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Who are we to say triple talaq is un-Islamic?

17 May 2017

The AIMPLB had, on several occasions, admitted that triple talaq is sinful.

A five-judge constitution bench, headed by Chief Justice JS Khehar, is hearing a clutch of petitions challenging the practice of triple talaq among Muslims.

As Sibal stressed on the point that personal law was a matter of faith and court should not step in, Justice Joseph said: "May be".

On the second day of the hearing, senior Congress leader Salman Khurshid, who is the amicus curiae in the matter, said before the Supreme Court that the controversial Islamic divorce system can not be justified whatsoever. It does not matter if it is seen as an article of faith by a handful of backers of coercive patriarchy.

Sibal had also said a tradition like triple talaq, which is centuries old, can not be termed unconstitutional all of a sudden.

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Sibal contended that all three forms of talaq - Ahasn, Hasn, and Talaq-e-Biddat (triple talaq) - do not find mention in the Quran or the Hadiths.

To this, the Bharatiya Muslim Mahila Andolan (BMMA) said in a statement released yesterday, "AIMPLB's argument that a Muslim man can delegate his power of pronouncing talaq to his wife is laughable - this can hardly be expected to happen in real life if the wife wants a divorce but husband doesn't".

Sibal said that ceremonies related to birth, marriage, divorce, properties and death are decided by family influenced by social norms, which can not be tested on the ground of constitutional morality.

"There was a discussion that whether Triple Talaq is valid constitutionally". All of this constitutes the Sharia law, Sibal said.

"Take for example the Dowry Prevention Act, despite its enactment, the practice continues as the law permits exchange of presents", he said.

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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".

Citing examples, Khurshid told the court that the Triple Talaq practice can not be validated constitutionally.

It can not be done overnight. So, educate them if there is anything wrong in their customs, practices and usages. "But do not attempt to effect changes forcibly through the guile of Constitution", Sibal said. "The question will arise, 'Why me (the Muslim community)?" It would be wrong for the court to force its view on the community. It is the community to get rid of them.

Sibal cautioned the SC not to fall for attorney general Mukul Rohatgi's assertion that if the court quashed triple talaq, the Centre would enact a fresh law governing divorce among Muslims and said there could be a situation where Parliament failed to pass a legislation.

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Who are we to say triple talaq is un-Islamic?