20 May, 2017
"Slamming the Centre for calling triple talaq 'un-Islamic" and not ordained by the Quran or Constitution, he said ceremonies concerning birth, marriage, divorce, property and death are decided by families, influenced by social norms. It is a matter of faith. "Hence, there was no question of constitutional morality and equity", Kapil Sibal, appearing for AIMPLB, said.
"If the practice of instant divorce (triple talaq) is struck down by the court, then Centre will bring a law to regulate marriage and divorce among the Muslim community", he said.
"The Central Government makes rules but in my opinion the apex court should not interfere into it", Sibal said. "This is the question and this is the issue".
Muchchala, who is also a member of the AIPMLB's Executive Committee, made his suggestion to the five judge constitution bench in response to a question from it as to why triple talaq was excluded from the "Nikah Nama" and why "talaq ahasan" and "hasan" alone are included. Nikah halala allows a woman to go back to her husband but only after she marries another man, consummates the marriage and gets a divorce. You (Court) need to protect their customs.
"The intention of the 1937 Shariat Application Act was not to codify Muslim Personal Law".
"Matters of personal law have no relation with religion". There are different schools of thought for Shias and Sunnis. "You can't test my faith on higher principles", he said.
Rohatgi said when half the population of a particular community is not empowered, no equal opportunity is given, they are devoid of gender equality, then it does not pass the test of constitutional morality.
The basis of triple talaq can be reached in Hadith and it came into existence after the period of Prophet Muhammad, he added further.
The board has asserted that a practice which is being followed for 1,400 year cannot be termed as un-Islamic. But once such practices of marriage and divorce are separated from religion, there can not be any immunity under Article 25 (freedom to practice any religion). If Nikahnama is the heart of it, why can't divorce be part of it.
"Personal laws can not be tested on the ground of being discriminatory".
"Triple talaq is not a question of equity and good conscience but of faith".
On the second day of the hearing, senior Congress leader Salman Khurshid, who is the amicus curiae in the matter, said before the Supreme Court that the controversial Islamic divorce system can not be justified whatsoever.Citing examples, Khurshid told the court that the Triple Talaq practice can not be validated constitutionally.
At this, Chief Justice Khehar said that the top court was not just the "guardian to the Constitution but also that of the Minorities Act". "Now you should go and tell him".
"There was a discussion that whether Triple Talaq is valid constitutionally". A Muslim man can not write a will against his daughter.
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"Unlike the Hindu law, the marriage in Muslim law is purely a civil matter". Muslim marriage is a contract through nikahnama between consenting adults and so is divorce.
He asked: "If there is a conflict between constitutional morality and personal law, which shall prevail?"
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance.
Hi said that in some areas of Himachal Pradesh, polygamy is being practiced, but is protected under tribal laws and customs, and can only be changed by legislation, not court intervention.
"Why will the court decide what is my faith?"
But the bench said: "Tenets of religion can not be tested on any ground".
"Triple talaq is unlawful". I can point out many such practices in the Hindu society. "Today, the Supreme Court says that it will examine it".
He also drew an analogy between Triple Talaq and the Hindu belief that the god Ram was born in Ayodhya.
To this, the bench had said, "we can not do that". Sibal asked the apex court.
"The issue is not talaq, the issue is patriarchy that is part of every religion", he argued.
To this, the bench insisted that the government has to first prove that this practice of triple talaq was not essential to Islam and only then can it delve further into other aspects. Sibal replied that this can not be done.
The board is protecting the practice of talaq thrice.
Khan, who had quit Rajiv Gandhi's cabinet over differences in handling the Shah Bano case, said he wanted the opportunity to rebut arguments as "more confusion has been created".
Even bigger blunder by Sibal on day four of the triple talaq hearing in the Supreme Court was when he said "triple talaq can not be tampered with as it's something the Qura'n is silent about".