A five-judge bench of the Supreme Court is hearing the triple talaq case.
Principles of constitutional morality and equity do not apply to triple talaq because it is a matter of faith, the Muslim law board told the
Supreme Court on Tuesday. The Muslim body that is defending the practice that lets men get instant divorce by saying talaq thrice insisted that a 1,400 year old practice could not be un-Islamic.
To make his point, the law board equated triple talaq with the Hindu belief that Lord Ram was born in Ayodhya. "If I have faith that Lord Ram was born at Ayodhya, then it's a matter of faith and there is no question of constitutional morality," Kapil Sibal, the former law minister, who is appearing for the All India Muslim Personal Law Board told the country's five top judges hearing the triple talaq case.
"Triple talaq is there since 637. Who are we to say that this is un-Islamic. Muslims are practising it for last 1,400 years. It is a matter of faith. Hence, there was no question of constitutional morality and equity", he said.
Mr Sibal also pointed that the source of triple talaq can be found in Hadith and it came into being after the time of Prophet Muhammad.
"Is e-talaq also there," the bench headed by Chief Justice of India JS Khehar asked, a reference to many complaints from Muslim women that they had been divorced over WhatsApp and Facebook.
"Yes...WhatsApp talaq, and it is encrypted too," Mr Sibal responded, in a lighter vein. The senior lawyer is also representing WhatsApp before another constitution bench before the messaging application's privacy policy has been challenged.
The Supreme Court has stressed that it sought to assess if triple talaq was fundamental to Islam and if it was, the court would not interfere. The bench, which also comprises Justice Kurian Joseph, Justice Nariman, Justice Uday Umesh Lalit and Justice S Abdul Nazeer, has been hearing the case for three days, today is the fourth.
Last week,
the court called triple talaq the "worst form" of dissolution of marriage among Muslims. On Monday, the government told the country's five top judges that triple talaq had nothing to do with religion, and was contrary to gender equality and human rights. In response to the court's concern about
the possibility of a vacuum if it were to strike down triple talaq, Attorney General Mukul Rohatgi told the court that the government would enact a new law.