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

Triple talaq a matter of faith for last 1,400 years, AIMPLB tells SC

It equates triple talaq with the Hindu belief that Lord Rama was born in Ayodhya

May 16, 2017 01:21 pm | Updated December 04, 2021 10:44 pm IST - New Delhi

Mumbai 26/08/2016  A woman sit in front of Haji Ali dargha in Mumbai on Friday.  Bombahy High Court allows women's entry into Haji Ali dargah sanctum.  Photo:  Vivek Bendre

Mumbai 26/08/2016 A woman sit in front of Haji Ali dargha in Mumbai on Friday. Bombahy High Court allows women's entry into Haji Ali dargah sanctum. Photo: Vivek Bendre

Triple talaq is a matter of faith for Muslims similar to how it is a matter of faith for Hindus that Lord Ram was born in Ayodhya, the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court on Tuesday.

Why is the Centre so keen to raise doubts about the constitutional morality of Muslims' faith in the 1400-year-old practice of triple talaq when no such doubts have been raised about the Hindus' faith that Ayodhya is the birthplace of Lord Ram? Who is the government to say that triple talaq, evolved through social and family norms, is “un-Islamic”? senior advocate Kapil Sibal, appearing for AIMPLB, asked a five-judge Constitution Bench led by Chief Justice of India J.S. Khehar.

Mr. Sibal was responding to Attorney-General Mukul Rohatgi's submissions that practices like instantaenous triple talaq should be tested on the anvil of 'constitutional morality', an idea that includes secularism, gender justice, gender equality, dignity.

Mr. Rohatgi had asked the court to strike down all the three forms of triple talaq as “constitutionally immoral”, assuring that the Centre would then introduce a new law for Muslim divorce.

"But matters of faith cannot be tested on constitutional morality or equity or whatever. It is my faith that Ram was born in Ayodhya. You cannot test my faith on the touchstone of constitutional morality. Likewise, triple talaq is a matter of faith for Muslims. Who are you (Centre) to say it (triple talaq) is un-Islamic?” Mr. Sibal argued

Mr. Sibal said instantaneous triple talaq cannot be viewed through the prism of one eye alone. “Many women in the Hanafi school accept it as a valid form of divorce. Majority of the Prophet's companions considered it good,” he argued.

“For example, the husband is cruel and a drunk. The woman is fed up and wants instant triple talaq, but the husband refuses it to torture her further. She has no money to go to the courts. She is left to live her life in utter despair. If the society intervenes and her husband gives her instant talaq, you will call it illegal. So, there are many complexities, which the Supreme Court cannot go into in a matter of just six days. Personal law relates to personal relationships,” he argued.

He asked why there should now be a problem with Muslim divorce norms practised for 1400 years. “Maybe women had not thought about approaching the court for 1400 years. Now some of them have come to the Supreme Court,” saod Justice Kurian Joseph responding to Mr. Sibal’s question.

Justice Kurian went on to ask Mr. Sibal why talaq-e-biddat (instantaneous triple talaq) alone is excluded from the nikah nama as a form of divorce.

“If talaq-e-biddat is as sacred as talaq ahasan and talaq hasan (the two other forms of triple talaq), why is it alone left out of the nikah nama?” Justice Kurian asked.

“Because it is irregular unlike ahasan and hasan , which are considered regular. It is sinful and undesirable. We are educating the community to not go for talaq-e-biddat . It is a step towards reform. We are not saying biddat is permanent or immutable... We are living in a new age. There should be reform, but it has to come from within the community. Others cannot dictate to us how we should reform. Many customs and usages practised by the Hindus need to be kicked out. But leave it to the communities to do so,” Mr. Sibal submitted.

On the government's assurance to bring in new law if the court declared all three forms of triple talaq as bad, Mr. Sibal asked: “What if the Parliament does not enact such a law? Where will Muslims go for divorce?”

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