Evening NEWS
DIGEST (Early)
24
Aug. 2017: 01 Zilhajja 1438:Vol:8, No:264
PERSONAL
LAW vs UNIFORM CIVIL CODE
Confusion over teiple talaq verdict deepens
as SC declines to "clarify" order when Kapil Sibal says it did not
represent majority opinion of bench
New Delhi: The Supreme Court on Thursday declined to "clarify"
its verdict that had by majority declared instant triple talaq to be un-Islamic
and unconstitutional.Senior lawyer Kapil Sibal, who appeared for the All India
Muslim Personal Law Board, mentioned the matter before Chief Justice of India JS
Khehar, who had authored the minority ruling in this case with Justice S A
Nazeer.Sibal submitted the final page of order at the end of 395-page judgement
does not reflect the majority view of the bench. He wanted further clarifications."To
our mind, the judgement is clear.There is no need for any clarification,"
CJI Khehar said.The court, however, said the counsel can file appropriate
application, if he felt so.The top court's 5-judge bench by 3:2 had on August
22 declared the practice of instant divorce by pronouncing talaq thrice at one
go as arbitrary and unconstitutional. It also concluded that the practice is
not part of Islam.The 3 separate verdicts totalling 395 pages, written for the
majority by Justices Kurian Joseph and RF Nariman, did not concur with the
minority view of CJI and Justice SA Nazeer that 'triple talaq' was a part of
religious practice and the govt should step in and bring in a law. 3 judges,
Justices Joseph, Nariman and UU Lalit, expressly disagreed with CJI and Justice
Nazeer on the key issue whether triple talaq was fundamental to
Islam.CNN-News18
Is CJI’s contradiction led other 3 judges to
strike down Triple talaq? CJI first declares
talaq under fundamental right, later stays for 6 months, even tells
Parliament to legislate
New Delhi:Justice Kurian Joseph caught the constitutional contradiction
in Chief Justice JS Khehar's 272-page judgment which held the minority view —
that triple talaq was a constitutionally valid mode of divorce being intrinsic
to Islamic personal law and hence part of fundamental rights. Of the 272 pages,
Justice Khehar and Justice S Abdul Nazeer devoted 268 pages to examine triple
talaq from every possible perspective — legal, constitutional and theological —
and recorded, "We have arrived at a conclusion that talaq-e-biddat (tripletalaq)
is a matter of 'personal law' of Sunni Muslims belonging to Hanafi school. It
constitutes a matter of their faith. It has been practised by them for at least
1400 years."We have examined whether the practice satisfies the
constraints provided under Art 25 (right to religion) of the Constitution, and
have arrived at the conclusion that it does not breach any of them.We have also
come to the conclusion that the practice being a component of 'personal law',
has the protection of Art 25 of the Constitution."Having constitutionally
cloaked triple talaq, the CJI declared, "Religion is a matter of faith,
and not logic. It is not open to a court to accept an egalitarian approach over
a practice which constitutes an integral part of religion. After making triple
talaq immune from judicial interference, CJI remembered SC's constitutional
powers under Art 142 to do 'complete justice'.In the last 4 pages, CJI dealt
with the near unanimous view that the practice was "arbitrary and gender
discriminatory" and said India should take the legislative route to do
away with this practice as had been done by countries with sizeable Muslim
populations and even by theocratic Islamic states. This 4-page discussion
persuaded the CJI and Justice Nazeer to stay the practice of triple talaq,
which they had declared to be a fundamental right. This raised the discomfiting
question — can a constitutional court stay the operation of a fundamental
right? CJI and Justice Nazeer did that, albeit for a period of 6 months, to
enable Parliament to legislate on it.They even went on to "beseech
different political parties to keep their individual political gains apart
while considering the necessary measures requiring legislation". Justice
Joseph, who along with Justice RF Nariman and Justice U U Lalit constituted the
majority in striking down triple talaq, caught this contradiction, even though
mentioning it fleetingly, out of respect for the CJI, in his 27-page
judgment.Justice Joseph said, "After the introduction of Muslim Personal
Law (Shariat) Application Act, 1937, no practice against the tenets of Quran is
permissible. Hence, there cannot be any constitutional protection to such a
practice (triple talaq) and, thus,my disagreement with the learned Chief
Justice for the constitutional protection given to triple talaq."He nailed
the contradiction by writing, "I also have serious doubts as to whether
even under Article 142, the exercise of a fundamental right can be injuncted
(stayed)."TOI
Jamiat defiant: Triple talaq is still valid,
punish if you wish to
Striking a defiant note a day after the Supreme Court set aside the
practice of instant triple talaq or talaq-e-biddat, Jamiat Ulama-i Hind general
secretary Maulana Mahmood Madani Wednesday said that regardless of the court
ruling, the practice of talaq, including instant triple talaq, will continue in
the country and will be considered valid. “If you want to punish the person for
it, you can do so but the divorce will be recognised,” Madani told reporters.
