Published: Thu, May 18, 2017
Medical | By Dorothy Lyons

Triple Talaq an Issue of Women within Minority Community

Triple Talaq an Issue of Women within Minority Community

"It is an issue of a minority community that is Muslim, and that of women within that community", Attorney General (AG) Mukul Rohatgi said.

During the trials, the Centre had told the apex court that it would bring a law to regulate marriage and divorce among the Muslim community if triple talaq is struck down.

The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, had begun the hearing on May 11.

Addressing the constitution bench, AIMPLB's senior counsel Kapil Sibal said he had a meeting with the Board members on Wednesday (May 17) and they have made a decision to issue an advisory to all the Qazis across the country.

Rohatgi referred to practises "sati", infanticide, "devdasi" and untouchability among Hindus and said that they have been done away with.

He argued that it, therefore, can not be tested by the apex court on the yardstick of violation of the fundamental rights guaranteed under the Constitution.

Citing examples, Khurshid told the court that the Triple Talaq practice can not be validated constitutionally.

Sibal earlier on Monday's proceedings said the apex court should not decide or interfere in one's faith and belief. An ideal approach would be to look at best practices among Muslim communities - the Ahle Hadees and Jafri sects consider talaq uttered thrice in one sitting as one talaq and allow for mediation and reconciliation between the couple - and mandate those religious practices that are in conformity with the constitutional principle of women's equality. If it is bad in theology, it can not be accepted in law.What is morally wrong can not be legally right.

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India's Supreme Court has convened a special summer session to hear this case - alongside others of constitutional importance - in May, when the court is normally in recess.

The matter is rooted in an October 16, 2015, order of the top court by which it had directed the separate listing of a PIL addressing the question of the rights of Muslim women.

"If I have faith that Lord Rama was born at Ayodhya, then it's a matter of faith and there is no question of constitutional morality", Sibal told a fivejudge Constitution bench headed by Chief Justice J S Khehar.

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.

Hinting towards the difference in his and All India Muslim Personal Law Board's (AIMPLB) opinion, amicus curiae in the triple talaq matter Salman Khurshid suggested that the court should harmonise different views so that becomes one acceptable view available for the courts in the country. The learned Counsel for petitioner Mr. Kapil Sibbal has argued that though the talaq-i-biddat (instantaneous triple talaq) has no mention in Quran, still it is a matter of faith for 1,400 years for followers of Islam.

"There is a little difference in my and personal law board's opinion", he said. The rejection of the talaq declaration plea by the court comes against the backdrop of the Supreme Court proceedings on triple talaq. "We are working on it", he said.

Comparing practices in Islamic countries, Rohatgi said that in 25 nations, religion continued to strive even after abolishing triple talaq and hence, this can not be termed as "integral part of Islam".

Rohatgi, responding to Sibal and a battery of senior lawyers favouring triple talaq, said even the core of religion has to be tested on the touchstone of fundamental rights.

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