A five-judge Constitution Bench headed by Chief Justice of India JS Khehar, along with Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer is hearing the case in its day 4.
The Counsel for the All India Muslim Personal Law Board (AIMPLB) Kapil Sibal advanced his arguments by sticking to its stand that personal law could not be challenged.
Yesterday, Attorney General Mukul Rohatagi, appearing for the Centre, submitted that the Bombay High Court decision in Narasu Appa Mali would have to be debated by the court. However, during the latter part of the hearing, the CJI Khehar and Justice Rohinton Nariman belabored that it will not enter into the debate surrounding Narasu Appa Mali.
Advocate Kapil Sibal insisted that personal laws enjoy immunity under Articles 25 and 26. He persisted with his argument that the Shariat Act was enacted as a reaction to the Hindu law, where women were denied property rights, and could not be enforced.
He told the Supreme Court, “Triple talaq is there since 637. Who are we to say that this is un-Islamic? Muslims are practicing it for last 1,400 years. It is a matter of faith. Hence, there was no question of constitutional morality and equity”, the source of triple talaq can be found in Hadith and that it came into being after the time of Prophet Muhammad.
The senior counsel submitted that in case laws were enforced, there would be no personal law for Muslims left but there will be a personal law for other communities. It will have strong outgrowth and the consequences would be horrendous.
When Justice Nariman observed that, no other personal law would be affected except the one related to biddat, Sibbal disagreed, that everything from marriage, divorce, etc, would bear the impetus.
Sibal appraised the court that a document that would transform the life of a community of 165 million people was being interpreted. After all, India had the second largest population of Muslims in the world.
He further argued that the 1937 Act did not codify rules and it was all personal law. He said that as in a majority Muslim state, minority Hindus should be protected, similarly in a majority Hindu state, minority Muslims should be protected. There was a need to accept each other’s culture.
Lamenting on the customs and laws of the Hindus, he said they are protected like concessions in dowry but when it comes to Islam, issues are raised that certain practices were discriminatory of fundamental rights.
Arguing on the concept of faith, Sibal submitted that though the Quran does not talk of Triple Talaq, it was sanctioned by the Prophet’s companion immediately after his death. He said that the practice was going on for 1,400 years based on belief and now it was being told that the practice was wrong as it clashes with the Constitution. Faith cannot be questioned, he said.
The court asked Sibal if the Quran mentioned about Triple Talaq. Justice Joseph then maintained that if there was already a provision, the court need not go for anything else. He said that the court’s job was not to interpret faith but to find out whether it was part of the faith.
Supporting Talaq e biddat as an effective tool, he said that many women belonging to the Hanafi rule accepted Triple Talaq.
Justice Kurien Joseph wanted to know the safety measures included in Triple Talaq. Sibal brought up the example of a drunken husband coming home every day. In this case, the wife could ask him to give Triple Talaq. He gives it and it is over. Otherwise, he will torture her for a lifetime. Then the community will come up and ask him to give Triple Talaq.
He compared it to the Hindu law wherein if a wife asks for divorce, she will not get alimony and maintenance. “Your lordship will then direct her to go for mediation.