Published: Thu, May 18, 2017
Medical | By Sammy Miller

Triple talaq not integral to Islam: Centre to SC

Triple talaq not integral to Islam: Centre to SC

The Supreme Court on Wednesday asked the All-India Muslim Personal Law Board (AIMPLB) whether a woman can be given an option of saying "no" to triple talaq at the time of execution of "nikahnama" (Islamic marriage contract).

The All India Muslim Personal Law Board (AIMPLB), which favours the practice, also equated triple talaq with the Hindu belief that Lord Rama was born at Ayodhya.

In actuality, this is a cry by Muslim women for justice against the men of their own religion, Attorney-General Mukul Rohatgi submitted before a Constitution Bench led by Chief Justice of India J.S. Khehar.

Still, AIMPLB lawyer and former Law Minister Kapil Sibal reiterated his earlier argument that the Supreme Court should not get into validity of religious customs and beliefs.

When Rohatgi cited the steps taken to reform Hindu practices, including the banning of sati, infanticide and the devadasi system, Justice Joseph said that all those were legislatively decided.

Citing examples, Khurshid told the court that the Triple Talaq practice can not be validated constitutionally.

Deviating from the Muslim Personal Law Board's opinion, Khurshid said one can not contract out of faith, just like one can not legislate out of faith. That most petitioners against triple talaq have been Muslim women shows that AIMPLB can't even claim that the entire Indian Muslim community supports this practice. "The Supreme Court can not be called upon to decide as to what was wrong or right with the practice and belief", he said. They can not say we will not have a law and you (court) decide it.

The apex court which has made a number of observations during the past hearings claimed the practice to be '"worst form of dissolution of marriage among Muslims". The court described the issue before it as something not between the majority and the minority communities but an intra-minority issue of tussle between Muslim men and women - which he said was a tussle between haves (men) and have-nots (women).

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Sibal said this was a "very complex situation" as the AIMPLB says it was a practice and Article 25, which guarantees freedom of conscience and free profession, practice and propagation of religion, is a fundamental right.

The Attorney General and top law officers representing the Central government arguing in front of the five judge Constitution bench said the apex court should hear other cases also, besides triple talaq. Those who did, like the All India Muslim Personal Law Board (AIMPLB), came around to the view that it was an undesirable practice. "We are not concerned about the past 1,400 years", she said.

"The only right, the only remedy to the citizens is to come to this court which is the custodian of fundamental rights guaranteed under the Constitution".

Earlier, Sibal asked the top court as to how a 1400-year-old practice be branded "unconstitutional".

Comparing practices in Islamic countries, Rohatgi said that in 25 nations, religion continued to strive even after abolishing triple talaq and hence, this can not be termed as "integral part of Islam". "As such NCW is against triple talaq".

16 February: SC says a five-judge constitution bench would be set up to hear and decide the challenge on "triple talaq", "nikah halala" and polygamy.

The court suggested whether a clause can be added on the Nikaah Nama to say that the marriage can't be dissolved by the husband by pronouncing instant triple talaq.

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