The Supreme Court on Wednesday ripped through the arguments made by Muslim bodies that instant triple talaq is "essential" and a "part of religion", while asking how the practice can be "fundamental" to Islam when the religious and scholarly texts themselves call it "worst" and "sinful".
"If you yourself say this [instant triple talaq] is the worst form of divorce and sinful, how does it then become essential to religion?" Justice Rohinton Nariman asked senior advocate V. Giri, representing Jamiat Ulema e Hind.
Mr. Giri persisted that triple talaq is part of religion and "if it is part of religion, it is protected by Article 25 [freedom of religion] of the Constitution". "Article 25 protects a practice only if it is essential to religion, otherwise it does not," Chief Justice of India J.S. Khehar responded, presiding over the Constitution Bench.
Justice Nariman said "talaq may be essential, but it is a big step to claim that this [instant triple talaq] is essential to religion".
Earlier in the day, Justice Kurian Joseph asked senior advocate Kapil Sibal, wh is appearing for the All India Muslim Personal Law Board (AIMPLB), whether there could be an option included in the ''nikahnama'' for the bride to refuse to be subjected to triple talaq.
Mr. Kurian said if ''nikahnama'' is viewed as as contract, the ''qazis'' could very well add this clause to protect the women of the community.
Arguing for the Jamiat-Ulema-e-Hind, senior advocate Raju Ramachandran said the judiciary cannot take on the mantle and wisdom of religious schools and dictate to a religious community what personal law practices and norms to follow. He quoted the Dawoodi Bohra judgment to contend that a community follows practices that it finds relevant for itself and not what an outsider tells it.
Mr. Giri also argued that unless there are statutory inroads into personal laws, the courts cannot test or strike them down. He said triple talaq is "pristine" personal law and Section 2 of the Shariat Act of 1937 does not "subsume, abrogate or modify, but only perpetuates" what is written in the scriptures and religious interpretatbe texts.
Mr. Ramachandran said the reference made by the Centre and the petitioners citing the examples of Islamic countries that have read down or banished instant triple talaq through legislation is quite misplaced.
He said the law in these countries is not the end of the exercise but the final call on these practices are still decided on the basis of Koranic inferences. He quoted expert literature to note that "Indian courts have engaged themselves in re-writing Islamic laws, unknown to the community".
Mr. Ramachandran referred to how India has an express reservation in CEDAW, saying the State follows a policy of non-interference with the personal law practices of any community, unless the community itself takes the initiative to change.
At this point, senior advocate Indira Jaising intervened to point out that Article I of the CEDAW defines "discrimination against women" and Article 2 obliges the State to act against all forms of discrimination against women.
Wednesday is the fifth day of the hearing on a clutch of petitions challenging triple talaq, polygamy and ‘nikah halala’.
On Tuesday, the AIMPLB equated the issue of triple talaq with the belief that Lord Rama was born in Ayodhya , saying these were matters of faith and cannot be tested on grounds of constitutional morality.