New Delhi: The central govt on Monday told the Supreme Court that a new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce including triple talaq are struck down.
As Attorney General Mukul Rohatgi argued against triple talaq and stressed the need to strike it down the five judge constitution bench headed by Chief Justice Jagdish Singh Khehar asked him if this is done, then what will happen to Muslim men who went to end their marriage.
“If we accept that giving unfettered rights to a husband is bad and we strike down triple talaq, then where will Muslim men go for divorce,” asked Justice Uday Umesh Lalit who, along with the CJI, Justice Kurian Joseph, Justice Rohinton Fali Nariman and Justice S. Abdul Nazeer are on the constitution bench.
Without losing a moment, Rohatgi told the bench that if they strike down all three practices-triple talaq, nikah halala and polygamy, then the government will bring a new law.
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”.
At the beginning of the hearing, the Attorney General urged the court to examine not just the validity of the triple talaq vis-a-vis the Constitution but also that of the nikah halal and polygamy too.
However, the court, citing the limited time that is available, said that as of now, it would focus on the validity of triple talaq, leaving other two issues for the future.
The court was apparently unimpressed when he said that he cited the Constitution’s Article 14 and 15 to highlight the discrimination being faced by the Muslim women, noting that these articles are all against the state.
Terming his position “very difficult”, the court said that an attempt to invoke Article 14 without the state was a “white wash”.
As Rohatgi emphasised on gender equality of Muslim women including with their counterparts in other religions and in other Islamic countries, the court said that he was talking of gender equality, equality between religions and equality between the people of different countries and in this way, all marriage laws should go and civil marriage was the only course.
The court said that marriage as an institution is crystallised by religion, drawing an objection from him and inviting a comment from the bench that if marriage was not rooted in religion, then what was it.
Appearing for the All India Muslim Personal Law Board, senior counsel Kapil Sibal told the bench that the “issue is not talaq, the issue is patriarchy” or a state of society which is inherently discriminatory of this or that religion.
Describing the issue as “highly complex” which can’t be resolved easily, he referred to Hindu Code under which customs are still protected, noting that even under 2006 Hindu Succession (Amendment) Act, 2005, a father can bequeath his entire property to his son without giving anything to his daughter.
Noting that the Constitutions protects personal laws and all patriarchal societies are discriminatory, Sibal said that all laws that applies to Hindus, Muslims, and other religions must be tested on the grounds of discrimination.
Representing the government, Additional Solicitor General Tushar Mehta told the court that Islamic practices in India were not “pure Islam” but an “anglicized” form of the religion.
