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Will enact Muslim marriage law: Govt

A-G tells SC that Centre will do so if apex court strikes down triple talaq

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The Centre on Monday informed a Constitution Bench of the Supreme Court (SC) that it considered all forms of Muslim divorce “unilateral, extrajudicial, unequal.” It added that the Centre enact a new divorce law for Muslim men, if the SC struck down existing practices.

“If we accept that giving unfettered rights to a husband is bad, and we strike down triple talaq, where will Muslim men go for divorce? What is the remedy and how will a Muslim man get out of a bad marriage?” Justice UU Lalit asked. To this, Attorney General Mukul Rohatgi replied, “If your lordships strike down all three forms of talaq, I (the Centre) will bring a law.”

Rohatgi submitted that instantaneous divorce needed to be excised from the relevant sections that made it lawful. He argued that all personal laws are also ‘laws’ governed by Article 13 of the Constitution, which makes it clear that no law can be valid if it violates Fundamental Rights.

“Even the Sharia Act, 1937 is within the ambit of constitutional principles... all such provisions in it that breach Fundamental Rights must give way,” Rohatgi said. He also submitted that the Narasu Appa Mali judgment of the Bombay High Court held that personal laws cannot be invalidated by courts even if they oppose Fundamental Rights.

Rohatgi’s submissions triggered off a debate between the SC and the Union. He argued, “Can one half of the community’s population (women) be denied Fundamental Rights on the basis of a legal argument? Is it not the duty of the state to intervene on their behalf and fight for their rights?”  

“Even the Sharia Act, 1937 is within the ambit of constitutional principles... all such provisions in it that breach Fundamental Rights must give way,” Rohatgi said. He also submitted that the Narasu Appa Mali judgment of the Bombay High Court, which held that personal laws cannot be invalidated by courts even if they oppose Fundamental Rights.

Rohatgi’s submissions triggered off a debate between the SC and the Union. He argued, “Can one half of the community’s population (women) be denied undamental rights on the basis of a legal argument? Is it not the duty of the state to intervene on their behalf and fight for their rights?”  

He then pointed out that the SC was supposed to be the guardian of the Constitution and its Fundamental Rights. To which, JS Khehar, the Chief Justice of India, said, the SC was also the “guardian of the minorities and their rights.” The CJI also observed that tenets of the religion were beyond the purview of judicial review.

One cannot interfere with religious laws as it will finish off the rights of the minorities, said CJI Khehar.

The tête-à-tête continued when the AG said that it was not for the SC to interpret the Quran since it was not an ecclesiastical court. It need not check whether a practice is essential to Islam or not.

Rohtagi said even if triple talaq was legal as per Muslim personal laws, it still needs prove its constitutional morality. “Article 25 is not without reasonable restrictions. The Article had to be subject to Fundamental Rights. So no matter whether a practice is essential to religion or not, talaq has to abide by the principles of gender equality and justice,” Rohatgi submitted.

The SC on Friday observed that triple talaq, though legal, was the “worst and undesirable form for dissolution of marriages among Muslims.” CJI Khehar had compared the controversial practice to capital punishment. “It is like the death penalty – abhorrent but still allowed,” the CJI said.

  • Triple Talaq - Talaq-e-bidat is one of the three avenues of divorce a Muslim man may avail off. Here, he can simply utter talaq talaq talaq -- in one go, to wife to get divorced.
     
  • Nikah Halala - A wife who has divorced her husband may return to him only after she marries someone else, consummates that marriage and divorces him (or if he dies)
     
  • Polygamy - By Sharia law, under reasonable and warranted conditions, a Muslim man may have more than one wife at the same time, up to a total of four. However, Muslim women are not permitted to have more than one husband at the same time under any circumstances.

“So if we accept that giving unfettered rights to a husband is bad and we strike down triple talaq, then where will Muslim men go for divorce?” Justice UU Lalit asked.

“If Your Lordships strike down all three forms of talaq, I (the Centre) will bring a law,” Attorney General Mukul Rohatgi

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