"The government will come out with law to regulate marriage and divorce among Muslims if court holds Triple Talaq as invalid", Attorney General Mukul Rohatgi told the bench.
The board said this when the Supreme Court asked the AIMPLB whether a woman can be given an option of saying "no" to triple talaq at the time of execution of "nikahnama" (Islamic marriage contract). You can incorporate this option in the Nikaah Nama before she gives consent to Nikaah to say no to triple talaq, Chief Justice Khehar asked the AIMPLB.
Drawing a parallel, senior counsel Kapil Sibal, also appearing for AIMPLB, said that as some people believe that Lord Rama was born in Ayodhya and it was a matter of faith and could not be adjudicated, similarly Muslim personal law too was a matter of faith and the court should be shy from stepping in.
This is not the way to deal with it. Customs and practices can not be tested on the constitutional touchstone by courts.
The argument began when Sibal said that the apex court should not decide or interfere in one's faith and belief.
He said that a court can not decide the issue in "vacuum" and triple talaq is a practice which has not been disputed and it is practiced by all the schools of thought. Triple talaq is an obnoxious and medieval practice to grant illegal rights to a husband and has absolutely no sanction in the Koran.
"Rights given under Article 25 of Constitution can not be considered as absolute", he said, adding the court has to look into these aspects as a community can not decide what is their fundamental rights.
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"The constitutional validity of personal law in our country can not 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.
Our Prime Minister Narendra Modi has also urged Muslims not to view the triple talaq issue from a political perspective and expressed the confidence that efforts to end the practice would be led by "enlightened" members of the community.
The apex court also questioned the government on Wednesday as to why it did not legislate the regulation of marriages and divorces among Muslims.
Sibal said this was a "very complex situation" as the AIMPLB says it was a practice and Article 25, which guarantees freedom of conscience and free profession, practice and propagation of religion, is a fundamental right.
Sibal sought to coat triple talaq with the mandate of Islam as he asked, "Can anyone question the belief and faith of Hindus that Ayodhya is the birthplace of Lord Ram?" He also asked the court to examine other aspects of Muslim personal law including nikah halala and polygamy.
For five days, the country's five seniormost judges have heard lawyers argue that triple talaq wasn't just a centuries-old practice but also an integral part of Islam. "We are not concerned about the past 1,400 years", she said. "I speak for the government and can't speak for parliament", he said reiterating that the top court was guardian of fundamental rights and has to see whether there was any violation of such rights. "But do not attempt to effect changes forcibly through the guile of Constitution", Sibal said. He subsequently moved the court to get the talaq declared valid, but the court dismissed the declaration suit on May 12. "The proof that triple talaq is not essential lies in the fact that Islam continues to thrive in many countries which had banished triple talaq", he submitted.
■ 11 May: SC says it would determine if the Muslim practice of triple talaq is in line with the Constitution and fundamental to Islam.