The Attorney General also said what kind of religious practices are essential to a particular religion or faith was hard to define for the court.
The constitution bench of the Indian Supreme Court, comprising senior-most judges, is now hearing several litigations filed by Muslim women and rights groups demanding a review of the practice of triple talaq among Muslims. The court has also given three days to those defending it.
"Triple talaq is there since 637". This triggered a tit-for-tat between the Bench and the Centre in court.
"(This) court is not the master of interpretation of the Quran, Guru Granth Sahib or the Gita". Representing AIMPLB, former union law minister and counsel Kapil Sibal said, "Triple talaq is there since 637". We agree with you that if triple talaq is arbitrary, extra-judicial, it must go. Issues of marriage and divorce have nothing to do with religion.
He said practices of marriage and divorce have been codified as "personal law" under Section 2 of the 1937 Act. Today it said the system is "contrary to equality, gender equality and human rights".
To buttress his argument that practices or customs were not an 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.
He asked: "If there is a conflict between constitutional morality and personal law, which shall prevail?" "What may be permissible for society may not be constitutionally moral", he said.
The AG went one step further.
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Mr Rohatgi maintained that these practices were not protected under the right to religion guaranteed under Article 25 (1) of the Constitution.
"Article 25 is not without reasonable restrictions".
Supporting the position of closure the act of triple talaq, the Allahabad High Court had before declared that the privileges of any individual, including Muslim ladies, can't be damaged for the sake of "individual law". "Matters are referred to the Constitution Bench because they have something to do with the Constitution", Mr. Rohatgi replied. "Why should the court intervene?", he said.
"Women should have the freedom to live without the fear of talaq".
The cleric further said divorce rates within the community were around 0.5 percent, adding that by 2019, triple talaq cases would become negligible. "They want to have a life equal to that of another woman, say a Christian or a Hindu wife", Mr. Rohatgi submitted.
The Sharia principle dictates that the husband must support the woman until the end of the notice period, or until she has their child. Women in India are marching shoulder-to-shoulder with men in every field.
During the last hearing in the case on Friday, the apex court had observed that Triple Talaq was the "worst" and "not a desirable" form of dissolution of marriage among Muslims.
Rohatgi asked the bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, to make it clear that the issues of polygamy and nikah halala are still open and would be dealt by other bench in future.