New Delhi: The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging constitutional validity of the practice of triple talaq among Muslims.
A five-judge Constitution bench headed by Chief Justice JS Khehar heard the issue for six days during which various parties including the Centre, All India Muslim Personal Law Board, All India Muslim Women Personal Law Board and various others made the submissions.
The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, had begun the hearing on May 11.
Attorney General Mukul Rohatgi had on Wednesday told the Supreme Court that the issue of ‘triple talaq’ should not be seen as discrimination between majority and minority communities or the majority forcing its views on minority.
The AG strongly pleaded before a five-judge Constitution bench of Chief Justice JS Khehar and Justices Kurian Joseph, Rohinton Nariman, Uday Lalit and Abdul Nazeer for abolition of ‘triple talaq’ form of divorce. Wednesday was the fifth day of hearing of a batch of petitions, challenging the validity of triple talaq.
In his reply, the AG rejected the arguments of senior advocate and Congress leader Kapil Sibal, appearing for the All India Muslim Personal Law Board that the court should adopt an ‘hands-off’ approach on triple talaq issue as it would amount to the majority forcing their views on the minority community.
Rejecting the charge, the AG said “It is a tussle between haves and have-nots within the system. It is intra-community struggle between men and women because men are more resourceful, earner and educated." It is the duty of this court to step in and put a final end to the practice, he added.
When Justice Kurian Joseph asked the AG whether 'personal law’ based on faith and scriptures can be tested by the court, the AG said if personal law is in violation of the fundamental rights then this pernicious practice must go. When Justice Joseph asked whether the court which had taken suo motu cognisance can return the reference without answering it, the AG said the role of the Constitutional court is to test it under Article 25 (right to religion).
The CJI told the AG “the AIMPLB tells us don’t get involved in the thicket as different people say different things. When the government has not enacted a law for over 60 years, why should this court interfere.”
The AG said “we are a secular democracy. If the practice in a religion is not in accordance with fundamental rights and if there is a conflict between personal law and constitutional rights, then the court should step it.”
Arguing for the All India Muslim Personal Law Board (AIMPLB), senior lawyer and Congress leader Kapil Sibal had on Tuesday questioned how triple talaq could be unconstitutional if it had been going on for 1400 years.
Sibal claimed that 'constitutional morality and equity' cannot interfere in matters of faith.
"If the faith of Hindus about Lord Ram's birth at Ayodhya can't be questioned, then triple talaq ,a matter of faith for Muslims, shouldn't be either," Sibal added.
Kapil Sibal told the Supreme Court that it shouldn't upon decide or interfere in one's faith and belief.
Justice Rohinton Nariman asked Sibal, "You mean to say that we shouldn't hear the matter?" To which Sibal replied, "No, you shouldn't".
The members of the apex court bench are from different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.
The bench had made it clear that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion and had also said for the time being it will not deliberate upon the issue of polygamy and 'nikah halala'.
It had also said that the issue of polygamy and 'nikah halala' would be kept pending and will be dealt with later.
Nikah Halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her going through the process of marrying someone else, consummating it, getting divorced, observing the separation period called 'Iddat' and then returning to him.
The apex court had on its own taken cognisance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.
The hearing assumed significance as the apex court has heard the matter during the summer vacation.
