India's all-male supreme court to decide if instant 'Talaq' Islamic divorce should be outlawed

Five judges on the case belong to five different religions

Indian Supreme Court (Wikimedia Commons)

A five-member all male bench of the Supreme Court of India will hear the final arguments over the Islamic practice of “instant divorce”, where a man can divorce his wife by saying the word “talaq” three times.

The unique case will examine whether or not the practice is fundamental to Islam and therefore outside Indian law.

It comes following seven petitions from Muslim women and rights groups who have been campaigning to get the practice outlawed in the country.

The bench responsible for making the decision is made up of five men from five different religions: Chief Justice JS Khehar, who is Sikh, Justice Kurian Joseph, who is Christian, Justice Rohinton Nariman, who is Parsi, Justice Uday Lalit, who is Hindu, and Justice Abdul Nazeer, who is Muslim.

There have been arguments that the case itself is outside the remits of judicial review and that “triple talaq” is a subject of personal faith.

In India the state generally does not interfere in matters of personal dispute – a law which came into force in 1937.

“If we come to a conclusion that triple talaq is part of (the) fundamental right to religion, we would not interfere,” the The Times of India reported the apex court as saying.

“We will also determine whether triple talaq is sacramental and whether it can be enforced as a fundamental right.”

Syed Tanveer Nasreen, an activist and an academic from Kolkata, has been arguing that divorces should be settled in a court of law.

The case has been strengthened with reports of husbands divorcing their wives over the phone or through instant messaging apps.

“It is a patriarchal practice which seeks to exploit the women in the name of religion. We have great faith in Khehar, who, we believe, will do justice and hold human rights above the sentiments of minorities,” Mr Nasreen told First Post.

There are 155 million Muslims living in India and they are the largest minority group in the country. Marriages within the community are governed by the Muslim personal law, which is based on Sharia.

The “talaq” practice itself is banned in neighbouring countries of Pakistan and Bangladesh.

Although the practice of repeating the word “talaq” three times has been around for decades there is no mention of it in the Quran.

Islamic scholars have argued that divorces must be spread over a period of three months, allowing partners to take their time and ensure reconciliation is not feasible.

The Supreme Court has planned a six-day hearing, with three days for arguments challenging the triple talaq and three days defending it.

A judgement is expected in the coming weeks.