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From suo motu to judgment: The arguments for and against triple talaq

Islamic law anglicised: Centre

Additional Solicitor-General says original code had undergone many changes

May 15, 2017 10:05 pm | Updated 10:50 pm IST - NEW DELHI

Senior Congress leader Kapil Sibal. File

Senior Congress leader Kapil Sibal. File

What is practised in India is an “anglicised form” of Islamic law which does not have the sanctity of the “pure, original” Islamic law, Additional Solicitor-General Tushar Mehta, appearing for the government, submitted before the Supreme Court on Monday.

Making a short submission supplementing Attorney-General Mukul Rohatgi’s arguments against triple talaq before a five-judge Constitution Bench, Mr. Mehta said the original Islamic law had undergone many changes during its time in the sub-continent. Foremost, it had been anglicised.

Apology from AIMPLB

“This form of Islamic law will not have the sanctity of pure Islam,” Mr. Mehta submitted.

Further, he urged the court to direct the All India Muslim Personal Law Board to delete and apologise for certain comments it had made in a counter-affidavit filed in the Supreme Court.

In it the AIMPLB had justified polygamy and instantaneous triple talaq , saying that men are better than women in controlling their emotions and do not arrive at hasty decisions.

“I don’t know why feminists did not protest against these comments,” Mr. Mehta wondered aloud in court.

Cause of inequality

Beginning his arguments for AIMPLB, senior advocate Kapil Sibal said the root cause for the inequality suffered by Muslim women is not triple talaq but the patriarchy found dominant in society.

“But all societies, be it Hindu or Christian, are patriarchal. In a Hindu family, a father can gift his property outside his family. In Muslim law, this cannot be done,” Mr. Sibal said.

He opened his submissions saying, “Nothing is permanent, when the time comes the nation will decide.”

“Personal laws continue to remain personal in the Constitution. A time will come when the different societies decide that they need to encapsulate their laws into a Uniform Civil Code,” he said

“At least till such time, we should preserve the individual customs and usages of pluralistic societies. They have to be equally protected,” Mr. Sibal submitted.

Hindu Marriage Act

He said the Hindu Marriage Act still protects religious customs and usages.

“There is even existence of polyandry. The situation is highly complex and cannot be easily resolved. Over a 160 million people are waiting for Your Lordships to decide,” Mr. Sibal submitted.

He will continue to argue on Tuesday.

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