“We are viewing this very seriously. Not only do we not agree with the
judgment, we think this is a direct assault on the fundamental right to
practice religion. The repeated reference to nikaah, halala, polygamy etc have
raised apprehensions that there may be more such interference on the anvil,”
Madani said.“I want to state in unequivocal terms that talaq will continue to
happen even though it is the worst sin in Islam, even instantaneous talaq will
happen. If you want to punish the person, you can but the divorce will be
deemed to have happened,” Madani said. He cited the example of owning a
revolver licence. “Delhi Police has given it to me for self-defence, not to
kill somebody,” he said, trying to explain why Islam incorporated the provision
of talaq while deeming it halal. indianexpress
Congress, Muslim Personal Law Board must
apologise to Muslim women now: UP minister Raza
Lucknow:UP govt’s Muslim face Mohsin Raza in an interview hailing the
Supreme Court's verdict on triple talaq, blamed AIMPLB and the Congress for
keeping quiet on the exploitation of Muslim women for so long. On the SC order
on triple talaq, "It’s a historic order that would liberate our sisters
from the exploitation they suffered for so long. And who made them suffer? It
was All India Muslim Personal Law Board and the Congress that refused to act
against this exploitation for obvious reasons. Remember how the then Congress
government circumvented an SC judgement in the Shah Bano case through an act in
1986. That’s how Muslim women were made to suffer for vote bank reasons."
Attacking AIMPLB, UP minister said, "How can an NGO that the AIMPLB
actually is be so powerful that it started influencing decisions, being
oblivious to exploitation of women?."He added, "They (AIMPLB) started
looking within only when they realised that their tactics to suppress Muslim
women won’t work any longer. In fact, I would say that if the Board still refuses
to see reason after the SC order and remains rigid, then it should be banned.
In fact, both the Board and Congress must apologise to Muslim women."HT
7 yrs after banning Triple Talaq, MP’s sharia
court reacts to SC
Long before the Supreme Court’s judgment holding triple talaq
unconstitutional, the judges of MP’s Sharia court had put an end to hearing
cases related to the unsavory practice, restricting themselves to only single
talaq cases since 2010. Welcoming the SC’s 3-2 verdict of 22 Aug, Shariat court
(Dar-ul-Qaza) Chief Judge Mushtaq Ali Nadvi said: “I have often opposed the
practice of instant talaq and urged the parties to follow Shariat laws related
to nikah and talaq,” adding that courts “banned seven years ago what the SC has
done today”. Emphasising that he “stands by” AIMPLB, Nadvi said that he would
abide by the decisions that this body takes in the course of the next week or
so.Dar-ul-Qaza is the only Sharia court in MP, run by the Bhopal Masajid
Committee, which hears, resolves and delivers judgements on matrimonial
disputes of the Muslim community but it does not force the parties to follow
its pronouncements. The court is presided over by two judges –Ali Nadvi and
Sayed Babar Hussain Nadvi.When asked whether Parliament should legislate a law
to do away with triple talaq, Ali Nadvi said:Parliament is free to make laws on
any subject and several Bills remain pending in both Houses, but the central
government has been targeting a single community and has been raking up
religious issues to get political mileage.These moves, Ali Nadvi said, are
against the spirit of Article 25 of the Constitution, which says that “All
persons are equally entitled to freedom of conscience and the right to freely
profess, practice, and propagate religion subject to public order, morality and
health.Responding to the question that why India shouldn’t follow other Islamic
countries which have banned the retrograde practice of triple talaq, both
sharia court judges said that India cannot be compared with other countries,
especially when “Muslims’ culture, living standards and laws are different
here. Muslims constitute a minority in India while they are a majority in the
Arab states.”Over the broader issue of uplifting the lot of Muslim women and
their emancipation, Hussain Nadvi said:If the government really wants to usher
in reforms, it should turn its focus on women who are forced to live in old-age
homes and religious places as their children refused to support them.
Setting aside MP HS judgement against
Dar-ul-Qaza and Darul ifta, an SC's 3-judge Bench led by RM Lodha (then CJI),
ruled in 2014 that while the institution of Dar-ul-Qaza has no legal status,
they were not altogether illegal.Bench added that the institutions functioned
as “informal justice delivery systems” that amicably settled disputes between parties
in the light of the “book of Allah” and “sunnat of the Prophet”.To drive home
their point, the judges said that the institutions represented “alternative
dispute resolution mechanisms” which settled disputes outside the court.
Justice Lodha-led Bench said for good measure that a fatwa was an experts’
opinion which influences Muslims, but parties to a dispute could either accept,
ignore or reject it. Besides, the Bench held that Shariat courts had no right
or power to enforce fatwas and if they did so, it would be illegal. Earlier, we
would rarely entertain unilateral decisions involving triple talaq but after a
few cases adjudicated by the Supreme Court in the past, we would take decisions
in the presence of both the parties. And since the second party (wife) would
not appear before us,we would cajole the 2 parties to approach the district
court. “Now it is an unwritten rule in our court that we don’t accept triple
talaq cases,”added Ali Nadvi, who is also Shahr-e-Qazi. thequint
Day after SC order, case against UP man, his
6-kin who gave triple talaq to wife; accusing them of dowry, beating, issuing
life threats:HT
Meerut: A day after the Supreme Court termed triple talaq as
unconstitutional, a woman lodged an FIR against her husband, who had divorced
her through triple talaq in a panchayat on Tuesday.The woman also filed a case
against her 6 in-laws on Wednesday. Arshinida of Kamra Nawabkhan locality of
Sardhana town lodged a case against her husband Siraj, his father Riyaz, 3
sisters and 2 others, also accusing them of demanding dowry, beating and
issuing life threats.Circle officer of Sardhana, Dr Bheem Kumar Gautam said
that a case under sections 498A, 323, 505, 506 IPC and ¾ Dowry Act had been
lodged against Siraj and 6 other family members. “Perhaps it is the first case
against talaq in the district after the verdict of the apex court,” he
said.Siraj married Arshinida 6 years ago. Nida’s family blamed her husband and
in-laws for demanding ₹1 lakh and a car and alleged that when they refused,
Nida was tortured.A panchayat was convened to discuss and resolve the issue on
Tuesday and the elders were trying for a compromise when Siraj gave triple
talaq to Arshinida.Shocked family members approached Muslim clerics to seek
their opinion on the issue and eventually Nida lodged a police complaint
against her husband and his family members. hindustantimes
Compiled
and edited by Anwarulhaq (Released at: 4:07
PM)
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