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Triple Talaq Is Going On Since 1400 Years, How Can You Say It Is Unconstitutional, Kapil Sibal Asks SC

Sibal is appearing in the case on behalf of AIMPLB.

16/05/2017 1:20 PM IST | Updated 16/05/2017 1:35 PM IST
Arko Datta / Reuters

NEW DELHI -- After asserting that triple talaq cannot be branded as unconstitutional, All India Muslim Personal Law Board (AIMPLB) counsel Kapil Sibal on Tuesday said the Supreme Court should be hearing the matter in the first place.

The argument began when Sibal said that the apex court should not decide or interfere in one's faith and belief.

To this Justice Rohinton Fali Nariman, one of the five judges constituting the bench asked, if they should not hear the matter at all.

"Yes, you should not hear," replied Sibal.

Earlier on Tuesday, Sibal asked the Supreme Court how a 1400-year-old practice be branded 'unconstitutional'.

"Triple talaq is going on since 1400 years, how can you say it is unconstitutional?" Sibal asked the apex court.

Sibal further argued that just like the Hindus' faith about Rama's birth at Ayodhya cannot be questioned, similarly triple talaq which is also a matter of faith for Muslims should not be questioned.

Meanwhile, the bench also questioned the AIMPLB on the position of e-divorce given on WhatsApp in Islam.

The Centre had on Monday assured the apex court that it will come out with a law to regulate marriage and divorce among Muslims if triple talaq was upheld as invalid.

"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.

Rohatgi also conveyed to the apex court bench that triple talaq violates Muslim women's right to equality within the community, and also within the country

Earlier in the hearing, the apex court refused to hear all the three cases of polygamy and Nikah Halala at once, saying it will focus on one matter at a time.

The Attorney General and top law officers representing the Central government arguing in front of the five judge Constitution bench said the apex court should hear other cases also, besides triple talaq.

However, the top court said that they have limited time, so all the matters could not be covered at present.

On the second day of the hearing last Friday, senior Congress leader Salman Khurshid, who is the amicus curiae in the matter, said before the apex court that the controversial Islamic divorce system cannot be justified whatsoever.

Citing examples, Khurshid told the court that the triple talaq practice could not be validated constitutionally.

"There was a discussion that whether triple talaq is valid constitutionally.

Substantiating my view with reasons and examples, I asserted that it cannot be justified and cannot be given law's validation," Khurshid said during the hearing.

The Centre, earlier on May 11, told the apex court that it opposes the triple talaq practice and wants to fight for women equality and gender justice.

However, All India Muslim Personal Law Board (AIMPLB) counsel Kapil Sibal told the apex court that triple talaq is a matter that comes under the Muslim board and therefore, in his opinion, the top court should not interfere in it.

"The Central Government makes rules but in my opinion the apex court should not interfere into it," Sibal said.

While hearing several pleas filed by Muslim women challenging the practice of triple talaq, the apex court observed that it would examine whether the issue is fundamental to religion or not.

A five-judge bench of the apex court further observed that it would not hear polygamy issue along with the triple talaq case.

Relentless debates on the validity and plausibility of this practice were instigated soon after one petitioner, Shayara Banu, challenged the Muslim personal law over instantaneous application of triple talaq (talaq-e-bidat), polygamy and nikah-halala.

Supporting the stance of ending the practice of triple talaq, the Allahabad High Court had earlier asserted that the rights of any person, including Muslim women, cannot be violated in the name of 'personal law'.

In December last year, the Allahabad High Court termed the Islamic practice of divorcing a woman by uttering the word "talaq" thrice "unconstitutional."

"Triple talaq is unconstitutional. It violates the rights of Muslim women," ruled the high court, adding that no personal law board was above the Constitution.

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