unconstitutional, arguing that distressed women had no one to turn to except the highest court.
Chaddha cited how the Centre was refusing to outlaw the practice despite agreeing that it went against constitutional guarantees. "Where does a citizen go? The only remedy is to come before this constitutional court," he told the bench that also included Justices R.F. Nariman, U.U. Lalit and Abdul Nazeer.

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