Counsel Arif Mohammed Khan appearing for AIMWPLB said that "far from being fundamental or sacrosanct", triple talaq was against everything that was good in Islam.
The All India Muslim Women Personal Law Board (AIMWPLB) on Friday told the Supreme Court that triple talaq was not fundamental to Islamic tenets as the top court wondered how something that was ordained as “sinful” by God can be a part of Muslim personal law. “Can something found to be sinful by God, be validated by men through law,” asked Justice Kurian Joseph who along with Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer is on the constitution bench, headed by Chief Justice Jagdish Singh Khehar.
The court’s observation came in the course of the hearing when senior counsel Salman Khurshid assisting the court pointed to the All India Muslim Personal Law Board saying that though triple talaq was a sin but it was permitted under Shariat. On the second day of the hearing on a batch of petitions by different individuals and organisations challenging the validity of triple talaq, the bench made a number of observations, including that triple talaq was like a “death penalty” which was abhorrent but permissible.
In another query, the court asked if triple talaq was India specific or prevalent in other countries too. The court was told that at present it was an India specific practice. Counsel Arif Mohammed Khan appearing for AIMWPLB said that “far from being fundamental or sacrosanct”, triple talaq was against everything that was good in Islam.
Explaining the procedure laid down in Islamic tenets for divorces, Arif Mohammed Khan slammed the All India Muslim Personnel Law Board for “distorting the tenets to ridiculous depths” by holding that talaq was valid even if it was pronounced under the threat of sword or in a depressed state of mind.
He extensively quoted from the Quran telling the constitution bench that divorce in Islam was a well defined procedure that included counselling, separate living by husband and wife under the same roof and arbitration, and at no stage was it instant.
He said that even after the husband has pronounced divorce, both he and his divorced wife would still live under the same roof for three months to give reconciliation a chance.
Arif Mohammed Khan, who was a cabinet minister in the Rajiv Gandhi government, said that every law has a social context and we can change laws but not the habits. In this context he referred to the law banning untouchability, saying that 70 years after its enactment untouchability persists in some parts of the country.
Senior counsel Ram Jethmalani said that leaving the choice of dissolving the marriage to man only was discriminatory to woman under Article 14 of the Constitution that prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
As the bench said that Article 14 bars discrimination on grounds of religion, race, caste, sex or place of birth only in respect of state laws and not personal laws, Jethmalani in poser asked “Does it create a constitutional right in the favour of a husband to get rid of his wife, and if so then is it repugnant of Article 14?”
He said that due to multiplicity of religions, the promise of Uniform Civil Code under Article 44 of the Constitution could not be realised but at least there should be uniform application of law.
Saying that when you are dealing with husband and wife, there has to be a uniform application of law for both, Jethmalani said that the Dissolution of Muslim Marriages Act, 1939, was applicable to all Muslims irrespective of their different sects — a view not shared by the bench.
Telling the court that every religion has its “core” and the disposable parts which are rubbish, Jethmalani referring to Article 37 of the Constitution said that secularism was nothing but subjecting religion to any doctrine of the country.