Attorney General Mukul Rohatgi started his arguments post lunch in the Triple Talaq matter. He objected to Kapil Sibal raking up the minority vs majority angle in the whole matter. He argued that it was wrong to look at the issue in that light. It is rather an intra-minority matter, he observed, where the male have superior rights and enjoy hegemony. As a result, a tussle has evolved between the males and females in the Muslim community.
When asked by the chief justice as to why was the centre dithering on making a law, Rohatgi replied the centre will do what it wants to do. It is to be seen what the court does in the matter.
Rohatgi wanted to know who will take a call on fundamental rights. Was it the court’s responsibility or did the onus lay with the community, he argued. He observed that India had a secular constitution, which should prevail over the right to follow one’s religion. He cited several Hindu traditions—like Sati, infanticide and devdasis—which were prevalent earlier but later set aside by legislation on court’s directions.
The chief justice wanted to know the orders, Rohatgi had mentioned. Rohatgi mentioned the Visakha verdict. Justice Kurian Joseph said that was not linked to religion.
Rohatgi argued that in the nikahnama the writ of the qazi runs supreme even if the woman doesn’t agree.
Senior advocate Indira Jaising appearing from one of the parties said that the main issue was larger than Article 25. The word “personal law” was not defined anywhere, she said. The issue had to be decided first, she insisted and added that the distinction between codified and uncodified law was irrelevant as law was just law.
Jaising pleaded that if the court doesn’t consider the issue, it will have very far reaching consequences not only for Muslim women in India but for all women in India governed by any other law related to their communities.
She said that in India a unifying system of courts existed wherein suits could be filed to deal with issues arising under family law. There can’t be Shariat courts because India is a secular country. So when there can’t be two set of courts how can there be two sets of laws? She argued.
—India Legal Bureau