With triple talaq under attack from all quarters, the All India Muslim Personal law Board (AIMPlB) on Monday told the Supreme Court that the problem at hand is not triple talaq but patriarchy, which is the root cause of such discriminatory laws existing not just among Muslims but Hindus as well.
Opening arguments at the crucial hearing before a five-judge Constitution Bench that will determine the validity of triple talaq, senior advocate Kapil Sibal submitted that under Hindu property laws, a father can will his property without giving a share to his daughter. By that count, should the Hindu law be challenged as being discriminatory against women, he asked.
Sibal argued that at the core of the debate is not the issue of triple talaq as it is only a facet of patriarchy that remains the underlying issue. As regards personal laws, Sibal explained that the Constitution has carefully placed personal laws under Entry 5 of Concurrent list. The Constituent Assembly debates showed that an attempt was made to accord personal laws the status of fundamental rights that got rejected. Instead, the Constitution makers thought it fit to include it under Directive Principles with Article 44 providing that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
"This is a highly complex issue where 160 million people are waiting for what the Court will do on something that the Parliament did not decide," said Sibal. On the question of whether India should take cue from other Islamic countries that have shed triple talaq, Sibal submitted that Muslims of India are predominantly Hanafis (almost 90 per cent) and no other country has such a substantial Hanafi population. "Outside religious laws have no relevance to India. When you talk of Muslim religion in India, you talk of Hanafis. Can the Court decide what will be their faith," he asked.
Additional Solicitor General (ASG) Tushar Mehta who appeared for the Centre pointed out that the religion of Islam practiced in India does not have the sanctity of the original Mohammaden law.
Pointing to how the AIMPlB views triple talaq, ASG Mehta read a portion from the Board's affidavit that justified the right of Muslim women to seek talaq on the ground that men have greater power of decision making compared to women, who are in the habit of making hasty decisions.
The Centre demanded this line to be removed. The Centre even wondered why none of the petitioners, many of whom are represented by lawyers who are known votaries of gender equality, failed to register any protest.