The Central government on Monday told the Supreme Court that if the latter invalidates the men-centric triple talaq that is discriminatory to Muslim women, then it would bring a new divorce law that would be fair and equal to both men and women in the community.
As Attorney General Mukul Rohatgi argued against triple talaq and stressed the need to strike it down, the five judge constitution bench headed by Chief Justice Jagdish Singh Khehar asked him if this is done, then what will happen to Muslim men who went to end their marriage.
"If we accept that giving unfettered rights to a husband is bad and we strike down triple talaq, then where will Muslim men go for divorce," asked Justice Uday Umesh Lalit who, along with the CJI, Justice Kurian Joseph, Justice Rohinton Fali Nariman and Justice S. Abdul Nazeer are on the constitution bench.
Without losing a moment, Rohatgi told the bench that if they strike down all three practices - triple talaq, nikah halala and polygamy, then the government will bring a new law.
At this, Chief Justice Khehar said that the top court was not just the "guardian to the Constitution but also that of the Minorities Act".
At the outset of the hearing, the Attorney General urged the court to examine not just the validity of the triple talaq vis-a-vis the Constitution but also that of the nikah halala and polygamy too.
However, the court, citing the limited time that is available, said that as of now, it would focus on the validity of triple talaq, leaving the other two issues for the future.
In the course of the hearing, pointing to the inertia in the evolution of the Muslim Personal Law, Rohatgi said that as far as Hindus were concerned, various steps were taken to bring their laws in conformity with the Constitution but that has not happened with Muslims, who had a Shariat Act in 1937, then in 1939 and then some change in 1986 in the wake of Shah Bano case.
The court was apparently unimpressed when he said that he cited the Constitution's Article 14 and 15 to highlight the discrimination being faced by the Muslim women, noting that these articles are all against the state.
Terming his position "very difficult", the court said that attempts to invoke Article 14 without the state was a "whitewash".
As Rohatgi emphasised on gender equality of Muslim women including with their counterparts in other religions and in other Islamic countries, the court said that he was talking of gender equality, equality between religions and equality between the people of different countries and in this way, all marriage laws should go and civil marriage was the only course.
The court said that marriage as an institution is crystallised by religion, drawing an objection from him and inviting a comment from the bench that if marriage was not rooted in religion, then what was it.
Appearing for the All India Muslim Personal Law Board, senior counsel Kapil Sibal told the bench that the "issue is not talaq, the issue is patriarchy" or a state of society which is inherently discriminatory of this or that religion.
Describing the issue as "highly complex" which can't be resolved easily, he referred to Hindu Code under which customs are still protected, noting that even under 2006 Hindu Succession (Amendment) Act, 2005, a father can bequeath his entire property to his son without giving anything to his daughter.
Noting that the Constitution protects personal laws and all patriarchal societies are discriminatory, Sibal said that all laws that apply to Hindus, Muslims, and other religions must be tested on the grounds of discrimination.
Representing the government, Additional Solicitor General Tushar Mehta told the court that Islamic practices as practiced in India were not "pure Islam" but an "anglicised" form of the religion.