The Cupreme Court on Wednesday suggested that the Central government put in place a law addressing the question of marriage and divorce, including triple talaq, in the Muslim community instead of waiting for the court to decide the issue judicially.
"We may or may not (decide the issue), but you do," the constitution bench headed by Chief Justice Jagdish Singh Khehar told Attorney General Mukul Rohatgi as he urged the court to step in a situation where there is no legislation.
Noting the government's insistence that the court should first rule against instant triple talaq and then it would bring a law, the bench asked why the government seemed to be shunning its responsibility.
At this, Rohatgi said: "I will do what I have to do. The question is what you (court) will do."
As he referred to the Vishakha guidelines that were framed by the top court to protect women at workplace in the absence of any law, Justice Kurian Joseph said that it was in the domain of a statute and not the constitution.
When Rohatgi cited the steps taken to reform Hindu practices, including the banning of sati, infanticide and the devadasi system, Justice Joseph said that all those were legislatively decided.
Chief Justice Khehar said: "Did court do it? No, legislation got rid of it."
Rohatgi, describing instant triple talaq as a "pernicious" practice, urged the court to "step in as a guardian of the fundamental rights".
He further argued that even under the Constitution's Article 25 which guarantees right to propagate and practice religion, core religious values were subject to part III of the Constitution spelling out the fundamental rights.
Recalling the horror and trauma at the time of Partition, he said that Article 25 was incorporated in the Constitution to assure everyone that the core values of their religious beliefs would not be touched by the state.
Senior counsel Indira Jaising, appearing for one petitioners challenging the constitutional validity of triple talaq, in her rejoinder said that the court was looking at the issue in the context of 67 years when fundamental rights came into force and not 1,400 years since the birth of Islam.
Telling the court that the impact of a divorce was civil involving her maintenance and shelter, she said that the court should address the social consequences of divorce as women lose everything.
Citing equality before law and equal protection of law under Article 14, Jaising said that state is obliged not to recognise any discrimination between men and women on the grounds of religious beliefs and practices.
Earlier in the morning, the bench asked the All India Muslim Personal Law Board (AIMPLB) if it was possible to give the woman the option, before she gives her consent to nikaah, that the marriage she was entering into would not be dissolved through instant triple talaq and whether their advisory would be followed by the qazis at the ground.
"You can incorporate this option in the Nikaah Nama before she gives consent to Nikaah to say no to triple talaq," Chief Justice Khehar told the AIMPLB.
Responding to the suggestion, senior counsel Yusuf Hatim Muchchala said that an advisory by the AIMPLB is not binding on the qazis.
However, Muchchala, who is also a member of the AIMPLB Executive Committee, referred to the recent resolution passed by the AIMPLB conclave at Lucknow in April where it had asked the community to boycott men who take recourse to instant triple talaq .
He told the bench that they would consider the suggestion in all humility and would look at it.
The suggestion to AIMPLB by the court came in the course of the hearing of a batch of petitions challenging the constitutional validity of triple talaq.
The AIMPLB has, in the course of its submissions, noted that triple talaq was permissible despite being a "sin" and "undesirable". It also argued that that the community needed time to change and reform itself on its own without any outside interference or dictate.
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