Published: Sat, May 20, 2017
Culture | By Kelly Harrison

Triple talaq cant be unconstitutional: Sibal tells SC

Triple talaq cant be unconstitutional: Sibal tells SC

This comes a day after Attorney General Mukul Rohatgi told the Supreme Court that if triple talaq (instant oral divorce) is struck down, then anew divorce law can be legislated by this government.

At the outset, Mr. Khehar told Mr. Rohatgi that the court was only confined to the issue of triple talaq and was not going into the issues of polygamy and nikah halala due to paucity of time. "All these three issues are before this court by virtue of the reference order of the two-judge bench", Rohatgi said.

He had said the irrevocable nature of triple talaq can be negated if the three-time pronouncement of talaq in one go is considered one leaving the scope for reconciliation and re-union during the "iddat" (waiting) period.

A five-judge Constitution Bench of the Supreme Court on Tuesday resumed hearings in the triple talaq matter brought before it by a bunch of petitioners opposing the practice.

"It will be dealt in future", the bench clarified when the AG asked the bench to clear if these are still open.

In December a year ago, the Allahabad High Court termed the Islamic practice of divorcing a woman by uttering the word "talaq" thrice "unconstitutional".

"Who are we to say that triple talaq is un-Islamic".

"Likewise, Triple Talaq is there since 637".

Kapil Sibal however blundered again by saying that the cases being relied upon by Kerala, Madras, Delhi and Gauhati High Courts had observations from scholars who belonged to "the Ahle Hadees school of Islam and the Qadianis".

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The court has said that it would only look into the triple talaq issue for now.

Pointing to the perils involved in undertaking such an exercise, Sibal said, "Hindus believe that Lord Ram was born in Ayodhya". We can't go into rights and wrongs of a religious belief. If the Nikahnama is changed by some statute, I would say that you are changing my very faith, but if I agree to that change on an individual basis, it is okay.

Supporting the position of closure the act of triple talaq, the Allahabad High Court had before declared that the privileges of any individual, including Muslim ladies, can't be damaged for the sake of "individual law".

He said if the practice of talaq was out of Article 25, then it has to be constitutionally moral, which means it has to be secular and non-discriminatory.

Sibal said Section 2 of the Act talked about custom and usage but did not deal with Shariat and hence, triple talaq is protected under Article 25 (right to religion) of Constitution. Triple talaq is contrary to equality, gender equality and human rights.

"Triple talaq is unconstitutional".

To this, the bench insisted that the government has to first prove that this practice of triple talaq was not essential to Islam and only then can it delve further into other aspects.

Monday was the last day for those challenging triple talaq to state their points before the five judges from different religions: Sikh, Christian, Parsee, Hindu and Muslim.

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