NEW DELHI: Is triple talaq and polygamy allowed among Muslims, legal? And is it protected by the constitutional right to religion even if it means overriding the rights of women?
Questions like these put up by the NDA government may be referred to a larger, five-judge constitution bench of the top court for a final word.
"This is such an important issue and can't be scuttled," a three-judge bench headed by Chief Justice JS Khehar said on Thursday, observing that the four points suggested by the Centre relate to constitutional issues and should be dealt with by a larger bench.
The Centre's four-point suggestion was a response to the top court's call on Tuesday for pointed questions of law on triple talaq, nikah halala and polygamy that the court should discuss.
The constitution bench, which is expected to be headed by CJI Khehar, will hold the hearings from May 11, well after the completion of the assembly elections in five states. The court had earlier indicated the hearings may be completed within a week.
There is no word on when the court will deliver the judgment but is likely before August-end. CJI Khehar's is due to retire on August 27.
Triple talaq lets Muslim men get instant divorce by saying "talaq" three times while nikah halala bars a man from remarrying the woman after triple talaq unless she consummates her marriage with another man, and her new husband dies or divorces her. The court is hearing a batch of petitions opposing triple talaq, after women complained that they had been divorced via Facebook and WhatsApp.
The bench, also comprising Justices NV Ramana and DV Chandrachud, intends to finalise the questions that the constitution bench should answer on March 30. It, however, stressed that the court would only look at these practices from a legal prism, and not go by facts in individual cases.
The Constitution grants equal protection under law to all citizens. But Muslims are governed by the personal law, which came into force in 1937. The NDA government has long argued that practices such as triple talaq violates fundamental rights of women guaranteed by the Constitution. It also insists that it does not form a part of the "essential religious practices" in Islam.
The Muslim personal law board has contended that Muslim practices such as polygamy and triple talaq were matters of "legislative policy" that could not be interfered with by the judiciary.