The government will write a new matrimony law for Muslims to fill a legal vacuum should the Supreme Court strike down triple talaq, the country’s top law officer said on Monday.
Triple talaq is the lone controversial way Muslim men in India can get a divorce. It allows a man to end a marriage by uttering the word talaq thrice in quick succession.
The top court is hearing a bunch of petitions challenging triple talaq. The government too wants to scrap the practice which it calls unconstitutional and one that is against women.
Should the court strike down triple talaq and the government bring in a new law then it could mean the start of a process to overhaul Muslim personal laws in India that are now guided by a 1937 Sharia code. India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance.
Attorney general Mukul Rohatgi told a five-judge constitution bench headed by Chief Justice of India JS Khehar that it wasn’t the court’s job to interpret the Quran and that it should consider the constitutional validity of triple talaq and not just restrict itself to examining whether the custom was fundamental to practicing the faith.
Rohatgi disagreed with the court that the government should first address whether triple talaq is “essential to religion or not”, saying the Supreme Court was not an ecclesiastical court.
“If the practice of instant divorce (triple talaq) is struck down by the court then the Centre will bring a law to regulate marriage and divorce among the Muslim community,” he said.
His remarks were in response to Justice Uday U Lalit’s query: “where will Muslim men go for divorce” if the court strikes down triple talaq?
While the Hindu law overhaul began in the 1950s and continues, activists have long argued that Muslim personal law has remained mostly unchanged.
Triple talaq, practised by Sunni Muslims, is biased in favour of men and against gender justice, several Muslim women petitioners have told the court.
India has the world’s third largest Muslim population and woman from the community face the threat of a sudden, oral, and out-of-court divorce.
But a Muslim woman seeking divorce has go to court for a legal separation under the Sharia law.
The top court sought to know if any order banning triple talaq will involve “tinkering with religion”.
The attorney general argued that triple talaq cannot enjoy protection under Article 25 of the Constitution that allows people to practice his faith.
He tried to bolster his point citing the banned Hindu tradition of sati in which a widow is burned alive on the funeral pyre of her husband.
“What would you do if someone came saying sati was essential part of the Hindu religion. Women lived in fear of sati until the law declared it illegal. Muslim women want their dignity, freedom to live without fear of triple talaq,” he said.
The All India Muslim Personal Law Board opposed the petitions and requested the court not to interfere with personal laws of a community.
The court denied the government’s request to club the triple talaq trial with two other controversial practices — nikah halala and polygamy that allows a Muslim man to have four wives.
Nikah halala lets a divorced Muslim woman to remarry her husband but after marrying another man and then divorcing the latter. The court said it will hear arguments on these two practices later.