The call to banish triple talaq should not be perceived as an attempt by the Hindu majority to "swamp or dominate" the Muslim minority, the National Democratic Alliance government told the Supreme Court on Wednesday.
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.
The All India Muslim Personal Law Board (AIMPLB), which favours the practice, also equated triple talaq with the Hindu belief that Lord Rama was born at Ayodhya.
A five-judge constitution bench led by Chief Justice of India JS Khehar is hearing pleas challenging the practice that allows a Muslim man to end his marriage by uttering the word talaq (I divorce you) thrice in one go.
The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, had begun the hearing on May 11.
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Another former Union minister and senior advocate, Kapil Sibal, who appeared for AIMPLB, said that Attorney General Mukul Rohtagi had raised the issue of constitutional morality in the matter.
He argued that it, therefore, can not be tested by the apex court on the yardstick of violation of the fundamental rights guaranteed under the Constitution.
"Can it be made possible to give an option to a wife that she can say that she was agreeable to or not agreeable to it (triple talaq)?". "Our faith in this court for the last 67 years is fundamental, and with that faith we have come here", he said.
Telling the court that the impact of the divorce was civil involving her maintenance and shelter, Jaising said the court should address the social consequences of divorce as women lose everything. "But if there is a clash between your personal law practices and the fundamental rights of equality and dignity, your personal law practices should give way", Mr. Rohatgi replied.
"The constitutional validity of personal law in our country can not be tested on the oasis of enacted legislation of other countries", he said in his written submissions while questioning the arguments of the Centre and of petitioners who say triple talaq has been abolished in Islamic countries.
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He added: "It (instant talaq) has been followed for 1,400 years, whether it is right of wrong".
Sibal said this was a "very complex situation" as the AIMPLB says it was a practice and Article 25, which guarantees freedom of conscience and free profession, practice and propagation of religion, is a fundamental right.
■ 16 May: AIMPLB says triple talaq is a 1,400-year-old practice, and constitutional morality and equity can not arise when a matter of faith is concerned.
■ 12 May: SC says the practice of triple talaq was the "worst" and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as "legal". It was further argued that a husband can delegate the power of pronouncing triple talaq to his wife or to another person. The learned Counsel for petitioner Mr. Kapil Sibbal has argued that though the talaq-i-biddat (instantaneous triple talaq) has no mention in Quran, still it is a matter of faith for 1,400 years for followers of Islam. "We are talking about rule of law", he said. "Hence, there was no question of constitutional morality and equity", he added.
However, the top court said that they have a limited time, so all the matters could not be covered at present.
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