But SC wanted to know from the All India Muslim Personal Law Board as to what is the position of e- divorce given on WhatsApp in Islam.
New Delhi: A five-judge Constitution Bench of the Supreme Court on Tuesday resumed hearings in the triple talaq matter brought before it by a bunch of petitioners opposing the practice.
Arguing for the All India Muslim Personal Law Board (AIMPLB), senior lawyer and Congress leader Kapil Sibal questioned how triple talaq could be unconstitutional if it had been going on for 1400 years.
Sibal claimed that 'constitutional morality and equity' cannot interfere in matters of faith.
"If the faith of Hindus about Lord Ram's birth at Ayodhya can't be questioned, then triple talaq ,a matter of faith for Muslims, shouldn't be either," Sibal added.
Kapil Sibal told the Supreme Court that it shouldn't upon decide or interfere in one's faith and belief.
Justice Rohinton Nariman asked Sibal, "You mean to say that we shouldn't hear the matter?" To which Sibal replied, "No, you shouldn't".
The apex court however asked the AIMPLB its opinion on the position of e-talaq in Islam, given through Whatsapp messages.
The Centre informed the Supreme Court on Monday that it would bring a law to regulate marriage and divorce among Muslims if the court held triple talaq invalid and unconstitutional.
Attorney General Mukul Rohatgi, India’s top law officer, made this submission after a five-judge constitution bench asked him about the remedies for Muslim men if triple talaq was struck down.
The multi-faith bench comprising Chief Justice of India JS Khehar and Justices Kurian Joseph, Rohinton Nariman, Uday Lalit and Abdul Nazeer is examining the legality of triple talaq after a clutch of petitions for a ban on the practice was filed.
The AG said triple talaq was not fundamental to Muslim personal law, and as the guardian of fundamental rights, the court should protect the rights of half of the Muslim population, which suffers discrimination.
The CJI told the AG, “We (court) are guardians of fundamental rights as well as minority rights. We agree with you that if triple talaq is arbitrary, extra judicial, it must go. But we are not here to tinker with religion, tenets of religion and religious practices. Tenets of religion can never be tested by courts. What we may ultimately decide will impact a large section of the population.”
The Narendra Modi government at the Centre has been pushing for a ban on the contentious practice on grounds of gender equality and justice. The push also looks to win support from Muslim women and chip away at an important bloc of voters that has viewed Mr Modi with suspicion. The All India Muslim Personal Law Board has promised reforms in personal law but opposed a blanket ban on the practice.
Earlier the AG insisted that polygamy and nikah halala among Muslims were also to be decided by the court as they form part of triple talaq. Nikah halala allows a woman to go back to her husband but only after she marries another man, consummates the marriage and gets a divorce. The court has said that it would only look into the triple talaq issue for now.