With Attorney General (AG) Mukul Rohatgi back, he began his arguments for the government on the issue of Triple Talaq that the special five-member bench of the Supreme Court is hearing. This is day 3 of the hearings.
He said: “Divorce, polygamy and nikha halala, all three are before your Lordship to decide.”
To this Chief Justice J S Khehar replied: “We have made a conscious decision that we will decide only on Triple Talaq. The rest will be taken later.
AG: “Nikha halala goes with this.”
CJI: “We can take up those issues later after we decide on this now.”
That meant there was a slight change in the apex court’s stand on the issue. It meant that even though it will be dealing only with Triple Talaq, the hot topic, for now, it will also be dealing with other issues such polygamy later. That will, of course be a separate hearing and may not be a continuation of the current hearing.
The AG continued: “Introspection and reconciliation is the essential. Theocratic states like Pakistan have reformed and done away with this practice. And we being a secular state are still holding on to it.”
The AG handed over the compilation showing status of matrimonial laws in various countries.
He continued: “Turkey had always been ruled by military rulers, but they also have matrimonial laws. Indonesia, Sri Lanka, Iran all have matrimonial laws. Iraq has a shia population and they also have matrimonial laws. In most countries the rights of women are not the same and women will have to go to a kazi for divorce.”
That the arguments are being widely followed was evident during the process, when a lady shouted from the visitors’ gallery: “Mere saath bahut anyay hua hai…”
The CJI did not take lightly to this. He said: “Don’t disturb the court proceedings. We will issue contempt.”
The AG made some specific distinctions. He said: “How we live can be regulated. But the matter relating to marriage has nothing to do with religion. If it is personal law it has to be passed by statue. The court cannot interpret the Quran or Gita. Personal law is different from religion. These practices are separated from religion, but it is still law.”
He also indicated the areas of human life and where specific institutions are seemed have regulatory authority. He said: “In constitutional morality or religious morality, constitutional morality should stand. There is no escape from constitutionality. It has to be tested under Article 13, 14 and 15. The Bombay High Court decision on Narasu Appa Mali has to be reconsidered by your lordships.”
On Triple Talaq, he said: “Sati was outlawed long back. If it was existing, and someone came to the court and said that ‘I live in fear, I want to live a life like wives in other religions do,’ then it (Sati) has to go.”
The AG made it clear that “neither instantaneous Talaq, nor in stages, should be allowed without (the parties) having gone to court. There should be no discrimination between religion, caste etc. And any comparison with women and communities in other countries is completely unjust.”
At this, Justice Uday Lalit asked: “How will you do it?”
The AG replied: “By striking down the practice. If the court strikes down all forms of Talaq, the Centre will pass a law on Talaq.”
The CJI said: “It is beyond the purview of the court to go into the tenaments of religion. We cannot go into it even if science tells us something different.”
The AG said: “Please read the latest Kerala High Court judgment. Para 8, ‘Quran nowhere approves triple talaq…’”
Justice Kurian Joseph said: “No one has the case that Triple Talaq is Quranic.”
Senior advocate Kapil Sibal said: “It is Islamic.”
Justice Joseph said: “So you agree to the extent that it is not Quranic?”
Sibal said yes.
The AG said: “Equality of status has to be looked into. You cannot say you will look into the dignity of woman within the respective religion.”
—India Legal Bureau