Supreme Court can’t touch ‘triple talaq’: Kapil Sibal

New Delhi: ‘Triple talaq’ forms the part of ‘faith’ under Muslim Personal Law that continued for centuries and it can’t be tested by the Supreme Court on the touchstone of discrimination or violation of fundamental rights guaranteed under the Constitution, argued Congress leader and senior advocate Kapil Sibal in the Supreme Court on Tuesday.

Making this submission before a five judge Constitution Bench of Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohinton Nariman, Uday Lalit and Abdul Nazeer, Mr Sibal, representing the All India Muslim Personal Law Board said a tradition like triple talaq, which is centuries old, cannot be termed unconstitutional all of a sudden.

Citing the Ayodhya temple issue, Mr Sibal said if Hindus’ faith about Lord Rama is not arguable, Muslims’ faith in ‘triple talaq’ should also not be questioned.

He said “when Triple talaq is going on for 1,400 years, how can you say it is unconstitutional? It’s a matter of faith. Court can’t touch this issue at all and should not be hearing this case.” When Justice Kurian Joseph wanted to know what the community was doing if they feel that ‘triple talaq’ was bad, senior counsel Yusuf Muchala, of AIMPLB intervened and said, “We are conscious that triple talaq is an undesirable form of divorce. We are trying to educate people. We are working on it, advising men not to resort to that practice.”

Referring to the Attorney General’s submission that the Centre would enact a divorce law for Muslims, Mr Sibal said, “What will happen if Parliament refuses to accept the Bill.” Justice Joseph intervened and wondered as to why it has not echoed in the earls of legislators all these years for enacting a law.

Mr Sibal, supplemented by saying “this (triple talaq) is something which is not  permanent or immutable. It is the community to get rid of them. We don’t want court or somebody else to tells us it is bad. You must accept other’s culture. If it is bad, educate them, have a dialogue with that community. You (court) don’t ride roughshod over it. That is the beauty of our culture. You enact a law if they accept it. Islam is a patriarchial society and that is the problem.” Mr Sibal submitted that a practice which is a matter of faith practised for 1,400  years can’t be decided in a hearing spread over six days. He told the court “please don’t enter into this area.

It would be hazardous to interpret them in six days as it is not the job of this court. If the community feels that time has come for change, we will accept it. Belief and faith should not be interpreted by court. We have to travel for 1,400 years to decide what is right and what is wrong. You will appreciate that it is very difficult my Lords.”

Justice Kuriant Joseph conceded that all matters of faith are sacred to that community. He asked Mr Sibal, “If talaq is provided in Quran, where is the need for innovation by saying triple talaq.” Mr Sibal, however, said, “Triple Talaq, which is Talaq-e-Biddat is not recognised by the Quran. None of these nomenclatures are referred to in the Quran. The procedure to be followed in all the different forms of talaq practiced by Muslims is not reflected in the Quran or Hadith. Hadith declares that Talaq in itself is not a good practice, but recognises the factum of Talaq. This is accepted by all believers of Islam.”

Mr Sibal said the Quran represents the revelations of Allah to Prophet Mohammad. The Quran also states that what the Prophet has said from time to time is also a part of Islam and is to be obeyed and followed. Courts can take judicial notice of the fact that what the Prophet said from time to time was not recorded by the Prophet himself but is a part of oral tradition.

Justice Nariman clarified “we are not deciding what is faith. We are deciding something which is non-religious but associated with religion.” Citing the 1937 Shariat law, the CJI observed “what was sought to be excluded under this law was custom and usage and you have accepted it.”

Mr Sibal said the evolution of matters of faith relating to religious practices is to be judged in the context of recognition of those practices by the community over centuries. An individual’s thought and action inconsistent with such practices can’t be the basis of determining matters of faith. The Quran and Hadith represent the Islamic beliefs. Islam also relied upon interpretations by scholars of both Quran and Hadith, together they from the Sharia. The core values of Islam were perfected during the time of the Prophet. However Islamic law was enunciated taking into account these core values.

He said Talaq can be in 3 forms Ahsan, Hasan and Talaq-e-Biddat as stated earlier. None of these nomenclatures are referred to either in the Quran or in the Hadith. These forms are categorized and interpreted by Islamic scholars. What is common in all forms is the finality of Talaq. Ahsan if not revoked is final, Hasan if not revoked is final, Triple Talaq when administered is final. In all forms of Talaq, when administered three times become irrevocable. Arguments will continue on Wednesday.