The All India Muslim Personal Law Board on Tuesday invoked Lord Ram to defend the practice of instant triple talaq in the Supreme Court saying both were matters of faith and courts could not go into it. “That Ram was born in Ayodhya is a matter of faith, not Constitutional morality. Same is the case (with instant triple talaq),” former law minister and senior counsel Kapil Sibal told a five-judge Constitution Bench which is hearing a batch of pleas challenging the practice prevalent in the Muslim community. “Personal law is not something decided by the individual. It is through the interaction of the individual, family and community for many years that personal law evolves… Will your lordships decide the faith of 160 million people or is it the responsibility of the legislature… Personal law is protected under Constitution… Personal laws of Muslims have evolved through 1,400 years of practice.
“Are we to say now it’s un-Islamic? The Court, in exercise of its powers under the Constitution, should not, in matters of faith, seek to interpret the manner in which the community should understand its own faith,” Sibal said and added that the “consequences” of court interfering in personal laws “will be unimaginable”. The senior counsel rejected the contention that The Muslim Personal Law (Shariat) Application of 1937 had taken marriage and divorce and succession out of the purview of personal law and made them statutory rights.
“The purpose of the 1937 was to protect women to inherit property, to empower women because under Hindu customs, women could not inherit property. The essential purpose of the said Act of 1937 was to ensure that all those customs and practices which were contrary to Islam but being followed by those who embraced Islam should be discontinued and declared to be contrary to Islam. The Act of 1937 is neither an attempt to codify the ‘personal law’ of Muslims in India nor does it represent a statutory enactment of ‘personal laws’ of Muslims in India,” Sibal submitted.
Interestingly, Sibal agreed with fellow AIMPLB counsel Yusuf Muchhala’s contention that instant triple talaq was an “undesirable form of divorce”. Muchhala told the court “it is an undesirable form of divorce. We are trying to educate people. We are working on it and we are advising people not to resort to the practice.” Sibal added to this: “We are not saying it is permanent or immutable. We are aware of the need to change. But we will do it in our own way. It is not for someone else to tell (us) what it is.”
He also repeatedly referred to what he said was the discriminations in Hindu law to buttress his claims. The Dowry Prohibition Act of 1961 banned the practice of dowry but allowed parents to give gifts to daughters and thus this practice is continuing, he said, adding “in case of Hindu law, you protect all customs. In case of Muslim law, you will say it violates the provisions of the Constitution.”
Justice Kurien Joseph sought to know if the Koran had laid down the procedure for divorce, then why did messengers have to improvise on it and bring in something which is not there in the original text. “Talaq is separation, which is conceived and well-explained in the Koran. Then why go for anything else… What was the need for the messenger to lay down something when it is actually given in Koran,” Joseph sought to know.