The Government had put its stand forth on Monday regarding what would happen if all forms of divorce in Islamic community are rejected in the Supreme Court. The apex court then viewed that it might remove the personal law. It also said that it is the duty of the constitution to protect the rights of minorities.
A bench headed by CJI J S Kehar was hearing the cases when Attorney General Mukul Rohatgi posed the argument that all three forms of talaq needed to be wiped away as they violate a Muslim woman's right to equality, dignity and gender justice. This is when Kehar asked Rohatgi, “If talaq in entirety is erased, how will a Muslim man walk out of bad marriage?”
Rohatgi then responded to Kehar’s query and said that the centre will bring a new law on divorce for Muslims. The centre retorted to this statement by saying that if the government wants uniformity then it should abolish all other laws and instruct citizens that all must marry according to the secular Special Marriages Act.
The court also asserted that centre’s argument calls for obliterating all personal law rights. And that some religious rights are given under Article 25.
"The way you argue, it would mean that religion and religious practices can be thrown to the wind," the bench comprising of Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer apart from Kehar, said. But it also reminded the court that centre is the ultimate decision-maker here.
"If the court takes the first step and quashes talaq in entirety, we will take the next step of enacting a new law," Rohatgi replied, TOI reported. He further justified that triple talaq was bad for the community always, since it gave undue advantage to Muslim men.
Currently, Rohatgi prefers the other two forms of divorce among Muslims which gives them a chance of reconciliation and revocation of divorce. The bench questioned Rohatgi about what will happen if these divorce forms are revoked. He said, “If all three forms of talaq are struck down, then we will not leave a vacuum. Triple talaq is not part of religion." He also listed down Muslim majority countries that had repealed triple talaq as an irrevocable mode to end a marriage.
"Right to religion cannot mean that Article 25 protects only what citizens do inside a temple, mosque, gurdwara or other religious institutions but not other customs or practices they perform outside," the bench responded to Rohatgi’s statement.
"Do Muslim women have equality in matter of divorce within the community? Do they enjoy equal rights compared to women of other communities within the country? Do they enjoy similar rights compared to Muslim women in other countries? If the answer to the three questions is no, then that custom, even if part of religious rights, must be struck down as unconstitutional," he said.
The constitutional bench replied that personal laws and fundamental laws are two different things and must be treated separately. "If a man gives Rs 10 to one son and Rs 5 to another son, does he violate the right to equality of the sons? Marriage and divorce are part of personal laws and are religious ceremonies."
Picture credit- Indiatimes