“Triple talaq is inherently unequal to women. The practice is abhorrent to god and no amount of advocacy by man can cure it,” senior advocate Ram Jethmalani told a five-judge Constitution Bench of the Supreme Court, headed by Chief Justice J.S. Khehar, on the second day of hearing on the matter on Friday.
“No discrimination against a woman is possible just because she is a woman. Law can be made only to improve the lot of women,” he said.
“Secularism is the subjection of religion to the rule of law,” he said. He urged the court not to shy away from bringing triple talaq under Article 13 (laws inconsistent with or in derogation of the fundamental rights) “as any customary usage enforceable by court comes under the article.''
Justice Khehar said that if triple talaq comes to an end, whatever the consequences would be decided then. “There is no mutual consent in triple talaq.”
When Justice Khehar said, “Article 15 [Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth] talks about State law and we are on personal law here,” Mr. Jethmalani asked: “Can any law allow a man to get rid of a woman on a whim.”
When former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, said, “Islam says triple talaq is sinful but permissible,”
Justice Kurian Joseph retorted: “Can something found sinful by God be validated by laws of man?”
Mr. Khurshid said, “The AIMPLB [All India Muslim Personal Law Board] is the best body to guide the court on the varying philosophies of schools of Islam about triple talaq.”
Former Union Minister Arif Mohammad Khan, in his submission, said,“Not only is triple talaq non-fundamental but violates everything in Islam. The Shariat is the Quran and not the works and verses of scholars. The Quran lays down the procedure for divorce. Various schools have distorted the tenets of Quran to their liking.”
Mr. Khan said:
“Thirty years after the death of the Prophet, people took over the reins of the religion and used it for their empire-building.Everything you need is in the Quran. If you need more, look at the life of the Prophet, if you still need more use your own good sense. We can change the law, but not the habits of society. Untouchability was banished by the Constitution, but stays with us.
“Quran gave a man only two chances to marry his divorced wife. Any more than that, the Prophet called him adulterer, bull on rent.
“The three-month Iddat period is not for checking whether the wife was pregnant. But, under Quran, it was a chance for the couple to be reunited. The Quran lays down the procedure for divorce with great clarity. You don't have to depend on scholars and schools.”
To this Farah Faiz, one of the petitioner in the triple talaq case, said, “God made us here as humans, not as Sunnis, Shias, Hanafis or Malikis.”