Maintaining that ceremonies concerning birth, marriage, divorce, property and death the Muslim community were being decided by family influenced by social norms, the All India Muslim Personal Law Board today requested the Supreme Court not to intervene on these issues.
Significantly, on day four of the hearing by the Constitution bench of a batch of petitions challenging the constitution validity of triple talaq, senior counsel Kapil Sibal appearing for the Muslim board said it was considering reforms and gradual giving up of triple talaq but wanted time for it.
Also asking the five judge Constitution Bench headed by Chief Justice J S Khehar not act in a hurry, he asked “billions of words have been written on debated over validity of triple talaq and the SC thinks it can digest all in six days?”
“Triple Talaq is part of faith for 1400 years”, then Justice Kurian Joseph replied: “May be. But now women have come to us for justice after 1400 years” and asked “If instant talaq is so sacred, why is it excluded from nikah nama ?
Sibal agreed that “Instant talaq is sinful, undesirable and irregular. So excluded from nikah nama. Community wants to do away with it. Give us time. We are considering reforms. Please do not dictate reforms to us. Yes.the community is pushing for reforms..believe me”
It also told the court that triple talaq is a matter of faith being practised by Muslims for the last 1,400 years and hence the question of constitutional morality and equity did not arise.
It also equated triple talaq with the Hindu belief that Lord Rama was born in Ayodhya.
“Muslims have been practising triple talaq for the last 1,400 years. Who are we to say that this is un-Islamic. It is a matter of faith. Hence, there is no question of constitutional morality and equity,”
He said triple talaq was also a matter of faith for Muslims just like the Hindus believed that Lord Ram was born in Ayodhya.
MATTERS OF FAITH
Urging the Supreme Court constitution bench not to question the practice of triple talaq, Sibal submitted: "If Hindus believe Lord Ram was born in Ayodhya, this faith cannot be questioned on the ground of Constitutional validity. If faith of Hindu's about Ram's birth at Ayodhya cannot be questioned, triple talaq is also a matter of faith of Muslims and it cannot be questioned",
“Family and social norms could never be tested with touchstone of constitutional morality”, Sibal argued vociferously rejecting the Centre’s plea in this regard and asked “if both marriage and divorce are contracts in Islam, why should others have a problem with it especially when it is practiced for 1400 years ?”
“Muslim marriage is a contract through nikahnama between consenting adults, so is divorce”, he argued.
Slamming the Centre for calling triple talaq “un-Islamic” and not ordained by Quran or constitution, AIMPLB said ceremonies concerning birth, marriage, divorce, property and death are decided by family influenced by social norms.
CANNOT TRUST CENTRE
Sibal also reacted to the Centre's stand that the government will enact a law on Muslim divorce if SC quashed talaq in all forms.
“What will happen if SC quashed talaq in all forms and then Parliament refused to enact a law?
Taking a more aggressive stand, the Centre had yesterday said it was not just opposed to Talaq-ul-Biddat (instantaneous triple talaq) but also the two other forms Talaq-Ahsan and Talaq Hasan (in which there is provision for revocation) and all three will have to be declared illegal and unconstitutional.
This is a change of stance as till now the centre had said it was only opposed to triple talaq where a husband instantly gets to divorce his wife by uttering “talaq, talaq, talaq”.
But when the apex court wondered whether there was any alternate remedy open to Muslim men to seek divorce in case all three types of talaq were done away with, Attorney General Mukul Rohatgi representing the Centre had said yesterday it will bring a law in this regard.
Opposing the plea of seven aggrieved Muslim women who wanted the SC to scrap the practice, the Muslim Board says constitution does not touch upon personal laws and therefore the apex court too cannot adjudicate on issues like marriage, divorce and maintenance.
Read the Argument notes of Kapil Sibal here.