The Supreme Court on Thursday reserved its verdict on a batch of petitions challenging the constitutional validity of the practice of triple talaq among Muslims.
A five-judge constitution bench headed by Chief Justice JS Khehar heard the issue for six days during which various parties, including the central government, the All India Muslim Personal Law Board, All India Muslim Women Personal Law Board, etc made their submissions.
The bench, also comprising justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer, had begun the historic hearing on 11 May.
It had fixed a six-day schedule for hearing, in which three days were available for those challenging triple talaq and three days for those defending it. On Wednesday, the Centre told the Supreme Court that triple talaq was not intergral to Islam, but was a gender issue within the Muslim community.
Referring to the batch hearing, Attorney General Mukul Rohatgi said that the practice of triple talaq is a tussle between the "haves and have-nots" inside the community. "The prism through which you see the case is not like majority versus minority; this is a case where it is an intra-community tussle between Muslim men and women. This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts," Rohatgi said on Wednesday.
He argued that fight is between men of the Muslim community, who are more powerful and educated, and the women, who are frequently uneducated and aren't as powerful.
The apex court also questioned the government on Wednesday as to why it did not legislate the regulation of marriages and divorces among Muslims.
Rohatgi, in his rebuttal to arguments favouring the 1,400 year-old practice of triple talaq, responded that the hallmark of a secular court was to reform without waiting for a legislation, when such matters come to it.
Rohatgi referred to sati, infanticide, Devdasi and untouchability among Hindus, and said that they have been done away with.
He said that under Article 25 (right to practice religion) of the Constitution, even the core component of religion can be tested on grounds of fundamental rights. "Rights given under Article 25 of the Constitution cannot be considered as absolute," he said.
He added that the court must look into these aspects, because a community cannot decide what constitutes a fundamental right.
He said that if the right to religion went against the fundamental rights, then it is the Constitution which will prevail over practices like triple talaq.
The bench had asked the All India Muslim Personal Law Board (AIMPLB) whether a woman can be given the option of denying triple talaq at the time of execution of 'nikahnama' (marriage contract).
Former Union minister and senior lawyer Kapil Sibal, representing the AIMPLB, said that he will respond after talking to all board members.
Referring to responses from the AIMPLB, Rohatgi had said that they call triple talaq undesirable or sinful, but still insist it's valid, and wondered how can it be considered integral to religion if it was so.
Sibal, who started arguments on Wednesday, referred to a Delhi High Court judgment, and said that it was wrong in holding that all schools of thought termed triple talaq as "sinful". "The Supreme Court cannot be called upon to decide as to what was wrong or right with the practice and belief," he said.
Sibal made an argument that challenging the constitutional validity of triple talaq, which is practised by a small portion of community, may revive the practice which is dying. He said if the secular Supreme Court decides to undertake suo motu (on its own) scrutiny of the issue, with the Centre seeking a ban, then the community may take a tough stand.
Sibal said the community faced the court on Wednesday to seek protection of its personal law, customs and practices using just faith. "Our faith in this court for the last 67 years is fundamental, and with that faith we have come here," he said.
Senior advocate Raju Ramachandran, appearing for Jamiat Ulama-I-Hind Maharashtra, said that issues raised in the petition were matters of legislative policy and ought not to be addressed by the court. He referred to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and said India had made an express reservation with regard to its policy of non-interference in the personal affairs of any community without its initiative and consent.
"The constitutional validity of personal law in our country cannot be tested on the oasis of enacted legislation of other countries," he said in his written submissions while questioning the arguments of the Centre and of petitioners who say triple talaq has been abolished in Islamic countries.
Senior advocate V Giri, representing Jamiat-ulama-I-Hind, said that Shariat was the law applicable to Muslims prior to the enactment of the Shariat Act. "The Shariat has not been subsumed by the statute nor has the Shariat Act codified the Muslim personal law. The Shariat Act has only statutorily declared that Muslim personal law as a set of rules would govern Muslims in India and that it is the Muslim personal law that would have overriding effect over any usage or custom to the contrary," he said in his written submission.
Giri, however, said that rights and duties of Muslims in India continue to be governed by the Muslim personal law and the Shariat Act has not substituted it nor has it provided for a different set of rights and obligations.
Senior advocate Indira Jaising, appearing for one of the petitioners, told the bench that Sharia does not give equal protection of law to Muslim men and women. "The impact of divorce is civil and not religious. Since 1950, we are concerned with what the law is. We are not concerned about the past 1,400 years," she said.
Jaising also questioned arguments that the matter was not within the jurisdiction of the court to decide. "If personal law is not outside the jurisdiction of the state, how it can be said that it is outside the jurisdiction of the court," she said, adding, "The matter was about supremacy of the Constitution."