The All India Muslim Personal Law Board (AIMPLB) on Tuesday told the Supreme Court that triple talaq was a "sin and undesirable" act, but still permissible and efforts are on to educate the community against its misuse.
Asking the court not to interfere with triple talaq as it was also a matter of faith which the community has practised for 1,400 years since the birth of Islam, senior counsel Yusuf Hatim Muchchala said that though permissible, triple talaq "is a sin and undesirable act, we are trying to educate people" but "it will take some time".
Muchchala, who is also a member of the AIPMLB's Executive Committee, made his suggestion to the five judge constitution bench in response to a question from it as to why triple talaq was excluded from the 'Nikah Nama' and why 'talaq ahasan' and 'hasan' alone are included.
Drawing a parallel, senior counsel Kapil Sibal, also appearing for AIMPLB, said that as some people believe that Lord Rama was born in Ayodhya and it was a matter of faith and could not be adjudicated, similarly Muslim personal law too was a matter of faith and the court should be shy from stepping in.
Sibal was addressing the constitution bench comprising Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer, which is hearing a batch of petitions challenging the constitutional validity of triple talaq.
The matter is rooted in October 16, 2015 order of the SC, directing separate listing of a PIL addressing the question of the rights of Muslim women.
Telling the bench that ripple talaq is not something that "we can do with flourish", Sibal said: "Personal law is drawn from Quran, Hadith and triple talaq is 1,400 years old. Who are we to say it is un-Islamic. It is not a question of good conscience or morality but a question of faith. It is not a question of constitutional morality."
Telling the court that it had no role in the matter of Muslim personal law, and "parliament alone can decide what to do", Sibal took a dig at Attorney General Mukul Rohatgi telling the court on Monday that it should strike down the all three forms of talaq amongst Muslims and centre would enact a new divorce law.
"For the first time you are with us", Chief Justice Khehar said as Sibal said that the government could not ask the apex court to first strike down all three practices of talaq, then it will enact a law.
Citing the 1937 Muslim Personal Law (Shariat) Application Act, he said it was not an attempt to codify Muslim personal law and its "essential purpose" was to ensure that all those customs and practices which were contrary to Islam but being followed by those who embraced Islam should be discontinued and declared contrary to Islam.
Referring to Hindu Code where exceptions were carved out for protection of customs and practices, Sibal said: "You can't say that all personal laws are protected but Muslim personal law was subject to fundamental rights."
Similarly he referred to Dowry Prohibition Act, which while abolishing dowry, permitted gifts.
"Faith can't be interpreted in the courts of law," Sibal said, adding that we "enter into very very complex world where we will have to travel 1,400 years back in history to discover what is wrong and what is right".
"I believe it so. This is my faith for 1,400 years. You can't determine that my faith be so. You can't test my faith on higher principles," he said.
Saying that the diversity of India has to be nurtured and not ridden over roughshod, Sibal referred to the Constitution's Article 371 which provides for special provisions in respect of different states and laws in respect of them can't be made without their consent.
Hearing will continue on Wednesday.