The Supreme Court on Tuesday faced some tough questions on the triple talaq issue from the All India Muslim Personal law Board (AIMPlB) which asked how a 1,400-year-old religious belief of Muslims is suo moto challenged for being violative of Constitution while Hindu customs and personal laws have been protected by making exceptions under various laws.
AIMPlB counsel and senior advocate Kapil Sibal gave two illustrations to make his point. He submitted that in the Dowry Prohibition Act 1961, Section 3(2) exempts giving of presents of a “customary nature” by the bride’s family. Thus, the practice of giving dowry during Hindu marriages continues till this day, Sibal said.
Further, he cited the Hindu Minority and Guardianship Act 1956, Section 3(c) of which exempts “any person…who would not have been governed by Hindu law or by any custom or usage as part of that law” from the ambit of the Act.
Terming triple talaq as part of Muslim belief and faith that has existed for past 1,400 years, Sibal said issues of faith cannot be examined from the standpoint of Constitutional morality as there is grave danger in interpreting the faith what 160 million people in the country have accepted as part of their faith over the centuries.
“Under Hindu laws, all Hindu customs are protected but when it comes to Muslims, customs are subject to the test whether it falls foul of Fundamental Rights guaranteed under Articles 14 (equality), 15 (discrimination) and 21 (dignity).“I believe it to be my faith. My community has practiced it for 1,400 years.
This Court cannot determine what should be my faith. Who is somebody to tell me that my faith is wrong when tested on constitutional morality,” argued Sibal.
He added, “I have accepted it to be right for 1,400 years. We can’t go into rights and wrongs of a religious belief. Faith does not permit it. Religious beliefs and faith are matters that should not be interpreted by Courts of law.”
However, the AIMPlB in its written submissions given to Court did make a bold and startling revelation that at the time of signing marriage certificate (nikaah nama) it will be open to the woman to place a condition that even she can divorce the husband through any form of talaq, including triple talaq.
It further stated that it will also be open to the woman to state in the certificate that she will not accept divorce given by way of triple talaq. The AIMPlB is expected to argue in this regard on Wednesday.
When asked by the five-judge Bench of Chief Justice JS Khehar, Justices Kurian Joseph, Rohington F Nariman, UU lalit and S Abdul Nazeer that why triple talaq has been abolished by other Islamic countries, Sibal replied, “These practices have nothing to do with equity or good conscience.”
Pointing to the perils involved in undertaking such an exercise, Sibal said, “Hindus believe that lord Ram was born in Ayodhya. Is it a question to be decided on constitutional morality…but when it comes to triple talaq, the question of constitutional morality is raised.”
The Board said questions will emerge why one community is being picked up for scrutiny and that too suo moto by the Court for violation of fundamental rights when similar customs among other communities has been permitted to continue by making exceptions under law. Sibal argued, “In a majority Hindu State, the minority Muslim community has to be protected. You (Court) need to protect their customs. If it is bad you educate them or have a dialogue.”
He further submitted that change will gradually occur. “If the community feels and the legislature feel there is a need to end the practice, they will bring a change….Millions of words has been written on this subject (talaq). It will be hazardous for the Court to interpret it in six days of hearing,” Sibal said.