NEW DELHI: A new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce including triple talaq are struck down, the government today told the Supreme Court.
The Centre, which also sought that the issues of polygamy and 'nikah halala' should not be excluded from the ongoing deliberations, got an assurance from the apex court that these aspects were open and would be dealt with later.
The government termed all the three forms of divorce among the Muslim community –- talaq-e-biddat, talaq hasan and talaq ahsan, as "unilateral" and "extra-judicial".
The apex court bench said the government has to first pass the test of "essentiality" and prove that 'triple talaq' is not an essential part of Islam, as this will amount to "tinkering" with religion.
A five-judge constitution bench headed by Chief Justice J S Khehar said "we are not only the guardian of the Constitution but also the guardian of minority rights" and will have to see if triple talaq formed a fundamental part of religion and pass the test of "essentiality" under Article 25.
The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, asked if the court struck down all forms of talaq, then what options would a Muslim man be left with to come out of a marriage.
"The government will not leave the people high and dry once the instant form of divorce (triple talaq) or all forms of talaq are struck down. We will come out with a law to regulate the marriage and divorce among Muslim community," the Attorney General Mukul Rohatgi, appearing for Centre, said.
He said the issues of Muslim marriage and divorce were separated from religion in Shariat Act of 1937 itself and have been codified as personal law under Section 2 of the Act.
The apex court has to test them on the touch-stone of the fundamental rights of gender equality, justice, dignity, gender discrimination and human rights under constitutional provisions, including Articles 14, 15, 21 and 51A.
"All personal laws must be in confirmity with the Constitution. Rights of marriage, divorce, property and succession has to be treated in the same class and has to be in conformity with the Constitution," Rohatgi said.
The Attorney General also said what kind of religious practices are essential to a particular religion or faith was difficult to define for the court. But once such practices of marriage and divorce are separated from religion, there cannot be any immunity under Article 25 (freedom to practice any religion).
He said if the practice of talaq was out of Article 25, then it has to be constitutionally moral, which means it has to be secular and non-discriminatory.
"One half of a community in the country has to suffer inequality from their male counterpart. What may be permissible for society may not be constitutionally moral," he said.
To this, the bench observed if the government wanted social welfare and reforms, why can't it bring laws to correct the wrong.
"Yes, we can bring law. There is no law for past 60 years. It has not been done. But the court should first strike down these practices which are not in confirmity with the Constitution," he said.
Rohatgi said when half the population of a particular community is not empowered, no equal opportunity is given, they are devoid of gender equality, then it does not pass the test of constitutional morality.
He said even if triple talaq is considered as an essential part of religion and falls under Article 25, the practice still has to be constitutionally moral.
"Even if talaq is considered under Article 25, it has to be related to the fundamental rights and should abide by the principles of gender equality, non-discrimination and justice," the AG said.
The bench insisted that the government has to prove that this practice of triple talaq was not essential to Islam and only then can it delve further into other aspects.
Rohatgi pointed out that it was not the apex court's job to interpret a religion and said "You cannot go into essential principle because it is not an ecclesiastical court"
To buttress his argument that practices or custom are not essential part of religion, he said that in the Hindu religion, women used to practice Sati till the law termed it as illegal and obsolete.
Rohatgi said the court should not close its door for adopting a reformist approach like even when there was no law on sexual harrassment at work place, it formulated guidelines or even suggest enacting of a law.
To this, the bench said then the government will say "Mr Reformist this is not your domain, you have to be within your limit".
Senior advocate Kapil Sibal, appearing for All India Muslim Personal Law Board (AIMPLB), said that the core issue was not triple talaq but patriarchy and all patriarchal societies discriminate.
"All patriarchal socities are partial. In Hinduism, a father can will away his property to anyone, but not in Muslim community. I can point out many such practices in the Hindu society. Is it better for a woman to apply for divorce and fight for 16 years and get nothing," Sibal said.
He said in some areas of Himachal Pradesh polygamy was practiced but it has been protected since it is a custom and only society will decide when to change it.
The Attorney General, at the start of the hearing, also cited laws of various Islamic countries which have adopted to repeal the practice of triple talaq as reformatory measures.
He said that except Saudi Arabia, several Muslim countries like Pakistan, Bangladesh, Iran, Iraq, Libya, Egypt and Sudan have repealed triple talaq.
Rohatgi said even Sri Lanka, a secular country, has done away with the practice of triple talaq and Iraq which has a majority of Shia population have matrimonial laws which do not subscribe to triple talaq.
"When theocratic states are moving towards reform, then why is a secular country like India still practicing these things," he said, citing judgements of Kerala, Gauhati, Madras and Delhi High Courts which have said triple talaq was untenable in law.
The attorney general said all these high courts have said that the pronouncement of talaq thrice shall be considered as one, so that there is an opportunity for reconcillation.
Additional Solicitor General Tushar Mehta said that AIMPLB should apologise for justifying triple talaq by saying that men have greater strength to control their emotions.
At the outset, the apex court said it was keeping open for adjudication in future, the issues of polygamy and 'nikah halala' among Muslims, while the Centre insisted deliberations on these aspects as well.
The observation was made when Rohatgi, appearing for the Centre, said the issues of polygamy and 'nikah halala' were also part of the order of a two-judge bench which had referred to the Constitutional bench the three issues, including the practice of triple talaq among Muslims.
"The scope of reference had all the three issues, that is divorce, nikah halala, polygamy. All these three issues are before this court by virtue of the reference order of the twojudge bench," Rohatgi said.
The bench said "it may not be possible to deal with all the three issues in the limited time we have. We will keep them pending for future".
The significant observation was made when Rohatgi, appearing for the Centre, said the issues of polygamy and 'nikah halala' were also part of the order of a two-judge bench, which had referred to the Constitution bench the three issues including the practice of triple talaq among Muslims.
Today was the third day of the hearing on a clutch of petitions challenging triple talaq, polygamy and 'nikah halala' which is going on before a bench comprising members of different religious communities including Sikh, Christian, Parsee, Hindu and Muslim.