Triple talaq is not a community but a gender issue, Centre tells Supreme Court
The Supreme Court is hearing a clutch of petitions challenging Muslim practices of triple talaq, polygamy and ‘nikah halala’.india Updated: May 17, 2017 22:12 IST
Triple talaq is not a battle of the majority and minority communities but a tussle between Muslim men and women, the government said on Wednesday, as it mounted a fierce defence of its call for scrapping the controverial practice of instant divorce.
Attorney general Mukul Rohatgi’s comments before the Supreme Court was in counter to the All India Muslim Personal Law Board’s (AIMPLB) argument that laws governing Hindus protected the community’s customs but the government was not doing the same for the minorities.
Several Muslim women have approached the top court asking it to declare triple talaq unconstitutional because it is discriminatory and violated their right to equality. Women cannot pronounce triple talaq and are required to move a court for getting divorce under the Sharia Act, 1937.
“The call to banish triple talaq is not a battle between minority and majority (communities) but a tussle between women and men of the same community,” Rohatgi said on the fifth day of the hearing that began last week.
“(Muslim) women have questioned centuries of hegemony suffered by them at the hands of men of their own community. The battle is intra-minority.”
Rohatgi told a multi-faith bench led by chief justice JS Khehar that declaring triple talaq won’t alter Muslim religion and, therefore, wasn’t an essential part of religious practice. And since it’s not integral, it cannot seek protection from the Constitution that guarantees freedom to practice one’s religion.
The AIMPLB on Tuesday said triple talaq is a matter of faith and cannot be tested on the touchstone of constitutional morality.
The board again questioned the SC’s competence to hear the case and claimed on Wednesday the unilateral instant pronouncement of talaq (I divorce you) thrice by Muslim men was not a popular way to end marriage.
But Rohatgi said the practice must go, just like the Hindu tradition of sati, which allowed a woman to burn herself to death on their husband’s pyre. It was abolished in 1929.
Rohatgi reiterated government’s promise to change the law if the SC abolished triple talaq. “What is this that if we nix it then you will get a law? You did not do it for 60 years,” the court said, as it asked the Centre why it had not taken the legislative route to stop the practice.
Earlier in the day, the bench said instant triple talaq is not part of the Quran and is a latter-day practice. It asked why the controversial custom shouldn’t be barred when some Islamic clerics describe it as sinful additions to the Muslim holy book.
“If biddat is sin, then why not talaq-e-biddat (instant triple talaq),” the court said. Biddat, which loosely translates to innovation in religious matters, is something which is not in Quran and is a later day addition.
The court also asked the law board if it was possible to give a woman a choice at the time of execution of nikahnama to say no to triple talaq. A nikhnama is prenuptial agreement that spells out the rights and responsibilities of the groom and the bride.