The Writ Petition currently being heard by Hon'ble Supreme Court of India in Shayara Bano case has contained mainly three issues namely; challenging the the practices of a) talaq-i-biddat (instantaneous triple talaq), b) nikah-halala (bar against remarriage with divorced husband without an intervening marriage with another man) and c) polygamy, as unconstitutional. Due to the scarcity of time Hon'ble Supreme Court of India decided to drop the other two issues and focused on media hyped issue, regarding the constitutionality of triple talaq.
The debate started with the constitutionality of triple talaq is heading towards belief system and fundamental faith of followers of Islam. Hon'ble Supreme Court of India while listening to the matter also showed the concern that, whether the 'triple talaq' fundamental to Islam. The learned Counsel for petitioner Mr. Kapil Sibbal has argued that though the talaq-i-biddat (instantaneous triple talaq) has no mention in Quran, still it is a matter of faith for 1,400 years for followers of Islam.
In this entire debate and trending news article the author is deeply surprised that Hon'ble Supreme Court of India on 17/5/17 i.e. on the fifth day of hearing of the said Public Interest Litigation asked the All India Muslim Personal Law Board; 'Whether a woman (Muslim) can be given an option of saying 'no' to triple talaq at the time of execution of nikahnama'. Nikahnama is basically an Islamic marriage contract containing the terms and conditions of marriage to be executed by both the bride and bridegroom. A typical nikahnama contains the basic profiling of the bride and bridegroom, nature and kind of mahr (dower), etc. Nikahnama is a binding contract and a fundamental element of an Islamic marriage. It also describes the rights and obligations agreed upon by both the parties i.e. bride and bridegroom.
This leads to a solution in the present scenario and an end to the existing debate. As the clause 3 of Article 15 of the Indian Constitution provides an exception to the general rule regarding the prohibition of discrimination on grounds of religion, race, caste, sex and place of birth. It provides that nothing in Article 15 of the Indian Constitution shall prevent state from making any special provisions for women and children.
In the light of the above stated Constitutional provision and triple talaq being matter of faith for the followers of Islam, giving a woman (Muslim) an option of saying 'no' to triple talaq at the time of execution of nikahnama', seems to be the most possible mid- way solution to the current issue. This will not only protect the interest of a woman (Muslim) but also keep the 1,400 years faith of the followers of Islam, intact.
(The writer is a gold medalist in LL.M, from Law School,Banaras Hindu University and also worked as Assistant Professor (ad hoc) at Hidayatullah National Law University, Raipur)