The Centre promised to enact a new divorce law for Muslim men if the Supreme Court, as the "guardian of the Constitution", strikes down all three forms of triple talaq unilaterally pronounced by a Muslim man to his wife.
The moment came in the day-long hearing on Monday when one of the judges on the Constitution Bench, Justice U.U. Lalit asked Attorney-General Mukul Rohatgi a question.
"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 Lalit asked.
"If Your Lordships strike down all three forms of talaq, I (the Centre) will bring a law," Mr. Rohatgi replied to that.
Chief Justice of India J.S. Khehar, immediately cut in, observing that the Supreme Court is not only the "guardian of the Constitution but also the guardian of the Minority Act".
The Chief Justice observed that this matter involved "tinkering with religion itself", and was not about any social rights.
Chief Justice Khehar insisted that the government should first address the issue whether triple talaq is "essential to religion or not". This triggered a tit-for-tat between the Bench and the Centre in court.
Mr. Rohatgi objected to the court's line of thinking, and said the Bench, also comprising Justices Kurian Joseph, Rohinton Nariman and S. Abdul Nazeer, was approaching the problem of triple talaq from the wrong end.
"Your job is not to interpret the Quran. You are not an ecclesiastical court to check whether a practice is essential to Islam or not," Mr. Rohatgi said.
"Let's say, tomorrow you declare that triple talaq is not an essential part of religion. So what? Nothing. The point is you have to go a step further and strike down triple talaq. Declare it illegal. You have to first decide whether this practice is against constitutional morality or not," Mr. Rohatgi submitted.
The AG said all three forms of triple talaq – talaq-e-biddat, talaq hasan and talaq ahasan – are "unilateral, extrajudicial, inequal" and has to be struck down by the court.
Mr. Rohatgi said the issues of Muslim marriage and divorce was separated from religion in Shariat Act way back in 1937 itself.
He said practices of marriage and divorce have been codified as "personal law" under Section 2 of the 1937 Act. The Bench has to test them on the touchstone of the fundamental rights of gender equality, gender justice, gender discrimination, human rights, dignity under Articles 14, 15, 21 and 51A of the Constitution.
"What religious practices are essential to a particular religion or faith is difficult to define for this court. But once marriage and divorce is separated from religion, in this case under Section 2 of the 1937 Act, these practices of talaq no more enjoy the protection of Article 25 (freedom of religion) of the Constitution. So talaq is out of Article 25. Talaq has become 'law' under Article 13 and should be constitutionally moral," Mr. Rohatgi explained.
He said the term "constitutional morality" includes secularism, dignity and non-discrimination.
"What may be permissible for society may not be constitutionally moral. Nothing, no advocacy by man, will help you cover something that is wrong by the Constitution. And here, one half of a community suffers inequality from the male counterpart of the same community," Mr. Rohatgi submitted.
The AG went one step further. He submitted that even if talaq was an essential part of religion and protected under Article 25, the practice still had to be constitutionally moral.
"Article 25 is not without reasonable restrictions. The Article had to be subject to the 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," Mr. Rohatgi submitted.
To this, Chief Justice Khehar reacted that "tenets of religion can neither be tested on scientific grounds or on other grounds".
"Then tell us why are we here before a Constitution Bench if we cannot open the Constitution book? Matters are referred to the Constitution Bench because they have something to do with the Constitution," Mr. Rohatgi replied.
Mr. Rohatgi asked what the court would do if someone came to it saying Sati was an essential part of Hindu religion.
"Women lived in fear of Sati until the law declared it illegal. Muslim women want their dignity, freedom to live without fear of triple talaq. They want to have a life equal to that of another woman, say a Christian or a Hindu wife," Mr. Rohatgi submitted.
"Women should be equal, but within the particular religion," Chief Justice Khehar reacted to Mr. Rohatgi's comparison of Muslim women to those of other faiths.
"How can you shut your eyes to it (right of the Muslim women)? Women in India are marching shoulder-to-shoulder with men in every field. We are before a Constitution Bench here and you cannot shut your eyes to her constitutional rights of equality and gender justice," Mr. Rohatgi stressed.
At the outset, Chief Justice 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. The Bench however said the question whether polygamy and nikah halala violate the dignity of Muslim women would continue to remain open before the Constitution Bench.
