"Personal laws can't be tested on the touchwood of Fundamental rights," AIMPLB has argued before the Supreme Court in triple talaq case.
Triple Talaq: A five-judge Constitution bench headed by Chief Justice JS Khehar is hearing the triple talaq case in the Supreme Court for the last five days. Other judges on the bench are Justices bench Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer. The SC is hearing a clutch of pleas challenging triple talaq, polygamy and ‘nikah halala’.
Here are all the arguments the All India Muslim Personal Law Board (AIMPLB), which supports triple talaq, has made before the Supreme Court:
All patriarchal societies discriminate
On May 15, AIMPLB said the dispute was not just the issue of triple talaq but the prevalence of patriarchy among communities. Representing the board before the Supreme Court, Kapil Sibal said all patriarchial societies discriminate. He also argued that there was a difference between personal law and customs and usage.
Is it better for Muslim women to file for divorce and end up getting nothing?
“All patriarchal societies are partial. In Hinduism, a father can will away his property to anyone, but not in the Muslim community. I can point out many such practices in the Hindu society. Is it better for a woman to apply for divorce and fight for 16 years and get nothing,” Sibal said.
Polygamy practised by other communities as well
Sibal said that polygamy was practised in some areas of Himachal Pradesh but it has been protected since it is a custom and only society will decide when to change it.
Triple talaq is a matter of faith for 1,400 yrs
On May 16, AIMPLB told SC that triple talaq is a matter of faith being practised by Muslims for the last 1,400 years and hence the question of constitutional morality and equity did not arise. “Triple talaq has been there since 637 AD. Who are we to say that this is un-Islamic. Muslims are practising it for last 1,400 years. It is a matter of faith. Hence, there is no question of constitutional morality and equity,” Sibal said.
Asking the apex court whether it should decide the faith of over 16 crore people, Sibal said the age-old practice was a “part of my faith and you cannot determine what should be my faith. This is the question and this is the issue”.
Triple talaq and Lord Ram analogy
“If I have faith that Lord Rama was born at Ayodhya, then it’s a matter of faith and there is no question of constitutional morality” and it cannot be interfered with by a court of law, said Sibal.
According to Sibal, the source of triple talaq can be found in Hadith and it into being at the time of Prophet Muhammad.
Hindu customs being protected, why not Muslims should also follow their customs without interference
“When it comes to Hindu law, you protect all customs but when it comes to Muslim, you start raising questions over customs. Like when it comes to Dowry prohibition Act or Guardianship Act you follow customs and protect them,” said Sibal.
Is Muslim Personal Law a part of Islam?
“Some part of Personal Law may be part of religion but some part may not be. There are different schools of thought for Shias and Sunnis. The foremost thing is the essence of Quran which is the principal thing,” Sibal told SC.
Sibal further said that ceremonies related to birth, marriage, divorce, properties and death are decided by family influenced by social norms, which cannot be tested on the ground of constitutional morality.
Triple talaq is not unIslamic
“The essence of Islam is that divorce happens after the marriage. If Nikahnama is the heart of it, why can’t divorce be part of it. You cannot change my ‘nikahnama’ by some kind of statute. It’s totally unacceptable.”
Personal laws can’t be tested on the touchwood of Fundamental rights
Sibal said personal laws cannot be tested on the touchstones of fundamental rights under Article 13, 14 (right to equality), 15 (prohibition of discrimination) and 21 (right to life) and no one can come to the court saying that this practice is discriminatory and so strike it down. “Personal laws cannot be tested on the ground of being discriminatory. The argument that the triple talaq is discriminatory does not hold good,” he said.
Marriage among Muslims is a civil matter
“Unlike the Hindu law, the marriage in Muslim law is purely a civil matter. It is a contract between two consenting adults and so is divorce. It is an essential tenet of Islam. There is no question of religion being in danger,” said Sibal.
According to Sibal, Muslim Personal Law (Shariat) Application Act, 1937, was brought with an intention to ensure that unlike Hindu women, their Muslim counterparts get property rights and it did not codify the Shariat law.
Sibal said Section 2 of the Act talked about custom and usage but did not deal with Shariat and hence, triple talaq is protected under Article 25 (right to religion) of Constitution.
Is triple talaq a part of Quran?
Sibal said, “Quran does not talk of it. Immediately after a few years of the death of Prophet Muhammad, the companions of Prophet Muhammad talked about triple talaq. It is my belief and I practice it. Today, the Supreme Court says that it will examine it.”
Women can pronounce triple talaq too
All India Muslim Personal Law Board (AIMPLB) on Wednesday told the Supreme Court that marriage in the Muslim community is a contract and in order to protect their interests, they can put special emphasis on certain clauses in ‘nikahnama’. The board further said that a Muslim woman had every right to pronounce triple talaq in all forms, and also ask for very high ‘mehr’ amount in case of talaq.
(Compiled from PTI/ANI reports)