Advocate Farah Faiz, one of the petitioners, outside the Supreme Court yesterday prior to the hearing. Pic/PTI
Advocate Farah Faiz, one of the petitioners, outside the Supreme Court yesterday prior to the hearing. Pic/PTI

The Supreme Court yesterday commenced its historic hearing on a clutch of petitions challenging the constitutional validity of the practice of triple talaq and nikah halala among Muslims, saying it would first determine whether the practice is fundamental to Islam.

A five-judge constitution bench, headed by CJI JS Khehar, however, made it clear that the issue of polygamy among Muslims may not be deliberated upon as it is not connected with triple talaq.

"We will deal with the issue as to whether triple talaq is sacramental and whether it can be enforced as a fundamental right," said the bench, also comprising Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer.

The apex court also said if it came to the conclusion that triple talaq is fundamental to religion, then it will not go into the question of its constitutional validity. It said it will also deal with the aspect of whether triple talaq formed part of the enforceable fundamental right to practice religion under the Constitution.

Senior advocate Amit Singh Chadha, appearing for Saira Bano, one of the petitioners in the case, initiated the arguments against triple talaq, saying it was not fundamental to Islam and, hence, can be done away with. He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to buttress his plea that triple talaq is un-Islamic.

Senior advocate Indira Jaising, appearing for a petitioner, said in case of divorces being granted through extra-judicial mechanism, there should be a "judicial oversight" to deal with the consequences.

Senior advocate Salman Khurshid, who is assisting the court in his personal capacity, termed triple talaq as a "non-issue", saying it is not considered complete without conciliation efforts between husband and wife. Counsel for All India Muslim Personal Law Board Kapil Sibal concurred with Khurshid.