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If triple talaq is sin, why retain it: SC

Noting that only practices fundamental to religion are protected under the Constitution, the Supreme Court asked Muslim bodies on Wednesday how instant talaq can be both an essential part of religion as well as ‘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 the Jamiat Ulema-e-Hind, on Wednesday.

Article 25

Mr. Giri insisted that triple talaq is a 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.

‘A big claim’

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, for the All India Muslim Personal Law Board (AIMPLB), whether there could be an option included in the nikah nama for the bride to refuse to be subjected to triple talaq.

Justice Kurian said if nikah nama is viewed as a contract, the Qazis could very well add this clause to protect the women of the community.

‘Not the court’s job’

Also 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 judicial precedents to contend that 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 contended that 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 interpretable texts.