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Thursday, 24 August 2017



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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