Triple talaq practised for over 1400 years, can't be termed un-Islamic: AIMPLB to SC

Equating the issue of triple talaq with the belief that Lord Rama was born in Ayodhya, the All India Muslim Personal Law Board today told the Supreme Court that these were matters of faith and cannot be tested on grounds of constitutional morality.

"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" and it cannot be interfered with by a court of law, former Law Minister and senior lawyer Kapil Sibal, representing the Board, said while drawing an analogy between triple talaq and the belief about Lord Rama.

"Triple talaq has been there since 637 AD. Who are we to say that this is un-Islamic. Muslims are practising it for last 1,400 years. It is a matter of faith. Hence, there is no question of constitutional morality and equity," he told a five-judge Constitution bench headed by Chief Justice J S Khehar said.

Sibal was countering the arguments put forth by the opponents of triple talaq who have been arguing for the past two days, with the government also saying a new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce including triple talaq are struck down. The AIMPLB counsel said the age-old practice was "part of my faith and you cannot determine what should be my faith.

This is the question and this is the issue". He asked whether the court should decide the faith of over 16 crore people. During the day-long hearing before a bench, which also comprised Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, Sibal said the issue of triple talaq was a matter of personal law, protected under the Constitution. He referred to holy 'Quran', 'hadith' and interpretations attributed to companions of Prophet Muhammad and scholars on divorce to drive home the point that the issue of triple talaq was a matter of faith and hence beyond judicial scrutiny.

The Muslim body said despite the existence of laws on dowry prohibition and guardianship, Hindu customs were being allowed to remain like dowry is prohibited but gifts are allowed. "When it comes to Hindu law, you protect all customs but when it comes to Muslim, you start raising questions over customs. Like when it comes to Dowry prohibition Act or Guardianship Act you follow customs and protect them,"he said.

The bench asked Sibal as to what extent of Muslim Personal Law was part of the religion. "Some part of Personal Law may be part of religion but some part may not be. There are different schools of thought for Shias and Sunnis. The foremost thing is the essence of Quran which is the principal thing," he said. Sibal said that ceremonies related to birth, marriage, divorce, properties and death are decided by family influenced by social norms, which cannot be tested on the ground of constitutional morality.

The senior advocate also said the practice of triple talaq started in 637 AD after the death of Prophet Muhammad in 632 AD by his companions. He said no legislation can take the place of a custom, being practised over 1400 years, and it cannot be termed un- Islamic. "The essence of Islam is that divorce happens after the marriage. If Nikahnama is the heart of it, why can't divorce be part of it. You cannot change my 'nikahnama' by some kind of statute. It's totally unacceptable," he said. He said personal laws cannot be tested on the touchstones of fundamental rights under Article 13, 14 (right to equality), 15 (prohibition of discrimination) and 21 (right to life) and no one can come to the court saying that this practice is discriminatory and so strike it down.

"Personal laws cannot be tested on the ground of being discriminatory. The argument that the triple talaq is discriminatory does not hold good," he said. Sibal termed as "unacceptable" the submissions of Attorney General Mukul Rohatgi that if triple talaq is struck down then Centre will bring a law to regulate marriage and divorce among Muslims.

To this, the bench, in a lighter vein, said, "We have been asking him (AG) to pass the law, so that we do not have to go into this. Now you should go and tell him". "If triple talaq is struck down and Parliament refuses to pass a law, then what will happen. Will there be now law for marriage and divorce of Muslim men and women," Sibal asked.

Sibal said if Parliament wishes to bring a law it can enact with regard to an activity which is secular and reformatory. "Unlike the Hindu law, the marriage in Muslim law is purely a civil matter. It is a contract between two consenting adults and so is divorce. It is an essential tenet of Islam. There is no question of religion being in danger," he said.

He said the Muslim Personal Law (Shariat) Application Act, 1937, was brought with an intention to ensure that unlike Hindu women, their Muslim counterparts get property rights and it did not codify the Shariat law. 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. The bench countered Sibal on this and said what was sought to be excluded in the Act was custom and usage and what was crystallised was the personal law.

The apex court said then it was meant that Shariat should be treated as personal law and the community will look into it whether it needed to be reformed. "Why will the court decide what is my faith? We are protected under the Constitution. It is my personal law. In a Hindu majority state, muslim minority needs to be protected. "In a Muslim majority state, Hindu minority needs to be protected. We need to protect the culture,faith and religion", Sibal said.

He said in the Indian context, personal laws needed constitutional protection to prevent social and economic repercussions. During the day when the bench asked whether triple talaq was part of holy 'Quran', Sibal said, "Quran does not talk of it. Immediately after a few years of the death of Prophet Muhammad, the companions of Prophet Muhammad talked about triple talaq. It is my belief and I practice it. Today, the Supreme Court says that it will examine it." Then the bench asked Sibal whether he wanted to say that "practice or belief" with regard to triple talaq was a subject matter of Article 25 (right to practice religion), he replied in affirmative.

"We cannot go into rights and wrongs because my faith does not allow this," Sibal said. Drawing analogy with the customary ritual of 'saptapadi' among the Hindus in marriages, Sibal said nobody can say that it was wrong or right and hence the matter of faith be left as it was. Sibal said billions of words have been written on the debate over validity of triple talaq and it would be "hazardous" to interpret them within six days by the apex court.

Referring to the different practices of Islam followed at various places, he said in Saudi Arabia, even the house of the Prophet was demolished and here 'dargahs' are protected. He said the problem was the patriarchal system where women do not get fair treatment and it was true for every religion. Senior advocate Indira Jaising, opposing triple talaq, responded by saying "patriarchy is coming from religion only." The bench said two other forms of divorce have some safeguards but whether triple talaq had such safeguards? "Our understanding is that 'nikahnama' (marriage contract) can exclude the provision of triple talaq," it said and asked "can the other two forms of divorce (talaq hasan and talaq ahsan) be also excluded in nikahnama." Sibal replied that this cannot be done.

Another counsel appearing in the case said "triple talaq was the most undesirable form of granting divorce and we are trying to educate people not to resort to it". Sibal supplemented by saying "we do not want somebody else to change it" and added that a "majority of Muslim scholars believe that triple talaq is bad". At the fag-end of fourth day's hearing, former Union Minister and Islamic scholar Arif Mohammad Khan, representing All India Women Muslim Personal Law Board, objected to the grant of an entire day to the AIMPLB to advance its arguments in support of triple talaq while the women's group was given just half-an-hour.

Khan, who had quit Rajiv Gandhi's cabinet over differences in handling the Shah Bano case, said he wanted the opportunity to rebut arguments as "more confusion has been created". Yesterday, the Centre had told the apex court that it will bring a new law to regulate marriage and divorce among the Muslim community if all forms of divorce including triple talaq are struck down. The apex court is hearing a clutch of pleas challenging triple talaq, polygamy and 'nikah halala' which is going on before a bench comprising members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.