Maintaining the same stand on the much debated triple talaq, the Centre on Thursday told the Supreme Court that it opposes the system and wants to fight for women equality and gender justice.
Attorney General (AG) Mukul Rohatgi would argue the matter next on May 15.
However, All India Muslim Personal Law Board (AIMPLB) counsel Kapil Sibal told the apex court that triple talaq is a matter which comes under the Muslim board and therefore, in his opinion the top court should not interfere into it.
“The Central government makes rules but in my opinion the apex court should not interfere into it,” Sibal said.
Earlier in the day, the apex court observed that it would examine whether the issue is fundamental to religion or not.
A five-judge Constitution Bench, headed by Chief Justice JS Khehar, however, made it clear that the issue of polygamy among the Muslims may not be deliberated upon as it is not connected with the triple talaq issue.
“We will deal with the issue as to whether triple talaq is sacramental and whether it can be enforced as a Fundamental Right,” the Bench, also comprising Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer, said while framing the issue to be deliberated upon.
The apex court also said if it came to the conclusion that triple talaq is fundamental to religion, then it will not go into the question of its constitutional validity.
The Bench said it will also deal with the aspect of whether triple talaq formed part of the enforceable Fundamental Right to practice religion under the Constitution.
Senior advocate Amit Singh Chadha, appearing for Saira Bano, one of the petitioners in the case, initiated the arguments against the practice of triple talaq among Muslims and said this practice was not fundamental to Islam and hence can be done away with.
He also referred to the practices in the neighbouring Islamic countries like Pakistan and Bangladesh to buttress his plea that triple talaq is un-Islamic.
The Bench intervened and said it would like to peruse the prevalent laws in various Islamic countries on the issue.
Another senior advocate Indira Jaising, appearing for one of the petitioners, said in case of divorces being granted through extra-judicial mechanism, there should be a “judicial oversight” to deal with the consequences.
Former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, termed triple talaq as a “non-issue” saying it is not considered complete without conciliation efforts between the husband and the wife.
He said there was no adjudication to determine the validity of the grounds of talaq.
When the Bench asked whether reconciliation after the pronouncement of triple talaq in one go is codified, Khurshid replied in the negative.
The pleas before the apex court have also challenged the constitutional validity of other practices like ‘nikah halala’ and polygamy among the Muslims.
The Bench is also taking up the main matter on its own as a petition titled “Muslim Women’s quest for equality”.
The apex court had on its own taken cognisance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.
The hearing assumes significance as the apex court has decided to hear the case during the summer vacation and is likely to sit on Saturdays and Sundays to expeditiously decide the contentious and sensitive issues arising in the matter.
It holds importance as the Allahabad High Court, in its verdict pronounced in the last week of April, had held the practice of triple talaq as unilateral and bad in law.
The High Court had given its verdict while dismissing a petition filed by one Aaqil Jamil whose wife had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq.
The apex court had on March 30 said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are “very important” and involve “sentiments”.
Influential Muslim organisations like the AIMPLB have opposed the court’s adjudication of these matters, maintaining that these practices stemmed from the Holy Quran and hence not justiciable.
The Muslim women, who have filed the petitions, have challenged the practice of triple talaq in which the husband, quite often, pronounces talaq thrice in one go, sometimes even by phone or text message.
