Will bring in new law if triple talaq nixed, Centre tells Supreme Court

NEW DELHI: The Centre assured the Supreme Court on Monday that it would bring in a law to oversee divorce among Muslims if all forms of talaq were struck down, prompting the court to observe that this might erase personal laws and it was bound by the Constitution to protect the rights of minorities.

Attorney general Mukul Rohatgi’s assertion came when a five-judge bench headed by CJI J S Khehar, taking note of his argument that all three forms of talaq needed to be struck down as they violated a Muslim women’s right to equality, dignity and gender justice, asked, “If talaq in entirety is erased, how will a Muslim man walk out of bad marriage?”

The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, said if the Centre wanted uniformity in marriage, then it should do away with all other laws and tell citizens that all must marry according to the secular Special Marriages Act. “Marriage is a religious ceremony.

The manner in which you (the Centre) are arguing, it will finish all personal law rights. Some religious rights are given to all under Article 25.

The way you argue, it would mean that religion and religious practices can be thrown to the wind,” the bench said. However, the SC said the ball was in the Centre’s court.

“If the court takes the first step and quashes talaq in entirety, we will take the next step of enacting a new law,” Rohatgi replied. Rohatgi argued that triple talaq was bad in law as it gave men unilateral right to irrevocably end a marriage.

He appeared to prefer, for the present, the other two forms of talaq, which have inbuilt process of reconciliation and revocation of divorce.

When the bench sought a clarification, the AG said, “If all three forms of talaq are struck down, then we will not leave a vacuum. Triple talaq is not part of religion.” He went on to list a large number of Muslimmajority countries that had repealed triple talaq as an irrevocable mode to end marriage.

“Right to religion cannot mean that Article 25 protects only what citizens do inside a temple, mosque, gurdwara or other religious institutions but not other customs or practices they perform outside,” the bench said while responding to the AG’s arguments.

The AG said when a personal law, for example triple talaq as contained in Sharia law of 1937, violated fundamental rights guaranteed under the Constitution, then that personal law, practice or custom must go.

“Do Muslim women have equality in matter of divorce within the community? Do they enjoy equal rights compared to women of other communities within the country? Do they enjoy similar rights compared to Muslim women in other countries? If the answer to the three questions are no, then that custom, even if part of religious rights, must be struck down as unconstitutional,” he said.

The bench said personal rights and fundamental rights operated on two different spheres. “If a man gives Rs 10 to one son and Rs 5 to another son, does he violate the right to equality of the sons? Marriage and divorce are part of personal laws and are religious ceremonies.”

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